22076 Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Notices

DEA Certificate of Registration. The

Order to Show cause alleged that

Respondent’s registration would be

inconsistent with the public interest as

that term is used in 21 U.S.C. 823(f).

The Order to Show Cause was

received by Respondent. Respondent,

through counsel, timely filed a request

for a hearing on the issues raised in the

Order to Show Cause and the matter

was docketed before Administrative

Law Judge Mary Ellen Bittner. Judge

Bittner ordered the parties to file

prehearing statements. After the

Government filed its prehearing

statement, Respondent requested and

obtained an extension of time to file his

prehearing statement on or before

February 10, 1994. On February 28,

1994, Judge Bittner issued an order

terminating the proceedings based upon

the fact that Respondent had not filed a

prehearing statement nor any other

pleading. The order also found that

Respondent waived his right to a

hearing pursuant to 21 CFR 1301.54(a)

and 1301.54(d). Accordingly, the

Deputy Administrator now enters his

final order in this matter without a

hearing and based on the investigative

file. 21 CFR 1301.57.

In 1986, Respondent prescribed

various narcotic and benzodiazepine

controlled substances to an individual

whom Respondent knew was drug

addicted. Respondent also prescribed

Tylenol with codeine, a Schedule III

controlled substance, and Doriden, then

a Schedule III controlled substance and

now a Schedule II substance, to this

individual. This combination, known by

its street name of ‘‘fours and dors’’, is

commonly abused by many drug addicts

and Respondent was aware of such fact

at the time he prescribed these

substances to this individual.

In October 1987, this individual

acting in an undercover capacity made

thirteen undercover visits to

Respondent’s office. The transcripts of

these undercover visits revealed that

Respondent was well aware that the

combination of Tylenol with codeine

and Doriden was used by drug abusers

and that he was not prescribing these

substances to this individual for any

legitimate reason. In addition, from

October 1987 to December 1987,

Respondent’s receptionist gave this

individual over 300 dosage units of

Valium, a Schedule IV controlled

substance, and 144 dosage units of

Doriden for no legitimate medical

purpose. Although Respondent claimed

he was unaware of this activity, he was

responsible for this employee’s actions

and ultimately accountable for the

controlled substances that were

dispensed from his office.

Respondent ordered about 200,000

dosage units of controlled substances in

a nine month period in 1987. These

controlled substances were stored at his

residence, and then transferred to

Respondent’s two offices; one of these

offices was never a registered location

and Respondent let the other office’s

registration lapse in January 1987.

In February of 1986, Respondent was

convicted in the Commonwealth of

Pennsylvania of 47 counts of submitting

false or fraudulent Medicaid claims.

Respondent was sentenced to three

years probation and to pay a fine and

restitution. The Pennsylvania Bureau of

Occupational and Professional Affairs

suspended Respondent’s medical

license in March 1988, but reinstated

the license about a month later.

On March 23, 1988, Respondent was

notified that his prior DEA registration

was immediately suspended and that he

should notify DEA of any controlled

substance deliveries that he might

receive subsequent to that date. In fact

Respondent did order over 19,000

dosage units of controlled substances on

March 23, 1988, and he received this

shipment on March 28, 1988. He never

notified DEA of this receipt of

controlled substances. The controlled

substances were discovered in the

garage at the residence of Respondent’s

attorney pursuant to a search warrant

which was served on April 13, 1988.

Based upon these events, Respondent’s

prior DEA registration, AM5075305, was

revoked on March 27, 1989. 54 FR

13254 (1989).

In evaluating whether Respondent’s

registration by the Drug Enforcement

Administration would be inconsistent

with the public interest, the Deputy

Administrator considers the factors

enumerated in 21 U.S.C. 823(f). They

are as follows:

(1) The recommendation of the

appropriate State licensing board or

professional disciplinary authority.

(2) The applicant’s experience in

dispensing, or conducting research with

respect to controlled substances.

(3) The applicant’s conviction record

under Federal or State laws relating to

the manufacture, distribution, or

dispensing of controlled substances.

(4) Compliance with applicable State,

Federal, or local laws relating to

controlled substances.

(5) Such other conduct which may

threaten the public health and safety.

In determining whether a registration

would be inconsistent with the public

interest, the Deputy Administrator is not

required to make findings with respect

to each of the factors listed above.

Instead, he has the discretion to give

each factor the weight he deems

appropriate, depending upon the facts

and circumstances of each case. See

David E. Trawick, D.D.S., Docket No.

