82_FR_18853 82 FR 18777 - William H. Wyttenbach, M.D.; Decision and Order

82 FR 18777 - William H. Wyttenbach, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 76 (April 21, 2017)

Page Range18777-18779
FR Document2017-08013

Federal Register, Volume 82 Issue 76 (Friday, April 21, 2017) 
[Federal Register Volume 82, Number 76 (Friday, April 21, 2017)]
[Notices]
[Pages 18777-18779]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-08013]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 17-8]


William H. Wyttenbach, M.D.; Decision and Order

    On October 4, 2016, the Assistant Administrator, Diversion Control 
Division, issued an Order to Show Cause to William H. Wyttenbach, M.D. 
(Respondent), of Fort Myers, Florida. The Show Cause Order proposed the 
revocation of Respondent's DEA Certificate of Registration No. 
BW1311997, on the ground that he ``do[es] not have authority to handle 
controlled substances in the State of Florida, the [S]tate in which [he 
is] registered with the'' Agency. Show Cause Order, at 1 (citing 21 
U.S.C. 823(f), 824(a)(3)).
    As to the jurisdictional basis for the proceeding, the Show Cause 
Order alleged that Respondent is registered ``as a practitioner in 
[s]chedules II-V,'' pursuant to the above registration number, at the 
registered address of 16329 South Tamiami Trail, Units 5&6, Fort Myers, 
Florida. Id. The Order further alleged that Respondent's registration 
``expires by its terms on May 31, 2018.'' Id.
    As to the substantive basis for the proceeding, the Show Cause 
Order alleged that effective June 15, 2016, the Florida Board of 
Medicine ``suspended [his] authority to practice medicine,'' and that 
he is ``without authority to handle controlled substances in Florida, 
the [S]tate in which [he is] registered with'' DEA. Id. The Order thus 
alleged that Respondent's registration is subject to revocation.\1\ Id. 
(citing 21 U.S.C. 802(21), 823(f), 824(a)(3)).
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    \1\ The Show Cause Order also notified Respondent of his right 
to submit a corrective action plan and the procedure for doing so. 
Show Cause Order, at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
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    On November 3, 2016, Respondent submitted a request for a hearing. 
The matter was placed on the docket of the Office of Administrative Law 
Judges and assigned to ALJ Charles Wm. Dorman. Thereafter, the ALJ 
issued an order which directed the Government to submit its evidence in 
support of the allegation and any motion for summary disposition on 
this ground by 2 p.m. on November 28, 2016. See Briefing Schedule for 
Lack of State Authority Allegations, at 1. The ALJ also ordered that if 
the Government filed such motion, Respondent's reply was due by 2 p.m. 
on December 12, 2016. Id.
    On November 8, 2016, the Government filed its Motion for Summary 
Disposition, which asserted that ``on June 15, 2016, the State of 
Florida Board of Medicine suspended Respondent's state medical 
license.'' Mot. at 2. As support for its Motion, the Government 
attached a June 15, 2015 Final Order issued by the Florida Board of 
Medicine which suspended Respondent's Florida medical license ``until 
such time as he personally appears before the Board and demonstrates 
that his license to practice medicine in all jurisdictions is free from 
all encumbrances.'' Appendix C, at 4. The Government also attached an 
affidavit by a DEA Diversion Investigator attesting to the authenticity 
of the Florida Board's Final Order, see Appendix B, as well as a copy 
of Respondent's DEA registration. See Appendix A.
    Based on this evidence, the Government argued that Respondent is 
