Harrell E. Robinson, M.D.; Revocation of Registration, 61370-61377 [E9-28190]

Agencies

• Drug Enforcement Administration
• Department of Justice

[Federal Register Volume 74, Number 225 (Tuesday, November 24, 2009)]
[Notices]
[Pages 61370-61377]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-28190]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 09-32]


Harrell E. Robinson, M.D.; Revocation of Registration

    On February 26, 2009, I, the Deputy Administrator of the Drug 
Enforcement Administration, issued an Order to Show Cause and Immediate 
Suspension of Registration to Harrell E. Robinson, M.D. (Respondent), 
of Santa Ana, California. The Order proposed the revocation of 
Respondent's DEA Certificate of Registration, AR8613487, which 
authorizes him to dispense controlled substances in schedules II 
through V as a practitioner, on the ground that Respondent's continued 
registration is ``inconsistent with the public interest, as that term 
is defined in 21 U.S.C. 823(f), 824(a)(4).'' Show Cause Order at 1. The 
Order also proposed the denial of any pending applications for renewal 
or modification of Respondent's registration. Id.
    Specifically, the Show Cause Order alleged that from February 2007 
through October 2008, Respondent ``purchased approximately 613,000 
dosage units of hydrocodone combination products and unlawfully 
distributed these drugs to an unregistered individual in exchange for 
$10,000 per month * * * in violation of 21 U.S.C. 841(a)(1).'' Id. In 
addition, the Show Cause Order alleged that from September 2007 through 
October 2008, Respondent ``purchased approximately 397,000 dosage units 
of hydrocodone combination products using the DEA registration numbers 
of two other practitioners in violation of 21 U.S.C. 843(a)(2) and 
(3).'' Id. at 2. Further, Respondent allegedly then ``distributed these 
drugs to an unregistered individual, in violation of 21 U.S.C. 
841(a)(1).'' Id.
    Based on the above, I further concluded that Respondent's 
``continued registration while these proceedings are pending 
constitutes an imminent danger to the public health and safety.'' Show 
Cause Order at 2. Consequently, pursuant to my authority under 21 
U.S.C. 824(d) and 21 CFR 1301.36(e), I immediately suspended 
Respondent's registration, with the suspension to remain in effect 
until the issuance of this Final Order. Id.
    Respondent requested a hearing on the allegations. The case was 
placed on the docket of the Agency's Administrative Law Judges (ALJ) 
and a hearing was scheduled for May 12, 2009. On April 9, 2009, the ALJ 
ordered Respondent to file a prehearing statement no later than May 4, 
2009. ALJ at 2 n.1; ALJ Ex. 3. The same day, the ALJ's law clerk faxed 
Respondent a letter advising him of his right to counsel. ALJ at 2 n.1; 
ALJ Ex. 4.
    On May 1, Respondent requested an extension of time to file his 
prehearing statement, advising that he was retaining counsel that 
afternoon. ALJ at 2 n.1. On May 4, the ALJ granted Respondent an 
extension of time to May 7, noting that the hearing was set for May 12 
and that Respondent had not asked for a postponement of the hearing. 
Id.
    On May 6, Respondent filed a request to postpone the hearing; in 
response, the ALJ's law clerk ``left a telephone message for Respondent 
advising that

[[Page 61371]]

before [the ALJ] could act on his request to postpone the hearing, his 
attorney must contact [the ALJ's] office and that all communication 
with [the ALJ's] office should be accomplished through the attorney.'' 
Id. However, no attorney contacted the ALJ's office on Respondent's 
behalf. Accordingly, on May 7, the ALJ denied Respondent's request to 
postpone the hearing. Id.; ALJ Ex. 6.
    On May 12, 2009, the hearing was held as originally scheduled in 
Arlington, Virginia. ALJ at 2. At the hearing, the Government was 
represented by counsel. Id. By contrast, neither Respondent, nor anyone 
purporting to represent him, appeared, and thereafter, Respondent 
``filed nothing further'' with the office of the ALJ. Id. at 2 & 2 n.1; 
see also 21 CFR 1301.43(d) (``If any person entitled to a hearing * * * 
files [a request for a hearing] and fails to appear at the hearing, 
such person shall be deemed to have waived the opportunity * * * to 
participate in the hearing, unless such person shows good cause for 
such failure.'').
    At the hearing, the Government called witnesses to testify and 
introduced documentary evidence. ALJ at 2. Thereafter, the Government 
filed proposed findings of fact, conclusions of law, and argument.
    On May 29, 2009, the ALJ issued her Opinion and Recommended Ruling. 
On June 24, noting that neither party had filed exceptions to the 
opinion, the ALJ forwarded the matter to me for final agency action.
    In her discussion of the public interest factors, the ALJ noted 
that ``[t]here is no indication that Respondent is not fully licensed 
to practice medicine in California.'' ALJ at 17. She therefore found 
that ``this factor weighs in favor of a finding that his continued 
registration would be in the public interest.'' Id. The ALJ further 
explained, however, that because ``state licensure is a necessary but 
not sufficient condition for DEA registration,'' this factor was ``not 
dispositive.'' Id. As for factors two and four--Respondent's experience 
in dispensing controlled substances and compliance with applicable 
laws--the ALJ concluded that Respondent violated 21 U.S.C. 841 by 
distributing hydrocodone combination products at unregistered locations 
to unregistered persons who were not legitimate patients and by 
arranging with other physicians to use their DEA registration numbers 
to purchase hydrocodone combination products which were also 
distributed unlawfully. Id. at 17-18. She also concluded that 
Respondent violated 21 U.S.C. 822(a)(1) by distributing the products 
without a registration to do so. Id. at 18. Furthermore, the ALJ 
concluded that Respondent violated 21 CFR 1301.71(a) by not maintaining 
effective controls against diversion of controlled substances. Id. 
Finally, the ALJ determined that Respondent had violated California 
State Business and Professions Code sections 2242 and 2241.5 in that 
(1) he failed to physically examine the individual to whom he had 
distributed the drugs and to determine that she had a medical 
indication for treatment with hydrocodone combination products, and 
that (2) he failed to maintain records of his handling of controlled 
substances as required by state law. Id. Accordingly, the ALJ found 
that ``these factors weigh in favor of a finding that Respondent's 
continued registration would be inconsistent with the public 
interest.'' Id.
    Noting that the record did not include any evidence that Respondent 
had been convicted under any federal or state law relating to the 
manufacture, distribution, or dispensing of controlled substances, the 
ALJ concluded that the Respondent's conviction record ``although not 
dispositive, weighs against finding that Respondent's registration 
would be inconsistent with the public interest.'' Id. at 18-19. 
Finally, crediting the Diversion Investigator's (DI's) testimony that 
Respondent had ``told him that Respondent's status as a physician 
allowed him to order hydrocodone and that his orders were acceptable 
because the drugs were going to poor people,'' the ALJ concluded that 
``[t]his ludicrous attempt to justify his activities indicates that 
Respondent has neither respect for nor a willingness to accept the 
responsibilities adherent to a DEA registration.'' Id. at 19. 
Accordingly, she found that factor five--such other conduct which may 
threaten public health or safety--weighed ``in favor of a finding that 
Respondent's continued registration would not be consistent with the 
public interest.'' Id.
    Considering all the factors together, the ALJ concluded that ``a 
preponderance of the evidence establishes that Respondent's continued 
registration with the DEA would be inconsistent with the public 
interest.'' Id. The ALJ therefore recommended that I revoke 
Respondent's registration and deny any pending applications. Id.
    On August 6, 2009, the Government filed a Motion to Reopen Record. 
The basis of the motion was that on June 22, 2009, Respondent, in a 
proceeding before the Medical Board of California (``the Board''), 
``signed a stipulation which acknowledged that the Board could 
establish a factual basis for a series of allegations contained in a 
Fourth Amended Accusation, which included twelve (12) causes of action 
against him.'' Gov't Mot. at 2. In support of its motion, the 
Government attached a copy of the Fourth Amended Accusation and the 
Board's Decision and Order of July 20, 2009. Id.
    The Board's Decision and Order provided that the attached 
Stipulated Surrender of License and Order of June 22, 2009, was 
``adopted by the Medical Board of California * * * as its Decision'' in 
the matter. Gov't Mot., Exh. A, at 1. The Decision provided that the 
Stipulated Surrender of License and Order ``shall become effective at 5 
p.m. on September 30, 2009.'' Id. (emphasis in original).
    Because the Board's order is clearly material to the public 
interest inquiry, see 21 U.S.C. 823(f)(1), was not available at the 
time of the hearing, and therefore could not have been presented at the 
original hearing, I conclude that the Government has set forth a prima 
facie case for reopening the record. Cf. INS v. Abudu, 485 U.S. 94, 97 
(1988). I therefore grant the Government's motion to reopen the record 
and admit the Board's order to the record.
    Having considered the record in its entirety, I hereby issue this 
Decision and Final Order. I adopt the ALJ's findings of fact and 
conclusions of law except as expressly noted herein. I further adopt 
the ALJ's recommended sanction. I make the following findings.

