Robert Esser, D.D.S.; Decision and Order, 106582-106584 [2024-31318]

Download as PDF 106582 Federal Register / Vol. 89, No. 249 / Monday, December 30, 2024 / Notices Texas Medical Board, Healthcare Provider Search, https:// profile.tmb.state.tx.us/Search.aspx (last visited date of signature of this Order). Accordingly, the Agency finds that Respondent is not currently authorized to handle controlled substances in Texas, the state in which she is registered with the DEA.6 Discussion ddrumheller on DSK120RN23PROD with NOTICES1 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 (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, 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. Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (‘‘The Attorney General can register a physician to dispense controlled substances ‘if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.’ . . . The very definition of a ‘practitioner’ eligible to prescribe includes physicians ‘licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices’ to dispense controlled substances. § 802(21).’’). The Agency has applied these principles consistently. See, e.g., James L. Hooper, M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App’x 826 (4th filing a properly supported motion for reconsideration of findings of fact within fifteen calendar days of the date of this Order. Any such motion and response shall be filed and served by email to the other party and to Office of the Administrator, Drug Enforcement Administration at dea.addo.attorneys@dea.gov. 6 In her Opposition, Respondent argues that there are material facts in dispute that require a hearing, specifically mentioning her state and federal authority to handle controlled substances. Respondent’s Opposition, at 6. However, as the ALJ correctly notes in the RD, Respondent does not actually dispute the material fact that she lacks state and federal authority to handle controlled substances, with Respondent admitting that she has no current prescriptive authority delegation agreement with a physician. RD, at 9; Respondent’s Opposition, at 2, 11. The Agency also agrees with the ALJ’s finding that the other facts in dispute, such as Respondent’s address, are immaterial and not dispositive to the adjudication of the current matter. RD, at 9 n.7 (citing Michael Jones, M.D., 86 FR 20728, 20729 (2021)). VerDate Sep<11>2014 23:58 Dec 27, 2024 Jkt 265001 Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).7 According to Texas statute, ‘‘dispense’’ means ‘‘the delivery of a controlled substance in the course of professional practice or research, by a practitioner or person acting under the lawful order of a practitioner, to an ultimate user or research subject. The term includes the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for delivery.’’ Tex. Health & Safety Code Ann. § 481.002(12) (2024). Further, a ‘‘practitioner’’ includes ‘‘an advanced practice registered nurse or physician assistant to whom a physician has delegated the authority to prescribe or order a drug or device . . . .’’ Id. § 481.002(39)(D). Texas statute provides that ‘‘[a] physician may delegate to an advanced practice registered nurse or physician assistant, acting under adequate physician supervision, the act of prescribing or ordering a drug or device as authorized through a prescriptive authority agreement between the physician and the advanced practice registered nurse or physician assistant, as applicable.’’ Tex. Occ. Code Ann. § 157.0512(a) (2024). Here, the undisputed evidence in the record is that Respondent lacks authority to handle controlled substances in Texas because she does not have a prescriptive authority delegation agreement with a physician. As discussed above, a Texas advanced practice registered nurse must have a prescriptive authority delegation agreement with a physician to dispense controlled substances in Texas. Thus, because Respondent lacks authority to handle controlled substances in Texas, Respondent is not eligible to maintain a DEA registration. RD, at 8. Accordingly, 7 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(g)(1). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, 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., James L. Hooper, M.D., 76 FR at 71371–72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 (1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR at 27617. PO 00000 Frm 00177 Fmt 4703 Sfmt 4703 the Agency will order that Respondent’s DEA registration be revoked. Order Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. MD7143960 issued to Maria Dewitt, N.P. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Maria Dewitt, N.P., to renew or modify this registration, as well as any other pending application of Maria Dewitt, N.P., for additional registration in Texas. This Order is effective January 29, 2025. Signing Authority This document of the Drug Enforcement Administration was signed on December 20, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Heather Achbach, Federal Register Liaison Officer, Drug Enforcement Administration. [FR Doc. 2024–31330 Filed 12–27–24; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration Robert Esser, D.D.S.; Decision and Order On December 18, 2023, the Drug Enforcement Administration (DEA or Government) issued an Order to Show Cause (OSC) to Robert Esser, D.D.S., of Erie, Pennsylvania (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the revocation of Registrant’s Certificate of Registration No. BE3510193, alleging that Registrant’s registration should be revoked because Registrant is ‘‘currently without authority to handle controlled substances in the Commonwealth of Pennsylvania, the state in which [he is] registered with DEA.’’ Id. at 2 (citing 21 U.S.C. 824(a)(3)). E:\FR\FM\30DEN1.SGM 30DEN1 Federal Register / Vol. 89, No. 249 / Monday, December 30, 2024 / Notices The OSC notified Registrant of his right to file a written request for hearing, and that if he failed to file such a request, he would be deemed to have waived his right to a hearing and be in default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request a hearing. RFAA, at 2.1 ‘‘A default, unless excused, shall be deemed to constitute a waiver of the [registrant’s] right to a hearing and an admission of the factual allegations of the [OSC].’’ 