without authority to handle controlled substances in Florida and 
therefore, he does not meet the statutory definition of a practitioner. 
Motion, at 3-4 (citing 21 U.S.C. 802(21)). Invoking cases holding that 
revocation is warranted even when a registrant's state authority has 
been summarily suspended, the Government maintained that because 
possessing authority to dispense controlled substances under the laws 
of the state in which a practitioner engages in professional practice 
is a fundamental condition for maintaining a DEA registration and 
Respondent does not possess such authority, revocation of his 
registration is warranted. Id. at 4 (citing Gary Alfred Shearer, 78 FR 
19,009, 19012 (2013) (other citation omitted)).
    On December 5, 2016, Respondent filed his Response to the 
Government's Motion. Therein, Respondent stated that he ``agrees[ ] he 
has no authority to practice medicine in Florida and has not done so 
since June 4, 2015 and ongoing.'' Response, at 1. Respondent asserted, 
however, that he does have an active and unrestricted medical license 
in Wyoming. Id. He further asserted that the suspension of his Florida 
license was illegal, that the Florida Board had violated his Due 
Process rights, and that he is suing the Florida Board as well as the 
medical boards of Tennessee, Colorado, Kentucky, and Washington, and a 
DEA Agent for civil rights violations in federal district court in Fort 
Myers, Florida. Id. at 2. He also asserted that this proceeding 
violates his ``constitutional right of due process to appeal a non 
final order'' and that ``no alleged final order exists until ALL final 
appeals are exhausted.'' Id. at 2-3.
    On review, the ALJ noted that under the CSA, ``a practitioner must 
be currently authorized to handle controlled substances in the 
jurisdiction in which [he] is registered'' in order to maintain his 
registration. R.D. at 3 (citing 21 U.S.C. 802(21), 823(f)). The ALJ 
also noted that under agency precedent, revocation is warranted ``where 
the practitioner lacks state authority, even if the practitioner has 
not had the opportunity to contest the charges'' brought by the state 
board, ``or if there is a possibility that the Respondent's state 
license will be reinstated in the future.'' Id. (citing Richard H. Ng., 
77 FR 29694, 29695 (2012); other citations omitted). Finding that there 
was no dispute over the material fact that ``Respondent lacks state 
authorization to handle controlled substances in Florida, where [he] is 
registered,'' the ALJ concluded that Respondent is not entitled to 
maintain his registration and granted the Government's motion, with the 
recommendation that I revoke his registration. Id. at 4.
    On January 12, 2017, after the expiration of the time period for 
filing exceptions, the ALJ forwarded the record to my Office for final 
agency action. More than two months later, Respondent submitted a 
pleading titled as: ``Motion To Reconsider And/Or Motion for Telephonic 
Hearing, And/Or Motion To Dismiss Administrative Revocation.''
    I decline to consider Respondents' motions. To the extent 
Respondent seeks reconsideration, his motion is not ripe,\2\ and even 
if it were ripe, it would fail. First, his motion presents no newly 
discovered evidence. See ICC v. Brotherhood of Locomotive Engineers, 
482 U.S. 270, 278 (1987). Second, he does not point to any ``changed 
circumstance'' that would render my adoption of the ALJ's factual 
findings, legal conclusions and recommended order inappropriate. Id. As 
for all three motions, they simply raise legal arguments which could 
have, and should have, been raised in a brief of exceptions to the 
ALJ's recommended decision. Respondent did not, however,

