Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Notices 46525 

reviews. Comments are due on or before 

November 17, 2017 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 

November 17, 2017. However, should 

the Department of 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 rules with 

respect to filing were revised effective 

July 25, 2014. See 79 FR 35920 (June 25, 

2014), and the revised Commission 

Handbook on E-filing, available from the 

Commission’s Web site at https://

www.usitc.gov/secretary/documents/ 

handbook_on_filing_procedures.pdf. 

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: September 29, 2017. 

Lisa R. Barton, 

Secretary to the Commission. 

[FR Doc. 2017–21429 Filed 10–4–17; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Warren B. Dailey, M.D.; Decision and 

Order 

On February 7, 2017, the Assistant 

Administrator, Diversion Control 

Division, Drug Enforcement 

Administration (DEA), issued an Order 

to Show Cause to Warren B. Dailey, 

M.D. (Registrant), of Houston, Texas. 

The Show Cause Order proposed the 

revocation of Registrant’s DEA 

Certificate of Registration, pursuant to 

21 U.S.C. 824(a)(3) and (5), on two 

grounds: (1) That he does not have 

authority to handle controlled 

substances in Texas, the State in which 

he is registered with the Agency; and (2) 

he has been excluded from participation 

in a program pursuant to section 1320a– 

7(a) of Title 42. GX 2 (Order to Show 

Cause), at 1. 

With respect to the Agency’s 

jurisdiction, the Show Cause Order 

alleged that Registrant is registered as a 

practitioner in schedules II through V, 

under Certificate of Registration No. 

AD9639038, at the registered address of 

2305 Southmore, Houston, Texas. Id. 

The Order alleged that Registrant’s 

registration expires by its terms on June 

30, 2018. Id. 

As to the substantive grounds for the 

proceeding, the Show Cause Order 

specifically alleged that ‘‘[o]n October 

12, 2016, the Texas Medical Board 

issued an Order of Suspension by 

Operation of Law, suspending 

[Registrant’s] Texas Medical License 

. . . based on [his] felony conviction on 

March 30, 2016 . . . for health care 

fraud.’’ Id. The Show Cause Order then 

alleged that Registrant is ‘‘currently 

without authority to practice medicine 

or handle controlled substances in the 

State of Texas, the [S]tate in which he 

registered with’’ the Agency, thus 

subjecting his registration to revocation. 

Id. at (citing 21 U.S.C. 824(a)(3); other 

citations omitted). 

The Show Cause Order also alleged 

that on December 30, 2016, the Office of 

Inspector General, U.S. Department of 

Health and Human Services (HHS IG), 

issued a letter to Registrant ‘‘excluding 

[him] from participation in all Federal 

health care programs based on [his] 

felony conviction on March 30, 2016, in 

the U.S. District Court for the Southern 

District of Texas for health care fraud.’’ 

Id. at 2. The Show Cause Order further 

alleged that ‘‘[t]he exclusion was 

effective twenty days from the date of 

the letter and is for a minimum period 

of twenty years.’’ Id. The Show Cause 

Order then asserted that Registrant’s 

‘‘DEA registration is also subject to 

revocation based on [his] exclusion from 

participation in a program pursuant to 

section 1320a–7(a) of Title 42.’’ Id. 

(citing 21 U.S.C. 824(a)(5)). 

The Show Cause Order notified 

Registrant of his right to request a 

hearing on the allegations, or to submit 

a written statement in lieu of a hearing, 

the procedure for electing either option, 

and the consequence for failing to elect 

either option. Id. (citing 21 CFR 

1301.43). The Order also notified 

Registrant of his right to submit a 

corrective action plan under 21 U.S.C. 

824(c)(2)(C). Id. at 3. 

On February 7, 2017, the Show Cause 

Order was mailed to Registrant, via first 

class mail, addressed to him at his 

registered address at 2305 Southmore, 

Houston, Texas. GX 5. Affidavit of 

Service by DEA Analyst, Office of Chief 

Counsel. Also, on February 21, 2016, a 

Diversion Investigator (DI) with the 

Houston Division Office emailed the 

Show Cause Order to an attorney, who 

represented Registrant in the state board 

proceeding, who accepted service on his 

behalf. GX 4. In his email, the attorney 

represented that he was ‘‘accepting 

service upon’’ Registrant. Id. (copy of 

email between DI and attorney 

accepting service on Registrant.) 