21 CFR 1301.43(e). Further, ‘‘[i]n the event that a registrant . . . is deemed to be in default . . . DEA may then file a request for final agency action with the Administrator, along with a record to support its request. In such circumstances, the Administrator may enter a default final order pursuant to [21 CFR] § 1316.67.’’ Id. § 1301.43(f)(1). Here, the Government has requested final agency action based on Registrant’s default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 3; see also 21 CFR 1316.67. ddrumheller on DSK120RN23PROD with NOTICES1 Findings of Fact The Agency finds that, in light of Registrant’s default, the factual allegations in the OSC are admitted. According to the OSC, on October 20, 2022, the Pennsylvania State Board of Dentistry suspended Registrant’s Pennsylvania dental license. RFAAX 2, at 2. According to Pennsylvania online records, of which the Agency takes official notice, Registrant’s Pennsylvania dental license remains suspended.2 1 Based on the Government’s submissions in its RFAA dated March 4, 2024, the Agency finds that service of the OSC on Registrant was adequate. Specifically, the included Declaration from a DEA Diversion Investigator (DI) indicates that on January 3, 2024, the DI emailed a copy of the OSC to Registrant’s registered email address and received confirmation that the email was successfully delivered. RFAAX 3, at 2, Attachment B; Mohammed S. Aljanaby, M.D., 82 FR 34552, 34552 (2017) (finding that service by email satisfies due process where the email is not returned as undeliverable and other methods have been unsuccessful). On December 28, 2023, the DI had attempted in-person service of the OSC at Registrant’s registered address, and after receiving no response, left a business card on the premises. RFAAX 3, at 2. Further, on January 3, 2024, DEA had mailed a copy of the OSC to Registrant’s registered address via certified mail, but the mailing was returned. Id. at 2, Attachment A. 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 the Agency’s finding by filing a properly supported motion for VerDate Sep<11>2014 23:58 Dec 27, 2024 Jkt 265001 Pennsylvania Licensing System Verification Service,https:// www.pals.pa.gov/#!/page/search (last visited date of signature of this Order). Accordingly, the Agency finds that Registrant is not licensed to practice dentistry in Pennsylvania, 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 21 U.S.C. 823 ‘‘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, 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. Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (‘‘The Attorney General can register a physician to dispense controlled substances ‘if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.’ . . . The very definition of a ‘practitioner’ eligible to prescribe includes physicians ‘licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices’ to dispense controlled substances. § 802(21).’’). The Agency has applied these principles consistently. See, e.g., James L. Hooper, M.D., 76 FR 71371, 71372 (2011), pet. for rev. denied, 481 F. App’x 826 (4th Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).3 reconsideration of findings of fact within fifteen calendar days of the date of this Order. Any such motion and response shall be filed and served by email to the other party and to the DEA Office of the Administrator, Drug Enforcement Administration at dea.addo.attorneys@dea.gov. 3 This rule derives from the text of two provisions of the Controlled Substances Act (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(g)(1). Because Congress has clearly mandated that a practitioner possess state authority in order to be deemed a practitioner under the CSA, DEA has held repeatedly that revocation of a practitioner’s registration is the appropriate sanction whenever he is no longer PO 00000 Frm 00178 Fmt 4703 Sfmt 4703 106583 According to Pennsylvania statute, ‘‘dispense’’ means ‘‘to deliver a controlled substance, other drug or device to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare such item for that delivery.’’ 35 Pa. Stat. and Cons. Stat. Ann. section 780–102(b) (West 2024). Further, a ‘‘practitioner’’ means ‘‘a physician . . . dentist . . . or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device in the course of professional practice or research in the Commonwealth of Pennsylvania.’’ Id. Here, the undisputed evidence in the record is that Registrant lacks authority to practice dentistry in Pennsylvania. As discussed above, an individual must be a licensed practitioner to dispense a controlled substance in Pennsylvania. Thus, because Registrant lacks authority to practice dentistry in Pennsylvania and, therefore, is not authorized to handle controlled substances in Pennsylvania, Registrant is not eligible to maintain a DEA registration. Accordingly, the Agency will order that Registrant’s DEA registration be revoked. Order Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. BE3510193 issued to Robert Esser, D.D.S. Further, pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I hereby deny any pending applications of Robert Esser, D.D.S., to renew or modify this registration, as well as any other pending application of Robert Esser, D.D.S., for additional registration in Pennsylvania. This Order is effective January 29, 2025. Signing Authority This document of the Drug Enforcement Administration was signed on December 20, 2024, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal authorized to dispense controlled substances under the laws of the state in which he practices. See, e.g., James L. Hooper, 76 FR 71371–72; Sheran Arden Yeates, D.O., 71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 51105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); Frederick Marsh Blanton, 43 FR 27617. E:\FR\FM\30DEN1.SGM 30DEN1 106584 Federal Register / Vol. 89, No. 249 / Monday, December 30, 2024 / Notices Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register. Heather