[Federal Register Volume 88, Number 240 (Friday, December 15, 2023)]
[Notices]
[Pages 86944-86945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27522]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Gary R. Wisner, M.D.; Decision and Order

    On March 1, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Gary R. Wisner, M.D. 
(Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 
1, at 1, 3. The OSC proposed the revocation of Registrant's 
Certificates of Registration (COR) Nos. FW8432471 and AW2971073 at the 
registered addresses of 621 S. Ham Ln., Ste. A, Lodi, California 95242, 
and 16246 N. Locust Tree Road, Lodi, California 95240, respectively. 
Id. at 1. The OSC alleged that Registrant's registrations should be 
revoked because Registrant was ``without authority to prescribe, 
administer, dispense, or otherwise handle controlled substances in the 
State of California, the state in which [he is] registered with DEA.'' 
Id. at 2 (citing, inter alia, 21 U.S.C. 824(a)(3); 21 CFR 1301.37(b)).
    The OSC notified Registrant of his right to file with DEA a written 
request for hearing, and that if he failed to file such a request, he 
would be deemed to be in default. Id. at 2 (citing 21 CFR 
1301.43(c)(1)). Here, Registrant did not request a hearing. RFAA, at 
1.\1\ ``A default, unless excused, shall be deemed to constitute a 
waiver of the [registrant's] right to a hearing and an admission of the 
factual allegations of the [OSC].'' 21 CFR 1301.43(e).
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    \1\ Based on the Government's submissions in its RFAA dated 
August 3, 2023, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the included declaration by a 
DEA Diversion Investigator (DI) indicates that on March 13, 2023, 
the DI personally ``served [Respondent] a copy of the [OSC] by hand 
delivery.'' RFAAX 2, at 1.
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    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] 1316.67.'' Id. 1301.43(f)(1). Here, the Government 
has requested final agency action based on Registrant's default 
pursuant to 21 CFR 1301.43(c), (f), and 1301.46. RFAA, at 1.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, 
``[e]ffective January 30, 2023, as part of an agreement with the 
[Medical Board of California] . . . [Registrant] surrendered [his] 
license to practice medicine in the State of California.'' RFAAX 1, at 
1-2.
    According to California's online records, of which the Agency takes 
official notice, the status of Registrant's physician and surgeon 
license (type A) is listed as surrendered, and he is not permitted to 
practice.\2\ California

[[Page 86945]]

Department of Consumer Affairs, License Search, https://search.dca.ca.gov/ (last visited date of signature of this Order). 
Therefore, the Agency finds that Registrant is not currently authorized 
to dispense or handle controlled substances in California, the state in 
which he is registered with DEA.
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    \2\ Under the Administrative Procedure Act, an agency ``may take 
official notice of facts at any stage in a proceeding--even in the 
final decision.'' United States Department of Justice, Attorney 
General's Manual on the Administrative Procedure Act 80 (1947) (Wm. 
W. Gaunt & Sons, Inc., Reprint 1979). Pursuant to 5 U.S.C. 556(e), 
``[w]hen an agency decision rests on official notice of a material 
fact not appearing in the evidence in the record, a party is 
entitled, on timely request, to an opportunity to show the 
contrary.'' Accordingly, Registrant may dispute the Agency's finding 
by filing a properly supported motion for reconsideration of 
findings of fact within fifteen calendar days of the date of this 
Order. Any such motion and response shall be filed and served by 
email to the other party and to the DEA Office of the Administrator, 
Drug Enforcement Administration at <a href="/cdn-cgi/l/email-protection#a5c1c0c48bc4c1c1ca8bc4d1d1cad7cbc0dcd6e5c1c0c48bc2cad3"><span class="__cf_email__" data-cfemail="aacecfcb84cbcecec584cbdedec5d8c4cfd3d9eacecfcb84cdc5dc">[email protected]</span></a>.
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Discussion

    Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized 
to suspend or revoke a registration issued under 21 U.S.C. 823 ``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, 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, D.O., 76 FR 71371, 71372 (2011), pet. for 
rev. denied, 481 F. App'x 826 (4th Cir. 2012); Frederick Marsh Blanton, 
D.O., 43 FR 27616, 27617 (1978).\3\
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    \3\ This rule derives from the text of two provisions of the 
Controlled Substances Act. 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 
U.S.C. 823(g)(1). Because Congress has clearly mandated that a 
practitioner possess state authority in order to be deemed a 
practitioner under the CSA, 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 FR at 71371-72; Sheran Arden Yeates, D.O., 
71 FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 
51105 (1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); 
Frederick Marsh Blanton, 43 FR 27617.
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    According to California statute and relevant to Registrant's COR, 
``[n]o person other than a physician . . . shall write or issue a 
prescription.'' \4\ Cal. Health & Safety Code 11150. Further, 
``physician,'' as defined by California statute, is a person who is 
``licensed to practice'' in California. Id. 11024.
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    \4\ Although additional specified categories of persons are 
permitted to write or issue prescriptions, none of those 
practitioner categories are applicable to Registrant.
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    Here, the evidence in the record is that Registrant currently lacks 
authority to handle controlled substances in California because his 
California physician and surgeon license has been surrendered. As 
already discussed, a person must hold a valid license to dispense a 
controlled substance in California. Thus, because Registrant lacks 
authority to handle controlled substances in California, Registrant is 
not eligible to maintain a DEA registration. Accordingly, the Agency 
will order that Registrant's DEA registrations 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 Certificates of Registration Nos. 
FW8432471 and AW2971073 issued to Gary R. Wisner, M.D. Further, 
pursuant to 28 CFR 0.100(b) and the authority vested in me by 21 U.S.C. 
823(g)(1), I hereby deny any pending applications of Gary R. Wisner, 
M.D., to renew or modify these registrations, as well as any other 
pending application of Gary R. Wisner, M.D., for additional 
registration in California. This Order is effective January 16, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
December 7 2023, by Administrator Anne Milgram. That document with the 
original signature and date is maintained by DEA. For administrative 
purposes only, and in compliance with requirements of the Office of the 
Federal Register, the undersigned DEA Federal Register Liaison Officer 
has been authorized to sign and submit the document in electronic 
format for publication, as an official document of DEA. This 
administrative process in no way alters the legal effect of this 
document upon publication in the Federal Register.

Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2023-27522 Filed 12-14-23; 8:45 am]
BILLING CODE 4410-09-P


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