17516 Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 

2While I have raised the issue of Respondent’s 

registration status sua sponte, in the event 

Respondent seeks to refute the factual basis upon 

which I rely, it may do so by filing a motion for 

reconsideration within fifteen days of the date of 

service of this Order, which shall begin on the date 

the Order is mailed. 

that Respondent had violated its 

corresponding responsibility under 

Federal law by filling prescriptions 

which were not issued for a legitimate 

medical purpose by a practitioner acting 

in the usual course of professional 

practice. Id. More specifically, the Order 

alleged that Respondent had ‘‘acquired 

over 15 million dosage units of’’ such 

drugs as Didrex and phentermine, 

which are schedule III and IV controlled 

substances respectively, and that 

Respondent was dispensing ‘‘huge 

amounts of dosage units to persons 

who’’ obtained prescriptions through 

the Internet and ‘‘who [were] never 

actually seen or examined by a 

physician.’’ Id. at 8. 

Respondent timely requested a 

hearing. The matter was placed on the 

docket of the Agency’s Administrative 

Law Judges (ALJ), and a hearing was 

held on March 27 through 29, 2006, at 

which both parties elicited the 

testimony of witnesses and introduced 

various documents into evidence. 

Following the hearing, both parties 

submitted briefs containing their 

proposed findings of fact, conclusions of 

law, and argument. Moreover, on 

October 11, 2007, the ALJ invited the 

parties to submit additional briefs in 

light of my decision in United 

Prescription Services, Inc., 72 FR 50397 

(2007); both parties did so. 

Thereafter, on March 10, 2008, the 

ALJ issued her recommended decision. 

In her decision, the ALJ found that 

Respondent and its owner had 

repeatedly violated Federal law by 

filling prescriptions for controlled 

substances which it had reason to know 

were unlawful. ALJ at 64–69. The ALJ 

also found that Respondent’s owner had 

failed to accept responsibility for her 

misconduct. Id. at 70. The ALJ thus 

concluded that ‘‘Respondent’s 

continued registration would be 

inconsistent with the public interest,’’ 

and recommended that I revoke its 

registration and deny any pending 

applications. Id. 

On May 2, 2008, Respondent filed 

exceptions to the ALJ decision. Shortly 

thereafter, the record was forwarded to 

me for final agency action. 

During the course of reviewing the 

record, my office determined that on 

August 12, 2008, Respondent had been 

acquired by Walgreens. On the same 

day, Respondent also surrendered its 

registration certificate, as well as its 

order forms (DEA Form 222), to the 

Agency’s Philadelphia Field Division 

Office. Letter of Charlotte J. Lopacki, 

R.Ph., to DEA Philadelphia Field Div. 

Office (August 12, 2008). There is, 

however, no evidence that Respondent 

completed a voluntary surrender form. 

Based on these acts, I find that 

Respondent has discontinued business. 

Under 21 CFR 1301.52(a), ‘‘the 

registration of any person shall 

terminate if and when such person 

* * * discontinues business or 

professional practice.’’ Accordingly, I 

will declare that Respondent’s 

registration has terminated with an 

effective date of August 12, 2008. And 

because there are no pending 

applications before the Agency, I further 

hold that the Show Cause proceeding is 

now moot.2

Order 

Pursuant to the authority vested in me 

under 5 U.S.C. 554(e), as well as 28 CFR 

0.100(b) & 0.104, I hereby declare 

terminated as of August 12, 2008, DEA 

Certificate of Registration, BB5209223, 

issued to Budget Pharmacy and 

Wellness Center, of Feasterville, 

Pennsylvania. Pursuant to the authority 

vested in me by 21 U.S.C. 823(f) & 

824(a), as well as 28 CFR 0.100(b) & 

0.104, I further order that the Order to 

Show Cause issued to Budget Pharmacy 

and Wellness Center be, and it hereby 

is, dismissed. This Order is effective 

immediately. 

Dated: April 3, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–8617 Filed 4–14–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 08–50] 

Sylvester A. Nathan; Dismissal of 

Proceeding 

On June 25, 2008, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Sylvester A. Nathan, 

M.D. (Respondent), of Woodridge, 

Illinois. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration, AN1430343, which 

authorized him to dispense controlled 

substances as a practitioner, and the 

denial of any pending applications to 

renew or modify the registration, on the 

ground that the Illinois Department of 

Professional Regulation had suspended 

Respondent’s ‘‘state license to handle 

controlled substances,’’ and that 

Respondent is therefore without 

authority to dispense controlled 

substances in the State in which he 

holds his registration. Id. at 1. 

