Federal Register / Vol. 60, No. 242 / Monday, December 18, 1995 / Notices 65071

substances. She explained that if the

Respondent’s DEA registration were

revoked or suspended, the clinic would

not be able to function in emergency

situations because the Respondent

would be unable to prescribe the

appropriate controlled medications

needed by the patients. However, since

the Respondent’s exclusion from

Medicare or Medicaid, North Forks has

the services of another psychiatrist who

works three hours a week and sees the

Medicare patients.

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 pending application for

such registration, if he determines that

the 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 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 or safety.

These factors are to be considered in

the disjunctive; the Deputy

Administrator may rely on any one or a

combination of factors and may give

each factor the weight he deems

appropriate in determining whether a

registration should be revoked or a

pending application for registration

denied. See Henry J. Schwarz, Jr., M.D.

Docket No. 88–42, 54 FR 16,422 (1989).

In addition, 21 U.S.C. 824(a)(5) specifies

that a DEA registration may be revoked

or suspended if the registrant ‘‘has been

excluded * * * from participation in a

program pursuant to (42 U.S.C. 1320a–

7(a)).’’ Here, the record demonstrates

that the Respondent has been so

excluded. Although the Respondent

attempted to contest elements of this

exclusion in these proceedings, the

Deputy Administrator agrees with Judge

Bittner’s findings that:

The letter advising Respondent of his

exclusion from Medicare and state health

programs specified that his exclusion was

mandated by 1320a–7(a), and Respondent

did not appeal that ruling. He is therefore

precluded from attacking that finding

collaterally in this proceeding. In light of the

above, I conclude that Respondent was

excluded from programs pursuant to 1320a–

7(a) and that the exclusion constitutes

grounds to revoke Respondent’s DEA

registration pursuant to 42 U.S.C. 824(a)(5).

Next, as to the public interest issue,

factors one and five are relevant in

determining whether the Respondent’s

continued registration would be

inconsistent with the public interest.

Specifically, as to factor one, ‘‘(t)he

recommendation of the appropriate state

licensing board,’’ the Medical Board,

after conducting a hearing and

reviewing the evidence submitted,

found that the Respondent had

knowingly submitted false invoices for

payment by the State. Accordingly, the

Medical Board sanctioned the

Respondent by suspending his medical

license and ordering him to perform

community service.

Further, as to factor five, ‘‘(s)uch other

conduct which may threaten the public

health or safety,’’ the Respondent’s

conduct of submitting false invoices

placed into question his trustworthiness

and credibility. Also, Judge Bittner

found that the Respondent’s testimony

before her lacked credibility: ‘‘I note at

the outset that I did not find Respondent

to be a credible witness. He seemed

more interested in tailoring his

testimony to his defenses than in

accurately portraying relevant events.’’

Such lack of credibility in 1994 causes

concern as to the Respondent’s future

conduct if entrusted with protecting the

public interest in administering

controlled substances. The Respondent

argued that since his conviction did not

involve controlled substances, the

Government had not shown that his

continued registration would be

inconsistent with the public interest.

However, the Deputy Administrator

agrees with Judge Bittner who wrote

‘‘(i)t is well established that misconduct

involving controlled substances is not a

sine qua non for revocation of a DEA

registration * * *.’’ See also Gilbert L.

Franklin, D.D.S., 57 FR 3441 (1992).

Yet the Respondent has submitted

evidence concerning his rehabilitation.

Specifically, Dr. Malcolmsen testified

extensively about the Respondent’s

excellent, honest and caring work, often

voluntarily provided to the patients at

North Fork, and about the Respondent’s

statements of remorse for his actions.

Dr. Malcolmsen also testified that she

believed the Respondent had taken

responsibility for his past misconduct,

and that she had never observed the

Respondent abuse his authority to

handle controlled substances. She

further explained that if the

Respondent’s DEA registration was

revoked, the clinic would suffer a loss

of services because the Respondent

would be unable to prescribe controlled

substances needed by many of North

Fork’s patients.