Findings

    Respondent is the holder of DEA Certificate of Registration, 
AR8613487, which prior to the issuance of the Order of Immediate 
Suspension, authorized him to dispense controlled substances in 
schedules II through V as a practitioner at the registered location of 
1523 North Broadway in Santa Ana, California. GX 1; Tr. 110. While the 
registration certificate indicates that the registration was to expire 
on April 30, 2008; on March 12, 2008, Respondent submitted a renewal 
application. GX 9, at 1. Because Respondent timely filed his renewal 
application, and his registration was not then suspended, Respondent 
retains a current registration (albeit one which is suspended) pending 
the issuance of this Final Order. See 5 U.S.C. 558(c); 21 CFR 
1301.36(i).
    In February 2008, Respondent also applied for registrations at the 
locations of 145 South Chaparral in Anaheim Hills, California, and 1421 
North Broadway in Santa Ana. Id. at 111, 134,

[[Page 61372]]

136; GX 7. Both the 1523 North Broadway and the 1421 North Broadway 
locations were owned by a Dr. Joy Johnson, but she ``delegated'' the 
responsibility for leasing the premises to Ms. Magdalena Annan, an 
individual identified as having hired Respondent as the medical 
director of the clinic on 1523 North Broadway. Tr. 100, 141.
    At the hearing, an Agency Investigator (DI) testified that he 
visited the 1523 North Broadway location, which was a house converted 
into a business premises; on the front of the house was a sign 
indicating the business name as the Madre Maria Ines Teresa Health 
Center. Tr. 75. Although the DI observed the property for between two 
and three hours, he never saw an individual who appeared to be a 
patient entering or exiting the premises. Id. at 75-76.

