Robert C. Vidaver, M.D.; Decision and Order, 7218-7220 [2018-03303]

Download as PDF 7218 Federal Register / Vol. 83, No. 34 / Tuesday, February 20, 2018 / Notices sradovich on DSK3GMQ082PROD with NOTICES noon the next day pursuant to § 210.4(f) of the Commission’s Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (‘‘Docket No. 3296) in a prominent place on the cover page and/ or the first page. (See Handbook for Electonic Filing Procedures, Electronic Filing Procedures).1 Persons with questions regarding filing should contact the Secretary (202–205–2000). Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. All information, including confidential business information and documents for which confidential treatment is properly sought, submitted to the Commission for purposes of this Investigation may be disclosed to and used: (i) By the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel,2 solely for cybersecurity purposes. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary and on EDIS.3 This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission’s Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)). By order of the Commission. 1 Handbook for Electronic Filing Procedures: https://www.usitc.gov/documents/handbook_on_ filing_procedures.pdf. 2 All contract personnel will sign appropriate nondisclosure agreements. 3 Electronic Document Information System (EDIS): https://edis.usitc.gov. VerDate Sep<11>2014 17:55 Feb 16, 2018 Jkt 244001 Issued: February 13, 2018. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2018–03330 Filed 2–16–18; 8:45 am] BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION [Investigation Nos. 701–TA–578 and 731– TA–1368 (Final)] 100- to 150-Seat Large Civil Aircraft From Canada; Determinations On the basis of the record 1 developed in the subject investigations, the United States International Trade Commission (‘‘Commission’’) determines, pursuant to the Tariff Act of 1930 (‘‘the Act’’), that an industry in the United States is not materially injured or threatened with material injury, and the establishment of an industry in the United States is not materially retarded, by reason of imports of 100- to 150-seat large civil aircraft from Canada, provided for in subheading 8802.40.00 of the Harmonized Tariff Schedule of the United States, that have been found by the U.S. Department of Commerce (‘‘Commerce’’) to be sold in the United States at less than fair value (‘‘LTFV’’) and to be subsidized by the government of Canada. Background The Commission, pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)), instituted these investigations effective April 27, 2017, following receipt of a petition filed with the Commission and Commerce by The Boeing Company, Chicago, Illinois. The final phase of the investigations was scheduled by the Commission following notification of preliminary determinations by Commerce that imports of 100- to 150seat large civil aircraft from Canada were subsidized within the meaning of section 703(b) of the Act (19 U.S.C. 1671b(b)) and sold at LTFV within the meaning of 733(b) of the Act (19 U.S.C. 1673b(b)). Notice of the scheduling of the final phase of the Commission’s investigations and of a public hearing to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the Federal Register on October 27, 2017 (82 FR 49850).2 The 1 The record is defined in sec. 207.2(f) of the Commission’s Rules of Practice and Procedure (19 CFR 207.2(f)). 2 Due to the lapse in appropriations and ensuing cessation of Commission operations, these PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 hearing was held in Washington, DC, on December 18, 2017, and all persons who requested the opportunity were permitted to appear in person or by counsel. The Commission made these determinations pursuant to sections 705(b) and 735(b) of the Act (19 U.S.C. 1671d(b) and 19 U.S.C. 1673d(b)). It completed and filed its determinations in these investigations on February 13, 2018. The views of the Commission are contained in USITC Publication 4759 (February 2018), entitled 100- to 150Seat Large Civil Aircraft from Canada: Investigation Nos. 701–TA–578 and 731–TA–1368 (Final). By order of the Commission. Dated: February 13, 2018. