17704 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 

1See 21 CFR 1308.12(b)(1)(ix) & (c)(9). According 

to the FDA-approved package insert for fentanyl 

citrate injection, a dosage of 0.1 mg in 2 ml. 

solution is ‘‘approximately equivalent in analgesic 

activity to 10 mg of morphine’’; fentanyl is thus 

approximately 100 times more powerful than 

morphine. Its approved uses are primarily for 

analgesic action ‘‘during anesthetic periods, 

premedication, induction and maintenance, and in 

the immediate postoperative period’’ as needed, and 

also as ‘‘a narcotic analgesic supplement in general 

or regional anesthesia.’’ Other uses include 

‘‘administration with a neuroleptic such as 

droperidol injection as an anesthetic premedication, 

for the induction of anesthesia, and as an adjunct 

in the maintenance of general and regional 

anesthesia,’’ and ‘‘as [an] anesthetic agent with 

oxygen in selected high risk patients, such as those 

undergoing open heart surgery or certain 

complicated neurological or orthopedic 

procedures.’’ 

what happened is simply a case of 

crying crocodile tears. Because 

Respondent has not accepted 

responsibility for his misconduct and 

that misconduct manifests an egregious 

disregard for his responsibilities as a 

DEA registrant, I hold that Respondent 

has not rebutted the Government’s 

prima facie showing that his continued 

registration is ‘‘inconsistent with the 

public interest.’’ 21 U.S.C. 824(a)(4). 

Accordingly, Respondent’s registration 

will be revoked and any pending 

application will 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, 

BB3698632, issued to Scott C. Bickman, 

M.D., be, and it hereby is, revoked. I 

further order that any application for 

renewal or modification of such 

registration be, and it hereby is, denied. 

This Order is effective April 29, 2011. 

Dated: March 22, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–7393 Filed 3–29–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Roger A. Pellmann, M.D.; Revocation 

of Registration 

On January 29, 2010, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and Immediate Suspension 

of Registration (Order) to Roger A. 

Pellmann, M.D. (Respondent), of 

Germantown, Wisconsin. The Order 

proposed the revocation of 

Respondent’s registration, AP1892822, 

on the ground that his ‘‘continued 

registration is inconsistent with the 

public interest, as that term is defined 

in 21 U.S.C. 823(f) and (g)(2)(E)(i).’’ 

Order, at 1. 

The Order alleged that Respondent 

‘‘possessed and dispensed controlled 

substances at 3129 S. Ridge Crest, New 

Berlin, Wisconsin,’’ an unregistered 

location, in violation of 21 U.S.C. 

841(a)(1). Order, at 1. The Order further 

alleged that beginning ‘‘in 

approximately June 2009,’’ Respondent 

‘‘prescribed controlled substances to an 

employee for other than legitimate 

medical purposes,’’ in violation of 21 

U.S.C. 841(a)(1) and 21 CFR 1306.04. Id. 

at 2. The Order also alleged that at 

Respondent’s ‘‘request,’’ a local 

pharmacy dispensed controlled 

substances which were ‘‘returned’’ to 

Respondent for his ‘‘personal use,’’ in 

violation of 21 U.S.C. 843(a)(3). Id. 

Next, the Order alleged that an 

‘‘accountability audit performed at 

[Respondent’s] office in November 

2009’’ found ‘‘an unexplained shortage 

of approximately 10,470 fentanyl citrate 

0.05 mg/ml (2 ml ampule) during the 

first audit and an unexplained shortage 

o[f] approximately 9,556 fentanyl citrate 

0.05 mg/ml (2 ml ampule) during the 

second audit.’’ Id. The Order also 

alleged that ‘‘accountability audits for 

morphine sulfate indicated a shortage of 

approximately 780 units of morphine 

sulfate injection 15 mg/ml (20 ml vial); 

1825 units of morphine sulfate injection 

10 mg/ml (1 ml vial); 550 units of 

morphine sulfate injection 8 mg/ml (1 

ml vial); and 200 units of morphine 

sulfate injection 5 mg/ml (1 ml vial).’’ Id. 

Finally, the Order alleged that ‘‘[n]o 

initial inventory was taken upon the 

establishment of the registered location, 

nor was a biennial inventory taken of 

the controlled substances on the 

premises of the registered location every 

two years’’ and that ‘‘records were not 

properly maintained for the dispensed 

controlled substances.’’ Id. (citing 21 

CFR 1304.11, 1304.11(b) & (c), and 

1304.22(c)). Based on the above, I 

concluded that Respondent’s continued 

registration during these proceedings 

‘‘constitutes an imminent danger to the 

public health and safety’’ and 

immediately suspended his registration. 

Id. (citing 21 U.S.C. 824(d)). 

On February 24, 2010, Respondent 

timely filed a request for a hearing on 

the allegations. The matter was placed 

on the docket of the DEA 

Administrative Law Judges (ALJ) and 

was set for hearing on June 22, 2010. 

Order Terminating Proceeding, at 1. 

However, on June 7, 2010, counsel for 

Respondent notified the ALJ that 

following Respondent’s criminal 

conviction after trial ‘‘on facts related to 

the allegations set forth’’ in the Order, he 

‘‘no longer wished to pursue a hearing.’’ 

Id. The same day, Respondent’s Counsel 

also wrote a letter to the ALJ stating that 

he was ‘‘waiving his opportunity to 

participate in the hearing’’ and 

submitting his statement of facts and his 

position. Letter from Adam C. Essling 

(June 7, 2010), at 1 (citing 21 CFR 

1301.43(c)). 

Mr. Essling’s letter additionally stated 

that Respondent ‘‘maintains that his 

registration is not inconsistent with 

[the] public interest under 21 U.S.C. 

823(f).’’ Id. More specifically, the letter 

related that Respondent ‘‘maintains that 

[J.E.] has been a patient of his since 

2005’’ and that ‘‘[a]ll of the controlled 

substances provided to [J.E.] were for a 

legitimate purpose.’’ Id. However, the 

letter conceded that Respondent ‘‘did 

not maintain a proper inventory or 

records for the controlled substances 

dispensed within the scope of his 

practice.’’ Id. 

By order of June 8, 2010, the ALJ 

terminated the proceeding. Order 

Terminating Proceeding, at 2. 

Thereafter, the Investigative Record was 

forwarded to me for Final Agency 

Action. 

Based on relevant evidence contained 

in the Investigative Record, I conclude 

that Respondent has committed acts 

which render his registration 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. 824(a)(4). I will therefore, 

order that Respondent’s registration be 

revoked and that any pending 

applications to renew or modify his 

registration be denied. I make the 

following findings of fact. 

