81 FR 64949 - Drug Enforcement Administration

DEPARTMENT OF JUSTICE

Federal Register Volume 81, Issue 183 (September 21, 2016)

Page Range		64949-64951
FR Document		2016-22751
Federal Register, Volume 81 Issue 183 (Wednesday, September 21, 2016)
[Federal Register Volume 81, Number 183 (Wednesday, September 21, 2016)]
[Notices]
[Pages 64949-64951]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-22751]


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 DEPARTMENT OF JUSTICE


Drug Enforcement Administration

Kevin L. Lowe, M.D.; Decision and Order

    On May 18, 2016, Chief Administrative Law Judge John J. Mulrooney, 
II (CALJ), issued the attached Recommended Decision (R.D.).\1\ Therein, 
the CALJ found that it is undisputed that Respondent is currently 
without authority to handle controlled substances in New York, the 
State in which he holds DEA Registration FL2580163. R.D. at 4. The CALJ 
thus granted the Government's Motion for Summary Disposition and 
recommended that I revoke Respondent's registration and deny any 
pending applications.
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    \1\ All citations to the Recommended Decision are to the slip 
opinion issued by the CALJ.
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    Neither party filed exceptions to the Recommended Decision. Having 
reviewed the record, I adopt the CALJ's finding that Respondent lacks 
state authority to handle controlled substances in New York, the State 
in which he is registered. ``State authorization to dispense or 
otherwise handle controlled substances is a prerequisite to the 
issuance and maintenance of a Federal controlled substances 
registration.'' Frederick Marsh Blanton, 43 FR 27616, 27617 (1978). See 
also Rezik A. Saqer, 81 FR 22122, 22124-127 (2016). Thus, once the 
Government establishes that an applicant for a practitioner's 
registration or a practitioner-registrant does not possess state 
authority, there are no further facts to be considered and revocation 
is the mandatory sanction that must be entered under the Controlled 
Substances Act. Accordingly, I will also adopt the CALJ's 
recommendation that I revoke Respondent's registration and deny any 
pending application to renew or modify his registration.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of 
Registration FL2580163 issued to Kevin L. Lowe, M.D., be, and it hereby 
is, revoked. I further order that any pending application of Kevin L. 
Lowe, M.D., to renew or modify the above registration, be, and it 
hereby is, denied. This Order is effective immediately.\2\
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    \2\ Based on Respondent's acknowledgment that he has been 
convicted of conspiring to unlawfully distribute controlled 
substances, see Resp.'s Hrng. Req., at 1-2, I find that the public 
interest necessitates that this Order be effective immediately. 21 
CFR 1316.67.


[[Page 64950]]


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    Dated: September 14, 2016.
Chuck Rosenberg,
Acting Administrator.

Order Granting the Government's Motion for Summary Disposition and 
Recommended Rulings, Findings of Fact, Conclusions of Law, and Decision 
of the Administrative Law Judge

