83 FR 36966 - Craig S. Morris, DDS; Dismissal of Proceeding

DEPARTMENT OF JUSTICE
Drug Enforcement Administration

Federal Register Volume 83, Issue 147 (July 31, 2018)

Page Range		36966-36967
FR Document		2018-16313
Federal Register, Volume 83 Issue 147 (Tuesday, July 31, 2018)
[Federal Register Volume 83, Number 147 (Tuesday, July 31, 2018)]
[Notices]
[Pages 36966-36967]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-16313]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Craig S. Morris, DDS; Dismissal of Proceeding

    On November 13, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Craig S. Morris, DDS (Respondent), of Texas. The 
Show Cause Order proposed the revocation of Respondent's Certificates 
of Registration FM5300582 and FM5293294 on the ground that he 
``materially falsified [his] applications for [his] DEA Certificates of 
Registration.'' Order to Show Cause, Government Exhibit (GX) A-8 to 
Request for Final Agency Action (RFAA), at 1 (citing 21 U.S.C. 
824(a)(1)).
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Respondent was registered at that time in schedules II 
through V, pursuant to DEA Certificates of Registration Nos. FM5300582 
and FM5293294 at the addresses of 19121 West Lake Houston Parkway, 
Humble, TX, and 25130 Grogans Park Drive, The Woodlands, TX, 
respectively.\1\ Id. at 1-2. The Order also alleged that these 
registrations would each expire on January 31, 2018. Id.
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    \1\ The record establishes that Respondent was registered as a 
``practitioner'' with respect to each of the above DEA 
registrations. Certifications of Registration History for FM5300582 
and FM5293294, GXs A-1 at 1, 3; A-2, at 1, 3.
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    As substantive grounds for the proceeding, the Show Cause Order 
alleged that on February 9, 2015, Respondent ``submitted applications 
to the DEA for the above-referenced Certificates of Registration'' but 
materially falsified the application when he ``provided a `no' response 
to Liability Question 3, which asked, `[h]as the applicant ever 
surrendered (for cause) or had a state professional license or 
controlled substances registration revoked, suspended, denied, 
restricted or placed on probation, or is any such action pending?' '' 
Id. at 2. The Order further alleged that, when he ``submitted his 
applications to the DEA and provided a `no' answer to Liability 
Question 3, [his] Nevada license to practice dentistry had been placed 
on probation and was currently suspended.'' Id. Based on Respondent's 
alleged ``material falsification of [his] applications to the DEA,'' 
the Order asserted that ``DEA must revoke'' his registrations. Id. at 
3.
    The Show Cause Order notified Respondent of his right to request a 
hearing on the allegations or to submit a written statement in lieu of 
a hearing, the procedure for electing either option, and the 
consequence of failing to elect either option. Id. (citing 21 CFR 
1301.43). The Show Cause Order also notified Respondent of his right to 
submit a corrective action plan. Id. at 3-4 (citing 21 U.S.C. 
824(c)(2)(C)).
    The Government represents that on November 20, 2017, a DEA 
Diversion Investigator (DI) served a copy of the Show Cause Order on 
Respondent by electronic mail to an email address that the DI had 
previously used to correspond with Respondent in April 2017 and that 
Respondent had provided to DEA as a ``contact email'' in connection 
with his DEA Certificates of Registration. RFAA, at 3-4 (citing 
Declaration of DI, attached as GX A to RFAA, at 3). There is no dispute 
that timely service occurred because the Government states that DEA's 
Diversion Control Division received Respondent's written submissions in 
connection with the Show Cause Order on December 19, 2017. RFAA, at 4 
(citing the Diversion Control Division's Acting Assistant 
Administrator's December 20, 2017 letter to Respondent, attached as GX 
C to RFAA, at 1).
    Although Respondent's submissions included a letter (dated December 
12, 2017) entitled ``Corrective Action Plan,'' the letter stated that 
it was ``being submitted in response to the Order to Show Cause levied 
against me by your office'' and attached an affidavit in support signed 
by Respondent and notarized on December 15, 2017. Respondent's Written 
Submissions (hereinafter ``Respondent's Statement'' or ``Resp. 
Stat.''), attached as GX B to RFAA, at 1. Respondent did not, however, 
request a hearing. See generally id. Based on Respondent's submission, 
I find that he waived his right to a hearing on the allegations. 21 CFR 
1301.43(c). However, pursuant to 21 CFR 1301.43(c), I deem Respondent's 
submission to be his ``written statement

[[Page 36967]]

