83_FR_27742 83 FR 27628 - Gazelle A. Craig, D.O.; Decision and Order

83 FR 27628 - Gazelle A. Craig, D.O.; Decision and Order

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 114 (June 13, 2018)

Page Range27628-27632
FR Document2018-12686

Federal Register, Volume 83 Issue 114 (Wednesday, June 13, 2018)
[Federal Register Volume 83, Number 114 (Wednesday, June 13, 2018)]
[Notices]
[Pages 27628-27632]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-12686]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Gazelle A. Craig, D.O.; Decision and Order

    On September 20, 2017, the Acting Assistant Administrator, 
Diversion Control Division, Drug Enforcement Administration 
(hereinafter, DEA or Government), issued an Order to Show Cause to 
Gazelle A. Craig, D.O. (hereinafter, Respondent), of Houston, Texas. GX 
2 (Order to Show Cause). The Show Cause Order proposed the revocation 
of Respondent's Certificate of Registration on the ground that she does 
``not have authority to handle controlled substances in the State of 
Texas, the [S]tate in which . . . [she is] registered with the DEA.'' 
Id. at 1 (citing 21 U.S.C. 823(f) and 824(a)(3)).
    As to the Agency's jurisdiction, the Show Cause Order alleged that 
Respondent holds DEA Certificate of Registration No. FC1384306, which 
authorizes her to dispense controlled substances in schedules II 
through V as a practitioner, at the registered address of Gulfton 
Community Health Center, 6306 Gulfton St., Suite 101, Houston, Texas 
77081. Id. The Show Cause Order alleged that this registration expires 
on August 31, 2018. Id.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that Respondent is ``without authority to handle controlled 
substances in the State of Texas, the [S]tate in which . . . [she is] 
registered . . . with the DEA.'' Id. It further alleged that, on July 
28, 2017, the Texas Medical Board temporarily suspended Respondent's 
medical license and that the Texas Medical Board order remains in 
effect. Id. The Show Cause Order asserted that Respondent is ``required 
to possess authority from a [S]tate in order to obtain or retain a DEA 
Registration. . . . [and c]onsequently, the DEA must revoke . . . [her 
registration] based upon [her] lack of authority to handle controlled 
substances in the State of Texas.'' Id. at 1-2.
    The Show Cause Order notified Respondent of her right to request a 
hearing on the allegations or to submit a written statement while 
waiving her right to a hearing, the procedures for electing each 
option, and the consequences for failing to elect either option. Id. at 
2 (citing 21 CFR 1301.43). The Show Cause Order also notified 
Respondent of the opportunity to submit a Corrective Action Plan. Id. 
at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).

[[Page 27629]]

    According to the Declaration of a DEA Diversion Investigator 
(hereinafter, DI), on September 20, 2017, he mailed the Show Cause 
Order to Respondent's ``residential address . . . where . . . [he] had 
previously interacted with . . . [her] in conjunction with a search 
warrant.'' GX 3, at 1-2 (DI Declaration, Dec. 5, 2017). Attached to his 
Declaration was a ``copy of the return receipt [card] showing that the 
certified mail . . . was delivered on October 3, 2017.'' Id. at 2. 
However, the return receipt card was signed by someone other than 
Respondent.\1\ GX 3, Attachment D, at 1.
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    \1\ In proceedings before the Administrative Law Judge, the 
Government submitted evidence that it also mailed the Show Cause 
Order by regular first class mail to Respondent's registered address 
on September 20, 2017 and that this mailing was not returned as 
undeliverable. GX 6, at 2.
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    On November 21, 2017, the Office of Administrative Law Judges 
(OALJ) received a Request for Hearing from an attorney representing 
Respondent.\2\ GX 4, at 1. Therein, Respondent admitted that her 
``license to practice medicine in the [S]tate of Texas is suspended,'' 
but represented that ``she maintains an active and unrestricted license 
to practice medicine in the State of New York.'' Id. at 1. Respondent 
also represented that, ``[o]n or about September 2017, [she] modified 
her practice address'' from Houston, Texas to New York, NY, and that 
she ``has modified her registration to reflect her practice address as 
the address indicated above to the State of New York.'' Id. Respondent 
further stated that prior to modifying her practice address to her 
Houston location, she practiced at the New York address she referenced 
in her Request. Id. Under the heading of ``CORRECTIVE ACTION PLAN,'' 
the Hearing Request stated that Respondent ``submits this modification 
of her practice address as a corrective action plan to the continuation 
of her DEA controlled substance registration.'' Id.
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    \2\ While the hearing request was dated November 15, 2017, under 
DEA's regulation, ``[d]ocuments shall be dated and deemed filed upon 
receipt by the Hearing Clerk.'' 21 CFR 1316.45. The Show Cause Order 
also notified Respondent that ``[m]atters are deemed filed upon 
receipt by the Hearing Clerk.'' GX 2, at 2.
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    Upon receipt of Respondent's Hearing Request, the matter was 
assigned to Administrative Law Judge (ALJ) Charles Wm. Dorman, who 
issued an order captioned as ``Briefing Schedule for Lack of State 
Authority Allegations.'' GX 6, at 1. In this order, the ALJ noted the 
respective dates of the Show Cause Order and the receipt of the Hearing 
Request and further directed the Government to ``submit evidence of the 
date of service of the'' Show Cause Order ``by December 5, 2017.'' Id. 
The ALJ also ordered that if the Government moved to terminate the 
proceeding, it must file its motion ``by the same date'' and that 
Respondent's response was due ``by 2:00 p.m. Eastern Standard Time . . 
. on December 12, 2017.'' Id.
    According to the ALJ's Termination Order (Dec. 14, 2017), on 
December 5, 2017, ``[t]he Government timely filed'' its Termination 
Request wherein ``it argued that . . . Respondent filed her Hearing 
Request more than 30 days after the date of service of the'' Show Cause 
Order. Id. The ALJ further noted that, ``[as] of the date of'' his 
Termination Order, ``Respondent had not filed a response to the 
Government's Termination Request.'' Id. at 2.
    As grounds for finding waiver, the ALJ noted that ``[a]lthough 
there is no evidence of when the Respondent received the'' Show Cause 
Order that was sent by regular mail to her registered location, ``the 
fact that [it] was not returned as undeliverable establishes the 
presumption of receipt.'' Id. (citing Net Wholesale, 70 FR 24626 
(2005)). The ALJ then noted that ``given that it was mailed on 
September 20, [2017,] it is highly likely that it was delivered before 
October 15, 2017.'' Id. at 2. The ALJ further noted, that 
``[n]otwithstanding this uncertainty, there is evidence that the 
Respondent received the [Show Cause Order] at her residential address 
on October 3, 2017.'' Id. The ALJ explained that, ``[b]ased on this 
date, the Hearing Request should have been filed by November 3, 2017, 
in order to be timely,'' but ``[t]he Hearing Request . . . was not 
received by the OALJ, and therefore not filed, until November 21, 
2017.'' Id. The ALJ thus found that ``Respondent's hearing Request was 
filed more than 30 days after the [Show Cause Order] was served.'' Id.
    The ALJ then noted that ``[f]ailing to show good cause for an 
untimely hearing request constitutes a waiver of the right to a 
hearing.'' Id. (citing Shannon L. Gallentine, 76 FR 45864, 45864 
(2011); Gilbert E. Johnson, 75 FR 65663, 65663-64 (2010)). Because 
Respondent did not file a response to the Government's Termination 
Request, the ALJ found that Respondent failed to show good cause to 
excuse the untimely filing of her Hearing Request and had waived her 
right to a hearing. Id. The ALJ thus granted the Government's motion 
and terminated the proceedings before his Office. Id.
    On December 22, 2017, the Government filed its Request for Final 
Agency (RFAA) along with an investigative record in support of its 
proposed action. RFAA, at 6. Therein, the Government seeks revocation 
of Respondent's Certificate of Registration on the ground that she is 
registered in the State of Texas, where she no longer has authority to 
dispense controlled substances. Id. at 4-6. While the Government 
further notes that Respondent attempted to change the address of her 
registration to a location in New York State, it argues that her 
``attempt to change addresses . . . was made only after being served 
with the [Show Cause Order and] should not serve as a basis to prevent 
revocation of her'' Registration. Id. at 4. The Government further 
argues that ``pursuant to 21 CFR 1301.51(c), this attempted 
modification is to be treated as an application for a registration.'' 
Id.
    Having considered the record in its entirety, I grant the 
Government's Request to revoke Respondent's Certificate of 
Registration. While I agree with the Government that Respondent's 
attempt to modify her registered location to an address in the State of 
New York is to be treated as a new application, I find that this 
application remains pending before the Agency. I also conclude that 
because the Government seeks revocation of her existing registration 
solely on the basis that Respondent lacks authority to dispense 
controlled substances in Texas, her application for registration in New 
York must be the subject of separate proceedings.

