82_FR_40765 82 FR 40601 - Binh M. Chung, M.D.; Decision and Order

82 FR 40601 - Binh M. Chung, M.D.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 82, Issue 164 (August 25, 2017)

Page Range40601-40602
FR Document2017-18081

Federal Register, Volume 82 Issue 164 (Friday, August 25, 2017)
[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)]
[Notices]
[Pages 40601-40602]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-18081]


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

DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Binh M. Chung, M.D.; Decision and Order

    On June 29, 2017, the Acting Assistant Administrator, Diversion 
Control Division, issued an Order to Show Cause to Binh M. Chung, M.D. 
(hereinafter, Registrant), of Las Vegas, Nevada. The Show Cause Order 
proposed the revocation of Registrant's Certificate of Registration and 
the denial of any pending application to renew his registration or for 
a new registration, on the grounds that: (1) He ``ha[s] been convicted 
of a felony relating to a controlled substance''; (2) he ``do[es] not 
have authority to handle controlled substances in . . . Nevada, the 
[S]tate in which [he is] registered''; and (3) he ``ha[s] committed 
acts which render [his] registration inconsistent with the public 
interest.'' GX 2, at 1 (citing 21 U.S.C. 824(a)(2), (3), & (4)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant holds Certificate of Registration No. 
BC9308936, which ``is valid for Drug Schedules II-V,'' at the address 
of ``8785 Warm Springs Rd.[,] Suite 109, Las Vegas, NV.'' Id. The Order 
also alleged that his registration ``expires . . . on August 31, 
2017.'' Id.
    As to the substantive grounds for the proceeding, the Show Cause 
Order alleged that ``[o]n May 22, 2017, [Registrant was] found guilty 
of engaging in a scheme related to [his] administering ketamine to 
sedate patients and then raping them in [his] medical office.'' Id. The 
Order alleged that Registrant was found guilty in state court of 
``multiple sexual assault counts and multiple counts of the 
administering of a controlled substance to aid in the commission of a 
felony.'' Id. The Order then asserted that ``[t]his constitutes a 
conviction related to controlled substances under 21 U.S.C. 824(a)(2)'' 
and ``acts which are inconsistent with the public interest.'' Id. 
(citing 21 U.S.C. 824(a)(4) & 823(f)(5)).
    The Show Cause Order further alleged that on June 23, 2015, 
Registrant's medical license ``was summarily suspended'' by the Nevada 
Board of Medical Examiners and that he ``currently lack[s] authority to 
handle controlled substances in Nevada, the [S]tate in which [he is] 
registered with the'' Agency. Id. The Order thus asserted that 
Registrant's ``lack of authority to handle controlled substances in 
Nevada is a separate and independent ground to revoke [his] 
registration.'' Id. (citing 21 U.S.C. 802(21) and 824(a)(3)).
    The Show Cause Order notified Registrant of his right to request a 
hearing on the allegations or to submit a written statement while 
waiving his right to a hearing, the procedure for electing either 
option, and the consequence of failing to elect either option. Id. at 
2-3 (citing 21 CFR 1301.43). Finally, the Show Cause Order notified 
Registrant of his right to submit a Corrective Action Plan. Id. at 3 
(citing 21 U.S.C. 824(c)(2)(C)).
    On June 29, 2017, a DEA Diversion Investigator personally served 
the Show Cause Order on Registrant who was then incarcerated at the 
Clark County Detention Center, Las Vegas, Nevada. GX 3, at 2. According 
to the Government, as of August 15, 2017, Registrant had not requested 
a hearing nor submitted a written statement in lieu of requesting a 
hearing. Supplemental Request for Final Agency Action, at 2; see also 
Supplemental Declaration of Diversion Investigator, at 1. The 
Government further represents that Registrant has not submitted a 
Corrective Action Plan. See Supplemental Request for Final Agency 
Action, at 2; see also Supplemental Declaration of Diversion 
Investigator, at 1-2.
    On July 31, 2017, the Government submitted a Request for Final 
Agency Action (RFAA) and an investigative record, and on August 16, 
2017, it submitted a Supplemental Request for Final Agency Action. 
Therein, the Government seeks revocation of Registrant's registration 
pursuant to each of the three grounds set forth above.
    Based on the Government's submission, I find that more than 30 days 
have now passed since the Show Cause Order was served on Registrant, 
and that neither Registrant, nor anyone purporting to represent him, 
has requested a hearing on the allegations or submitted a written 
statement in lieu of hearing. I therefore find that Registrant has 
waived his right to request a hearing or to submit a written statement 
and issue this Decision and Order based on relevant evidence in the 
investigative record. See 21 CFR 1301.43(d) & (e). Having reviewed the 
record, I conclude that the Government is entitled to relief only on 
the loss of state authority ground. I make the following factual 
findings.