[[Page 18778]]

file a brief of exceptions. Accordingly, I adopt the ALJ's factual 
findings, legal conclusions and recommended order. I make the following 
factual findings.
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    \2\ The ALJ's recommended decision is not a final order of the 
Agency, and thus a motion for reconsideration is not ripe until the 
Agency issues its Decision and Order.
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Findings

    Respondent is the holder of DEA Certificate of Registration No. 
BW1311997, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V, as a practitioner, at the 
registered location of Southwest Florida Medical, 16329 S. Tamiami 
Trail, Units 5 & 6, Fort Myers, Florida. Mot. for Summ. Disp., at 
Appendix A. This registration does not expire until May 31, 2018. Id.
    Respondent is also the holder of physician's license number ME 
46329, issued by the Florida Board of Medicine. Id. at Appendix C, at 3 
(Final Order adopting factual allegations of Administrative Complaint); 
id. at 8 (Complaint allegation that ``[a]t all times material to this 
Complaint, Respondent was a licensed physician within the State of 
Florida, having been issued license number ME 46329.''). However, on 
June 15, 2015, the Florida Board of Medicine issued a Final Order 
suspending ``Respondent's license to practice medicine in the State of 
Florida . . . until such time as he personally appears before the Board 
and demonstrates that his license to practice medicine in all 
jurisdictions is free from all encumbrances.'' Id. at 4. According to 
the Florida Department of Health's Web site, of which I take official 
notice, Respondent's medical license remains suspended as of the date 
of this Decision and Order.\3\
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    \3\ Respondent may dispute this finding by filing a properly 
supported motion for reconsideration within 10 business days of the 
date this Order is mailed. See 5 U.S.C. 556(e).
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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 section 823 of the 
Controlled Substances Act (CSA), ``upon a finding that the registrant . 
. . has had his State license . . . suspended [or] revoked . . . by 
competent State authority and is no longer authorized by State law to 
engage in the . . . dispensing of controlled substances.'' Moreover, 
DEA has long held that the possession of authority to dispense 
controlled substances under the laws of the State in which a 
practitioner engages in professional practice is a fundamental 
condition for obtaining and maintaining a practitioner's registration. 
See, e.g., James L. Hooper, 76 FR 71371 (2011), pet. for rev. denied, 
481 Fed. Appx. 826 (4th Cir. 2012); Frederick Marsh Blanton, 43 FR 
27616 (1978).
    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(f). Because Congress has clearly mandated 
that a practitioner possess state authority in order to be deemed a 
practitioner under the Act, 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 medicine. See, e.g., Hooper, 76 
FR at 71371-72; Sheran Arden Yeates, M.D., 71 FR 39130, 39131 (2006); 
Dominick A. Ricci, 58 FR 51104, 51105 (1993); Bobby Watts, 53 FR 11919, 
11920 (1988); Blanton, 43 FR at 27616.
    In his Opposition, Respondent raised three main arguments. First, 
while he acknowledged that his Florida license has been suspended, he 
maintained that he has an active and unrestricted medical license in 
Wyoming. This, however, is beside the point because he is registered in 
Florida and not Wyoming, and his ability to hold a registration in 
Florida is conditioned on his possessing authority under Florida law to 
dispense controlled substances. See 21 U.S.C. 802(21), 823(f); see also 
United States v. Moore, 423 U.S. 122, 140-41 (1975) (``Registration of 
physicians and other practitioners is mandatory if the applicant is 
authorized to dispense drugs . . . under the law of the State in which 
he practices. [21 U.S.C.] Sec.  823(f). In the case of a physician, 
this scheme contemplates that he is authorized by the State to practice 
medicine and to dispense drugs in connection with his professional 
practice.''); Blanton, 43 FR at 27617 (``State authorization to 
dispense or otherwise handle controlled substances is a prerequisite to 
the issuance and maintenance of a Federal controlled substances 
registration.'').
    Second, Respondent argues that the suspension of his Florida 
license was illegal and that he is suing the Florida Board for 
violating his right to Due Process. DEA, however, has no authority to 
adjudicate the validity of the decisions of state boards, which are 
deemed to be presumptively lawful for the purposes of the Controlled 
Substances Act. See Kamal Tiwari, et al., 76 FR 71604, 71607 (2011) 
(quoting George S. Heath, 51 FR 26610 (1986) (``DEA accepts as valid 
and lawful the action of a state regulatory board unless that action is 
overturned by a state court or otherwise pursuant to state law.'')). 
Rather, Respondent is required to litigate his claims challenging the 
validity of the suspension in the administrative and judicial fora 
provided by the State of Florida. See Tiwari, 76 FR at 71607 (quoting 
Heath, 51 FR at 26610); Zhiwei Lin, 77 FR 18862, 18864 (2012); Sunil 
Bhasin, 72 FR 5082, 5083 (2007).
    Finally, Respondent maintains that this proceeding violates his due 
process right to appeal a non-final order and that no alleged final 
order exists until he exhausts his appeals. Putting aside that the 
Board characterized its Order suspending his state license as a ``Final 
Order,'' Respondent offers no support for his theory that the Agency's 
action violates whatever right he has at this point under Florida law 
to challenge the Board's Final Order. See Appendix C, at 5 (Board 
Order's notice to Respondent that under Florida law, he had 30 days to 
file a notice of appeal of the Board's Order). Indeed, nothing the 
Agency does in this proceeding, which involves the revocation of his 
DEA registration, effects his ability to seek judicial review of the 
Board's Final Order. While Respondent further argues that the Board's 
Order is not a Final Order (notwithstanding the Board's 
characterization that it is) until he exhaust his appeals, he cites 
neither a provision of the Florida statutes nor any decision of the 
Florida courts to support his contention.\4\
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    \4\ Even if the Board Order's was not final, Respondent's 
registration would still be subject to revocation based on his lack 
of state authority. Indeed, DEA has long exercised authority to 
revoke a registration even where a State Board resorts to summary 
process to suspend a practitioner's prescribing authority, because 
notwithstanding that the practitioner may eventually prevail at 
hearing before the Board, the practitioner ``is no longer authorized 
by State law to engage in the . . . dispensing of controlled 
substances.'' 21 U.S.C. 824(a)(3); Heath, 51 FR at 26610. This 
interpretation of the Agency's authority has been sustained on 
judicial review. See Maynard v. DEA, 117 Fed. Appx. 941, 944 (5th 
Cir. 2004) (rejecting argument that DEA exceeded its authority 
revoking a practitioner's registration because his state license was 
``merely temporarily suspended'' and recognizing that ``DEA need not 
inquire into the validity of a state licensing agency's decisions 
under section 824(a)(3)''). Of note, the Board's Order makes clear 
that Respondent was given a hearing before the Board suspended his 
license. Appendix C, at 3.