Achbach, Federal Register Liaison Officer, Drug Enforcement Administration. [FR Doc. 2024–31318 Filed 12–27–24; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF JUSTICE Drug Enforcement Administration [Docket No. DEA–1475] Importer of Controlled Substances Application: Siegfried USA, LLC Drug Enforcement Administration, Justice. AGENCY: ACTION: Notice of application. Siegfried USA, LLC has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information. DATES: Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before January 29, 2025. Such persons may also file a written request for a hearing on the application on or before January 29, 2025. ADDRESSES: The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to https://www.regulations.gov and follow the online instructions at that site for submitting comments. Upon submission of your comment, you will receive a Comment Tracking Number. Please be SUMMARY: aware that submitted comments are not instantaneously available for public view on https://www.regulations.gov. If you have received a Comment Tracking Number, your comment has been successfully submitted and there is no need to resubmit the same comment. All requests for a hearing must be sent to: (1) Drug Enforcement Administration, Attn: Hearing Clerk/OALJ, 8701 Morrissette Drive, Springfield, Virginia 22152; and (2) Drug Enforcement Administration, Attn: DEA Federal Register Representative/DPW, 8701 Morrissette Drive, Springfield, Virginia 22152. All requests for a hearing should also be sent to: Drug Enforcement Administration, Attn: Administrator, 8701 Morrissette Drive, Springfield, Virginia 22152. SUPPLEMENTARY INFORMATION: In accordance with 21 CFR 1301.34(a), this is notice that on November 20, 2024, Siegfried USA, LLC, 33 Industrial Park Road, Pennsville, New Jersey 08070, applied to be registered as an importer of the following basic class(es) of controlled substance(s): Controlled substance Drug code Phenylacetone ......................................................................................................................................................... Opium, Raw ............................................................................................................................................................. Poppy Straw Concentrate ........................................................................................................................................ The company plans to import the listed controlled substances to manufacture bulk Active Pharmaceuticals Ingredients for distribution to its customers. No other activities for these drug codes are authorized for this registration. Approval of permit applications will occur only when the registrant’s business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration approved or nonapproved finished dosage forms for commercial sale. Matthew Strait, Deputy Assistant Administrator. [FR Doc. 2024–31301 Filed 12–27–24; 8:45 am] ddrumheller on DSK120RN23PROD with NOTICES1 BILLING CODE P DEPARTMENT OF JUSTICE Drug Enforcement Administration Matthew Okeke, M.D.; Decision and Order On February 14, 2024, the Drug Enforcement Administration (DEA or Government) issued an Order to Show VerDate Sep<11>2014 23:58 Dec 27, 2024 Jkt 265001 Cause (OSC) to Matthew Okeke, M.D., of Las Vegas, Nevada (Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 1, at 1, 3. The OSC proposed the revocation of Registrant’s Certificate of Registration No. FO4173845, alleging that Registrant’s registration should be revoked because Registrant is ‘‘currently without authority to handle controlled substances in Nevada, the state in which [he is] registered with DEA.’’ Id. at 2 (citing 21 U.S.C. 824(a)(3)). The OSC notified Registrant of his right to file a written request for hearing, and that if he failed to file such a request, he would be deemed to have waived his right to a hearing and be in default. Id. (citing 21 CFR1301.43). Here, Registrant did not request a hearing. RFAA, at 2.1 ‘‘A default, unless 1 Based on the Government’s submissions in its RFAA dated April 16, 2024, the Agency finds that service of the OSC on Registrant was adequate. The included declaration from a DEA Diversion Investigator (DI) indicates that on February 26, 2024, the DI left a copy of the OSC at Registrant’s registered address. RFAAX 2, at 2. On the same date, the DI emailed a copy of the OSC to Registrant’s registered email address and to Registrant’s attorney. Id. at 2; see also id., Attachment C. On February 27, 2024, the OSC was mailed to Registrant’s residential address, with delivery confirmed on March 2, 2024. Id. at 2; see PO 00000 Frm 00179 Fmt 4703 Sfmt 4703 8501 9600 9670 Schedule II II II excused, shall be deemed to constitute a waiver of the registrant’s/applicant’s right to a hearing and an admission of the factual allegations of the [OSC].’’ 21 CFR 1301.43(e). Further, ‘‘[i]n the event that a registrant . . . is deemed to be in default . . . DEA may then file a request for final agency action with the Administrator, along with a record to support its request. In such circumstances, the Administrator may enter a default final order pursuant to [21 CFR] § 1316.67.’’ Id. § 1301.43(f)(1). Here, the Government has requested also id., Attachments D–E. Finally, on February 28, 2024, the DI left another copy of the OSC at Registrant’s residential address. Id. at 2–3. The Agency finds that Registrant was successfully served the OSC by email on February 26, 2024, as the emails to Registrant’s registered email address and to Registrant’s attorney were not returned as undeliverable. Mohammed S. Aljanaby, M.D., 82 FR 34,552, 34,552 (2017) (finding that service by email satisfies due process where the email is not returned as undeliverable and other methods have been unsuccessful). The Agency finds that the DI’s efforts to serve Registrant by other means were ‘‘‘reasonably calculated, under all the circumstances, to apprise [Registrant] of the pendency of the action.’’’ Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Therefore, due process notice requirements have been satisfied. E:\FR\FM\30DEN1.SGM 30DEN1