The Waiver Finding

    As discussed above, the ALJ found that ``there is evidence that the 
Respondent received the [Show Cause Order] at her residential address 
on October 3, 2017,'' and ``[b]ased on this date, the Hearing Request 
should have been filed by November 3, 2017, in order to be timely.'' GX 
6, at 2 (citing 21 CFR 1301.43(a)). The ALJ also found that 
Respondent's Hearing Request was untimely based on the fact that it was 
not received by his Office until November 21, 2017. Id. Notwithstanding 
that the return receipt card is signed by someone other than Respondent 
and that under the Agency's regulations, the timeliness of a hearing 
request is based on the request being filed ``within 30 days after the 
date of receipt of the order to show cause,'' 21 CFR 1301.43(a), I 
agree with each of the ALJ's findings.
    While DEA has not specifically addressed the issue of when the 
clock starts to run for purposes of assessing the timeliness of a 
hearing request where someone other than the subject of a Show Cause 
Order signs the return receipt card, the federal courts have long 
recognized that ``a `strong

[[Page 27630]]

presumption' of receipt applies when notice is sent by certified mail, 
because it creates actual evidence of delivery in the form of a 
receipt.'' Lupyan v. Corinthian Colleges Inc., 761 F.3d 14 (3d Cir. 
2014) (quoting Santana Gonzales v. Att'y Gen., 506 F.3d 274, 279 (3d 
Cir. 2007). To similar effect, the Fifth Circuit has explained that 
``[p]roof that a letter properly directed was placed in a U.S. post 
office mail receptacle creates a presumption that it reached its 
destination in the usual time and was actually received by the person 
to whom it was addressed.'' Beck v. Somerset Technologies, Inc., 882 
F.2d 993, 996 (5th Cir. 1989). As the Fifth Circuit further explained 
in discussing the evidence of delivery in Beck:

    The record contains a copy of the properly addressed letter, a 
certified mail receipt and signed return post cards. Accordingly, we 
hold there was sufficient evidence to create a presumption that the 
letter was received . . . in the due course of the mail. Thus, the 
burden of producing evidence of non-delivery shifted to Beck.

Id.

    To be sure, this rule `` `is not a conclusive presumption of law.' 
'' Lupyan, 761 F.3d at 319 (quoting Rosenthal v. Walker, 111 U.S. 185, 
193 (1884)). ``Rather, it is a rebuttable `inference of fact. ''' Id.; 
see also Beck, 882 F.2d at 996; \3\ Cf. Morgan v. Potter, 489 F.3d 195, 
197 n.1 (5th Cir. 2005) (noting that while ``the presumption can 
certainly be overcome,'' plaintiff provided no evidence to establish 
the date she claimed to have received right to sue letter and ``never 
made such a claim or presented such evidence to the district court'').
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    \3\ In Vincent G. Colosimo, an applicant for registration was 
issued a Show Cause Order which was served by Certified Mail 
addressed to his proposed registered location. 79 FR 20911, 20912 
(2014). The applicant filed a hearing request which was received by 
the OALJ one day late and therefore deemed untimely by the ALJ, who 
ordered the parties to address whether there was good cause to 
excuse the late filing. Id.
     Thereafter, the Government argued that the respondent's Hearing 
Request was untimely and that he had not shown good cause. Id. The 
respondent filed a statement wherein he asserted that the mailing 
containing the Show Cause Order had been signed for by another 
person at his office, that because it appeared to be of a legal 
nature, the mailing was sent to his employer's administrative 
office, and that he had only received it shortly before the due date 
of his hearing request. Id.; see also Vincent G. Colosimo, ALJ 
Termination Order, at 4. The ALJ nonetheless terminated the 
proceeding finding that the respondent had failed to show good cause 
for the untimely filing of his hearing request. Colosimo, 79 FR at 
20912.
     The Government then submitted a Request for Final Agency 
Action. Id. On review, the Administrator vacated the ALJ's 
termination order and rejected the Government's Request for Final 
Agency Action. The Administrator explained that while the respondent 
had not supported by affidavit the various factual assertions he had 
made in response to the ALJ's order directing the parties to address 
the timeliness of the hearing request, she further ``held that if 
those assertions were supported, [respondent would] demonstrate good 
cause.'' Id. Of note, the Agency did not hold that the date of 
receipt commenced on the date on which the respondent actually 
received the Show Cause Order rather than the date on which the 
certified mail was received at the respondent's proposed 
registration location. Id.
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    In this matter, while the ALJ provided Respondent with the 
opportunity to respond to the Government's Termination Request, she has 
entirely failed to respond, let alone provide evidence to rebut the 
presumption that she received the Show Cause Order on the date the 
mailing was signed for. Because I find that the mailing was properly 
addressed to Respondent's residence and delivered on October 3, 2017, 
and Respondent produced no evidence to rebut the presumption that she 
received the mailing on this date, I find that Respondent received the 
Show Cause Order on October 3, 2017. I further find that more than 30 
days have since passed since the date of service of the Show Cause 
Order, and that Respondent has waived both her right to a hearing as 
well as her right to submit a written statement of position on the 
matters of fact and law asserted in the Show Cause Order while waiving 
her right to a hearing. 21 CFR 1301.43(a), (c), (d).\4\ I make the 
following additional finding of fact.
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    \4\ I also agree with the ALJ's finding that Respondent has 
failed to show good cause to excuse the untimely filing of her 
Hearing Request and has therefore waived her right to a hearing for 
this reason as well.
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Findings of Fact

Respondent's DEA Registration

    Respondent is the holder of DEA Certificate of Registration No. 
FC1384306, pursuant to which she is authorized to dispense controlled 
substances in schedules II through V as a practitioner, at the 
registered address of Gulfton Community Health Center, 6306 Gulfton 
St., Suite 101, Houston, TX 77081. GX 1. This registration does not 
expire until August 31, 2018. Id.
    According to the Acting Unit Chief of the Agency's Registration and 
Program Support Section, on three different occasions following service 
of the Show Cause Order, Respondent attempted to change her registered 
location from the above address to an address in New York, NY. GX 5. 
According to the Acting Unit Chief, Respondent was unable to change her 
registered location and remains registered at the Houston, Texas 
location. Id. I further find, however, that Respondent's attempts to 
modify her registered location are deemed applications for a new 
registration in the State of New York. 21 CFR 1301.51(c) (``The request 
for modification shall be handled in the same manner as an application 
for registration.'').

