Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Notices 16835 

way * * * using (his son’s problems) as an excuse 

for bad behavior or to try to rationalize it away 

* * * as being justified.’’ Id. Moreover, in 

discussing the public interest factors and whether 

the respondent had rebutted the Government’s 

prima facie case, the decision made no reference to 

the medical issues of his son. See 63 FR at 11909– 

10. It is thus inaccurate to say that the Agency 

‘‘considered the effect a relative’s medical issues 

can have on a practitioner and recognized that 

when those stresses are taken out of the picture, it 

is less likely that the circumstances will ever be 

repeated.’’ ALJ at 23. 

Most significantly, the Agency’s decision in 

Oakes noted in at least three different places that 

the respondent had expressed remorse and accepted 

responsibility for his misconduct. See 63 FR at 

11909 (noting that ‘‘the evidence in favor of denial 

of Respondent’s application is overcome by * * * 

his expressions of remorse and acceptance of 

responsibility for his actions’’); id. at 11910 (noting 

that while the respondent’s misrepresentation on a 

state application ‘‘is troublesome, it does not 

warrant the denial of Respondent’s application in 

light of his expressions of remorse and acceptance 

of responsibility for his actions’’). 

Thus, contrary to the ALJ’s reasoning, Oakes 

provides no comfort to Respondent. Moreover, even 

giving weight to Respondent’s testimony that he is 

not likely to again invite a patient to live with him, 

his testimony does not address his misconduct with 

respect to Patients #2 and 3. 

18The ALJ also noted that since the revocation of 

his registration, ‘‘Respondent has had no further 

problems related to his practice of medicine.’’ ALJ 

at 20. Given that DEA does not regulate the practice 

of medicine, it is an open question whether such 

evidence is even relevant in assessing whether an 

applicant’s registration would be consistent with 

the public interest. See Edmund Chein, 72 FR 6580, 

6590 (2007) (declining to decide ‘‘whether a 

registrant’s unwillingness to comply with State 

rules that are unrelated to controlled substances can 

be considered [in a revocation proceeding] when 

the registrant maintains a valid State license’’). 

What is noteworthy, however, are the State ALJ’s 

extensive findings regarding Respondent’s 

dispensing of controlled substances to Patient #1, 

not only during the period following the issuance 

of the first Order to Show Cause on July 29, 1993, 

but also after the DEA ALJ’s issuance of his 

recommended decision on January 12, 1995. While 

the DEA ALJ’s decision was not a final decision of 

the Agency, it found that Respondent dispensed 

controlled substances to Patient #1 ‘‘on demand,’’ 

‘‘virtually upon request,’’ with ‘‘virtually no 

scrutiny,’’ that his ‘‘prescribing and dispensing to 

[Patient #1] was outside of the context of the 

Respondent’s usual professional practice’’ and thus 

violated 21 CFR 1306.04(a), and that the 

Government had ‘‘established a prima facie case 

under factor (2).’’ GX 6, at 20. Yet thereafter, 

Respondent continued to engage in what the State 

ALJ ‘‘characterized as irrational polypharmacy’’; the 

State ALJ further noted that ‘‘[t]otally absent from 

his care and treatment of [Patient #1] was control, 

monitoring and periodic assessment’’ and that 

‘‘[f]rom 1990 to 1996, almost all of respondent’s 

prescribing to [Patient #1] took place in the absence 

of a legitimate physical examination.’’ GX 8, at 15– 

16. 

clear, Respondent is not entitled to ‘‘an 

opportunity to demonstrate that he can 

responsibly handle controlled 

substances’’ through the issuance of 

even a restricted registration unless and 

until he accepts responsibility for his 

misconduct.18

It is acknowledged that fifteen years 

have passed since the first Agency 

Order. See ALJ at 20–21, 28. However, 

DEA has long held that ‘‘[t]he paramount 

issue is not how much time has elapsed 

since [his] unlawful conduct, but rather, 

whether during that time. * * * 

Respondent has learned from past 

mistakes and has demonstrated that he 

would handle controlled substances 

properly if entrusted with a new 

registration. Leonardo v. Lopez, 54 FR 

36915 (1989); see also Leslie, 68 FR at 

15227 (revoking registration issued 

through administrative error on ground 

that practitioner still refused to 

acknowledge misconduct which he 

committed seventeen years earlier 

notwithstanding that there was no 

evidence that he had mishandled 

controlled substances under the 

erroneously issued registration). 