Findings 

Respondent is a physician licensed by 

the State of Wisconsin who practices 

radiology. Respondent also holds DEA 

Certificate of Registration, AP1892822; 

the registration, which does not expire 

until March 31, 2011, authorizes him to 

dispense controlled substances as a 

practitioner at the registered location of 

CMI—Center for Medical Imaging, W178 

N9912 Rivercrest Drive, Suite 102, 

Germantown, Wisconsin (‘‘CMI,’’ or 

‘‘Germantown clinic’’). Certificate of 

Registration Status (March 11, 2010). 

However, on January 29, pursuant to my 

authority under 21 U.S.C. 824(d), I 

ordered that Respondent’s registration 

be immediately suspended; Respondent 

was served with the Order on February 

2, 2010. 

On September 4, 2009, a confidential 

source (CI) informed a DEA Diversion 

Investigator (DI) that Respondent had 

‘‘been providing [J.E.] with large 

quantities of liquid Fentanyl and 

morphine sulfate, both of which are 

Schedule II controlled substances,1 for 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Notices 17705 

The package insert furthers that the drug 

‘‘SHOULD BE ADMINISTERED ONLY BY 

PERSONS SPECIFICALLY TRAINED IN THE USE 

OF INTRAVENOUS ANESTHETICS AND 

MANAGEMENT OF THE RESPIRATORY EFFECTS 

OF POTENT OPIODS. AN OPIOD ANTAGONIST, 

RESCUCITATIVE AND INTUBATION 

EQUIPMENT, AND OXYGEN SHOULD BE 

READILY AVAILABLE.’’ 

no legitimate medical purpose and that 

[J.E.] is addicted to these drugs.’’ 

Affidavit of G. Connor, at 2–3. The CI 

further stated that J.E. and Respondent 

had been involved in a sexual 

relationship for the past two years, and 

that J.E. worked at Respondent’s 

Germantown clinic, but ‘‘since 

approximately June 2009,’’ had ‘‘been 

doing most of her work at home because 

she [was] too addicted to narcotic drugs 

to go to the office.’’ Id. at 3. 

According to the CI, approximately 

two years earlier, the CI was at J.E.’s 

residence when J.E. complained of a 

migraine headache; J.E. called 

Respondent and asked him to bring 

something for her headache. Id. 

Respondent later arrived ‘‘with an IV bag 

* * * an IV bag holder, several vials 

and syringes.’’ Id. at 3. At that point, the 

CI left the premises. Id. 

The CI further stated that several 

months earlier the company 

underwriting Respondent’s employees’ 

health insurance had informed 

Respondent that the plan might not ‘‘be 

renewed because of the high number of 

prescriptions [Respondent] was writing 

for Schedule II controlled substances for 

one of the employees at the clinic.’’ Id. 

at 4. The CI further stated that clinic 

employees filled their prescriptions at 

Walgreen’s pharmacies. Id. 

A DI obtained records of all the 

prescriptions written by Respondent 

and filled at ‘‘Walgreens pharmacies 

located in southeastern Wisconsin 

during the two-year period from 

September 1, 2007 through August 31, 

2009.’’ Id. at 6. The records showed that 

Walgreen’s had filled 409 prescriptions 

issued by Respondent for narcotic 

controlled substances in this period, of 

which ‘‘138 (approximately 35%) had 

been’’ issued for J.E. Id. 

The prescriptions for J.E. included six 

for morphine sulfate, ten for oxycodone, 

and two for fentanyl patches (or its 

generic equivalent), all of which are 

Schedule II controlled substances. Id.; 

see 21 CFR 1308.12(b)(1)(xiii). The 

prescriptions filled for J.E. also included 

approximately 109 prescriptions for 

hydrocodone and seven prescriptions 

for Hydromet, a hydrocodone-based 

cough syrup, both of which are 

Schedule III controlled substances. 

Affidavit of G. Connors, at 6; see 21 CFR 

1308.13(e)(1). 

J.E.’s prescriptions also fell into a 

pattern, with the number of dosage units 

of oxycodone or hydrocodone 

increasing from 90 to 170 dosage units 

per month in 2007 to as much as 380 

dosage units by January 2009; in 

addition, during 2008 and 2009, 

Respondent added morphine sulfate and 

fentanyl patches to J.E.’s prescriptions. 

Affidavit of G. Connors, at 7. However, 

in July 2009, Respondent’s prescriptions 

for J.E. ‘‘decreased dramatically’’; a 

Special Agent (SA) attributed this to 

Respondent’s insurance company 

having told him that it might cancel his 

clinic’s employee-health insurance. Id. 

A DI obtained data from ARCOS, 

DEA’s Automated Reports and 

Consolidated Order Systems database. 

The data showed that while in 2008, 

Respondent had not obtained any 

schedule II or III controlled substance, 

in June 2009; he ordered and received 

1,000 dosage units of fentanyl and 250 

dosage units of morphine sulfate. Id. at 

8. Also, in July 2009, Respondent 

ordered and received 1,280 dosage units 

of fentanyl and 280 dosage units of 

morphine sulfate; in August 2009, he 

ordered and received 1,660 dosage units 

of fentanyl and 280 dosage units of 

morphine sulfate; and in September 

2009, he ordered and received 3,100 

dosage units of fentanyl and 280 dosage 

units of morphine sulfate. Id. As the SA 

noted, ‘‘[t]his substantial increase in 

[Respondent’s] ordering of controlled 

substances generally coincided with the 

substantial reduction in the number of 

prescriptions for controlled substances, 

which were written by [Respondent], 

and filled by [J.E.] at Walgreens 

pharmacies.’’ Id. 

On November 3, 2009, a DI, with 

assistance from the Waukesha Metro 

Drug Enforcement Unit, conducted a 

search of the garbage at J.E.’s residence. 

Id.; Declaration of K. Federico, at 1. The 

officers found 421 empty 2-ml. ampules 

labeled ‘‘Fentanyl Citrate 100mcg./1ml.,’’ 

thirteen (13) empty 1-ml ampules 

labeled ‘‘Morphine Sulfate 8mg./1ml.,’’ 

one (1) empty 20-ml. bottle labeled 

‘‘Morphine Sulfate 15mg./1ml.,’’ and 

numerous syringes and used alcohol 

pads. Affidavit of G. Connors, at 8; 

Declaration of K. Federico, at 1. 

On November 10, 2009, DEA SAs 

obtained warrants to search both 

Respondent’s Germantown clinic and 

J.E.’s residence. Affidavit of E. Roy, at 2. 