The DEA Investigation

    DEA commenced investigating Respondent in November 2007 because he 
was the sixth largest purchaser of hydrocodone combination products 
among California physicians for the year 2007. Tr. 55-56, 63; GX 34. 
Respondent was known to have purchased controlled substances from four 
different wholesalers, including Top RX, Inc., the Harvard Drug Group, 
and A.F. Hauser. Tr. 59-60.
    The DI confirmed through a Compliance Officer for Top Rx, Inc. (Top 
RX), a Tennessee drug wholesaler, that Respondent had purchased 336,000 
dosage units \1\ of hydrocodone products \2\ from Top RX between 
February 2 and November 12, 2007. Tr. 63-64; GXs 14 & 15. At least one 
order was paid for with a check in the name of Madre Maria Ines Teresa 
Health Center, 1523 Broadway Street, Santa Ana, California; the holder 
of that checking account was Magdalena (``Maggie'') Annan. Tr. 72-73; 
GX 16, at 96. According to the Compliance Officer, the ``contact name'' 
on the account was ``Maggee.'' GX 14.
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    \1\ The ALJ found that Respondent had purchased only 228,700 
dosage units from Top Rx, finding that the Compliance Officer had 
``advised'' the DI as to that number. ALJ at 3. The DI did not so 
testify, and the letter from Compliance Officer did not include any 
total of drug dosage units, See GX 14. Rather, only the letter's 
attachment provided the data from the orders. See GX 15. In totaling 
those orders, I find that Respondent bought 336,000 dosage units 
from Top Rx.
    \2\ Throughout this Order any reference to hydrocodone products 
refers to schedule III drugs which combine hydrocodone with another 
active pharmaceutical ingredient such as acetaminophen.
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    In some cases, Ms. Annan ordered the hydrocodone products, and her 
name was listed as the accounts payable manager on Respondent's account 
with Top RX and the Harvard Drug Group. Tr. 64-65; 73-74; 99-100; GXs 
16 & 27. On other occasions, Respondent personally ordered the 
hydrocodone combination products. Id. at 10-12, 14.
    By January 2008, Respondent ceased to purchase hydrocodone 
combination products from Top RX. Instead, in December 2007, he started 
purchasing the same type of drugs from Harvard Drug Group (Harvard), a 
wholesaler in Michigan. Tr. 8, 79. Mr. S. S., Harvard's Vice President 
for Regulatory Affairs, testified that Respondent opened an account 
with Harvard in December 2007, indicating that it was an account for a 
clinic he owned. Tr. 11. To open the account, on December 26, 2007, 
Respondent signed an affidavit in which he attested that he was not 
engaged in business as an Internet pharmacy, that he did not dispense 
prescriptions by mail to patients, that he was located in an area 
accessible to the public, and that walk-in customers were welcome. Tr. 
29; GX 24. On his credit application to Harvard, Respondent listed the 
accounts payable manager as ``Maggie.'' GX 27. S.S. testified that he 
did not know who this individual was. Tr. 43.
    In January 2008, Respondent opened a second account with Harvard, 
indicating that he owned a second medical clinic whose medical 
director, Scott Bickman, M.D.,\3\ would also be purchasing controlled 
substances under his own DEA registration. Tr. 11; GX 28. While the 
drugs ordered by Dr. Bickman were to be shipped to the second clinic 
(145 Chaparral Court in Anaheim Hills), bills were to be sent to 
Respondent's main office. Tr. 11-12, 20; GX 30, at 9. Respondent was 
listed on the invoices as the person billed. GX 30, at 9, 20.
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    \3\ Dr. Bickman was the sixth largest purchaser of hydrocodone 
products in California for 2008. Tr. 57; GX 36.
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    At some point, Respondent opened a third account in the name of 
Thomas Mitchell, M.D. Tr. 14, 30. Both Drs. Bickman and Mitchell 
provided Harvard with affidavits similar to that provided by Respondent 
when he opened the account. Tr. 29-30; GXs 25 & 26.
    S.S. testified that Harvard sends its local DEA office (Detroit) 
computer-generated reports of orders that the company considers 
excessive. Tr. 47. He also testified that Harvard ``reported'' Drs. 
Robinson and Bickman ``pretty much every month from January 2008 
onward.'' Id. at 49. He additionally testified that Harvard imposes a 
quota on the quantity of hydrocodone combination products that a 
customer may receive in a given month. Id. at 48.
    The evidence further shows that hydrocodone combination products 
were the sole products that were purchased from Harvard by Respondent 
and Drs. Bickman and Mitchell. GX 29; Tr. 25. Respondent ordered the 
drugs by telephone, a matter confirmed to the DI by G.B., an inside 
sales representative for Harvard, as well as by e-mail from S.S. to the 
DI. Tr. 18-19, 116-17; GX 31, at 3.\4\
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    \4\ Sometime prior to March 2008, the DI had contacted S.S. and 
asked him to provide historical information on Respondent's 
purchases. Tr. 78-79. Starting in March 2008, the DI asked S.S. to 
provide advanced notice of controlled substance deliveries to 
Respondent and Drs. Mitchell and Bickman. Tr. 14, 16, 79; GX 31. 
S.S. complied with this request, typically, by e-mail. See id.
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    During the months of March through May 2008, S.S. provided e-mail 
alerts to the DI regarding Respondent's ordering for the three clinics. 
See GX 31. On March 18, S.S. e-mailed the DI, indicating that ``last 
night'' Respondent had called and left a message to order more 
hydrocodone combination products. GX 31, at 9. S.S. wrote: ``We have 
not shipped this order as account has reached its total quantity 
allowed for Hydrocodone items for the month.'' Id. Again, on March 18, 
S.S. e-mailed as follows:

    I spoke with [Respondent] this afternoon. I explained our 
company's policy when his orders get cut off when they order group 
[sic] of products (Controlled Drugs) which reaches 25,000 tablets a 
month. He insisted that his other clinic in Anaheim Hills has not 
reached his monthly limit and wants his order shipped at that 
location. We ran reports to find out what quantity he has purchased 
at his Anaheim Hills clinic. We have so far shipped 17,500 tablets 
of Hydrocodone so since he wants balanced [sic] of order shipped, 
here is what we have shipped today * * * .
    This will be his last shipment for the month. I have explained 
to him that any additional orders for Hydrocodone must be placed 
with other wholesale distributors as we will not be able to ship any 
quantity to either of his clinic [sic] until April 1st.

    Id. at 11.

    On April 15, S.S. again e-mailed the DI indicating that Respondent 
had placed an order for his Anaheim Hills clinic and that Respondent 
``also asked if we can ship similar order to his other location but we 
have refused to ship because that location has already reached its 
monthly purchase limits for above items.'' Id. at 20. Similarly, on 
April 22, S.S. advised the DI by e-mail that Respondent ``called to 
place additional orders but we refused to fill orders as he has reached 
his monthly maximum limit that he could get so we have not filled any 
additional orders since our last shipment.'' Id. at 26. S.S. further 
advised that Respondent ``may be purchasing from other wholesalers.'' 
Id.

[[Page 61373]]