The Respondent also testified about

his remorse for his misconduct and his

need for his DEA Certificate of

Registration. However, Judge Bittner,

directly observing the Respondent’s

testimony, noted that ‘‘(a)lthough

counsel for Respondent asserts that

Respondent has expressed remorse for

his conduct, * * * Respondent’s only

testimony to that effect in this

proceeding was his comment that ‘I’m

extremely remorseful about it and I’ve

said that.’ However, the thrust of his

testimony in this proceeding appeared

to be that having to go through ‘another

trial’ was unfair and tiring. In these

circumstances, I conclude that his

purported expressions of remorse are

less than reliable.’’

Given Judge Bittner’s doubts as to the

Respondent’s credibility and sincerity,

and the egregious nature of his conduct

in intentionally filing false documents

with the State, the Deputy

Administrator finds that the public

interest is best served by revoking the

Respondent’s DEA Certificate of

Registration and denying and pending

registration application at the present

time. See Sokoloff v. Saxbe, 501 F.2d

571, 576 (2 Cir. 1974) (stating that

‘‘permanent revocation’’ of a DEA

Certificate of Registration may be

‘‘unduly harsh’’). Like Judge Bittner,

after reviewing the record in total, the

Deputy Administrator questions

whether the Respondent is currently

willing or able to meet the

responsibilities inherent in a DEA

registration.

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 AK6455237, issued to

Richard M. Koenig, M.D., be, and it

hereby is, revoked, and any pending

application submitted by the

Respondent is denied. This order is

effective January 18, 1996.

Dated: December 11, 1995.

Stephen H. Green,

Deputy Administrator.

[FR Doc. 95–30654 Filed 12–15–95; 8:45 am]

BILLING CODE 4410–09–M
65072 Federal Register / Vol. 60, No. 242 / Monday, December 18, 1995 / Notices

1There is one exception to this rule: a cable

system which retransmits only local broadcast

signals must nonetheless submit a minimum royalty

fee under 17 U.S.C. 111. However, if the system

carries one or more distant signals, royalties are

only paid for those distant signals, and the local

signals carried are copyright-free. As a practical

matter, there are very few cable systems which only

carry local broadcast signals and no distant signals.

DEPARTMENT OF LABOR

Employment and Training

Administration

[NAFTA—00303; Lucas, Iowa, NAFTA—

00303A; Mt. Ayr, Iowa, NAFTA—00303B;

Osceola, Iowa, and NAFTA—00303C]

Iowa Assemblies, Inc., Murray, Iowa;

Amended Certification Regarding

Eligibility To Apply for NAFTA

Transitional Adjustment Assistance

In accordance with Section 250(a),

Subchapter D, Chapter 2, Title II, of the

Trade Act of 1974, as amended (19 USC

2273), the Department of Labor issued a

Notice of Certification of Eligibility to

Apply for NAFTA Transitional

Adjustment Assistance on January 12,

1995, applicable to all workers at Iowa

Assemblies, Inc. in Lucas, Mt. Ayr and

Osceola, Iowa.

At the request of the State Agency on

behalf of the company, the Department

reviewed the subject certification. The

company reports worker separations

will occur at the subject firm’s

manufacturing facilities in Mt. Ayr,

Osceola, and Murray, Iowa. The workers

produce among other products,

automotive wiring harnesses and wiring

assembly. The Department’s review of

the certification for workers of the

subject firm found that workers in Mt.

Ayr and Osceola, Iowa are currently

covered under the certification. When

the certification was issued, the Mt. Ayr

and Osceola locations of the subject firm

were not separately assigned a suffix

number. The intent of the Department’s

certification is to include all workers of

Iowa Assemblies, Inc. adversely affected

by increased imports of wiring

harnesses and assembly from Mexico or

Canada. Therefore, the Department is

amending the certification for workers

of the subject firm to separately identify

the Mt. Ayr and Osceola, Iowa locations,

and provide for the worker separations

in Murray, Iowa.

The amended notice applicable to

NAFTA–00303 is hereby issued as

follows:

‘‘All workers of Iowa Assemblies, Inc.,

Lucas (NAFTA–303), Mt. Ayr (NAFTA–

303A), Osceola (NAFTA–303B), and Murray

(NAFTA–0303C) Iowa engaged in

employment related to the production of

wiring harnesses and assembly who became

totally or partially separated from

employment on or after December 8, 1993 are

eligible to apply for NAFTA–TAA under

Section 250 of the Trade Act of 1974.’’