On November 12, 2009, during the 

execution of the search warrant at the 

Germantown clinic, the SAs 

interviewed Respondent. Id. at 3. 

Respondent stated that J.E. was one of 

two registered nurses employed by his 

practice and that she was also the vice 

president of CMI. Id. Respondent further 

stated that he had been treating J.E. 

since approximately March 2009 for 

pain ‘‘resulting from a fractured tooth.’’ 

Id. Respondent maintained that the 

tooth subsequently became infected and 

that he then started treating J.E. with 

liquid fentanyl. Id. 

Respondent further stated that he 

initially injected J.E. with three to five 

2-ml. ampules of fentanyl three times 

per day, but by the time of the 

interview, he was injecting her with 

approximately fifty ampules per day. Id. 

He also stated that he had prescribed 

Vicodin for J.E.’s lower back pain and 

that J.E. was intermittently taking 

hydrocodone along with the fentanyl for 

her pain. Id. 

Respondent stated that J.E. had not 

been billed for any of the fentanyl 

which he had provided to her. Id. at 4. 

He further admitted that he did not have 

a medical file or chart documenting his 

treatment of J.E. and a search of the 

clinic failed to yield a medical record 

for J.E. Id. at 4, 6. 

Respondent also stated that he had 

had several conversations with J.E. in 

which he told her that she needed a 

longer-acting narcotic than fentanyl. Id. 

at 4. However, J.E. did not want to 

change medications. Id. Nevertheless, 

Respondent tried J.E. on morphine 

sulfate, which left her with a ‘‘drug 

hangover’’ the next morning. Id. 

Respondent also admitted that J.E. had 

developed a tolerance to fentanyl and 

was addicted to it. Id. Respondent 

further admitted that he did not think 

his dispensing of fentanyl and morphine 

sulfate to J.E. was ‘‘in the usual course 

of practice,’’ and that ‘‘the situation 

going on between himself and [J.E.] 

[was] not in the usual course of 

practice.’’ Id. He also admitted that he 

never conducted an inventory of the 

controlled substances kept at his clinic. 

Declaration of S. Osborne, at 4. 

Respondent further admitted that he 

self-administered morphine sulfate for a 

neck injury and that sometimes J.E. 

assisted him with the injections. 

Affidavit of E. Roy, at 8; Declaration of 

K. Federico, at 1. Based on this 

information, DEA contacted his attorney 

regarding ‘‘his possession and personal 

use of morphine.’’ Affidavit of E. Roy, at 

8. On November 19, 2009, the attorney 

turned over to DEA a box intended to 

hold ten smaller boxes, each of which 

holds twenty-five 1-ml. ampules of 

morphine. Id. at 8–9. However, the box 

contained only nine of the smaller boxes 

of morphine ampules. Id. at 9. 

DEA audited the records of the 

Germantown clinic and found 

significant discrepancies in the amount 

of fentanyl received and used by 

Respondent. In the period from 

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2Pharmacy records from Ye Olde Pharmacy, 

where Respondent filled his ‘‘general use’’ 

prescriptions for controlled substances for ‘‘office 

use,’’ indicate that between February 1, 2009 and 

July 14, 2009, Respondent obtained 4,100 ampules 

of fentanyl. See Declaration of S. Osborne, at 2–3. 

ARCOS data from June through September 2009 

indicate that he obtained a further 7,040 ampules 

from distributors for a total of 11,140 ampules. It 

is not clear what accounts for the difference 

between the 11,490 figure and the total of 11,140. 

3 Dispensing records from Ye Olde Pharmacy 

indicate that Respondent received 2,025 dosage 

units of morphine sulfate between February 2009 

and July 14, 2009. ARCOS data for the months of 

July 2009 through September 2009 indicate that in 

this period, Respondent obtained a further 1,010 

vials of morphine sulfate, making for a total of 3,035 

vials. Respondent, however, could account for only 

100 vials. 4See 21 CFR 1308.14(c)(35). 

February 26, 2009, when records 

indicated Respondent had ninety-four 

ampules of fentanyl in stock, through 

November 12, 2009, he received 11,490 

such ampules.2 Id. at 5. At the time of 

the search, he had seven ampules on 

hand, plus DEA found another 600 

ampules in his car, which Respondent 

claimed he was taking to his home 

because of a theft at the clinic. Id. No 

dispensing logs for September or 

October 2009 were found, and the 

remaining dispensing logs accounted for 

the disposition of only 507 ampules, 

less than ten percent of what had been 

received in this period. Id. 

The Germantown clinic had a record 

of all patients who had received 

fentanyl as part of a medical procedure 

for the period June 1, 2009 through 

November 12, 2009. Id. at 6. While 

during this period Respondent 

purchased 10,590 ampules of fentanyl, 

the clinic records showed that only 427 

ampules were used during medical 

procedures at the clinic. Id. These 

ampules, combined with the 600 found 

in the car, likewise account for less than 

ten percent of the fentanyl Respondent 

received. Id. 

The Investigators also performed an 

audit of Respondent’s handling of 

morphine sulfate for the period 

February 26, 2009 through November 

12, 2009. The audit showed that 

Respondent could not account for 3,155 

vials of the drug, which was ‘‘the 

majority of the morphine sulfate he 

received’’ in that period.3 Declaration of 

S. Osborne, at 2. According to several 

clinic employees, morphine ‘‘was not 

used in CMI[’s] procedures.’’ Id. 

Moreover, the search of the clinic 

revealed that Respondent ‘‘failed to take 

an initial inventory [and] maintained no 

biennial inventory’’ for any of the 

controlled substances Respondent had 

obtained; nor did it have proper records 

documenting the disposition of the 

morphine that Respondent obtained. Id. 

at 3. 

On November 12, 2009, DEA 

Investigators also conducted a 

consensual search of Respondent’s 

residence. Declaration of K. Federico, at 

1. While Respondent’s residence is not 

a registered location, the Investigators 

found ‘‘large amounts of empty and full 

fentanyl citrate ampules, morphine 

sulfate vials, drug packaging, and 

intravenous drug use paraphernalia.’’ Id. 

On November 19, 2009, DEA received 

information from a second confidential 

source (CI2) that on November 16, 2009, 

Respondent had received a box of 

morphine; according to CI2, morphine 

was not used in the clinic’s procedures. 

Affidavit of E. Roy, at 8. CI2 later 

observed Respondent placing one of the 

containers of morphine in his pocket. 

Id. 

On November 23, 2009, pursuant to 

an immunity agreement with the U.S. 