Findings

    Registrant is the holder of DEA Certificate of Registration No. 
BC9308936, pursuant to which he is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of 8785 W. Warmsprings Rd., Suite 109, Las Vegas, 
Nevada. GX 1. This Registration expires on August 31, 2017. Id.
    Registrant also holds a medical license issued by the Nevada State 
Board of Medical Examiners. GX 3B (Order of Summary Suspension & Notice 
of Hearing). However, on June 23, 2015, the Board's Investigative 
Committee immediately suspended his medical license based on 
``preliminary findings'' that Registrant ``injected a minor female 
[patient] with a medication that caused her to become groggy'' and 
proceeded ``to abuse her.'' Id. at 2. While the Board's Order set a 
hearing for July 27, 2015 ``to determine whether [the] suspension may 
continue,'' according to the Board's Web site, of which I take official 
notice, see 5 U.S.C. 556(e), the suspension remains in effect as of the 
date of this Order. I therefore find that Registrant is not currently 
authorized to dispense controlled substances under the laws of Nevada.
    On May 2, 2017, a Third Amended Indictment was issued in the 
criminal proceeding brought by the State of Nevada against Registrant. 
GX 3A, at 1. The indictment charged Registrant with, inter alia, four 
counts of sexual assault; one count of battery with intent to commit a 
sexual assault; one count of attempted sexual assault; and four counts 
of administering controlled substances including ketamine and/or 
midazolam, to aid in the commission of a felony (sexual assault and/or 
a kidnapping). Id. at 2-5. On May 22, 2017, following a trial, a jury 
found

[[Page 40602]]

Registrant guilty of each of the counts set forth above with the 
exception of one count of administering controlled substances to aid in 
the commission of a felony. Id. at 9 (verdict form). The Government did 
not, however, submit a judgment of conviction, and it is unclear as to 
whether a judgment of conviction has been entered by the state court.

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, ``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 held repeatedly 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).
    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 physician possess state authority in order to be deemed a 
practitioner under the Act, DEA has held 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., Calvin Ramsey, 
76 FR 20034, 20036 (2011); 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); see also Hooper v. Holder, 481 Fed. 
Appx. at 828.
    Also, because the CSA makes clear 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 both obtaining and maintaining a practitioner's 
registration, ``revocation is warranted even where a practitioner's 
state authority has been summarily suspended and the State has yet to 
provide the practitioner with a hearing to challenge the State's action 
at which he may ultimately prevail.'' Kamal Tiwari, 76 FR 71604, 71606 
(2011); see also Bourne Pharmacy, Inc., 72 FR 18273, 18274 (2007); Anne 
Lazar Thorn, 62 FR 12847 (1997).
    As a result of the Nevada Board's June 2015 Order of Summary 
Suspension, Registrant is not currently authorized to dispense 
controlled substances in Nevada, the State in which he is registered. 
Accordingly, I will order that his registration be revoked and that any 
pending application to renew his registration, or for any other 
registration in the State of Nevada be denied.\1\
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    \1\ While the Government also sought revocation on the ground 
that Registrant has been convicted of an offense related to 
controlled substances, it produced evidence only as to the existence 
of a jury verdict and not the existence of a judgment of conviction. 
The Agency has previously noted that the term ``conviction'' could 
mean either ``a judgment of conviction or simply a finding of guilty 
which precedes the entry of a final judgment of conviction.'' Roger 
A. Pellman, 76 FR 17704, 17709 n.10 (citing Deal v. United States, 
508 U.S. 129, 131 (1993)). The Government, however, makes no 
argument as to why, in the context of the CSA's registration 
provisions, the term includes a finding of guilty even where no 
final judgment has been entered.
     The Government also sought revocation under the public interest 
standard, arguing that his ``conduct demonstrates [his] negative 
experience in dispensing controlled substances and non-compliance 
with state law relating to controlled substances under the public 
interest factors.'' RFAA, at 5. However, because the Government 
produced no evidence that the court has entered a judgment of 
conviction, the jury's findings are not entitled to preclusive 
effect. Cf. Restatement (Second) of Judgments, Sec.  27 (``When an 
issue of fact or law is actually litigated and determined by a valid 
and final judgment, and the determination is essential to the 
judgment, the determination is conclusive in a subsequent action . . 
. whether on the same or a different claim.''). Similarly, because 
the Board's suspension order was based on its preliminary findings, 
and there is no evidence that the Board has issued a final decision 
affirming these findings, these findings cannot support revocation 
under the public interest standard.
---------------------------------------------------------------------------

