Decision and Order: Kenneth C. Beal, Jr., D.D.S., 34877-34878 [2018-15743]
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Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Notices
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Decision and Order: Kenneth C. Beal,
Jr., D.D.S.
amozie on DSK3GDR082PROD with NOTICES1
On December 22, 2017, the Acting
Assistant Administrator, Diversion
Control Division, Drug Enforcement
Administration (hereinafter, DEA or
Government), issued an Order to Show
Cause to Kenneth C. Beal, Jr., D.D.S.
(hereinafter, Registrant), of Tutwiler,
Mississippi.1 Order to Show Cause
(hereinafter, OSC), at 1. The Show
Cause Order proposes the revocation of
Registrant’s Certificate of Registration
on the ground that he has ‘‘no state
authority to handle controlled
substances.’’ Id. (citing 21 U.S.C.
824(a)(3)).
Regarding jurisdiction, the Show
Cause Order alleges that Registrant
holds DEA Certificate of Registration
No. FB0508993 at the registered address
of Tallahachie Cty. Correc. Fac. Den.
Clin., 415 U.S. Hwy. 49 N, Tutwiler,
Mississippi 38963. OSC, at 1. This
registration authorizes Registrant to
dispense controlled substances in
schedules II through V as a practitioner.
Id. The Show Cause Order alleges that
this registration expires on July 31,
2019. Id.
The substantive ground for the
proceeding, as alleged in the Show
Cause Order, is that Registrant is
‘‘currently without authority to practice
dentistry or handle controlled
substances in the State of Mississippi,
the state in which . . . [he is] registered
with the DEA.’’ Id. at 2. Specifically, the
Show Cause Order alleges that the
Mississippi State Board of Dental
Examiners revoked Registrant’s ‘‘license
to practice dentistry’’ on August 16,
2017. Id.
The Show Cause Order notifies
Registrant 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. Id. at 2 (citing 21 CFR 1301.43).
The Show Cause Order also notifies
Registrant of the opportunity to submit
a corrective action plan. OSC, at 2–3
(citing 21 U.S.C. 824(c)(2)(C)).
Adequacy of Service
In a Declaration dated March 22,
2018, a Diversion Investigator
(hereinafter, DI), who describes himself
as being assigned to the New Orleans
1 The Show Cause Order also lists a Post Office
Box in Itta Bena, Mississippi in reference to
Registrant’s location.
VerDate Sep<11>2014
17:59 Jul 20, 2018
Jkt 244001
Field Division, states that he and
another DI ‘‘travelled to the residence of
Registrant . . . to personally serve the
. . . [OSC on him].’’ Government
Exhibit (hereinafter, GX) 4 (DI
Declaration), at 1. The DI also states
that, ‘‘At approximately 11:30 a.m. on
January 4, 2018, I personally served
Registrant with the [OSC].’’ Id.
In its Request for Final Agency Action
dated March 27, 2018, the Government
represents that ‘‘[a]t least 30 days have
passed since the time the . . . [OSC]
was served on Registrant . . . [and]
Registrant has not requested a hearing
and has not otherwise corresponded or
communicated with DEA regarding the
. . . [OSC] served on him, including the
filing of any written statement in lieu of
a hearing.’’ Request for Final Agency
Action (hereinafter, RFAA), at 1. The
Government requests the issuance of ‘‘a
Final Order revoking Registrant’s DEA
registration.’’ Id. at 3.
Based on the DI’s Declaration, the
Government’s written representations,
and my review of the record, I find that
the Government served the OSC on
Registrant on January 4, 2018. I also find
that more than 30 days have now passed
since the date the Government served
the OSC. Further, based on the
Government’s written representations, I
find that neither Registrant, nor anyone
purporting to represent him, requested a
hearing, submitted a written statement
while waiving Registrant’s right to a
hearing, or submitted a corrective action
plan. Accordingly, I find that Registrant
has waived his right to a hearing and his
right to submit a written statement and
corrective action plan. 21 CFR
1301.43(d) and 21 U.S.C. 824(c)(2)(C). I,
therefore, issue this Decision and Order
based on the record submitted by the
Government, which constitutes the
entire record before me. 21 CFR
1301.43(e).