88–69, 53 FR 5326 (1988).

Regarding factor two, Respondent’s

experience in dispensing controlled

substances is poor based upon his

prescribing the combination of Tylenol

with codeine and Doriden to an

individual, especially when Respondent

was aware that this combination was

subject to abuse. This factor is also

supported by the fact that Respondent’s

employee dispensed numerous

controlled substances to this individual

in addition to the controlled substances

that he received from Respondent’s

illegitimate prescriptions.

With respect to factor four,

Respondent failed to comply with

applicable Federal law by dispensing

controlled substances from an

unregistered location. 21 U.S.C. 822(e).

Respondent also did not maintain

records of the controlled substances

dispensed from his office by his

employee. 21 U.S.C. 827(a). Finally,

Respondent received controlled

substances after he was notified that his

DEA registration was suspended. 21

U.S.C. 843(a)(2). This violation is

particularly egregious because

Respondent ignored instructions to

inform DEA of any controlled substance

shipments received after the suspension

of his DEA registration. Factor five is

applicable based upon Respondent’s

Medicaid fraud convictions.

No evidence of explanation or

mitigating circumstances has been

offered by Respondent. Therefore, the

Deputy Administrator concludes that

Respondent’s application for a DEA

Certificate of Registration must be

denied.

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 a

DEA Certificate of Registration,

submitted by Leonard Merkow, M.D.,

be, and it is hereby denied. This order

is effective May 4, 1995.

Dated: April 28, 1995.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 95–10928 Filed 5–3–95; 8:45 am]

BILLING CODE 4410–09–M

[Docket No. 93–56]

Michael G. Sargent, M.D.; Revocation

of Registration

On June 2, 1993, the Deputy Assistant

Administrator (then Director), Office of
Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Notices 22077

Diversion Control, Drug Enforcement

Administration (DEA), issued an Order

to Show Cause to Michael G. Sargent,

M.D. of Katy, Texas (Respondent),

proposing to revoke his DEA Certificate

of Registration, AS2512374, as a

practitioner and deny any pending

application for registration as a

practitioner. The statutory basis for the

Order to Show Cause was that

Respondent’s continued registration as a

practitioner would be inconsistent with

the public interest as that term is used

in 21 U.S.C. 823(f) and 824(a)(4).

Respondent, through counsel,

requested a hearing on the issues raised

in the Order to Show Cause, and the

matter was docketed before

Administrative Law Judge Mary Ellen

Bittner. Following prehearing

procedures, a hearing was held on

January 5 and 6, 1994, in Houston,

Texas. On August 25, 1994, the

administrative law judge issued her

opinion and recommended ruling,

findings of fact, conclusions of law and

decision recommending that

Respondent’s registration be revoked.

Respondent filed exceptions to the

opinion on September 19, 1994.

On October 13, 1994, the

administrative law judge transmitted the

record of the proceeding to the Deputy

Administrator. After a careful

consideration of the record in its

entirety, the Deputy Administrator

enters his final order in this matter, in

accordance with 21 CFR 1316.67, based

on findings of fact and conclusions of

law as set forth herein.

The administrative law judge found

that, in July 1991, DEA investigators in

Houston, Texas, received an anonymous

complaint that Respondent was

prescribing controlled substances to

individuals without a legitimate

medical purpose. As a result, DEA

investigators conducted prescription

surveys of pharmacies located near

Respondent’s office. These surveys

established that Respondent was

prescribing Tylenol #3 with codeine, a

Schedule III controlled substance, in

conjunction with Valium, a Schedule IV

controlled substance.

Judge Bittner further found that, on

five separate occasions from August 16,

1991 through April 16, 1992,

Respondent prescribed combinations of

Tylenol #3 with codeine and Valium to

two undercover agents without a

legitimate medical purpose and not in

the usual course of professional medical

practice. Respondent failed to conduct

and record an appropriate patient

history and failed to conduct a physical

examination of either agent prior to

prescribing this combination of

controlled substances.

The administrative law judge

considered testimony from the

Government’s expert medical witness

who concluded that Respondent was

not acting within the normal course of

his professional practice when these

prescriptions were issued. Conversely,

Respondent’s expert medical witness

concluded that Respondent issued the

prescription at issue for a legitimate

medical need and in the normal course

of professional practice, and, at worse

may have exercised poor judgment with

respect to prescribing Tylenol with

codeine.

