Federal Register / Vol. 87, No. 69 / Monday, April 11, 2022 / Notices 21137 

Foundry, Inc., EJ USA, Inc., Neenah Foundry 

Company, Tyler Union (a Division of McWane, 

Inc.), and U.S. Foundry & Manufacturing Corp., 

domestic producers of heavy iron construction 

castings and/or light iron construction castings, to 

be individually adequate for each casting domestic 

product. Comments from other interested parties 

will not be accepted (see 19 CFR 207.62(d)(2)). 

1Registrant only is authorized to dispense nonnarcotic controlled substances in Schedules II and 

III. 

other than an interested party to the 

reviews may file written comments with 

the Secretary on what determinations 

the Commission should reach in the 

reviews. Comments are due on or before 

April 15, 2022 and may not contain new 

factual information. Any person that is 

neither a party to the five-year reviews 

nor an interested party may submit a 

brief written statement (which shall not 

contain any new factual information) 

pertinent to the reviews by April 15, 

2022. However, should the Department 

of Commerce (‘‘Commerce’’) extend the 

time limit for its completion of the final 

results of its reviews, the deadline for 

comments (which may not contain new 

factual information) on Commerce’s 

final results is three business days after 

the issuance of Commerce’s results. If 

comments contain business proprietary 

information (BPI), they must conform 

with the requirements of sections 201.6, 

207.3, and 207.7 of the Commission’s 

rules. The Commission’s Handbook on 

Filing Procedures, available on the 

Commission’s website at https://

www.usitc.gov/documents/handbook_

on_filing_procedures.pdf, elaborates 

upon the Commission’s procedures with 

respect to filings. 

In accordance with sections 201.16(c) 

and 207.3 of the rules, each document 

filed by a party to the reviews must be 

served on all other parties to the reviews 

(as identified by either the public or BPI 

service list), and a certificate of service 

must be timely filed. The Secretary will 

not accept a document for filing without 

a certificate of service. 

Determination.—The Commission has 

determined these reviews are 

extraordinarily complicated and 

therefore has determined to exercise its 

authority to extend the review period by 

up to 90 days pursuant to 19 U.S.C. 

1675(c)(5)(B). 

Authority: These reviews are being 

conducted under authority of title VII of 

the Tariff Act of 1930; this notice is 

published pursuant to section 207.62 of 

the Commission’s rules. 

By order of the Commission. 

Issued: April 6, 2022. 

Lisa Barton, 

Secretary to the Commission. 

[FR Doc. 2022–07714 Filed 4–8–22; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Jennifer Smith, M.D.; Decision and 

Order 

On July 8, 2021, a former Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (hereinafter, 

Government), issued an Order to Show 

Cause (hereinafter, OSC) to Jennifer 

Smith, M.D. (hereinafter, Registrant) of 

New Hartford, New York. OSC, at 1 and 

3. The OSC proposed the revocation of 

Registrant’s Certificate of Registration 

No. FS0290875. Id. at 1. It alleged that 

Registrant is ‘‘without authority to 

handle controlled substances in New 

York, the state in which [she is] 

registered with DEA’’ and alleged that 

her DEA registration must be revoked 

based on her lack of state authority. Id. 

at 2 (citing 21 U.S.C. 824(a)(3)). 

Specifically, the OSC alleged that on 

January 28, 2021, the New York State 

Board for Professional Medical Conduct 

(hereinafter, the Board) issued a 

Determination and Order revoking 

Registrant’s New York medical license, 

effective February 5, 2021. Id. at 1–2. 

The Board revoked Registrant’s New 

York medical license following its 

findings, inter alia, that Registrant 

‘‘failed to comply with the terms of an 

earlier Consent Order that [she] entered 

into with the Board on February 15, 

2013’’ and ‘‘failed to cooperate with an 

investigation by the New York State 

Office of Professional Medical 

Conduct.’’ Id. at 2. 

