[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Notices]
[Pages 35054-35055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14315]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 11-13]


Donald Brooks Reece II, M.D.; Dismissal of Proceeding

    On November 19, 2010, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration, issued an Order to 
Show Cause to Donald Brooks Reece II, M.D. (Respondent), of Morehead 
City, N.C. The Order proposed the revocation of Respondent's DEA 
Certificate of Registration as a practitioner, and the denial of any 
pending application to renew or modify the registration, on the ground 
that Respondent's registration is inconsistent with the public interest 
as that term is defined in 21 U.S.C. 823(f). Show Cause Order at 1 
(citing 21 U.S.C. 824(a)(4)).
    Respondent requested a hearing on the allegations and an 
Administrative Law Judge (ALJ) conducted a hearing on May 9-13, 2011. 
Thereafter, on September 30, 2011, the ALJ issued his decision, which 
concluded that ``Respondent's continued registration would be fully 
inconsistent with the public interest,'' and recommended that his 
registration be revoked and that any pending application to renew or 
modify his registration be denied. ALJ at 33. Respondent filed 
Exceptions, and on November 21, 2011, the ALJ forwarded the record to 
this Office for final agency action.\1\
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    \1\ On February 9, 2012, the Government also filed a pleading 
entitled: ``Notice To The Administrator Regarding State Authority,'' 
with attachments. Therein, the Government observed that Respondent 
had entered into a Consent Order with the North Carolina Medical 
Board, pursuant to which he agreed to cease the practice of medicine 
or surgery in North Carolina, the State in which he held his DEA 
registration. Notice to the Administrator Regarding State Authority, 
at 3. This Order was effective on December 8, 2011. Id., Attachment 
5, at 6.
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    Upon review of the record, it was noted that Respondent's 
registration was due to expire on April 30, 2012. GX 1. Because in the 
absence of a timely renewal application, Respondent's registration 
would expire, see 5 U.S.C. 558(c), pursuant to 5 U.S.C. 556(e) and 21 
CFR 1316.59(e), I have taken official notice of Respondent's 
registration record with the Agency.\2\ According to

[[Page 35055]]

this record, Respondent has not filed a renewal application. I 
therefore find that Respondent's registration has expired.
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    \2\ In accordance with the Administrative Procedure Act (APA), 
an agency ``may take official notice of facts at any stage in a 
proceeding-even in the final decision.'' U.S. Dept. of Justice, 
Attorney General's Manual on the Administrative Procedure Act 80 
(1947) (Wm. W. Gaunt & Sons, Inc., Reprint 1979). In accordance with 
the APA and DEA's regulations, Respondent is ``entitled on timely 
request to an opportunity to show to the contrary.'' 5 U.S.C. 
556(e); see also 21 CFR 1316.59(e). To allow Respondent the 
opportunity to refute the facts of which I take official notice, 
Respondent may file a motion for reconsideration within fifteen 
calendar days of service of this order which shall commence on the 
date this order is mailed.
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    Under DEA precedent, ``if a registrant has not submitted a timely 
renewal application prior to the expiration date, then the registration 
expires and there is nothing to revoke.'' Ronald J. Riegel, 63 FR 
67132, 67133 (1998); see also Thomas E. Mitchell, 76 FR 20032, 20033 
(2011). Moreover, in the absence of an application (whether timely 
filed or not), there is nothing to act upon. Accordingly, because 
Respondent has allowed his registration to expire and has not filed 
either a renewal or a new application, this case is now moot and will 
be dismissed.

Order

    Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well 
as 28 CFR 0.100(b), I hereby order that the Order to Show Cause issued 
to Donald Brooks Reece II, M.D., be, and it hereby is, dismissed. This 
Order is effective immediately.

    Dated: June 2, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-14315 Filed 6-11-12; 8:45 am]
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