    Chief Administrative Law Judge John J. Mulrooney, II. The Deputy 
Assistant Administrator, Drug Enforcement Administration (DEA), issued 
an Order to Show Cause (OSC), dated March 28, 2016, proposing to revoke 
the DEA Certificate of Registration (COR), Number FL2580163,\3\ of 
Kevin L. Lowe, M.D. (Respondent), pursuant to 21 U.S.C. 824(a)(3) and 
21 U.S.C. 823(f). In the OSC, the DEA avers that the Respondent's lack 
of ``authority to handle controlled substances in the State of New 
York, the state in which [the Respondent is] registered with the DEA,'' 
is a basis for revocation of the Respondent's COR.\4\
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    \3\ The Respondent's DEA COR is current and expires by its terms 
on March 31, 2017. Gov't Mot. App'x A.
    \4\ The OSC also alleges that the Respondent was convicted of 
one count of conspiracy to distribute narcotics involving oxycodone 
in violation of 21 U.S.C. 846. OSC at 1.
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    The Respondent, pro se, timely filed a Request for Hearing dated 
April 3, 2016,\5\ wherein he conceded that he is currently without 
state authority to handle controlled substances. See Req. for Hr'g at 1 
(stating that his ``imprisonment has prevented [him] from renewing his 
state license''). The Respondent also maintained that he is innocent of 
the crime for which he was convicted and is in the process of appealing 
his conviction. Id. at 1, 3.
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    \5\ Respondent apparently filed the Request for Hearing with the 
Office of Diversion Control, and Government counsel forwarded the 
request to the Office of Administrative Law Judges on April 11, 
2016.
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    On April 22, 2016, the Government filed a Motion for Summary 
Disposition, seeking a Recommended Decision granting the Government's 
Motion because Respondent is currently without authority to handle 
controlled substances in New York. Gov't Mot. at 1. Appended to its 
Motion, the Government provided a Certification by Cathy Hanczaryk, 
legal custodian of the official records of the Division of Professional 
Licensing Services of the New York State Education Department, in which 
Ms. Hanczaryk attests that the Respondent ``is not currently registered 
to practice the profession [of medicine] in New York'' and has not been 
so registered since October 31, 2015. Gov't Mot. App'x B. Ms. 
Hanczaryk's Certification further states that the Respondent ``has not 
filed a registration renewal application for the period of'' November 
1, 2015 to October 31, 2017. Id. According to a supporting Declaration 
by Diversion Investigator (DI) Chante Jones, also appended to the 
Government's Motion, DI Jones personally obtained the Certification by 
Ms. Hanczaryk after learning that the Respondent, who had been 
convicted in federal district court, did not have an active license to 
practice medicine in New York and has been without one since October 
31, 2015. Gov't Mot. App'x C at 1-2.
    The Respondent's reply to the Government's motion was due on May 
11, 2016.\6\ Having afforded an additional week of time in the event 
that the Respondent's reply was mailed but not timely, the Government's 
motion would appropriately be granted as unopposed. Even without doing 
so, however, the Government's motion must be granted on the existing 
record.
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    \6\ The Government requested additional time to file its Motion, 
which was granted, and the Respondent's original due date was 
likewise extended.
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    In order to revoke a registrant's DEA registration, the DEA has the 
burden of proving that the requirements for revocation are satisfied. 
