Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices 12847

Nonetheless, a DEA registration

carries with it the responsibility to

ensure that controlled substances are

only prescribed for a legitimate medical

purpose thereby preventing the

diversion of these potentially dangerous

substances from legitimate channels.

Therefore, the Acting Deputy

Administrator concludes that some

monitoring of Respondent’s controlled

substance handling practices and some

training in the proper handling of

controlled substance is necessary to

protect the public health and safety.

Thus, the Acting Deputy

Administrator concludes that

Respondent’s DEA registration should

be continued subject to the following

conditions:

(1) For a period of two years from the

effective date of this order, Respondent

shall be required to submit to the DEA

San Diego Field Division for review

every three months, a log of his

prescribing, dispensing and

administering of controlled substances.

This log shall include, at a minimum,

the date of the prescribing, dispensing

and administering, the name of the

patient, and the name, dosage and

quantity of the controlled substance

prescribed, administered or dispensed.

(2) Within three months of the

effective date of this order, Respondent

shall provide to the DEA San Diego

Field Division evidence of the

successful completion of at least 24

hours of training in the proper handling

of controlled substances.

Accordingly, the Acting Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

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

and 824 and 28 C.F.R. 0.100(b) and

0.104, hereby orders that DEA

Certificate of Registration AT1241847,

issued to Donald P. Tecca, M.D., be

continued, and any pending

applications be granted, subject to the

above conditions. This order is effective

April 17, 1997.

James S. Milford,

Acting Deputy Administrator.

Dated: March 4, 1997.

[FR Doc. 97–6795 Filed 3–17–97; 8:45 am]

BILLING CODE 4410–09–M

[Docket No. 96–31]

Anne Lazar Thorn, M.D. Revocation of

Registration

On April 15, 1996, the Deputy

Assistant Administrator, Office of

Diversion Control, Drug Enforcement

Administration (DEA) issued an Order

to Show Cause to Anne Lazar Thorn,

M.D. (Respondent), of Lafayette,

Louisiana, notifying her of an

opportunity to show cause as to why

DEA should not revoke her DEA

Certificate of Registration, AT6512152,

pursuant to 21 U.S.C. 824(a)(3), and

deny any pending applications for

renewal of such registration as a

practitioner pursuant to 21 U.S.C.

823(f), for reason that effective October

18, 1993, the Louisiana State Board of

Medical Examiners indefinitely

suspended her license to practice

medicine and as a result, she is not

currently authorized to handle

controlled substances in the State of

Louisiana.

By letter dated April 29, 1996,

Respondent, acting pro se, filed a timely

request for a hearing, and the matter was

docketed before Administrative Law

Judge Mary Ellen Bittner. On May 3,

1996, Judge Bittner issued an Order for

Prehearing Statements. On May 24,

1996, in lieu of filing such a statement,

the Government filed a Motion for

Summary Disposition and to Stay

Proceedings, asserting that ‘‘Respondent

is without state authorization to handle

controlled substances at this time.’’

Attached to the motion was a copy of

the Louisiana State Board of Medical

Examiner’s (Board) decision dated

October 18, 1993, indefinitely

suspending Respondent’s license to

practice medicine and a copy of a letter

from the Board notifying DEA that

Respondent’s license to practice

medicine in the State of Louisiana was

suspended.

On June 3, 1996, the Administrative

Law Judge received a letter from an

attorney indicating that he had been

retained to represent Respondent, and

on June 21, 1996, counsel for

Respondent filed a Memorandum in

Opposition to Government’s Motion for

Summary Disposition and Motion to

Stay Proceedings. Respondent did not

deny that she is currently without

authority to handle controlled

substances in the State of Louisiana.

However, she argued that 21 U.S.C.

824(a) provides for the Deputy

Administrator to use his discretion in

determining whether to revoke or

suspend a registration because of lack of

state authority to handle controlled

substances and that a hearing is

necessary to determine what action

should be taken against Respondent’s

registration. Respondent further argues

that this matter is not yet ripe for

determination since Respondent has not

‘‘had the opportunity to present her

evidence with supporting testimony

concerning her current fitness to

practice medicine, or the steps which

she is taking to seek the reinstatement

of her license to practice medicine in

the State of Louisiana.’’