Moreover, it should be noted that 

neither the 1995 Order, nor any Agency 

rule, barred Respondent from reapplying at an earlier date. What does 

bar his obtaining of a new registration 

is his failure to fully acknowledge his 

misconduct. Absent Respondent’s 

acknowledgment of the full scope of his 

misconduct, I am compelled to 

conclude that issuing him a new 

registration would be ‘‘inconsistent with 

the public interest.’’ 21 U.S.C. 823(f). 

Accordingly, I reject the ALJ’s 

recommended ruling and will deny 

Respondent’s application. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f), as well as 28 CFR 

0.100(b) and 0.104, I order that the 

pending application of Robert L. 

Dougherty, M.D., for a DEA Certificate 

of Registration as a practitioner, be, and 

it hereby is, denied. This Order is 

effective immediately. 

Dated: March 11, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–7014 Filed 3–24–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Erwin E. Feldman, D.O.; Revocation of 

Registration 

On May 29, 2009, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Erwin E. Feldman, D.O. 

(Respondent), of Madison Heights, 

Michigan. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration, AF9086415, which 

authorizes him to dispense controlled 

substances as a practitioner, and the 

denial of any pending applications to 

renew his registration, on the ground 

that his ‘‘continued registration is 

inconsistent with the public interest.’’ 

Show Cause Order at 1 (citing 21 U.S.C. 

823(f) and 824(a)). 

More specifically, the Show Cause 

Order alleged that on January 18, 2005, 

DEA issued an Order to Show Cause to 

Respondent, which alleged, inter alia, 

that between December 2001 and July 

2004, he had prescribed controlled 

substances on ten occasions to 

undercover agents without performing a 

medical examination, and that he had 

issued prescriptions for Suboxone ‘‘to 

treat opiate addiction without having 

obtained’’ certification from the 

Michigan Center for Substance Abuse 

Treatment and a separate DEA 

registration to prescribe controlled 

substances for ‘‘maintenance and 

detoxification treatment of opiate 

addiction as required by 21 U.S.C. 

823(g).’’ Id. at 1–2. 

Next, the Show Cause Order alleged 

that on April 4, 2007, Respondent 

entered into a Memorandum of 

Agreement (MOA) with the Agency to 

resolve the allegations of the 2005 Show 

Cause Order, which was to remain in 

force through May 2010. Id. at 2. The 

Show Cause Order then alleged that 

under the MOA, Respondent agreed that 

he would prescribe controlled 

substances for only a thirty-day supply 

with one refill; that he would not 

prescribe controlled substances to 

persons who were not residents of the 

State of Michigan; that he would not 

prescribe controlled substances to 

family members; that he would 

maintain a log of all controlled 

substance prescriptions he issued; that 

he would maintain in patient charts, 

reports from the Michigan Automated 

Prescriptions System (MAPS) for all 

patients who received controlled 

substances from him for ‘‘in excess of six 

months’’; and that he would notify DEA 

‘‘in writing, within twenty days of the 

initiation of any proceedings which 

impacted [his] ability to handle 

controlled substances, including the 

initiation of any action by a state entity 

to restrict, deny, rescind, suspend, 

revoke or otherwise limit [his] authority 

to handle controlled substances.’’ Id. 

Finally, the Show Cause Order alleged 

that Respondent had violated the MOA. 

Id. The Order specifically alleged that 

‘‘on several occasions,’’ Respondent had 

issued controlled substance 

prescriptions ‘‘with as many as seven 

refills’’; that he had prescribed 

controlled substances to residents of 

Florida and Colorado; that he had 

prescribed Phenobarbital, a schedule IV 


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16836 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Notices 

controlled substance, to his wife; that he 

had failed to maintain an accurate log of 

his controlled substance prescriptions; 

that he had failed to maintain MAPS 

reports for those patients he prescribed 

controlled substances to for more than 

six months; and that he had ‘‘failed to 

notify DEA in writing’’ that on 

November 3, 2008, the Michigan Board 

of Osteopathic Medicine and Surgery 

had filed an administrative complaint 

against his medical license. Id. 

Respondent requested a hearing on 

the allegations, and the matter was 

placed on the docket of the Agency’s 

Administrative Law Judges (ALJs). 

