[Federal Register Volume 83, Number 55 (Wednesday, March 21, 2018)]
[Notices]
[Pages 12406-12407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05746]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Keith F. Ostrosky, D.D.S.; Dismissal of Proceeding
On August 30, 2017, the Acting Assistant Administrator, Diversion
Control Division, Drug Enforcement Administration, issued an Order to
Show Cause to Keith F. Ostrosky, D.D.S., of South St. Paul, Minnesota
(hereinafter, Registrant).\1\ GX 2. The Show Cause Order proposed the
revocation of Registrant's Certificate of Registration on the ground
that he does not ``have . . . state authority to handle controlled
substances.'' Id. at 1.
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\1\ While for reasons explained in this Decision, Registrant is
now an Ex-Registrant, I refer to him as Registrant throughout this
Decision.
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As to the jurisdictional basis of the proceeding, the Show Cause
Order alleged that Registrant is registered as a practitioner in
schedules II through V under Certificate of Registration No. BO1259983,
at the registered location of 351 15th Ave. N., South St. Paul,
Minnesota. The Order further alleged that this Registration was due to
expire on December 31, 2017. Id.
As to the substantive basis for the proceeding, the Show Cause
Order alleged that ``[o]n February 3, 2017, the Minnesota Board of
Dentistry issued a Stipulation and Order,'' pursuant to which the Board
accepted Registrant's voluntary surrender of his license to practice
dentistry in the State of Minnesota. Id. The Show Cause Order thus
alleged that Registrant is ``currently without authority to practice
dentistry or handle controlled substances in the State of Minnesota,
the [S]tate in which [he is] registered with the DEA,'' and that as a
consequence, his registration is subject to revocation. Id. at 1-2.
The Show Cause Order notified Registrant of his right to request a
hearing on the allegations or to submit a written statement of position
while waiving his right to a hearing, the procedure for electing either
option, and the consequence of failing to elect either option. Id. at
2. The Show Cause Order also notified Registrant of his right to submit
a Corrective Action Plan pursuant to 21 U.S.C. Sec. 824(c)(2)(C). Id.
at 2-3.
On September 9, 2017, the Government accomplished service of the
Show Cause Order by certified mail, as evidenced by the signed Return
Receipt Card. GX 4. On November 7, 2017, the Government submitted a
Request for Final Agency Action (RFAA). Therein, the Government
represents that Registrant did not
[[Page 12407]]
request a hearing and ``has not otherwise corresponded or communicated
with [the Agency] regarding the Order . . . including the filing of any
written statement in lieu of a hearing.'' RFAA, at 1-2. Based on the
Government's representation I find that more than 30 days have now
passed since Registrant was served with the Show Cause Order and that
he has not requested a hearing or filed a written statement of
position; I further find that Registrant has not filed a Corrective
Action Plan. Accordingly, I find that Registrant has waived his right
to a hearing or to submit a written statement while waiving his right
to a hearing; I also find that Registrant has waived his right to
submit a Corrective Action Plan. 21 CFR 1301.43(d).
In the RFAA, the Government seeks a final order revoking
Registrant's registration. As support for the proposed sanction, the
Government's evidence includes a copy of the Stipulation and Order
issued by the Minnesota Board on February 3, 2017, pursuant to which it
accepted Registrant's voluntary surrender of his dental license. GX 3.
The Government also submitted a Certification of Registration
History, which was sworn to on October 30, 2017. GX 1. Therein, the
Associate Chief of the Registration and Program Support Section states
that Registration No. BO1259983 ``expires on December 31, 2017,'' and
that ``Keith F. Ostrosky, D.D.S., has no other pending or valid DEA
registration(s) in Minnesota.'' Id. at 1-2.
Pursuant to 5 U.S.C. Sec. 556(e), I take official notice of
Registrant's registration record with Agency. According to that record,
Registration No. BO1259983 expired on December 31, 2017 and Registrant
has not filed an application, whether timely or not, to renew his
registration or for any other registration in the State of Minnesota.
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 Minnesota,
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 hereby order that the Order to Show Cause issued
to Keith F. Ostrosky, D.D.S., be, and it hereby is, dismissed. This
Order is effective immediately.
Dated: March 13, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-05746 Filed 3-20-18; 8:45 am]
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