William R. Montiel, M.D.; Decision and Order, 20853-20855 [2018-09738]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
William R. Montiel, M.D.; Decision and
Order
On August 10, 2017, the Acting
Assistant Administrator, Diversion
Control Division, Drug Enforcement
Administration, issued an Order to
Show Cause to William R. Montiel, M.D.
(hereinafter, Registrant), of Prattville,
Alabama. GX 2. The Show Cause Order
proposed the revocation of Registrant’s
authority under his DEA Certificate of
Registration to dispense schedule II
controlled substances, and the denial of
‘‘any applications for renewal or
modification of such [s]chedule II
authority and any applications for any
other DEA registrations with [s]chedule
II authority pursuant to 21 U.S.C.
824(a)(3), because [he has] no state
authority to handle controlled
substances.’’ Id. at 1.
With respect to the Agency’s
jurisdiction, the Show Cause Order
alleged that Registrant is registered as a
practitioner with authority to dispense
controlled substances in schedules II
through V under Certificate of
Registration No. FM0822812, at the
location of 554C McQueen Smith Road,
Prattville, Alabama. Id. The Order
further alleged that this registration does
not expire until January 31, 2020. Id.
As the substantive ground for the
proceeding, the Show Cause Order
alleged that ‘‘[o]n March 7, 2017, the
Medical Licensure Commission of
Alabama issued an Order restricting
[Registrant’s] license to practice
medicine in . . . Alabama such that [he]
‘shall not prescribe any substance listed
in [s]chedule II of the Alabama
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Fmt 4703
Sfmt 4703
Controlled Substance Act . . . or any
substance listed on the [DEA’s] listing of
[s]hedule II controlled substances.’’’ Id.
at 1–2. The Show Cause Order thus
alleged that as a result of the
Commission’s action, Registrant is
‘‘currently without authority to handle
[s]chedule II controlled substances in
. . . Alabama, the [S]tate in which [he
is] registered with’’ DEA, and that as a
consequence, his schedule II authority
is subject to revocation. Id. at 1–2.
The Show Cause Order notified
Registrant of his right to a hearing or to
submit a written statement while
waiving his right to a hearing, the
procedure for electing either option, and
the consequence of failing either option.
Id. at 2 (citing 21 CFR 1301.43(a) & (c)).
The Order also notified Registrant of his
right to submit a corrective action plan.
Id. at 2–3.
On October 25, 2017, the Government
submitted a Request for Final Agency
Action (RFAA I). GX 5, at 4. Therein,
the Government represented that ‘‘[o]n
August 10, 2017, personnel from DEA’s
Office of Chief Counsel, Diversion and
Regulatory Section, mailed a copy of the
Order to Registrant’s registered address
via first-class United States mail’’ and
that the letter was not returned ‘‘as
undeliverable.’’ Id. The Government
further represented that Registrant had
neither requested a hearing, nor
submitted a written statement while
waiving his right to a hearing, within
the 30-day time period following service
for electing either option. Id. The
Government thus maintained that
Registrant had waived his right to either
a hearing or to submit a written
statement and sought a final order.
On review, I held that the
Government’s effort at service was ‘‘a
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20854
Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Notices
sradovich on DSK3GMQ082PROD with NOTICES
departure from the Agency traditional
practice.’’ GX 6 (Administrator’s Order,
Feb. 6, 2016). I also noted that ‘‘the
Government cite[d] no authority
establishing that a sole effort of mailing
by first class mail (with no evidence of
delivery to the address) is sufficient to
provide constitutionally adequate
service for initiating a proceeding under
the Due Process Clause.’’ Id. I therefore
ordered the Government ‘‘to either
address why its effort was consistent
with the Due Process Clause or to
engage in additional reasonable efforts
to serve Registrant.’’ Id.