Thereafter, the ALJ ordered the parties 

to file pre-hearing statements. Ex. 6. On 

July 27, 2009, the Government filed its 

pre-hearing statement; on August 17, 

Respondent’s counsel filed a notice of 

appearance and requested a two-week 

extension to file Respondent’s prehearing statement. Id. The record does 

not disclose what action the ALJ took in 

response to Respondent’s request for an 

extension. However, on September 4, 

the ALJ issued a ‘‘Notice to Show Cause 

Why the Proceeding Should Not Be 

Terminated’’ and gave Respondent 

‘‘until September 18 to respond.’’ Id. On 

September 21, Respondent’s counsel 

faxed a document which bore the 

caption of Respondent’s Pre-Hearing 

Statement. Id. However, when several 

pages appeared to be missing, the ALJ’s 

office left telephone messages on 

September 21, 22 and 23 with 

Respondent’s counsel, notifying him 

that the entire document had not been 

received. Id. 

On September 28, the ALJ issued 

another ‘‘Notice to Show Cause Why the 

Proceeding Should Not Be Terminated’’ 

and gave Respondent until October 1 to 

file a response. Id. However, on October 

20, 2009, the ALJ ordered that the 

proceeding be terminated, noting that 

Respondent had not filed a response to 

the order. Id. The ALJ further 

‘‘conclude[d] that Respondent has 

waived his right to a hearing.’’ Order 

Terminating Proceedings, at 1. 

Thereafter, the Investigative Record 

was forwarded to this Office for final 

agency action. Having reviewed the 

entire record in this matter, I adopt the 

ALJ’s finding that Respondent has 

waived his right to a hearing. See 21 

CFR 1301.43(d). I make the following 

findings of fact. 

Findings 

Respondent is the holder of DEA 

Certificate of Registration, AF9086415, 

which authorizes him to dispense 

controlled substances in schedules II 

through V as a practitioner. 

Respondent’s registration was due to 

expire on September 30, 2008; however, 

on September 22, 2008, Respondent 

submitted a renewal application. 

Because Respondent’s renewal 

application was timely submitted, I find 

that Respondent’s registration remains 

in effect pending the issuance of this 

Decision and Final Order. See 5 U.S.C. 

558(c). Moreover, on March 17, 2010, 

Respondent submitted a further 

application for registration as a 

practitioner. See GX 2. 

On January 18, 2005, the Deputy 

Assistant Administrator, Office of 

Diversion Control, issued an Order to 

Show Cause to Respondent, which 

proposed the revocation of his 

registration. GX 3. The 2005 Show 

Cause Order alleged that Respondent 

had ‘‘issued numerous prescriptions for 

controlled substances to’’ an addict, and 

that he had continued to prescribe 

controlled substances to patient P.H. 

even after he became aware that P.H. 

had been admitted to a hospital 

following an overdose. Id. at 2–3. This 

Show Cause Order further alleged that 

between December 2001 and July 2004, 

four DEA Agents made undercover 

visits to Respondent and that on at least 

ten occasions, the Agents had obtained 

prescriptions ‘‘without having received 

any type of medical exam.’’ Id. at 3. 

The 2005 Show Cause Order also 

alleged that Respondent was engaged in 

family practice, that he issued a 

substantially greater number of 

controlled-substance prescriptions than 

four other family practice physicians 

who practiced at the same medical 

office building, and that he had issued 

approximately 59% of the controlled 

substance prescriptions which were 

dispensed by the Oakland Medical 

Pharmacy, which was located in the 

same building. Id. at 1, 4–5. Finally, the 

Show Cause Order alleged that 

Respondent had prescribed Suboxone to 

three patients even though he did not 

possess a certification issued by the 

Michigan Center for Substance Abuse 

Treatment or a DEA registration to 

prescribe controlled substances for 

maintenance and detoxification 

treatment; the Order also alleged that he 

had prescribed Suboxone to three 

patients simultaneously with other 

controlled substances which were 

contraindicated. Id. at 5–6. 

Respondent requested a hearing on 

the allegations of the 2005 Show Cause 

Order. Thereafter, the parties settled the 

matter and entered into a Memorandum 

of Agreement (MOA), under which the 

Agency agreed to renew Respondent’s 

registration subject to various terms as 

set forth in the MOA. The MOA, which 

became effective on May 21, 2007, was 

to remain in force for a period of three 

years. GX 5, at 2 & 5. 

