Federal Register / Vol. 65, No. 24 / Friday, February 4, 2000 / Notices 5675

of any similar type behavior since that

time.

The Deputy Administrator also finds

it relevant under this factor that

Respondent was previously addicted to

narcotic controlled substances.

Respondent has acknowledged her past

problems and appears to be remorseful.

However, while Respondent asserts that

she has undergone treatment and that

she has not improperly used controlled

substances since 1993, the Deputy

Administrator is troubled by the lack of

evidence in the record, other than

Respondent’s own testimony, regarding

Respondent’s treatment for her

addiction. The record is also devoid of

evidence of any continued monitoring

of Respondent and any support network

in place to help prevent a relapse.

The Deputy Administrator agrees with

Judge Bittner that the Government has

presented a prima facie case for the

denial of Respondent’s application for

registration based upon Respondent’s

use of her previous DEA registrations to

obtain controlled substances for her

own use, her abuse of controlled

substance, her violation of laws relating

to controlled substances, her handling

of sodium pentobarbital in 1997 when

not authorized to do so, and her theft of

a non-controlled substance in 1993 to be

used to temporarily immobilize her exhusband. However, Judge Bittner found

credible Respondent’s testimony that

she has not used controlled substances

since 1993 except as prescribed lawfully

by a physician. Judge Bittner also found

credible Respondent’s testimony

regarding the circumstances

surrounding her theft to ketamine in

1993 and her 1997 handling of sodium

penotobarbital, and that she regrets her

misconduct, is willing to accept

restrictions on her registration, and will

not abuse her registration or controlled

substances in the future.

Therefore, Judge Bittner concluded

that it would not be inconsistent with

the public interest to grant Respondent

a DEA Certificate of Registration limited

to the Schedule II controlled sodium

pentobarbital, the Schedule III

controlled substances ketamine and

thiopental, and the Schedule IV

controlled substance butorphanol

subject to the following conditions:

(1) Respondent shall maintain

accurate records showing all purchases,

administering and dispensing

(including prescribing) of all controlled

substances; and

(2) Respondent shall submit copies of

all such records to the Special Agent in

Charge of DEA’s New Orleans Office, or

his designees, quarterly, for five years

from the effective date of her

registration.

The Deputy Administrator agrees with

Judge Bittner that it is not in the public

interest to deny Respondent’s

application for registration and basically

agrees with Judge Bittner’s

recommended restrictions. However, the

Deputy Administrator is extremely

reluctant to grant Respondent the

authority to handle ketamine, the very

substance she admitted stealing in 1993

to potentially use to incapacitate her exhusband. Nonetheless, the Deputy

Administrator will do so given that the

Veterinary Board recommended that

Respondent be authorized to handle

ketamine and the recommendation of

the appropriate state licensing authority

is one of the factors to be considered by

the Deputy Administrator in

determining the public interest. The

Deputy Administrator is also troubled

by the lack of evidence in the record,

other than Respondent’s own testimony,

regarding her treatment and

rehabilitation. Consequently, the Deputy

Administrator finds it necessary to have

safeguards in place to be certain that

Respondent does not abuse controlled

substances once she is issued a limited

registration.

Therefore, the Deputy Administrator

concludes that Respondent should be

issued a DEA Certificate of Registration

in Schedules II non-narcotic, III and IV

subject to the following restrictions for

three years from the date of issuance of

the DEA Certificate of Registration:

(1) While Respondent shall be

registered in Schedules II non-narcotic,

III and IV, she shall only handle sodium

pentobarbital, ketamine, thiopental, and

butorphanol.

(2) Respondent shall send copies of

records documenting all of her

purchases of controlled substances to

the Special Agent in Charge of the DEA

New Orleans office, or her designee, on

a quarterly basis.

(3) Respondent shall submit, on a

quarterly basis, a log of all of the

controlled substances she has

prescribed, administered, or dispensed

during the previous quarter, to the

Special Agent in Charge of the DEA

New Orleans office, or his designee. The

log shall include: the patient’s name; the

date that the controlled substance was

prescribed, administered or dispensed;

and the name, dosage and quantity of

the controlled substance prescribed,

administered or dispensed. If no

controlled substances are prescribed,

administered or dispensed during a

given quarter, Respondent shall indicate

that fact in writing, in lieu of

submission of the log.