The Status of Respondent's Texas License

    On July 28, 2017, a Disciplinary Panel of the Texas Medical Board 
entered an Order of Temporary Suspension (hereinafter, Board's Order) 
of Respondent's Texas Medical License. GX 3, at Attachment A. The 
Board's Order ``remain[s] in effect until it is superseded by a 
subsequent Order of the Texas Medical Board.'' Id. at 5.
    The Board's Order was based on fact findings related to 
Respondent's operation of an unregistered pain management clinic. Id. 
at 2. These findings included that, on August 31, 2016, the Board filed 
a Complaint with the Texas Office of Administrative Hearings alleging 
that Respondent and her prescriptive delegates ``prescribed controlled 
medications to ten patients in a manner inconsistent with public health 
[and] welfare, failed to meet the standard of care in the care and 
treatment of the patients, . . . failed to keep adequate medical 
records for the patients,'' and ``failed to supervise her prescriptive 
delegates adequately.'' Id. The Board's Order also found that the 
Board's expert had reviewed ten patient cases and concluded that 
``Respondent's prescriptions for controlled substances were not 
provided for a legitimate medical purpose.'' Id.
    Next, the Board's Order found that, on July 6, 2017, Respondent was 
indicted in the United District Court for the Southern District of 
Texas on felony charges of conspiracy to distribute and dispense 
controlled substances unlawfully, as well as aiding and abetting the 
unlawful distribution and dispensing of controlled substances at her 
pain clinic. Id. The Board's Order also found that following her 
arrest, Respondent signed an Order Setting Conditions of Release, which 
``restricts [her] from employment in a pain management clinic[ ] [and] 
from writing prescriptions for any schedule II or IV drug, and from 
writing prescriptions for any opioid in schedule II.'' Id. Based on a 
Prescriber Activity Report obtained from the State's Prescription 
Monitoring Program, the Board's Order found that since her release from 
custody on July 10, 2017, ``eight prescriptions for schedule IV 
controlled substances (Carisoprodol and Alprazolam) and 21 
prescriptions for Promethazine/Codeine syrup were issued under her DEA 
registration number.'' Id. at 3. Based on the Prescriber Activity 
Report, the Board's Order also found that from

[[Page 27631]]

April 26, 2016 through July 26, 2017, Respondent issued over 10,300 
prescriptions for Hydrocodone/Acetaminophen 10/325 mg and over 10,400 
prescriptions for Carisoprodol 350 mg. Id. at 2.
    The Board thus found that ``Respondent's continuation in the 
practice of medicine poses a continuing threat to public welfare.'' Id. 
at 3. Based on these findings, the Panel found ``an imminent peril to 
the public health, safety, or welfare that requires immediate effect 
of'' its Order, id., and temporarily suspended Respondent's medical 
license. Id. at 5.
    I take official notice of the online records of the Texas Medical 
Board. See 5 U.S.C. 556(e). According to the Board's records, the 
temporary suspension of Respondent's medical license remains in effect 
as of the date of this Decision and Order.\5\
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    \5\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Respondent may dispute my finding by filing 
a properly supported motion for reconsideration within 15 calendar 
days of the date of this Order. Any such motion shall be filed with 
the Office of the Administrator and a copy shall be served on the 
Government. In the event Respondent files a motion, the Government 
shall have seven calendar days to file a response.
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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 (hereinafter, CSA), ``upon a finding that the 
registrant . . . has had . . . [her] State License or registration 
suspended [or] revoked by competent State authority and is no longer 
authorized by State law to engage in the . . . dispensing of controlled 
substances.'' With respect to a practitioner, DEA has also long held 
that the possession of authority to dispense controlled substances 
under the laws of the State in which a practitioner engages in 
professional practice is a fundamental condition for obtaining and 
maintaining a practitioner's registration. See, e.g., James L. Hooper, 
M.D., 76 FR 71371 (2011), pet. for rev. denied, 481 Fed. Appx. 826 (4th 
Cir. 2012); Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (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 [s]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 . . . 
[she] 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 CSA, the Agency has held repeatedly 
that revocation of a practitioner's registration is the appropriate 
sanction whenever she is no longer authorized to dispense controlled 
substances under the laws of the State in which she practices. See, 
e.g., Hooper, supra, 76 FR at 71371-72; Sheran Arden Yeates, M.D., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105 
(1993); Bobby Watts, 53 FR 11919, 11920 (1988); Blanton, supra, 43 FR 
at 27617.
    Under the Texas Controlled Substances Act, a ``practitioner'' 
includes a ``physician'' who is licensed ``to dispense . . . or 
administer a controlled substance in the course of professional 
practice.'' Tex. Controlled Substances Act Sec.  481.002(39)(A). Under 
the Texas Medical Practice Act, a ``physician'' is ``a person licensed 
to practice medicine,'' Tex. Occ. Code Sec.  151.002(a)(12), and 
``practicing medicine'' means the ``diagnosis, treatment, or offer to 
treat a . . . disease . . . by any system or method.'' Id. Sec.  
151.002(a)(13). Moreover, a ``person may not practice medicine in th[e] 
state unless the person holds a license issued under'' the Medical 
Practice Act, id. Sec.  155.001, and ``[a] person commits an offense if 
the person practices medicine in this state in violation of'' the Act. 
Id. Sec.  165.152.(a).
    As found above, Respondent's Texas medical license remains 
temporarily suspended. I therefore find that Respondent is currently 
without authority to dispense controlled substances under the laws of 
Texas, the State in which she is registered with the Agency.
    Moreover, because ``the controlling question'' in a proceeding 
brought under 21 U.S.C. 824(a)(3) is whether the holder of a DEA 
registration ``is currently authorized to handle controlled substances 
in the [S]tate,'' Hooper, 76 FR at 71371 (quoting Anne Lazar Thorn, 62 
FR 12847, 12848 (1997)), the Agency has long held that revocation is 
warranted even where a practitioner has lost his state authority by 
virtue of the State's use of summary process and the State has yet to 
provide a hearing to challenge the suspension. Bourne Pharmacy, 72 FR 
18273, 18274 (2007); Wingfield Drugs, 52 FR 27070, 27071 (1987). Thus, 
it is of no consequence that the Texas Board has employed summary 
process in suspending Respondent's state license. See Judson J. 
Somerville, M.D., 82 FR 21408, 21410 (2017); Rezik A. Saqer, 81 FR 
22122, 22126 (2016). What is consequential is that Registrant is no 
longer currently authorized to dispense controlled substances in Texas, 
the State in which she is registered. See Somerville, 82 FR at 18274; 
Saqer, 81 FR 22126. I will therefore order that her registration be 
revoked.
    While this Order resolves the issue of Respondent's entitlement to 
maintain her DEA registration, as found above, Respondent attempted to 
modify her registered address to a location in the State of New York. 
As the Government acknowledges, these requests for modification are 
treated as new applications for registration. RFAA, at 4; see also 21 
CFR 1301.51(c). The record submitted to my Office provides no 
indication that the Government sought denial of these applications 
(which were submitted subsequent to the service of the Show Cause 
Order) in this proceeding, and in any event, the ground offered by the 
Government for revoking her Texas registration, which rests exclusively 
on the summary suspension of her Texas Medical License, does not 
support denial of her New York applications. Those applications remain 
pending before the Agency and must be the subject of a separate 
proceeding if the Government seeks to deny them.\6\
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    \6\ Because Respondent's Corrective Action Plan is simply to 
modify her registered location to the New York address, I conclude 
that consideration of her plan should be considered by the 
Government in the course of evaluating her New York applications.
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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. 
FC1384306, issued to Gazelle Craig, M.D., be, and it hereby is, 
revoked. This Order is effective immediately.\7\
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    \7\ Based on the Texas Board's finding that Respondent poses 
``an imminent peril to the public health, safety, or welfare that 
requires immediate effect of'' the suspension order, I find that the 
public interest necessitates that this Order be effective 
immediately. 21 CFR 1316.67.