On April 6, 2017 the Government 

forwarded a Request for Final Agency 

Action (RFAA) and an evidentiary 

record to my Office. On review, I found 

the Government’s attempts at service 

insufficient. As for the Government’s 

attempt to serve Registrant by mail 

addressed to his registered address, I 

found this inadequate because it clearly 

knew that Registrant had been convicted 

of multiple federal felony offenses more 

than a year earlier and was likely 

incarcerated in a United States 

Penitentiary. See Robinson v. 

Hanrahan, 409 U.S. 38, 40 (1972) 

(‘‘[T]he State knew that appellant was 

not at the address to which the notice 

was mailed . . . since he was at that 

very time confined in . . . jail. Under 

these circumstances, it cannot be said 

that the State made any effort to provide 

notice which was ‘reasonably 

calculated’ to apprise appellant of the 

pendency of the . . . proceedings.’’); see 

also Jones v. Flowers, 547 U.S. 220, 230 

(2006) (citing with approval Robinson 

and noting that its cases ‘‘require[] the 

government to consider unique 

information about an intended recipient 

regardless of whether a statutory scheme 

is reasonably calculated to provided 

notice in the ordinary case’’). 

I also found the Government’s service 

on the attorney insufficient. In holding 

so, I explained that the CSA states that 

‘‘[b]efore taking action pursuant to [21 

U.S.C. 824(a)] . . . the Attorney General 

shall serve upon the . . . registrant an 

order to show cause why registration 

should not be . . . revoked[ ] or 

suspended.’’ 21 U.S.C. 824(c) (emphasis 

added). While I explained that the 

Agency has found that service on an 

attorney may satisfy the CSA’s 

requirement that a Show Cause Order be 

‘‘serve[d] upon the . . . registrant,’’ I 

noted that the Agency has made clear 


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46526 Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Notices 

1There is no evidence in the record as to how the 

DI obtained Registrant’s address. However, 

according to the Bureau of Prisons Inmate Locator 

(of which I take official notice), Registrant is 

incarcerated at USP Beaumont. See 5 U.S.C. 556(e). 

2The Board’s Disciplinary Panel issued the Order 

following a hearing on October 7, 2016, at which 

it considered the Board’s Application for 

Suspension by Operation of Law. GX 3, at 1. While 

Registrant was provided with notice of the hearing, 

neither he nor his attorney appeared. Id. 

that ‘‘ [t]he mere relationship between a 

defendant and his attorney does not, in 

itself, convey authority to accept 

service.’’ David M. Lewis, 78 FR 36951 

(2013) (quoting Harbinson v. 

Commonwealth of Virginia, 2010 WL 

3655980, at *9 (E.D. Va. Aug. 11, 2010) 

(quoting Davies v. Jobs & Adverts 

Online, Gmbh, 94 F.Supp.2d 719, 722 

(E.D. Va. 2000))). See also United States 

v. Ziegler Bolt & Parts Co., 111 F.3d 878, 

881 (Fed. Cir. 1997); Grandbouche v. 

Lovell, 913 F.2d 835, 837 (10th Cir. 

1990); Ransom v. Brennan, 437 F.2d 

513, 518–19 (5th Cir. 1971). ‘‘Rather, the 

party seeking to establish the agency 

relationship must show ‘‘that the 

attorney exercised authority beyond the 

attorney-client relationship, including 

the power to accept service.’’ 

Harbinson, 2010 WL 3655980, at * 9 

(quoting Davies, 94 F.Supp.2d at 722 

(quoting Ziegler, 111 F.3d at 881)). 

I further explained that while an 

attorney’s authority to act as an agent for 

the acceptance of process ‘‘may be 

implied from surrounding 

circumstances indicating the intent of’’ 

his client, In re Focus Media Inc., 387 

F.3d 1077, 1082 (9th Cir. 2004) (other 

citation and internal quotations 

omitted), ‘‘an agent’s authority to act 

cannot be established solely from the 

agent’s actions.’’ Id. at 1084. ‘‘Rather, 

the authority must be established by an 

act of the principal.’’ Id. (citing FDIC v. 