More specifically, Respondent agreed 

to limit his controlled substance 

activities ‘‘to prescribing only,’’ that he 

would prescribe a controlled substance 

for only a thirty-day supply with one 

refill, and that he would issue a new 

controlled-substance prescription only 

after a patient visited with him. Id. at 2. 

Respondent also agreed that he would 

not prescribe controlled substances to 

persons who were not residents of the 

State of Michigan; that he would not 

prescribe controlled substances ‘‘to 

members of his immediate family’’; that 

he would maintain a quarterly log of all 

controlled-substance prescriptions he 

issued which would be available to DEA 

personnel on request; and that in his 

patient charts, he would maintain 

reports from the Michigan Automated 

Prescriptions System (MAPS) for all 

patients who received controlled 

substances from him for ‘‘in excess of six 

months.’’ Id. at 2–3. 

Respondent also agreed that he would 

not ‘‘delegate to any pharmacist 

authorization to dispense’’ a new 

controlled-substance prescription ‘‘or 

refill an existing prescription * * * 

prior to speaking with [him] or his 

designated representative * * * unless 

such prescription is pursuant to a lawful 

prescription order by [him].’’ Id. at 3. 

Respondent further agreed to notify 

DEA ‘‘in writing, within twenty days of 

the initiation of any proceedings which 

impacted [his] ability to handle 

controlled substances, including the 

initiation of any action by a state entity 

to restrict, deny, rescind, suspend, 

revoke or otherwise limit [his] authority 

to handle controlled substances.’’ Id. at 

4. Finally, Respondent agreed that ‘‘if he 

violate[d] any term or condition of [the 

MOA], such violation could result in 

[the] initiation of proceedings to revoke 

his’’ DEA registration. Id. at 4–5. 

According to the affidavit of a DEA 

Diversion Investigator (DI), following 

Respondent’s submission of his renewal 

application, DIs obtained from both 

local pharmacies and MAPS, 

information pertaining to the 

prescriptions issued by Respondent; the 

DIs also met with Respondent on 

February 11, 2009 to review his 

compliance with the MOA. GX 22, at 4– 

5. 

During the February 11, 2009 meeting, 

Respondent provided the DIs with his 

controlled-substance prescription log. 

Id. at 5. The log showed that 

Respondent had issued prescriptions to 

several patients with ‘‘as many as five 

refills’’ for Androgel, a schedule III 

controlled substance, as well as that he 

had issued prescriptions with between 


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Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Notices 16837 

1Respondent received the complaint on 

November 8, 2008. See GX 19 (letter from 

Respondent to Michigan Bureau of Health 

Professions). 

2 In its Request for Final Agency Action, the 

Government also contends that Respondent altered 

the expiration date of his registration when he 

submitted his credentials to a health insurance 

company. The Government did not, however, 

establish that it provided notice to Respondent of 

its intent to rely on this conduct in this proceeding. 

3The Government has ‘‘the burden of proving that 

the requirements for * * * revocation or 

suspension pursuant to section 304(a) * * * are 

satisfied.’’ 21 CFR 1301.44(e); see also 21 CFR 

1301.44(d) (Government has ‘‘the burden of proving 

that the requirement for [a] registration pursuant to 

section 303 * * * are not satisfied’’). In a contested 

hearing, where the Government satisfies its prima 

facie burden, the burden then shifts to the registrant 

to demonstrate why he can be entrusted with a new 

registration. Medicine Shoppe-Jonesborough, 73 FR 

363, 380 (2008). 

4With respect to factor one, while the 

Investigative Record contains a copy of the 

Administrative Complaint filed by the Michigan 

Board, there is no evidence establishing the 

outcome of this proceeding. However, even 

assuming that Respondent retains his state 

authority, DEA has long held that while the 

possession of state authority is an essential 

condition for holding a Practitioner’s registration, 

see 21 U.S.C. 823(f), this factor is not dispositive in 

the public interest inquiry. Patrick Stodola, 74 FR 

20727, 20730 n.16 (2009). 