21 CFR 1301.44(e). Once the DEA has made its prima facie case for 
revocation of the registrant's DEA COR, the burden of production then 
shifts to the Respondent to show that, given the totality of the facts 
and circumstances in the record, revoking the registrant's COR would 
not be appropriate. Morall v. DEA, 412 F.3d 165, 174 (D.C. Cir. 2005); 
Humphreys v. DEA, 96 F.3d 658, 661 (3d Cir. 1996); Shatz v. U.S. Dep't 
of Justice, 873 F.2d 1089, 1091 (8th Cir. 1989); Thomas E. Johnston, 45 
FR 72311, 72312 (1980).
    The Controlled Substances Act (CSA) requires that, in order to 
maintain a DEA registration, a practitioner must be authorized to 
handle controlled substances in the state in which he practices. See 21 
U.S.C. 823(f) (``The Attorney General shall register practitioners . . 
. if the applicant is authorized to dispense . . . controlled 
substances under the laws of the State in which he practices.''); see 
also 21 U.S.C. 802(21) (the CSA defines ``practitioner'' as ``a 
physician . . . licensed, registered, or otherwise permitted, . . . by 
the jurisdiction in which he practices . . . to . . . dispense [or] 
administer . . . a controlled substance in the course of professional 
practice''). DEA has long held that possession of authority under state 
law to dispense controlled substances is not only a prerequisite to 
obtaining a registration, but also an essential condition for 
maintaining one. Serenity Caf[eacute], 77 FR 35027, 35028 (2012); David 
W. Wang, M.D., 72 FR 54297, 54298 (2007); 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). Because 
``possessing authority under state law to handle controlled substances 
is an essential condition for holding a DEA registration,'' this Agency 
has consistently held that ``the CSA requires the revocation of a 
registration issued to a practitioner who lacks [such] authority.'' 
John B. Freitas, D.O., 74 FR 17524, 17525 (2009); see James Alvin 
Chaney, M.D., 80 FR 57391, 57391 (2015); Scott Sandarg, D.M.D., 74 FR 
17528, 17529 (2009); Roy Chi Lung, M.D., 74 FR 20346, 20347 (2009); 
Roger A. Rodriguez, M.D., 70 FR 33206, 33207 (2005); Stephen J. Graham, 
M.D., 69 FR 11661, 11662 (2004); Abraham A. Chaplan, M.D., 57 FR 55280, 
55280-81 (1992); see also Harrell E. Robinson, M.D., 74 FR 61370, 61375 
(2009) (Agency revoked a registration based on loss of state authority 
after hearing before an ALJ, but also considered the public interest 
factors in its analysis); but see 21 U.S.C. 824(a)(3) (loss of state 
authority constitutes a discretionary basis for sanction, not a 
mandatory basis). The Agency has deemed this rule to be applicable 
``not only where a registrant's state authority has been suspended or 
revoked, but also where a practitioner with an existing DEA 
registration has lost his state authority for reasons other than 
through formal disciplinary action of a State board,'' such as 
``expiration of [a] state license.'' Freitas, 74 FR at 17525 (citing 
William D. Levitt, D.O., 64 FR 49822, 49823 (1999)); see Mark L. Beck, 
D.D.S., 64 FR 40899, 40900 (1999); Charles H. Ryan, M.D., 58 FR 14430, 
14430 (1993).
    Congress does not intend for administrative agencies to perform 
meaningless tasks. See Philip E. Kirk, M.D., 48 FR 32887 (1983), aff'd 
sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984); see also Puerto 
Rico Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600, 605 (1st Cir. 1994); 
NLRB v. Int'l Assoc. of Bridge, Structural & Ornamental Ironworkers, 
AFL-CIO, 549 F.2d 634 (9th Cir. 1977); United States v. Consol. Mines & 
Smelting Co., 455 F.2d 432, 453 (9th Cir. 1971). Thus, it is well-
settled that, where no genuine question of fact is involved or when the 
material facts are agreed upon, a plenary, adversarial administrative 
proceeding is not required. See Jesus R. Juarez, M.D., 62 FR 14945 
(1997);