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I order that DEA Certificate of Registration No. 
BC9308936 issued to Binh M. Chung, M.D., be, and it hereby is, revoked. 
I further order that any application of Binh M. Chung, M.D., to renew 
or modify this registration, or for any other registration in the State 
of Nevada, be, and it hereby is, denied. This Order is effective 
immediately.\2\
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    \2\ For the same reasons which led the Board to immediately 
suspend Registrant's registration, I conclude that the public 
interest necessitates that this Order be effective immediately. 21 
CFR 1316.67.

    Dated: August 17, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-18081 Filed 8-24-17; 8:45 am]
 BILLING CODE 4410-09-P



                                                                              Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices                                           40601

                                                the blackout of Dodger games. In my                     that Registrant was found guilty in state                Based on the Government’s
                                                opinion collusion has occurred between                  court of ‘‘multiple sexual assault counts             submission, I find that more than 30
                                                DirecTV and Time Warner Cable (TWC)                     and multiple counts of the                            days have now passed since the Show
                                                which was apparent in the filing of this                administering of a controlled substance               Cause Order was served on Registrant,
                                                case. The sharing of inside, confidential               to aid in the commission of a felony.’’               and that neither Registrant, nor anyone
                                                information between the parties has put                 Id. The Order then asserted that ‘‘[t]his             purporting to represent him, has
                                                TWC in the position to control their                    constitutes a conviction related to                   requested a hearing on the allegations or
                                                monopoly for the broadcast of Dodger                    controlled substances under 21 U.S.C.                 submitted a written statement in lieu of
                                                games by knowing where all the                          824(a)(2)’’ and ‘‘acts which are                      hearing. I therefore find that Registrant
                                                competitors stand, giving them an unfair                inconsistent with the public interest.’’              has waived his right to request a hearing
                                                advantage in their negotiations. A                      Id. (citing 21 U.S.C. 824(a)(4) &                     or to submit a written statement and
                                                settlement in favor of the public would                 823(f)(5)).                                           issue this Decision and Order based on
                                                be punishment of the parties either                        The Show Cause Order further alleged               relevant evidence in the investigative
                                                through a fine or requirement to carry                  that on June 23, 2015, Registrant’s                   record. See 21 CFR 1301.43(d) & (e).
                                                the broadcasts and a separate suit                      medical license ‘‘was summarily                       Having reviewed the record, I conclude
                                                against TWC for unfair business                         suspended’’ by the Nevada Board of                    that the Government is entitled to relief
                                                practices.                                              Medical Examiners and that he                         only on the loss of state authority
                                                Joe Macera                                              ‘‘currently lack[s] authority to handle               ground. I make the following factual
                                                Email:                                                  controlled substances in Nevada, the                  findings.
                                                Work Cell:                                              [S]tate in which [he is] registered with
                                                                                                        the’’ Agency. Id. The Order thus                      Findings
                                                Personal Cell:
                                                                                                        asserted that Registrant’s ‘‘lack of                     Registrant is the holder of DEA
                                                [FR Doc. 2017–18091 Filed 8–24–17; 8:45 am]
                                                                                                        authority to handle controlled                        Certificate of Registration No.
                                                BILLING CODE P                                                                                                BC9308936, pursuant to which he is
                                                                                                        substances in Nevada is a separate and
                                                                                                        independent ground to revoke [his]                    authorized to dispense controlled
                                                                                                        registration.’’ Id. (citing 21 U.S.C.                 substances in schedules II through V as
                                                DEPARTMENT OF JUSTICE                                                                                         a practitioner, at the registered address
                                                                                                        802(21) and 824(a)(3)).
                                                Drug Enforcement Administration                            The Show Cause Order notified                      of 8785 W. Warmsprings Rd., Suite 109,
                                                                                                        Registrant of his right to request a                  Las Vegas, Nevada. GX 1. This
                                                Binh M. Chung, M.D.; Decision and                       hearing on the allegations or to submit               Registration expires on August 31, 2017.
                                                Order                                                   a written statement while waiving his                 Id.