The OSC notified Registrant of the 

right to request a hearing on the 

allegations or to submit a written 

statement, while waiving the right to a 

hearing, the procedures for electing each 

option, and the consequences for failing 

to elect either option. Id. at 2 (citing 21 

CFR 1301.43). The OSC also notified 

Registrant of the opportunity to submit 

a corrective action plan. Id. at 3 (citing 

21 U.S.C. 824(c)(2)(C)). 

Adequacy of Service 

In a Declaration dated December 21, 

2021, a Diversion Investigator 

(hereinafter, the DI) assigned to the 

Syracuse Resident Office of DEA’s New 

York Field Division stated that on or 

about July 28, 2021, DEA sent a copy of 

the OSC to Registrant via certified mail, 

return receipt requested, and on or 

about July 31, 2021, Registrant herself 

signed the return receipt for the OSC. 

Request for Final Agency Action 

(hereinafter, RFAA) Exhibit (hereinafter, 

RFAAX) 3 (DI’s Declaration), at 1; see 

also RFAAX 3, Appendix (hereinafter, 

App.) A (Return Receipt Signed by 

Registrant) and B. 

The Government forwarded its RFAA, 

along with the evidentiary record, to 

this office on January 26, 2022. In its 

RFAA, the Government represents that 

neither Registrant nor any attorney 

representing Registrant has requested a 

hearing or submitted a written 

statement. RFAA, at 2; RFAAX 3, at 2. 

The Government requests that 

Registrant’s DEA registration be revoked 

and that any applications for any other 

DEA registrations by Registrant be 

denied based on Registrant’s lack of 

authority to handle controlled 

substances in New York, the state in 

which she is registered with the DEA. 

RFAA, at 5. 

Based on the DI’s Declaration, the 

Government’s written representations, 

and my review of the record, I find that 

the Government accomplished service 

of the OSC on Registrant on or about 

July 31, 2021. I also find that more than 

thirty days have now passed since the 

Government accomplished service of 

the OSC. Further, based on the DI’s 

Declaration, the Government’s written 

representations, and my review of the 

record, I find that neither Registrant, nor 

anyone purporting to represent 

Registrant, requested a hearing, 

submitted a written statement while 

waiving Registrant’s right to a hearing, 

or submitted a corrective action plan. 

Accordingly, I find that Registrant has 

waived the right to a hearing and the 

right to submit a written statement and 

corrective action plan. 21 CFR 

1301.43(d) and 21 U.S.C. 824(c)(2)(C). I, 

therefore, issue this Decision and Order 

based on the record submitted by the 

Government, which constitutes the 

entire record before me. 21 CFR 

1301.43(e). 

Findings of Fact 

Registrant’s DEA Registration 

Registrant is the holder of DEA 

Certificate of Registration No. 

FS0290875 at the registered address of 

3985 Oneida Street, Suite 204, New 

Hartford, New York 13413. RFAAX 1 

(Certificate of Registration). Pursuant to 

this registration, Registrant is authorized 

to dispense controlled substances in 

schedules IIN, IIIN,1 IV and V as a 

practitioner. Id. 

The Status of Registrant’s State License 

On October 16, 2020, the New York 

State Board for Professional Medical 

Conduct (hereinafter, the Board) issued 

a Statement of Charges against 


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21138 Federal Register / Vol. 87, No. 69 / Monday, April 11, 2022 / Notices 

2The Board detailed the grounds in which OPMC 

had begun to investigate Registrant in its 

Determination and Order (hereinafter, Order) issued 

January 28, 2021. Id. at 3 and 6–7. According to the 

Order, OPMC had begun to investigate Registrant 

because ‘‘it had reasonable grounds to believe that 

[Registrant] was impaired to practice medicine by 

drugs or a physical and/or psychiatric condition.’’ 

Id. at 6. 

3Under 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 my finding by filing a 

properly supported motion for reconsideration of 

finding 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 Office of the Administrator, Drug 

Enforcement Administration at 

dea.addo.attorneys@dea.usdoj.gov. 

Registrant. RFAAX 3, App. C, at 10 and 

12. The Statement of Charges alleged 

that on or about February 12, 2013, 

Registrant voluntarily entered into a 

Consent Order with the Board, in which 

Registrant ‘‘did not contest pending 

professional misconduct charges 

alleging negligence on more than one 

occasion in violation of N.Y. Educ. Law 

§ 6530(3) and [failure] to maintain 

records in violation of N.Y. Educ. Law 

§ 6530(32).’’ Id. at 10. Further, according 

to the Statement of Charges, the Consent 

Order stated that Registrant ‘‘stipulated 

that her failure to comply with any 

conditions of the [Consent Order] 

[would] constitute misconduct as 

defined by N.Y. Educ. Law § 6530(29).’’ 