(4) Respondent shall submit to

random urinalysis, at her own expense,

not less than one time per month.

Within 30 days of the effective date of

this order, Respondent shall notify the

Special Agent in Charge of the DEA

New Orleans office, or his designee, in

writing, as to the identity of the

laboratory or hospital that will be

conducting the random urinalysis.

Reports documenting the results of

these tests shall be forwarded to the

Special Agent in Charge of the DEA

New Orleans office, or his designee.

(5) Respondent shall consent to

random, unannounced inspections

without the need for an Administrative

Inspection Warrant.

Accordingly, the Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C. 823

and 824 and 28 CFR 0.100(b) and 0.104,

hereby orders that the application for

registration submitted by Judy L.

Henderson, D.V.M., be, and it hereby is,

granted in Schedules II non-narcotics,

III and IV, subject to the above described

restrictions. This order is effective upon

the issuance of the DEA Certificate of

Registration, but no later than March 6,

2000.

Dated: January 18, 2000.

Donnie R. Marshall,

Deputy Administrator.

[FR Doc. 00–2540 Filed 2–3–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Archibald W. Hutchinson, M.D.;

Revocation of Registration

On July 28, 1999, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Archibald W.

Hutchinson, M.D., of Marietta, Ohio,

notifying him of an opportunity to show

cause as to why DEA should not revoke

his DEA Certificate of Registration

BH2898053 pursuant to 21 U.S.C.

824(a)(3), and deny any pending

applications for renewal of such

registration pursuant to 21 U.S.C. 823(f),

for reason that he is not currently

authorized to handle controlled

substances in the State of Ohio. The

order also notified Dr. Hutchinson that

should no request for a hearing be filed

within 30 days, his hearing right would

be deemed waived.

The Order to Show Cause was sent to

Dr. Hutchinson at his registered

location. DEA received a signed receipt

indicating that it was received and

signed for by an individual on

November 3, 1999. The Order to Show

5676 Federal Register / Vol. 65, No. 24 / Friday, February 4, 2000 / Notices

Cause was also sent to Dr. Hutchinson

at his last known address in Illinois.

The return receipt indicates that the

Order to Show Cause was forwarded to

another address in Illinois and was

signed for on or about August 20, 1999.

No request for a hearing or any other

reply was received by the DEA from Dr.

Hutchinson or anyone purporting to

represent him in this matter. Therefore,

the Deputy Administrator, finding that

(1) 30 days have passed since the receipt

of the Order to Show Cause, and (2) no

request for a hearing having been

received concludes that Dr. Hutchinson

is deemed to have waived his hearing

right. After considering material from

the investigative file in this matter, the

Deputy Administrator now enters his

final order without a hearing pursuant

to 21 CFR 1301.43(d) and (e) 1301.46.

This final order replaces and supersedes

the final order issued on January 3,

2000.

The Deputy Administrator finds that

Dr. Hutchinson currently possesses DEA

Certificate of Registration BH2898053

issued to him in Ohio. The Deputy

Administrator further finds that on July

8, 1998, the State Medical Board of Ohio

permanently revoked his license to

practice medicine in the State of Ohio.

Therefore, the Deputy Administrator

concludes that Dr. Hutchinson is not

currently licensed to practice medicine

in Ohio, and as a result, it is reasonable

to infer that he is not currently

authorized to handle controlled

substances in that state.

The DEA does not have the statutory

authority under the Controlled

Substances Act to issue or maintain a

registration if the applicant or registrant

is without state authority to handle

controlled substances in the state in

which he conducts his business. See 21

U.S.C. 802(21), 823(f) and 824(a)(3).

This prerequisite has been consistently

upheld. See Romeo J. Perez, M.D., 62 FR

16,193 (1997); Demetris A. Green, M.D.,

61 FR 60,728 (1996); Dominick A. Ricci,

M.D., 58 FR 51,104 (1993).

Here it is clear that Dr. Hutchinson is

not currently authorized to handle

controlled substances in the State of

Ohio. As a result, he is not entitled to

a DEA registration in that state.

Accordingly, the Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

authority vested in him by 21 U.S.C. 823

and 824 and 28 CFR 0.100(b) and 0.104,

hereby orders that DEA Certificate of

Registration BH2898053, previously

issued to Archibald W. Hutchinson,

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

Deputy Administrator further orders

that any pending applications for the

renewal of such registration, be, and

they hereby are, denied. This order is

effective March 6, 2000, and is

considered the final agency action for

appellate purposes pursuant to 21

U.S.C. 877.