[[Page 64951]]

Dominick A. Ricci, M.D., 58 FR 51104 (1993). Here, the supplied 
Certification by Ms. Hanczaryk establishes, and the Respondent 
concedes,\7\ that the Respondent is currently without authorization to 
handle controlled substances in New York, the jurisdiction where the 
Respondent holds the DEA COR that is the subject of this litigation.
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    \7\ The Respondent conceded his lack of state authority in his 
Request for Hearing. Req. for Hr'g at 1 (stating that his 
``imprisonment has prevented [him] from renewing his state 
license'').
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    Summary disposition of an administrative case is warranted where, 
as here, ``there is no factual dispute of substance.'' Veg-Mix, Inc. v. 
U.S. Dep't of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987) (``[A]n agency 
may ordinarily dispense with a hearing when no genuine dispute 
exists.''). At this juncture, no genuine dispute exists over the fact 
that the Respondent lacks state authority to handle controlled 
substances in New York. Because the Respondent lacks such state 
authority, Agency precedent dictates that he is not entitled to 
maintain his DEA registration. Simply put, there is no contested 
factual matter adducible at a hearing that would, in the Agency's view, 
provide authority to allow the Respondent to continue to hold his 
COR.\8\
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    \8\ However, should the Respondent's state authority be renewed, 
he may apply for a new DEA COR. See Franklyn Seabrooks, M.D., 79 FR 
44196, 44197 n.1 (2014).
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    Accordingly, I hereby Grant the Government's Motion for Summary 
Disposition; and further Recommend that the Respondent's DEA 
registration be Revoked forthwith, and any pending applications for 
renewal be Denied.

    Dated: May 18, 2016.

John J. Mulrooney, II
Chief Administrative Law Judge.

