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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106582-106584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31318]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

Robert Esser, D.D.S.; Decision and Order

    On December 18, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Robert Esser, 
D.D.S., of Erie, Pennsylvania (Registrant). Request for Final Agency 
Action (RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the 
revocation of Registrant's Certificate of Registration No. BE3510193, 
alleging that Registrant's registration should be revoked because 
Registrant is ``currently without authority to handle controlled 
substances in the Commonwealth of Pennsylvania, the state in which [he 
is] registered with DEA.'' Id. at 2 (citing 21 U.S.C. 824(a)(3)).

[[Page 106583]]

    The OSC notified Registrant of his right to file a written request 
for hearing, and that if he failed to file such a request, he would be 
deemed to have waived his right to a hearing and be in default. Id. 
(citing 21 CFR 1301.43). Here, Registrant did not request a hearing. 
RFAA, at 2.\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 
March 4, 2024, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the included Declaration from 
a DEA Diversion Investigator (DI) indicates that on January 3, 2024, 
the DI emailed a copy of the OSC to Registrant's registered email 
address and received confirmation that the email was successfully 
delivered. RFAAX 3, at 2, Attachment B; Mohammed S. Aljanaby, M.D., 
82 FR 34552, 34552 (2017) (finding that service by email satisfies 
due process where the email is not returned as undeliverable and 
other methods have been unsuccessful). On December 28, 2023, the DI 
had attempted in-person service of the OSC at Registrant's 
registered address, and after receiving no response, left a business 
card on the premises. RFAAX 3, at 2. Further, on January 3, 2024, 
DEA had mailed a copy of the OSC to Registrant's registered address 
via certified mail, but the mailing was returned. Id. at 2, 
Attachment A.
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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] Sec.  1316.67.'' Id. Sec.  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), 1301.46. RFAA, at 3; see 
also 21 CFR 1316.67.

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, on 
October 20, 2022, the Pennsylvania State Board of Dentistry suspended 
Registrant's Pennsylvania dental license. RFAAX 2, at 2. According to 
Pennsylvania online records, of which the Agency takes official notice, 
Registrant's Pennsylvania dental license remains suspended.\2\ 
Pennsylvania Licensing System Verification Service,https://www.pals.pa.gov/#!/page/search (last visited date of signature of this 
Order). Accordingly, the Agency finds that Registrant is not licensed 
to practice dentistry in Pennsylvania, 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 [email protected].
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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. 
Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (``The Attorney General 
can register a physician to dispense controlled substances `if the 
applicant is authorized to dispense . . . controlled substances under 
the laws of the State in which he practices.' . . . The very definition 
of a `practitioner' eligible to prescribe includes physicians 
`licensed, registered, or otherwise permitted, by the United States or 
the jurisdiction in which he practices' to dispense controlled 
substances. Sec.  802(21).''). The Agency has applied these principles 
consistently. See, e.g., James L. Hooper, M.D., 76 FR 71371, 71372 
(2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012); 
Frederick Marsh Blanton, M.D., 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 (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 
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 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 Pennsylvania statute, ``dispense'' means ``to deliver 
a controlled substance, other drug or device to an ultimate user or 
research subject by or pursuant to the lawful order of a practitioner, 
including the prescribing, administering, packaging, labeling, or 
compounding necessary to prepare such item for that delivery.'' 35 Pa. 
Stat. and Cons. Stat. Ann. section 780-102(b) (West 2024). Further, a 
``practitioner'' means ``a physician . . . dentist . . . or other 
person licensed, registered or otherwise permitted to distribute, 
dispense, conduct research with respect to or to administer a 
controlled substance, other drug or device in the course of 
professional practice or research in the Commonwealth of 
Pennsylvania.'' Id.
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice dentistry in Pennsylvania. As discussed 
above, an individual must be a licensed practitioner to dispense a 
controlled substance in Pennsylvania. Thus, because Registrant lacks 
authority to practice dentistry in Pennsylvania and, therefore, is not 
authorized to handle controlled substances in Pennsylvania, Registrant 
is not eligible to maintain a DEA registration. Accordingly, the Agency 
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. 
BE3510193 issued to Robert Esser, D.D.S. 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 Robert Esser, D.D.S., to renew 
or modify this registration, as well as any other pending application 
of Robert Esser, D.D.S., for additional registration in Pennsylvania. 
This Order is effective January 29, 2025.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
December 20, 2024, 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

[[Page 106584]]

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. 2024-31318 Filed 12-27-24; 8:45 am]
BILLING CODE 4410-09-P
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