On March 20, 2018, the Government
submitted a Second Request for Final
Agency Action. RFAA II, at 5. Therein,
the Government represents that on
August 15, 2017, the case agent
travelled to Registrant’s registered
address to personally serve the Show
Cause Order on Registrant. Id. at 2. The
Government further represents that the
case agent met with Registrant and upon
informing Registrant that he was there
to serve the Show Cause Order,
Registrant stated that he had received
the Order in the mail the previous day
and showed the Order to the case agent
who confirmed that it was identical to
the Order he planned to serve on
Registrant. Id. As support for these
representations, the Government
provided a declaration by the case
agent. GX 7.
Based on the case agent’s declaration,
I now find that Registrant was served
with the Show Cause Order on August
14, 2017. In its Second Request, the
Government again represents that
‘‘Registrant has not requested a hearing
and has not otherwise corresponded or
communicated with DEA regarding the’’
Show Cause Order, to ‘‘include[e] the
filing of [a] written statement in lieu of
a hearing.’’ RFAA II, at 2–3. Because
more than 30 days have now passed
since the date of service of the Show
Cause Order, and Registrant has neither
requested a hearing nor submitted a
written statement while waiving his
right to a hearing, I find that Registrant
has waived his right to a hearing or to
submit a written statement. 21 CFR
1301.43(d). I therefore issue this
Decision and Order based on the
evidentiary record submitted by the
Government. Id. § 1301.43(e). I make the
following factual findings.
FINDINGS
Registrant is the holder of DEA
Certificate of Registration No.
FM0822812, pursuant to which he is
authorized to dispense controlled
substances in schedules II through V as
a practitioner, at the registered address
of 554C McQueen Smith Road,
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Prattville, Alabama. GX 1, at 1. This
registration does not expire until
January 31, 2020. Id.
Registrant is also the holder of a
medical license issued by the Medical
Licensure Commission of Alabama. GX
3, at 2. Following a hearing, on March
7, 2017, the Commission issued an
Order which found that Registrant’s
‘‘treatment of chronic pain patients is
not in compliance with the Board of
Medical Examiners’ guidelines for pain
management and the standards for the
utilization of controlled substances set
out’’ in various provisions of the
Alabama Administrative Code, ‘‘in
violation of § 34–24–360(23) of the
Alabama Code.’’ GX 3, at 2–3. The
Commission also found that Registrant’s
‘‘continued prescribing of’’ schedule II
controlled substances ‘‘presents a risk of
harm to his patients.’’ Id. at 3. The
Commission thus restricted Registrant’s
medical license to prohibit him from
prescribing any schedule II controlled
substance. Id. The Commission’s Order
became effective at midnight on June 23,
2017. Id. at 4 (Commission’s Order, May
24, 2017). According to the online
records of the Commission of which I
take official notice, this restriction
remains in effect as of the date of this
Order. See https://www.albme.org
(visited April 30, 2018).
DISCUSSION
Under the Controlled Substances Act
(CSA), a practitioner’s registration
grants authority to dispense a controlled
substance, which by definition ‘‘means
to deliver a controlled substance to an
ultimate user . . . by, or pursuant to the
lawful order of, a practitioner.’’ 21
U.S.C. 802(10) (emphasis added).
Likewise, the CSA defines the ‘‘[t]he
term ‘practitioner’ [to] mean[] a
physician . . . 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.’’ Id.
§ 802(21). Finally, under the CSA’s
registration provision applicable to a
practitioner, ‘‘[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.’’ Id.
§ 823(f). These provisions thus make
clear that a practitioner’s possession of
federal authority to dispense controlled
substances is generally premised on his
possession of authority under state law
to do so. See also see also id. § 824(a)(3)
(authorizing the suspension or
revocation of registration issued under
section 823 of the CSA, ‘‘upon a finding
that the registrant . . . has had . . .
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[her] 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’’).
As the Supreme Court recognized in
United States v. Moore, 423 U.S. 122,
140–41 (1975), ‘‘[i]n the case of a
physician this scheme contemplates that
he is authorized by the State to practice
medicine and to dispense drugs in
connection with his professional
practice. The federal registration . . .
extends no further.’’