[of] position on the matters of fact and law involved'' in the 
proceeding. See Arthur H. Bell, D.O., 80 FR 50035, 50036 (2015) 
(deeming Respondent's letter to be a written statement pursuant to 21 
CFR 1301.43(c) because the letter ``responded to each of the 
Government's allegations'' without requesting a hearing).\2\ On March 
16, 2018, the Government forwarded its Request for Final Agency Action 
and the evidentiary record to my Office.
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    \2\ In its Request for Final Agency Action, the Government 
properly treated Respondent's written submissions as a ``written 
statement'' pursuant to 21 CFR 1301.43. RFAA, at 6-8. However, 
because I am dismissing the Government's Show Cause Order as moot, I 
decline to reach the question of whether Respondent's submissions 
could also be deemed to have included a Corrective Action Plan 
pursuant to 21 U.S.C. 824(c)(2)(C).
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    Having reviewed the record, I find that this proceeding is now 
moot. The evidence in the record establishes that each of Respondent's 
registrations at issue were due to expire on January 31, 2018, and 
according to the Agency's registration record for Respondent, of which 
I take official notice,\3\ Respondent has not submitted an application 
to renew his registrations. DEA has long held that `` `if a registrant 
has not submitted a timely renewal application prior to the expiration 
date, then the registration expires and there is nothing to revoke.' '' 
Donald Brooks Reece II, M.D., 77 FR 35054, 35055 (2012) (quoting Ronald 
J. Riegel, 63 FR 67312, 67133 (1998)). ``Moreover, in the absence of an 
application (whether timely filed or not), there is nothing to act 
upon.'' Id. at 35055.
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    \3\ Under the Administrative Procedure Act (APA), an agency 
``may take official notice of facts at any stage in a proceeding--
even in the final decision.'' U.S. Dept. of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). In accordance with the APA and 
DEA's regulations, Respondent is ``entitled on timely request to an 
opportunity to show to the contrary.'' 5 U.S.C. 556(e); see also 21 
CFR 1316.59(e). To allow Respondent the opportunity to refute the 
facts of which I take official notice, Respondent may file a motion 
for reconsideration within 15 calendar days of service of this order 
which shall commence on the date this order is mailed.
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    Although the Government acknowledges that Respondent's DEA 
registrations expired on January 31, 2018 and prior to its March 16, 
2018 Request for Final Agency Action, RFAA, at 1, the Government 
nonetheless argues that the ``matter is not moot.'' Id. at 5. 
Specifically, the Government claims that, prior to the issuance of the 
Show Cause Order, Respondent requested ``to modify his DEA Certificates 
of Registration and change his registered address to an address in 
California, where [he] holds an active dental license. That request for 
modification is pending.'' Id. at 5-6. The Government's argument that 
the case is not moot based on this purported modification request is 
unavailing for at least two reasons.
    First, as a threshold matter, the record does not establish by a 
preponderance of the evidence that Respondent does, in fact, have a 
pending request to modify the address of his DEA registrations to an 
address in California. In its Request, the Government relies 
exclusively on the DI's statement in her Declaration that, ``[o]n 
February 17, 2017, Dr. Morris submitted a request for modification of 
his DEA Certificates of Registration [FM5300582 and FM5293294], seeking 
to change his address to 19121 Allingham Avenue, Cerritos, 
California.'' GX A, at 3. The DI does not cite in her Declaration to 
any evidence in support of this statement. See id. Furthermore, the 
Government submitted a Certification of Registration History for each 
of these registrations (both dated March 12, 2018), and neither 
certification references this modification request. GX A-1; GX A-2. In 
addition, the Agency's registration record for Respondent reflects no 
reference to these specific modification requests.\4\ Indeed, not even 
the Show Cause Order references the modification request. See GX A-8. 
Thus, because the Government's argument against mootness relies 
entirely on a pending modification request not established in the 
record, I reject the Government's argument on this basis alone. See 
RFAA, at 3.
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    \4\ I take official notice of this fact pursuant to the 
authority set forth supra in footnote 3.
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    Second, even if the purported modification requests were made, my 
finding that this case is moot would not change. The Government argues 
that the Show Cause Order to revoke Respondent's registrations is not 
moot when a request to modify such registrations remains pending (even 
after the expiration of the very registration that Respondent seeks to 
modify) because DEA regulations state that ``a request for modification 
shall be handled in the same manner as an application for 
registration.'' Id. at 5-6 (citing 21 CFR 1301.51(c)). I disagree.
    The fact that DEA handles a modification request ``in the same 
manner as an application for registration'' pursuant to 21 CFR 
1301.51(c) does not mean that a modification request is the same as an 
application for a new registration in every respect. For example, 
although a registrant must pay a fee when he or she applies for a new 
registration, see 21 CFR 1301.14(a), ``[n]o fee shall be required for 
modification.'' Id. 1301.51(c). Most importantly, even if a 
modification request is approved and a new certificate of registration 
is issued, DEA regulations state that the new (as modified) 
registration expires when the original registration certificate 
expires. Id. (``If the modification of registration is approved, the 
Administrator shall issue a new certificate of registration . . . to 
the registrant, who shall maintain it with the old certificate of 
registration until expiration.'') (emphasis added). Thus, unlike a 
timely renewal application, a request to modify the registration 
address of an existing registration (whether pending or granted) does 
not remain pending after that registration expires, nor does it operate 
to extend when that registration expires. See 21 CFR 1301.51(c).\5\
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    \5\ Neither of the cases that the Government relies upon 
supports its position. RFAA, at 5-6 (citing Michael G. Dolin, M.D., 
65 FR 5661, 5661 (2000); Daniel Koller, D.V.M., 71 FR 66975 (2006)). 
Michael G. Dolin focused on whether Respondent lacked state 
authorization to handle controlled substances and does not address 
the issue of mootness. 65 FR at 5661. The Government's other case, 
Daniel Koller, actually cuts against its position. In that case, the 
registrant had separately submitted an application for a new DEA 
registration at a new location--in addition to prior submissions for 
modifications of the existing registration for the new location. 71 
FR at 66979-81. Ultimately, the Agency found that ``Respondent's 
Registration . . . [had] expired . . . , and that Respondent did not 
file a renewal application, let alone a timely one, for this 
registration.'' Id. at 66981. As a result, the Agency did not revoke 
the expired registration nor consider the pending requests to modify 
that registration, as the Government requests in this case. See id. 
Instead, the Agency held, as I do here, that ``the revocation 
portion of this proceeding is moot.'' Id. The Agency properly 
concluded in Koller that only the application for a new registration 
``remain[ed] a live controversy.'' Id.
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    Accordingly, because Respondent has allowed his registrations to 
expire and did not file an application to renew his registrations, this 
case is now moot and will be dismissed.