Attorney’s Office, J.E. was interviewed 

by DEA investigators. Id. at 6. J.E. stated 

that Respondent gave her Vicodin for 

back pain in 2007. Id. He also 

prescribed oxycodone, morphine 

sulfate, and fentanyl patches on several 

occasions for pain management. Id. 

J.E. stated that around the summer of 

2009, Respondent provided J.E. with 

fentanyl for a dental problem. Id. 

Respondent began administering the 

fentanyl to J.E. via an intravenous (IV) 

line on a regular basis. Id. J.E. stated that 

she consumed two to three vials per 

week this way. Id. She also indicated 

that morphine made her sleepy and that 

sometimes Respondent would give her 

morphine to help her sleep. Id. at 7. 

As J.E.’s dental problem worsened, 

her use of fentanyl increased. Id. Rather 

than receive the drug via IV 

administration, she began injecting 

herself with a solution of fentanyl and 

saline. Id. By November 12, 2009 (when 

the search warrant was executed at her 

residence), J.E. was self-administering 

approximately forty to fifty vials of 

fentanyl per day. Id. She was also 

receiving morphine from Respondent to 

help with her sleep several times each 

week. Id. While typically Respondent 

brought the drugs to her residence, on 

a few occasions another clinic employee 

brought them. Id. 

In addition, at times J.E. would go to 

Respondent’s house to use fentanyl or 

morphine that Respondent kept there. 

Id. J.E. stated that she never paid for 

medication or treatment provided by 

Respondent. Id. She further stated that 

every few weeks she and Respondent 

would have conversations about her 

growing tolerance to fentanyl. Id. 

On November 11, 2009, J.E. checked 

herself into a treatment center, where 

she stayed until November 18, 2009. Id. 

at 8. She further told Investigators that 

she was receiving treatment from a 

physician for her fentanyl addiction and 

was taking Suboxone as part of that 

treatment. Id. 

On January 11, 2010, DEA received 

further information from CI2. CI2 told 

the Investigators that in the last week, 

Respondent had noted on CMI’s 

dispensing log that he had dispensed 

250 ampules of fentanyl to J.E. Id. at 9. 

CI2 also stated that he had noticed that 

fifty ampules of fentanyl were missing 

and were not accounted for in the 

dispensing log. Id. He also reported 

discovering three plastic zip-lock bags 

in the Germantown clinic’s trash 

containing empty fentanyl ampules, 

syringes, dirty cotton pads, and other 

items; CI2 provided the bags to DEA. Id. 

According to CI2, CMI disposes of 

needles in a ‘‘‘sharps’ bio-hazard 

container,’’ and not via the trash. Id. 

DEA Investigators examined the three 

plastic bags. They found thirty-eight 

empty fentanyl ampules, four empty 

plastic trays (each capable of holding 

ten (10) fentanyl ampules), syringes, 

needles, alcohol swabs, gauze dirtied 

with blood, ‘‘Y’’ adapters for an IV line, 

and packaging for needles. Id. at 10. 

On January 12, 2010, CI2 further 

reported that Respondent had added 

notes to CMI’s fentanyl dispensing log. 

Id. The note indicated that Respondent 

had used two ampules of fentanyl on 

January 8, 2010. Id. 

On January 13, 2010, a criminal 

complaint was filed against Respondent, 

and on February 2, 2010, a grand jury 

indicted him on ten counts of 

intentionally and knowingly possessing 

with intent to distribute and unlawfully 

distributing fentanyl without a 

legitimate medical purpose on various 

dates in October and November 2009, in 

violation of 21 U.S.C. 841(a)(1), as well 

as six counts of obtaining morphine 

sulfate by misrepresentation, fraud, and 

deception in violation of 21 U.S.C. 

843(a)(3). Declaration of S. Osborne, at 

6; Indictment, United States v. 

Pellmann, No. 10–CR–014 (E.D. Wis., 

filed Feb. 2, 2010). 

Respondent was arrested after the 

filing of the criminal complaint. 

Following his release from custody, he 

travelled with J.E. to a Brookfield, 

Wisconsin hotel where he administered 

approximately two ampules of fentanyl 

to her during their stay. Declaration of 

S. Osborne, at 5. Thereafter, on the 

weekend of January 15–17, 2010, the 

two traveled to a Kohler, Wisconsin 

hotel, where Respondent administered 

midazolam, a schedule IV controlled 

substance,4 to J.E. several times so that 

she could ‘‘detox’’ from the Fentanyl. Id. 

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5To make clear, I do not find either statement 

credible. 

Respondent told J.E. not to mention the 

hotel visits to anyone. Id. 

The Investigative Record contains 

copies of prescriptions which 

Respondent issued for morphine sulfate 

and for fentanyl citrate ‘‘for office use.’’ 

The morphine sulfate prescriptions are 

dated April 23; May 6, 13, 14, 23, and 

28; June 6, 16, 23, and 30; and July 6 

and 14, 2009. The fentanyl citrate 

prescriptions date back to August 2007 

and extend through July 2009. Typically 

those prescriptions were for between 50 

and 100 vials. However, the 

prescriptions of May 23 and June 8, 

2009 were for 200 vials each. 

Respondent went to trial; on June 4, 

2010, a federal jury found him guilty of 

all sixteen counts alleged in the 

indictment. U.S. v. Pellmann, Verdict 

(June 4, 2010). After the return of the 

verdicts, the District Court allowed 

Respondent to remain free on bond on 

several conditions, including that he 

‘‘have ‘no contact whatsoever’ ’’ with J.E. 

and that he ‘‘not . . . ‘administer even 

to himself or anyone else any drugs 

whatsoever.’ ’’ Aff. of E. Roy in Supp. of 

Mot. to Revoke Order of Release, U.S. v. 

Pellmann, at 1 (filed July 30, 2010). 

However, on July 29, 2010, an 

Assistant U.S. Attorney received a 

phone call from another confidential 

source who reported that a nurse at CMI 

had confronted Respondent after 

observing him near the narcotics box 

and that the nurse thereafter found 

missing five vials of midazolam. Id. 

Respondent told the nurse he was taking 

the midazolam to his other clinic in 

New Berlin. Id. This CS further stated 

that Respondent was continuing to treat 

J.E., that she was coming to the clinic, 

and also that Respondent was treating 

her at his house. Id. 

Shortly thereafter, a DI interviewed a 

CMI employee, who stated that the 

employee who performs CT scans at the 

clinic was called in on a Saturday by 

Respondent to do a CT scan of J.E. Aff. 

of E. Roy in Supp. of Mot. to Revoke 

Order of Release, at 2. The employee 

also stated that Respondent talked 

regularly about his contacts with J.E and 

stated that he was treating her for her 

pain and that the two had been staying 

together. Id. 