On July 25, 1996, Judge Bittner issued

her Opinion and Recommended

Decision, finding that Respondent is not

currently authorized to handle

controlled substances in the State of

Louisiana; that she is bound by DEA’s

interpretation of the Controlled

Substances Act that, pursuant to 21

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

may not hold a DEA registration without

state authority to handle controlled

substances; that since no material

question of fact is involved, a hearing is

not necessary; and that while the statue

provides for the revocation or

suspension, revocation is appropriate in

this case since there is no indication

that Respondent’s state license will be

reinstated any time soon. Accordingly,

Judge Bittner granted the Government’s

Motion for Summary Disposition and

recommended that the Respondent’s

DEA Certificate of Registration be

revoked.

On August 8, 1996, Respondent filed

with the Administrative Law Judge a

Motion for Reconsideration and/or to

Alter or Amend Judgment (Motion for

Reconsideration). Respondent argued

that the Board suspended her license

indefinitely, rather than revoking it

entirely, and that it would remain

suspended until further order of the

Board. Respondent asserted that the

only evidence before the Administrative

Law Judge in rendering her

recommended decision was the order of

the Board dated October 18, 1993 and

that ‘‘a great deal has transpired with

respect to Respondent’s license to

practice medicine and the steps she has

taken to have her license reinstated.’’

Respondent argued that she should be

given an opportunity for a hearing

regarding her DEA registration in order

to outline the steps she has taken to

have her state license reinstated, and

that the evidence which would have

been presented at a hearing would have

aided the Administrative Law Judge in

deciding whether to recommend

revocation or suspension of

Respondent’s registration. Respondent

contended that ‘‘the decision to

permanently revoke a physician’s

registration to distribute drugs is a

serious sanction, and is one which

should not be rendered without

considering all of the evidence in a

particular case.’’

Therefore, Respondent requested that

the Administrative Law Judge

reconsider her decision to deny

Respondent the opportunity for a

hearing, or in the alternative, that the

Administrative Law Judge alter her

recommendation from revocation to
12848 Federal Register / Vol. 62, No. 52 / Tuesday, March 18, 1997 / Notices

suspension of Respondent’s registration.

On August 14, 1996, Judge Bittner

issued a Ruling denying Respondent’s

Motion for Reconsideration as lacking in

merit. Neither party filed exceptions to

her Opinion and Recommended

Decision, and on August 26, 1996, Judge

Bittner transmitted the record of these

proceedings to the Deputy

Administrator.

The Acting Deputy Administrator has

considered the record in its entirety,

and pursuant to 21 C.F.R. 1316.67,

hereby issues his final order based upon

findings of fact and conclusions of law

as hereinafter set forth. The Acting

Deputy Administrator adopts in full the

Opinion and Recommended Decision of

the Administrative Law Judge.

DEA has consistently interpreted the

Controlled Substances Act to preclude a

practitioner from holding a DEA

registration if the practitioner is without

authority to handle controlled

substances in the state in which he/she

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

(authorizing the Attorney General to

register a practitioner to dispense

controlled substances only if the

applicant is authorized to dispense

controlled substances under the laws of

the state in which he or she practices);

and 21 U.S.C. 802(21) (defining a

practitioner as one authorized by the

United States or the state in which he

or she practices to handle controlled

substances in the course of professional

practice or research). This prerequisite

has been consistently upheld. See Rita

M. Coleman, M.D., 61 FR 35,816 (1996);

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

(1993); Roy E. Hardman, M.D., 57 FR

49,195 (1992); and Bobby Watts, M.D.,

53 FR 11,919 (1988).

The Acting Deputy Administrator

finds that the controlling question is not

whether a practitioner’s license to

practice medicine in the state is

suspended or revoked; rather, it is

whether the Respondent is currently

authorized to handle controlled

substances in the state. In the instant

case, it is undisputed that Respondent is

not currently authorized to handle

controlled substances in the State of

Louisiana. Therefore, as Judge Bittner

notes, Respondent ‘‘is not currently

entitled to a DEA registration.’’

The Acting Deputy Administrator

concludes that Judge Bittner properly

granted the Government’s Motion for

Summary Disposition. Here, the parties

did not dispute the fact that Respondent

was unauthorized to handle controlled

substances in Louisiana. Therefore, it is

well-settled that when no question of

material fact is involved, a plenary,

adversary administrative proceeding

involving evidence and crossexamination of witnesses is not

obligatory. See Philip E. Kirk, M.D., 48

FR 32,887 (1983), aff’d sub nom. Kirk

versus Mullen, 749 F.2d 279 (6th Cir.