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2018–03317 Filed 2–16–18; 8:45 am] BILLING CODE 7020–02–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Robert C. Vidaver, M.D.; Decision and Order On July 18, 2017, the Acting Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (hereinafter, DEA or Government), issued an Order to Show Cause to Robert C. Vidaver, M.D. (hereinafter, Respondent), of Henniker, New Hampshire. GX 2. The Show Cause Order proposed the revocation of Respondent’s Certificate of Registration on the ground that Respondent is ‘‘currently without authority to handle controlled substances in the State of New Hampshire,’’ the State in which he is registered. GX 2, at 2 (citing 21 U.S.C. 824(a)(3)). As to the Agency’s jurisdiction, the Show Cause Order alleged that Respondent holds DEA Certificate of Registration No. FV0660565, which authorizes him to dispense controlled substances in schedules II through V as a practitioner, at the registered address of 304 Highland Drive, Henniker, New Hampshire 03242. GX 2, at 1. See also GX 1 (Certification of Registration History). The Show Cause Order alleged that this registration expires on May 31, 2019. GX 2, at 1. See also GX 1, at 1. As the substantive ground for the proceeding, the Show Cause Order alleged that Respondent is ‘‘without investigations conducted under authority of Title VII of the Tariff Act of 1930 accordingly have been tolled pursuant to 19 U.S.C. 1671d(b)(2), 1673d(b)(2). E:\FR\FM\20FEN1.SGM 20FEN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 83, No. 34 / Tuesday, February 20, 2018 / Notices authority to handle controlled substances in the State of New Hampshire, the state in which . . . [he is] registered with DEA.’’ GX 2, at 1. It further alleged that, ‘‘[o]n July 2, 2015, the New Hampshire Board of Medicine issued an Order on Practice Restrictions prohibiting . . . [Respondent] from prescribing or administering controlled substances . . . [and t]hus, . . . [Respondent is] currently without authority to handle controlled substances in the State of New Hampshire.’’ GX 2, at 1. See also GX 3 (New Hampshire Board of Medicine Order on Practice Restrictions (hereinafter, Practice Restrictions Order)) and GX 6 (New Hampshire Online Licensing information concerning Respondent) (‘‘7/2/15— Order on Practice Restrictions. License is active pending further Board Action.’’). The Show Cause Order asserted that ‘‘DEA must revoke . . . [his] DEA registration based on . . . [his] lack of authority to handle controlled substances in the State of New Hampshire.’’ GX 2, at 1–2 (citing 21 U.S.C. 824(a)(3) and 21 CFR 1301.37(b)). The Show Cause Order notified Respondent of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedures for electing each option, and the consequences for failing to elect either option. GX 2, at 2 (citing 21 CFR 1301.43). The Show Cause Order also notified Respondent of the opportunity to submit a corrective action plan. GX 2, at 2 (citing 21 U.S.C. 824(c)(2)(C)). On July 27, 2017, a DEA Diversion Investigator personally served Respondent with the Show Cause Order. GX 4, at 1 (Declaration of Service of Order to Show Cause dated October 3, 2017). By letter dated August 17, 2017 addressed to the Office of the [DEA] Administrative Law Judges and copied to Respondent, James P. O’Rourke, Jr., Esq., advised that ‘‘upon advice of counsel, Dr. Vidaver is exercising his right against self-incrimination pursuant to the New Hampshire and United States Constitution . . . [and a]s such, Dr. Vidaver will not be appearing at the September 12, 2017 hearing nor offering a statement regarding the instant Order to Show Cause.’’ GX 5, at 1 (Letter of James P. O’Rourke, Jr., Esq.) (emphasis in original). On October 12, 2017, the Government submitted a Request for Final Agency Action including an evidentiary record to support the Show Cause Order’s allegation (hereinafter, RFAA). VerDate Sep<11>2014 17:55 Feb 16, 2018 Jkt 244001 I find that the Government’s service of the Show Cause Order on Respondent was legally sufficient. I find that the letter from Mr. O’Rourke stated that Respondent was exercising his Federal and State Constitutional rights against selfincrimination and, therefore, will not appear at a hearing or file a written statement. Based on the letter from Respondent’s counsel, I find that Respondent has waived his right to request a hearing, to submit a written statement, and to submit a corrective action plan. I issue this Decision and Order based on the record submitted by the Government. 21 CFR 1301.43(e). Findings of Fact Respondent’s DEA Registration Respondent currently holds DEA practitioner registration FV0660565 authorizing him to dispense controlled substances in schedules II through V at the address of 304 Highland Drive, Henniker, New Hampshire 03242. GX 1, at 1; GX 2, at 1. This registration expires on May 31, 2019. Id. The Status of Respondent’s Authority To Dispense Controlled Substances in New Hampshire On July 2, 2015, the Administrator and Authorized Representative of the New Hampshire Board of Medicine signed a Practice Restrictions Order granting Respondent’s request to continue the Adjudicatory/Disciplinary Proceeding hearing concerning him ‘‘until the resolution of . . . [Respondent’s] criminal case.’’ GX 3, at 2. The terms of the Practice Restrictions Order continuance included that Respondent ‘‘will refrain from prescribing or administering any controlled substances.’’ Id. The Government represented in the RFAA that ‘‘Respondent’s New Hampshire medical license prohibits him from prescribing or administering controlled substances’’ and ‘‘Registrant is without state authority to handle controlled substances in New Hampshire, the state where he is registered with DEA.’’ RFAA, at 3. Accordingly, I find that Respondent currently is without authority to prescribe or administer any controlled substance in New Hampshire, the State in which he is registered with DEA. Discussion Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of the Controlled Substances Act (hereinafter, CSA), PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 7219 ‘‘upon a finding that the registrant . . . has had his State License or registration suspended [or] revoked by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.’’ With respect to a practitioner, the DEA has also long held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a practitioner’s registration. See, e.g., James L. Hooper, M.D., 76 FR 71,371, 71,371–72 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 27,617 (1978). This rule derives from the text of two provisions of the CSA. First, Congress defined the term ‘‘practitioner’ [to] mean[ ] a physician . . . or other person licensed, registered, or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, . . . [or] administer . . . a controlled substance in the course of professional practice.’’ 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner’s registration, Congress directed that ‘‘[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.’’ 21 U.S.C. 823(f). Because Congress has clearly mandated that a practitioner possess State authority in order to be deemed a practitioner under the CSA, the DEA has held repeatedly that revocation of a practitioner’s registration is the appropriate sanction whenever he is no longer authorized to dispense controlled substances under the laws of the State in which he practices. See, e.g., Hooper, 76 FR at 71,371–72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, 53 FR 11,919, 11,920 (1988); Blanton, 43 FR at 27,617. In this case, the New Hampshire Board of Medicine ordered practice restrictions on Respondent when it granted Respondent’s request for a continuance of the licensee disciplinary proceedings against him. The New Hampshire Board of Medicine Practice Restrictions Order granted the continuance Respondent requested ‘‘to the extent’’ that Respondent ‘‘refrain[s] from prescribing or administering any controlled substances.’’ GX 3, at 2. Consequently, Respondent is not currently authorized to handle controlled substances in the State of E:\FR\FM\20FEN1.SGM 20FEN1 7220 Federal Register / Vol. 83, No. 34 / Tuesday, February 20, 2018 / Notices New Hampshire, the State in which he is registered with the Agency and, therefore, he is not entitled to maintain his DEA registration. Hooper, 76 FR at 71,371–72; Blanton, 43 FR at 27,617. Accordingly, I will order that Respondent’s registration be revoked and that any pending application for the renewal or modification of his registration be denied. 21 U.S.C. 824(a)(3), id. § 823(f). Order Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration FV0660565 issued to Robert C. Vidaver, M.D., be, and it hereby is, revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well as 28 CFR 0.100(b), I further order that any pending application of Robert C. Vidaver, M.D., to renew or modify this registration, as well as any other pending application by him for registration in the State of New Hampshire, be, and it hereby is, denied. This order is effective March 22, 2018. Dated: February 6, 2018. Robert W. Patterson, Acting Administrator. [FR Doc. 2018–03303 Filed 2–16–18; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. 15–27] sradovich on DSK3GMQ082PROD with NOTICES Trinity Pharmacy I; Order Terminating Registration On July 10, 2015, the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, issued an Order to Show Cause to Trinity Pharmacy I (hereinafter ‘‘Trinity I’’ or Respondent), which proposed the revocation of its DEA Certificate of Registration BT9848170, pursuant to which it is authorized to dispense controlled substances in schedules II through V as a retail pharmacy, at the registered location of 11130 Seminole Boulevard, Seminole, Florida. Administrative Law Judge Exhibit (ALJ Ex.) 1a, at 1. As grounds for the proposed action, the Show Cause Order alleged that Respondent’s ‘‘continued registration is inconsistent with the public interest.’’ Id. (citing 21 U.S.C. 823(f) and 824(a)(4)). The Show Cause Order notified Respondent of its right to request a hearing on the allegations or to submit a written statement in lieu of a hearing, the procedure for electing VerDate Sep<11>2014 17:55 Feb 16, 2018 Jkt 244001 either option, and the consequence for failing to elect either option. Id. at 15. In a letter from its counsel dated August 12, 2015, Trinity I requested a hearing on the allegations. ALJ Ex. 2a. The matter was placed on the docket of the Office of Administrative Law Judges and assigned to Chief Administrative Law Judge John J. Mulrooney, II (hereinafter, CALJ), who conducted a hearing on the allegations on January 4– 8, 2016, in Arlington, Virginia, and on January 11–12, 2016, in Tampa, Florida. On May 12, 2016, the CALJ issued and served his Recommended Decision, which included the CALJ’s recommendation that I revoke Respondent’s registration and deny any pending applications for renewal. Recommended Decision (R.D.), at 66.1 On June 2, 2016, the Government and Respondent each filed Exceptions to the CALJ’s Recommended Decision. Thereafter, the record was forwarded to me for final agency action. On March 22, 2017, during the course of reviewing the record, my office received a ‘‘Notice of Trinity Pharmacy I Change of Business Status’’ (hereinafter, ‘‘Notice’’) from the Government. In its Notice, the Government ‘‘informs the Acting Administrator of the change of business status for’’ Trinity I. Notice, at 1. Specifically, the Government states that, on March 17, 2017, counsel for Trinity I sent an email to the Group Supervisor of the Agency’s Tampa, Florida District Office, which in turn attached a copy of a February 27, 2017 letter to the DEA’s Registration Unit stating that Trinity I ‘‘desires to discontinue business activities’’ and enclosed ‘‘the original DEA Certificate of Registration for Cancellation.’’ Feb. 27, 2017 Letter to DEA Registration Unit from Dale R. Sisco, Counsel for Trinity I, attached as Exhibit B to Notice, at 1. The Government attached to its Notice a copy of the email, the letter, and a copy of Trinity I’s ‘‘original DEA Certificate of Registration’’ sent to the Agency. Notice at 1; Exhibits A–B to Notice. It is undisputed that Trinity I surrendered its ‘‘original DEA Certificate of Registration’’ to the Agency. Based on these facts, I find that Respondent has surrendered its DEA registration certificate. Pursuant to 21 CFR 1301.52(a), ‘‘the registration of any 1 Trinity Pharmacy II (‘‘Trinity II’’), located in Clearwater, Florida, was served with a separate July 10, 2015 Order to Show Cause by the Government. ALJ Ex. 1b. Although the CALJ eventually ordered the consolidation of the evidentiary hearings for Trinity I and Trinity II, see ALJ Ex. 10 at 2, the CALJ wrote separate recommendations regarding each Respondent, and I therefore will issue a separate Order regarding the disposition of the Show Cause Order directed at Trinity II. PO 00000 Frm 00085 Fmt 4703 Sfmt 9990 person . . . shall terminate, without any further action by the Administration, if and when such person . . . surrenders a registration.’’ As a result, I find that Respondent’s registration terminated upon its surrender to the Agency, and accordingly, that the Show Cause proceeding is now moot.2 Pursuant to the authority vested in me under 5 U.S.C. 554(e) and 28 CFR 0.100(b), I declare that DEA Certificate of Registration BT9848170, issued to Trinity I, terminated upon its surrender to the Agency. Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 824(a), as well as 28 CFR 0.100(b), I further order that the Order to Show Cause issued to Trinity I be, and it hereby is, dismissed. This Order is effective immediately. Dated: February 6, 2018. Robert W. Patterson, Acting Administrator. [FR Doc. 2018–03297 Filed 2–16–18; 8:45 am] BILLING CODE 4410–09–P 2 In its Notice, the Government stated that it forwarded the February 27, 2017 correspondence from Trinity I’s counsel for my consideration because it is ‘‘unsure of how Trinity ‘disposed of’ the ‘controlled substances in the possession of the pharmacy,’ when it disposed of them, and if applicable, to whom the controlled substances were provided.’’ Notice at 2 (quoting Ex. B to Notice, at 1). This uncertainty, in turn, is based solely on the Government’s observation that Trinity I’s counsel cited to federal regulations in his letter that ‘‘do[ ] not exist.’’ Id. Specifically, Trinity I’s counsel stated that Trinity I ‘‘desires to discontinue business activities.’’ Ex. B to Notice, at 1. As a result, he enclosed Trinity I’s ‘‘original DEA Certificate of Registration’’ ‘‘as required by 21 CFR Section 1307.14’’ and stated that Trinity I ‘‘does not possess any unexecuted Order forms,’’ and ‘‘[a]ll controlled substances in the possession of the pharmacy have been disposed of in accordance with 21 CFR Section 1307.21.’’ Id. The Government observed, correctly, that ‘‘21 CFR Section 1307.14’’ and ‘‘21 CFR Section 1307.21’’ ‘‘do[ ] not exist,’’ and that the federal regulation setting forth the procedures a DEA registrant must follow when it desires to discontinue business activities altogether is 21 CFR 1301.52(c). Notice, at 2. However, the Government failed to note that the provision cited by Trinity I’s counsel related to the disposal of controlled substances (21 CFR 1307.21) did exist until it was re-codified and amended on September 9, 2014 to what is now 21 CFR 1301.52(c) and part 1317 of Title 21 of the Code of Federal Regulations. See generally Disposal of Controlled Substances Final Rule, 79 FR 53520 (Sept. 9, 2014). Most importantly, the Government offered no factual basis for why it is ‘‘unsure’’ of how Trinity I disposed of its controlled substances when Trinity I discontinued its business activities. Nevertheless, if the Government has a factual basis to believe that Trinity I violated the Controlled Substances Act when it disposed of its controlled substances as a result of its discontinued business activities, then I direct the Government to investigate such violations immediately. E:\FR\FM\20FEN1.SGM 20FEN1