    In October 2008, Harvard generated computer printouts of the 
controlled substances orders it had received from Respondent, Dr. 
Mitchell and Dr. Bickman. The printouts showed that Respondent had 
ordered 263,500 dosage units \5\ of hydrocodone between December 11, 
2007 and October 10, 2008; that Dr. Bickman ordered 213,000 dosage 
units \6\ of hydrocodone between December 18, 2007 and October 15, 
2008; and that Dr. Mitchell ordered 43,500 dosage units \7\ of 
hydrocodone between July 31 and October 15, 2008. GX 29. Most of the 
orders were for 10-milligram strength product; others were for 7.5-
milligram strength product. Id.
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    \5\ The ALJ found only 93,000 dosage units. ALJ at 5. The ALJ 
appears to have multiplied the bottle-count (500) by the number of 
orders rather than by the number of bottles per order.
    \6\ The ALJ found only 77,000 dosage units. ALJ at 5. See supra 
note 4 for the explanation of the discrepancy.
    \7\ The ALJ found only 16,500 dosage units. ALJ at 5. See supra 
note 4 for the explanation of the discrepancy.
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    The DI testified that Respondent purchased about 800,000 pills 
using his, Dr. Bickman's, and Dr. Mitchell's DEA registrations. Tr. 
113-14.\8\ According to DEA's Automated Reports and Consolidated 
Ordering System (ARCOS), Respondent purchased a total of 641,400 dosage 
units of hydrocodone products under his name between February 2, 2007 
and October 10, 2008 (the period of his ordering from Top RX and 
Harvard). GX 37. ARCOS data further indicates that 265,500 dosage units 
of hydrocodone products were purchased under Dr. Bickman's DEA 
registration between October 8, 2007, and September 29, 2008.\9\ GX 38; 
Tr. 158. Finally, ARCOS data indicates that 51,500 dosage units of 
hydrocodone products were purchased under Dr. Mitchell's DEA 
registration between August 22 and October 15, 2008. GX 39; Tr. 158.
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    \8\ This figure includes the approximately 336,000 tablets 
obtained from Top RX and the approximately 263,500 obtained from 
Harvard on his own account, plus the approximately 213,000 and 
43,500 obtained from Harvard on the accounts of Drs. Bickman and 
Mitchell. The ALJ's figures are therefore rejected as inconsistent 
with the evidence.
    \9\ A comparison of ARCOS data with the Harvard data suggests 
that Dr. Bickman's account was used to order from an additional 
wholesaler.
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    Based on the evidence establishing that Respondent had entered into 
arrangements with Drs. Bickman and Mitchell to use their registration 
numbers, I find that the purchases made under their registrations are 
attributable to Respondent. I further find that between February 2, 
2007 and October 10, 2008, Respondent purchased a total of 958,400 
dosage units of hydrocodone products.
    Agency Investigators, with the help of officers from the Costa 
Mesa, California Police Department, conducted surveillance of the 
delivery of packages from Harvard to Respondent's clinics on five 
occasions. Tr. 80-81. In the first such instance, in mid-February 2008, 
the DHL driver could not complete the delivery. Id. at 83.
    However, at 9 a.m. on March 12, during a surveillance of the 
Anaheim Hills clinic, Investigators observed a delivery which was taken 
into the office. Id. Later that morning, at about 11:45 a.m., 
Respondent arrived in his car and went into the office; fifteen minutes 
later he emerged with the box, and placed it in the trunk of his car. 
Id. at 83-84. Moments later, Respondent got into another car in the 
parking lot which was driven by a woman, who then drove him to his car, 
where he retrieved the box and placed it in the trunk of the woman's 
car. Id. at 84-85, 87. Respondent and the woman then drove 
approximately twenty miles to pick up two children at a school and then 
returned with the children to the Anaheim Hills clinic. Id. at 86-87. 
Some ten or fifteen minutes later, the woman and children got back in 
the car and drove to Respondent's residence at 1880 Seabiscuit Run, 
Yorba Linda, California. Id. at 87. The woman parked the car in the 
garage, leaving the children and the box in the car. Id. at 87-88.
    Moments later, the woman emerged, drove to the 1421 North Broadway 
clinic, and parked at the rear of the building. Id. at 88. After going 
into the office, she returned to the car with another woman, and put 
the box in a third car. Id. The other woman then drove away with the 
box. Id. at 88-89. The second woman drove approximately five miles to 
another house in Santa Ana where another woman got in the car with her; 
the two then drove to the Madre Maria Ines Teresa Health Center, where 
they entered the building and left the box in the car. Id. at 89. The 
surveillance ended at that point. Id.
    On March 20, Investigators conducted a third surveillance at the 
Anaheim Hills clinic. Id. at 94-95. The surveillance began at 
approximately 8:45 a.m.; about one hour later, a woman arrived in a 
Mercedes-Benz and walked into the building. Id. at 95. Respondent 
arrived by car at about 11:15 a.m. and also entered the building. Id. 
DHL delivered a box at 11:40 a.m. Id. At 1:30 p.m., two women and a man 
left the office carrying the box and a flower arrangement, which they 
placed in the trunk of one of the cars. Id. The women drove to a 
restaurant a few blocks away, dined, and then drove to the 1421 North 
Broadway location, taking the flower arrangement inside. Id. at 96. One 
of the women returned to the car, driving it to a shopping center in 
Santa Ana. Id. As the car lacked license plates, the officers copied 
the vehicle identification number (VIN) and determined from the 
Department of Motor Vehicles that the car was registered in 
Respondent's name. Id. at 96-97. The woman returned to the car, drove 
elsewhere to pick up two children, went to a pharmacy and then to the 
Seabiscuit Run address arriving there at about 5:45 p.m. Id. at 97. 
Surveillance terminated some fifteen minutes later. Id. The DI 
testified that the woman driving the car was Alinka Robinson, 
Respondent's wife. Id. at 98.
    On May 9, law enforcement officers conducted a fourth surveillance. 
Id. at 104. A box was delivered at 10:12 a.m., and Respondent arrived 
at his office by car at approximately 12:15 p.m. Id. At around 2:15 
p.m., Respondent placed the box in his car and returned to the office; 
at about 4:30 p.m., Respondent again left the office and drove to a 
bank and a restaurant. Id. In the restaurant parking lot, Respondent 
parked next to a black Humvee that investigators identified as 
belonging to Ms. Annan. Id. at 105-06. Respondent moved three boxes 
from his car to the Humvee and talked for about fifteen minutes with 
Ms. Annan in her car; Respondent then returned to his car and drove 
away. Id. at 105. The investigators followed Ms. Annan to her home in 
Santa Ana, but the boxes remained in her car until the surveillance 
terminated at 6:30 p.m. Id. The DI testified that he had opened this 
box before it was delivered and that it contained bottles of 
hydrocodone. Id. at 107-08.
    On May 14, the fifth and final surveillance was conducted at the 
1523 North Broadway location in Santa Ana. Id. at 106. At 9:24 a.m., 
DHL delivered a box. Later, Respondent arrived, and at about 11:20 
a.m., Ms. Annan arrived in a black Mercedes-Benz. At around noon, Ms. 
Annan and another woman put the box in Ms. Annan's car and returned to 
the building. Id. at 106-07. At approximately 12:40 p.m., Ms. Annan 
left the building and drove to her home, where she stayed until 
surveillance terminated at 6:30 p.m. Id. at 107.
    On October 16, 2008, investigators executed search warrants at the 
1523 and 1421 North Broadway locations in Santa Ana, at the 145 South 
Chaparral location in Anaheim Hills, and at Ms. Annan's and 
Respondent's residences. Id. at 110. During the search, the 
Investigators did not find any records documenting the disposition of 
the hydrocodone products Respondent had

