36760 Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 

2Likewise, the Administrative Procedure Act 

requires only that ‘‘[p]ersons entitled to notice of an 

agency hearing shall be timely informed of * * * 

the matters of fact and law asserted.’’ 5 U.S.C. 

554(b). He was. 

3Because of the importance of the legal issues 

raised by Respondent, I conclude that the public 

interest necessitates that this Order be made 

effective immediately. 

than the Consent Order to support its 

motion, Respondent had an ample and 

meaningful opportunity to present 

evidence refuting the Government’s 

evidence and creating a triable issue 

and/or to make argument (were there 

any viable ones to be made), regarding 

the legal effect of his filing of the State 

renewal application. While Respondent 

further argues that if the Agency ‘‘was 

going to place in issue allegations that 

were not named in the Order to Show 

Cause, the proper course of action 

would have been to move to amend the 

Order to Show Cause,’’ he does not 

identify how he has been prejudiced by 

the Government’s failure to amend the 

Order. Exc. at 4; cf. Facet Enterprises, 

907 F.2d at 972 (‘‘In determining 

whether a respondent can be held liable 

for an unfair labor practice not charged 

in the complaint, the central inquiry is 

fairness: considering the circumstances 

of the case, did the respondent know 

what conduct was being alleged and 

have ‘a fair opportunity to present [its] 

defense?’’’) (quoting Soule Glass & 

Glazing Co. v. NLRB, 652 F.2d 1055, 

1074 (1st Cir. 1985)).2

The rules governing DEA hearings do 

not require the formality of amending a 

show cause order to comply with the 

evidence. The Government’s failure to 

file an amended Show Cause Order 

alleging that Respondent’s state CDS 

license had expired does not render the 

proceeding fundamentally unfair. 

Respondent also argues that the ALJ’s 

ruling on the summary disposition 

motion ‘‘should have been stayed 

pending disclosure of evidence.’’ Exc. at 

5. Respondent analogizes the prehearing 

statements to civil discovery and argues 

that ‘‘the usual prehearing procedures 

for exchanging information was [sic] not 

completed.’’ Id. There is, however, no 

general right to discovery under either 

the APA or DEA regulations, but rather 

only a limited right to receive in 

advance of the hearing the documentary 

evidence and summaries of the 

testimony which the Government 

intends to rely upon. Nicholas A. 

Sychak, d/b/a Medicap Pharmacy, 65 

FR 75959, 75961 (2000) (citing 

McClelland v. Andrus, 606 F.2d 1278, 

1285 (DC Cir. 1979)); see also 21 CFR 

1316.54(e) & 1316.57. Nor, given the 

narrowness of the issue upon which the 

motion for summary disposition was 

based—whether Respondent has 

authority under state law to dispense a 

controlled substance—has Respondent 

shown what material evidence he might 

have obtained from the Government 

which he could not have obtained from 

another source such as the State itself. 

The contention is therefore without 

merit. 

Respondent also argues that the ALJ 

unlawfully shifted the burden of proof 

to him. According to Respondent, 

‘‘[t]here is an issue of disputed fact as 

to whether there has been [a] 

suspension[,] revocation[,] or denial of 

[his] state authority to prescribe 

controlled substances or merely [a] 

delay in processing his renewal 

application.’’ Exc. at 6. Respondent 

further claims that the ALJ did not 

require the DEA to show that the license 

was ‘‘pending,’’ and placed on him the 

burden of ‘‘show[ing] that he had been 

granted the requisite authority.’’ Id. at 7. 

Relatedly, Respondent maintains that 

the Government cannot revoke his 

registration under 21 U.S.C. 824(a)(3) 

because it has not shown that his 

registration has been suspended, 

revoked, or denied by competent 

authority. Id. 

Respondent ignores, however, that 

Congress has made the possession of 

state authority a prerequisite for 

obtaining a DEA registration. See id. 

Section 823(f) (‘‘The Attorney General 

shall register practitioners * * * to 

dispense * * * controlled substances 

* * * if the applicant is authorized to 

dispense * * * controlled substances 

under the laws of the State in which he 

practices.’’). In addition, the CSA 

defines the term ‘‘practitioner’’ to 

‘‘mean[] a physician * * * or other 

person licensed, registered, or otherwise 

permitted, by * * * the jurisdiction in 

which he practices * * * to dispense 

[or] administer * * * a controlled 

substance in the course of professional 

practice.’’ 21 U.S.C. 802(21). A 

physician who no longer holds 

authority under State law to dispense a 

controlled substance is therefore not a 

practitioner within the meaning of the 

CSA and cannot lawfully dispense. 

