[Federal Register Volume 89, Number 157 (Wednesday, August 14, 2024)]
[Notices]
[Pages 66141-66142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18096]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Thomas M. Fausset, O.D.; Decision and Order

    On August 8, 2023, the Drug Enforcement Administration (DEA or 
Government) issued an Order to Show Cause (OSC) to Thomas Fausset O.D. 
(Registrant). Request for Final Agency Action (RFAA), Exhibit (RFAAX) 
2, at 1, 4. The OSC proposed the revocation of Registrant's 
Certification of Registration No. MF5263481 at the registered address 
of 237 N Western Ave., Los Angeles, CA 90004. Id. at 1. The OSC alleged 
that Registrant's registration should be revoked because Registrant is 
``currently 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 OSC notified Registrant of his right to file with DEA a written 
request for hearing, and that if he failed to file such a request, he 
would be deemed to have waived his right to a hearing and be in 
default. Id. (citing 21 CFR 1301.43). Here, Registrant did not request 
a hearing. RFAA, at 2.\1\ ``A default, unless excused, shall be deemed 
to constitute a waiver of the registrant's/applicant's right to a 
hearing and an admission of the factual allegations of the [OSC].'' 21 
CFR 1301.43(e).
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    \1\ Based on the Government's submissions in its RFAA dated 
October 23, 2023, the Agency finds that service of the OSC on 
Registrant was adequate. Specifically, the submitted Declaration 
from a DEA Diversion Investigator indicates that Registrant was 
successfully mailed a copy of the OSC at both his last known home 
address and his registered address on August 11, 2023. RFAAX 3, at 
2; see also RFAAX 3, Appendix A, at 1-2.
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    Further, ``[i]n the event that a registrant . . . is deemed to be 
in default . . . DEA may then file a request for final agency action 
with the Administrator, along with a record to support its request. In 
such circumstances, the Administrator may enter a default final order 
pursuant to [21 CFR] Sec.  1316.67.'' Id. Sec.  1301.43(f)(1). Here, 
the Government has requested final agency action based on Registrant's 
default pursuant to 21 CFR 1301.43(c), (f), 1301.46. RFAA, at 2; see 
also 21 CFR 1316.67.

Findings of Fact

    The Agency finds that, in light of Registrant's default, the 
factual allegations in the OSC are admitted. According to the OSC, 
effective April 22, 2023, the California State Board of Optometry 
revoked Registrant's California optometry license. RFAAX 2, at 2. 
According to California online records, of which the Agency takes 
official notice, Registrant's California optometry license remains 
revoked.\2\ California DCA License Search, https://search.dca.ca.gov 
(last visited date of signature of this Order). Accordingly, the Agency 
finds that Registrant is not licensed to practice optometry in 
California, the state in which he is registered with DEA.
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    \2\ 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 the DEA 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 21 U.S.C. 823 ``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, 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

[[Page 66142]]

a practitioner's registration. See, e.g., James L. Hooper, D.O., 76 FR 
71371, 71372 (2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 
2012); Frederick Marsh Blanton, D.O., 43 FR 27616, 27617 (1978).\3\
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    \3\ This rule derives from the text of two provisions of the 
Controlled Substances Act (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). Because Congress has clearly mandated that a 
practitioner possess state authority in order to be deemed a 
practitioner under the CSA, 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, D.O., 71 
FR 39130, 39131 (2006); Dominick A. Ricci, D.O., 58 FR 51104, 51,105 
(1993); Bobby Watts, D.O., 53 FR 11919, 11920 (1988); Frederick 
Marsh Blanton, 43 FR 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 
section 11010 (West 2024). 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. section 11026(c).
    Here, the undisputed evidence in the record is that Registrant 
currently lacks authority to practice optometry in California. As 
discussed above, an optometrist must be a licensed practitioner to 
dispense a controlled substance in California. Thus, because Registrant 
currently lacks authority to practice optometry in California and, 
therefore, is not currently 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. 
MF5263481 issued to Thomas Fausset, O.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 Thomas Fausset, O.D., to renew 
or modify this registration, as well as any other pending application 
of Thomas Fausset, O.D., for additional registration in California. 
This Order is effective September 13, 2024.

Signing Authority

    This document of the Drug Enforcement Administration was signed on 
August 8, 2024, 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. 2024-18096 Filed 8-13-24; 8:45 am]
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