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[[Page 18779]]

    Because it is undisputed that based on the Florida Board's Final 
Order, Respondent's state license has been suspended and he ``is no 
longer authorized by State law to engage in the . . . dispensing of 
controlled substances'' in Florida, the State in which he is registered 
with the Agency, he is not entitled to maintain his registration. 21 
U.S.C. 824(a)(3); see also id. section 802(21), Blanton, 43 FR at 
27616. I will therefore order that his registration be revoked and that 
any pending application to renew or modify his registration be denied.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a)(3) and 
28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BW1311997 issued to William H. Wyttenbach, M.D., be, and it hereby is, 
revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f) and 
28 CFR 0.100(b), I further order that any application of William H. 
Wyttenbach, M.D., to renew or modify the above registration, be, and it 
hereby is, denied. This Order is effective May 22, 2017.

    Dated: April 14, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-08013 Filed 4-20-17; 8:45 am]
 BILLING CODE 4410-09-P

Federal Register / Vol. 82, No. 76 / Friday, April 21, 2017 / Notices 18777 India: Investigation Nos. 701–TA–318 submit its evidence in support of the and a DEA Agent for civil rights and 731–TA–538 and 561 (Fourth allegation and any motion for summary violations in federal district court in Review). disposition on this ground by 2 p.m. on Fort Myers, Florida. Id. at 2. He also By order of the Commission. November 28, 2016. See Briefing asserted that this proceeding violates his Issued: April 17. 2017. Schedule for Lack of State Authority ‘‘constitutional right of due process to Allegations, at 1. The ALJ also ordered appeal a non final order’’ and that ‘‘no Lisa R. Barton, that if the Government filed such alleged final order exists until ALL final Secretary to the Commission. motion, Respondent’s reply was due by appeals are exhausted.’’ Id. at 2–3. [FR Doc. 2017–08064 Filed 4–20–17; 8:45 am] 2 p.m. on December 12, 2016. Id. On review, the ALJ noted that under BILLING CODE 7020–02–P On November 8, 2016, the the CSA, ‘‘a practitioner must be Government filed its Motion for currently authorized to handle Summary Disposition, which asserted controlled substances in the jurisdiction DEPARTMENT OF JUSTICE that ‘‘on June 15, 2016, the State of in which [he] is registered’’ in order to Florida Board of Medicine suspended maintain his registration. R.D. at 3 Drug Enforcement Administration Respondent’s state medical license.’’ (citing 21 U.S.C. 802(21), 823(f)). The [Docket No. 17–8] Mot. at 2. As support for its Motion, the ALJ also noted that under agency Government attached a June 15, 2015 precedent, revocation is warranted William H. Wyttenbach, M.D.; Decision Final Order issued by the Florida Board ‘‘where the practitioner lacks state and Order of Medicine which suspended authority, even if the practitioner has Respondent’s Florida medical license not had the opportunity to contest the On October 4, 2016, the Assistant ‘‘until such time as he personally charges’’ brought by the state board, ‘‘or Administrator, Diversion Control appears before the Board and if there is a possibility that the Division, issued an Order to Show demonstrates that his license to practice Respondent’s state license will be Cause to William H. Wyttenbach, M.D. medicine in all jurisdictions is free from reinstated in the future.’’ Id. (citing (Respondent), of Fort Myers, Florida. all encumbrances.’’ Appendix C, at 4. Richard H. Ng., 77 FR 29694, 29695 The Show Cause Order proposed the The Government also attached an (2012); other citations omitted). Finding revocation of Respondent’s DEA affidavit by a DEA Diversion that there was no dispute over the Certificate of Registration No. Investigator attesting to the authenticity material fact that ‘‘Respondent lacks BW1311997, on the ground that he of the Florida Board’s Final Order, see state authorization to handle controlled ‘‘do[es] not have authority to handle Appendix B, as well as a copy of substances in Florida, where [he] is controlled substances in the State of Respondent’s DEA registration. See registered,’’ the ALJ concluded