[FR Doc. 2016-22751 Filed 9-20-16; 8:45 am]
 BILLING CODE 4410-09-P
Federal Register / Vol. 81, No. 183 / Wednesday, September 21, 2016 / Notices 64949

if the applicant is authorized to accordance with 21 CFR 1301.33(a) on (R.D.).1 Therein, the CALJ found that it
dispense . . . controlled substances or before November 21, 2016. is undisputed that Respondent is
under the laws of the State in which he currently without authority to handle
ADDRESSES: Written comments should
practices.’’); 21 U.S.C. 802(21) (‘‘[t]he controlled substances in New York, the
be sent to: Drug Enforcement
term ‘practitioner’ means a physician State in which he holds DEA
Administration, Attention: DEA Federal
. . . licensed, registered, or otherwise Registration FL2580163. R.D. at 4. The
Register Representative/ODW, 8701
permitted, by . . . the jurisdiction in CALJ thus granted the Government’s
Morrissette Drive, Springfield, Virginia
which he practices . . . to distribute, Motion for Summary Disposition and
22152.
dispense, [or] administer . . . a recommended that I revoke
controlled substance in the course of SUPPLEMENTARY INFORMATION: The Respondent’s registration and deny any
professional practice’’).25 Attorney General has delegated her pending applications.
While the Show Cause Order did not authority under the Controlled
assert this as a ground for denial of his Neither party filed exceptions to the
Substances Act to the Administrator of
application (because it occurred Recommended Decision. Having
the Drug Enforcement Administration
subsequent to the issuance of the (DEA), 28 CFR 0.100(b). Authority to reviewed the record, I adopt the CALJ’s
Order), the Government did serve a exercise all necessary functions with finding that Respondent lacks state
copy of its Addendum which presented respect to the promulgation and authority to handle controlled
this development to me, on Respondent. implementation of 21 CFR part 1301, substances in New York, the State in
In response to this filing, Respondent incident to the registration of which he is registered. ‘‘State
has raised no objection.26 In any event, manufacturers, distributors, dispensers, authorization to dispense or otherwise
there are two other independent and importers, and exporters of controlled handle controlled substances is a
legally sufficient bases to deny his substances (other than final orders in prerequisite to the issuance and
application. Accordingly, I will deny his connection with suspension, denial, or maintenance of a Federal controlled
application. revocation of registration) has been substances registration.’’ Frederick
ORDER redelegated to the Deputy Assistant Marsh Blanton, 43 FR 27616, 27617
Administrator of the DEA Office of (1978). See also Rezik A. Saqer, 81 FR
Pursuant to the authority vested in me
Diversion Control (‘‘Deputy Assistant 22122, 22124–127 (2016). Thus, once
by 21 U.S.C. 823(f) and 28 CFR 0.100(b),
Administrator’’) pursuant to section 7 of the Government establishes that an
I order that the application of Richard
28 CFR part 0, appendix to subpart R. applicant for a practitioner’s registration
J. Settles, for a DEA Certificate of
Registration as a practitioner be, and it In accordance with 21 CFR or a practitioner-registrant does not
hereby is, denied. This Order is effective 1301.33(a), this is notice that on possess state authority, there are no
immediately. December 18, 2015, Nanosyn, Inc., further facts to be considered and
Nanoscale Combinatorial Synthesis, revocation is the mandatory sanction
Dated: September 13, 2016.
3331–B Industrial Drive, Santa Rosa, that must be entered under the
Chuck Rosenberg, California 95403 applied to be registered Controlled Substances Act. Accordingly,
Acting Administrator. as a bulk manufacturer the of following I will also adopt the CALJ’s
[FR Doc. 2016–22680 Filed 9–20–16; 8:45 am] basic classes of controlled substances: recommendation that I revoke
BILLING CODE 4410–09–P Respondent’s registration and deny any
Drug pending application to renew or modify
Controlled substance Schedule
code
his registration.
DEPARTMENT OF JUSTICE
Oxymorphone ........... 9652 ....... II Order
Drug Enforcement Administration Fentanyl .................... 9801 ....... II
[Docket No. DEA–392]
Pursuant to the authority vested in me
The company is a contract by 21 U.S.C. 823(f) and 824(a), as well
Bulk Manufacturer of Controlled manufacturer. At the request of the as 28 CFR 0.100(b), I order that DEA
Substances Application: Nanosyn, Inc. company’s customers, it manufacturers Certificate of Registration FL2580163
derivatives of controlled substances in issued to Kevin L. Lowe, M.D., be, and
ACTION: Notice of application. bulk form. it hereby is, revoked. I further order that
Dated: September 15, 2016. any pending application of Kevin L.
DATES: Registered bulk manufacturers of Lowe, M.D., to renew or modify the
the affected basic classes, and Louis J. Milione,
above registration, be, and it hereby is,
applicants therefore, may file written Deputy Assistant Administrator.
denied. This Order is effective
comments on or objections to the [FR Doc. 2016–22737 Filed 9–20–16; 8:45 am]
issuance of the proposed registration in immediately.2
BILLING CODE 4410–09–P

