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###### Department of Justice

###### Drug Enforcement Administration

                    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)).                          ( print 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).                

                    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), 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.                

## 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. § 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] 

                    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                           ( print 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.

# Footnotes

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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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                         *dea.addo.attorneys@dea.gov.*
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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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[FR Doc. 2024-31318 Filed 12-27-24; 8:45 am]

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