Findings of Fact
Registrant’s DEA Registration
Registrant is the holder of DEA
Certificate of Registration No.
FB0508993 at the registered address of
Tallahachie Cty. Correc. Fac. Den. Clin.,
415 U.S. Hwy. 49 N, Tutwiler,
Mississippi 38963. GX 1 (Certification of
Registration History), at 1. Pursuant to
this registration, Registrant is authorized
to dispense controlled substances in
schedules II through V as a practitioner.
Id. Registrant’s registration expires on
July 31, 2019. Id.
The Status of Registrant’s State License
On August 16, 2017, the Mississippi
State Board of Dental Examiners
revoked Registrant’s license to practice
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
34877
dentistry, Dental License No. 2459–89.
RFAA, at 2; GX 3 (Mississippi State
Board of Dental Examiners certified
letter to Registrant dated August 16,
2017), at 2; GX 5 (Mississippi State
Board of Dental Examiners website
screen print), at 1.
According to Mississippi’s online
records, of which I take official notice,
Registrant’s license to practice dentistry
is still revoked.2 Mississippi State Board
of Dental Examiners website, https://
www.dentalboard.ms.gov (last visited
July 9, 2018). Mississippi’s online
records show no State controlled
substance registration issued to
Registrant. Id.
Accordingly, I find that Registrant
currently is neither licensed to engage
in the practice of dentistry nor
registered to dispense controlled
substances in Mississippi, the State in
which he is registered with the 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
(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
2 Under the Administrative Procedure Act, an
agency ‘‘may take official notice of facts at any stage
in a proceeding—even in the final decision.’’
United States Department of Justice, Attorney
General’s Manual on the Administrative Procedure
Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint
1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an
agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a
party is entitled, on timely request, to an
opportunity to show the contrary.’’ Accordingly,
Registrant may dispute my finding by filing a
properly supported motion for reconsideration
within 20 calendar days of the date of this Order.
Any such motion shall be filed with the Office of
the Administrator and a copy shall be served on the
Government. In the event Registrant files a motion,
the Government shall have 20 calendar days to file
a response.
E:\FR\FM\23JYN1.SGM
23JYN1
34878
Federal Register / Vol. 83, No. 141 / Monday, July 23, 2018 / Notices
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, supra, 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, M.D., 53 FR 11,919, 11,920
(1988); Blanton, supra, 43 FR at 27,617.
According to Mississippi statute,
‘‘Every person who desires to practice
dentistry . . . in this state must obtain
a license to do so.’’ Miss. Code Ann.
§ 73–9–1 (West, Westlaw current with
laws from the 2018 Regular Session).
Further, ‘‘[e]very person who . . .
dispenses any controlled substance
within this state . . . must obtain a
registration issued by . . . the State
Board of Dental Examiners . . . in
accordance with its rules and the law of
this state.’’ Miss. Code Ann. § 41–29–
125(1)(a) (West, Westlaw current with
laws from the 2018 Regular
Session).3 See also Miss. Code Ann.
§ 73–9–53 (West, Westlaw current with
laws from the 2018 Regular Session)
(authorizing Mississippi pharmacists to
fill prescriptions only of ‘‘legally
licensed and registered dentists of this
state for any drugs to be used in the
practice of dentistry’’) and Miss. Admin.
Code 30–2301:1.35(1) (West, current
through the Mississippi Administrative
Rules Listing of Filings, dated May
2018) (legally licensed and registered
dentists may write prescriptions for any
drugs to be used in the practice of
dentistry).