DEA has therefore consistently held 

that a practitioner may not maintain his 

registration if he lacks state authority to 

dispense controlled substances. This 

rule has been applied to revoke the 

registration of a practitioner even when 

the practitioner’s loss of state authority 

was based on the expiration of a state 

license rather than a formal disciplinary 

action of a state board. See William D. 

Levitt, 64 FR 49822, 49823 (1999); see 

also id. at 49822 (collecting cases). As 

the Agency explained in Levitt, because 

state authorization was clearly intended to be 

a prerequisite to DEA registration, Congress 

could not have intended for DEA to maintain 

a registration if a registrant is no longer 

authorized by the state in which he practices 

to handle controlled substances due to the 

expiration of his state license. Therefore, it is 

reasonable for DEA to interpret that 21 U.S.C. 

§ 824(a)(3) would allow for the revocation of 

a DEA * * * Registration where, as here, a 

registrant’s state authorization has expired. 

Id. at 49823. See also Chevron, Inc., v. 

NRDC, Inc., 467 U.S. 837, 843 (1984) 

(where Congress is silent on a question, 

courts defer to an agency’s reasonable 

interpretation of the statute it 

administers). 

Accordingly, in relying on the 

undisputed fact that Respondent’s State 

CDS license had expired, the ALJ did 

not erroneously shift the burden of 

proof from the Government to him. 

Rather, she correctly applied the 

Agency’s settled precedent that because 

Respondent clearly lacks authority to 

dispense controlled substances in the 

State in which he holds his DEA 

registration and practices medicine, he 

is not entitled to maintain his 

registration. Respondent’s registration 

will therefore be revoked. 

Order 

Pursuant to the authority vested in me 

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

by 28 CFR 0.100(b) & 0.104, I hereby 

order that DEA Certificate of 

Registration, BB0492912, issued to Roy 

E. Berkowitz, M.D., be, and it hereby is, 

revoked. I further order that any 

pending application of Roy E. 

Berkowitz, M.D., for renewal or 

modification of his registration be, and 

it hereby is, denied. This order is 

effective immediately.3

Dated: July 17, 2009. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. E9–17714 Filed 7–23–09; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF LABOR 

Office of the Secretary 

Submission for OMB Review: 

Comment Request 

July 20, 2009. 

The Department of Labor (DOL) 

hereby announces the submission of the 

following public information collection 

request (ICR) to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995 

(Pub. L. 104–13, 44 U.S.C. chapter 35). 

A copy of this ICR, with applicable 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 74, No. 141 / Friday, July 24, 2009 / Notices 36761 

supporting documentation; including 

among other things a description of the 

likely respondents, proposed frequency 

of response, and estimated total burden 

may be obtained from the RegInfo.gov 

Web site at http://www.reginfo.gov/ 

public/do/PRAMain or by contacting 

Darrin King on 202–693–4129 (this is 

not a toll-free number)/e-mail: 

DOL_PRA_PUBLIC@dol.gov. 

Interested parties are encouraged to 

send comments to the Office of 

Information and Regulatory Affairs, 

Attn: OMB Desk Officer for the 

Department of Labor—ETA, Office of 

Management and Budget, Room 10235, 

Washington, DC 20503, Telephone: 

202–395–7316/Fax: 202–395–5806 

(these are not toll-free numbers), E-mail: 

OIRA_submission@omb.eop.gov within 

30 days from the date of this publication 

in the Federal Register. In order to 

ensure the appropriate consideration, 

comments should reference the OMB 

Control Number (see below). 

The OMB 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 submission of 

responses. 

Agency: Employment and Training 

Administration. 

Type of Review: Extension without 

change of a currently approved 

collection. 

Title of Collection: Claims and 

Payment Activities. 

OMB Control Number: 1205–0010. 

Agency Form Number: ETA–5159. 

Affected Public: State Governments. 

Total Estimated Number of 

Respondents: 53. 

Total Estimated Annual Burden 

Hours: 1,272. 

Total Estimated Annual Costs Burden 

(does not include hour costs): $0. 