Dated: January 18, 2000.

Donnie R. Marshall,

Deputy Administrator.

[FR Doc. 00–2527 Filed 2–3–00; 8:45 am]

BILLING CODE 4410–09–M

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 99-36]

Kenneth Leroy Jones, M.D.;

Revocation of Registration

On August 24, 1999, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA) issued an Order

to Show Cause to Kenneth Leroy Jones,

M.D. (Respondent) of Paintsville,

Kentucky, notifying him of an

opportunity to show cause as to why

DEA should not revoke his DEA

Certificate of Registration AJ1551399,

and deny any pending applications for

renewal of such registration as a

practitioner pursuant to 21 U.S.C. 823(f)

and 824(a)(3). The Order to Show Cause

alleged that Respondent was not

currently authorized to handle

controlled substances in the

Commonwealth of Kentucky.

By letter dated September 17, 1999,

Respondent requested a hearing, and the

matter was docketed before

Administrative Law Judge Mary Ellen

Bittner. On October 20, 1999, the

Government filed a Motion for

Summary Disposition, alleging that

Respondent is currently registered with

DEA to handle controlled substances in

Kentucky, however, he is not currently

authorized by the Commonwealth of

Kentucky to handle controlled

substances. Respondent was given until

November 10, 1999, to file a response to

the Government’s motion. Respondent

failed to file a timely response.

On November 18, 1999, Judge Bittner

issued her Opinion and Recommended

Decision finding that Respondent lacks

authorization to handle controlled

substances in the Commonwealth of

Kentucky; granting the Government’s

Motion for Summary Disposition; and

recommending that Respondent’s DEA

Certificate of Registration be revoked.

Neither party filed exceptions to her

Opinion and Recommended Decision,

however on November 30, 1999,

Respondent filed a letter with Judge

Bittner indicating that he no longer

wished to pursue this matter and asking

that favorable consideration be given to

any future applications for registration

with DEA. On December 20, 1999, Judge

Bittner transmitted the record of these

proceedings to the Office of the Deputy

Administrator.

The Deputy Administrator has

considered the record in its entirety,

and pursuant to 21 CFR 1316.67, hereby

issues his final order based upon

findings of fact and conclusions of law

as hereinafter set forth. The Deputy

Administrator adopts, in full, the

Opinion and Recommended Decision of

the Administrative Law Judge.

As a preliminary matter, the Deputy

Administrator has not considered

Respondent’s letter filed on November

30, 1999, since it was not timely filed

and Respondent has not offered any

explanation for the late filing.

The Deputy Administrator finds that

Respondent possesses DEA Certificate of

Registration AJ1551399, issued to him at

an address in Paintsville, Kentucky. The

Deputy Administrator further finds that

on January 7, 1999, the Commonwealth

of Kentucky, State Board of Medical

Licensure ordered the revocation of

Respondent’s Kentucky medical license.

Respondent did not dispute that he is

not currently authorized to practice

medicine in Kentucky.

Therefore, the Deputy Administrator

finds that Respondent is not currently

authorized to practice medicine in the

Commonwealth of Kentucky. As a

result, it is reasonable to infer that he is

also not authorized to handle controlled

substances in that state.

DEA does not have statutory authority

under the Controlled Substances Act to

issue or maintain a registration if the

applicant or registrant is without state

authority to handle controlled

substances in the state in which he

conducts his business. See 21 U.S.C.

802(21), 823(f) and 824(a)(3). This

prerequisite has been consistently

upheld. See Romeo J. Perez. M.D., 62 FR

16,193 (1997); Demetris A. Green, M.D.,

61 FR 60,728 (1996); Dominick A. Ricci,

M.D. 58 FR 51.104 (1993).

Here it is clear that Respondent is not

licensed to handle controlled substances

in Kentucky. Since Respondent lacks

this state authority, he is not entitled to

a DEA registration in that state.

In light of the above, Judge Bittner

properly granted the Government’s

Motion for Summary Disposition. The

parties did not dispute the fact that

Respondent is currently unauthorized to

handle controlled substances in

Kentucky. Therefore, it is well-settled

that when no question of material fact

is involved, a plenary, adversary

administrative proceeding involving