Here, the undisputed evidence in the
record is that Registrant currently lacks
authority to practice dentistry and
handle controlled substances in
Mississippi. As already discussed, only
a legally licensed and registered dentist
may dispense a controlled substance or
any drug to be used in the practice of
dentistry in Mississippi. Thus, since
Registrant lacks authority to practice
dentistry in Mississippi, and is not
registered in Mississippi to handle
controlled substances, I will order that
Registrant’s DEA registration be
revoked.
comments on or objections to the
issuance of the proposed registration on
or before August 22, 2018. Such persons
may also file a written request for a
hearing on the application on or before
August 22, 2018.
Written comments should
be sent to: Drug Enforcement
Administration, Attention: DEA Federal
Register Representative/DRW, 8701
Morrissette Drive, Springfield, Virginia
22152. All requests for hearing must be
sent to: Drug Enforcement
Administration, Attn: Administrator,
8701 Morrissette Drive, Springfield,
Virginia 22152. All request for hearing
should also be sent to: (1) Drug
Enforcement Administration, Attn:
Hearing Clerk/LJ, 8701 Morrissette
Drive, Springfield, Virginia 22152; and
(2) Drug Enforcement Administration,
Attn: DEA Federal Register
Representative/DRW, 8701 Morrissette
Drive, Springfield, Virginia 22152.
ADDRESSES:
Order
SUPPLEMENTARY INFORMATION:
Pursuant to 28 CFR 0.100(b) and the
authority thus vested in me by 21 U.S.C.
824(a), I order that DEA Certificate of
Registration No. FB0508993 issued to
Kenneth C. Beal, Jr., D.D.S., be, and it
hereby is, revoked. This Order is
effective August 22, 2018.
The Attorney General has delegated
his authority under the Controlled
Substances Act to the Administrator of
the Drug Enforcement Administration
(DEA), 28 CFR 0.100(b). Authority to
exercise all necessary functions with
respect to the promulgation and
implementation of 21 CFR part 1301,
incident to the registration of
manufacturers, distributors, dispensers,
importers, and exporters of controlled
substances (other than final orders in
connection with suspension, denial, or
revocation of registration) has been
redelegated to the Assistant
Administrator of the DEA Diversion
Control Division (‘‘Assistant
Administrator’’) pursuant to section 7 of
28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR
1301.34(a), this is notice that on June
21, 2018, Fresenius Kabi USA, LLC,
3159 Staley Road, Grand Island, New
York 14072–2028 applied to be
registered as an importer of the
following basic class of controlled
substance:
Dated: July 9, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018–15743 Filed 7–20–18; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. DEA–392]
Importer of Controlled Substances
Application: Fresenius Kabi USA, LLC
ACTION:
Notice of application.
Registered bulk manufacturers of
the affected basic classes, and
applicants therefore, may file written
DATES:
Drug code
Schedule
Remifentanil .............................................................................................................................................................
amozie on DSK3GDR082PROD with NOTICES1
Controlled substance
9739
II
3 ‘‘Dispensing’’ a controlled substance includes
‘‘prescribing’’ and ‘‘administering’’ it. Miss. Code
VerDate Sep<11>2014
17:59 Jul 20, 2018
Jkt 244001
Ann. § 41–29–105(j) (West, Westlaw current with
laws from the 2018 Regular Session).
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Fmt 4703
Sfmt 4703
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Agencies
[Federal Register Volume 83, Number 141 (Monday, July 23, 2018)]
[Notices]
[Pages 34877-34878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15743]
[[Page 34877]]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Decision and Order: Kenneth C. Beal, Jr., D.D.S.
On December 22, 2017, the Acting Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration (hereinafter, DEA or
Government), issued an Order to Show Cause to Kenneth C. Beal, Jr.,
D.D.S. (hereinafter, Registrant), of Tutwiler, Mississippi.\1\ Order to
Show Cause (hereinafter, OSC), at 1. The Show Cause Order proposes the
revocation of Registrant's Certificate of Registration on the ground
that he has ``no state authority to handle controlled substances.'' Id.