Oaklawn Apartments, 959 F.2d 170, 175 

(10th Cir. 1992)). Because the 

Government offered no evidence of an 

act by the Registrant establishing that he 

granted authority to the attorney to 

accept process on his behalf in this 

proceeding, I found that the 

Government had not properly served 

Respondent. Focus Media, 387 F.3d at 

1084. 

Thereafter, the Government reissued 

the Show Cause Order and on July 17, 

2017, a Diversion Investigator mailed 

the Order by certified mail addressed to 

Respondent, at the United States 

Penitentiary in Beaumont, Texas.1 GX 7. 

According to the tracking information 

obtained from the U.S. Postal Service, 

on July 20, 2017, the mailing was 

delivered to the Penitentiary. Id., see 

also GX 8. I therefore find that the 

Government accomplished service on 

July 20, 2017. 

On September 20, 2017, the 

Government submitted a new Request 

for Final Agency Action. (Hereinafter, 

cited as RFFA). Therein, the 

Government represents that ‘‘Registrant 

has not requested a hearing and has not 

otherwise corresponded or 

communicated with DEA regarding the 

Reissued Order served on him, 

including the filing of any written 

statement in lieu of a hearing.’’ RFAA, 

at 2. 

Because more than 30 days have now 

passed since the date of service of the 

Show Cause Order and that Registrant 

has not submitted a request for a hearing 

or a written statement, I find that 

Registrant has waived his right to a 

hearing or to submit a written statement 

in lieu of a hearing. 21 CFR 1301.43(d). 

I therefore issue this Decision and Final 

Order based on relevant evidence 

contained in the record submitted by 

the Government. Id. § 1301.43(d) & (e). 

I make the following findings of fact. Id. 

§ 1301.43(e). 

Findings 

Registrant is the holder of DEA 

Certificate of Registration No. 

AD9639038, pursuant to which he is 

authorized to dispense controlled 

substances in schedules II through V as 

a practitioner, at the registered address 

of 2305 Southmore, Houston, Texas. GX 

1 (Certification of Registration History). 

He is also authorized to dispense 

Suboxone and Subutex as a Data-Waiver 

practitioner pursuant to the Drug 

Addiction Treatment Act of 2000 

(DATA), for the purpose of treating up 

to 100 opiate-addicted patients. Id.; see 

21 U.S.C. 823(g)(2). His registration does 

not expire until June 30, 2018. Id. 

On October 12, 2016, the Texas 

Medical Board (Board) issued an Order 

of Suspension by Operation of Law, 

suspending Registrant’s Texas Medical 

License No. F–8454, based on 

Registrant’s felony conviction on March 

30, 2016 for health care fraud in the U.S. 

District Court for the Southern District 

of Texas.2 GX 3, at 2. The Board found 

that on or about March 30, 2016, 

Registrant was convicted of one count of 

conspiracy to commit healthcare fraud, 

two counts of false statements related to 

healthcare matters, one count of 

conspiracy to pay and receive 

healthcare kickbacks, and one count of 

payment and receipt of healthcare 

kickbacks. Id. at 1–2 (citing 18 U.S.C. 

1349, 1035, 371, 2; 42 U.S.C. 1320a– 

7b(b)(1) and (b)(2)). 

The Government provided evidence 

that the Texas Medical Board Web site 

shows that Registrant’s medical license 

remained suspended as of September 

20, 2017, and according to the Board’s 

Web site, his license remains suspended 

as of the date of this Decision and 

Order. GX 9. See also http://

reg.tmb.state.tx.us/OnLineVerif/Phys_

ReportVerif_new.asp. The Board’s Order 

states that the suspension is to remain 

in effect until superseded by a 

subsequent Order of the Board. GX 3, at 

2. I therefore find that Registrant does 

not possess authority to dispense 

controlled substances under the laws of 

Texas, the State in which he is 

registered with the Agency. 

