[Federal Register Volume 90, Number 53 (Thursday, March 20, 2025)]
[Notices]
[Pages 13196-13198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-04746]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Linwood A. Starks, D.V.M.; Decision and Order
On June 29, 2023, the Drug Enforcement Administration (DEA or
Government) issued an Order to Show Cause (OSC) to Linwood A. Starks,
D.V.M., of Grand Prairie, Texas (Registrant). Request for Final Agency
Action (RFAA), Exhibit (RFAAX) 2, at 1, 3. The OSC proposed the
revocation of Registrant's Certificate of Registration No. FS5936919,
alleging that Registrant's registration should be revoked because
Registrant is ``currently without authority to handle controlled
substances in the State of Texas, the
[[Page 13197]]
state in which [he is] registered with DEA.'' Id. at 1-2 (citing 21
U.S.C. 824(a)(3)).
The OSC notified Registrant of his right to file 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. at
2 (citing 21 CFR 1301.43). The OSC also notified Registrant that if he
requested a hearing but failed to timely file an answer, plead, or
otherwise defend, he would be deemed to have waived his right to a
hearing and be in default. Id. On October 11, 2023, Registrant filed a
request for a hearing, however, the request for hearing did not contain
any answers to the OSC. RFAA, at 2; RFAAX 4, at 1-2. Registrant was
given an extended deadline to file answers to the OSC, but failed to do
so, and on October 23, 2023, the Chief Administrative Law Judge
terminated the proceedings and found Registrant to be in default. RFAA,
at 2-3; RFAAX 5, at 2.
``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). 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] 1316.67.'' Id. section 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 4; 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 January 6, 2023, the Executive Disciplinary Committee of the
Texas Board of Veterinary Medical Examiners (TBVME) issued an Order of
Temporary Suspension barring Registrant from the practice of veterinary
medicine in Texas. RFAAX 2, at 1-2. According to Texas online records,
of which the Agency takes official notice, Registrant's Texas
veterinary license remains suspended.\1\ Texas Board of Veterinary
Medical Examiners Licensee Lookup, https://apps.veterinary.texas.gov/s/licenseelookup (last visited date of signature of this Order).
Accordingly, the Agency finds that Registrant is not licensed to
practice as a veterinarian in Texas, the state in which he is
registered with DEA.
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\1\ 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 a practitioner's registration.
Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (``The Attorney General
can register a physician to dispense controlled substances `if the
applicant is authorized to dispense . . . controlled substances under
the laws of the State in which he practices.' . . . The very definition
of a `practitioner' eligible to prescribe includes physicians
`licensed, registered, or otherwise permitted, by the United States or
the jurisdiction in which he practices' to dispense controlled
substances. Sec. 802(21).''). The Agency has applied these principles
consistently. See, e.g., James L. Hooper, M.D., 76 FR 71371, 71,372
(2011), pet. for rev. denied, 481 F. App'x 826 (4th Cir. 2012);
Frederick Marsh Blanton, M.D., 43 FR 27616, 27617 (1978).\2\
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\2\ 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, M.D., 76 FR 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, M.D., 43 FR 27617.
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According to Texas statute, ``dispense'' means ``the delivery of a
controlled substance in the course of professional practice or
research, by a practitioner or person acting under the lawful order of
a practitioner, to an ultimate user or research subject. The term
includes the prescribing, administering, packaging, labeling, or
compounding necessary to prepare the substance for delivery.'' Tex.
Health & Safety Code Ann. section 481.002(12) (2024). Further, a
``practitioner'' includes ``a physician, dentist, veterinarian . . . or
other person licensed, registered, or otherwise permitted to
distribute, dispense, analyze, conduct research with respect to, or
administer a controlled substance in the course of professional
practice or research in this state.'' Id. section 481.002(39)(A).
Here, the undisputed evidence in the record is that Registrant
lacks authority to practice as a veterinarian in Texas. As discussed
above, an individual must be a licensed practitioner to dispense a
controlled substance in Texas. Thus, because Registrant lacks authority
to practice as a veterinarian in Texas and, therefore, is not
authorized to handle controlled substances in Texas, 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.
FS5936919, issued to Linwood A. Starks, D.V.M. 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 Linwood A. Starks, D.V.M., to
renew or modify this registration, as well as any other pending
application of Linwood A. Starks, D.V.M., for additional registration
in Texas. This Order is effective April 21, 2025.
Signing Authority
This document of the Drug Enforcement Administration was signed
[[Page 13198]]
on March 13, 2025, by Acting Administrator Derek Maltz. 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. 2025-04746 Filed 3-19-25; 8:45 am]
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