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 the Order to Show Cause issued to 
Craig S. Morris, DDS, be, and it hereby is, dismissed. This Order is 
effective immediately.

    Dated: July 18, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-16313 Filed 7-30-18; 8:45 am]
 BILLING CODE 4410-09-P
36966 Federal Register / Vol. 83, No. 147 / Tuesday, July 31, 2018 / Notices

INTERNATIONAL TRADE 705(b) and 735(b) of the Act (19 U.S.C. or controlled substances registration
COMMISSION 1671d(b) and 19 U.S.C. 1673d(b)). It revoked, suspended, denied, restricted
completed and filed its determinations or placed on probation, or is any such
[Investigation Nos. 701–TA–582 and 731–
TA–1377 (Final)]
in these investigations on July 25, 2018. action pending?’ ’’ Id. at 2. The Order
The views of the Commission are further alleged that, when he
Ripe Olives From Spain; contained in USITC Publication 4805 ‘‘submitted his applications to the DEA
Determinations (July 2018), entitled Ripe Olives from and provided a ‘no’ answer to Liability
Spain: Investigation Nos. 701–TA–582 Question 3, [his] Nevada license to
On the basis of the record 1 developed and 731–TA–1377 (Final). practice dentistry had been placed on
in the subject investigations, the United probation and was currently
States International Trade Commission By order of the Commission.
suspended.’’ Id. Based on Respondent’s
(‘‘Commission’’) determines, pursuant Issued: July 25, 2018.
alleged ‘‘material falsification of [his]
to the Tariff Act of 1930 (‘‘the Act’’), Lisa Barton, applications to the DEA,’’ the Order
that an industry in the United States is Secretary to the Commission. asserted that ‘‘DEA must revoke’’ his
materially injured by reason of imports [FR Doc. 2018–16283 Filed 7–30–18; 8:45 am] registrations. Id. at 3.
of ripe olives from Spain, provided for BILLING CODE 7020–02–P The Show Cause Order notified
in subheadings 2005.70.02, 2005.70.04, Respondent of his right to request a
2005.70.50, 2005.70.60, 2005.70.70, and hearing on the allegations or to submit
2005.70.75 of the Harmonized Tariff DEPARTMENT OF JUSTICE a written statement in lieu of a hearing,
Schedule of the United States, that have the procedure for electing either option,
been found by the U.S. Department of Drug Enforcement Administration and the consequence of failing to elect
Commerce (‘‘Commerce’’) to be sold in either option. Id. (citing 21 CFR
the United States at less than fair value Craig S. Morris, DDS; Dismissal of 1301.43). The Show Cause Order also
(‘‘LTFV’’) and to be subsidized by the Proceeding notified Respondent of his right to
government of Spain.2 submit a corrective action plan. Id. at
On November 13, 2017, the Acting
Background Assistant Administrator, Diversion 3–4 (citing 21 U.S.C. 824(c)(2)(C)).
The Government represents that on
The Commission, pursuant to sections Control Division, Drug Enforcement
November 20, 2017, a DEA Diversion
705(b) and 735(b) of the Act (19 U.S.C. Administration (DEA), issued an Order
Investigator (DI) served a copy of the
1671d(b) and 19 U.S.C. 1673d(b)), to Show Cause to Craig S. Morris, DDS
Show Cause Order on Respondent by
instituted these investigations effective (Respondent), of Texas. The Show
electronic mail to an email address that
June 22, 2017, following receipt of a Cause Order proposed the revocation of
the DI had previously used to
petition filed with the Commission and Respondent’s Certificates of Registration
correspond with Respondent in April
Commerce by the Coalition of Fair FM5300582 and FM5293294 on the
2017 and that Respondent had provided
Trade in Ripe Olives, consisting of Bell- ground that he ‘‘materially falsified [his] to DEA as a ‘‘contact email’’ in
Carter Foods, Walnut Creek, CA, and applications for [his] DEA Certificates of connection with his DEA Certificates of
Musco Family Olive Company, Tracy, Registration.’’ Order to Show Cause, Registration. RFAA, at 3–4 (citing