Thus, to the extent a practitioner is
not authorized under state law to
dispense certain categories or schedules
of controlled substances, he can no
longer lawfully dispense them under
federal law. See Kenneth Harold Bull,
78 FR 62666, 62672, 62676 (2013)
(restricting practitioner’s registration to
authorize the dispensing of only those
controlled substances authorized to
dispense under his state license).
Accordingly, where a state board takes
such action, at a minimum, a
practitioner’s CSA registration must be
restricted to authorize the dispensing of
only those controlled substances which
he can lawfully dispense under state
law. See id.; see also 21 U.S.C. 824(a)(3).
Based on the Commission’s Order, I
find that Registrant is currently without
authority to prescribe schedule II
controlled substance under his Alabama
Medical License. Because his authority
under his DEA registration (in Alabama)
can only extend as far as his state
authority, I will order that his authority
to prescribe schedule II controlled
substances be revoked and that his
registration be restricted to prohibit him
from prescribing schedule II controlled
substances.1
ORDER
Pursuant to the authority vested in me
by 28 CFR 0.100(b) and 21 U.S.C.
824(a)(3), I order that the authority of
William R. Montiel, M.D., to prescribe
schedule II controlled substances under
1 While the Government argues that ‘‘Registrant’s
[s]chedule II authority should be revoked . . .
because Registrant has no state authority to handle
[s]chedule II controlled substances in Alabama,’’
RFAA II, at 4, the various state Orders submitted
by the Government address only his authority to
prescribe and not to engage in other activities
which fall within the definition of dispense, such
as administering or direct dispensing, whether
under the CSA or Alabama law. See Ala. Code § 20–
2–2 (defining the term ‘‘dispense’’ to mean ‘‘[t]o
deliver a controlled substance to an ultimate user
. . . by or pursuant to the lawful order of a
practitioner, including the prescribing, [or]
administering’’ of a controlled substance). While it
may have been the intent of the Commission to
entirely limit Registrant’s schedule II authority, that
is not apparent on the face of its Orders.
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Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Notices
Certificate of Registration No.
FM0822812 be, and it hereby is,
revoked. I further order that any
application of William R. Montiel, M.D.,
to renew or modify his registration, or
for any other registration in the State of
Alabama, be, and it hereby is denied, to
the extent it seeks authority to prescribe
schedule II controlled substances in the
State of Alabama. This ORDER is
effective immediately.2
Dated: April 30, 2018.
Robert W. Patterson,
Acting Administrator.
—Earth Science Program High Impact
Research
It is imperative that the meeting be
held on this date to accommodate the
scheduling priorities of the key
participants.
Deborah F. Bloxon,
Federal Liaison Officer.
[FR Doc. 2018–09803 Filed 5–7–18; 8:45 am]
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NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
[FR Doc. 2018–09738 Filed 5–7–18; 8:45 am]
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Notice of Information Collection
National Aeronautics and
Space Administration (NASA).
ACTION: Notice of information collection.
AGENCY:
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
[Notice: (18–046)]
National Aeronautics and
Space Administration.
ACTION: Notice of meeting.
AGENCY:
In accordance with the
Federal Advisory Committee Act, as
amended, the National Aeronautics and
Space Administration (NASA)
announces a meeting of the Earth
Science Advisory Committee (ESAC).
This Committee functions in an
advisory capacity to the Director, Earth
Science Division, in the NASA Science
Mission Directorate. The meeting will
be held for the purpose of soliciting,
from the Earth science community and
other persons, scientific and technical
information relevant to program
planning.
DATES: Tuesday, May 29, 2018, 1:00
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ADDRESSES: This meeting will take place
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FOR FURTHER INFORMATION CONTACT:
KarShelia Henderson, Science Mission
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Washington, DC 20546, (202) 358–2355,
fax (202) 358–2779, or khenderson@
nasa.gov.
