80190 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Notices 

3Although there is no date on RFAA EX 7, the 

Government represented in its RFAA that EX 7 

shows Registrant’s pharmacy permit ‘‘continues to 

be suspended.’’ RFAA, at 3. 

4Under the Administrative Procedure Act, an 

agency ‘‘may take official notice of facts at any stage 

in a proceeding—even in the final decision.’’ 

United States Department of Justice, Attorney 

General’s Manual on the Administrative Procedure 

Act 80 (1947) (Wm. W. Gaunt & Sons, Inc., Reprint 

1979). Pursuant to 5 U.S.C. 556(e), ‘‘[w]hen an 

agency decision rests on official notice of a material 

fact not appearing in the evidence in the record, a 

party is entitled, on timely request, to an 

opportunity to show the contrary.’’ Accordingly, 

Applicant may dispute my finding by filing a 

properly supported motion for reconsideration of 

finding of fact within fifteen calendar days of the 

date of this Order. Any such motion shall be filed 

with the Office of the Administrator and a copy 

shall be served on the Government. In the event 

Applicant files a motion, the Government shall 

have fifteen calendar days to file a response. Any 

such motion and response shall be filed and served 

by email on the other party at the email address the 

party submitted for receipt of communications 

related to this administrative proceeding, and on 

the Office of the Administrator, Drug Enforcement 

Administration at dea.addo.attorneys@

dea.usdoj.gov. 

5 ‘‘Dispense,’’ under Maryland statute, means ‘‘to 

deliver to the ultimate user . . . by or in accordance 

with the lawful order of an authorized provider.’’ 

Md. Code Ann., Crim. Law § 5–101(l)(1) (West, 

Westlaw current through all legislation from the 

2020 Regular Session of the General Assembly). 

‘‘suspended.’’ 3 RFAA, EX 7 (State of 

Maryland Board of Pharmacy website 

Screen Print), at 1. 

As already discussed, Registrant’s 

proposed CAP did not address the status 

of its Maryland pharmacy permit. As 

such, the Government’s record evidence 

that Registrant’s pharmacy permit was 

summarily suspended is not rebutted. 

According to Maryland’s online 

records, of which I take official notice, 

Registrant’s pharmacy permit is still 

suspended today.4 State of Maryland 

Board of Pharmacy Web Lookup/ 

Verification, https://

mdbop.mylicense.com/Verification (last 

visited date of signature of this Order). 

In sum, there is no record evidence 

rebutting the evidence the Government 

submitted with its RFAA, EX 3 and EX 

7, and the evidence from today’s 

Maryland online records supports the 

Government’s evidence. Accordingly, I 

find that Registrant’s Maryland 

pharmacy permit is currently 

suspended. 

Discussion 

Pursuant to 21 U.S.C. 824(a)(3), the 

Attorney General is authorized to 

suspend or revoke a registration issued 

under section 823 of the CSA ‘‘upon a 

finding that the registrant . . . has had 

his State license or registration 

suspended . . . [or] revoked . . . by 

competent State authority and is no 

longer authorized by State law to engage 

in the . . . dispensing of controlled 

substances.’’ With respect to a 

practitioner, the Agency has long stated 

that the possession of authority to 

dispense controlled substances under 

the laws of the state in which the 

practitioner engages in professional 

practice is a fundamental condition for 

obtaining and maintaining a 

practitioner’s registration. See, e.g., 

James L. Hooper, M.D., 76 FR 71,371 

(2011), pet. for rev. denied, 481 F. App’x 

826 (4th Cir. 2012); Frederick Marsh 

Blanton, M.D., 43 FR 27,616, 27,617 

(1978). 

This rule derives from the text of two 

provisions of the CSA. First, Congress 

defined the term ‘‘practitioner’’ to mean 

‘‘a pharmacy . . . or other person 

licensed, registered, or otherwise 

permitted, by . . . the jurisdiction in 

which . . . [it] practices . . . , to 

distribute, dispense, . . . [or] administer 

. . . a controlled substance in the 

course of professional practice.’’ 21 

U.S.C. 802(21). Second, in setting the 

requirements for obtaining a 

practitioner’s registration, Congress 

directed that ‘‘[t]he Attorney General 

shall register practitioners . . . if the 

applicant is authorized to dispense . . . 

controlled substances under the laws of 

the State in which he practices.’’ 21 

U.S.C. 823(f). Because Congress has 

clearly mandated that a practitioner 

possess state authority in order to be 

deemed a practitioner under the CSA, 

the Agency has repeatedly stated that 

revocation of a practitioner’s registration 

is the appropriate sanction whenever it 

is no longer authorized to dispense 

controlled substances under the laws of 

the state in which she practices. See, 

e.g., James L. Hooper, M.D., 76 FR at 

71,371–72; Sheran Arden Yeates, M.D., 

71 FR 39,130, 39,131 (2006); Dominick 

A. Ricci, M.D., 58 FR 51,104, 51,105 

(1993); Bobby Watts, M.D., 53 FR 

11,919, 11,920 (1988); Frederick Marsh 

Blanton, M.D., 43 FR at 27,617. 