[[Page 61374]]

purchased such as dispensing records. Id. at 112. While there were some 
purchase invoices at Ms. Annan's residence, Ms. Annan does not hold a 
DEA registration. Id. at 122-23.
    During the search of the 1421 North Broadway location, the 
Investigators found a box of hydrocodone products which had been 
delivered that very day. Id. at 124-25; GX 40. At the South Chaparral 
location, which was an operating medical clinic, they found patient 
records but no records documenting the receipt and dispensing of the 
hydrocodone products Respondent had purchased. Tr. 126.
    The DI interviewed Respondent, who reported that he had given the 
hydrocodone products to Ms. Annan, who had told him ``that she was 
taking these pills into Mexico to give them to either the Catholic 
health clinics or a doctor down there for poor or people who can't get 
medication on their own.'' Id. at 114. Respondent provided the name of 
a doctor, but no address. Id. at 114-15. However, the DIs were unable 
to verify Respondent's story. Id. at 115. Respondent does not hold 
either a distributor's or an exporter's registration under the 
Controlled Substances Act. Id. at 115; GX 1.
    Respondent further stated that Ms. Annan had hired him as medical 
director of a clinic, for which she paid him $10,000 per month, but 
that he ``rarely went to the clinic at all as far as seeing patients or 
to do records.'' Id. He indicated that he had given Ms. Annan 
permission to order drugs and that she would either place the orders or 
tell him which orders to place. Id. at 116. He would then ``transfer 
the boxes to her, the pills to her.'' Id. Respondent paid for the 
orders with a credit card but then was reimbursed in cash by Ms. Annan. 
Id. at 117. According to the DI, Respondent said that ``because he was 
a doctor he was allowed to order these pills and that because they were 
being delivered to Mexico for poor people it was okay.'' Id. at 119. At 
no point did Respondent attempt to confirm Ms. Annan's statements about 
where the drugs were going. Id.
    According to Respondent, Ms. Annan approached him in 2007, and 
requested that he open another clinic through which he could order more 
pills. Id. at 118. At that point, Respondent opened the second clinic 
at the South Chaparral location in Anaheim Hills and asked Dr. Bickman 
to serve as the medical director so he could order supplies and drugs 
under his registration. Id. Later, Ms. Annan and Respondent 
``approached'' Dr. Mitchell about a third location, the 1421 North 
Broadway site, ``as a third office to buy pills.'' Id. Respondent 
reportedly paid Drs. Bickman and Mitchell $2,000 per month and $1,000 
per month, respectively; both physicians knew that Respondent was 
ordering controlled substances in their names and using their DEA 
registration numbers to do so. Id. at 120-21.\10\
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    \10\ This is further confirmed by two notes written by Dr. 
Bickman to Harvard. A note dated February 21, 2008, signed by Scott 
Bickman, M.D., requested that Harvard ``[p]lease change the previous 
ordering arrangement for my account to holding all orders until I 
have been notified and give verbal authorization for them to be 
honored by The Harvard Group.'' GX 22, at 2. Then, in a note dated 
February 27, 2008, Dr. Bickman requested that Harvard ``DISREGARD 
ALL PREVIOUS FAXES DEMANDING MANAGEMENT OF MY ACCOUNT AND ALLOW DR. 
ROBINSON'S OFFICE TO PLACE ORDERS AS NEEDED.'' GX 23, at 2.
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    During the execution of the search warrants, another DI interviewed 
Ms. Annan at her residence. Id. at 145. Ms. Annan denied that she had 
ever received anything from Respondent, that Respondent had ever put 
anything in her vehicle, and that he had ever given her money. Id. 
According to Ms. Annan, Respondent paid half the rent for the Madre 
Maria Ines Teresa Health Center and he also paid her referral fees for 
patients that she referred to him for plastic surgery. Id. at 146. She 
indicated that she had worked for a number of physicians and that the 
physicians had always ordered their own drugs. Id.
    While executing the warrant at Ms. Annan's residence, Investigators 
found a black garbage bag in her kitchen which contained medications, 
including some controlled substances. Id. at 147-48. Ms. Annan 
indicated that she was taking them to the Department of Health Services 
for destruction. Id. at 148. Ms. Annan also directed investigators to a 
hall closet containing miscellaneous drugs which she alleged she had 
brought home from the office of a Dr. Marini on instructions from the 
Anaheim Police Department, due to break-ins at the doctor's office. Id. 
at 148-49. Ms. Annan denied that she sold drugs. Id. at 150.

The State Proceeding

    On June 3, 2009, the Executive Director of the Medical Board of 
California (``the Board'') filed a Fourth Amended Accusation with the 
Board, citing twelve different causes for discipline against 
Respondent's state medical license. Gov't Mot. Ex. A, at 10, 18-37. On 
June 22, 2009, Respondent signed a Stipulated Surrender of License and 
Order, in which he agreed that the Board ``could establish a factual 
basis for the First [Cause for Discipline] * * * in the Fourth Amended 
Accusation and that those allegations constitute cause for 
discipline.'' Gov't Mot., Ex. A, at 4. Furthermore, Respondent, 
``g[a]ve[] up his right to contest that cause for discipline exists 
based on those charges.'' \11\Id.
---------------------------------------------------------------------------

    \11\ The Stipulated License Surrender further stated that the 
``admissions made by Respondent herein are only for the purposes of 
this proceeding, or any other proceeding in which the Medical Board 
of California or other professional licensing agency is involved, 
and shall not be admissible in any other criminal, civil, 
administrative, or other proceeding.'' Id. DEA is not, however, 
bound by the stipulation. See Edmund Chein, 72 FR 6580, 6590 (2007), 
aff'd Chein v. DEA, 533 F.3d 828 (D.C. Cir. 2008) (stipulated 
settlement agreed to by a state board does not bind DEA). In any 
event, in enforcing the registration provisions of the CSA, DEA acts 
as a professional licensing agency.
---------------------------------------------------------------------------