Id. The Statement of Charges stated that 

the Consent Order was approved on or 

about February 15, 2013, and became 

effective on or about February 26, 2013. 

Id. According to the Statement of 

Charges, the Consent Order required 

that Registrant remain in continuous 

compliance with various state laws and 

regulations and that Registrant 

cooperate fully with any administration 

and enforcement, or investigation by the 

Office of Professional Medical Conduct 

(hereinafter, OPMC). Id. at 10–11. The 

Statement of Charges stated that the 

Consent Order also imposed various 

penalties, including censure, reprimand, 

license limitation, and probation. Id. at 

10. According to the Statement of 

Charges, Registrant violated the terms of 

the Consent Order when she: Failed to 

renew her registration with the New 

York State Education Department after 

her registration expired at the end of 

March 2020; failed to update her New 

York State Physician Profile within the 

six months prior to the expiration of her 

registration; failed to fully cooperate 

with an investigation from OPMC; failed 

to respond to various correspondences 

from OPMC; failed to provide records 

requested from OPMC; and failed to 

schedule and attend an interview with 

OPMC.2 Id. at 11. On January 28, 2021, 

the Board’s Order sustained the charge 

that Registrant committed professional 

misconduct by violating conditions 

imposed on her medical license and 

revoked Registrant’s medical license. Id. 

at 3 and 7. 

According to New York’s online 

records, of which I take official notice, 

Registrant’s New York medical license 

is still revoked.3 Office of the 

Professions Verification Searches, 

www.op.nysed.gov/opsearches.htm (last 

visited date of signature of this Order). 

Accordingly, I find that Registrant is not 

currently licensed to engage in the 

practice of medicine in New York, the 

state in which she is registered with the 

DEA. 

Discussion 

Pursuant to 21 U.S.C. 824(a)(3), the 

Attorney General is authorized to 

suspend or revoke a registration issued 

under section 823 of the Controlled 

Substances Act (hereinafter, CSA) 

‘‘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, the 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. See, e.g., 

James L. Hooper, M.D., 76 FR 71,371 

(2011), pet. for rev. denied, 481 F. App’x 

826 (4th Cir. 2012); Frederick Marsh 

Blanton, M.D., 43 FR 27,616, 27,617 

(1978). 

This rule derives from the text of two 

provisions of the 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(f). Because Congress has 

clearly mandated that a practitioner 

possess state authority in order to be 

deemed a practitioner under the CSA, 

the 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 at 71,371–72; 

Sheran Arden Yeates, M.D., 71 FR 

39,130, 39,131 (2006); Dominick A. 

Ricci, M.D., 58 FR 51,104, 51,105 (1993); 

Bobby Watts, M.D., 53 FR 11,919, 11,920 

(1988); Frederick Marsh Blanton, 43 FR 

at 27,617. 

According to the New York 

Controlled Substances Act (hereinafter, 

the Act), ‘‘[i]t shall be unlawful for any 

person to manufacture, sell, prescribe, 

distribute, dispense, administer, 

possess, have under his control, 

abandon, or transport a controlled 

substance except as expressly allowed 

by this article.’’ N.Y. Pub. Health Law 

§ 3304 (McKinney 2022). Further, the 

Act defines a ‘‘practitioner’’ as ‘‘[a] 

physician . . . or other person licensed, 

or otherwise permitted to dispense, 

administer or conduct research with 

respect to a controlled substance in the 

course of a licensed professional 

practice . . . .’’ Id. at § 3302(27). 

Finally, New York regulations state that 

‘‘[a] prescription for a controlled 

substance may be issued only by a 

practitioner who is . . . authorized to 

prescribe controlled substances 

pursuant to his licensed professional 

practice . . .’’ N.Y. Comp. Codes R. & 

Regs. tit. 10, 80.64 (2022). 

Here, the undisputed evidence in the 

record is that Registrant currently lacks 

authority to practice medicine in New 

York. As already discussed, a physician 

must be a licensed practitioner to 

dispense a controlled substance in New 

York. Thus, because Registrant lacks 

authority to practice medicine in New 

York and, therefore, is not authorized to 

handle controlled substances in New 

York, Registrant is not eligible to 

maintain a DEA registration. 