                                                                                                        right to a hearing, the procedure for                    Registrant also holds a medical
                                                   On June 29, 2017, the Acting                         electing either option, and the                       license issued by the Nevada State
                                                Assistant Administrator, Diversion                      consequence of failing to elect either                Board of Medical Examiners. GX 3B
                                                Control Division, issued an Order to                    option. Id. at 2–3 (citing 21 CFR                     (Order of Summary Suspension &
                                                Show Cause to Binh M. Chung, M.D.                       1301.43). Finally, the Show Cause Order               Notice of Hearing). However, on June
                                                (hereinafter, Registrant), of Las Vegas,                notified Registrant of his right to submit            23, 2015, the Board’s Investigative
                                                Nevada. The Show Cause Order                            a Corrective Action Plan. Id. at 3 (citing            Committee immediately suspended his
                                                proposed the revocation of Registrant’s                 21 U.S.C. 824(c)(2)(C)).                              medical license based on ‘‘preliminary
                                                Certificate of Registration and the denial                 On June 29, 2017, a DEA Diversion                  findings’’ that Registrant ‘‘injected a
                                                of any pending application to renew his                 Investigator personally served the Show               minor female [patient] with a
                                                registration or for a new registration, on              Cause Order on Registrant who was then                medication that caused her to become
                                                the grounds that: (1) He ‘‘ha[s] been                   incarcerated at the Clark County                      groggy’’ and proceeded ‘‘to abuse her.’’
                                                convicted of a felony relating to a                     Detention Center, Las Vegas, Nevada.                  Id. at 2. While the Board’s Order set a
                                                controlled substance’’; (2) he ‘‘do[es] not             GX 3, at 2. According to the                          hearing for July 27, 2015 ‘‘to determine
                                                have authority to handle controlled                     Government, as of August 15, 2017,                    whether [the] suspension may
                                                substances in . . . Nevada, the [S]tate in              Registrant had not requested a hearing                continue,’’ according to the Board’s Web
                                                which [he is] registered’’; and (3) he                  nor submitted a written statement in                  site, of which I take official notice, see
                                                ‘‘ha[s] committed acts which render                     lieu of requesting a hearing.                         5 U.S.C. 556(e), the suspension remains
                                                [his] registration inconsistent with the                Supplemental Request for Final Agency                 in effect as of the date of this Order. I
                                                public interest.’’ GX 2, at 1 (citing 21                Action, at 2; see also Supplemental                   therefore find that Registrant is not
                                                U.S.C. 824(a)(2), (3), & (4)).                          Declaration of Diversion Investigator, at             currently authorized to dispense
                                                   With respect to the Agency’s                         1. The Government further represents                  controlled substances under the laws of
                                                jurisdiction, the Show Cause Order                      that Registrant has not submitted a                   Nevada.
                                                alleged that Registrant holds Certificate               Corrective Action Plan. See                              On May 2, 2017, a Third Amended
                                                of Registration No. BC9308936, which                    Supplemental Request for Final Agency                 Indictment was issued in the criminal
                                                ‘‘is valid for Drug Schedules II–V,’’ at                Action, at 2; see also Supplemental                   proceeding brought by the State of
                                                the address of ‘‘8785 Warm Springs                      Declaration of Diversion Investigator, at             Nevada against Registrant. GX 3A, at 1.
                                                Rd.[,] Suite 109, Las Vegas, NV.’’ Id. The              1–2.                                                  The indictment charged Registrant with,
                                                Order also alleged that his registration                   On July 31, 2017, the Government                   inter alia, four counts of sexual assault;
                                                ‘‘expires . . . on August 31, 2017.’’ Id.               submitted a Request for Final Agency                  one count of battery with intent to
                                                   As to the substantive grounds for the                Action (RFAA) and an investigative                    commit a sexual assault; one count of
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                                                proceeding, the Show Cause Order                        record, and on August 16, 2017, it                    attempted sexual assault; and four
                                                alleged that ‘‘[o]n May 22, 2017,                       submitted a Supplemental Request for                  counts of administering controlled
                                                [Registrant was] found guilty of                        Final Agency Action. Therein, the                     substances including ketamine and/or
                                                engaging in a scheme related to [his]                   Government seeks revocation of                        midazolam, to aid in the commission of
                                                administering ketamine to sedate                        Registrant’s registration pursuant to                 a felony (sexual assault and/or a
                                                patients and then raping them in [his]                  each of the three grounds set forth                   kidnapping). Id. at 2–5. On May 22,
                                                medical office.’’ Id. The Order alleged                 above.                                                2017, following a trial, a jury found