Likewise, there is no evidence that Respondent 

has been convicted of a criminal offense under 

either Federal or State law related to the 

distribution or dispensing of a controlled substance 

(factor three). However, because there are multiple 

reasons why a person may not even be charged, let 

alone be convicted of such an offense, DEA has long 

held that this factor is not dispositive. See Edmund 

Chein, 72 FR 6580, 6593 n.22 (2007). 

three and seven refills, to multiple 

patients for Testim, another schedule III 

controlled substance. Id.; see also GXs 7, 

9–11, 13. The evidence also showed that 

Respondent had issued a prescription 

for Ativan (lorazepam), a schedule IV 

controlled substance, with three refills, 

to two different patients. See GX 7. 

Based on their review of MAPS data 

and medical records, the DIs further 

determined that on December 21, 2007, 

Respondent had issued a prescription 

for hydrocodone/acetaminophen, a 

schedule III controlled substance to 

M.L.G., a resident of Florida; that on 

January 8, 2008, he had issued a 

prescription for propoxyphene/ 

acetaminophen, a schedule IV 

controlled substance, to M.S.E., a 

resident of Colorado; and that on July 25 

and August 18, 2008, he had issued 

prescriptions for 60 and 90 tablets of 

alprazolam, a schedule IV controlled 

substance, to B.P., a resident of Port 

Orange, Florida. GX 22, at 6. The DIs 

further determined that on September 

24, 2007, Respondent prescribed 160 

tablets of phenobarbital, a schedule IV 

controlled substance, to his wife, by 

calling in a prescription to a local 

pharmacy. Id. at 7; see also GX 16. 

Moreover, during the February 11, 2009 

meeting with the DIs, Respondent 

denied calling in the prescription for his 

wife and maintained ‘‘that he called in 

a refill of an earlier phenobarbital 

prescription issued by’’ another 

physician (Dr. C.) on September 21, 

2007. GX 22, at 7. However, the 

prescription issued by Dr. C. was for 

only sixteen tablets with two refills. Id. 

In addition, the DIs compared the 

MAPS report showing Respondent’s 

prescribing with the controlledsubstance log he was required to 

maintain. Id. at 8. This review showed 

that Respondent had failed to document 

fourteen prescriptions in the log. Id. 

Upon reviewing the patient charts, the 

DIs also found various instances in 

which Respondent had prescribed 

controlled substances to a patient for 

more than six months and had not 

maintained a MAPS report in the 

patient’s chart. Id. at 9. 

Finally, on November 3, 2008, the 

Michigan Board of Ostheopathic 

Medicine and Surgery issued an 

administrative complaint to Respondent 

charging him with eight counts of 

violating state law, including five 

counts of ‘‘prescribing drugs without a 

lawful diagnostic or therapeutic 

purpose.’’ GX 18, at 5–12; 19 (citing 

Mich. Comp. Laws § 16221(c)(iv)). The 

Board also charged Respondent with 

negligence and incompetence based on 

his prescribing of Suboxone to treat 

opioid dependence without having 

‘‘obtain[ed] the necessary certification.’’ 

Id. at 18–19 (citing Mich. Comp. Laws 

§§ 16221(a) and 16221(b)(i)). While the 

Board sought to impose sanctions on 

Respondent’s medical license,1 see id. at 

1–3, Respondent did not notify DEA of 

the proceeding.2 GX 22, at 10. 

Discussion 

Section 304(a) of the CSA provides 

that a ‘‘registration pursuant to section 

823 of this title to * * * dispense a 

controlled substance * * * may be 

suspended or revoked by the Attorney 

General upon a finding that the 

registrant * * * has committed such 

acts as would render his registration 

under section 823 of this title 

inconsistent with the public interest as 

determined under such section.’’ 21 

U.S.C. 824(a)(4). In determining the 

public interest, Congress directed that 

the following factors be considered: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * controlled substances. 

(3) The applicant’s conviction record under 

Federal or State laws relating to the 

manufacture, distribution, or dispensing of 

controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to controlled 

substances. 

(5) Such other conduct which may threaten 

the public health and safety. 

21 U.S.C. 823(f). 

‘‘[T]hese factors are considered in the 

disjunctive.’’ Robert A. Leslie, 68 FR 

15227, 15230 (2003). I may rely on any 

one or a combination of factors and may 

give each factor the weight I deem 

appropriate in determining whether to 

revoke an existing registration or to 

deny an application for a registration. 