Agencies

[Federal Register Volume 83, Number 34 (Tuesday, February 20, 2018)]
[Notices]
[Pages 7218-7220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03303]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Robert C. Vidaver, M.D.; Decision and Order

    On July 18, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (hereinafter, DEA or 
Government), issued an Order to Show Cause to Robert C. Vidaver, M.D. 
(hereinafter, Respondent), of Henniker, New Hampshire. GX 2. The Show 
Cause Order proposed the revocation of Respondent's Certificate of 
Registration on the ground that Respondent is ``currently without 
authority to handle controlled substances in the State of New 
Hampshire,'' the State in which he is registered. GX 2, at 2 (citing 21 
U.S.C. 824(a)(3)).
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent holds DEA Certificate of Registration No. FV0660565, which 
authorizes him to dispense controlled substances in schedules II 
through V as a practitioner, at the registered address of 304 Highland 
Drive, Henniker, New Hampshire 03242. GX 2, at 1. See also GX 1 
(Certification of Registration History). The Show Cause Order alleged 
that this registration expires on May 31, 2019. GX 2, at 1. See also GX 
1, at 1.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that Respondent is ``without

[[Page 7219]]

authority to handle controlled substances in the State of New 
Hampshire, the state in which . . . [he is] registered with DEA.'' GX 
2, at 1. It further alleged that, ``[o]n July 2, 2015, the New 
Hampshire Board of Medicine issued an Order on Practice Restrictions 
prohibiting . . . [Respondent] from prescribing or administering 
controlled substances . . . [and t]hus, . . . [Respondent is] currently 
without authority to handle controlled substances in the State of New 
Hampshire.'' GX 2, at 1. See also GX 3 (New Hampshire Board of Medicine 
Order on Practice Restrictions (hereinafter, Practice Restrictions 
Order)) and GX 6 (New Hampshire Online Licensing information concerning 
Respondent) (``7/2/15--Order on Practice Restrictions. License is 
active pending further Board Action.''). The Show Cause Order asserted 
that ``DEA must revoke . . . [his] DEA registration based on . . . 
[his] lack of authority to handle controlled substances in the State of 
New Hampshire.'' GX 2, at 1-2 (citing 21 U.S.C. 824(a)(3) and 21 CFR 
1301.37(b)).
    The Show Cause Order notified Respondent of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. GX 2, 
at 2 (citing 21 CFR 1301.43). The Show Cause Order also notified 
Respondent of the opportunity to submit a corrective action plan. GX 2, 
at 2 (citing 21 U.S.C. 824(c)(2)(C)).
    On July 27, 2017, a DEA Diversion Investigator personally served 
Respondent with the Show Cause Order. GX 4, at 1 (Declaration of 
Service of Order to Show Cause dated October 3, 2017).
    By letter dated August 17, 2017 addressed to the Office of the 
[DEA] Administrative Law Judges and copied to Respondent, James P. 
O'Rourke, Jr., Esq., advised that ``upon advice of counsel, Dr. Vidaver 
is exercising his right against self-incrimination pursuant to the New 
Hampshire and United States Constitution . . . [and a]s such, Dr. 
Vidaver will not be appearing at the September 12, 2017 hearing nor 
offering a statement regarding the instant Order to Show Cause.'' GX 5, 
at 1 (Letter of James P. O'Rourke, Jr., Esq.) (emphasis in original).
    On October 12, 2017, the Government submitted a Request for Final 
Agency Action including an evidentiary record to support the Show Cause 
Order's allegation (hereinafter, RFAA).
    I find that the Government's service of the Show Cause Order on 
Respondent was legally sufficient.
    I find that the letter from Mr. O'Rourke stated that Respondent was 
exercising his Federal and State Constitutional rights against self-
incrimination and, therefore, will not appear at a hearing or file a 
written statement. Based on the letter from Respondent's counsel, I 
find that Respondent has waived his right to request a hearing, to 
submit a written statement, and to submit a corrective action plan.
    I issue this Decision and Order based on the record submitted by 
the Government. 21 CFR 1301.43(e).

Findings of Fact

Respondent's DEA Registration

    Respondent currently holds DEA practitioner registration FV0660565 
authorizing him to dispense controlled substances in schedules II 
through V at the address of 304 Highland Drive, Henniker, New Hampshire 
03242. GX 1, at 1; GX 2, at 1. This registration expires on May 31, 
2019. Id.