[[Page 27632]]


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    Dated: June 1, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-12686 Filed 6-12-18; 8:45 am]
 BILLING CODE 4410-09-P



                                              27628                        Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices

                                              statement of the reasons why the                        DATES:  Registered bulk manufacturers of                Control Division, Drug Enforcement
                                              Commission should grant such                            the affected basic classes, and                         Administration (hereinafter, DEA or
                                              treatment. See 19 CFR 201.6. Documents                  applicants therefore, may file written                  Government), issued an Order to Show
                                              for which confidential treatment by the                 comments on or objections to the                        Cause to Gazelle A. Craig, D.O.
                                              Commission is properly sought will be                   issuance of the proposed registration on                (hereinafter, Respondent), of Houston,
                                              treated accordingly. All such requests                  or before August 13, 2018.                              Texas. GX 2 (Order to Show Cause). The
                                              should be directed to the Secretary to                  ADDRESSES: Written comments should                      Show Cause Order proposed the
                                              the Commission and must include a full                  be sent to: Drug Enforcement                            revocation of Respondent’s Certificate of
                                              statement of the reasons why the                        Administration, Attention: DEA Federal                  Registration on the ground that she does
                                              Commission should grant such                            Register Representative/DRW, 8701                       ‘‘not have authority to handle controlled
                                              treatment. See 19 CFR 201.6. Documents                  Morrissette Drive, Springfield, Virginia                substances in the State of Texas, the
                                              for which confidential treatment by the                 22152.                                                  [S]tate in which . . . [she is] registered
                                              Commission is properly sought will be
                                                                                                      SUPPLEMENTARY INFORMATION:      The                     with the DEA.’’ Id. at 1 (citing 21 U.S.C.
                                              treated accordingly. All information,
                                                                                                      Attorney General has delegated his                      823(f) and 824(a)(3)).
                                              including confidential business                         authority under the Controlled
                                              information and documents for which                                                                                As to the Agency’s jurisdiction, the
                                                                                                      Substances Act to the Administrator of
                                              confidential treatment is properly                                                                              Show Cause Order alleged that
                                                                                                      the Drug Enforcement Administration
                                              sought, submitted to the Commission for                 (DEA), 28 CFR 0.100(b). Authority to                    Respondent holds DEA Certificate of
                                              purposes of this Investigation may be                   exercise all necessary functions with                   Registration No. FC1384306, which
                                              disclosed to and used: (i) By the                       respect to the promulgation and                         authorizes her to dispense controlled
                                              Commission, its employees and Offices,                  implementation of 21 CFR part 1301,                     substances in schedules II through V as
                                              and contract personnel (a) for                          incident to the registration of                         a practitioner, at the registered address
                                              developing or maintaining the records                   manufacturers, distributors, dispensers,                of Gulfton Community Health Center,
                                              of this or a related proceeding, or (b) in              importers, and exporters of controlled                  6306 Gulfton St., Suite 101, Houston,
                                              internal investigations, audits, reviews,               substances (other than final orders in                  Texas 77081. Id. The Show Cause Order
                                              and evaluations relating to the                         connection with suspension, denial, or                  alleged that this registration expires on
                                              programs, personnel, and operations of                  revocation of registration) has been                    August 31, 2018. Id.
                                              the Commission including under 5                        delegated to the Assistant Administrator
                                              U.S.C. Appendix 3; or (ii) by U.S.                                                                                 As the substantive ground for the
                                                                                                      of the DEA Diversion Control Division                   proceeding, the Show Cause Order
                                              government employees and contract                       (‘‘Assistant Administrator’’) pursuant to
                                              personnel,2 solely for cybersecurity                                                                            alleged that Respondent is ‘‘without
                                                                                                      section 7 of 28 CFR part 0, appendix to
                                              purposes. All nonconfidential written                                                                           authority to handle controlled
                                                                                                      subpart R.
                                              submissions will be available for public                   In accordance with 21 CFR                            substances in the State of Texas, the
                                              inspection at the Office of the Secretary               1301.33(a), this is notice that on May                  [S]tate in which . . . [she is] registered
                                              and on EDIS.3                                           3rd, 2018, Alcami Wisconsin                             . . . with the DEA.’’ Id. It further
                                                 This action is taken under the                       Corporation, W130 N10497 Washington                     alleged that, on July 28, 2017, the Texas
                                              authority of section 337 of the Tariff Act              Dr., Germantown, WI 53022 applied to                    Medical Board temporarily suspended
                                              of 1930, as amended (19 U.S.C. 1337),                   be registered as a bulk manufacturer of                 Respondent’s medical license and that
                                              and of §§ 201.10 and 210.8(c) of the                    the following basic classes of controlled               the Texas Medical Board order remains
                                              Commission’s Rules of Practice and                      substances:                                             in effect. Id. The Show Cause Order
                                              Procedure (19 CFR 201.10, 210.8(c)).                                                                            asserted that Respondent is ‘‘required to
                                                By order of the Commission.                                 Controlled                                        possess authority from a [S]tate in order
                                                                                                                               Drug code          Schedule
                                                                                                            substance                                         to obtain or retain a DEA
                                                Issued: June 7, 2018.
                                              Lisa Barton,                                            Thebaine ...........               9333    II           Registration. . . . [and c]onsequently,
                                              Secretary to the Commission.                            Alfentanil ...........             9737    II           the DEA must revoke . . . [her
                                              [FR Doc. 2018–12651 Filed 6–12–18; 8:45 am]
                                                                                                                                                              registration] based upon [her] lack of
                                                                                                        The company plans to provide bulk                     authority to handle controlled
                                              BILLING CODE 7020–02–P
                                                                                                      active pharmaceutical ingredient to                     substances in the State of Texas.’’ Id. at
                                                                                                      support clinical trials.                                1–2.
                                              DEPARTMENT OF JUSTICE                                     Dated: June 6, 2018.                                     The Show Cause Order notified
                                                                                                      John J. Martin,                                         Respondent of her right to request a
                                              Drug Enforcement Administration                         Assistant Administrator.                                hearing on the allegations or to submit
                                                                                                      [FR Doc. 2018–12684 Filed 6–12–18; 8:45 am]             a written statement while waiving her
                                              [Docket No. DEA–392]
                                                                                                      BILLING CODE 4410–09–P                                  right to a hearing, the procedures for
                                              Bulk Manufacturer of Controlled                                                                                 electing each option, and the
                                              Substances Application: Alcami                                                                                  consequences for failing to elect either
                                              Wisconsin Corporation                                   DEPARTMENT OF JUSTICE                                   option. Id. at 2 (citing 21 CFR 1301.43).
                                                                                                                                                              The Show Cause Order also notified
                                              ACTION:   Notice of application.                        Drug Enforcement Administration
                                                                                                                                                              Respondent of the opportunity to
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                                                                                                      Gazelle A. Craig, D.O.; Decision and                    submit a Corrective Action Plan. Id. at
                                                2 All contract personnel will sign appropriate        Order                                                   2–3 (citing 21 U.S.C. 824(c)(2)(C)).
                                              nondisclosure agreements.
                                                3 Electronic Document Information System                On September 20, 2017, the Acting
                                              (EDIS): https://edis.usitc.gov.                         Assistant Administrator, Diversion




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                                                                           Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices                                             27629