Respondent timely requested a 

hearing on the allegations and sought a 

five-month long continuance of the 

proceeding. Thereafter, the Government 

moved to deny Respondent’s request for 

a continuance and for summary 

disposition. The basis for the summary 

disposition motion was that 

Respondent’s state medical license had 

been suspended. As support for the 

motion, the Government attached: (1) A 

copy of a July 25, 2007 order of the 

Illinois Department of Financial and 

Professional Regulation (IDFPR), which 

indefinitely suspended Respondent’s 

Illinois Physician and Surgeon’s 

Certificate until he provided proof that 

he has passed the Special Purpose 

Examination (SPEX); and (2) a July 8, 

2008 printout of Respondent’s Physician 

Profile from the IDFPR’s Web site, 

which indicated that the status of 

Respondent’s license was ‘‘suspended.’’ 

Thereafter, the ALJ issued an Order 

for Respondent’s Response. On August 

11, 2008, Respondent submitted his 

response in which he acknowledged 

that since July 25, 2007, he ‘‘has no 

authority to prescribe, handle or 

[d]ispense any [c]ontrolled medical 

substances in the state’’ of Illinois. With 

the submission, Respondent also 

enclosed his DEA Certificate of 

Registration but indicated on the 

document that it was being ‘‘returned 

under protest.’’ 

Shortly thereafter, the ALJ granted the 

Government’s motion for summary 

disposition. ALJ at 6. The ALJ noted that 

there was no dispute that ‘‘Respondent 

is not authorized to practice medicine in 

Illinois’’ and thus could not ‘‘prescribe 

controlled substance in that State.’’ Id. 

at 5. Applying the Agency’s 

longstanding interpretation that the 

Controlled Substances Act precludes the 

continuation of a registration if the 

practitioner no longer holds authority to 

dispense controlled substances in the 

State in which he practices medicine, 

id. (collecting cases); the ALJ granted 

the Government’s motion and 

recommended that Respondent’s 

registration be revoked and that any 

pending application be denied. 

Respondent did not file exceptions to 

the ALJ’s decision. On September 11, 

2008, the record was forwarded to me 

for final agency action. Having 

considered the entire record and having 

taken official notice of the registration 


rwilkins on PROD1PC63 with PROPOSALS
Federal Register / Vol. 74, No. 71 / Wednesday, April 15, 2009 / Notices 17517 

1Under the Administrative Procedure Act (APA), 

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

stage in a proceeding-even in the final decision.’’ 

U.S. Dept. of Justice, Attorney General’s Manual on 

the Administrative Procedure Act 80 (1947) (Wm. 

W. Gaunt & Sons, Inc., Reprint 1979). In accordance 

with the APA and DEA’s regulations, Respondent 

is ‘‘entitled on timely request, to an opportunity to 

show to the contrary.’’ 5 U.S.C. 556(e); see also 21 

CFR 1316.59(e). Respondent can dispute these facts 

by filing a properly supported motion for 

reconsideration within fifteen days of service of this 

order, which shall begin on the date this order is 

mailed. 

1Therein, the Government argued that the record 

not only showed that listed chemical products in 

gel cap form have been diverted, but that in various 

decisions I have previously rejected the ALJ’s 

reasoning that the Agency cannot revoke a 

registration until the actual diversion of gel cap 

products is substantiated. Exceptions at 2–3 (citing 

Holloway Distributing, 72 FR 42118 (2007), T. 

Young Associates, 71 FR 60567 (2006)). 

Continued 

records of this Agency,1 I find that 

Respondent’s registration expired on 

October 31, 2008, and that Respondent 

has not submitted a renewal 

application, let alone a timely one 

(which would have kept his registration 

in effect pending the issuance of this 

decision). 

It is well settled that ‘‘[i]f a registrant 

has not submitted a timely renewal 

application prior to the expiration date, 

then the registration expires and there is 

nothing to revoke.’’ Ronald J. Riegel, 63 

FR 67132, 67133 (1998); see also 

William W. Nucklos, 73 FR 34330 

(2008). Because Respondent’s 

registration has expired and there is no 

pending application to act upon, I 

conclude that this case is now moot. 

Order 

Pursuant to the authority vested in me 

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

28 CFR 0.100(b) and 0.104, I hereby 

order that the Order to Show Cause 

issued to Sylvester A. Nathan, M.D., be, 

and it hereby is, dismissed. 

Dated: April 3, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–8625 Filed 4–14–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 05–43] 

Gregg & Son Distributors; Grant of 

Conditional Registration 

On August 3, 2005, the Deputy 

Assistant Administrator, Office of 

Diversion Control, Drug Enforcement 

Administration, issued an Order to 

Show Cause to Gregg & Son Distributors 

(Respondent), of Powell, Tennessee. The 

Show Cause Order proposed the 

revocation of, and the denial of its 

pending application to renew, 

Respondent’s DEA Certificate of 

Registration, which authorizes it to 

distribute the List I chemicals 

pseudoephedrine and ephedrine, on the 

ground that its registration ‘‘is 

inconsistent with the public interest.’’ 

