[Federal Register Volume 80, Number 159 (Tuesday, August 18, 2015)]
[Notices]
[Pages 50032-50033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20350]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. 14-24]


Nicholas Nardacci, M.D.; Decision and Order

    On July 15, 2014, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Nicholas J. Nardacci, M.D. (Respondent), of 
Albuquerque, New Mexico. The Show Cause Order proposed the revocation 
of Respondent's DEA Certificate of Registration AN9444592, on the 
ground that he lacks authority to handle controlled substances in New 
Mexico, the State in which he is registered with DEA. Show Cause Order, 
at 1 (citing 21 U.S.C. 823(f) & 824(a)(3)).
    The Show Cause Order specifically alleged that on August 20, 2013, 
the New Mexico Medical Board (the Board) issued a Decision and Order 
suspending Respondent's medical license, based on its finding that 
since 2010, Respondent had prescribed medical marijuana for numerous 
persons by certifying to the New Mexico Department of Health that he 
was each person's medical provider, without first establishing that he 
was the primary caregiver for any of those persons or otherwise first 
establishing a physician-patient relationship as required under NMSA 
Sec. Sec.  26-2B-1 et seq. Id. at 1. Based on the State's suspension of 
his medical license, the Order alleged that Respondent was without 
authority to handle controlled substances in New Mexico, the State in 
which he is registered with DEA, and thus, he is not entitled to 
maintain his registration. Id. (citing 21 U.S.C. 801(21), 823(f) and 
824(a)(3)).\1\
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    \1\ The Show Cause Order also notified Respondent 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. Show 
Cause Order, at 2 (citing 21 CFR 1301.43).
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    On or about August 4, 2014, the Show Cause Order was served on 
Respondent, and on September 2, 2014, Respondent filed a letter with 
the Office of Administrative Law Judges. GX 4. Therein, Respondent 
acknowledged that he had been served with the Show Cause Order and 
requested additional time in which to respond to the Order so that he 
could retain a lawyer; however, he did not request a hearing. Id. 
Respondent also asserted that on August 12, 2014, the Board had issued 
a Return to Work Order and therefore, his state medical license was now 
active. Id. The matter was then assigned

[[Page 50033]]

to an Administrative Law Judge, who ordered the Government to respond 
to Respondent's statement that ``he currently has an active license.'' 
GX 5, at 1.
    In the meantime, on September 3, 2014, the New Mexico Medical Board 
notified a DEA Diversion Investigator in the Albuquerque District 
Office that the Board's August 12, 2014 Order did not place any formal 
restrictions on Respondent's authority to prescribe controlled 
substances, explaining that his prescribing was not at issue in the 
Board's case. GX 3. Thereafter, on September 9, 2014, the Government 
filed a motion for Termination of Proceedings, stating that the 
allegations of the Show Cause Order were now moot and that ``these 
developments apparently obviate the need for any further proceedings.'' 
GX 5, at 2.
    Noting that Respondent had not requested a hearing, the ALJ 
concluded that ``the only jurisdictional authority'' she possessed was 
to determine whether to grant Respondent's request for ``a reasonable 
extension of the time allowed for response to an Order to Show Cause.'' 
Order Denying Respondent's Motion For Extension of Time, at 2 (quoting 
21 CFR 1316.47). The ALJ thus concluded that she did not have 
jurisdiction to rule on the Government's motion. Id. The ALJ then 
denied Respondent's motion, ``with the understanding that the 
Government will take the necessary steps to properly dismiss the'' Show 
Cause Order. Id.
    On February 3, 2015, the Government submitted a ``Request [f]or 
Dismissal [o]f Order [t]o Show Cause.'' Therein, the Government states 
that although Respondent was without state authority to handle 
controlled substances on July 15, 2014, when the Show Cause Order was 
issued, the New Mexico Medical Board has since lifted the suspension of 
his medical license and Respondent currently has no restrictions on his 
state authority to handle controlled substances.\2\ Id. at 2. Because 
the Show Cause Order sought revocation of Respondent's registration 
solely on the basis of his lack of state authority to handle controlled 
substances, and that ground for revocation no longer exists, the 
Government requests that I dismiss the Order. Id. at 2.
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    \2\ The Government submitted a copy of the Board's Order with 
its Request for Dismissal. See GX 2.
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    Based on my review of the Board's Order, as well as the Board's 
September 3, 2014 letter to the Diversion Investigator, I find that 
Respondent is currently authorized to dispense controlled substances in 
New Mexico, the State in which he is registered with this Agency. 
Because Respondent's loss of state authority was the sole basis for the 
Show Cause Order and this ground no longer exists, I conclude that this 
case is now moot and will order that the Show Cause Order 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 order that the Order to Show Cause issued to 
Nicholas J. Nardacci, M.D., be, and it hereby is, dismissed. This Order 
is effective immediately.

    Dated: August 10, 2015.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2015-20350 Filed 8-17-15; 8:45 am]
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