that Florida, the [S]tate in which [he is] Appendix A. Respondent is not entitled to maintain registered with the’’ Agency. Show Based on this evidence, the Cause Order, at 1 (citing 21 U.S.C. his registration and granted the Government argued that Respondent is Government’s motion, with the 823(f), 824(a)(3)). without authority to handle controlled As to the jurisdictional basis for the recommendation that I revoke his substances in Florida and therefore, he registration. Id. at 4. proceeding, the Show Cause Order does not meet the statutory definition of On January 12, 2017, after the alleged that Respondent is registered ‘‘as a practitioner. Motion, at 3–4 (citing 21 expiration of the time period for filing a practitioner in [s]chedules II–V,’’ U.S.C. 802(21)). Invoking cases holding exceptions, the ALJ forwarded the pursuant to the above registration that revocation is warranted even when record to my Office for final agency number, at the registered address of a registrant’s state authority has been 16329 South Tamiami Trail, Units 5&6, action. More than two months later, summarily suspended, the Government Respondent submitted a pleading titled Fort Myers, Florida. Id. The Order maintained that because possessing further alleged that Respondent’s as: ‘‘Motion To Reconsider And/Or authority to dispense controlled registration ‘‘expires by its terms on Motion for Telephonic Hearing, And/Or substances under the laws of the state in May 31, 2018.’’ Id. Motion To Dismiss Administrative which a practitioner engages in As to the substantive basis for the Revocation.’’ professional practice is a fundamental I decline to consider Respondents’ proceeding, the Show Cause Order condition for maintaining a DEA alleged that effective June 15, 2016, the motions. To the extent Respondent registration and Respondent does not Florida Board of Medicine ‘‘suspended seeks reconsideration, his motion is not possess such authority, revocation of his [his] authority to practice medicine,’’ ripe,2 and even if it were ripe, it would registration is warranted. Id. at 4 (citing and that he is ‘‘without authority to fail. First, his motion presents no newly Gary Alfred Shearer, 78 FR 19,009, handle controlled substances in Florida, discovered evidence. See ICC v. 19012 (2013) (other citation omitted)). the [S]tate in which [he is] registered On December 5, 2016, Respondent Brotherhood of Locomotive Engineers, with’’ DEA. Id. The Order thus alleged filed his Response to the Government’s 482 U.S. 270, 278 (1987). Second, he that Respondent’s registration is subject Motion. Therein, Respondent stated that does not point to any ‘‘changed to revocation.1 Id. (citing 21 U.S.C. he ‘‘agrees[ ] he has no authority to circumstance’’ that would render my 802(21), 823(f), 824(a)(3)). practice medicine in Florida and has not adoption of the ALJ’s factual findings, On November 3, 2016, Respondent done so since June 4, 2015 and legal conclusions and recommended submitted a request for a hearing. The ongoing.’’ Response, at 1. Respondent order inappropriate. Id. As for all three matter was placed on the docket of the asserted, however, that he does have an motions, they simply raise legal Office of Administrative Law Judges and active and unrestricted medical license arguments which could have, and sradovich on DSK3GMQ082PROD with NOTICES assigned to ALJ Charles Wm. Dorman. in Wyoming. Id. He further asserted that should have, been raised in a brief of Thereafter, the ALJ issued an order the suspension of his Florida license exceptions to the ALJ’s recommended which directed the Government to was illegal, that the Florida Board had decision. Respondent did not, however, 1 The Show Cause Order also notified Respondent violated his Due Process rights, and that 2 The ALJ’s recommended decision is not a final of his right to submit a corrective action plan and he is suing the Florida Board as well as order of the Agency, and thus a motion for the procedure for doing so. Show Cause Order, at the medical boards of Tennessee, reconsideration is not ripe until the Agency issues 2–3 (citing 21 U.S.C. 824(c)(2)(C)). Colorado, Kentucky, and Washington, its Decision and Order. VerDate Sep<11>2014 17:30 Apr 20, 2017 Jkt 241001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\21APN1.SGM 21APN1