Agencies

[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106582-106584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31318]


-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Robert Esser, D.D.S.; Decision and Order

    On December 18, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Robert Esser, 
D.D.S., of Erie, Pennsylvania (Registrant). Request for Final Agency 
Action (RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the 
revocation of Registrant's Certificate of Registration No. BE3510193, 
alleging that Registrant's registration should be revoked because 
Registrant is ``currently without authority to handle controlled 
substances in the Commonwealth of Pennsylvania, the state in which [he 
is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).

[[Page 106583]]

    The OSC notified Registrant of his right to file a written request 
for hearing, and that if he failed to file such a request, he would be 
deemed to have waived his right to a hearing and be in default. Id. 
(citing 21 CFR 1301.43). Here, Registrant did not request a hearing. 
RFAA, at 2.\1\ ``A default, unless excused, shall be deemed to 
constitute a waiver of the [registrant's] right to a hearing and an 
admission of the factual allegations of the [OSC].'' 21 CFR 1301.43(e).
---------------------------------------------------------------------------

    \1\ Based on the Government's submissions in its RFAA dated 
March 4, 2024, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the included Declaration from 
a DEA Diversion Investigator (DI) indicates that on January 3, 2024, 
the DI emailed a copy of the OSC to Registrant's registered email 
address and received confirmation that the email was successfully 
delivered. RFAAX 3, at 2, Attachment B; Mohammed S. Aljanaby, M.D., 
82 FR 34552, 34552 (2017) (finding that service by email satisfies 
due process where the email is not returned as undeliverable and 
other methods have been unsuccessful). On December 28, 2023, the DI 
had attempted in-person service of the OSC at Registrant's 
registered address, and after receiving no response, left a business 
card on the premises. RFAAX 3, at 2. Further, on January 3, 2024, 
DEA had mailed a copy of the OSC to Registrant's registered address 
via certified mail, but the mailing was returned. Id. at 2, 
Attachment A.
---------------------------------------------------------------------------

