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