18778 Federal Register / Vol. 82, No. 76 / Friday, April 21, 2017 / Notices file a brief of exceptions. Accordingly, I (4th Cir. 2012); Frederick Marsh Board for violating his right to Due adopt the ALJ’s factual findings, legal Blanton, 43 FR 27616 (1978). Process. DEA, however, has no authority conclusions and recommended order. I This rule derives from the text of two to adjudicate the validity of the make the following factual findings. provisions of the CSA. First, Congress decisions of state boards, which are defined ‘‘the term ‘practitioner’ [to] deemed to be presumptively lawful for Findings mean[ ] a . . . physician . . . or other the purposes of the Controlled Respondent is the holder of DEA person licensed, registered or otherwise Substances Act. See Kamal Tiwari, et Certificate of Registration No. permitted, by . . . the jurisdiction in al., 76 FR 71604, 71607 (2011) (quoting BW1311997, pursuant to which he is which he practices . . . to distribute, George S. Heath, 51 FR 26610 (1986) authorized to dispense controlled dispense, [or] administer . . . a (‘‘DEA accepts as valid and lawful the substances in schedules II through V, as controlled substance in the course of action of a state regulatory board unless a practitioner, at the registered location professional practice.’’ 21 U.S.C. that action is overturned by a state court of Southwest Florida Medical, 16329 S. 802(21). Second, in setting the or otherwise pursuant to state law.’’)). Tamiami Trail, Units 5 & 6, Fort Myers, requirements for obtaining a Rather, Respondent is required to Florida. Mot. for Summ. Disp., at practitioner’s registration, Congress litigate his claims challenging the Appendix A. This registration does not directed that ‘‘[t]he Attorney General validity of the suspension in the expire until May 31, 2018. Id. shall register practitioners . . . if the administrative and judicial fora Respondent is also the holder of applicant is authorized to dispense . . . provided by the State of Florida. See physician’s license number ME 46329, controlled substances under the laws of Tiwari, 76 FR at 71607 (quoting Heath, issued by the Florida Board of the State in which he practices.’’ 21 51 FR at 26610); Zhiwei Lin, 77 FR Medicine. Id. at Appendix C, at 3 (Final U.S.C. 823(f). Because Congress has 18862, 18864 (2012); Sunil Bhasin, 72 Order adopting factual allegations of clearly mandated that a practitioner FR 5082, 5083 (2007). Administrative Complaint); id. at 8 possess state authority in order to be Finally, Respondent maintains that (Complaint allegation that ‘‘[a]t all times deemed a practitioner under the Act, this proceeding violates his due process material to this Complaint, Respondent DEA has held repeatedly that revocation right to appeal a non-final order and was a licensed physician within the of a practitioner’s registration is the that no alleged final order exists until he State of Florida, having been issued appropriate sanction whenever he is no exhausts his appeals. Putting aside that license number ME 46329.’’). However, longer authorized to dispense controlled the Board characterized its Order on June 15, 2015, the Florida Board of substances under the laws of the State suspending his state license as a ‘‘Final Medicine issued a Final Order in which he practices medicine. See, Order,’’ Respondent offers no support suspending ‘‘Respondent’s license to e.g., Hooper, 76 FR at 71371–72; Sheran for his theory that the Agency’s action practice medicine in the State of Florida Arden Yeates, M.D., 71 FR 39130, 39131 violates whatever right he has at this . . . until such time as he personally (2006); Dominick A. Ricci, 58 FR 51104, point under Florida law to challenge the appears before the Board and 51105 (1993); Bobby Watts, 53 FR Board’s Final Order. See Appendix C, at demonstrates that his license to practice 11919, 11920 (1988); Blanton, 43 FR at 5 (Board Order’s notice to Respondent medicine in all jurisdictions is free from 27616. that under Florida law, he had 30 days all encumbrances.’’ Id. at 4. According In his Opposition, Respondent raised to file a notice of appeal of the Board’s to the Florida Department of Health’s three main arguments. First, while he Order). Indeed, nothing the Agency does Web site, of which I take official notice, acknowledged that his Florida license in this proceeding, which involves the Respondent’s medical license remains has been suspended, he maintained that revocation of his DEA registration, suspended as of the date of this he has an active and unrestricted effects his ability to seek judicial review Decision and Order.3 medical license in Wyoming. This, of the Board’s Final Order. While however, is beside the point because he Respondent further argues that the Discussion is registered in Florida and not Board’s Order is not a Final Order Pursuant to 21 U.S.C. 824(a)(3), the Wyoming, and his ability to hold a (notwithstanding the Board’s Attorney General is authorized to registration in Florida is conditioned on characterization that it is) until he suspend or revoke a registration issued his possessing authority under Florida exhaust his appeals, he cites neither a under section 823 of the Controlled law to dispense controlled substances. provision of the Florida statutes nor any Substances Act (CSA), ‘‘upon a finding See 21 U.S.C. 802(21), 823(f); see also decision of the Florida courts to support that the registrant . . . has had his State United States v. Moore, 423 U.S. 122, his contention.4 license . . . suspended [or] revoked 140–41 (1975) (‘‘Registration of physicians and other practitioners is 4 Even if the Board Order’s was not final, . . . by competent State authority and is mandatory if the applicant is authorized Respondent’s registration would still be subject to no longer authorized by State law to revocation based on his lack of state authority. to dispense drugs . . . under the law of engage in the . . . dispensing of Indeed, DEA has long exercised authority to revoke the State in which he practices. [21 a registration even where a State Board resorts to controlled substances.’’ Moreover, DEA U.S.C.] § 823(f). In the case of a summary process to suspend a practitioner’s has long held that the possession of physician, this scheme contemplates prescribing authority, because notwithstanding that authority to dispense controlled the practitioner may eventually prevail at hearing that he is authorized by the State to substances under the laws of the State before the Board, the practitioner ‘‘is no longer practice medicine and to dispense drugs authorized by State law to engage in the . . . in which a practitioner engages in in connection with his professional dispensing of controlled substances.’’ 21 U.S.C. professional practice is a fundamental practice.’’); Blanton, 43 FR at 27617 824(a)(3); Heath, 51 FR at 26610. This interpretation condition for obtaining and maintaining of the Agency’s authority has been sustained on sradovich on DSK3GMQ082PROD with NOTICES (‘‘State authorization to dispense or a practitioner’s registration. See, e.g., judicial review. See Maynard v. DEA, 117 Fed. otherwise handle controlled substances Appx. 941, 944 (5th Cir. 2004) (rejecting argument James L. Hooper, 76 FR 71371 (2011), is a prerequisite to the issuance and that DEA exceeded its authority revoking a pet. for rev. denied, 481 Fed. Appx. 826 maintenance of a Federal controlled practitioner’s registration because his state license substances registration.’’). was ‘‘merely temporarily suspended’’ and 3 Respondent may dispute this finding by filing recognizing that ‘‘DEA need not inquire into the a properly supported motion for reconsideration Second, Respondent argues that the validity of a state licensing agency’s decisions within 10 business days of the date this Order is suspension of his Florida license was under section 824(a)(3)’’). Of note, the Board’s mailed. See 5 U.S.C. 556(e). illegal and that he is suing the Florida Order makes clear that Respondent was given a VerDate Sep<11>2014 17:30 Apr 20, 2017 Jkt 241001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\21APN1.SGM 21APN1

