28068 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Notices 

16For the same reason, there is no basis to impose 

the ALJ’s third condition. 

extensive as to warrant revocation of a 

registration but which nonetheless 

threaten the public interest. Because 

there is no evidence that Respondent 

has sold forms of list I products in 

violation of either State or Federal law, 

there is no basis to impose the 

condition.16

In conclusion, the Government has 

not established that Respondent has 

committed any acts which either render 

its registration inconsistent with the 

public interest or which would support 

the imposition of conditions on its 

registration. Accordingly, the Order to 

Show Cause will be dismissed. 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(h) and 824(a), as well 

as 28 CFR 0.100(b) and 0.104, I order 

that the application of M & N 

Distributors for renewal of its DEA 

Certificate of Registration be, and it 

hereby is, granted. I further order that 

the Order to Show Cause issued to M & 

N Distributors be, and it hereby is, 

dismissed. This order is effective 

immediately. 

Dated: May 6, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–11951 Filed 5–18–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Christopher Henry Lister, P.A.; 

Revocation of Registration 

On November 3, 2009, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and Immediate Suspension 

of Registration to Christopher Henry 

Lister, P.A. (Respondent), of Hesperia, 

California. The Order proposed the 

revocation of Respondent’s DEA 

Certificate of Registration, ML0817900, 

as a practitioner, and the denial of any 

pending applications to renew or 

modify his registration, on the ground 

that he had committed acts which 

render his registration inconsistent with 

the public interest. Show Cause Order at 

1 (citing 21 U.S.C. 823(f) & 824(a)(4)). 

The Show Cause Order alleged that 

Respondent violated Federal law by 

issuing controlled substance 

prescriptions ‘‘outside [of] the usual 

course of professional practice,’’ which 

lacked a ‘‘legitimate medical purpose, 

and that he violated California law 

because he issued the prescriptions 

‘‘without an appropriate prior 

examination and a medical indication.’’ 

Id. at 1–2 (citing 21 CFR 1306.04(a) & 

Cal. Bus. & Prof. Code § 2242(a)). More 

specifically, the Order alleged that on 

June 16, 2009, an undercover agent 

purchased through an intermediary a 

prescription for 60 tablets of OxyContin 

80 mg., and that Respondent ‘‘never met 

or * * * much less conducted a 

physical examination’’ of, the person for 

whom he wrote the prescription. Id. at 

2. 

Next, the Show Cause Order alleged 

that on June 25, 2009, an undercover 

agent purchased though an intermediary 

prescriptions for 90 tablets of 

OxyContin 80 mg., which were written 

in the names of four different persons, 

and that Respondent had never met or 

conducted a physical examination of 

any of these persons. Id. Finally, the 

Show Cause Order alleged that on 

October 8, 2009, an informant 

purchased from Respondent 

prescriptions for OxyContin 80 mg., 

Xanax 2 mg., Valium 10 mg., and Lortab 

10/500 mg., which were post–dated for 

October 29, 2009, and written in the 

names of three different persons he 

never physically examined. Id. 

Based on the above, I further 

concluded that Respondent’s continued 

registration during the pendency of the 

proceeding would ‘‘constitute[] an 

imminent danger to the public health 

and safety.’’ Id. Therefore, pursuant to 

my authority under 21 U.S.C. 824(d), I 

immediately suspended Respondent’s 

registration. Id. The Order further 

explained that Respondent had the right 

to request a hearing on the allegations, 

the procedure for doing so, and that if 

he failed to do so, the scheduled hearing 

would be cancelled and he would be 

deemed to have waived his right to a 

hearing. Id. 

On November 5, 2009, a DEA Special 

Agent personally served Respondent 

with the Order to Show Cause and 

Immediate Suspension of Registration. 

Moreover, on November 6, 2009, 

Government Counsel served a copy of 

the Order on Respondent by First-Class 

Mail to him at his registered location. 