    The First Cause for Discipline specifically alleged that between 
February 2007 and October 2008, Respondent ``purchased approximately 
613,000 dosage units of hydrocodone and unlawfully distributed them to 
an unregistered individual in exchange for $10,000.00 per month in 
violation of 21 U.S.C. 841(a)(1).'' Id. at 10. It further alleged that 
``[f]rom September 2007 through October 2009, [R]espondent purchased 
approximately 397,000 dosage units \12\ of hydrocodone using the DEA 
registration numbers of two other practitioners in violation of 21 
U.S.C. 843(a)(2) and (3),'' and ``then distributed these drugs to an 
unregistered individual in violation of 21 U.S.C. 841(a)(1).'' Id.
---------------------------------------------------------------------------

    \12\ This figure is even larger than the ARCOS figures of 
265,500 dosage units for Dr. Bickman and 51,500 dosage units for Dr. 
Mitchell.
---------------------------------------------------------------------------

    The First Cause also alleged that in an interview on or about 
October 16, 2008, Respondent admitted that he had diverted the 
aforementioned hydrocodone products to ``Magdalena `Maggie' Annan''; 
that he had given Ms. Annan ``permission for her to order drugs'' such 
that ``Annan would place the orders or would tell [R]espondent what to 
order and then [R]espondent would give the hydrocodone to her''; that 
Annan ``was reimbursing [R]espondent for the cost of the narcotics and 
paying [R]espondent $10,000.00 a month to work as her medical director 
* * * at 1523 North Broadway in Santa Ana''; and that Respondent 
``rarely went to Annan's clinic to see patients and/or review medical 
records.'' Id. at 10-11.
    The First Cause further alleged that Annan asked Respondent to open 
a second medical clinic on South Chaparral so that they could order 
more pills and that Respondent asked another physician, Dr. Scott 
Bickman, to be the medical director of this clinic and paid him 
$2,000.00 per month; that Respondent then approached another physician, 
Dr. Thomas Mitchell, about opening a third medical clinic at 1421

[[Page 61375]]

North Broadway, Santa Ana, and paid him for ``$1,000.00 per month for 
permission to use [his] DEA registration to purchase narcotics and have 
them shipped to the 1421 North Broadway office''; and that while Annan 
``claimed she was taking the hydrocodone to Mexico to give to either 
the Catholic health services or a doctor for poor people who could not 
get medication on their own,'' Respondent ``did not know the name of 
the organization that Annan was allegedly giving the narcotics to and 
made no efforts to verify Annan's claim.'' Id. at 11.
    In the Stipulated Surrender, Respondent agreed to surrender his 
California Physician's and Surgeon's Certificate and that he would 
``lose all rights and privileges as a Physician and Surgeon in 
California as of September 30, 2009.'' Stipulated Surrender and Order 
at 4. On July 20, 2009, the Medical Board of California adopted the 
Stipulated Surrender of License and Order as its decision. The Board 
further ordered that its decision would become effective at 5:00 p.m. 
on September 30, 2009. Gov't Mot. Ex. A, at 1.

Discussion

    As an initial matter, I note that Respondent initially requested a 
hearing in this matter. ALJ Ex. 2. While Respondent was provided with 
notice of the date, time and place of the hearing, he failed to appear. 
ALJ Ex 1, at 1. Accordingly, pursuant to 21 CFR 1301.43(d), I conclude 
that Respondent has waived his right to a hearing.
    Section 304(a) of the Controlled Substances Act (CSA) provides that 
a registration to ``dispense a controlled substance * * * may be 
suspended or revoked by the Attorney General upon a finding that the 
registrant * * * has committed such acts as would render his 
registration under section 823 of this title inconsistent with the 
public interest as determined under such section.'' 21 U.S.C. 
824(a)(2). Moreover, section 303(f) of the CSA provides that ``[t]he 
Attorney General may deny an application for a [practitioner's] 
registration if he determines that the issuance of such a registration 
would be inconsistent with the public interest.'' 21 U.S.C. 823(f). In 
making the public interest determination, the CSA requires the 
consideration of the following factors:
    (1) The recommendation of the appropriate State licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing * * * controlled 
substances.
    (3) The applicant's conviction record under Federal or State laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable State, Federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health and 
safety.

Id.
    ``[T]hese factors are * * * considered in the disjunctive.'' Robert 
A. Leslie, M.D., 68 FR 15227, 15230 (2003). I may rely on any one or a 
combination of factors and may give each factor the weight I deem 
appropriate in determining whether to revoke an existing registration 
or to deny an application either to renew an existing registration or 
for a new registration. Id. Moreover, I am ``not required to make 
findings as to all of the factors.'' Volkman v. DEA, 567 F.3d 215, 222 
(6th Cir. 2009); see also Morall v. DEA, 412 F.3d 165, 173-74 (D.C. 
Cir. 2005).\13\
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    \13\ The CSA further provides that ``[t]he Attorney General may, 
in his discretion, suspend any registration simultaneously with the 
institution of proceedings under this section, in cases where he 
finds that there is an imminent danger to the public health or 
safety.'' 21 U.S.C. 824(d).
---------------------------------------------------------------------------

Factor One--The Recommendation of the State Licensing Board

    At the time the ALJ rendered her recommended decision, Respondent 
had yet to sign the Stipulated Surrender of License, and the Board had 
not entered its Decision rendering the surrender of Respondent's state 
medical license effective at 5 p.m. on September 30, 2009. Based on her 
finding that ``[t]here is no indication that Respondent is not fully 
licensed to practice medicine in California,'' the ALJ concluded that 
this factor weighed ``in favor of a finding that [Respondent's] 
continued registration would be in the public interest.'' ALJ at 17.
    However, subsequent to the ALJ's decision, Respondent agreed to 
surrender his state medical license and that he would ``lose all rights 
and privileges as a Physician and Surgeon in California as of September 
30, 2009.'' Stipulated Surrender and Order at 4. Accordingly, I 
conclude that Respondent no longer holds authority to dispense 
controlled substances in California, the State in which he practiced 
medicine. Because the possession of authority under state law to 
dispense controlled substances is an essential condition for holding a 
registration under the CSA, Respondent is not entitled to maintain his 
DEA registration.\14\ See 21 U.S.C. 823(f), 824(a)(3), 802(21). In 
accordance with long settled Agency precedent, Respondent's loss of his 
state authority requires that his CSA registration be revoked. See John 
B. Freitas, D.O., 74 FR 17524, 17525 (2009) (collecting cases). While 
this provides reason alone to revoke Respondent's registration, see 21 
U.S.C. 824(a)(3), because Respondent is not permanently barred from 
seeking reinstatement of his State license, I conclude that a 
discussion of the remaining and relevant public interest factors is 
warranted.
---------------------------------------------------------------------------

