[Federal Register Volume 83, Number 164 (Thursday, August 23, 2018)]
[Notices]
[Pages 42696-42697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18267]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Greg N. Rampey, D.O.; Dismissal of Proceedings

    On October 27, 2017, the Acting Assistant Administrator, Diversion 
Control Division, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Greg N. Rampey, D.O. (Registrant), of Tulsa, 
Oklahoma. The Show Cause Order proposed the revocation of Registrant's 
DEA Certificate of Registration No. BR7006085 on the ground that he has 
``no state authority to handle controlled substances'' in the State of 
Oklahoma, the State in which he is registered with the DEA. Order to 
Show Cause, Government Exhibit (GX) 2, at 1, 2 (citing 21 U.S.C. 
824(a)(3)). For the same reason, the Order also proposed the denial of 
any of Registrant's ``applications for renewal or modification of such 
registration and any applications for any other DEA registrations.'' 
Id. at 1.
    With respect to the Agency's jurisdiction, the Show Cause Order 
alleged that Registrant is the holder of Certificate of Registration 
No. BR7006085, pursuant to which he is authorized to dispense 
controlled substances as a practitioner in schedules II through V, at 
the registered address of 8596 E. 101st, Ste. B, Tulsa, Oklahoma. Id. 
The Order also alleged that this registration does not expire until 
April 30, 2018. Id.
    As the substantive ground for the proceeding, the Show Cause Order 
alleged that ``on September 21, 2017, the Oklahoma State Board of 
Osteopathic Examiners cancelled [Registrant's] osteopathic medical 
license'' and his ``Oklahoma Bureau of Narcotics and Dangerous Drugs 
registration is inactive.'' Id. at 1-2. The Show Cause Order thus 
alleged that Registrant is ``currently without authority to practice 
medicine or handle controlled substances in the State of Oklahoma, the 
[S]tate in which [he is] registered with the DEA,'' and that, as a 
consequence, ``DEA must revoke'' his registration. Id. at 2.
    The Show Cause Order notified Registrant of (1) his right to 
request a hearing on the allegations or to submit a written statement 
in lieu of a hearing, (2) the procedure for electing either option, and 
(3) 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. Id. at 2-3 (citing 21 U.S.C. 824(c)(2)(C)).
    According to an Affidavit of Service filed in this matter, on 
October 30, 2017, personnel from DEA's Office of Chief Counsel, 
Diversion and Regulatory Litigation Section, attempted to serve the 
Show Cause Order on the Registrant by regular first class mail 
addressed to the Registrant at his registered address. GX 6. The 
Government represents that its mailing was not returned as 
undeliverable. Id. On January 10, 2018, the Government submitted a 
Request for Final Agency Action (RFAA) representing that Registrant did 
not request a hearing and ``ha[d] not filed any written statement in 
lieu of a hearing'' within 30 days of service and seeking a final order 
revoking his registration. GX 7, at 2.
    On February 6, 2018, the then-Acting Administrator issued an Order 
noting that the Government's effort at service in this case was ``a 
departure from the Agency's traditional practice.'' GX 8. The Order 
further noted that ``the Government cites to no authority establishing 
that a sole effort of mailing by first class mail (with no evidence of 
delivery to the address) is sufficient to provide constitutionally 
adequate service for initiating a proceeding under the Due Process 
Clause.'' Id. As a result, the then-Acting Administrator directed the 
Government to either address why its effort was consistent with the Due 
Process Clause or to engage in additional reasonable efforts to serve 
Registrant. Id.
    On March 29, 2018, my office received the Government's Second 
Request for Final Agency Action (SRFAA) describing a Diversion 
Investigator's additional attempts to serve the Show Cause Order and 
again seeking a final order revoking Registrant's registration. SRFAA, 
at 2.

[[Page 42697]]

The Government also submitted a Certification of Registration History, 
which was sworn to on December 19, 2017. GX 1, at 3. In that 
Certification, the Associate Chief of the Registration and Program 
Support Section stated that DEA Registration No. BR7006085 ``expires on 
April 30, 2018.'' Id. at 1-2. The Associate Chief further stated that 
``Gre[g] N. Rampey, M.D., has no other pending or valid DEA 
registration(s) in Oklahoma.'' Id. at 3. Pursuant to 5 U.S.C. 556(e), I 
take official notice of Registrant's registration record with the 
Agency. See also 21 CFR 1316.59(e).\1\ According to that record, DEA 
Registration No. BR7006085 expired on April 30, 2018, and Registrant 
has not filed an application, whether timely or not, to renew his 
registration or for any other registration in the State of Oklahoma.\2\
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    \1\ Under 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, Registrant 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 Registrant the opportunity to refute the 
facts of which I take official notice, Registrant may file a motion 
for reconsideration within 15 calendar days of service of this order 
which shall commence on the date this order is mailed.
    \2\ As already noted, my office received the Government's Second 
Request for Final Agency Action on March 29, 2018. This filing 
arrived in my office too late for me to issue a final decision and 
order before the registration would expire on April 30, 2018. DEA 
regulation 21 CFR 1316.67 requires that I issue a final order that 
takes effect not less than 30 days from the date of publication in 
the Federal Register unless the public interest necessitates an 
earlier effective date. The record before me fails to include facts 
supporting a finding that ``the public interest in the matter 
necessitates an earlier effective date.'' 21 CFR 1316.67. Thus, even 
if I had submitted a final order in this case to the Federal 
Register on the same day (March 29, 2018) that my office received 
the SRFAA to revoke Registrant's registration, I could not have 
issued an order that would have taken effect by April 30, 2018 
because the Federal Register would not have been able to publish it 
30 days before the registration's April 30, 2018 expiration--i.e., 
by Saturday, March 31, 2018. And as the Agency has previously noted, 
there is no point in issuing a ruling on a Show Cause Order where, 
as here, that ruling would constitute an advisory opinion subject to 
vacation on judicial review. See, e.g., Josip Pasic, M.D., 82 FR 
24146, 24147 (2017) (``As the requested factual findings and legal 
conclusions would be subject to vacation on judicial review, there 
is no point in making them.'').
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    DEA has long held that `` `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.' '' Donald Brooks 
Reece II, M.D., 77 FR 35054, 35055 (2012) (quoting Ronald J. Riegel, 63 
FR 67312, 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.'' Reece, 77 FR at 
35055. Accordingly, because Registrant has allowed his registration to 
expire and has not filed any application for registration in Oklahoma, 
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 order that the Order to Show Cause issued to Greg 
N. Rampey, D.O., be, and it hereby is, dismissed. This Order is 
effective immediately.

    Dated: August 14, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-18267 Filed 8-22-18; 8:45 am]
 BILLING CODE 4410-09-P