Pursuant to 21 U.S.C. 823(f) and

824(a)(4), the Deputy Administrator may

revoke a DEA Certificate of Registration

and deny any application for such

registration, if he determines that

continued registration would be

inconsistent with the public interest.

Section 823(f) requires that the

following factors be considered:

‘‘(1) The recommendation of the

appropriate State licensing board or

professional disciplinary authority.

(2) The [registrant’s] experience in

dispensing or conducting research with

respect to controlled substances.

(3) The [registrant’s] conviction record

under Federal or State laws relating to

the manufacture, distribution, or

dispensing of controlled substances.

(4) Compliance with applicable State,

Federal, or local laws relating to

controlled substances.

(5) Such other conduct which may

threaten the public health and safety.’’

The Deputy Administrator may

properly rely on any one or a

combination of these factors, and give

each factor the weight he deems

appropriate in determining whether a

registration should be revoked or an

application for registration denied.

Henry J. Schwartz, Jr., M.D. 54 FR 16422

(1989). In the present case, the

administrative law judge found that

factors two, four and five were relevant

in determining whether Respondent’s

registration should be revoked.

Judge Bittner found that Respondent’s

prescribing of controlled substances to

the undercover agents was not for a

legitimate medical purpose. Further,

Respondent did not conduct

comprehensive physical examinations

of the two agents and failed to maintain

proper records regarding his prescribing

of controlled substances.

The administrative law judge

concluded that the record does not

support Respondent’s contentions that

the controlled substances he prescribed

were warranted by, and appropriate for,

the medical ailments that the

investigators presented to him. She

further found that the record

demonstrates Respondent neither

conducted anything resembling

comprehensive physical examinations

nor asked probing questions of the

agents as to their symptoms, the

possible causes of these symptoms, or

alternative treatments for their

complaints. See James H. Brown, M.D.,

59 FR 37778 (1994). Respondent

additionally was remiss in his

responsibilities as a DEA registrant by

failing to keep appropriate patient files

on the agents.

Judge Bittner additionally found that

a negative inference is warranted where,

as in the present case, Respondent did

not testify. See Raymond A. Carlson,

M.D., 53 FR 7425 (1988). The

administrative law judge concluded that

Respondent has not discharged his

responsibilities as a DEA registrant in

the past and there is no indication that

he is more likely to do so in the future.

Judge Bittner recommended that

Respondents DEA Certificate of

Registration be revoked and any

pending applications for registration as

a practitioner be denied.

Respondent took exception to Judge

Bittner’s opinion and recommendation

arguing that there was not sufficient,

reliable, probative, and substantial

evidence to support such

recommendation of revocation.

Respondent further contended that

Judge Bitter, in finding that 21 U.S.C.

823(f) (2), (4) and (5) were relevant,

failed to discuss Respondent’s threat to

the public interest under these factors.

Respondent additionally argued that the

record, as a whole, does not support a

conclusion that his behavior was

egregious, that Judge Bittner failed to

address the requirements of 21 CFR

1306.04 concerning valid prescriptions,

that Respondent did not have

inadequate recordkeeping practices, and

that a negative inference was not

warranted from Respondent’s decision

not to testify. Respondent further

objected to the characterization that he

did not perform any diagnostic tests,

and to the administrative law judge’s

description of the agents’ visit to

Respondent’s office on March 23, 1992.

Respondent also took exception to the

use of the testimony given by the

Government’s expert medical witness.

The Deputy Administrator adopts the

opinion and recommended decision of

the administrative law judge in its

entirety. The Deputy Administrator

concurs with the administrative law

judge’s finding that the Government had

met its burden of proof with respect to

establishing the factors set forth under

21 U.S.C. 823(f) (2), (4) and (5). The

Deputy Administrator finds that

Respondent prescribed controlled
22078 Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Notices

substances to the undercover agents

without legitimate medical purpose and

not in the usual course of professional

medical practice. Further, Respondent’s

recordkeeping practices, medical

examinations and patient history

procedures were extremely deficient.

Finally, the Deputy Administrator

concurs with the administrative law

judge’s finding that a negative inference

was warranted from Respondent’s

decision not to testify.

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, AS2512374, previously

issued to Michael G. Sargent, M.D, be,

and it hereby is, revoked, and any

pending applications for such

registration be, and hereby are, denied.

This order is effective June 5, 1995.