According to Maryland statute, ‘‘a 

person shall be registered by the 

[Maryland] Department [of Health] 

before the person manufactures, 

distributes, or dispenses a controlled 

dangerous substance in the State.’’ 5 Md. 

Code Ann., Crim. Law § 5–301(a)(1) 

(West, Westlaw current through all 

legislation from the 2020 Regular 

Session of the General Assembly). Also 

according to Maryland statute, a 

‘‘person shall hold a pharmacy permit 

issued by the (Maryland State) Board (of 

Pharmacy) before the person may 

establish or operate a pharmacy in this 

State.’’ Md. Code Ann., Health. Occ. 

§ 12–401(a) (West, Westlaw current 

through all legislation from the 2020 

Regular Session of the General 

Assembly). Accordingly, holding a 

permit issued by the MBP is a 

prerequisite to operating a pharmacy 

and dispensing a controlled substance 

in Maryland. 

Here, the undisputed evidence in the 

record is that Registrant’s pharmacy 

permit is currently suspended. In 

Maryland, as already discussed, a 

pharmacy must hold a permit from the 

MBP to dispense a controlled substance 

lawfully. Md. Code Ann., Health. Occ. 

§ 12–401(a); Md. Code Ann., Crim. Law 

§ 5–301(a)(1). Registrant currently lacks 

a pharmacy permit in Maryland and, 

thus, it is not eligible to dispense 

controlled substances in Maryland. 21 

U.S.C. 824(a)(3). Accordingly, I will 

order that Registrant’s DEA registration 

be revoked. 

Order 

Pursuant to 28 CFR 0.100(b) and the 

authority vested in me by 21 U.S.C. 

824(a), I hereby revoke DEA Certificate 

of Registration No. FP3109027 issued to 

Poplar Grove Pharmacy Inc. This Order 

is effective January 11, 2021. 

Timothy J. Shea, 

Acting Administrator. 

[FR Doc. 2020–27234 Filed 12–10–20; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Ernesto C. Torres, M.D.; Decision and 

Order 

On July 20, 2020, the Acting Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, 

Government or DEA), issued an Order to 

Show Cause (hereinafter, OSC) to 

Ernesto C. Torres, M.D., (hereinafter, 

Registrant), of Frederick, Maryland. 

Government’s Request for Final Agency 

Action (hereinafter, RFAA) Exhibit 

(hereinafter RFAAX) 4 (OSC), at 1. The 

OSC proposed the revocation of 

Registrant’s Certificate of Registration 

No. AT8751213. Id. It alleged that 

Registrant is without ‘‘authority to 

handle controlled substances in 

Maryland, the state in which [Registrant 

is] registered with DEA.’’ Id. at 2 (citing 

21 U.S.C. § 824(a)(3)). 

Specifically, the OSC alleged that 

‘‘[o]n January 6, 2020, the [Maryland 

Board of Physicians (hereinafter, MBP)] 

issued [a] Final Decision and Order on 

Order for Summary Suspension, 

whereby the MBP affirmed its May 2019 

suspension ruling. Moreover, during the 

pendency of the above MBP suspension 

proceedings, [Registrant’s] state medical 

license expired on September 30, 2019, 


jbell on DSKJLSW7X2PROD with NOTICES
Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Notices 80191 

1Under the Administrative Procedure Act, an 

agency ≥may take official notice of facts at any stage 

in a proceeding - even in the final decision.≥ United 

States Department of Justice, Attorney General’s 

Manual on the Administrative Procedure Act 80 

(1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). 

Pursuant to 5 U.S.C. § 556(e), ≥[w]hen an agency 

decision rests on official notice of a material fact 

not appearing in the evidence in the record, a party 

is entitled, on timely request, to an opportunity to 

show the contrary.≥ Accordingly, Registrant may 

dispute my finding by filing a properly supported 

motion for reconsideration of finding of fact within 

fifteen calendar days of the date of this Order. Any 

such motion shall be filed with the Office of the 

Administrator and a copy shall be served on the 

Government. In the event Registrant files a motion, 

the Government shall have fifteen calendar days to 

file a response. Any such motion and response may 

be filed and served by e-mail 

(dea.addo.attorneys@dea.usdoj.gov). 

and has not been renewed.’’ Id. at 2. The 

OSC further alleged that Registrant is 

not eligible to obtain or retain a DEA 

registration because he lacks state 

authority to handle controlled 

substances in Maryland. Id. 