More than thirty days have now 

passed since the service of the Order to 

Show Cause and Immediate Suspension, 

and neither Respondent, nor anyone 

purporting to represent him, has 

requested a hearing. I therefore find that 

Respondent has waived his right to a 

hearing, 21 CFR 1301.43(d), and issue 

this Decision and Final Order without a 

hearing based on the record submitted 

by the Government. I make the 

following findings. 

Findings 

Respondent is the holder of DEA 

Certificate Registration, ML0817900. 

Respondent last renewed his 

registration on April 2, 2008; the 

registration does not expire until 

March 31, 2011. 

Respondent also holds a Physician 

Assistant (PA) License issued by the 

Physician Assistant Committee of the 

Medical Board of California. On 

November 6, 2009, the Executive Officer 

of the Physician Assistant Committee 

filed a petition for an interim order of 

suspension of Respondent’s state 

license. On November 12, 2009, a state 

Administrative Law Judge (ALJ) granted 

the petition and immediately suspended 

Respondent’s PA license. The ALJ also 

ordered that Respondent appear for 

hearing on November 30, 2009, to show 

cause why the interim order suspending 

his license ‘‘should not remain in full 

force and effect pending the issuance of 

a final decision by the Medical Board of 

California.’’ Interim Order of Suspension 

at 2, Portman v. Lister (Cal. Office. of 

Admin. Hearings, No. 1E–2008– 

195465). 

On November 30, 2009, a hearing was 

held before another state ALJ. Following 

the hearing, the ALJ found that: 

[o]n October 8, 2009, a Bureau of Narcotics 

Enforcement confidential informant (CI) met 

with respondent at the CI’s residence. The 

meeting was monitored by a DEA agent. 

During the meeting the CI provided 

respondent with a list of names and asked 

respondent to prescribe OxyContin, Xanax, 

Ambien, and Valium to the listed individuals 

in exchange for $750 in cash. Respondent did 

as requested, and took the $750 cash 

payment. 

Order of Interim Suspension at 2, In re 

Lister. 

Based on this finding, the ALJ 

concluded ‘‘that respondent has engaged 

in acts constituting violations of the 

Medical Practice Act’’ and that the State 

had ‘‘show[n] that permitting [him] to 

continue to engage in the profession for 

which [his] license was issued will 

endanger the public health, safety, or 

welfare.’’ Id. at 3 (citing Cal. Gov. Code 

§ 11529(a)). In a footnote, the ALJ 

further explained that ‘‘[b]y prescribing 

dangerous drugs and controlled 

substances to the CI without an 

appropriate medical examination and 

without any medical indication * * * 

Respondent violated [various] 

provisions of the Medical Practice[] Act’’ 

including, inter alia, Cal. Bus. & Prof. 

Code § 2242(a) (‘‘furnishing dangerous 

drugs without examination’’), and Cal. 

Health & Safety Code § 11153(a) 

(‘‘prescribing controlled substances 

without a legitimate medical purpose’’). 

Id. at n.6. The ALJ thus granted the 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Notices 28069 

1 It is further noted that because the State has 

imposed an order of interim suspension against 

Respondent’s PA license, he does not have 

authority to dispense controlled substances and 

thus does not meet an essential requirement for 

holding a registration under the CSA. See, e.g., John 

B. Freitas, 74 FR 17524, 17525 (2009); 21 U.S.C. 

§§ 823(f) & 824(a)(3). 

State’s petition and ordered that 

Respondent’s license remain 

‘‘suspended until final resolution of the 

underlying Accusation.’’ Id. at 4. 

Discussion 

Section 304(a) of the Controlled 

Substances Act (CSA) provides that a 

registration to ‘‘dispense a controlled 

substance * * * may be suspended or 

revoked by the Attorney General upon 

a finding that the registrant * * * has 

committed such acts as would render 

his registration under section 823 of this 

title inconsistent with the public 

interest as determined under such 

section.’’ 21 U.S.C. 824(a)(4). With 

respect to a practitioner, the CSA 

requires the consideration of the 

following factors in making the public 

interest determination: 

(1) The recommendation of the appropriate 

State licensing board or professional 

disciplinary authority. 