Id. Moreover, I am ‘‘not required to make 

findings as to all of the factors.’’ Hoxie 

v. DEA, 419 F.3d 477, 482 (6th Cir. 

2005); see also Morall v. DEA, 412 F.3d 

165, 173–74 (D.C. Cir. 2005).3

In this matter, I conclude that the 

record establishes that Respondent has 

violated multiple provisions of the 

MOA and that these violations are 

relevant under factors two and five. The 

record also establishes that Respondent 

made a false statement to DEA 

Investigators when he denied having 

issued a controlled substance 

prescription to his wife. This conduct is 

also relevant under factor five. I 

therefore conclude that Respondent has 

committed acts which render his 

registration inconsistent with the public 

interest and that these acts are 

sufficiently egregious to warrant the 

revocation of his registration.4

Factors Two and Five—Respondent’s 

Experience in Dispensing Controlled 

Substances and Such Other Conduct 

Which May Threaten Public Health and 

Safety 

In May of 2007, DEA exercised 

forbearance and allowed Respondent to 

settle a previous Show Cause 

proceeding by entering into an MOA. 

However, as found above, Respondent 

promptly proceeded to violate multiple 

provisions of the MOA. 

First, Respondent violated the MOA’s 

restriction that he could only prescribe 

a thirty-day supply of a controlled 

substance with one refill, and that he 

could issue a new prescription only 

after the patient visited him. More 

specifically, the record shows that 

Respondent issued prescriptions which 

authorized multiple refills to multiple 

patients for both schedule III anabolic 

steroids (Androgel and Testim) and a 

schedule IV depressant (lorazepam). 

Second, Respondent violated the 

MOA’s provision that he could not 

prescribe a controlled substance to a 

non-resident of Michigan. More 

specifically, Respondent prescribed 

hydrocodone/acetaminophen, a 

schedule III controlled substance, to 


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16838 Federal Register / Vol. 76, No. 58 / Friday, March 25, 2011 / Notices 

M.L.G., a resident of Florida; he 

prescribed propoxyphene and 

acetaminophen, a schedule IV 

controlled substance, to M.S.E., a 

resident of Colorado; and on two 

occasions, he prescribed alprazolam, a 

schedule IV controlled substance to 

B.P., a resident of Florida. 

Third, Respondent violated the 

MOA’s prohibition against his 

prescribing to a member of his 

immediate family. More specifically, on 

September 24, 2007, Respondent 

prescribed 160 tablets of phenobarbital, 

a schedule IV controlled substance, to 

his wife. Moreover, when questioned by 

the DIs regarding the prescription, 

Respondent denied having called in the 

prescription and asserted that he had 

only called in a refill of an earlier 

prescription which had been written by 

another physician. Respondent’s 

statement was false because the other 

physician had authorized refills for only 

sixteen tablets, and it was materially 

false because the MOA prohibited him 

from prescribing to a family member 

and was thus capable of influencing the 

decision of the Agency as to whether to 

seek the revocation of his registration. 

See David A. Hoxie, M.D., 69 FR 51477, 

51479 (2004) (considering false 

statements to investigators under factor 

five). 

Fourth, Respondent violated the 

MOA’s requirement that he maintain a 

log of all controlled-substance 

prescriptions he issued. More 

specifically, Respondent failed to 

document fourteen controlled-substance 

prescriptions in the log. 

Finally, Respondent violated the 

MOA’s requirement that he notify DEA, 

in writing, within twenty days, of ‘‘the 

initiation of any action by a state entity 

to * * * suspend, revoke, or otherwise 

limit [his] authority to handle controlled 

substances.’’ Notwithstanding that the 

State filed an Administrative Complaint 

against him, which sought to impose 

sanctions on his medical license and his 

authority to handle controlled 

substances, see Mich. Comp. Laws 

§ 333.7311(6), Respondent failed to 

notify DEA that the proceeding had 

been brought. 