25 See also Rezik A. Saqer, 81 FR 22122, 22125–

27 (2016); Sheran Arden Yeates, 71 FR 39130,
39131 (2006); Dominick A. Ricci, 58 FR 51104,
DEPARTMENT OF JUSTICE
51105 (1993); Bobby Watts, 53 FR 11919, 11920
(1988). Drug Enforcement Administration
26 DEA has previously held that ‘‘[t]he rules
mstockstill on DSK3G9T082PROD with NOTICES

governing DEA hearings do not require the Kevin L. Lowe, M.D.; Decision and 1 All citations to the Recommended Decision are
formality of amending a show cause order to to the slip opinion issued by the CALJ.
comply with the evidence. The Government’s Order
2 Based on Respondent’s acknowledgment that he
failure to file an amended Show Cause Order
alleging that Respondent’s state CDS license has On May 18, 2016, Chief has been convicted of conspiring to unlawfully
expired does not render the proceeding distribute controlled substances, see Resp.’s Hrng.
Administrative Law Judge John J.
fundamentally unfair.’’ Roy E. Berkowitz, 74 FR Req., at 1–2, I find that the public interest
36758, 36759–60 (2009); see also Hatem M. Ataya,
Mulrooney, II (CALJ), issued the necessitates that this Order be effective
81 FR 8221, 8245 (2016) (collecting cases). attached Recommended Decision immediately. 21 CFR 1316.67.

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64950 Federal Register / Vol. 81, No. 183 / Wednesday, September 21, 2016 / Notices