The OSC notified Registrant of the 

right to either request a hearing on the 

allegations or submit a written 

statement in lieu of exercising the right 

to a hearing, the procedures for electing 

each option, and the consequences for 

failing to elect either option. Id. at 2–3 

(citing 21 C.F.R. § 1301.43). The OSC 

also notified Registrant of the 

opportunity to submit a corrective 

action plan. Id. at 3 (citing 21 U.S.C. 

§ 824(c)(2)(C)). 

I.Adequacy of Service 

A DEA Diversion Investigator 

(hereinafter, DI) provided details 

regarding DEA’s ‘‘multiple efforts’’ to 

serve Registrant with the OSC, which 

were complicated by the fact that 

Registrant is currently at a Maryland 

Department of Health facility. RFAAX 

11, at 3 (Declaration of Diversion 

Investigator, dated October 22, 2020). 

The DI stated that due to visitor 

restrictions at the facility, the DI 

arranged to email the OSC to 

Registrant’s doctor, who confirmed via 

reply email that Registrant had received 

the OSC. Registrant’s doctor attached a 

signed DEA Form 12, Receipt for Cash 

or Other Items, which demonstrated that 

Registrant received the OSC on 

September 17, 2020, and was signed by 

Registrant and witnessed by his doctor. 

Id. at 4; see also RFAAX 6, at 1 (signed 

DEA Form 12). 

The Government forwarded its RFAA 

along with the evidentiary record, to 

this office on October 23, 2020. In its 

RFAA, the Government represents that 

Registrant has not requested a hearing 

nor ‘‘‘otherwise corresponded or 

communicated with DEA regarding 

the... [OSC], including the filing of any 

written statement in lieu of a hearing’ 

and therefore has waived his right to a 

hearing.’’ RFAA, at 6 (quoting Warren B. 

Dailey. M.D., 82 Fed. Reg. 46,525–26 

(2017); David D. Moon, D.O., 82 Fed. 

Reg. 19,385, 19,387 (2017)). The 

Government argued that ‘‘grounds exist 

for the revocation of Registrant’s DEA 

[registration] pursuant to 21 U.S.C. 

§§ 823(f) and 824(a)(3)’’ and requests 

‘‘the issuance of a DEA Final Order for 

the revocation’’ of Registrant’s 

registration. Id. at 6, 7. 

I find that more than thirty days have 

now passed since the Government 

accomplished service of the OSC. 

Further, based on the Government’s 

written representations and Registrant’s 

own statements, I find that neither 

Registrant, nor anyone purporting to 

represent Registrant, requested a 

hearing, submitted a written statement 

while waiving Registrant’s right to a 

hearing, or submitted a corrective action 

plan. RFAA, at 6. Accordingly, I find 

that Registrant has waived the right to 

a hearing and the right to submit a 

written statement and corrective action 

plan. 21 C.F.R. § 1301.43(d) and 21 

U.S.C. § 824(c)(2)(C). I, therefore, issue 

this Decision and Order based on the 

record submitted by the Government, 

which constitutes the entire record 

before me. 21 C.F.R. § 1301.46. 

II. Findings of Fact 

A. Registrant’s DEA Registration 

Registrant is the holder of DEA 

Certificate of Registration No. 

AT8751213 at the registered address of 

188 Thomas Johnson Drive, Suite 202, 

Frederick, Maryland 21702. RFAAX 2 

(Certification of Registration History). 

Pursuant to this registration, Registrant 

is authorized to dispense controlled 

substances in schedules II through V as 

a practitioner. Id. Registrant’s 

registration expires on November 30, 

2021. Id. The registration ‘‘is in active 

pending status until the resolution of 

administrative proceedings.’’ Id. 

B.The Status of Registrant’s State 

License 

On May 28, 2019, the MBP issued an 

Order for Summary Suspension of 

License to Medicine against Registrant. 

RFAAX 3 (Final Decision and Order on 

Order for Summary Suspension 

(hereinafter, Suspension Order)), at 1. 

After a hearing, the MBP issued a 

Suspension Order affirming Registrant’s 

suspension on January 6, 2020, in which 

it concluded that summary suspension 

of Registrant’s medical license ‘‘is 

imperatively required to protect the 

public health, safety, and welfare.’’ Id. 

at 2. The MBP ordered that ‘‘the 

summary suspension of [Registrant’s] 

license to practice medicine in 

Maryland remains in effect.’’ Id. at 3. 