                                                 According to the Declaration of a DEA                date of service of the’’ Show Cause                    proposed action. RFAA, at 6. Therein,
                                              Diversion Investigator (hereinafter, DI),               Order ‘‘by December 5, 2017.’’ Id. The                 the Government seeks revocation of
                                              on September 20, 2017, he mailed the                    ALJ also ordered that if the Government                Respondent’s Certificate of Registration
                                              Show Cause Order to Respondent’s                        moved to terminate the proceeding, it                  on the ground that she is registered in
                                              ‘‘residential address . . . where . . .                 must file its motion ‘‘by the same date’’              the State of Texas, where she no longer
                                              [he] had previously interacted with . . .               and that Respondent’s response was due                 has authority to dispense controlled
                                              [her] in conjunction with a search                      ‘‘by 2:00 p.m. Eastern Standard Time                   substances. Id. at 4–6. While the
                                              warrant.’’ GX 3, at 1–2 (DI Declaration,                . . . on December 12, 2017.’’ Id.                      Government further notes that
                                              Dec. 5, 2017). Attached to his                             According to the ALJ’s Termination                  Respondent attempted to change the
                                              Declaration was a ‘‘copy of the return                  Order (Dec. 14, 2017), on December 5,                  address of her registration to a location
                                              receipt [card] showing that the certified               2017, ‘‘[t]he Government timely filed’’                in New York State, it argues that her
                                              mail . . . was delivered on October 3,                  its Termination Request wherein ‘‘it                   ‘‘attempt to change addresses . . . was
                                              2017.’’ Id. at 2. However, the return                   argued that . . . Respondent filed her                 made only after being served with the
                                              receipt card was signed by someone                      Hearing Request more than 30 days after                [Show Cause Order and] should not
                                              other than Respondent.1 GX 3,                           the date of service of the’’ Show Cause                serve as a basis to prevent revocation of
                                              Attachment D, at 1.                                     Order. Id. The ALJ further noted that,                 her’’ Registration. Id. at 4. The
                                                 On November 21, 2017, the Office of                  ‘‘[as] of the date of’’ his Termination                Government further argues that
                                              Administrative Law Judges (OALJ)                        Order, ‘‘Respondent had not filed a                    ‘‘pursuant to 21 CFR 1301.51(c), this
                                              received a Request for Hearing from an                  response to the Government’s                           attempted modification is to be treated
                                              attorney representing Respondent.2 GX                   Termination Request.’’ Id. at 2.                       as an application for a registration.’’ Id.
                                              4, at 1. Therein, Respondent admitted                      As grounds for finding waiver, the                     Having considered the record in its
                                              that her ‘‘license to practice medicine in              ALJ noted that ‘‘[a]lthough there is no                entirety, I grant the Government’s
                                              the [S]tate of Texas is suspended,’’ but                evidence of when the Respondent                        Request to revoke Respondent’s
                                              represented that ‘‘she maintains an                     received the’’ Show Cause Order that                   Certificate of Registration. While I agree
                                              active and unrestricted license to                      was sent by regular mail to her                        with the Government that Respondent’s
                                              practice medicine in the State of New                   registered location, ‘‘the fact that [it]              attempt to modify her registered
                                              York.’’ Id. at 1. Respondent also                       was not returned as undeliverable                      location to an address in the State of
                                              represented that, ‘‘[o]n or about                       establishes the presumption of receipt.’’              New York is to be treated as a new
                                              September 2017, [she] modified her                      Id. (citing Net Wholesale, 70 FR 24626                 application, I find that this application
                                              practice address’’ from Houston, Texas                  (2005)). The ALJ then noted that ‘‘given               remains pending before the Agency. I
                                              to New York, NY, and that she ‘‘has                     that it was mailed on September 20,                    also conclude that because the
                                              modified her registration to reflect her                [2017,] it is highly likely that it was                Government seeks revocation of her
                                              practice address as the address                         delivered before October 15, 2017.’’ Id.               existing registration solely on the basis
                                              indicated above to the State of New                     at 2. The ALJ further noted, that                      that Respondent lacks authority to
                                              York.’’ Id. Respondent further stated                   ‘‘[n]otwithstanding this uncertainty,                  dispense controlled substances in
                                              that prior to modifying her practice                    there is evidence that the Respondent                  Texas, her application for registration in
                                              address to her Houston location, she                    received the [Show Cause Order] at her                 New York must be the subject of
                                              practiced at the New York address she                   residential address on October 3, 2017.’’              separate proceedings.
                                              referenced in her Request. Id. Under the                Id. The ALJ explained that, ‘‘[b]ased on
                                                                                                      this date, the Hearing Request should                  The Waiver Finding
                                              heading of ‘‘CORRECTIVE ACTION
                                              PLAN,’’ the Hearing Request stated that                 have been filed by November 3, 2017, in                  As discussed above, the ALJ found
                                              Respondent ‘‘submits this modification                  order to be timely,’’ but ‘‘[t]he Hearing              that ‘‘there is evidence that the
                                              of her practice address as a corrective                 Request . . . was not received by the                  Respondent received the [Show Cause
                                              action plan to the continuation of her                  OALJ, and therefore not filed, until                   Order] at her residential address on
                                              DEA controlled substance registration.’’                November 21, 2017.’’ Id. The ALJ thus                  October 3, 2017,’’ and ‘‘[b]ased on this
                                              Id.                                                     found that ‘‘Respondent’s hearing                      date, the Hearing Request should have
                                                 Upon receipt of Respondent’s Hearing                 Request was filed more than 30 days                    been filed by November 3, 2017, in
                                              Request, the matter was assigned to                     after the [Show Cause Order] was                       order to be timely.’’ GX 6, at 2 (citing
                                              Administrative Law Judge (ALJ) Charles                  served.’’ Id.                                          21 CFR 1301.43(a)). The ALJ also found
                                              Wm. Dorman, who issued an order                            The ALJ then noted that ‘‘[f]ailing to              that Respondent’s Hearing Request was
                                              captioned as ‘‘Briefing Schedule for                    show good cause for an untimely                        untimely based on the fact that it was
                                              Lack of State Authority Allegations.’’                  hearing request constitutes a waiver of                not received by his Office until
                                              GX 6, at 1. In this order, the ALJ noted                the right to a hearing.’’ Id. (citing                  November 21, 2017. Id. Notwithstanding
                                              the respective dates of the Show Cause                  Shannon L. Gallentine, 76 FR 45864,                    that the return receipt card is signed by
                                              Order and the receipt of the Hearing                    45864 (2011); Gilbert E. Johnson, 75 FR                someone other than Respondent and
                                              Request and further directed the                        65663, 65663–64 (2010)). Because                       that under the Agency’s regulations, the
                                              Government to ‘‘submit evidence of the                  Respondent did not file a response to                  timeliness of a hearing request is based
                                                                                                      the Government’s Termination Request,                  on the request being filed ‘‘within 30
                                                1 In proceedings before the Administrative Law        the ALJ found that Respondent failed to                days after the date of receipt of the order
                                              Judge, the Government submitted evidence that it        show good cause to excuse the untimely                 to show cause,’’ 21 CFR 1301.43(a), I
                                              also mailed the Show Cause Order by regular first       filing of her Hearing Request and had                  agree with each of the ALJ’s findings.
                                              class mail to Respondent’s registered address on                                                                 While DEA has not specifically
                                                                                                      waived her right to a hearing. Id. The
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                                              September 20, 2017 and that this mailing was not
                                              returned as undeliverable. GX 6, at 2.                  ALJ thus granted the Government’s                      addressed the issue of when the clock
                                                2 While the hearing request was dated November        motion and terminated the proceedings                  starts to run for purposes of assessing
                                              15, 2017, under DEA’s regulation, ‘‘[d]ocuments         before his Office. Id.                                 the timeliness of a hearing request
                                              shall be dated and deemed filed upon receipt by the        On December 22, 2017, the                           where someone other than the subject of
                                              Hearing Clerk.’’ 21 CFR 1316.45. The Show Cause
                                              Order also notified Respondent that ‘‘[m]atters are
                                                                                                      Government filed its Request for Final                 a Show Cause Order signs the return
                                              deemed filed upon receipt by the Hearing Clerk.’’       Agency (RFAA) along with an                            receipt card, the federal courts have
                                              GX 2, at 2.                                             investigative record in support of its                 long recognized that ‘‘a ‘strong


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                                              27630                        Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices

                                              presumption’ of receipt applies when                    489 F.3d 195, 197 n.1 (5th Cir. 2005)                  State of New York. 21 CFR 1301.51(c)
                                              notice is sent by certified mail, because               (noting that while ‘‘the presumption can               (‘‘The request for modification shall be
                                              it creates actual evidence of delivery in               certainly be overcome,’’ plaintiff                     handled in the same manner as an
                                              the form of a receipt.’’ Lupyan v.                      provided no evidence to establish the                  application for registration.’’).
                                              Corinthian Colleges Inc., 761 F.3d 14                   date she claimed to have received right
                                                                                                                                                             The Status of Respondent’s Texas
                                              (3d Cir. 2014) (quoting Santana                         to sue letter and ‘‘never made such a
                                                                                                                                                             License
                                              Gonzales v. Att’y Gen., 506 F.3d 274,                   claim or presented such evidence to the
                                              279 (3d Cir. 2007). To similar effect, the              district court’’).                                        On July 28, 2017, a Disciplinary Panel
                                              Fifth Circuit has explained that ‘‘[p]roof                 In this matter, while the ALJ provided              of the Texas Medical Board entered an
                                              that a letter properly directed was                     Respondent with the opportunity to                     Order of Temporary Suspension
                                              placed in a U.S. post office mail                       respond to the Government’s                            (hereinafter, Board’s Order) of
                                              receptacle creates a presumption that it                Termination Request, she has entirely                  Respondent’s Texas Medical License.
                                              reached its destination in the usual time               failed to respond, let alone provide                   GX 3, at Attachment A. The Board’s
                                              and was actually received by the person                 evidence to rebut the presumption that                 Order ‘‘remain[s] in effect until it is
                                              to whom it was addressed.’’ Beck v.                     she received the Show Cause Order on                   superseded by a subsequent Order of the
                                              Somerset Technologies, Inc., 882 F.2d                   the date the mailing was signed for.                   Texas Medical Board.’’ Id. at 5.
                                              993, 996 (5th Cir. 1989). As the Fifth                  Because I find that the mailing was                       The Board’s Order was based on fact
                                              Circuit further explained in discussing                 properly addressed to Respondent’s                     findings related to Respondent’s
                                              the evidence of delivery in Beck:                       residence and delivered on October 3,                  operation of an unregistered pain
                                                                                                      2017, and Respondent produced no                       management clinic. Id. at 2. These
                                                 The record contains a copy of the properly
                                              addressed letter, a certified mail receipt and          evidence to rebut the presumption that                 findings included that, on August 31,
                                              signed return post cards. Accordingly, we               she received the mailing on this date, I               2016, the Board filed a Complaint with
                                              hold there was sufficient evidence to create            find that Respondent received the Show                 the Texas Office of Administrative
                                              a presumption that the letter was received              Cause Order on October 3, 2017. I                      Hearings alleging that Respondent and
                                              . . . in the due course of the mail. Thus, the          further find that more than 30 days have               her prescriptive delegates ‘‘prescribed
                                              burden of producing evidence of non-                                                                           controlled medications to ten patients in
                                              delivery shifted to Beck.
                                                                                                      since passed since the date of service of
                                                                                                      the Show Cause Order, and that                         a manner inconsistent with public
                                              Id.                                                     Respondent has waived both her right to                health [and] welfare, failed to meet the
                                                 To be sure, this rule ‘‘ ‘is not a                   a hearing as well as her right to submit               standard of care in the care and
                                              conclusive presumption of law.’ ’’                      a written statement of position on the                 treatment of the patients, . . . failed to
                                              Lupyan, 761 F.3d at 319 (quoting                        matters of fact and law asserted in the                keep adequate medical records for the
                                              Rosenthal v. Walker, 111 U.S. 185, 193                  Show Cause Order while waiving her                     patients,’’ and ‘‘failed to supervise her
                                              (1884)). ‘‘Rather, it is a rebuttable                   right to a hearing. 21 CFR 1301.43(a),                 prescriptive delegates adequately.’’ Id.
                                              ‘inference of fact. ’’’ Id.; see also Beck,             (c), (d).4 I make the following additional             The Board’s Order also found that the
                                              882 F.2d at 996; 3 Cf. Morgan v. Potter,                finding of fact.                                       Board’s expert had reviewed ten patient
                                                                                                                                                             cases and concluded that ‘‘Respondent’s
                                                 3 In Vincent G. Colosimo, an applicant for           Findings of Fact                                       prescriptions for controlled substances
                                              registration was issued a Show Cause Order which
                                                                                                      Respondent’s DEA Registration                          were not provided for a legitimate
                                              was served by Certified Mail addressed to his                                                                  medical purpose.’’ Id.
                                              proposed registered location. 79 FR 20911, 20912          Respondent is the holder of DEA
                                              (2014). The applicant filed a hearing request which
                                                                                                                                                                Next, the Board’s Order found that, on
                                              was received by the OALJ one day late and               Certificate of Registration No.                        July 6, 2017, Respondent was indicted
                                              therefore deemed untimely by the ALJ, who ordered       FC1384306, pursuant to which she is                    in the United District Court for the
                                              the parties to address whether there was good cause     authorized to dispense controlled                      Southern District of Texas on felony
                                              to excuse the late filing. Id.                          substances in schedules II through V as
                                                 Thereafter, the Government argued that the
                                                                                                                                                             charges of conspiracy to distribute and
                                              respondent’s Hearing Request was untimely and           a practitioner, at the registered address              dispense controlled substances
                                              that he had not shown good cause. Id. The               of Gulfton Community Health Center,                    unlawfully, as well as aiding and
                                              respondent filed a statement wherein he asserted        6306 Gulfton St., Suite 101, Houston,                  abetting the unlawful distribution and
                                              that the mailing containing the Show Cause Order        TX 77081. GX 1. This registration does
                                              had been signed for by another person at his office,
                                                                                                                                                             dispensing of controlled substances at
                                              that because it appeared to be of a legal nature, the   not expire until August 31, 2018. Id.                  her pain clinic. Id. The Board’s Order
                                              mailing was sent to his employer’s administrative         According to the Acting Unit Chief of                also found that following her arrest,
                                              office, and that he had only received it shortly        the Agency’s Registration and Program                  Respondent signed an Order Setting
                                              before the due date of his hearing request. Id.; see    Support Section, on three different
                                              also Vincent G. Colosimo, ALJ Termination Order,                                                               Conditions of Release, which ‘‘restricts
                                              at 4. The ALJ nonetheless terminated the                occasions following service of the Show                [her] from employment in a pain
                                              proceeding finding that the respondent had failed       Cause Order, Respondent attempted to                   management clinic[ ] [and] from writing
                                              to show good cause for the untimely filing of his       change her registered location from the                prescriptions for any schedule II or IV
                                              hearing request. Colosimo, 79 FR at 20912.
                                                                                                      above address to an address in New                     drug, and from writing prescriptions for
                                                 The Government then submitted a Request for
                                              Final Agency Action. Id. On review, the                 York, NY. GX 5. According to the Acting                any opioid in schedule II.’’ Id. Based on
                                              Administrator vacated the ALJ’s termination order       Unit Chief, Respondent was unable to                   a Prescriber Activity Report obtained
                                              and rejected the Government’s Request for Final         change her registered location and                     from the State’s Prescription Monitoring
                                              Agency Action. The Administrator explained that         remains registered at the Houston, Texas
                                              while the respondent had not supported by affidavit                                                            Program, the Board’s Order found that
                                              the various factual assertions he had made in           location. Id. I further find, however, that            since her release from custody on July
                                              response to the ALJ’s order directing the parties to    Respondent’s attempts to modify her                    10, 2017, ‘‘eight prescriptions for
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                                              address the timeliness of the hearing request, she      registered location are deemed                         schedule IV controlled substances
                                              further ‘‘held that if those assertions were
                                              supported, [respondent would] demonstrate good
                                                                                                      applications for a new registration in the             (Carisoprodol and Alprazolam) and 21
                                              cause.’’ Id. Of note, the Agency did not hold that                                                             prescriptions for Promethazine/Codeine
                                              the date of receipt commenced on the date on              4 I also agree with the ALJ’s finding that
                                                                                                                                                             syrup were issued under her DEA
                                              which the respondent actually received the Show         Respondent has failed to show good cause to excuse
                                              Cause Order rather than the date on which the           the untimely filing of her Hearing Request and has
                                                                                                                                                             registration number.’’ Id. at 3. Based on
                                              certified mail was received at the respondent’s         therefore waived her right to a hearing for this       the Prescriber Activity Report, the
                                              proposed registration location. Id.                     reason as well.                                        Board’s Order also found that from