Dated: September 14, 2016. Respondent ‘‘has not filed a registration only a prerequisite to obtaining a
Chuck Rosenberg, renewal application for the period of’’ registration, but also an essential
Acting Administrator. November 1, 2015 to October 31, 2017. condition for maintaining one. Serenity
Id. According to a supporting Café, 77 FR 35027, 35028 (2012); David
Order Granting the Government’s
Declaration by Diversion Investigator W. Wang, M.D., 72 FR 54297, 54298
Motion for Summary Disposition and
(DI) Chante Jones, also appended to the (2007); Sheran Arden Yeates, M.D., 71
Recommended Rulings, Findings of
Government’s Motion, DI Jones FR 39130, 39131 (2006); Dominick A.
Fact, Conclusions of Law, and Decision
personally obtained the Certification by Ricci, M.D., 58 FR 51104, 51105 (1993);
of the Administrative Law Judge
Ms. Hanczaryk after learning that the Bobby Watts, M.D., 53 FR 11919, 11920
Chief Administrative Law Judge John Respondent, who had been convicted in (1988). Because ‘‘possessing authority
J. Mulrooney, II. The Deputy Assistant federal district court, did not have an under state law to handle controlled
Administrator, Drug Enforcement active license to practice medicine in substances is an essential condition for
Administration (DEA), issued an Order New York and has been without one holding a DEA registration,’’ this
to Show Cause (OSC), dated March 28, since October 31, 2015. Gov’t Mot. Agency has consistently held that ‘‘the
2016, proposing to revoke the DEA App’x C at 1–2. CSA requires the revocation of a
Certificate of Registration (COR), The Respondent’s reply to the registration issued to a practitioner who
Number FL2580163,3 of Kevin L. Lowe, Government’s motion was due on May lacks [such] authority.’’ John B. Freitas,
M.D. (Respondent), pursuant to 21 11, 2016.6 Having afforded an additional D.O., 74 FR 17524, 17525 (2009); see
U.S.C. 824(a)(3) and 21 U.S.C. 823(f). In week of time in the event that the James Alvin Chaney, M.D., 80 FR 57391,
the OSC, the DEA avers that the Respondent’s reply was mailed but not 57391 (2015); Scott Sandarg, D.M.D., 74
Respondent’s lack of ‘‘authority to timely, the Government’s motion would FR 17528, 17529 (2009); Roy Chi Lung,
handle controlled substances in the appropriately be granted as unopposed. M.D., 74 FR 20346, 20347 (2009); Roger
State of New York, the state in which Even without doing so, however, the A. Rodriguez, M.D., 70 FR 33206, 33207
[the Respondent is] registered with the Government’s motion must be granted (2005); Stephen J. Graham, M.D., 69 FR
DEA,’’ is a basis for revocation of the on the existing record. 11661, 11662 (2004); Abraham A.
Respondent’s COR.4 In order to revoke a registrant’s DEA Chaplan, M.D., 57 FR 55280, 55280–81
The Respondent, pro se, timely filed registration, the DEA has the burden of (1992); see also Harrell E. Robinson,
a Request for Hearing dated April 3, proving that the requirements for M.D., 74 FR 61370, 61375 (2009)
2016,5 wherein he conceded that he is revocation are satisfied. 21 CFR (Agency revoked a registration based on
currently without state authority to 1301.44(e). Once the DEA has made its loss of state authority after hearing
handle controlled substances. See Req. prima facie case for revocation of the before an ALJ, but also considered the
for Hr’g at 1 (stating that his registrant’s DEA COR, the burden of public interest factors in its analysis);
‘‘imprisonment has prevented [him] production then shifts to the but see 21 U.S.C. 824(a)(3) (loss of state
from renewing his state license’’). The Respondent to show that, given the authority constitutes a discretionary
Respondent also maintained that he is totality of the facts and circumstances in basis for sanction, not a mandatory
innocent of the crime for which he was the record, revoking the registrant’s COR basis). The Agency has deemed this rule
convicted and is in the process of would not be appropriate. Morall v. to be applicable ‘‘not only where a
appealing his conviction. Id. at 1, 3. DEA, 412 F.3d 165, 174 (D.C. Cir. 2005);
On April 22, 2016, the Government registrant’s state authority has been
Humphreys v. DEA, 96 F.3d 658, 661 suspended or revoked, but also where a
filed a Motion for Summary Disposition,
(3d Cir. 1996); Shatz v. U.S. Dep’t of practitioner with an existing DEA
seeking a Recommended Decision
Justice, 873 F.2d 1089, 1091 (8th Cir. registration has lost his state authority
granting the Government’s Motion
1989); Thomas E. Johnston, 45 FR for reasons other than through formal
because Respondent is currently
without authority to handle controlled 72311, 72312 (1980). disciplinary action of a State board,’’
The Controlled Substances Act (CSA) such as ‘‘expiration of [a] state license.’’
substances in New York. Gov’t Mot. at
requires that, in order to maintain a Freitas, 74 FR at 17525 (citing William
1. Appended to its Motion, the
DEA registration, a practitioner must be D. Levitt, D.O., 64 FR 49822, 49823
Government provided a Certification by
authorized to handle controlled (1999)); see Mark L. Beck, D.D.S., 64 FR
Cathy Hanczaryk, legal custodian of the
official records of the Division of substances in the state in which he 40899, 40900 (1999); Charles H. Ryan,
Professional Licensing Services of the practices. See 21 U.S.C. 823(f) (‘‘The M.D., 58 FR 14430, 14430 (1993).
New York State Education Department, Attorney General shall register Congress does not intend for
in which Ms. Hanczaryk attests that the practitioners . . . if the applicant is administrative agencies to perform
Respondent ‘‘is not currently registered authorized to dispense . . . controlled meaningless tasks. See Philip E. Kirk,
to practice the profession [of medicine] substances under the laws of the State M.D., 48 FR 32887 (1983), aff’d sub
in New York’’ and has not been so in which he practices.’’); see also 21 nom. Kirk v. Mullen, 749 F.2d 297 (6th
registered since October 31, 2015. Gov’t U.S.C. 802(21) (the CSA defines Cir. 1984); see also Puerto Rico
Mot. App’x B. Ms. Hanczaryk’s ‘‘practitioner’’ as ‘‘a physician . . . Aqueduct & Sewer Auth. v. EPA, 35
Certification further states that the licensed, registered, or otherwise F.3d 600, 605 (1st Cir. 1994); NLRB v.
permitted, . . . by the jurisdiction in Int’l Assoc. of Bridge, Structural &
3 The Respondent’s DEA COR is current and which he practices . . . to . . . dispense Ornamental Ironworkers, AFL–CIO, 549
expires by its terms on March 31, 2017. Gov’t Mot. [or] administer . . . a controlled F.2d 634 (9th Cir. 1977); United States
App’x A. substance in the course of professional v. Consol. Mines & Smelting Co., 455
mstockstill on DSK3G9T082PROD with NOTICES