On July 29, 2010, the DI and other 

Investigators went to CMI. Id. at 2. 

Clinic employees stated that on July 23, 

2010, the clinic had received ten boxes 

of midazolam, with each box containing 

ten vials for a total of 100 vials. Id. 

CMI’s records showed that five vials had 

been administered to patients and that 

ten of the vials had been taken to 

Respondent’s New Berlin office, 

supposedly at the request of a physician 

(Dr. Z.) who sublets space at that office 

and who is registered with DEA at both 

the Germantown clinic and the New 

Berlin office. Id. The DI counted the 

vials; the count matched the records at 

eighty-five vials. Id. 

Respondent was present during the 

July 29 visit. Id. Dr. Z. was not present, 

and, according to clinic staff, had not 

been there at all that day. Id. According 

to a clinic employee, Respondent had 

done at least one patient procedure 

prior to the Investigators’ arrival during 

which he administered midazolam to 

the patient. Id. After noticing that the 

computerized office records did not 

reflect that Respondent had done so, the 

DI confronted Respondent. Id. at 2–3. 

Respondent admitted that he had, in 

fact, administered the midazolam, but 

claimed to have done so under Dr. Z.’s 

supervision. Id. at 3. 

That evening, the DI and other 

investigators went to the New Berlin 

office and met with Dr. Z. Id. at 3. Dr. 

Z. stated that the New Berlin office did 

not have any midazolam, that he had 

never requested Respondent to bring the 

drug to that office, and that he does not 

typically use midazolam there. Id. 

Moreover, he stated that he had not 

authorized Respondent to administer 

controlled substances during 

procedures. Id. 

The following morning, the CMI 

employee called the DIs and reported 

that after the DIs left the clinic, she had 

inspected the supposedly sealed boxes 

of midazolam. Id. She reported that the 

boxes appeared to have been tampered 

with and that some of the vials appeared 

to have been refilled and their tops reglued. Id. Investigators then contacted 

Dr. Z. and gained his consent to seize all 

of the controlled substances at the 

Germantown clinic which had been 

procured using his DEA registration. Id. 

As the Investigators traveled to the 

clinic, the employee called again and 

stated that Respondent had just left the 

clinic with a bag containing drug vials. 

Id. Upon the Investigators’ arrival, the 

employee told them that Respondent’s 

sister had come to the clinic that 

morning and delivered ten vials of 

midazolam. Id. Respondent’s sister 

claimed to have obtained the vials from 

the New Berlin office. Id. 

Clinic employees opened the 

controlled substances cabinet, and the 

Investigators counted the drugs. Id. at 4. 

The Investigators observed signs of 

tampering on five boxes of midazolam. 

They also found only fifty-five vials of 

the drug and concluded that forty vials 

were missing. Id. 

Thereafter, Respondent entered the 

clinic carrying a plastic shopping bag 

which contained thirty-six empty vials 

of midazolam. Id. Respondent claimed 

that he had gotten the vials out of the 

trash and that Dr. Z. had ‘‘told him to 

‘bring back the trash.’ ’’ 5 Id. The bag also 

contained Respondent’s personal 

medication, a seven-day pill container, 

and some pharmacy pamphlets. Id. 

Based on Respondent’s having 

violated the conditions of release, on 

July 30, 2010, a United States District 

Judge issued an arrest warrant for 

Respondent. U.S. v. Pellmann, Arrest 

Warrant (July 30, 2010). Respondent 

was then arrested. 

As noted above, on June 7, 2010, 

Respondent’s Counsel submitted 

Respondent’s Statement of Facts and 

Position. Therein, Respondent 

maintained that ‘‘all of the controlled 

substances he administered or 

dispensed to J.E. were for treatment of 

her pain related to Trigeminal 

Neuralgia’’ and that treating J.E. 

‘‘required house calls given the nature of 

the pain and the time of her pain 

attacks.’’ He further asserted that he 

discussed with J.E. ‘‘her condition on a 

daily basis and he monitored her 

condition through daily interactions,’’ 

and that ‘‘[h]e used several different 

pain medications, anti-inflammatory 

medication, and antibiotics in 

association with her pain caused by her 

Trigeminal Neuralgia and dental 

problems.’’ He then asserted that all of 

the controlled substances he provided to 

J.E. ‘‘were for a legitimate medical 

purpose.’’ However, Respondent 

admitted that ‘‘he did not maintain a 

proper inventory or records for the 

controlled substances dispensed within 

the scope of his practice.’’ 

Discussion 

Section 304(a) of the Controlled 

Substances Act (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 * * * inconsistent with 

the public interest as determined under 

such section.’’ 21 U.S.C. 824(a)(4). With 

respect to a practitioner’s registration, 

the CSA directs that the following 

factors be considered in determining the 

public interest: 

(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 

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6Section 304(a)(2) further provides that a 

registration may be revoked ‘‘upon a finding that the 

registrant * * * has been convicted of a felony 

under this subchapter [the CSA] * * * or any other 

law of the United States, or of any State, relating 

to any substance defined in this subchapter as a 

controlled substance.’’ 21 U.S.C. 824(a)(2). 

7Respondent admitted this in his interview 

during the execution of the search warrant at the 

Germantown clinic. While his counsel’s letter of 

June 7, 2010 now maintains that J.E. had been his 

patient since 2005 and had been diagnosed as 

having Trigeminal Neuralgia, Respondent made no 

such contention in the November 2009 interview 

and there is no medical record for J.E. documenting 

this. The absence of any patient file for J.E. confirms 

Respondent’s admission in the interview that he 

did not distribute drugs to her in the course of 

professional practice. 

8Even assuming that Respondent, a radiologist, 

has been trained in the proper use of the drug and 

the management of its respiratory effects, given that 

the injections took place at J.E.’s residence, it seems 

implausible that any of items which the package 

inserts warns should be readily available to counter 

fentanyl’s respiratory depression effects such as an 

opioid agonist, resuscitative and intubation 

equipment, and oxygen were available. Finally, 

given the potency of this drug and the serious 

adverse reactions which it can cause, it does not 

seem that this is the type of drug that patients 

should be self-administering. 

the manufacture, distribution, or 

dispensing of controlled substances. 

(4) Compliance with applicable State, 

Federal, or local laws relating to 

controlled substances. 

(5) Such other conducts which may 

threaten the public health and safety. 21 

U.S.C. 823(f).6

‘‘[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. 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 (DC Cir. 

2005). 