(2) The applicant’s experience in 

dispensing * * * 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. 

Id. § 823(f). 

‘‘[T]hese factors are * * * considered 

in the disjunctive.’’ Robert A. Leslie, 

M.D., 68 FR 15227, 15230 (2003). I ‘‘may 

rely on any one or a combination of 

factors, and may give each factor the 

weight [I] deem[] appropriate in 

determining whether a registration 

should be revoked.’’ Id. Moreover, I am 

‘‘not required to make findings as to all 

of the factors.’’ Hoxie v. DEA, 419 F.3d 

477, 482 (6th Cir. 2005); see also Morall 

v. DEA, 412 F.3d 165, 173–74 (D.C. Cir. 

2005). 

While I have considered all of the 

factors, I conclude that it is not 

necessary to make findings as to factors 

three and five. As explained below, I 

conclude that the finding of the state 

ALJ that Respondent violated California 

law by prescribing controlled 

substances without performing an 

appropriate medical examination and 

without a legitimate medical purpose is 

dispositive in assessing his experience 

in dispensing controlled substances 

(factor two) and his compliance with 

State and Federal laws related to 

controlled substances (factor four). The 

state ALJ’s finding further establishes 

that Respondent has committed acts 

which render his continued registration 

‘‘inconsistent with the public interest.’’ 

21 U.S.C. 824(a)(4). 

Factors Two and Four—Respondent’s 

Experience in Dispensing Controlled 

Substances and Record of Compliance 

With Applicable Controlled Substance 

Laws 

Under a longstanding DEA regulation, 

a prescription for a controlled substance 

is not ‘‘effective’’ unless it is ‘‘issued for 

a legitimate medical purpose by an 

individual practitioner acting in the 

usual course of his professional 

practice.’’ 21 CFR 1306.04(a). This 

regulation further provides that ‘‘an 

order purporting to be a prescription 

issued not in the usual course of 

professional treatment * * * is not a 

prescription within the meaning and 

intent of [21 U.S.C. 829] and * * * the 

person issuing it, shall be subject to the 

penalties provided for violations of the 

provisions of law related to controlled 

substances.’’ Id. See also 21 U.S.C. 

802(10) (defining the term ‘‘dispense’’ as 

meaning ‘‘to deliver a controlled 

substance to an ultimate user by, or 

pursuant to the lawful order of, a 

practitioner, including the prescribing 

and administering of a controlled 

substance’’) (emphasis added). 

As the Supreme Court recently 

explained, ‘‘the prescription 

requirement * * * ensures patients use 

controlled substances under the 

supervision of a doctor so as to prevent 

addiction and recreational abuse. As a 

corollary, [it] also bars doctors from 

peddling to patients who crave the 

drugs for those prohibited uses.’’ 

Gonzales v. Oregon, 546 U.S. 243, 274 

(2006) (citing United States v. Moore, 

423 U.S. 122, 135, 143 (1975)). 

Under the CSA, it is fundamental that 

a practitioner must establish and 

maintain a bonafide doctor-patient 

relationship in order to act ‘‘in the usual 

course of * * * professional practice’’ 

and to issue a prescription for a 

‘‘legitimate medical purpose.’’ Laurence 

T. McKinney, 73 FR 43260, 43265 n.22 

(2008); see also Moore, 423 U.S. at 142– 

43 (noting that evidence established that 

physician ‘‘exceeded the bounds of 

‘professional practice,’ ’’ when ‘‘he gave 

inadequate physical examinations or 

none at all,’’ ‘‘ignored the results of the 

tests he did make,’’ and ‘‘took no 

precautions against * * * misuse and 

diversion’’). Moreover, the CSA 

generally looks to state law to determine 

whether a doctor and patient have 

established a bona fide doctor-patient 

relationship. See Kamir Garces-Mejias, 

72 FR 54931, 54935 (2007); United 

Prescription Services, Inc., 72 FR 50397, 

50407 (2007). 