The agenda for the meeting includes
the following topic:
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SUMMARY:
2 I further order that Registrant’s Certificate of
Registration be modified to reflect this restriction
on his authority. Based on the findings of the
Commission, I find that the public interest
necessitates that the revocation of his schedule II
prescribing authority be effective immediately. 21
CFR 1316.67.
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The National Aeronautics and
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continuing effort to reduce paperwork
and respondent burden, invites the
general public and other Federal
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comment on proposed and/or
continuing information collections.
DATES: All comments should be
submitted within June 7, 2018.
ADDRESSES: All comments should be
addressed to Lori Parker, National
Aeronautics and Space Administration,
300 E Street SW, Washington, DC
20546–0001.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument(s) and instructions should
be directed to Lori Parker, NASA
Clearance Officer, NASA Headquarters,
300 E Street SW, JF0000, Washington,
DC 20546, (202) 358–1351.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Earth Science Advisory Committee;
Meeting
I. Abstract
Supersonic flight over land is
currently restricted in the U.S. and
many countries because sonic boom
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NASA is researching the public
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is assembled, there is potential for a
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The 2018 Quiet Supersonic Flight
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human annoyance response with low
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community setting. The supersonic
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specialized maneuver. This effort is
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designed to evaluate remote aircraft
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NASA supported a prior risk
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community response at Edwards Air
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The annoyance response findings from
the study are not readily generalizable
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at EAFB are accustomed to hearing full
level sonic booms on a routine basis.
II. Methods of Collection
Web-Based/Electronic.
III. Data
Title: 2018 Quiet Supersonic Flight
Community Response Test.
OMB Number: 2700–xxxx.
Type of review: New Clearance.
Affected Public: Individuals and
Households, Businesses and
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Average Expected Annual Number of
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Average number of Respondents per
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Average minutes Per Response:
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IV. Request for Comments
Comments are invited on: (1) Whether
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]]>Agencies
[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Notices]
[Pages 20853-20855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09738]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
William R. Montiel, M.D.; Decision and Order
On August 10, 2017, the Acting Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration, issued an Order to
Show Cause to William R. Montiel, M.D. (hereinafter, Registrant), of
Prattville, Alabama. GX 2. The Show Cause Order proposed the revocation
of Registrant's authority under his DEA Certificate of Registration to
dispense schedule II controlled substances, and the denial of ``any
applications for renewal or modification of such [s]chedule II
authority and any applications for any other DEA registrations with
[s]chedule II authority pursuant to 21 U.S.C. 824(a)(3), because [he
has] no state authority to handle controlled substances.'' Id. at 1.
With respect to the Agency's jurisdiction, the Show Cause Order
alleged that Registrant is registered as a practitioner with authority
to dispense controlled substances in schedules II through V under
Certificate of Registration No. FM0822812, at the location of 554C
McQueen Smith Road, Prattville, Alabama. Id. The Order further alleged
that this registration does not expire until January 31, 2020. Id.
As the substantive ground for the proceeding, the Show Cause Order
alleged that ``[o]n March 7, 2017, the Medical Licensure Commission of
Alabama issued an Order restricting [Registrant's] license to practice
medicine in . . . Alabama such that [he] `shall not prescribe any
substance listed in [s]chedule II of the Alabama Controlled Substance
Act . . . or any substance listed on the [DEA's] listing of [s]hedule
II controlled substances.''' Id. at 1-2. The Show Cause Order thus
alleged that as a result of the Commission's action, Registrant is
``currently without authority to handle [s]chedule II controlled
substances in . . . Alabama, the [S]tate in which [he is] registered
with'' DEA, and that as a consequence, his schedule II authority is
subject to revocation. Id. at 1-2.
The Show Cause Order notified Registrant of his right to a hearing
or to submit a written statement while waiving his right to a hearing,
the procedure for electing either option, and the consequence of
failing either option. Id. at 2 (citing 21 CFR 1301.43(a) & (c)). The
Order also notified Registrant of his right to submit a corrective
action plan. Id. at 2-3.