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 Title 21, ‘‘upon a 

finding that the registrant . . . has had 

his State license . . . 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, DEA has 

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 registration. See, e.g., James L. Hooper, 

76 FR 71371 (2011) (collecting cases), 

pet. for rev. denied, 481 Fed. Appx. 826 

(4th Cir. 2012); see also Frederick Marsh 

Blanton, 43 FR 27616 (1978) (‘‘State 

authorization to dispense or otherwise 

handle controlled substances is a 

prerequisite to the issuance and 

maintenance of a Federal controlled 

substances registration.’’). 

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.’’ Id. 

§ 823(f). Because Congress has clearly 

mandated that a practitioner possess 

state authority in order to be deemed a 

practitioner under the Act, DEA has 

held repeatedly that revocation of a 

practitioner’s registration is the 

appropriate sanction whenever he is no 

longer authorized to dispense controlled 


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Federal Register / Vol. 82, No. 192 / Thursday, October 5, 2017 / Notices 46527 

3The Show Cause Order also proposed revocation 

pursuant to 21 U.S.C. 824(a)(5), which provides that 

a registration may be revoked ‘‘upon a finding that 

the registrant has been excluded or directed to be 

excluded from participation in a program pursuant 

to section 1320a–7(a) of Title 42.’’ GX 2, 1–2. While 

the Show Cause Order alleged that the HHS IG has 

issued a letter to Registrant excluding him from 

participation in federal health care programs 

pursuant to 42 U.S.C. 1320a–7(a), the Government 

has provided no evidence to support the allegation, 

and it does not raise this ground in its Request for 

Final Agency Action. I therefore dismiss the 

allegation. 

substances under the laws of the State 

in which he practices medicine. See, 

e.g., Calvin Ramsey, 76 FR 20034, 20036 

(2011); Sheran Arden Yeates, M.D., 71 

FR 39130, 39131 (2006); Dominick A. 

Ricci, 58 FR 51104, 51105 (1993); Bobby 

Watts, 53 FR 11919, 11920 (1988); see 

also Frederick Marsh Blanton, 43 FR 

27616 (1978). 

Because Registrant is no longer 

currently authorized to dispense 

controlled substances in Texas, the State 

in which he is registered with the 

Agency, I will order that his registration 

be revoked.3 21 U.S.C. 824(a)(3). 

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 824(a), as well as 28 CFR 

0.100(b), I order that DEA Certificate of 

Registration AD9639038 and DataWaiver Identification No. XD9639038, 

issued to Warren B. Dailey, M.D., be, 

and they hereby are, revoked. Pursuant 

to the authority vested in me by 21 

U.S.C. 823(f), I further order that any 

pending application of Warren B. 

Dailey, M.D., to renew or modify his 

registration, be, and it hereby is, denied. 

This Order is effective November 6, 

2017. 

Dated: September 27, 2017. 

Chuck Rosenberg, 

Acting Administrator. 

[FR Doc. 2017–21382 Filed 10–4–17; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

[Docket No. 17–24] 

William J. O’Brien, III, D.O.; Decision 

and Order 

On March 13, 2017, the Assistant 

Administrator, Diversion Control 

Division, issued an Order to Show 

Cause to William J. O’Brien, III, D.O. 

(Respondent), formerly of Levittown, 

Pennsylvania. The Show Cause Order 

proposed the revocation of 

Respondent’s DEA Certificate of 

Registration pursuant to 21 U.S.C. 

824(a)(2), on the ground that he ‘‘ha[s] 

been convicted of a felony relating to 

controlled substances.’’ Show Cause 

Order, at 1. 

As to the Agency’s jurisdiction, the 

Show Cause Order alleged that 

Respondent is registered as a 

practitioner in schedules II through V, 

under Registration No. BO3937781, at 

the address of 49 Rolling Lane, 

Levittown, Pa. Id. The Order also 

alleged that Respondent’s registration 

expires on December 31, 2017. Id. 

As to the substantive grounds for the 

proceeding, the Show Cause Order 

alleged that ‘‘[o]n June 28, 2016, 

[Respondent was] convicted by a 

Federal jury of . . . two counts of 

conspiracy to distribute controlled 

substances, in violation of 21 U.S.C. 