                                           VerDate Sep<11>2014   17:40 Aug 24, 2017   Jkt 241001   PO 00000   Frm 00064   Fmt 4703   Sfmt 4703   E:\FR\FM\25AUN1.SGM   25AUN1


                                                40602                         Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices

                                                Registrant guilty of each of the counts                 the laws of the State in which a                        Nevada, be, and it hereby is, denied.
                                                set forth above with the exception of                   practitioner engages in professional                    This Order is effective immediately.2
                                                one count of administering controlled                   practice is a fundamental condition for                   Dated: August 17, 2017.
                                                substances to aid in the commission of                  both obtaining and maintaining a                        Chuck Rosenberg,
                                                a felony. Id. at 9 (verdict form). The                  practitioner’s registration, ‘‘revocation is            Acting Administrator.
                                                Government did not, however, submit a                   warranted even where a practitioner’s                   [FR Doc. 2017–18081 Filed 8–24–17; 8:45 am]
                                                judgment of conviction, and it is unclear               state authority has been summarily
                                                                                                                                                                BILLING CODE 4410–09–P
                                                as to whether a judgment of conviction                  suspended and the State has yet to
                                                has been entered by the state court.                    provide the practitioner with a hearing
                                                Discussion                                              to challenge the State’s action at which
                                                                                                                                                                NATIONAL SCIENCE FOUNDATION
                                                                                                        he may ultimately prevail.’’ Kamal
                                                   Pursuant to 21 U.S.C. 824(a)(3), the
                                                                                                        Tiwari, 76 FR 71604, 71606 (2011); see                  Agency Information Collection
                                                Attorney General is authorized to
                                                                                                        also Bourne Pharmacy, Inc., 72 FR                       Activities: Comment Request
                                                suspend or revoke a registration issued
                                                under section 823, ‘‘upon a finding that                18273, 18274 (2007); Anne Lazar Thorn,
                                                                                                        62 FR 12847 (1997).                                     AGENCY:National Science Foundation.
                                                the Registrant . . . has had his State                                                                                Submission for OMB review;
                                                                                                                                                                ACTION:
                                                license . . . suspended [or] revoked                      As a result of the Nevada Board’s June
                                                                                                                                                                comment request.
                                                . . . by competent State authority and is               2015 Order of Summary Suspension,
                                                no longer authorized by State law to                    Registrant is not currently authorized to               SUMMARY:   The National Science
                                                engage in the . . . dispensing of                       dispense controlled substances in                       Foundation (NSF) has submitted the
                                                controlled substances.’’ Moreover, DEA                  Nevada, the State in which he is                        following information collection
                                                has held repeatedly that the possession                 registered. Accordingly, I will order that              requirement to OMB for review and
                                                of authority to dispense controlled                     his registration be revoked and that any                clearance under the Paperwork
                                                substances under the laws of the State                  pending application to renew his                        Reduction Act of 1995 on the National
                                                in which a practitioner engages in                      registration, or for any other registration             Science Foundation Proposal and
                                                professional practice is a fundamental                  in the State of Nevada be denied.1                      Award Policies and Procedures Guide.
                                                condition for obtaining and maintaining                                                                         NSF may not conduct or sponsor a
                                                a practitioner’s registration. See, e.g.,               Order                                                   collection of information unless the
                                                James L. Hooper, 76 FR 71371 (2011),                                                                            collection of information displays a
                                                                                                           Pursuant to the authority vested in me
                                                pet. for rev. denied, 481 Fed Appx. 826                                                                         currently valid OMB control number
                                                (4th Cir. 2012).                                        by 21 U.S.C. 824(a), as well as 28 CFR
                                                                                                                                                                and the agency informs potential
                                                   This rule derives from the text of two               0.100(b), I order that DEA Certificate of
                                                                                                                                                                persons who are to respond to the
                                                provisions of the CSA. First, Congress                  Registration No. BC9308936 issued to                    collection of information that such
                                                defined ‘‘the term ‘practitioner’ [to]                  Binh M. Chung, M.D., be, and it hereby                  persons are not required to respond to
                                                mean[] a . . . physician . . . or other                 is, revoked. I further order that any                   the collection of information unless it
                                                person licensed, registered or otherwise                application of Binh M. Chung, M.D., to                  displays a currently valid OMB control
                                                permitted, by . . . the jurisdiction in                 renew or modify this registration, or for               number.
                                                which he practices . . . to distribute,                 any other registration in the State of