Federal Register / Vol. 82, No. 76 / Friday, April 21, 2017 / Notices 18779 Because it is undisputed that based on The publication of this notice opens accordance with the Paperwork the Florida Board’s Final Order, a period for public comment on the Reduction Act of 1995 (PRA). Public Respondent’s state license has been Consent Decree. Comments should be comments on the ICR are invited. suspended and he ‘‘is no longer addressed to the Assistant Attorney DATES: The OMB will consider all authorized by State law to engage in the General, Environment and Natural written comments that agency receives . . . dispensing of controlled Resources Division, and should refer to on or before May 22, 2017. substances’’ in Florida, the State in United States v. Municipality of Santa ADDRESSES: A copy of this ICR with which he is registered with the Agency, Isabel, D.J. Ref. No. 90–7–1–10627. All applicable supporting documentation; he is not entitled to maintain his comments must be submitted no later including a description of the likely registration. 21 U.S.C. 824(a)(3); see also than 30 days after the publication date respondents, proposed frequency of id. section 802(21), Blanton, 43 FR at of this notice. Comments may be response, and estimated total burden 27616. I will therefore order that his submitted either by email or by mail: may be obtained free of charge from the registration be revoked and that any RegInfo.gov Web site at http:// pending application to renew or modify To submit com- www.reginfo.gov/public/do/ Send them to: his registration be denied. ments: PRAViewICR?ref_nbr=201612-1219-004 Order By email ............ pubcomment-ees.enrd@ (this link will only become active on the usdoj.gov. day following publication of this notice) Pursuant to the authority vested in me By mail .............. Assistant Attorney General or by contacting Michel Smyth by by 21 U.S.C. 824(a)(3) and 28 CFR U.S. DOJ—ENRD telephone at 202–693–4129, TTY 202– 0.100(b), I order that DEA Certificate of P.O. Box 7611 693–8064, (these are not toll-free Registration No. BW1311997 issued to Washington, D.C. 20044– numbers) or by email at DOL_PRA_ William H. Wyttenbach, M.D., be, and it 7611. PUBLIC@dol.gov. hereby is, revoked. Pursuant to the Submit comments about this request authority vested in me by 21 U.S.C. During the public comment period, by mail to the Office of Information and 823(f) and 28 CFR 0.100(b), I further the Consent Decree may be examined Regulatory Affairs, Attn: OMB Desk order that any application of William H. and downloaded at this Justice Officer for DOL–MSHA, Office of Wyttenbach, M.D., to renew or modify Department Web site: https:// Management and Budget, Room 10235, the above registration, be, and it hereby www.justice.gov/enrd/consent-decrees. 725 17th Street NW., Washington, DC is, denied. This Order is effective May We will provide a paper copy of the 20503; by Fax: 202–395–5806 (this is 22, 2017. Consent Decree upon written request not a toll-free number); or by email: and payment of reproduction costs. OIRA_submission@omb.eop.gov. Dated: April 14, 2017. Please mail your request and payment Commenters are encouraged, but not Chuck Rosenberg, to: Consent Decree Library, U.S. DOJ— required, to send a courtesy copy of any Acting Administrator. ENRD, P.O. Box 7611, Washington, DC comments by mail or courier to the U.S. [FR Doc. 2017–08013 Filed 4–20–17; 8:45 am] 20044–7611. Department of Labor—OASAM, Office BILLING CODE 4410–09–P Please enclose a check or money order of the Chief Information Officer, Attn: for $19.25 (25 cents per page Departmental Information Compliance reproduction cost) payable to the United Management Program, Room N1301, DEPARTMENT OF JUSTICE States Treasury. For a paper copy 200 Constitution Avenue NW., without the exhibits and signature Washington, DC 20210; or by email: Notice of Lodging of Proposed pages, the cost is $5.25. DOL_PRA_PUBLIC@dol.gov. Consent Decree Under the Solid Waste Robert E. Maher, Jr., FOR FURTHER INFORMATION CONTACT: Disposal Act Assistant Section Chief, Environmental Michel Smyth by telephone at 202–693– On April 12, 2017, the Department of Enforcement Section, Environment and 4129, TTY 202–693–8064, (these are not Justice lodged a proposed Consent Natural Resources Division. toll-free numbers) or by email at DOL_ Decree with the United States District [FR Doc. 2017–08029 Filed 4–20–17; 8:45 am] PRA_PUBLIC@dol.gov. Court for the District of Puerto Rico in BILLING CODE 4410–15–P Authority: 44 U.S.C. 3507(a)(1)(D). the lawsuit entitled United States v. SUPPLEMENTARY INFORMATION: This ICR Municipality of Santa Isabel, Civil seeks to extend PRA authority for the Action No. 3:17–CV–01494. DEPARTMENT OF LABOR Radiation Sampling and Exposure The United States filed this action Records information collection. More under the Solid Waste Disposal Act Office of the Secretary specifically, regulations 30 CFR 57.5040 (SWDA). The United States’ complaint requires a mine operator to calculate Agency Information Collection and record individual exposures to seeks injunctive relief and civil Activities; Submission for OMB radon daughters on Form MSHA–4000– penalties for the failure by the Review; Comment Request; Radiation 9, Record of Individual Exposure to Municipality of Santa Isabel to comply Sampling and Exposure Records Radon Daughters, The calculations are with a U.S. Environmental Protection Agency administrative order on consent ACTION: Notice. based on the results of weekly sampling issued under the SWDA which required by 30 CFR 57.5037. The addresses the closure of the SUMMARY: The Department of Labor operator must maintain records and (DOL) is submitting the Mine Safety and submit them annually to the MSHA. sradovich on DSK3GMQ082PROD with NOTICES Municipality’s landfill. The consent decree requires the Municipality to, Health Administration (MSHA) The sampling and recordkeeping among other things, close its landfill, sponsored information collection requirement alerts the mine operator implement a recycling program, and pay request (ICR) titled, ‘‘Radiation and the MSHA to possible failure in the a $20,000 civil penalty. Sampling and Exposure Records,’’ to the radon daughter control system and Office of Management and Budget permits timely appropriate corrective hearing before the Board suspended his license. (OMB) for review and approval for action. Data submitted to the MSHA is Appendix C, at 3. continued use, without change, in intended to establish a means by which VerDate Sep<11>2014 17:30 Apr 20, 2017 Jkt 241001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\21APN1.SGM 21APN1


Document Created: 2017-04-21 01:19:24
Document Modified: 2017-04-21 01:19:24
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
FR Citation82 FR 18777 
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