    \14\ I therefore reject the ALJ's findings as to factor one. 
Having also considered factor two (Respondent's experience in 
dispensing controlled substances) and factor three (Respondent's 
conviction record under laws relating to controlled substances), I 
conclude that it is not necessary to make findings as to either 
factor.
---------------------------------------------------------------------------

Factors Four and Five--Respondent's Compliance With Applicable 
Controlled Substances Laws and Such Other Conduct Which May Threaten 
Public Health and Safety

    Under the CSA, a registered practitioner is authorized to dispense, 
21 U.S.C. 823(f), which is defined as ``to deliver a controlled 
substance to an ultimate user * * * by, or pursuant to the lawful order 
of, a practitioner.'' Id. Sec.  802(10). See also Rose Mary Jacinta 
Lewis, 72 FR 4035, 4040 (2007) (``A practitioner's registration * * * 
grants its holder authority to obtain controlled substances for the 
limited purposes of conducting research or dispensing them to an 
ultimate user.'') (citing 21 U.S.C. 802(10) & (21), 822(b)).
    The CSA further defines the ``[t]he term `distribute' [as] 
mean[ing] to deliver (other than by administering or dispensing) a 
controlled substance.'' Id. Sec.  802(11). Moreover, ``[p]ersons 
registered * * * under [the CSA] to * * * dispense controlled 
substances * * * are authorized possess * * * or dispense such 
substances [only] to the extent authorized by their registration and in 
conformity with the other provisions of'' the Act. 21 U.S.C. 822(b); 
see also 21 CFR 1301.13(e) (``Any person who engages in more than one 
group of independent activities shall obtain a separate registration 
for each group of activities''); compare 21 U.S.C. 823(e) (requiring 
registration ``to distribute controlled substances in schedules'' III-
V), with id. Sec.  823(f) (requiring registration ``to dispense'' 
controlled substances'' in schedules III-V). Except for when 
distributing to another registered practitioner in accordance with 21 
CFR 1307.11(a), a practitioner may only engage in dispensing. 21 U.S.C. 
822(b).
    Accordingly, a practitioner who delivers a controlled substance to 
a non-

[[Page 61376]]

registered person outside of the course of professional practice and 
without a legitimate medical purpose in doing so violates Federal law. 
See 21 U.S.C. 841(a) (``Except as authorized by this subchapter, it 
shall be unlawful for any person knowingly or intentionally * * * to * 
* * dispense * * * a controlled substance.''). Cf. id. Sec.  844(a) 
(``It shall be unlawful for any person knowingly or intentionally to 
possess a controlled substance unless such substance was obtained 
directly, or pursuant to a valid prescription or order, from a 
practitioner, while acting in the course of his professional 
practice[.]'').
    The evidence clearly establishes that Respondent violated Federal 
law by distributing controlled substances to Ms. Annan. See id. Sec.  
841(a). As found above, in a period just exceeding twenty months, 
Respondent ordered 640,000 dosage units of schedule III controlled 
substances containing hydrocodone on his own account, or allowed his 
co-conspirator Ms. Annan to do so.
    During an interview with a DI, Respondent admitted that that he had 
distributed the drugs to Ms. Annan, who does not hold a DEA 
registration. Moreover, Respondent did not maintain that he had 
dispensed the drugs to Ms. Annan in the course of his professional 
practice and pursuant to the rendering of legitimate medical 
treatment.\15\ See 21 U.S.C. 802(21) (defining the term 
``practitioner'' as meaning ``a physician * * * licensed, registered, 
or otherwise permitted, by the United States or the jurisdiction in 
which he practices * * * to dispense * * * a controlled substance in 
the course of professional practice''); id. Sec.  822(c) (authorizing 
``an ultimate user'' to possess a controlled substance'' for purposes 
of legitimate medical treatment without holding a registration); id. 
Sec.  802(27) (``The term `ultimate user' means a person who has 
lawfully obtained, and who possesses, a controlled substance for his 
own use or for the use of a member of his household or for an animal 
owned by him or by a member of his household.''). Moreover, Respondent 
admitted that he was paid $10,000 a month by Ms. Annan in exchange for 
his obtaining the drugs for her. Undoubtedly, the drugs found their way 
into the illicit market, either here or in Mexico.\16\
---------------------------------------------------------------------------

    \15\ Respondent's distributions of hydrocodone to Ms. Annan 
averaged approximately 47,000 dosage units a month. This quantity 
would supply a significant number of drug abusers.
    \16\ While Respondent maintained that Annan claimed that she was 
taking the drugs to Mexico to give to either ``Catholic health 
services or a doctor for poor people,'' he did nothing to verify her 
story, which even if it was true, still implicated her in criminal 
activity. See 21 U.S.C. 953(a) (prohibiting the exporting of any 
narcotic drug in schedule * * * III unless'' various requirements 
are met including that the consignee in the country of import hold 
``a permit or license to import such drug [which] has been issued by 
the country of import''); 957(a) (requiring registration to ``export 
from the United States any controlled substance''); 960(a) 
(rendering unlawful the knowing or intentional exportation of a 
controlled substance in violation of sections 953 or 957). However, 
as found above, the record amply demonstrates the absurdity and 
disingenuousness of Respondent's contention.
---------------------------------------------------------------------------