Having reviewed the Investigative 

Record, I conclude that the evidence 

relevant to factors two, four, and five 

establishes that Respondent has 

committed acts which render his 

registration inconsistent with the public 

interest. 21 U.S.C. 824(a)(4). 

Accordingly, Respondent’s registration 

will be revoked and any pending 

application will be denied. 

Factor One: The Recommendation of the 

Appropriate State Licensing Authority 

The record contains no evidence that 

the Wisconsin Medical Examining 

Board has made any recommendation to 

DEA regarding Respondent’s 

registration. Therefore, I find that this 

factor neither weighs in favor of, or 

against, a finding that Respondent’s 

continued registration is inconsistent 

with the public interest. 

Factors Two and Four: Registrant’s 

Experience in Dispensing Controlled 

Substances and Record of Compliance 

With Applicable Controlled Substance 

Laws 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

is not effective unless it is issued for a 

legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice. 21 CFR 1306.04(a). This 

regulation further provides that an 

‘‘order purporting to be a prescription 

issued not in the usual course of 

professional treatment * * * is not a 

prescription within the meaning and 

intent of * * * 21 U.S.C. 829 * * * and 

* * * the person issuing it, shall be 

subject to the penalties provided for 

violations of the provisions of law 

relating to controlled substances.’’ Id. 

See also 21 U.S.C. 802(10) (Defining the 

term ‘‘dispense’’ as meaning ‘‘to deliver 

a controlled substance to an ultimate 

user * * * by, or pursuant to the lawful 

order of, a practitioner, including the 

prescribing and administering of a 

controlled substance.’’) 

As the Supreme Court recently 

explained, ‘‘the prescription 

requirement * * * ensures patients use 

controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse. As a 

corollary, [it] also bars doctors from 

peddling to patients who crave the 

drugs for those prohibited uses.’’ 

Gonzales v. Oregon, 546 U.S. 243, 274 

(2006) (citing United States v. Moore, 

423 U.S. 122, 135, 143 (1975)). 

Under Agency precedent, ‘‘[i]t is 

fundamental that a practitioner must 

establish and maintain a bona-fide 

doctor-patient relationship in order to 

be acting ‘in the usual course of * * * 

professional practice’ and to issue a 

prescription for a ‘legitimate medical 

purpose.’ ’’ Paul H. Volkman, 73 FR 

30630, 30642 (2008), aff’d sub nom. 

Volkman v. DEA, 567 F.3d 215 (6th Cir. 

2009) (citing United States v. Moore, 

423 U.S. 122, 142–43 (1975) (‘‘noting 

that the evidence established that 

physician ‘exceeded the bounds of 

‘‘professional practice,’ ’’ when ‘he gave 

inadequate physical examinations or 

none at all,’ ‘ignored the results of the 

tests he did make,’ and ‘took no 

precautions against * * * misuse and 

diversion.’ ’’)). 

Wisconsin law likewise states that ‘‘[a] 

practitioner may dispense or deliver a 

controlled substance to or for an 

individual * * * only for medical 

treatment * * * in the ordinary course 

of that practitioner’s profession.’’ Wis. 

Stat. Ann. § 961.38. Wisconsin law also 

provides that ‘‘[a]dministering, 

dispensing, prescribing, supplying, or 

obtaining controlled substances * * * 

otherwise than in the course of 

legitimate professional practice, or as 

otherwise prohibited by law’’ is 

‘‘unprofessional conduct’’ by a 

physician. Wis. Admin. Code [Med.] 

§ 10.02(2)(p). 

Respondent’s experience in 

dispensing controlled substances and 

record of compliance with applicable 

laws is characterized by his numerous 

and brazen violations of multiple laws 

related to controlled substances. As 

found above, Respondent admitted that 

he administered and/or distributed to 

J.E. large quantities of fentanyl, a 

schedule II controlled substance; he also 

prescribed to J.E. other schedule II drugs 

such as oxycodone and morphine, as 

well as large quantities of Vicodin, a 

schedule III controlled substance 

containing hydrocodone. Moreover, 

Respondent frequently personally 

brought the drugs to J.E.’s residence. 

While in his Statement of Facts and 

Position, Respondent now asserts that 

he had a legitimate medical purpose in 

dispensing the controlled substances to 

J.E.; Respondent previously admitted in 

his November 10, 2009 interview that he 

did not have a medical chart 

documenting his treatment and medical 

purpose for administering and 

distributing controlled substances to 

her. Respondent’s failure to maintain a 

medical chart on J.E. provides 

substantial evidence that he did not 

establish a legitimate doctor-patient 

relationship with her, a fact which is 

confirmed by his admission during the 

interview that his distribution of 

fentanyl and morphine to J.E. was not in 

the usual course of professional practice 

and that the situation between himself 

and J.E., with whom he likely had a 

sexual relationship, was not within the 

usual course of professional practice.7

During their respective November 

2009 interviews, both Respondent and 

J.E. asserted that he provided the 

fentanyl to her to treat pain caused by 

a tooth which fractured in March 2009 

and subsequently became infected. 

Notably, neither Respondent nor J.E. 

claimed that at any time after he 

determined the cause of her pain did he 

refer her to a dentist, who could have 

properly diagnosed her problem and 

treated it. Instead, he supplied her with 

an ever-increasing amount of fentanyl, a 

highly potent and abused narcotic.8

Such a gross departure from accepted 

standards of medical practice manifests 

that Respondent lacked a legitimate 

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9Under Federal law, to obtain schedule II 

controlled substances, a DEA Form 222 must be 

completed and sent to the distributor. See 21 U.S.C. 

828(c)(2). This applies even where a practitioner 

obtains a schedule II controlled substance from a 

pharmacy. 21 CFR 1307.11(a)(1)(iii). It is unclear 

whether Respondent ever submitted DEA Form 

222s to the pharmacies he obtained schedule II 

drugs from. However, the Government has the 

burden of proof on the issue. 

As for the morphine and fentanyl he obtained 

from distributors, Federal law makes it ‘‘unlawful 

for any person to obtain by means of order forms 

* * * controlled substances for any purpose other 

than their use, distribution, dispensing, or 

administration in the conduct of a lawful business 

in such substances or in the course of his 

professional practice.’’ 21 U.S.C. 828(e) (emphasis 

added). Thus, Respondent’s obtaining of fentanyl 

and morphine from various distributors was also 

illegal. 

10As found above, on June 4, 2010, a jury found 

Respondent guilty of ten counts of violating 21 

U.S.C. 841(a)(1) and six counts of violating 21 

U.S.C. 843(a)(3), both of which are felony offenses. 