1984); Alfred Tennyson Smurthwaite,

M.D., 43 FR 11,873 (1978); see also

NLRB versus International Association

of Bridge, Structural and Ornamental

Ironworks, AFL–CIO, 549 F.2d 634 (9th

Cir. 1977); United States versus

Consolidated Mines & Smelting Co., 44

F.2d 432 (9th Cir. 1971).

In her Motion for Reconsideration,

Respondent argued that the permanent

revocation of a registration is a serious

sanction and ‘‘should not be rendered

without considering all of the evidence

in a particular case.’’ The Acting Deputy

Administrator notes that the revocation

of Respondent’s registration is not

permanent. Respondent may reapply for

a new DEA registration when her state

privileges to handle controlled

substances are reinstated. Further, the

Acting Deputy Administrator recognizes

that he has the discretionary authority

to either revoke or suspend a DEA

registration. However, given the

indefinite nature of the suspension of

Respondent’s state license to practice

medicine, the Acting Deputy

Administrator agrees with Judge Bittner

that revocation is appropriate in this

case.

Accordingly, the Acting Deputy

Administrator of the Drug Enforcement

Administration, pursuant to the

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

and 824, and 28 C.F.R. 0.100(b) and

0.104, hereby orders that the DEA

Certificate of Registration AT6512152,

issued to Anne Lazar Thorn, M.D., be,

and it hereby is, revoked, and that any

pending applications for the renewal of

such registration be, and they hereby

are, denied. This order is effective April

17, 1997.

Dated: March 4, 1997.

James S. Milford,

Acting Deputy Administrator.

[FR Doc. 97–6794 Filed 3–17–97; 8:45 am]

BILLING CODE 4410–09–M

Office of Justice Programs

[OJP(BJA)–1116]

RIN 1121–ZA62

State Criminal Alien Assistance

Program

AGENCY: Office of Justice Programs,

Bureau of Justice Assistance (BJA),

Justice.

ACTION: Notice of proposed guidelines.

SUMMARY: This notice is to request

comment on the proposed guideline on

the application process for States and

political subdivisions to obtain

reimbursement for the incarceration of

undocumented criminal aliens under

the State Criminal Alien Assistance

Program.

DATES: Comments on this proposed

guideline must be received on or before

April 22, 1997.

Final guidelines and application

information will be published and

issued within 30 days of the end of this

comment period and applicants will be

given at least 30 working days to make

that application.

ADDRESSES: Comments may be mailed

to: Office of Justice Programs, Office of

the General Counsel, 633 Indiana

Avenue, NW, Room 1245, Washington,

DC 20531.

FOR FURTHER INFORMATION CONTACT:

Linda James McKay, SCAAP

Coordinator, State and Local Assistance

Division, Bureau of Justice Assistance,

or the Department of Justice Response

Center, 1–800–421–6770 or 202–307–

1480.

SUPPLEMENTARY INFORMATION: The

following supplementary information is

provided: The State Criminal Alien

Assistance Program (SCAAP) provides

reimbursement for certain criminal

aliens who are incarcerated in State and

local correctional facilities. The program

is administered by the Bureau of Justice

Assistance (BJA), which is part of the

Office of Justice Programs (OJP) in the

Department of Justice. The program is

authorized and governed by the

provisions of the Immigration and

Nationality Act of 1990, as amended, 8

U.S.C. 1251(i), originally enacted as part

of the Violent Crime Control and Law

Enforcement Act of 1994 (Pub. L. 103–

322) at section 20301.

This section provides the authority, at

the option of the Attorney General

whenever an appropriation is made, to

either reimburse States and localities for

costs incurred in incarcerating

qualifying criminal aliens or take such

aliens into Federal custody. For Fiscal

Year 1997 (FY 1997), the Attorney

General has delegated the authority to

implement the program to BJA. BJA is

a criminal justice grant making and

administrative agency within the

Department of Justice and, thus, has no

ability to take custody. Therefore,

SCAAP will continue to be

administered only as a reimbursement

program. For FY 1997, $500,000,000,

less administrative costs, is available for

reimbursement payments under SCAAP.

For FY 1997, records related to all

foreign-born inmates with one felony or

two misdemeanor convictions who are

or have been incarcerated within a State