(citing 21 U.S.C. 824(a)(3)).
---------------------------------------------------------------------------
\1\ The Show Cause Order also lists a Post Office Box in Itta
Bena, Mississippi in reference to Registrant's location.
---------------------------------------------------------------------------
Regarding jurisdiction, the Show Cause Order alleges that
Registrant holds DEA Certificate of Registration No. FB0508993 at the
registered address of Tallahachie Cty. Correc. Fac. Den. Clin., 415
U.S. Hwy. 49 N, Tutwiler, Mississippi 38963. OSC, at 1. This
registration authorizes Registrant to dispense controlled substances in
schedules II through V as a practitioner. Id. The Show Cause Order
alleges that this registration expires on July 31, 2019. Id.
The substantive ground for the proceeding, as alleged in the Show
Cause Order, is that Registrant is ``currently without authority to
practice dentistry or handle controlled substances in the State of
Mississippi, the state in which . . . [he is] registered with the
DEA.'' Id. at 2. Specifically, the Show Cause Order alleges that the
Mississippi State Board of Dental Examiners revoked Registrant's
``license to practice dentistry'' on August 16, 2017. Id.
The Show Cause Order notifies Registrant 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. Id. at
2 (citing 21 CFR 1301.43). The Show Cause Order also notifies
Registrant of the opportunity to submit a corrective action plan. OSC,
at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
Adequacy of Service
In a Declaration dated March 22, 2018, a Diversion Investigator
(hereinafter, DI), who describes himself as being assigned to the New
Orleans Field Division, states that he and another DI ``travelled to
the residence of Registrant . . . to personally serve the . . . [OSC on
him].'' Government Exhibit (hereinafter, GX) 4 (DI Declaration), at 1.
The DI also states that, ``At approximately 11:30 a.m. on January 4,
2018, I personally served Registrant with the [OSC].'' Id.
In its Request for Final Agency Action dated March 27, 2018, the
Government represents that ``[a]t least 30 days have passed since the
time the . . . [OSC] was served on Registrant . . . [and] Registrant
has not requested a hearing and has not otherwise corresponded or
communicated with DEA regarding the . . . [OSC] served on him,
including the filing of any written statement in lieu of a hearing.''
Request for Final Agency Action (hereinafter, RFAA), at 1. The
Government requests the issuance of ``a Final Order revoking
Registrant's DEA registration.'' Id. at 3.
Based on the DI's Declaration, the Government's written
representations, and my review of the record, I find that the
Government served the OSC on Registrant on January 4, 2018. I also find
that more than 30 days have now passed since the date the Government
served the OSC. Further, based on the Government's written
representations, I find that neither Registrant, nor anyone purporting
to represent him, requested a hearing, submitted a written statement
while waiving Registrant's right to a hearing, or submitted a
corrective action plan. Accordingly, I find that Registrant has waived
his right to a hearing and his right to submit a written statement and
corrective action plan. 21 CFR 1301.43(d) and 21 U.S.C. 824(c)(2)(C).
I, therefore, issue this Decision and Order based on the record
submitted by the Government, which constitutes the entire record before
me. 21 CFR 1301.43(e).
Findings of Fact
Registrant's DEA Registration
Registrant is the holder of DEA Certificate of Registration No.
FB0508993 at the registered address of Tallahachie Cty. Correc. Fac.
Den. Clin., 415 U.S. Hwy. 49 N, Tutwiler, Mississippi 38963. GX 1
(Certification of Registration History), at 1. Pursuant to this
registration, Registrant is authorized to dispense controlled
substances in schedules II through V as a practitioner. Id.
Registrant's registration expires on July 31, 2019. Id.
The Status of Registrant's State License
On August 16, 2017, the Mississippi State Board of Dental Examiners
revoked Registrant's license to practice dentistry, Dental License No.
