[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Notices]
[Pages 7104-7105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02120]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Dylan E. O'Connor, M.D.; Decision and Order

    On September 15, 2022, the Drug Enforcement Administration 
(hereinafter, DEA or Government) issued an Order to Show Cause 
(hereinafter, OSC) to Dylan E. O'Connor, M.D. (hereinafter, 
Registrant). Request for Final Agency Action (hereinafter, RFAA), 
Exhibit (hereinafter, RFAAX) 1

[[Page 7105]]

(OSC), at 1, 3. The OSC proposed the revocation of Registrant's 
Certificate of Registration No. FO7776644 at the registered address of 
300 Pasteur Dr., Stanford, CA 94305-2295. Id. at 1. The OSC alleged 
that Registrant's registration should be revoked because Registrant is 
``without authority to handle controlled substances in the State of 
California, the state in which [he is] registered with DEA.'' Id. at 2 
(citing 21 U.S.C. 824(a)(3)).
    The Agency makes the following findings of fact based on the 
uncontroverted evidence submitted by the Government in its RFAA,\1\ 
which was received on January 5, 2023.\2\
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    \1\ The Government's RFAA is dated November 29, 2022. RFAA, at 
5.
    \2\ Based on a Declaration from a DEA Diversion Investigator, 
the Agency finds that the Government's service of the OSC on 
Registrant was adequate. RFAAX 2, at 2. Further, based on the 
Government's assertions in its RFAA, the Agency finds that more than 
thirty days have passed since Registrant was served with the OSC and 
Registrant has neither requested a hearing nor submitted a written 
statement or corrective action plan and therefore has waived any 
such rights. RFAA, at 1-2; see also 21 CFR 1301.43 and 21 U.S.C. 
824(c)(2).
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Findings of Fact

    On May 26, 2022, the Medical Board of California issued a Notice of 
Automatic Revocation of License that revoked Registrant's California 
medical license. RFAAX 2, Attachment C, at 1-3. According to 
California's online records, of which the Agency takes official notice, 
Registrant's California medical license is revoked.\3\ Medical Board of 
California License Verification, https://www.mbc.ca.gov/License-Verification (last visited date of signature of this Order). 
Accordingly, the Agency finds that Registrant is not licensed to engage 
in the practice of medicine in California, the state in which he is 
registered with the DEA.
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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, Registrant 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 [email protected].
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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 
Controlled Substances Act (hereinafter, 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 (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 Sec.  823(f), was redesignated as part of the 
Medical Marijuana and Cannabidiol Research Expansion Act, Public Law 
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 at 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 at 27617.
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    According to California statute, ``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, furnishing, packaging, labeling, or compounding necessary 
to prepare the substance for that delivery.'' Cal. Health & Safety Code 
Sec.  11010 (West 2022). Further, a ``practitioner'' means a person 
``licensed, registered, or otherwise permitted, to distribute, 
dispense, conduct research with respect to, or administer, a controlled 
substance in the course of professional practice or research in [the] 
state.'' Id. at Sec.  11026(c).
    Here, the undisputed evidence in the record is that Registrant 
lacks authority to practice medicine in California. As discussed above, 
a physician must be a licensed practitioner to dispense a controlled 
substance in California. Thus, because Registrant lacks authority to 
practice medicine in California and, therefore, is not authorized to 
handle controlled substances in California, Registrant is not eligible 
to maintain a DEA registration. Accordingly, the Agency will order that 
Registrant'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. 
FO7776644 issued to Dylan E. O'Connor, M.D. 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 Dylan E. O'Connor, M.D., to 
renew or modify this registration, as well as any other pending 
application of Dylan E. O'Connor, M.D., for additional registration in 
California. This Order is effective March 6, 2023.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
January 25, 2023, by Administrator 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. 2023-02120 Filed 2-1-23; 8:45 am]
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