Notice2023-28015
Frank A. Hooper, D.V.M.; Decision and Order
Primary source
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Published
December 21, 2023
Issuing agencies
Justice DepartmentDrug Enforcement Administration
Full Text
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<title>Federal Register, Volume 88 Issue 244 (Thursday, December 21, 2023)</title>
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[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Notices]
[Pages 88414-88416]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28015]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 23-52]
Frank A. Hooper, D.V.M.; Decision and Order
On June 6, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Frank A. Hooper,
D.V.M. (Respondent). OSC, at 1, 3. The OSC proposed the revocation of
Respondent's DEA Certificate of Registration No. BH4810518 at the
registered address of 100B Old Woodruff Road, POB 123, Greer, South
Carolina 29651. Id. at 1. The OSC alleged that Respondent's DEA
registration should be revoked because
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Respondent is ``without authority to prescribe, administer, dispense,
or otherwise handle controlled substances in South Carolina, the state
in which [he is] registered with DEA.'' Id. at 2 (citing 21 U.S.C.
824(a)(3)).
On July 19, 2023, Respondent requested a hearing. On July 27, 2023,
the Government filed a Motion for Summary Disposition, to which
Respondent did not respond. On August 14, 2023, the Chief
Administrative Law Judge (Chief ALJ) granted the Government's Motion
for Summary Disposition and recommended the revocation of Respondent's
registration, finding that because Respondent lacks state authority to
handle controlled substances in South Carolina, the state in which he
is registered with DEA, ``there is no other fact of consequence for
this tribunal to decide.'' Order Granting the Government's Motion for
Summary Disposition and Recommended Rulings, Findings of Fact,
Conclusions of Law, and Decision of the Administrative Law Judge (RD),
at 5. Respondent did not file exceptions to the RD.
Having reviewed the entire record, the Agency adopts and hereby
incorporates by reference the entirety of the Chief ALJ's rulings,
findings of fact, conclusions of law, and recommended sanction as found
in the RD and summarizes and expands upon portions thereof herein.
Findings of Fact
On February 21, 2023, the South Carolina State Board of Veterinary
Medical Examiners issued an Order of Temporary Suspension that
suspended Respondent's South Carolina veterinary license. RD, at 4.\1\
Further, on March 27, 2023, the South Carolina Department of Health and
Environmental Control Bureau of Drug Control (SC DHEC Bureau of Drug
Control) cancelled Respondent's South Carolina controlled substances
registration. RD. at 4 n.3.\2\
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\1\ See also Government's Notice of Filing of Evidence of Lack
of State Authority; Service of Order to Show Cause; and Motion for
Summary Disposition, Exhibit (GX) 2, at 1; Declaration of S.N.R., at
3.
\2\ See also GX 7; Declaration of Diversion Investigator, at 3.
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According to South Carolina online records, of which the Agency
takes official notice, Respondent's South Carolina veterinary license
remains suspended.\3\ South Carolina Board of Veterinary Medical
Examiners, Licensee Lookup, <a href="https://verify.llronline.com/LicLookup/Vet/Vet.aspx?div=40">https://verify.llronline.com/LicLookup/Vet/Vet.aspx?div=40</a> (last visited date of signature of this Order).
Further, Respondent's South Carolina controlled substances registration
is listed with an expiration date of March 27, 2023. SC DHEC Bureau of
Drug Control, Controlled Substances Registration Verification, <a href="https://apps.dhec.sc.gov/DrugControl/Licensing/Home/Verify">https://apps.dhec.sc.gov/DrugControl/Licensing/Home/Verify</a> (last visited date
of signature of this Order).
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\3\ Under 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, Respondent may dispute the Agency's finding
by filing a properly supported motion for reconsideration of
findings 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 <a href="/cdn-cgi/l/email-protection#e7838286c986838388c9869393889589829e94a7838286c9808891"><span class="__cf_email__" data-cfemail="99fdfcf8b7f8fdfdf6b7f8ededf6ebf7fce0ead9fdfcf8b7fef6ef">[email protected]</span></a>.
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Accordingly, the Agency finds that Respondent is not currently
licensed to engage in veterinary practice nor to handle controlled
substances in South Carolina, the state in which he 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 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 71371, 71372
(2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012);
Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).\4\
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\4\ 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(g)(1) (this
section, formerly 823(f), was redesignated as part of the Medical
Marijuana and Cannabidiol Research Expansion Act, Pub. L. 117-215,
136 Stat. 2257 (2022)). 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 71371-72; Sheran Arden Yeates, M.D., 71
FR 39130, 39131 (2006); Dominick A. Ricci, M.D., 58 FR 51104, 51105
(1993); Bobby Watts, M.D., 53 FR 11919, 11920 (1988); Frederick
Marsh Blanton, 43 FR 27617.
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According to South Carolina statute, ``[e]very person who
manufactures, distributes, or dispenses any controlled substance or who
proposes to engage in the manufacture, distribution, or dispensing of
any controlled substance, shall obtain a registration issued by the
[Department of Health and Environmental Control] in accordance with its
rules and regulations.'' S.C. Code 44-53-290(a) (2023). Further,
``dispense'' means ``to deliver a controlled substance to an ultimate
user or research subject by or pursuant to the lawful order of a
practitioner, including the prescribing, administering, packaging,
labeling, or compounding necessary to prepare the substance for the
delivery.'' Id. 44-53-110(15).
Here, the undisputed evidence in the record is that Respondent
currently lacks authority to dispense controlled substances in South
Carolina because his South Carolina controlled substance registration
has been cancelled. As discussed above, an individual must hold a
controlled substance registration to dispense a controlled substance in
South Carolina. Thus, because Respondent lacks authority to handle
controlled substances in South Carolina, Respondent is not eligible to
maintain a DEA registration. RD, at 5. Accordingly, the Agency will
order that Respondent'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.
BH4810518 issued to Frank A. Hooper, D.V.M. Further, pursuant to 28 CFR
0.100(b) and the authority vested in me by 21 U.S.C. 823(g)(1), I
hereby deny any pending applications of Frank A. Hooper, D.V.M., to
renew or modify this registration, as well as any other pending
application of Frank A. Hooper, D.V.M., for additional registration in
South Carolina. This Order is effective January 22, 2024.
Signing Authority
This document of the Drug Enforcement Administration was signed on
December 12, 2023, by Administrator
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Anne Milgram. That document with the original signature and date is
maintained by DEA. For administrative purposes only, and in compliance
with requirements of the Office of the Federal Register, the
undersigned DEA Federal Register Liaison Officer has been authorized to
sign and submit the document in electronic format for publication, as
an official document of DEA. This administrative process in no way
alters the legal effect of this document upon publication in the
Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug Enforcement Administration.
[FR Doc. 2023-28015 Filed 12-20-23; 8:45 am]
BILLING CODE 4410-09-P
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