According to Maryland’s online 

records, of which I take official notice, 

Registrant’s medical license status and 

Controlled Dangerous Substances (CDS) 

registration are both ‘‘expired.’’1

Maryland Board of Physicians Profile 

Search, available at https:// 

www.mbp.state.md.us/bpqapp/ (last 

visited date of signature of this Order), 

and Maryland Office of Provider 

Engagement and Regulation (Oper) 

Controlled Dangerous Substances 

Registration Search, available at https:// 

health.maryland.gov/ocsa/Pages/ 

cdssearch.aspx (last visited date of 

signature of this Order). 

Accordingly, I find that Registrant 

currently is neither licensed to engage 

in the practice of medicine nor 

registered to dispense controlled 

substances in Maryland, the state in 

which Registrant is registered with the 

DEA. 

III. Discussion 

Pursuant to 21 U.S.C. § 824(a)(3), the 

Attorney General is authorized to 

suspend or revoke a registration issued 

under section 823 of the CSA ‘‘upon a 

finding that the registrant . . . has had 

his State license or registration 

suspended . . . [or] revoked . . . by 

competent State authority and is no 

longer authorized by State law to engage 

in the . . . dispensing of controlled 

substances.’’ With respect to a 

practitioner, the DEA has also long held 

that the possession of authority to 

dispense controlled substances under 

the laws of the state in which a 

practitioner engages in professional 

practice is a fundamental condition for 

obtaining and maintaining a 

practitioner’s registration. See, e.g. , 

James L. Hooper, M.D., 76 Fed. Reg. 

71,371 (2011), pet. for rev. denied, 481 

Fed. Appx. 826 (4th Cir. 2012); 

Frederick Marsh Blanton, M.D., 43 Fed. 

Reg. 27,616, 27,617 (1978). 

This rule derives from the text of two 

provisions of the CSA. First, Congress 

defined the term ‘‘practitioner’’ to mean 

‘‘a physician... or other person licensed, 

registered, or otherwise permitted, by... 

the jurisdiction in which he practices..., 

to distribute, dispense,... [or] 

administer... a controlled substance in 

the course of professional practice.’’ 21 

U.S.C. § 802(21). Second, in setting the 

requirements for obtaining a 

practitioner’s registration, Congress 

directed that ‘‘[t]he Attorney General 

shall register practitioners... if the 

applicant is authorized to dispense... 

controlled substances under the laws of 

the State in which he practices.’’ 21 


jbell on DSKJLSW7X2PROD with NOTICES
80192 Federal Register / Vol. 85, No. 239 / Friday, December 11, 2020 / Notices 

U.S.C. § 823(f). Because Congress has 

clearly mandated that a practitioner 

possess state authority in order to be 

deemed a practitioner under the CSA, 

the DEA has held repeatedly that 

revocation of a practitioner’s registration 

is the appropriate sanction whenever he 

is no longer authorized to dispense 

controlled substances under the laws of 

the state in which he practices. See, e.g. 

, James L. Hooper, 76 Fed. Reg. at 

71,371–72; Sheran Arden Yeates, M.D., 

71 Fed. Reg. 39,130, 39,131 (2006); 

Dominick A. Ricci, M.D., 58 Fed. Reg. 

51,104, 51,105 (1993); Bobby Watts, 

M.D., 53 Fed. Reg. 11,919, 11,920 

(1988); Frederick Marsh Blanton, 43 

Fed. Reg. at 27,617. 

Pursuant to the Maryland Controlled 

Dangerous Substances Act, ‘‘a person 

shall be registered by the Department 

before the person manufactures, 

distributes, or dispenses a controlled 

dangerous substance in the State or 

transports a controlled dangerous 

substance into the State.’’ Md. Code 

Ann., Crim. Law § 5–301 (West 2020). 

Maryland law further defines 

‘‘dispense’’ to ‘‘mean[] to deliver to the 

ultimate user of the human research 

subject by or in accordance with the 

lawful order of an authorized provider’’ 

and states that the term ‘‘includes to 

prescribe, administer, package, label, or 

compound a substance for delivery.’’ Id. 

at § 5–101(l)(1)&(2). 

Here, the undisputed evidence in the 

record is that Registrant currently lacks 

authority to dispense controlled 

substances in Maryland, as his 

controlled substance license is 

‘‘expired.’’ As already discussed, a 

practitioner must hold a valid 

controlled substance license to dispense 

a controlled substance in Maryland. 