Description: The Form ETA–5159 

report provides important program 

information on claims taking and 

benefit payment activities under State/ 

Federal unemployment insurance laws. 

These data are needed for budget 

preparation and control, program 

planning and evaluation, personnel 

assignment, actuarial and program 

research, and for accounting to Congress 

and the public. This collection is 

authorized under the Social Security 

Act, Title III, Section 303(a)(6). For 

additional information, see related 

notice published at Volume 74 FR 

23886 on May 21, 2009. 

Darrin A. King, 

Departmental Clearance Officer. 

[FR Doc. E9–17676 Filed 7–23–09; 8:45 am] 

BILLING CODE 4510–FW–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

Notice of Availability of Funds and 

Solicitation for Grant Applications 

(SGA) for Mentoring, Educational, and 

Employment Strategies To Improve 

Academic, Social, and Career Pathway 

Outcomes 

AGENCY: Employment and Training 

Administration, U.S. Department of 

Labor. 

Announcement Type: Notice of 

Solicitation for Grant Applications. 

Funding Opportunity Number: SGA/ 

DFA PY 08–14. 

Catalog Federal Assistance Number: 

17.261. 

SUMMARY: The Employment and 

Training Administration (ETA) 

announces the availability of $34 

million for grants to serve high schools 

that have been designated as 

persistently dangerous by State 

Educational Agencies for the 2008–2009 

school year under section 9532 of the 

Elementary and Secondary Education 

Act. The goal of these grants is to reduce 

violence within these schools through a 

combination of mentoring, education, 

employment, case management, and 

violence prevention strategies. These 

grants will be awarded to fund projects 

in schools not currently receiving a DOL 

grant for these purposes through a 

competitive process open both to school 

districts which include persistently 

dangerous high schools and to 

community-based organizations (CBOs) 

in partnership with these school 

districts. High schools which have been 

designated as persistently dangerous 

this school year and which are not 

currently receiving a Department of 

Labor (Department or DOL) grant under 

this initiative are located in the school 

districts of Baltimore City, Plainfield 

(New Jersey), New York City, 

Schenectady (New York), Salem-Keiser 

(Oregon), Philadelphia, and Puerto Rico. 

These schools are listed in Section VIIIA 

below. School districts and CBOs must 

submit a separate application for each 

high school that they propose serving, 

but may submit as many applications as 

they have eligible schools. Applications 

submitted by school districts must 

include plans to have one or more CBOs 

as sub-grantees/contractors to operate at 

a minimum the mentoring component. 

These proposed CBO sub-grantees/ 

contractors do not need to be listed in 

the application, as the Department 

strongly encourages the use of 

competition in selecting sub-grantees 

and contractors either before or after 

grant award. Applications submitted by 

CBOs must have a school district 

identified as a partner, with a signed 

memorandum of understanding (MOU) 

with the school district included in the 

application. To be eligible to apply for 

these grants as a CBO, organizations 

must be not-for-profit entities and can 

operate either nationally or locally. 

This solicitation provides background 

information and describes the 

application submission requirements, 

outlines the process that eligible entities 

must use to apply for funds covered by 

this solicitation, and outlines the 

evaluation criteria used as a basis for 

selecting the grantees. 

DATES: Key Dates: The closing date for 

receipt of applications under this 

announcement is September 22, 2009. 

Application and submission 

information is explained in detail in 

Part IV of this SGA. 

ADDRESSES: Mailed applications must be 

addressed to the U.S. Department of 

Labor, Employment and Training 

Administration, Division of Federal 

Assistance, Attention: B. Jai Johnson, 

Reference SGA/DFA PY 08–14, 200 

Constitution Avenue, NW., Room N– 

4716, Washington, DC 20210. 

Applications that do not meet the 

conditions set forth in this notice will 

not be considered. No exceptions to the 

submission requirements set forth in 

this notice will be granted. For detailed 

guidance, please refer to Section IV.C. 

SUPPLEMENTARY INFORMATION: This 

solicitation consists of eight parts: 

Part I provides a description of this funding 

opportunity 

Part II describes the size and nature of the 

anticipated awards 

Part III describes eligibility information and 

other grant specifications 

Part IV provides information on the 

application and submission process 

Part V describes the criteria against which 

applications will be reviewed and explains 

the proposal review process 


srobinson on DSKHWCL6B1PROD with NOTICES