4 The OSC also alleges that the Respondent was
practice’’). DEA has long held that F.2d 432, 453 (9th Cir. 1971). Thus, it
convicted of one count of conspiracy to distribute
narcotics involving oxycodone in violation of 21
possession of authority under state law is well-settled that, where no genuine
U.S.C. 846. OSC at 1. to dispense controlled substances is not question of fact is involved or when the
5 Respondent apparently filed the Request for
material facts are agreed upon, a
Hearing with the Office of Diversion Control, and 6 The Government requested additional time to

Government counsel forwarded the request to the file its Motion, which was granted, and the
plenary, adversarial administrative
Office of Administrative Law Judges on April 11, Respondent’s original due date was likewise proceeding is not required. See Jesus R.
2016. extended. Juarez, M.D., 62 FR 14945 (1997);

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Dominick A. Ricci, M.D., 58 FR 51104 SUMMARY: Pursuant to the Federal reports to the Attorney General, who
(1993). Here, the supplied Certification Advisory Committee Act, as amended, through the Deputy Attorney General,
by Ms. Hanczaryk establishes, and the this notice announces the solicitation of shall direct the work of the Commission
Respondent concedes,7 that the applications for additional Commission in fulfilling its mission.
Respondent is currently without membership specifically to fill a current The duties of the Commission
authorization to handle controlled forensic pathologist Commissioner include: (a) Recommending priorities for
substances in New York, the jurisdiction vacancy to support medicolegal death standards development; (b) reviewing
where the Respondent holds the DEA investigation. and recommending endorsement of
COR that is the subject of this litigation. DATES: Applications must be received
guidance identified or developed by
Summary disposition of an on or before October 21, 2016. subject-matter experts; (c) developing
administrative case is warranted where, proposed guidance concerning the
ADDRESSES: All applications should be
as here, ‘‘there is no factual dispute of intersection of forensic science and the
submitted to: Jonathan McGrath,
substance.’’ Veg-Mix, Inc. v. U.S. Dep’t courtroom; (d) developing policy
Designated Federal Official, 810 7th
of Agric., 832 F.2d 601, 607 (D.C. Cir. recommendations, including a uniform
Street NW., Washington, DC 20531, by
1987) (‘‘[A]n agency may ordinarily code of professional responsibility and
email at Jonathan.McGrath@usdoj.gov.
dispense with a hearing when no minimum requirements for training,
FOR FURTHER INFORMATION CONTACT: accreditation and/or certification; and
genuine dispute exists.’’). At this
Jonathan McGrath, Designated Federal (e) identifying and assessing the current
juncture, no genuine dispute exists over
Official, 810 7th Street NW., and future needs of the forensic sciences
the fact that the Respondent lacks state
Washington, DC 20531, by email to strengthen their disciplines and meet
authority to handle controlled
Jonathan.McGrath@usdoj.gov, or by growing demand.
substances in New York. Because the
phone at (202) 514–6277. Members will be appointed by the
Respondent lacks such state authority,
SUPPLEMENTARY INFORMATION: Pursuant Attorney General in consultation with
Agency precedent dictates that he is not
entitled to maintain his DEA to the Federal Advisory Committee Act, the Director of the National Institute of
registration. Simply put, there is no as amended (5 U.S.C. App.), this notice Standards and Technology and the vice-
contested factual matter adducible at a announces the solicitation of chairs of the Commission. Additional
hearing that would, in the Agency’s applications for additional Commission members will be selected to fill
membership on the National vacancies to maintain a balance of
view, provide authority to allow the
Commission on Forensic Science to fill perspective and diversity of
Respondent to continue to hold his
a current vacancy. The National experiences, including Federal, State,
COR.8
Accordingly, I hereby Grant the Commission on Forensic Science was and Local forensic science service
Government’s Motion for Summary chartered on April 23, 2013 and the providers; research scientists and
Disposition; and further Recommend charter was renewed on April 23, 2015. academicians; Federal, State, Local
that the Respondent’s DEA registration There is currently a forensic pathologist prosecutors, defense attorneys and
be Revoked forthwith, and any pending Commissioner vacancy to support judges; law enforcement; and other
medicolegal death investigation. This relevant stakeholders. DOJ encourages
applications for renewal be Denied.
notice announces the solicitation of submissions from applicants with
Dated: May 18, 2016. applications for Commission respect to diversity of backgrounds,
John J. Mulrooney, II membership to fill this vacancy. professions, ethnicities, gender, and
Chief Administrative Law Judge. The Commission is co-chaired by the geography. The Commission shall
[FR Doc. 2016–22751 Filed 9–20–16; 8:45 am] Department of Justice and National consist of approximately 30 voting
BILLING CODE 4410–09–P Institute of Standards and Technology. members. Members will serve without
The Commission provides compensation. The Commission
recommendations and advice to the generally meets four times each year at
DEPARTMENT OF JUSTICE Department of Justice concerning approximately three-month intervals.
[Docket No. ODAG 165]
national methods and strategies for: Additional information regarding the
Strengthening the validity and Commission can be found at: http://
National Commission on Forensic reliability of the forensic sciences www.justice.gov/ncfs.
Science Solicitation of Applications for (including medico-legal death Applications: Any qualified person
Additional Commission Membership investigation); enhancing quality may apply to be considered for
To Support Medicolegal Death assurance and quality control in appointment to this advisory committee.
Investigation forensic science laboratories and units; Each application should include: (1) A
identifying and recommending resume or curriculum vitae; (2) a
AGENCY: Department of Justice. scientific guidance and protocols for statement of interest describing the
ACTION: Solicitation of Applications for evidence seizure, testing, analysis, and applicant’s relevant experience; and (3)
Additional Commission Membership for reporting by forensic science a statement of support from the
the National Commission on Forensic laboratories and units; and identifying applicant’s employer. Potential
Science specifically to fill a current and assessing other needs of the forensic candidates may be asked to provide
forensic pathologist Commissioner science communities to strengthen their detailed information as necessary
vacancy to support medicolegal death disciplines and meet the increasing regarding financial interests,
investigation. demands generated by the criminal and employment, and professional
civil justice systems at all levels of affiliations to evaluate possible sources
mstockstill on DSK3G9T082PROD with NOTICES

7 The Respondent conceded his lack of state government. Commission membership of conflicts of interest. The application
authority in his Request for Hearing. Req. for Hr’g includes Federal, State, and Local period will remain open through
at 1 (stating that his ‘‘imprisonment has prevented forensic science service providers; October 21, 2016. The applications must
[him] from renewing his state license’’). research scientists and academicians; be sent in one complete package, by
8 However, should the Respondent’s state

authority be renewed, he may apply for a new DEA
prosecutors, defense attorneys, and email, to Jonathan McGrath (contact
COR. See Franklyn Seabrooks, M.D., 79 FR 44196, judges; law enforcement; and other information above) with the subject line
44197 n.1 (2014). relevant backgrounds. The Commission of the email entitled, ‘‘NCFS

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Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		81 FR 64949