On October 25, 2017, the Government submitted a Request for Final
Agency Action (RFAA I). GX 5, at 4. Therein, the Government represented
that ``[o]n August 10, 2017, personnel from DEA's Office of Chief
Counsel, Diversion and Regulatory Section, mailed a copy of the Order
to Registrant's registered address via first-class United States mail''
and that the letter was not returned ``as undeliverable.'' Id. The
Government further represented that Registrant had neither requested a
hearing, nor submitted a written statement while waiving his right to a
hearing, within the 30-day time period following service for electing
either option. Id. The Government thus maintained that Registrant had
waived his right to either a hearing or to submit a written statement
and sought a final order.
On review, I held that the Government's effort at service was ``a
[[Page 20854]]
departure from the Agency traditional practice.'' GX 6 (Administrator's
Order, Feb. 6, 2016). I also noted that ``the Government cite[d] no
authority establishing that a sole effort of mailing by first class
mail (with no evidence of delivery to the address) is sufficient to
provide constitutionally adequate service for initiating a proceeding
under the Due Process Clause.'' Id. I therefore ordered the Government
``to either address why its effort was consistent with the Due Process
Clause or to engage in additional reasonable efforts to serve
Registrant.'' Id.
On March 20, 2018, the Government submitted a Second Request for
Final Agency Action. RFAA II, at 5. Therein, the Government represents
that on August 15, 2017, the case agent travelled to Registrant's
registered address to personally serve the Show Cause Order on
Registrant. Id. at 2. The Government further represents that the case
agent met with Registrant and upon informing Registrant that he was
there to serve the Show Cause Order, Registrant stated that he had
received the Order in the mail the previous day and showed the Order to
the case agent who confirmed that it was identical to the Order he
planned to serve on Registrant. Id. As support for these
representations, the Government provided a declaration by the case
agent. GX 7.
Based on the case agent's declaration, I now find that Registrant
was served with the Show Cause Order on August 14, 2017. In its Second
Request, the Government again represents that ``Registrant has not
requested a hearing and has not otherwise corresponded or communicated
with DEA regarding the'' Show Cause Order, to ``include[e] the filing
of [a] written statement in lieu of a hearing.'' RFAA II, at 2-3.
Because more than 30 days have now passed since the date of service of
the Show Cause Order, and Registrant has neither requested a hearing
nor submitted a written statement while waiving his right to a hearing,
I find that Registrant has waived his right to a hearing or to submit a
written statement. 21 CFR 1301.43(d). I therefore issue this Decision
and Order based on the evidentiary record submitted by the Government.
Id. Sec. 1301.43(e). I make the following factual findings.
FINDINGS
Registrant is the holder of DEA Certificate of Registration No.
FM0822812, pursuant to which he is authorized to dispense controlled
substances in schedules II through V as a practitioner, at the
registered address of 554C McQueen Smith Road, Prattville, Alabama. GX
1, at 1. This registration does not expire until January 31, 2020. Id.
Registrant is also the holder of a medical license issued by the
Medical Licensure Commission of Alabama. GX 3, at 2. Following a
hearing, on March 7, 2017, the Commission issued an Order which found
that Registrant's ``treatment of chronic pain patients is not in
compliance with the Board of Medical Examiners' guidelines for pain
management and the standards for the utilization of controlled
substances set out'' in various provisions of the Alabama
Administrative Code, ``in violation of Sec. 34-24-360(23) of the
Alabama Code.'' GX 3, at 2-3. The Commission also found that
Registrant's ``continued prescribing of'' schedule II controlled
substances ``presents a risk of harm to his patients.'' Id. at 3. The
Commission thus restricted Registrant's medical license to prohibit him
from prescribing any schedule II controlled substance. Id. The
Commission's Order became effective at midnight on June 23, 2017. Id.
at 4 (Commission's Order, May 24, 2017). According to the online
records of the Commission of which I take official notice, this
restriction remains in effect as of the date of this Order. See https://www.albme.org (visited April 30, 2018).