The record does not, however, include a copy of the 

judgment of conviction entered by the District 

Court. 

Factor three authorizes the Agency to consider a 

registrant’s conviction record under Federal or State 

laws related to the distribution or dispensing of 

controlled substances. See 21 U.S.C. 823(f)(3); see 

also 21 U.S.C. 824(a)(2) (authorizing revocation 

where registrant ‘‘has been convicted of felony 

under this subchapter’’). However, in light of the 

substantial misconduct proved on this record, it is 

unnecessary to determine whether the term 

‘‘conviction’’ as used in factor 3 and section 

304(a)(2) means a judgment of conviction or simply 

a finding of guilty which precedes the entry of a 

final judgment of conviction. See Deal v. United 

States, 508 U.S. 129, 131 (1993). I therefore make 

no findings on this factor. 

medical purpose and acted outside of 

the usual course of professional practice 

when he dispensed fentanyl to J.E. 21 

CFR 1306.04(a). 

Finally, having been found guilty by 

a jury of all ten counts of unlawfully 

distributing fentanyl without a 

legitimate medical purpose in violation 

of 21 U.S.C. 841(a)(1), Respondent is 

collaterally estopped from re-litigating 

the issue of whether he had a legitimate 

medical purpose when he distributed 

fentanyl to J.E. Taylor v. Sturgell, 553 

U.S. 880, 892 (2008) (citing New 

Hampshire v. Maine, 532 U.S. 742, 748– 

49 (2001)). I therefore reject 

Respondent’s contention that he had a 

legitimate medical purpose for 

providing fentanyl to J.E. 

While Respondent admitted in the 

November 2009 interview that he knew 

J.E. was addicted to fentanyl, he 

continued to provide fentanyl to her 

even after she began receiving treatment 

for her addiction. Indeed, he continued 

to administer controlled substances to 

J.E. even after he had been criminally 

charged and arrested. More specifically, 

in January 2010, he administered 

fentanyl to her at a Brookfield, 

Wisconsin hotel room; several days 

later, the two checked in to a Kohler, 

Wisconsin hotel room where he gave 

J.E. midazolam to detox her from the 

fentanyl. The evidence therefore shows 

that Respondent repeatedly violated the 

CSA by unlawfully distributing 

controlled substances to J.E. See 21 

U.S.C. 841(a)(1) (‘‘[e]xcept as authorized 

by this subchapter, it shall be unlawful 

for any person knowingly or 

intentionally * * * to manufacture, 

distribute, or dispense, or possess with 

intent to manufacture, distribute, or 

dispense, a controlled substance’’); see 

Michael F. Myers, 72 FR 36484, 36486 

(2007) (revoking physician’s registration 

where physician, inter alia, continued 

to prescribe OxyContin to a ‘‘patient’’ 

notwithstanding the ‘‘patient’s’’ 

informing physician that he was 

addicted to the drug). 

Respondent further violated Federal 

law when he obtained controlled 

substances by fraud. See 21 U.S.C. 

843(a)(3) (‘‘It shall be unlawful for any 

person knowingly or intentionally 

* * * to acquire or obtain possession of 

a controlled substance by 

misrepresentation, fraud, forgery, 

deception, or subterfuge [.]’’). As found 

above, Respondent wrote numerous 

prescriptions for fentanyl and morphine 

sulfate to obtain these drugs from local 

pharmacies; while Respondent noted on 

the prescriptions that the controlled 

substances were ‘‘for office use,’’ the 

evidence shows that only a miniscule 

portion of the fentanyl (427 ampules out 

of more than 4,100 ampules obtained in 

this manner) was used for medical 

procedures at the clinic and that the 

vast majority of the fentanyl was being 

provided to J.E. 

As for the morphine, the evidence 

showed that Respondent obtained more 

than 2,000 dosage units from a local 

pharmacy. However, Respondent’s 

clinic did not use this drug in any 

procedures. Rather, Respondent both 

self-administered the morphine and 

distributed it to J.E. It is thus clear that 

by representing that the fentanyl and 

morphine were ‘‘for office use,’’ 

Respondent obtained the drugs by fraud 

and deception.9 21 U.S.C. 843(a)(3). See 

Randall Relyea, 73 FR 40378, 40380 

(2008) (revoking physician’s registration 

based on violations of section 843(a)(3) 

and physician’s personal abuse of 

controlled substances thus obtained); 

Alan H. Olefsky, 72 FR 42127, 42128 

(2007) (denying application based on 

physician’s violations of section 

843(a)(3) and personal abuse of 

controlled substances thus obtained). 

Relatedly, DEA regulations prohibit the 

use of a prescription by ‘‘an individual 

practitioner to obtain controlled 

substances for supplying the * * * 

practitioner for the purpose of general 

dispensing to patients.’’ 21 CFR 

1306.04(b). 

Wisconsin law prohibits a practitioner 

from ‘‘tak[ing] without a prescription a 

controlled substance * * * for the 

practitioner’s own use.’’ Wis. Stat. Ann. 

§ 961.38(5). Because Respondent did not 

obtain the morphine pursuant to a 

prescription from a physician, he 

violated Wisconsin law when he used 

the morphine. He likewise violated the 

CSA, which renders it ‘‘unlawful for any 

person knowingly or intentionally to 

possess a controlled substance unless 

such substance was obtained directly, or 

pursuant to a valid prescription or 

order, from a practitioner, while acting 

in the course of his professional 

practice.’’ 21 U.S.C. 844(a). 

Respondent further violated both the 

CSA and DEA regulations by failing to 

maintain proper records. As found 

above, during the search of the clinic, 

there were neither initial inventories 

nor biennial inventories, dispensing 

logs were missing for several months, 

and the dispensing logs that were 

available were clearly not being 

properly maintained as demonstrated by 

the audits which could not account for 

more than 10,000 dosage units of 

fentanyl and more than 3,000 dosage 

units of morphine. See 21 U.S.C. 827(a); 

21 CFR 1304.03(a), 1304.11, and 

1304.22(c). Respondent also admitted 

that he had failed to maintain the 

lawfully required records. Even were 

there no other evidence of Respondent’s 

unlawful conduct, his failure to comply 

with his recordkeeping obligations is so 

egregious that it alone would support 

the revocation of his registration. 