                                                                                                                                                                DATES: Comments regarding these
                                                dispense, [or] administer . . . a                                                                               information collections are best assured
                                                controlled substance in the course of                      1 While the Government also sought revocation
                                                                                                                                                                of having their full effect if received
                                                professional practice.’’ 21 U.S.C.                      on the ground that Registrant has been convicted of
                                                                                                        an offense related to controlled substances, it         September 25, 2017.
                                                802(21). Second, in setting the                         produced evidence only as to the existence of a jury    ADDRESSES: Comments should be
                                                requirements for obtaining a                            verdict and not the existence of a judgment of          addressed to: Office of Information and
                                                practitioner’s registration, Congress                   conviction. The Agency has previously noted that
                                                                                                        the term ‘‘conviction’’ could mean either ‘‘a           Regulatory Affairs of OMB, Attention:
                                                directed that ‘‘[t]he Attorney General
                                                                                                        judgment of conviction or simply a finding of guilty    Desk Officer for National Science
                                                shall register practitioners . . . if the               which precedes the entry of a final judgment of         Foundation, 725 17th Street NW., Room
                                                applicant is authorized to dispense . . .               conviction.’’ Roger A. Pellman, 76 FR 17704, 17709      10235, Washington, DC 20503, and to
                                                controlled substances under the laws of                 n.10 (citing Deal v. United States, 508 U.S. 129, 131
                                                                                                        (1993)). The Government, however, makes no              Suzanne H. Plimpton, Reports Clearance
                                                the State in which he practices.’’ 21
                                                                                                        argument as to why, in the context of the CSA’s         Officer, National Science Foundation,
                                                U.S.C. 823(f). Because Congress has                     registration provisions, the term includes a finding    4201 Wilson Boulevard, Suite 1265,
                                                clearly mandated that a physician                       of guilty even where no final judgment has been         Arlington, Virginia 22230 or send email
                                                possess state authority in order to be                  entered.
                                                                                                                                                                to splimpto@nsf.gov. Individuals who
                                                deemed a practitioner under the Act,                       The Government also sought revocation under the
                                                                                                        public interest standard, arguing that his ‘‘conduct    use a telecommunications device for the
                                                DEA has held that revocation of a
                                                                                                        demonstrates [his] negative experience in               deaf (TDD) may call the Federal
                                                practitioner’s registration is the                      dispensing controlled substances and non-               Information Relay Service (FIRS) at 1–
                                                appropriate sanction whenever he is no                  compliance with state law relating to controlled
                                                                                                                                                                800–877–8339, which is accessible 24
                                                longer authorized to dispense controlled                substances under the public interest factors.’’
                                                                                                        RFAA, at 5. However, because the Government             hours a day, 7 days a week, 365 days a
                                                substances under the laws of the State
                                                                                                        produced no evidence that the court has entered a       year (including federal holidays).
                                                in which he practices medicine. See,                    judgment of conviction, the jury’s findings are not
                                                e.g., Calvin Ramsey, 76 FR 20034, 20036                                                                         FOR FURTHER INFORMATION CONTACT:
                                                                                                        entitled to preclusive effect. Cf. Restatement
                                                (2011); Sheran Arden Yeates, M.D., 71                   (Second) of Judgments, § 27 (‘‘When an issue of fact    Suzanne Plimpton, Reports Clearance
                                                                                                        or law is actually litigated and determined by a        Officer, 703–292–7556.
sradovich on DSK3GMQ082PROD with NOTICES




                                                FR 39130, 39131 (2006); Dominick A.
                                                                                                        valid and final judgment, and the determination is      SUPPLEMENTARY INFORMATION: This is the
                                                Ricci, 58 FR 51104, 51105 (1993); Bobby                 essential to the judgment, the determination is
                                                Watts, 53 FR 11919, 11920 (1988); see                   conclusive in a subsequent action . . . whether on      second notice for public comment; the
                                                also Hooper v. Holder, 481 Fed. Appx.                   the same or a different claim.’’). Similarly, because
                                                                                                        the Board’s suspension order was based on its             2 For the same reasons which led the Board to
                                                at 828.
                                                                                                        preliminary findings, and there is no evidence that     immediately suspend Registrant’s registration, I
                                                   Also, because the CSA makes clear                    the Board has issued a final decision affirming these   conclude that the public interest necessitates that
                                                that the possession of authority to                     findings, these findings cannot support revocation      this Order be effective immediately. 21 CFR
                                                dispense controlled substances under                    under the public interest standard.                     1316.67.



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Document Created: 2018-10-24 12:40:33
Document Modified: 2018-10-24 12:40:33
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 40601 

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