Under California law, except for in 

circumstances not applicable here, 

‘‘[p]rescribing, dispensing, or furnishing 

dangerous drugs * * * without an 

appropriate prior examination and a 

medical indication, constitutes 

unprofessional conduct.’’ Cal. Bus. & 

Prof. Code § 2242(a). California law 

further adopts nearly verbatim the 

CSA’s prescription requirement. See 

Cal. Health & Safety Code § 11153(a) (‘‘A 

prescription for a controlled substance 

shall only be issued for a legitimate 

medical purpose by an individual 

practitioner acting in the usual course of 

his or her professional practice.’’). 

Here, a state ALJ found that, on 

October 8, 2009, Respondent violated 

both of these provisions of California 

law when he sold prescriptions for 

OxyContin, a schedule II controlled 

substance, as well as Xanax, Ambien, 

and Valium (all of which are schedule 

IV controlled substances), to a 

confidential informant working for the 

California Bureau of Narcotics 

Enforcement in exchange for $750 in 

cash. While Respondent did not appear 

at the state hearing, the state ALJ found 

that he ‘‘was properly noticed of the 

date, time and place of the hearing.’’ 

Order of Interim Suspension, at 1. 

Accordingly, I hold that the state ALJ’s 

finding is entitled to preclusive effect in 

this proceeding. See University of 

Tennessee v. Elliot, 478 U.S. 788, 797– 

98 (1986) (‘‘When an administrative 

agency is acting in a judicial capacity 

and resolves disputed issues of fact 

properly before it which the parties 

have had an adequate opportunity to 

litigate, the courts have not hesitated to 

apply res judicata[.]’’) (int. quotations 

and citations omitted). Based on the 

state ALJ’s findings, I further conclude 

that Respondent lacked a legitimate 

medical purpose and acted outside of 

the usual course of professional practice 

in issuing each of the prescriptions and 

thus violated Federal law as well. See 

21 CFR 1306.04(a); 21 U.S.C. 841(a)(1). 

I thus conclude that Respondent has 

committed acts which render his 

registration ‘‘inconsistent with the 

public interest.’’ 21 U.S.C. 824(a)(4). 

Accordingly, Respondent’s registration 

will be revoked.1

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(f) & 824(a)(4), as well 

as 28 CFR 0.100(b) & 0.104, I order that 

DEA Certificate of Registration, 

ML0817900, issued to Christopher 


jlentini on DSKJ8SOYB1PROD with NOTICES
28070 Federal Register / Vol. 75, No. 96 / Wednesday, May 19, 2010 / Notices 

Henry Lister, P.A., be, and it hereby is, 

revoked. I further order that any 

pending application of Christopher 

Henry Lister, P.A., to renew or modify 

his registration, be, and it hereby is, 

denied. This Order is effective 

immediately. 

Dated: May 6, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–11950 Filed 5–18–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Comment Request for Information 

Collection: ‘‘Confidentiality & 

Disclosure of State Unemployment 

Compensation Information Final Rule 

and State Income and Eligibility 

Verification Provisions of the Deficit 

Reduction Act of 1984; OMB Control 

No. 1205–0238;’’ Extension Without 

Change 

AGENCY: Employment and Training 

Administration, Labor. 

ACTION: Notice. 

SUMMARY: The Department of Labor, as 

part of its continuing effort to reduce 

paperwork and respondent burden 

conducts a preclearance consultation 

program to provide the general public 

and federal agencies with an 

opportunity to comment on proposed 

and/or continuing collections of 

information in accordance with the 

Paperwork Reduction Act of 1995 

(PRA95) [44 U.S.C. 3506(c)(2)(A)]. This 

program helps to ensure that requested 

data can be provided in the desired 

format, reporting burden (time and 

financial resources) is minimized, 

collection instruments are clearly 

understood, and the impact of collection 

requirements on respondents can be 

properly assessed. Currently, the 

Employment and Training 

Administration is soliciting comments 

concerning the collection of data about 

the regulatory requirements of the 

Confidentiality and Disclosure of State 

Unemployment Compensation 

Information final rule and State Income 

and Eligibility Verification System 

(IEVS) provisions of the Deficit 

Reduction Act of 1984 (current 

expiration date is August 31, 2010). 