Order to Show Cause at 1. 

More specifically, the Show Cause 

Order alleged that Respondent’s 

customers for List I chemical products 

‘‘are almost exclusively * * * entities 

such as convenience stores and small 

independent grocery stores,’’ and that 

these retailers are a primary source for 

the diversion of these products into the 

illicit manufacture of 

methamphetamine, a schedule II 

controlled substance. Id. at 1–2. The 

Order further alleged that Respondent 

was selling ‘‘products that are not sold 

in traditional retail outlets, including 

over one dozen ephedrine products and 

various pseudoephedrine products,’’ id. 

at 2–3, that according to an expert 

utilized by the Agency, ‘‘the average 

small store could expect to sell monthly 

only about $ 10.00 to $ 30.00 worth of 

pseudoephedrine products,’’ and ‘‘that 

the potential for sales of combination 

ephedrine products [was] about only 

one-fourth of [these] sales levels.’’ Id. at 

4. Relatedly, the Order alleged that ‘‘it 

is highly unlikely that [Respondent’s 

customers] would sell a large volume of 

List I chemical products for legitimate 

uses,’’ that Respondent’s ‘‘sales of 

combination ephedrine products and 

pseudoephedrine products are 

inconsistent with the known legitimate 

market and known end-user demand for 

products of this type,’’ and that 

Respondent ‘‘is serving an illegitimate 

market for these products.’’ Id. at 4–5. 

The Show Cause Order further alleged 

that in March 2005, DEA Investigators 

conducted an inspection of Respondent. 

Id. at 2. According to the allegations, the 

Investigators conducted an audit of six 

ephedrine products distributed by 

Respondent between December 27, 

2003, and March 15, 2005, and found 

‘‘substantial underages and overages for 

these products.’’ Id. at 3. 

The Order also alleged that during the 

inspection, the Investigators discovered 

that Respondent sold ‘‘‘lovers’ roses,’ 

devices with small roses contained 

inside a glass vial cylinder,’’ and that 

‘‘[t]hese products are considered drug 

paraphernalia because the vials are used 

to smoke methamphetamine and [crack] 

cocaine.’’ Id. The Order further alleged 

that Mr. Dennis Gregg, Respondent’s 

owner, ‘‘acknowledged that he was 

aware of the illicit use of lovers’ roses.’’ 

Id. 

Finally, the Order alleged that after 

the inspection, Investigators visited 

three of Respondent’s customers and 

obtained information which indicated 

that Respondent’s products were being 

diverted. Id. at 3. More specifically, the 

Order alleged that at the first store, one 

customer purchased two (forty-eight 

count) bottles each day, and that at a 

second store, the manager stated that 

she had only a few customers who 

purchased the products but that they 

did so regularly, and ‘‘that she believed 

that most of the List I chemical products 

sold in her store went to ‘meth labs.’’’ 

Id. at 3. Finally, the Order alleged that 

at the third store, the owner stated ‘‘that 

he was a former law enforcement 

officer’’ and that ‘‘he was certain that 

most or all of the ephedrine sold at his 

store [was] used for illicit 

methamphetamine production.’’ Id. at 

3–4. 

On or about August 30, 2005, 

Respondent requested a hearing on the 

allegations; the matter was placed on 

the docket of the Agency’s 

Administrative Law Judges (ALJ). On 

April 18 and 19, 2006, a hearing was 

held in Nashville, Tennessee, at which 

both parties called witnesses to testify 

and submitted documentary evidence. 

Following the hearing, both parties 

submitted briefs containing their 

proposed findings of fact, legal 

conclusions, and argument. 

On February 29, 2008, nearly twentytwo months after the hearing, the ALJ 

issued her recommended decision (ALJ). 

Because Respondent’s sales levels of 

ephedrine products ‘‘far exceed the 

expected legitimate market demand,’’ 

the ALJ concluded that the Government 

had established its prima facie case that 

its continued registration is inconsistent 

with the public interest. ALJ at 41. The 

ALJ reasoned, however, that a sanction 

less severe than revocation was 

warranted because Tennessee had 

recently enacted legislation that ‘‘placed 

extensive limits upon the products 

[Respondent could] sell,’’ that 

Respondent was in ‘‘compliance with 

the Act,’’ id., and that the Agency had 

not provided evidence that its sales of 

gel cap products were excessive. Id. at 

39. The ALJ further concluded that there 

was a ‘‘lack of evidence in [the] record 

showing that soft-gel listed chemical 

products have actually been made into 

methamphetamine at illicit 

laboratories.’’ Id. at 41. 

The Government filed exceptions to 

the ALJ’s decision, and Respondent 

filed a Response to the Government’s 

exceptions.1 Thereafter, the record was 

forwarded to me for final agency action. 


rwilkins on PROD1PC63 with PROPOSALS