2459-89. RFAA, at 2; GX 3 (Mississippi State Board of Dental Examiners
certified letter to Registrant dated August 16, 2017), at 2; GX 5
(Mississippi State Board of Dental Examiners website screen print), at
1.
According to Mississippi's online records, of which I take official
notice, Registrant's license to practice dentistry is still revoked.\2\
Mississippi State Board of Dental Examiners website, https://www.dentalboard.ms.gov (last visited July 9, 2018). Mississippi's
online records show no State controlled substance registration issued
to Registrant. Id.
---------------------------------------------------------------------------
\2\ Under the Administrative Procedure Act, an agency ``may take
official notice of facts at any stage in a proceeding--even in the
final decision.'' United States Department of Justice, Attorney
General's Manual on the Administrative Procedure Act 80 (1947) (Wm.
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e),
``[w]hen an agency decision rests on official notice of a material
fact not appearing in the evidence in the record, a party is
entitled, on timely request, to an opportunity to show the
contrary.'' Accordingly, Registrant may dispute my finding by filing
a properly supported motion for reconsideration within 20 calendar
days of the date of this Order. Any such motion shall be filed with
the Office of the Administrator and a copy shall be served on the
Government. In the event Registrant files a motion, the Government
shall have 20 calendar days to file a response.
---------------------------------------------------------------------------
Accordingly, I find that Registrant currently is neither licensed
to engage in the practice of dentistry nor registered to dispense
controlled substances in Mississippi, the State in which he is
registered with the 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 (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
[[Page 34878]]
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, supra, 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, M.D., 53 FR 11,919, 11,920 (1988); Blanton, supra, 43 FR at
27,617.
According to Mississippi statute, ``Every person who desires to
practice dentistry . . . in this state must obtain a license to do
so.'' Miss. Code Ann. Sec. 73-9-1 (West, Westlaw current with laws
from the 2018 Regular Session). Further, ``[e]very person who . . .
dispenses any controlled substance within this state . . . must obtain
a registration issued by . . . the State Board of Dental Examiners . .
. in accordance with its rules and the law of this state.'' Miss. Code
Ann. Sec. 41-29-125(1)(a) (West, Westlaw current with laws from the
2018 Regular Session).\3\ See also Miss. Code Ann. Sec. 73-9-53 (West,
Westlaw current with laws from the 2018 Regular Session) (authorizing
Mississippi pharmacists to fill prescriptions only of ``legally
licensed and registered dentists of this state for any drugs to be used
in the practice of dentistry'') and Miss. Admin. Code 30-2301:1.35(1)
(West, current through the Mississippi Administrative Rules Listing of
Filings, dated May 2018) (legally licensed and registered dentists may
write prescriptions for any drugs to be used in the practice of
dentistry).
---------------------------------------------------------------------------
\3\ ``Dispensing'' a controlled substance includes
``prescribing'' and ``administering'' it. Miss. Code Ann. Sec. 41-
29-105(j) (West, Westlaw current with laws from the 2018 Regular
Session).
---------------------------------------------------------------------------
Here, the undisputed evidence in the record is that Registrant
currently lacks authority to practice dentistry and handle controlled
substances in Mississippi. As already discussed, only a legally
licensed and registered dentist may dispense a controlled substance or
any drug to be used in the practice of dentistry in Mississippi. Thus,
since Registrant lacks authority to practice dentistry in Mississippi,
and is not registered in Mississippi to handle controlled substances, I
will order that Registrant's DEA registration be revoked.
Order
Pursuant to 28 CFR 0.100(b) and the authority thus vested in me by
21 U.S.C. 824(a), I order that DEA Certificate of Registration No.
FB0508993 issued to Kenneth C. Beal, Jr., D.D.S., be, and it hereby is,
revoked. This Order is effective August 22, 2018.
Dated: July 9, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-15743 Filed 7-20-18; 8:45 am]
BILLING CODE 4410-09-P