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                                                                            Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices                                                    27631

                                              April 26, 2016 through July 26, 2017,                     mean[ ] a physician . . . or other person             (1997)), the Agency has long held that
                                              Respondent issued over 10,300                             licensed, registered, or otherwise                    revocation is warranted even where a
                                              prescriptions for Hydrocodone/                            permitted, by . . . the jurisdiction in               practitioner has lost his state authority
                                              Acetaminophen 10/325 mg and over                          which [s]he practices . . . , to                      by virtue of the State’s use of summary
                                              10,400 prescriptions for Carisoprodol                     distribute, dispense, . . . [or] administer           process and the State has yet to provide
                                              350 mg. Id. at 2.                                         . . . a controlled substance in the                   a hearing to challenge the suspension.
                                                 The Board thus found that                              course of professional practice.’’ 21                 Bourne Pharmacy, 72 FR 18273, 18274
                                              ‘‘Respondent’s continuation in the                        U.S.C. 802(21). Second, in setting the                (2007); Wingfield Drugs, 52 FR 27070,
                                              practice of medicine poses a continuing                   requirements for obtaining a                          27071 (1987). Thus, it is of no
                                              threat to public welfare.’’ Id. at 3. Based               practitioner’s registration, Congress                 consequence that the Texas Board has
                                              on these findings, the Panel found ‘‘an                   directed that ‘‘[t]he Attorney General                employed summary process in
                                              imminent peril to the public health,                      shall register practitioners . . . if the             suspending Respondent’s state license.
                                              safety, or welfare that requires                          applicant is authorized to dispense . . .             See Judson J. Somerville, M.D., 82 FR
                                              immediate effect of’’ its Order, id., and                 controlled substances under the laws of               21408, 21410 (2017); Rezik A. Saqer, 81
                                              temporarily suspended Respondent’s                        the State in which . . . [she] practices.’’           FR 22122, 22126 (2016). What is
                                              medical license. Id. at 5.                                21 U.S.C. 823(f). Because Congress has                consequential is that Registrant is no
                                                 I take official notice of the online                   clearly mandated that a practitioner                  longer currently authorized to dispense
                                              records of the Texas Medical Board. See                   possess State authority in order to be                controlled substances in Texas, the State
                                              5 U.S.C. 556(e). According to the                         deemed a practitioner under the CSA,                  in which she is registered. See
                                              Board’s records, the temporary                            the Agency has held repeatedly that                   Somerville, 82 FR at 18274; Saqer, 81 FR
                                              suspension of Respondent’s medical                        revocation of a practitioner’s registration           22126. I will therefore order that her
                                              license remains in effect as of the date                  is the appropriate sanction whenever                  registration be revoked.
                                              of this Decision and Order.5                              she is no longer authorized to dispense
                                                                                                        controlled substances under the laws of                 While this Order resolves the issue of
                                              Discussion                                                the State in which she practices. See,                Respondent’s entitlement to maintain
                                                 Pursuant to 21 U.S.C. 824(a)(3), the                   e.g., Hooper, supra, 76 FR at 71371–72;               her DEA registration, as found above,
                                              Attorney General is authorized to                         Sheran Arden Yeates, M.D., 71 FR                      Respondent attempted to modify her
                                              suspend or revoke a registration issued                   39130, 39131 (2006); Dominick A. Ricci,               registered address to a location in the
                                              under section 823 of the Controlled                       M.D., 58 FR 51104, 51105 (1993); Bobby                State of New York. As the Government
                                              Substances Act (hereinafter, CSA),                        Watts, 53 FR 11919, 11920 (1988);                     acknowledges, these requests for
                                              ‘‘upon a finding that the registrant . . .                Blanton, supra, 43 FR at 27617.                       modification are treated as new
                                              has had . . . [her] State License or                         Under the Texas Controlled                         applications for registration. RFAA, at 4;
                                              registration suspended [or] revoked by                    Substances Act, a ‘‘practitioner’’                    see also 21 CFR 1301.51(c). The record
                                              competent State authority and is no                       includes a ‘‘physician’’ who is licensed              submitted to my Office provides no
                                              longer authorized by State law to engage                  ‘‘to dispense . . . or administer a                   indication that the Government sought
                                              in the . . . dispensing of controlled                     controlled substance in the course of                 denial of these applications (which were
                                              substances.’’ With respect to a                           professional practice.’’ Tex. Controlled              submitted subsequent to the service of
                                              practitioner, DEA has also long held that                 Substances Act § 481.002(39)(A). Under                the Show Cause Order) in this
                                              the possession of authority to dispense                   the Texas Medical Practice Act, a                     proceeding, and in any event, the
                                              controlled substances under the laws of                   ‘‘physician’’ is ‘‘a person licensed to               ground offered by the Government for
                                              the State in which a practitioner engages                 practice medicine,’’ Tex. Occ. Code                   revoking her Texas registration, which
                                              in professional practice is a                             § 151.002(a)(12), and ‘‘practicing                    rests exclusively on the summary
                                              fundamental condition for obtaining                       medicine’’ means the ‘‘diagnosis,                     suspension of her Texas Medical
                                              and maintaining a practitioner’s                          treatment, or offer to treat a . . . disease          License, does not support denial of her
                                              registration. See, e.g., James L. Hooper,                 . . . by any system or method.’’ Id.                  New York applications. Those
                                              M.D., 76 FR 71371 (2011), pet. for rev.                   § 151.002(a)(13). Moreover, a ‘‘person                applications remain pending before the
                                              denied, 481 Fed. Appx. 826 (4th Cir.                      may not practice medicine in th[e] state              Agency and must be the subject of a
                                              2012); Frederick Marsh Blanton, M.D.,                     unless the person holds a license issued              separate proceeding if the Government
                                                                                                        under’’ the Medical Practice Act, id.                 seeks to deny them.6
                                              43 FR 27616, 27617 (1978).
                                                                                                        § 155.001, and ‘‘[a] person commits an
                                                 This rule derives from the text of two                                                                       Order
                                                                                                        offense if the person practices medicine
                                              provisions of the CSA. First, Congress
                                                                                                        in this state in violation of’’ the Act. Id.
                                              defined the term ‘‘ ‘practitioner’ [to]                                                                           Pursuant to the authority vested in me
                                                                                                        § 165.152.(a).
                                                                                                           As found above, Respondent’s Texas                 by 21 U.S.C. 824(a), as well as 28 CFR
                                                5 Under the Administrative Procedure Act, an
                                                                                                        medical license remains temporarily                   0.100(b), I order that DEA Certificate of
                                              agency ‘‘may take official notice of facts at any stage
                                              in a proceeding—even in the final decision.’’             suspended. I therefore find that                      Registration No. FC1384306, issued to
                                              United States Department of Justice, Attorney             Respondent is currently without                       Gazelle Craig, M.D., be, and it hereby is,
                                              General’s Manual on the Administrative Procedure          authority to dispense controlled                      revoked. This Order is effective
                                              Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint                                                               immediately.7
                                              1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an           substances under the laws of Texas, the
                                              agency decision rests on official notice of a material    State in which she is registered with the
                                                                                                                                                                 6 Because Respondent’s Corrective Action Plan is
                                              fact not appearing in the evidence in the record, a       Agency.
                                              party is entitled, on timely request, to an                                                                     simply to modify her registered location to the New
                                                                                                           Moreover, because ‘‘the controlling
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                                              opportunity to show the contrary.’’ Accordingly,                                                                York address, I conclude that consideration of her
                                              Respondent may dispute my finding by filing a
                                                                                                        question’’ in a proceeding brought                    plan should be considered by the Government in
                                              properly supported motion for reconsideration             under 21 U.S.C. 824(a)(3) is whether the              the course of evaluating her New York applications.
                                              within 15 calendar days of the date of this Order.        holder of a DEA registration ‘‘is                        7 Based on the Texas Board’s finding that