CA. The final phase of the investigations Government Exhibit (GX) A–8 to Declaration of DI, attached as GX A to
was scheduled by the Commission Request for Final Agency Action RFAA, at 3). There is no dispute that
following notification of preliminary (RFAA), at 1 (citing 21 U.S.C. 824(a)(1)). timely service occurred because the
determinations by Commerce that With respect to the Agency’s Government states that DEA’s Diversion
imports of ripe olives from Spain were jurisdiction, the Show Cause Order Control Division received Respondent’s
subsidized within the meaning of alleged that Respondent was registered written submissions in connection with
section 703(b) of the Act (19 U.S.C. at that time in schedules II through V, the Show Cause Order on December 19,
1671b(b)) and sold at LTFV within the pursuant to DEA Certificates of 2017. RFAA, at 4 (citing the Diversion
meaning of 733(b) of the Act (19 U.S.C. Registration Nos. FM5300582 and Control Division’s Acting Assistant
1673b(b)). Notice of the scheduling of FM5293294 at the addresses of 19121 Administrator’s December 20, 2017
the final phase of the Commission’s West Lake Houston Parkway, Humble, letter to Respondent, attached as GX C
investigations and of a public hearing to TX, and 25130 Grogans Park Drive, The to RFAA, at 1).
be held in connection therewith was Woodlands, TX, respectively.1 Id. at 1–2. Although Respondent’s submissions
given by posting copies of the notice in The Order also alleged that these included a letter (dated December 12,
the Office of the Secretary, U.S. registrations would each expire on 2017) entitled ‘‘Corrective Action Plan,’’
International Trade Commission, January 31, 2018. Id. the letter stated that it was ‘‘being
Washington, DC, and by publishing the As substantive grounds for the submitted in response to the Order to
notice in the Federal Register on proceeding, the Show Cause Order Show Cause levied against me by your
February 22, 2018 (83 FR 7774). The alleged that on February 9, 2015, office’’ and attached an affidavit in
hearing was held in Washington, DC, on Respondent ‘‘submitted applications to support signed by Respondent and
May 24, 2018, and all persons who the DEA for the above-referenced notarized on December 15, 2017.
requested the opportunity were Certificates of Registration’’ but Respondent’s Written Submissions
permitted to appear in person or by materially falsified the application (hereinafter ‘‘Respondent’s Statement’’
counsel. when he ‘‘provided a ‘no’ response to or ‘‘Resp. Stat.’’), attached as GX B to
The Commission made these Liability Question 3, which asked, ‘[h]as RFAA, at 1. Respondent did not,
daltland on DSKBBV9HB2PROD with NOTICES

determinations pursuant to sections the applicant ever surrendered (for however, request a hearing. See
cause) or had a state professional license generally id. Based on Respondent’s
1 The record is defined in sec. 207.2(f) of the
submission, I find that he waived his
Commission’s Rules of Practice and Procedure (19 1 The record establishes that Respondent was
right to a hearing on the allegations. 21
CFR 207.2(f)). registered as a ‘‘practitioner’’ with respect to each
2 Commissioner Meredith M. Broadbent of the above DEA registrations. Certifications of
CFR 1301.43(c). However, pursuant to
dissenting. Commissioner Jason E. Kearns did not Registration History for FM5300582 and 21 CFR 1301.43(c), I deem Respondent’s
participate in these investigations. FM5293294, GXs A–1 at 1, 3; A–2, at 1, 3. submission to be his ‘‘written statement

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Document Created: 2018-11-06 10:29:33
Document Modified: 2018-11-06 10:29:33
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
FR Citation		83 FR 36966
83 FR 36966 - Craig S. Morris, DDS; Dismissal of Proceeding

DEPARTMENT OF JUSTICEDrug Enforcement Administration

Federal Register Volume 83, Issue 147 (July 31, 2018)

DEPARTMENT OF JUSTICE
Drug Enforcement Administration