DISCUSSION
Under the Controlled Substances Act (CSA), a practitioner's
registration grants authority to dispense a controlled substance, which
by definition ``means to deliver a controlled substance to an ultimate
user . . . by, or pursuant to the lawful order of, a practitioner.'' 21
U.S.C. 802(10) (emphasis added). Likewise, the CSA defines the ``[t]he
term `practitioner' [to] mean[] a physician . . . 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.'' Id. Sec. 802(21).
Finally, under the CSA's registration provision applicable to a
practitioner, ``[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.'' Id.
Sec. 823(f). These provisions thus make clear that a practitioner's
possession of federal authority to dispense controlled substances is
generally premised on his possession of authority under state law to do
so. See also see also id. Sec. 824(a)(3) (authorizing the suspension
or revocation of registration issued under section 823 of the CSA,
``upon a finding that the registrant . . . has had . . . [her] 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'').
As the Supreme Court recognized in United States v. Moore, 423 U.S.
122, 140-41 (1975), ``[i]n the case of a physician this scheme
contemplates that he is authorized by the State to practice medicine
and to dispense drugs in connection with his professional practice. The
federal registration . . . extends no further.''
Thus, to the extent a practitioner is not authorized under state
law to dispense certain categories or schedules of controlled
substances, he can no longer lawfully dispense them under federal law.
See Kenneth Harold Bull, 78 FR 62666, 62672, 62676 (2013) (restricting
practitioner's registration to authorize the dispensing of only those
controlled substances authorized to dispense under his state license).
Accordingly, where a state board takes such action, at a minimum, a
practitioner's CSA registration must be restricted to authorize the
dispensing of only those controlled substances which he can lawfully
dispense under state law. See id.; see also 21 U.S.C. 824(a)(3).
Based on the Commission's Order, I find that Registrant is
currently without authority to prescribe schedule II controlled
substance under his Alabama Medical License. Because his authority
under his DEA registration (in Alabama) can only extend as far as his
state authority, I will order that his authority to prescribe schedule
II controlled substances be revoked and that his registration be
restricted to prohibit him from prescribing schedule II controlled
substances.\1\
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\1\ While the Government argues that ``Registrant's [s]chedule
II authority should be revoked . . . because Registrant has no state
authority to handle [s]chedule II controlled substances in
Alabama,'' RFAA II, at 4, the various state Orders submitted by the
Government address only his authority to prescribe and not to engage
in other activities which fall within the definition of dispense,
such as administering or direct dispensing, whether under the CSA or
Alabama law. See Ala. Code Sec. 20-2-2 (defining the term
``dispense'' to mean ``[t]o deliver a controlled substance to an
ultimate user . . . by or pursuant to the lawful order of a
practitioner, including the prescribing, [or] administering'' of a
controlled substance). While it may have been the intent of the
Commission to entirely limit Registrant's schedule II authority,
that is not apparent on the face of its Orders.
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ORDER
Pursuant to the authority vested in me by 28 CFR 0.100(b) and 21
U.S.C. 824(a)(3), I order that the authority of William R. Montiel,
M.D., to prescribe schedule II controlled substances under
[[Page 20855]]
Certificate of Registration No. FM0822812 be, and it hereby is,
revoked. I further order that any application of William R. Montiel,
M.D., to renew or modify his registration, or for any other
registration in the State of Alabama, be, and it hereby is denied, to
the extent it seeks authority to prescribe schedule II controlled
substances in the State of Alabama. This ORDER is effective
immediately.\2\
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\2\ I further order that Registrant's Certificate of
Registration be modified to reflect this restriction on his
authority. Based on the findings of the Commission, I find that the
public interest necessitates that the revocation of his schedule II
prescribing authority be effective immediately. 21 CFR 1316.67.
Dated: April 30, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-09738 Filed 5-7-18; 8:45 am]
BILLING CODE 4410-09-P