A copy of the proposed information 

collection request (ICR) can be obtained 

by contacting the office listed below in 

the addressee section of this notice. 

DATES: Written comments must be 

submitted to the office listed in the 

addressee’s section below on or before 

July 19, 2010. 

ADDRESSEE: Submit written comments 

to the Employment and Training 

Administration, Office of 

Unemployment Insurance, 200 

Constitution Avenue, NW., Room 

C4518, Washington, DC 20210, 

Attention: Patricia Mertens. Telephone 

number: 202–693–3182 (this is not a 

toll-free number). Fax: 202–693–2874. 

E-mail: mertens.patricia@dol.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background: The Deficit Reduction 

Act of 1984 established an Income and 

Eligibility Verification System (IEVS) for 

the exchange of information among state 

agencies administering specific 

programs. The programs include 

Temporary Assistance for Needy 

Families, Medicaid, Food Stamps, 

Supplemental Security Income, 

Unemployment Compensation and any 

state program approved under Titles I, 

X, XIV, or XVI of the Social Security 

Act. Under the Act, programs 

participating must exchange 

information to the extent that it is useful 

and productive in verifying eligibility 

and benefit amounts to assist the child 

support program and the Secretary of 

Health and Human Services in verifying 

eligibility and benefit amounts under 

Titles II and XVI of the Social Security 

Act. 

On September 27, 2006, the 

Employment and Training 

Administration of the Department of 

Labor issued a final rule regarding the 

Confidentiality and Disclosure of State 

Unemployment Compensation 

Information. This rule supports and 

expands upon the requirements of the 

Deficit Reduction Act of 1984 and 

subsequent regulatory changes. 

II. Review Focus: 

The Department of Labor is 

particularly interested in comments 

which: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submissions 

of responses. 

III. Current Actions: 

Type of Review: Extension without 

changes. 

Title: Confidentiality & Disclosure of 

State Unemployment Compensation 

Information Final Rule and State 

Income and Eligibility Verification 

provisions of the Deficit Reduction Act 

of 1984; 

OMB Number: 1205–0238. 

Affected Public: State governments. 

Total Annual Respondents: 53 state 

agencies. 

Annual Frequency: Quarterly. 

Total Estimated Annual Responses: 

1,437,897. 

Average Estimated Response Time: 

1 minute. 

Estimated Total Annual Burden 

Hours: 23,964 hours. 

Total Annual Burden Cost for 

Respondents: $0. 

Comments submitted in response to 

this comment request will be 

summarized and/or included in the 

request for Office of Management and 

Budget approval of the information 

collection request; they will also 

become a matter of public record. 

Signed at Washington, DC this 15th day of 

May 2010. 

Jane Oates, 

Assistant Secretary, Employment and 

Training Administration. 

[FR Doc. 2010–11943 Filed 5–18–10; 8:45 am] 

BILLING CODE 4510–FW–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

Notice of Information Collection; (10– 

053). 

AGENCY: National Aeronautics and 

Space Administration (NASA). 

ACTION: Notice of information collection. 

SUMMARY: The National Aeronautics and 

Space Administration, as part of its 

continuing effort to reduce paperwork 

and respondent burden, invites the 

general public and other Federal 

agencies to take this opportunity to 

comment on proposed and/or 

continuing information collections, as 

required by the Paperwork Reduction 

Act of 1995 (Pub. L. 104–13, 44 U.S.C. 

3506©(2)(A)). 

DATES: All comments should be 

submitted within 60 calendar days from 

the date of this publication. 

ADDRESSES: All comments should be 

addressed Brenda J. Maxwell, Office of 

the Chief Information Officer, Mail Suite 

2S71, National Aeronautics and Space 


jlentini on DSKJ8SOYB1PROD with NOTICES