    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested final agency action based on Registrant's 
default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 3; see 
also 21 CFR 1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, on 
October 20, 2022, the Pennsylvania State Board of Dentistry suspended 
Registrant's Pennsylvania dental license. RFAAX 2, at 2. According to 
Pennsylvania online records, of which the Agency takes official notice, 
Registrant's Pennsylvania dental license remains suspended.\2\ 
Pennsylvania Licensing System Verification Service,https://www.pals.pa.gov/#!/page/search (last visited date of signature of this 
Order). Accordingly, the Agency finds that Registrant is not licensed 
to practice dentistry in Pennsylvania, the state in which he is 
registered with DEA.
---------------------------------------------------------------------------

    \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 the Agency's finding 
by filing a properly supported motion for reconsideration of 
findings of fact within fifteen calendar days of the date of this 
Order. Any such motion and response shall be filed and served by 
email to the other party and to the DEA Office of the Administrator, 
Drug Enforcement Administration at [email protected].
---------------------------------------------------------------------------

Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under 21 U.S.C. 823 ``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, 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. 
Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (``The Attorney General 
can register a physician to dispense controlled substances `if the 
applicant is authorized to dispense . . . controlled substances under 
the laws of the State in which he practices.' . . . The very definition 
of a `practitioner' eligible to prescribe includes physicians 
`licensed, registered, or otherwise permitted, by the United States or 
the jurisdiction in which he practices' to dispense controlled 
substances. Sec.  802(21).''). The Agency has applied these principles 
consistently. See, e.g., James L. Hooper, M.D., 76 FR 71371, 71372 
(2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); 
Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).\3\
---------------------------------------------------------------------------

    \3\ This rule derives from the text of two provisions of the 
Controlled Substances Act (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(g)(1). Because Congress has clearly mandated that a 
practitioner possess state authority in order to be deemed a 
practitioner under the CSA, 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., James L. Hooper, 76 FR 71371-72; Sheran Arden Yeates, D.O., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 51105 
(1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); Frederick 
Marsh Blanton, 43 FR 27617.
---------------------------------------------------------------------------

    According to Pennsylvania statute, ``dispense'' means ``to deliver 
a controlled substance, other drug or device to an ultimate user or 
research subject by or pursuant to the lawful order of a practitioner, 
including the prescribing, administering, packaging, labeling, or 
compounding necessary to prepare such item for that delivery.'' 35 Pa. 
Stat. and Cons. Stat. Ann. section 780-102(b) (West 2024). Further, a 
``practitioner'' means ``a physician . . . dentist . . . or other 
person licensed, registered or otherwise permitted to distribute, 
dispense, conduct research with respect to or to administer a 
controlled substance, other drug or device in the course of 
professional practice or research in the Commonwealth of 
Pennsylvania.'' Id.
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice dentistry in Pennsylvania. As discussed 
above, an individual must be a licensed practitioner to dispense a 
controlled substance in Pennsylvania. Thus, because Registrant lacks 
authority to practice dentistry in Pennsylvania and, therefore, is not 
authorized to handle controlled substances in Pennsylvania, Registrant 
is not eligible to maintain a DEA registration. Accordingly, the Agency 
will order that Registrant's DEA registration be revoked.

Order

    Pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 
U.S.C. 824(a), I hereby revoke DEA Certificate of Registration No. 
BE3510193 issued to Robert Esser, D.D.S. Further, pursuant to 28 CFR 
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I 
hereby deny any pending applications of Robert Esser, D.D.S., to renew 
or modify this registration, as well as any other pending application 
of Robert Esser, D.D.S., for additional registration in Pennsylvania. 
This Order is effective January 29, 2025.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
December 20, 2024, by Administrator Anne Milgram. That document with 
the original signature and date is maintained by DEA. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DEA Federal

[[Page 106584]]

Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of DEA. This administrative process in no way alters the legal effect 
of this document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2024-31318 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P


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