DEA has long held that a registrant’s 

failure to comply with the terms of an 

MOA can constitute acts which render 

his registration inconsistent with the 

public interest. See Fredal Pharmacy, 55 

FR 53592, 53593 (1990) (holding that 

pharmacy which violated MOA ‘‘ha[d] 

engaged in conduct which threatens the 

public health and safety’’). This is so 

even if the violation of the MOA does 

not establish a violation of the CSA or 

its implementing regulations. Moreover, 

Respondent’s various violations of the 

MOA, as well as his having made a false 

statement to the Investigators, show that 

he cannot be trusted to faithfully 

comply with the obligations of a 

registrant. I therefore conclude that 

Respondent’s registration should be 

revoked and his pending application 

should be denied. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a)(4), as well 

as by 28 CFR 0.100(b) & 0.104, I order 

that DEA Certificate of Registration, 

AF9086415, issued to Erwin E. 

Feldman, D.O., be, and it hereby is, 

revoked. I further order that any 

application of Erwin E. Feldman, D.O., 

to renew or modify such registration, be, 

and it hereby is, denied. This Order is 

effective April 25, 2011. 

Dated: March 10, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–7047 Filed 3–24–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Federal Bureau of Prisons 

Finding of No Significant Impact; 

Notice of Availability of the Finding of 

No Significant Impact (FONSI) 

Concerning a Proposal To Award a 

Contract for New Low Security Beds to 

One Private Contractor To House 

Approximately 1,000 Federal, LowSecurity, Adult Male, Non-US Citizen, 

Criminal Aliens at a Contractor-Owned, 

Contractor-Operated Correctional 

Facility 

AGENCY: U.S. Department of Justice, 

Federal Bureau of Prisons. 

ACTION: Finding of No Significant 

Impact. 

SUMMARY: The U.S. Department of 

Justice, Federal Bureau of Prisons (BOP) 

announces the availability of the 

Finding of No Significant Impact 

(FONSI) concerning the Environmental 

Assessment (EA) for the proposal to 

award one or more contracts to house 

approximately, 1,000 federal, lowsecurity, adult males, criminal aliens 

within one existing contractor owned, 

contractor operated facility. 

Background Information 

Growth of the federal inmate 

population has been substantial over the 

last two decades. Currently, the 

increased federal inmate population 

exceeds the combined rated capacities 

of the 116 BOP facilities. It is projected 

that this growth will continue as a result 

of actions and programs implemented 

by the U.S. Department of Justice and 

the U.S. Department of Homeland 

Security regarding sentenced and 

unsentenced criminal aliens. 

In response, the BOP is seeking 

flexibility in managing its current 

shortage of beds by contracting for those 

services with non-federal facilities to 

house federal inmates. This approach 

provides the BOP with flexibility to 

meet population capacity needs in a 

timely fashion, conform to federal law, 

and maintain fiscal responsibility, while 

successfully attaining the mission of the 

BOP. 

The BOP proposed action is to award 

one contract to house approximately 

1,000 federal low-security, adult male, 

non-U.S. citizen, criminal aliens at an 

existing privately owned and privately 

operated correctional facility. Under the 

Proposed Action, the selected contractor 

would be required to operate the facility 

in a manner consistent with the mission 

and requirements of the BOP. All 

inmate services would be developed in 

a manner that complies with the BOP’s 

contract requirements, as well as 

applicable federal, state, and local laws 

and regulations. The contract also 

requires that no new construction or 

expansion of the existing facility occur. 

In addition, the facility will be within 

proximity, and have access to, 

ambulatory, fire and police protection 

services. The federal inmates assigned 

to this facility would consist primarily 

of inmates with sentences of 90 months 

or less remaining to be served. As 

described previously these inmates are 

anticipated to be low-security, adult 

male, non-U.S. citizen, criminal aliens, 

however the BOP may designate any 

inmate within its custody to serve their 

sentence in this facility. The contract 

awarded for this action would have one 

four-year base period and three, twoyear option periods, for a maximum 

term of ten years. 

Five existing privately owned and 

operated correctional facilities in 

Kentucky, Louisiana, and Texas have 

been offered in response to the BOP’s 

nationwide solicitation from which the 

BOP will award one contract to one of 

the five facilities offered. Each of the 

following existing facilities has been 

evaluated in this EA. In addition, the No 

Action Alternative is evaluated, to 

determine baseline conditions and 

comply with the provisions of NEPA. 

• Lee Adjustment Center. Located on 

an approximately 90 acre parcel in 

Beattyville, Kentucky. 

• Limestone County Detention 

Center. Located on a 293 acre parcel in 

Groesbeck, Texas. 


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