The Status of Respondent's Authority To Dispense Controlled Substances 
in New Hampshire

    On July 2, 2015, the Administrator and Authorized Representative of 
the New Hampshire Board of Medicine signed a Practice Restrictions 
Order granting Respondent's request to continue the Adjudicatory/
Disciplinary Proceeding hearing concerning him ``until the resolution 
of . . . [Respondent's] criminal case.'' GX 3, at 2. The terms of the 
Practice Restrictions Order continuance included that Respondent ``will 
refrain from prescribing or administering any controlled substances.'' 
Id. The Government represented in the RFAA that ``Respondent's New 
Hampshire medical license prohibits him from prescribing or 
administering controlled substances'' and ``Registrant is without state 
authority to handle controlled substances in New Hampshire, the state 
where he is registered with DEA.'' RFAA, at 3.
    Accordingly, I find that Respondent currently is without authority 
to prescribe or administer any controlled substance in New Hampshire, 
the State in which he is registered with DEA.

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under section 823 of the 
Controlled Substances Act (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had his State License or registration suspended 
[or] revoked by competent State authority and is no longer authorized 
by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, the DEA has also long 
held that the possession of authority to dispense controlled substances 
under the laws of the State in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71,371, 71,371-72 (2011), pet. for rev. denied, 481 Fed. 
Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27,616, 
27,617 (1978).
    This rule derives from the text of two provisions of the CSA. 
First, Congress defined the term ``practitioner' [to] mean[ ] a 
physician . . . or other person licensed, registered, or otherwise 
permitted, by . . . the jurisdiction in which he practices . . . to 
distribute, dispense, . . . [or] administer . . . a controlled 
substance in the course of professional practice.'' 21 U.S.C. 802(21). 
Second, in setting the requirements for obtaining a practitioner's 
registration, Congress directed that ``[t]he Attorney General shall 
register practitioners . . . if the applicant is authorized to dispense 
. . . controlled substances under the laws of the State in which he 
practices.'' 21 U.S.C. 823(f). Because Congress has clearly mandated 
that a practitioner possess State authority in order to be deemed a 
practitioner under the CSA, the DEA has held repeatedly that revocation 
of a practitioner's registration is the appropriate sanction whenever 
he is no longer authorized to dispense controlled substances under the 
laws of the State in which he practices. See, e.g., Hooper, 76 FR at 
71,371-72; Sheran Arden Yeates, M.D., 71 FR 39,130, 39,131 (2006); 
Dominick A. Ricci, M.D., 58 FR 51,104, 51,105 (1993); Bobby Watts, 53 
FR 11,919, 11,920 (1988); Blanton, 43 FR at 27,617.
    In this case, the New Hampshire Board of Medicine ordered practice 
restrictions on Respondent when it granted Respondent's request for a 
continuance of the licensee disciplinary proceedings against him. The 
New Hampshire Board of Medicine Practice Restrictions Order granted the 
continuance Respondent requested ``to the extent'' that Respondent 
``refrain[s] from prescribing or administering any controlled 
substances.'' GX 3, at 2.
    Consequently, Respondent is not currently authorized to handle 
controlled substances in the State of

[[Page 7220]]

New Hampshire, the State in which he is registered with the Agency and, 
therefore, he is not entitled to maintain his DEA registration. Hooper, 
76 FR at 71,371-72; Blanton, 43 FR at 27,617. Accordingly, I will order 
that Respondent's registration be revoked and that any pending 
application for the renewal or modification of his registration be 
denied. 21 U.S.C. 824(a)(3), id. Sec.  823(f).

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration 
FV0660565 issued to Robert C. Vidaver, M.D., be, and it hereby is, 
revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), as 
well as 28 CFR 0.100(b), I further order that any pending application 
of Robert C. Vidaver, M.D., to renew or modify this registration, as 
well as any other pending application by him for registration in the 
State of New Hampshire, be, and it hereby is, denied. This order is 
effective March 22, 2018.

    Dated: February 6, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-03303 Filed 2-16-18; 8:45 am]
 BILLING CODE 4410-09-P

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