Accordingly, I 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. FS0290875 issued to 

Jennifer Smith, M.D. Further, pursuant 

to 28 CFR 0.100(b) and the authority 

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

hereby deny any pending application of 


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Federal Register / Vol. 87, No. 69 / Monday, April 11, 2022 / Notices 21139 

*A I have made minor modifications to the RD. I 

have substituted initials or titles for the names of 

witnesses and patients to protect their privacy and 

I have made minor, nonsubstantive, grammatical 

changes and nonsubstantive, conforming edits. 

Where I have made substantive changes, omitted 

language for brevity or relevance, or where I have 

added to or modified the ALJ’s opinion, I have 

noted the edits with an asterisk, and I have 

included specific descriptions of the modifications 

in brackets following the asterisk or in footnotes 

marked with a letter and an asterisk. Within those 

brackets and footnotes, the use of the personal 

pronoun ‘‘I’’ refers to myself—the Administrator. 

*B I have omitted a section of the RD’s discussion 

of the procedural history to avoid repetition with 

my introduction. 

1Respondent was advised during the Prehearing 

Conference that, under 21 CFR 1316.50, he had the 

right to seek representation by a qualified attorney 

at his own expense. Respondent was also advised 

that, if he continued to represent himself, he would 

be held to the same standards and procedural 

requirements of an attorney, including adherence to 

the procedural orders and rulings of this tribunal 

and to the procedural rules set forth in 21 CFR 

1316.41–1316.68. ALJ Ex. 6 at 1, n.1. During the 

merits hearing, Respondent acknowledged that he 

had been so advised and confirmed that he wanted 

to proceed pro se. Tr. 8–9. 

2Respondent has stipulated to the factual basis 

underlying this allegation. See Stip. 6. 

3The OSC states that the exclusion was effective 

on August 29, 2014; however, per the HHS/OIG 

letter, the exclusion was effective on September 18, 

2014. See Gov. Ex. 6. 

4Respondent has stipulated to the factual basis 

underlying this allegation. See Stip. 7. 

Jennifer Smith, M.D. to renew or modify 

this registration, as well as any other 

pending application of Jennifer Smith, 

M.D., for additional registration in New 

York. This Order is effective May 11, 

2022. 

Anne Milgram, 

Administrator. 

[FR Doc. 2022–07700 Filed 4–8–22; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 21–17] 

Gilbert Y. Kim, D.D.S.; Decision and 

Order 

On May 26, 2021, a former Assistant 

Administrator, Diversion Control 

Division, of the Drug Enforcement 

Administration (hereinafter, DEA or 

Government), issued an Order to Show 

Cause (hereinafter, OSC) to Gilbert Y. 

Kim, D.D.S. (hereinafter, Respondent) of 

Oakland Gardens, New York. 

Administrative Law Judge Exhibit 

(hereinafter, ALJX) 1 (OSC), at 1 and 3. 

The OSC proposed the denial of 

Respondent’s application for DEA 

Certificate of Registration No. 

W20055916C (hereinafter, COR or 

registration) and the denial of any 

applications for any other DEA 

registrations pursuant to 21 U.S.C. 

824(a)(5) because Respondent has been 

excluded from participation in 

Medicare, Medicaid, and all federal 

health care programs pursuant to 42 

U.S.C. 1320a–7(a). Id. at 1. 