As the foregoing demonstrates, 

Respondent’s experience in dispensing 

controlled substances and his record of 

compliance with applicable laws related 

to the distribution and dispensing of 

controlled substance are characterized 

by his repeated and flagrant disregard 

for Federal and State laws. This 

evidence clearly supports the 

conclusion that Respondent has 

committed acts which render his 

registration inconsistent with the public 

interest.10

Factor Five—Such Other Conduct 

Which May Threaten Public Health and 

Safety Offenses 

On January 29, 2010, Respondent’s 

registration was immediately suspended 

because his misconduct created an 

imminent danger to public health and 

safety. As a consequence of the Order, 

which was served on him on February 

2, Respondent was prohibited from 

possessing controlled substances (other 

than those he obtained through a legal 

prescription) and dispensing them. 

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11To make clear, Respondent did not have a 

prescription for midazolam. 

Notwithstanding the Order (as well as 

that of the District Court following the 

jury verdicts which allowed him to 

remain free on bond on the condition 

that he not administer any drugs either 

to himself or others), in July 2010, 

Respondent proceeded to possess 

midazolam, a schedule IV controlled 

substance, and he admitted to 

administering the drug to a patient. 

While Respondent claimed that he had 

administered the midazolam under the 

supervision of another physician, the 

latter physician stated that he had not 

authorized Respondent to administer 

any controlled substances. 

The next day, Investigators received a 

report from a clinic employee that boxes 

containing midazolam had been 

tampered with. Later that day, 

Investigators went to the clinic and 

determined that forty vials of 

midazolam were missing; thereafter, 

Respondent entered the clinic and had 

in his possession thirty-six vials which 

had contained the drug.11 This evidence 

supports the conclusion that 

Respondent possessed these additional 

amounts of midazolam in violation of 

the Immediate Suspension Order. 

Respondent’s violation of the Order 

(as well as the conditions imposed by 

the District Court) is egregious and 

demonstrates that he has no respect for 

the laws governing the distribution and 

dispensing of controlled substances and 

the authority of this Agency and the 

Courts. This factor buttresses the 

conclusion that Respondent has 

committed acts which render his 

registration inconsistent with the public 

interest and that his registration should 

be revoked. For the same reason which 

led me to order the immediate 

suspension of his registration, I 

conclude that this Order should be 

effective immediately. 

Order 

Pursuant to the authority vested in me 

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

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

DEA Certificate of Registration, 

AP1892822, issued to Roger A. 

Pellmann, M.D., be, and it hereby is, 

revoked. I further order that any 

application of Roger A. Pellmann, M.D., 

to renew or modify his registration be, 

and it hereby is, denied. This order is 

effective immediately. 

Dated: March 22, 2011. 

Michele M. Leonhart, 

Administrator. 

[FR Doc. 2011–7411 Filed 3–29–11; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Bureau of Labor Statistics 

Proposed Collection, Comment 

Request 

ACTION: Notice. 

SUMMARY: The Department of Labor, as 

part of its continuing effort to reduce 

paperwork and respondent burden, 

conducts a pre-clearance consultation 

program to provide the general public 

and Federal agencies with an 

opportunity to comment on proposed 

and/or continuing collections of 

information in accordance with the 

Paperwork Reduction Act of 1995 

(PRA95) [44 U.S.C. 3506(c)(2)(A)]. This 

program helps to ensure that requested 

data can be provided in the desired 

format, reporting burden (time and 

financial resources) is minimized, 

collection instruments are clearly 

understood, and the impact of collection 

requirements on respondents can be 

properly assessed. The Bureau of Labor 

Statistics (BLS) is soliciting comments 

concerning the proposed revision of the 

‘‘Report on Current Employment 

Statistics.’’ A copy of the proposed 

information collection request (ICR) can 

be obtained by contacting the individual 

listed below in the Addresses section of 

this notice. 

DATES: Written comments must be 

submitted to the office listed in the 

ADDRESSES section of this notice on or 

before May 31, 2011. 

ADDRESSES: Send comments to Carol 

Rowan, BLS Clearance Officer, Division 

of Management Systems, Bureau of 

Labor Statistics, Room 4080, 2 

Massachusetts Avenue, NE., 

Washington, DC 20212. Written 

comments also may be transmitted by 

fax to 202–691–5111 (this is not a toll 

free number). 

FOR FURTHER INFORMATION CONTACT: 

Carol Rowan, BLS Clearance Officer, 

202–691–7628 (this is not a toll free 

number). (See ADDRESSES section.) 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Current Employment Statistics 

(CES) program provides current 

monthly statistics on employment, 

hours, and earnings, by industry and 

geography. CES estimates are among the 

most visible and widely-used Principal 

Federal Economic Indicators (PFEIs). 

CES data are also among the timeliest of 

the PFEIs, with their release each month 

by BLS in the Employment Situation, 

typically on the first Friday of each 

month. The statistics are fundamental 

inputs in economic decision processes 

at all levels of government, private 

enterprise, and organized labor. 

The CES monthly estimates of 

employment, hours, and earnings are 

based on a sample of U.S. 

nonagricultural establishments. 

Information is derived from 

approximately 290,600 reports (from a 

sample of 140,000 employers with State 

Unemployment Insurance (UI) accounts 

comprised of 440,000 individual 

worksites), as of January 2011. Each 

month, firms report their employment, 

payroll, and hours on forms identified 

as the BLS–790. The sample is collected 

under a probability based design. Puerto 

Rico and the Virgin Islands collect an 

additional 5,600 reports using a quota 

sample. 

A list of all form types currently used 

appears in the table below. Respondents 

receive variations of the basic collection 

forms, depending on their industry. 

The CES program is a voluntary 

program under Federal statute. 

Reporting to the State agencies is 

voluntary in all but four States (Oregon, 

Washington, North Carolina, South 

Carolina), Puerto Rico, and the Virgin 

Islands. To our knowledge, the States 

that do have mandatory reporting rarely 

exercise their authority. The collection 

form’s confidentiality statement cites 

the Confidential Information Protection 

and Statistical Efficiency Act of 2002 

and mentions the State mandatory 

reporting authority. 

II. Current Action 

Office of Management and Budget 

clearance is being sought for the Report 

on Current Employment Statistics. 

Automated data collection methods 

are now used for most of the CES 

sample. Approximately 131,200 reports 

are received through Electronic Data 

Interchange as of January 2011. Web 

data collection accounts for 58,900 

reports. Computer Assisted Telephone 

Interviewing is used to collect 62,000. 

Fax is also a significant collection mode, 

as 15,300 reports are collected via this 

method. Touchtone Data Entry is used 

for 10,900 reports. In comparison, only 

5,700 reports are collected by mail. 

The balance of the sample is collected 

through other automated methods 

including submission of tapes, diskettes, 

and email. 

III. Desired Focus of Comments 

The Bureau of Labor Statistics is 

particularly interested in comments 

that: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

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