Signed at Washington, DC., this 5th day of

December 1995.

Russell T. Kile,

Acting Program Manager, Policy and

Reemployment Services, Office of Trade

Adjustment Assistance.

[FR Doc. 95–30652 Filed 12–15–95; 8:45 am]

BILLING CODE 4510–30–M

LIBRARY OF CONGRESS

Copyright Office

[Docket No. 95–8]

Copyright, Cable Compulsory License

AGENCY: Copyright Office, Library of

Congress.

ACTION: Notice of policy decision.

SUMMARY: The Copyright Office of the

Library of Congress is announcing a

policy decision with respect to the

examination and reporting of local

broadcast signals in light of the

amendment to section 111 of the

Copyright Act made by the Satellite

Home Viewer Act of 1994. For

examining cable statements of account,

the Office will use the same ADI list

used by the Federal Communications

Commission for its must-carry/

retransmission consent election, and

will treat a broadcast signal as local for

copyright purposes only within that

station’s ADI.

FOR FURTHER INFORMATION CONTACT:

Marilyn J. Kretsinger, Acting General

Counsel, or William Roberts, Senior

Attorney for Compulsory Licenses.

Telephone (202) 707–8380. Telefax

(202) 707–8366.

SUPPLEMENTARY INFORMATION:

I. Background

On October 18, 1994, the President of

the United States signed into law the

Satellite Home Viewer Act of 1994.

Public Law No. 103–369. In addition to

extending and amending the

compulsory license for satellite carriers

in 17 U.S.C. 119, the Home Viewer Act

expanded the cable compulsory license

definition of the ‘‘local service area of a

primary transmitter’’ in 17 U.S.C. 111 to

include a broadcast station’s ‘‘television

market as defined in section 76.55(e) of

title 47, Code of Federal Regulations (as

in effect on September 18, 1993), or any

modifications to such television market

made, on or after September 18, 1993,

pursuant to section 76.55(e) or 76.59 of

title 47 of the Code of Federal

Regulations’’ (parenthetical in original).

The amendment was made effective

beginning with the second accounting

period of 1994.

The definition of the ‘‘local service

area of a primary transmitter’’ in 17

U.S.C. 111(f) determines whether a

broadcast station is local or distant to a

cable system and consequently when it

must submit a royalty fee for

retransmission of that signal. Cable

systems pay royalties for carriage of

distant signals and may retransmit local

broadcast signals to their subscribers

without incurring copyright liability. 1

Prior to the passage of the Home Viewer

Act, the local service area definition

provided that a broadcast station was

local in the area that it could ‘‘insist

upon its signal being retransmitted by a

cable system pursuant to the rules,

regulations and authorizations of the

Federal Communications Commission

in effect on April 15, 1976* * *’’ 17

U.S.C. 111(f) (1976). This was a

reference to the Commission’s mustcarry rules in effect in 1976, and the

Copyright Act fixed these rules for all

future copyright determinations.

Although these must-carry rules were

ultimately declared unconstitutional,

see Quincy Cable T.V., Inc. v. FCC, 768

F.2d 1434 (D.C. Cir. 1985), cert. denied,

476 U.S. 1169 (1986) and Century

Communications v. FCC, 835 F.2d 292

(D.C. Cir. 1987), cert. denied, 486 U.S.

1032 (1988), they remain in effect for

purposes of 17 U.S.C. 111. See Quincy,

768 F.2d at 1454 n. 42. However,

because of the passage of time and

changes in telecommunications law and

policy, the 1976 must-carry rules no

longer reflect the realities of the current

marketplace. Congress, therefore,

amended the local service area

definition in the Home Viewer Act to

provide an additional means of

determining the local/distant copyright

status of broadcast stations.

The Home Viewer Act amendment

provides that, in addition to the area

encompassed by the 1976 must-carry

rules, a broadcast station is local for

copyright purposes in the area that

comprises that station’s television

market as defined in § 76.55(e) of the

FCC’s rules, and any subsequent

modifications made by the FCC to that

market. In many circumstances, a

station’s television market under

§ 76.55(e) creates a larger local service

area than under the 1976 must-carry

rules. Cable systems may use either the

television market or the 1976 must-carry