Dated: April 28, 1995.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 95–10927 Filed 5–3–95; 8:45 am]

BILLING CODE 4410–09–M

NATIONAL SCIENCE FOUNDATION

Reports; Availability, etc.: Climate

Change; Second Assessment by

Climate Change Intergovernmental

Panel

AGENCY: National Science Foundation.

ACTION: Notice of the availability of draft

report and request for comment.

SUMMARY: Working Group I of the

Intergovernmental Panel on Climate

Change (IPCC) has prepared a draft

Second Assessment on Climate Change.

The IPCC Secretariat requires comments

on this report from national

governments so that the Secretariat can

meet its obligations to member

governments of the IPCC. The U.S.

Government is expected to receive its

copy of the draft assessment for formal

government comment on May 8, 1995.

The U.S. Subcommittee on Global

Change Research (SGCR) is responsible

for coordinating the preparation of the

comments of the United States

Government. Through this notice, the

SGCR is announcing the availability of

the draft Second Assessment upon its

receipts from IPCC and is requesting

comments on the draft report by June 2,

1995 from experts and interested groups

and individuals. These comments will

be reviewed, combined, and

incorporated as appropriate, in the

process of preparing the set of official

U.S. comments to the IPCC.

DATES: Written comments (hard copy

and if possible on a 3.5-inch diskette in

either Microsoft Word or Word Perfect

format) on the draft Second Assessment

should be received on or before June 2,

1995. The SGCR cannot extend this

deadline because the member countries

of the IPCC have established a strict

timetable for the review process.

ADDRESSES: Comments should be

submitted either by mail to: IPCC WG I

Comments, Office of the U.S. Global

Change Research Program, 300 D Street,

SW., Suite 840, Washington, DC 20024,

or by E-mail in ASCII format on Inter

net to: ‘‘wg1@usgcrp.gov’’. A list of

chapters making up the draft Second

Assessment is included with this notice.

Review is sought by those individuals

and groups having specific expertise or

interest in the various aspects of the

assessment. Copies of individual

chapters making up the draft Second

Assessment can be obtained by: (1)

Telephone request to Mr. Earley Green

at (202) 651–8240; (2) sending E-mail to

‘‘office@usgcrp.gov’’; (3) faxing a request

to (202) 554–6715; or (4) sending a letter

to the USGCRP Office directed to Mr.

Earley Green at the address shown

above.

FOR FURTHER INFORMATION CONTACT: Dr.

Michael C. MacCracken, Office of the

U.S. Global Change Research Program,

at 202–651–8250.

SUPPLEMENTARY INFORMATION:

I. Background

The Intergovernmental Panel on

Climate Change (IPCC) was jointly

established in 1988 by the United

Nations Environment Programme and

the World Meteorological Organization

to conduct periodic assessments of the

state of knowledge concerning global

climate change. The IPCC has formed

working groups to study various aspects

of climate change. Working Group I

addresses the state of the science

concerning what is happening and is

projected to happen to the climate;

Working Group II addresses the state of

the science concerning (i) vulnerability

to and impacts of climate change and

(ii) adaptation and mitigation strategies;

and Working Group III addresses the

state of science and understanding

concerning economics and cross-cutting

issues associated with climate change.

Each Working Group is charged with

issuing periodic assessments. The first

Scientific Assessment of Climate

Change, for example, was prepared in

1990. Working Group I provided a

supplementary report in 1992 and a

report on radiative forcing of climate

change in 1994.

Periodic assessment reports such as

these provide a comprehensive

statement of the state of knowledge

concerning topics such as scientific

information, environmental impacts,

response strategies, and other issues

concerning climate change.

II. Public Input Process

The member countries of the IPCC

have established a timetable that

includes a brief period for comments

from governments so that the IPCC

Secretariat can meet its obligations for a

timely completion of the IPCC Second

Assessment. The Subcommittee on

Global Change Research is responsible

for coordinating preparation of the U.S.

Government response, and through this

notice is seeking the views of experts

and interested groups and individuals to

help in the formulation of its response.

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official U.S. comments. An information

sheet providing specific requests for

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Group I Second Assessment for which

they have expertise or special interest.

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Policymakers.

Chapter 1 The Climate System—An

Overview

Chapter 2 Update of 1994 WG I report

2.1 CO2 and the carbon cycle

2.2 Other trace gases and

atmospheric chemistry

2.3 Aerosols

2.4 Radiative forcing