846; 110 counts of distribution of 

controlled substances (oxycodone, 

methadone and amphetamine, all 

[s]chedule II controlled substances), 

seven counts of distribution of 

controlled substances (alprazolam, a 

[s]chedule IV controlled substances, in 

violation of 21 U.S.C. 841(a)(1); and one 

count of distribution of controlled 

substances resulting in death, in 

violation of 21 U.S.C. 841(a)(1). Id. at 1– 

2. The Show Cause Order also alleged 

that on October 5, 2016, the judgment 

was entered against him. Id. at 2. The 

Order then asserted that a ‘‘[c]onviction 

of a felony related to controlled 

substances warrants revocation of [his] 

registration pursuant to 21 U.S.C. 

824(a)(2).’’ Id. 

The Show Cause Order notified 

Respondent of his right to request a 

hearing on the allegations or to submit 

a written statement while waiving his 

right to a hearing, the procedure for 

electing either option, and the 

consequence of failing to elect either 

option. Id. The Show Cause Order also 

notified Respondent of his right to 

submit a Corrective Action Plan 

pursuant to 21 U.S.C. 824(c)(2)(C). Id. at 

2–3. 

On March 21, 2017, the Government 

served the Show Cause Order on 

Respondent. Notice of Service of Order 

to Show Cause, at 1. On April 25, 2017, 

Respondent’s hearing request was 

received by the Office of Administrative 

Law Judges (OALJ) and assigned to ALJ 

Charles Wm. Dorman. Hearing Request, 

at 1. 

On May 1, 2017, the ALJ issued an 

Order for Prehearing Statements. Noting 

that Respondent’s hearing request was 

received on April 25, 2017 and that 

DEA’s regulation requires that a hearing 

request be received ‘‘within 30 days 

after the date of receipt of the’’ Show 

Cause Order to be deemed timely, the 

ALJ ordered the Government to ‘‘submit 

evidence showing when it served the’’ 

Order and to file any motion seeking to 

terminate the proceeding ‘‘based on the 

timeliness of the . . . hearing request.’’ 

Order for Prehearing Statements, at 1. 

The ALJ directed the Government to 

comply with this portion of his order by 

May 8, 2017. Id. The ALJ’s Order also 

directed both parties to file a prehearing 

statement setting forth their proposed 

witnesses, a summary of their proposed 

testimony, and the documentary 

evidence they intended to introduce. Id. 

at 1–2. 

On May 5, 2017, the Government 

submitted a pleading addressing the 

timeliness of Respondent’s hearing 

request. Therein, the Government noted 

that the envelope used by Respondent to 

mail the hearing request was stamped 

by the Agency’s mailroom as having 

been received on April 13, 2017. Notice 

of Service of Order to Show Cause, at 1. 

The Government therefore did not move 

to terminate the proceeding based on 

the timeliness of Respondent’s hearing 

request. Id. at 1–2. 

Also, on May 5, 2017, the Government 

moved for summary disposition on two 

grounds. Mot. for Summ. Disp., at 1. 

First, the Government noted that 

subsequent to the issuance of the Show 

Cause Order, the State of Pennsylvania 

suspended Respondent’s license to 

practice osteopathic medicine and 

surgery, and therefore, he has no 

authority to handle controlled 

substances in the State in which he is 

registered. Id. at 2–4. As support for this 

contention, the Government submitted a 

copy of the State Board of Osteopathic 

Medicine’s Final Order of Automatic 

Suspension (April 12, 2017). GX 2. The 

Government argued that because 

Respondent does not have state 

authority to dispense controlled 

substances in Pennsylvania, he ‘‘is not 

authorized to possess a DEA registration 

in that [S]tate,’’ and therefore, his 

registration should be revoked. Mot. 

at 3. 

The Government also sought 

summary disposition on the ground that 

it is undisputed that Respondent has 

been convicted of a controlled substance 

felony. The Government argued that 

Respondent has been convicted of two 

counts of conspiracy to distribute 

controlled substances, 110 counts of 

unlawful distribution of schedule II 

controlled substances, seven counts of 

unlawful distribution of other 

controlled substances, and one count of 

distribution of controlled substances 

resulting in death. Id. at 4 (citing 21 

U.S.C. 841(a)(1) and 846). As support for 

this contention, the Government 

submitted a copy of the Amended 

Judgment in a Criminal Case which was 

entered by the United States District 


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