                                              Any such motion shall be filed with the Office of         currently authorized to handle                        Respondent poses ‘‘an imminent peril to the public
                                              the Administrator and a copy shall be served on the                                                             health, safety, or welfare that requires immediate
                                              Government. In the event Respondent files a
                                                                                                        controlled substances in the [S]tate,’’               effect of’’ the suspension order, I find that the
                                              motion, the Government shall have seven calendar          Hooper, 76 FR at 71371 (quoting Anne                  public interest necessitates that this Order be
                                              days to file a response.                                  Lazar Thorn, 62 FR 12847, 12848                       effective immediately. 21 CFR 1316.67.



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                                              27632                                   Federal Register / Vol. 83, No. 114 / Wednesday, June 13, 2018 / Notices

                                                Dated: June 1, 2018.                                                       applicants therefore, may file written                                       incident to the registration of
                                              Robert W. Patterson,                                                         comments on or objections to the                                             manufacturers, distributors, dispensers,
                                              Acting Administrator.                                                        issuance of the proposed registration on                                     importers, and exporters of controlled
                                              [FR Doc. 2018–12686 Filed 6–12–18; 8:45 am]                                  or before August 13, 2018.                                                   substances (other than final orders in
                                              BILLING CODE 4410–09–P                                                       ADDRESSES: Written comments should                                           connection with suspension, denial, or
                                                                                                                           be sent to: Drug Enforcement                                                 revocation of registration) has been
                                                                                                                           Administration, Attention: DEA Federal                                       redelegated to the Assistant
                                              DEPARTMENT OF JUSTICE                                                        Register Representative/DRW, 8701                                            Administrator of the DEA Diversion
                                                                                                                           Morrissette Drive, Springfield, Virginia                                     Control Division (‘‘Assistant
                                              Drug Enforcement Administration                                              22152.                                                                       Administrator’’) pursuant to section 7 of
                                              [Docket No. DEA–392]                                                         SUPPLEMENTARY INFORMATION:    The                                            28 CFR part 0, appendix to subpart R.
                                                                                                                           Attorney General has delegated his                                              In accordance with 21 CFR
                                              Bulk Manufacturer of Controlled
                                                                                                                           authority under the Controlled                                               1301.33(a), this is notice that on January
                                              Substances Application: Johnson
                                                                                                                           Substances Act to the Administrator of                                       1, 2018, Johnson Matthey
                                              Matthey Pharmaceutical Materials Inc.
                                                                                                                           the Drug Enforcement Administration                                          Pharmaceutical Materials Inc., 25 Patton
                                              ACTION:       Notice of application.                                         (DEA), 28 CFR 0.100(b). Authority to                                         Road, Devens, MA 01434 applied to be
                                                                                                                           exercise all necessary functions with                                        registered as a bulk manufacturer for the
                                              DATES:  Registered bulk manufacturers of                                     respect to the promulgation and                                              basic classes of controlled substances:
                                              the affected basic classes, and                                              implementation of 21 CFR part 1301,

                                                                                                                       Controlled substance                                                                                            Drug code      Schedule

                                              Amphetamine ...................................................................................................................................................................                 1100    II
                                              Methylphenidate ..............................................................................................................................................................                  1724    II
                                              Nabilone ...........................................................................................................................................................................            7379    II
                                              Hydrocodone ...................................................................................................................................................................                 9193    II
                                              Levorphanol .....................................................................................................................................................................               9220    II
                                              Alfentanil ..........................................................................................................................................................................           9737    II
                                              Remifentanil .....................................................................................................................................................................              9739    II
                                              Sufentanil .........................................................................................................................................................................            9740    II



                                                The company plans to utilize this                                          DEPARTMENT OF JUSTICE                                                        various classes of schedule I or II
                                              facility to manufacture small quantities                                                                                                                  controlled substances.
                                              of the listed controlled substances in                                       Drug Enforcement Administration
                                              bulk for distribution to its customers as                                                                                                                 SUPPLEMENTARY INFORMATION:       The
                                                                                                                           [Docket No. DEA–392]                                                         companies listed below applied to be
                                              well as to conduct analytical testing in
                                              support of the company’s primary                                                                                                                          registered as importers of various basic
                                                                                                                           Importer of Controlled Substances
                                              manufacturing facility in West Deptford,                                                                                                                  classes of controlled substances.
                                                                                                                           Registration
                                              New Jersey.                                                                                                                                               Information on previously published
                                                                                                                           ACTION:       Notice of registration.                                        notices is listed in the table below. No
                                                Dated: June 6, 2018.
                                                                                                                                                                                                        comments or objections were submitted
                                              John J. Martin,                                                              SUMMARY:   Registrants listed below have                                     and no requests for hearing were
                                              Assistant Administrator.                                                     applied for and been granted                                                 submitted for these notices.
                                              [FR Doc. 2018–12685 Filed 6–12–18; 8:45 am]                                  registration by-the Drug Enforcement
                                              BILLING CODE 4410–09–P                                                       Administration (DEA) as importers of


                                                                                                                           Company                                                                                             FR docket           Published

                                              PerkinElmer, Inc ...................................................................................................................................................         83   FR    9337    March   5, 2018.
                                              Stepan Company ..................................................................................................................................................            83   FR    9337    March   5, 2018.
                                              Noramco, Inc ........................................................................................................................................................        83   FR    12408   March   21, 2018.
                                              Sanyal Biotechnology ...........................................................................................................................................             83   FR    12407   March   21, 2018.
                                              S&B Pharma, Inc ..................................................................................................................................................           83   FR    13523   March   29, 2018.
                                              Siegfried USA, LLC ..............................................................................................................................................            83   FR    13521   March   29, 2018.
                                              Lannett Company, Inc ..........................................................................................................................................              83   FR    13520   March   29, 2018.



                                                The Drug Enforcement                                                       protocols in effect on May 1, 1971. The                                        Therefore, pursuant to 21 U.S.C.
                                              Administration (DEA) has considered                                          DEA investigated each company’s                                              952(a) and 958(a), and in accordance
                                              the factors in 21 U.S.C. 823, 952(a) and                                     maintenance of effective controls                                            with 21 CFR 1301.34, the DEA has
amozie on DSK3GDR082PROD with NOTICES1




                                              958(a) and determined that the                                               against diversion by inspecting and                                          granted a registration as an importer for
                                              registration of the listed registrants to                                    testing each company’s physical                                              schedule I or II controlled substances to
                                              import the applicable basic classes of                                       security systems, verifying each                                             the above listed companies.
                                              schedule I or II controlled substances is                                    company’s compliance with state and
                                              consistent with the public interest and                                      local laws, and reviewing each
                                              with United States obligations under                                         company’s background and history.
                                              international treaties, conventions, or


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Document Created: 2018-06-12 23:59:05
Document Modified: 2018-06-12 23:59:05
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 Citation83 FR 27628 

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