Thus, because Registrant lacks authority 

to handle controlled substances in 

Maryland, Registrant is not eligible to 

maintain a DEA registration. 

Accordingly, I order that Registrant’s 

DEA registration be revoked. 

Order 

Pursuant to 28 C.F.R. § 0.100(b) and 

the authority vested in me by 21 U.S.C. 

§ 824(a), I hereby revoke DEA Certificate 

of Registration No. AT8751213 issued to 

Ernesto C. Torres, M.D. This Order is 

effective January 11, 2021. 

Timothy J. Shea, 

Acting Administrator. 

[FR Doc. 2020–27233 Filed 12–10–20; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Agency Information Collection 

Activities; Submission for OMB 

Review; Comment Request; Ionizing 

Radiation Standard 

ACTION: Notice of availability; request 

for comments. 

SUMMARY: The Department of Labor 

(DOL) is submitting this Occupational 

Safety and Health Administration 

(OSHA)-sponsored information 

collection request (ICR) to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995 

(PRA). Public comments on the ICR are 

invited. 

DATES: The OMB will consider all 

written comments that agency receives 

on or before January 11, 2021. 

ADDRESSES: Written comments and 

recommendations for the proposed 

information collection should be sent 

within 30 days of publication of this 

notice to www.reginfo.gov/public/do/ 

PRAMain. Find this particular 

information collection by selecting 

‘‘Currently under 30-day Review—Open 

for Public Comments’’ or by using the 

search function. 

Comments are invited on: (1) Whether 

the collection of information is 

necessary for the proper performance of 

the functions of the Department, 

including whether the information will 

have practical utility; (2) if the 

information will be processed and used 

in a timely manner; (3) the accuracy of 

the agency’s estimates of the burden and 

cost of the collection of information, 

including the validity of the 

methodology and assumptions used; (4) 

ways to enhance the quality, utility and 

clarity of the information collection; and 

(5) ways to minimize the burden of the 

collection of information on those who 

are to respond, including the use of 

automated collection techniques or 

other forms of information technology. 

FOR FURTHER INFORMATION CONTACT: 

Crystal Rennie by telephone at 202– 

693–0456, or by email at DOL_PRA_

PUBLIC@dol.gov. 

SUPPLEMENTARY INFORMATION: The 

purpose of the Ionizing Radiation 

Standard and its information collection 

requirements are to document that 

employers are providing their workers 

with protection from hazardous ionizing 

radiation exposure. For additional 

substantive information about this ICR, 

see the related notice published in the 

Federal Register on June 29, 2020 (85 

FR 38931). 

This information collection is subject 

to the PRA. A Federal agency generally 

cannot conduct or sponsor a collection 

of information, and the public is 

generally not required to respond to an 

information collection, unless the OMB 

approves it and displays a currently 

valid OMB Control Number. In addition, 

notwithstanding any other provisions of 

law, no person shall generally be subject 

to penalty for failing to comply with a 

collection of information that does not 

display a valid OMB Control Number. 

See 5 CFR 1320.5(a) and 1320.6. 

DOL seeks PRA authorization for this 

information collection for three (3) 

years. OMB authorization for an ICR 

cannot be for more than three (3) years 

without renewal. The DOL notes that 

information collection requirements 

submitted to the OMB for existing ICRs 

receive a month-to-month extension 

while they undergo review. 

Agency: DOL–OSHA. 

Title of Collection: Ionizing Radiation 

Standard. 

OMB Control Number: 1218–0103. 

Affected Public: Private Sector, 

Businesses or other for-profits. 

Total Estimated Number of 

Respondents: 13,135. 

Total Estimated Number of 

Responses: 337,279. 

Total Estimated Annual Time Burden: 

59,077 hours. 

Total Estimated Annual Other Costs 

Burden: $ 8,892,917. 

(Authority: 44 U.S.C. 3507(a)(1)(D)) 

Crystal Rennie, 

Acting Departmental Clearance Officer. 

[FR Doc. 2020–27208 Filed 12–10–20; 8:45 am] 

BILLING CODE 4510–26–P 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

[NARA–2021–009] 

Agency Information Collection 

Activities: Proposed Collection; 

Comment Request 

AGENCY: National Archives and Records 

Administration (NARA). 

ACTION: Notice of proposed extension 

request. 

SUMMARY: NARA proposes to request an 

extension from the Office of 

Management and Budget (OMB) of 

approval to use forms by which we 

collect information from people 

requesting military records so that we 

can locate, identify, and provide the 

requested information. We invite you to 

comment on this proposed information 

collection pursuant to the Paperwork 

Reduction Act of 1995. 


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