    The evidence further shows that Respondent ordered more than 
300,000 dosage units using the DEA registrations of Drs. Bickman and 
Mitchell (which drugs were also distributed to Ms. Annan), and did so 
in furtherance of a conspiracy with Ms. Annan to enable her to 
circumvent the maximum order ceilings of several drug wholesalers. In 
addition to constituting violations of 21 U.S.C. 841(a), this conduct 
was unlawful for the further reason that federal law prohibits a person 
from ``knowingly or intentionally'' using ``in the course of the * * * 
distribution * * * of a controlled substance, or * * * us[ing] for the 
purpose of acquiring or obtaining a controlled substance, a 
registration number which is * * * issued to another person.'' 21 
U.S.C. 843(a)(2).
    Respondent also violated Federal law and DEA regulations because he 
failed to maintain records documenting the receipt, sale, delivery, and 
disposition of controlled substances. See 21 U.S.C. 827(a)(1) 
(requiring that ``every registrant * * * shall * * * as soon * * * as 
such registrant first engages in the manufacture, distribution, or 
dispensing of controlled substances, and every second year thereafter, 
make a complete and accurate record of all stocks thereof on hand'') & 
(a)(3) (``every registrant under this subchapter * * * distributing, or 
dispensing a controlled substance or substances shall maintain, on a 
current basis, a complete and accurate record of each such substance * 
* * received, sold, delivered, or otherwise disposed of by him'').
    Moreover, Respondent was required to maintain these records for at 
least two years. Id. Sec.  827(b) (``every inventory or other record 
required under this section * * * shall be kept and be available, for 
at least two years, for inspection and copying''). See also 21 CFR 
1304.03 (``Each registrant shall maintain the records and inventories 
and shall file the reports required by this part, except as exempted by 
this section.''); id. Sec.  1304.04 (mandating that records be 
maintained for at least two years and be available for inspection and 
copying).\17\
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    \17\ In her recommended decision, the ALJ concluded that the 
CSA's recordkeeping provisions ``do not apply'' to Respondent. ALJ 
at 18-10 n.22. Apparently, the ALJ reasoned that because Respondent 
was not registered as a distributor, the recordkeeping provisions 
applicable to distributors did not apply to him, and that while he 
was registered as a practitioner, because his conduct did not 
involve dispensing, but rather distribution, the recordkeeping 
requirements applicable to a practitioner also did not apply. Id. 
Under the ALJ's strange logic, any practitioner who engages in the 
criminal distribution of controlled substances would be immunized 
for failing to maintain records documenting his receipt and 
distribution of controlled substances.
    The ALJ did not cite any authority to support her reasoning. 
Contrary to the ALJ's understanding, the CSA itself requires that 
``every registrant * * * manufacturing, distributing, or dispensing 
a controlled substance or substances shall maintain, on a current 
basis, a complete and accurate record of each such substance 
manufactured, received, sold, delivered, or otherwise disposed of by 
him.'' 21 U.S.C. 827(a)(3). This provision does not make a 
registrant's recordkeeping obligations dependent on whether the 
activities he engages in are permitted by, or exceed, the authority 
of his registration.
    Moreover, as I have previously explained, ``[r]ecordkeeping is 
one of the CSA's central features,'' and ``a registrant's accurate 
and diligent adherence to this obligation is absolutely essential to 
protect against the diversion of controlled substances.'' Paul H. 
Volkman, 73 FR30630, 30644 (2008), aff'd 567 F.3d 215, 224 (6th Cir. 
2009). Because the ALJ's conclusion is clearly contrary to the text 
of the CSA and would gut an essential feature of the Act, I reject 
it.
---------------------------------------------------------------------------

    As found above, during the execution of the search warrants, the 
Investigators did not find any of the required records at either 
Respondent's registered location or at the two other clinics. See 21 
CFR 1304.04.\18\ I thus conclude that Respondent violated Federal law 
and DEA regulations for this reason as well. See 21 U.S.C. 842(a)(5) 
(``It shall be unlawful for any person * * * to refuse or negligently 
fail to make, keep, or furnish any record, * * * statement, invoice, or 
information required under this subchapter.'').
---------------------------------------------------------------------------

    \18\ While the Investigators found some invoices at Ms. Annan's 
residence, Respondent was not authorized to keep his records there. 
See 21 CFR 1304.04(a)(1).
---------------------------------------------------------------------------

    Even if Respondent had not committed the above violations of 
Federal law and DEA regulations, I would nonetheless find that he 
committed acts which constitute ``conduct which may threaten the public 
health and safety'' and which render his registration ``inconsistent 
with the public interest.'' Id. Sec. Sec.  823(f)(5) & 824(a)(4). More 
specifically, even if there had been no conspiracy between Respondent 
and Ms. Annan to unlawfully acquire and distribute the drugs, he would 
still be liable for the acts she committed while being allowed to use 
his registration.
    Under DEA precedent, a registrant who entrusts his registration to 
another person is strictly liable for the latter's misuse of his 
registration. See Rose

[[Page 61377]]

Mary Jacinta Lewis, M.D., 72 FR 4035 (2007) (affirming immediate 
suspension of practitioner's registration when she allowed an 
unregistered person to use her registration to order controlled 
substances, supposedly for exportation to HIV-AIDS patients in 
Nigeria). DEA has repeatedly revoked the registrations of practitioners 
for such conduct. See also Paul Volkman, 73 FR 30630, 30644 & n.42 
(2008); Anthony L. Cappelli, 59 FR 42288 (1994). Respondent is thus 
liable for Ms. Annan's acts of unlawful possession, distribution, and/
or exportation of the controlled substances that she obtained under his 
registration.
    As the forgoing demonstrates, Respondent engaged in the knowing and 
intentional diversion of controlled substances and is an egregious 
violator of the CSA. In essence, he leased his DEA registration to Ms. 
Annan to enable her to obtain extraordinary quantities of schedule III 
narcotics containing hydrocodone, a drug which is highly popular with 
drug abusers and which was undoubtedly distributed through illegitimate 
channels. Moreover, in furtherance of the conspiracy, Respondent also 
paid other doctors to obtain their DEA numbers so that he could order 
even more drugs for her.
    Respondent's conduct does not remotely resemble the legitimate 
practice of medicine. Rather, he engaged in a criminal conspiracy to 
distribute controlled substances. His conduct clearly constituted ``an 
imminent danger to the public health or safety,'' 21 U.S.C. 824(d), as 
well as acts which render his continued registration ``inconsistent 
with the public interest.'' Id. Sec.  824(a)(4). For these reasons (as 
well as my finding that he lacks authority under California law to 
dispense controlled substances, id. Sec.  824(a)(3)), Respondent's 
registration will be revoked and his pending applications will be 
denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) & 
824(a), as well as 28 CFR 0.100(b) & 0.104, I order that DEA 
Certificate of Registration, AR8613487, issued to Harrell E. Robinson, 
M.D., be, and it hereby is, revoked. I further order that Respondent's 
pending applications for the renewal or modification of this 
registration, as well as for additional registrations, be, and they 
hereby are, denied.

    Dated: November 17, 2009.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. E9-28190 Filed 11-23-09; 8:45 am]
BILLING CODE 4410-09-P