On June 7, 2021, Respondent timely 

requested a hearing, which commenced 

(and ended) on August 17, 2021, at the 

DEA Hearing Facility in Arlington, 

Virginia with the parties, counsel, and 

witnesses participating via video 

teleconference (VTC). On October 12, 

2021, Administrative Law Judge Teresa 

A. Wallbaum (hereinafter, the ALJ) 

issued her Recommended Rulings, 

Findings of Fact, Conclusions of Law, 

and Decision of the Administrative Law 

Judge (hereinafter, Recommended 

Decision or RD). By letter dated 

November 8, 2021, the ALJ certified and 

transmitted the record to me for final 

Agency action. In the letter, the ALJ 

advised that neither party filed 

exceptions. Having reviewed the entire 

record, I adopt the ALJ’s rulings, 

findings of fact, as modified, 

conclusions of law, and recommended 

sanction with minor modifications, 

where noted herein.*A

Recommended Rulings, Findings of 

Fact, Conclusions of Law, and Decision 

of the Administrative Law Judge 

Teresa A. Wallbaum, Administrative 

Law Judge, October 12, 2021 

*B Respondent proceeded pro se 

throughout the entire case.1 Respondent 

timely filed a Request for Hearing. ALJ 

Ex. 2 at 1. A Prehearing Conference was 

conducted on July 13, 2021, by video 

teleconference (VTC). A Merits Hearing 

of the OSC allegations was conducted 

on August 17, 2021, via VTC at the DEA 

Hearing Facility in Arlington, Virginia. 

The Government filed a Post-Hearing 

Brief on October 6, 2021. 

The ultimate issue in these 

proceedings is whether Respondent’s 

application should be denied pursuant 

to 21 U.S.C. 823 and 824(a)(5) based 

upon his exclusion from participation in 

Medicare, Medicaid, and all federal 

health care programs pursuant to 42 

U.S.C. 1320a–7(a). After carefully 

considering the testimony elicited at the 

hearing, the admitted exhibits, the 

arguments of counsel, and the record as 

a whole, I have set forth my 

recommended findings of fact and 

conclusions of law below. 

I. Findings of Fact 

A. Allegations 

The Government alleges that the 

denial of Respondent’s application is 

supported by incontrovertible record 

evidence that he has been excluded 

from participation in Medicare, 

Medicaid, and all federal health care 

programs. ALJ Ex. 1 at 1. Specifically, 

the Government alleges that judgment 

was entered against Respondent in the 

United States District Court for the 

Eastern District of New York (the 

District Court) after pleading guilty to 

one count of Conspiracy to Commit 

Health Care Fraud in violation of 18 

U.S.C. 1349. Id. at 1–2 (citing United 

States v. Gilbert Kim, No. 1:11–CR–073 

(E.D.N.Y. May 12, 2014)). The 

Government alleges that, due to this 

conviction, the U.S. Department of 

Health and Human Services, Office of 

Inspector General (HHS/OIG) 

mandatorily excluded Respondent from 

participation in Medicare, Medicaid, 

and all federal health care programs 

pursuant to 42 U.S.C. 1320a–7(a).2 ALJ 

Ex. 1 at 2. According to the Government, 

this exclusion was effective as of August 

29, 2014,3 and runs for a period of ten 

years.4 ALJ Ex. 1 at 2. 

B. Stipulations 

The parties mutually agreed upon the 

following stipulations, and they were 

conclusively accepted as fact in the 

proceedings: 

1. On or about June 9, 2020, Respondent 

applied to DEA for registration as a 

practitioner in Schedules II through V with 

a proposed registered address of 22902 

Horace Harding Expressway, Fl. 2, Oakland 

Gardens, New York 11364. 

2. Respondent’s Application was assigned 

Control Number W20055916C. 

3. Respondent was previously registered 

with DEA as a practitioner under DEA 

Certificate of Registration No. AK2569284. 

4. DEA Certificate of Registration No. 

AK2569284 was surrendered for cause on or 

about August 15, 2018. 

5. On or about May 12, 2014, judgment was 

entered against Respondent in the United 

States District Court for the Eastern District 

of New York based on his conviction on one 

count of ‘‘Conspiracy to Commit Health Care 

Fraud,’’ in violation of 18 U.S.C. 1349. 

6. By letter dated August 29, 2014, the U.S. 

Department of Health and Human Services, 

Office of Inspector General (HHS/OIG), 

mandatorily excluded Respondent from 

participation in Medicare, Medicaid, and all 

federal health care programs pursuant to 42 

U.S.C. 1320a–7(a). 

7. Respondent’s exclusion under 42 U.S.C. 

1320a–7(a) was effective on September 18, 

2014, and runs for a period of ten years. 

8. Respondent is currently excluded from 

participation in a program pursuant to 42 

U.S.C. 1320a–7(a). 

9. By letter dated March 23, 2020, the 

Office of Professional Discipline of the New 

York State Education Department informed 

Respondent that he may resume the practice 

of Dentistry in the State of New York no 

earlier than March 29, 2020. 


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