[Federal Register: December 11, 2002 (Volume 67, Number 238)]
[Notices]
[Page 76193-76195]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de02-55]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
K-Nine Detectives; Denial of Application
On July 16, 2001, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to K-Nine Detectives (Respondent), proposing to
deny its application, executed on February 14, 2000, for DEA
Certificate of Registration as a researcher. The application was
submitted on behalf the Respondent by its owner, Shane Kessler (Mr.
Kessler). The Order to Show Cause alleged that granting the
Respondent's application would be inconsistent with the public interest
as that term is used in 21 U.S.C 823(f).
The Order to Show Cause was delivered by certified mail on July 23,
2001, and the Respondent timely requested a hearing. However, after the
matter was docketed before Administrative Law Judge Mary Ellen Bittner,
and the Government submitted its prehearing statement, the Respondent
withdrew its request for hearing. Accordingly, Judge Bittner terminated
all proceedings before her and the matter was subsequently transmitted
to the Deputy Administrator for Final Agency Decision.
In light of the withdrawal of its request for hearing, the Deputy
Administrator finds that the Respondent has waived its hearing right.
After considering material from the investigative file in this matter,
the Deputy Administrator now enters his final order without a hearing
pursuant to 21 CFR 1301.43(d) and (e) and 1301.46.
The Deputy Administrator finds that Mr. Kessler submitted a DEA
registration application seeking to register K-Nine Detectives at his
home address in Tigard, Oregon. The Respondent sought authorization to
handle controlled substances in Schedules I through V as a researcher.
Included among the Schedule I controlled substances the Respondent
sought to handle were heroin and marijuana. The Respondent also
requested authorization to handle Schedule II controlled substances,
cocaine, opium, powdered opium and methamphetamine.
Upon submission of Respondent's application, Mr. Kessler informed
the DEA field office in Portland, Oregon that he planned to hire
himself and his dogs to perform drug searches as schools, factories,
and other private premises. DEA learned that Mr. Kessler had no
previous experience with training dogs for purposes of drug detection.
In light of his lack of experience in drug-detection, a DEA
diversion investigator urged Mr. Kessler to contact local law
enforcement authorities to discuss his planned business activities. The
investigator also requested that Mr. Kessler determine whether there
was a need for such services in his community as well as in other parts
of Oregon. DEA subsequently learned from the Tigard Chief of Police and
the Sheriff of Washington County (of which the city of Tigard is a
part) that both sought to dissuade Mr. Kessler from his planned
business venture because there was adequate coverage by law enforcement
canine drug teams in the area.
Mr. Kessler also submitted with his registration application the
first of three research protocols. In the original protocol, Mr.
Kessler reported that he would have on hand up to five lbs. each of
heroin, marijuana, cocaine, opium, methamphetamine, and crack cocaine.
In a subsequent revised protocol sent to DEA, Mr. Kessler then reduced
the drug quantities to \1/2\ lb. of marijuana and \1/4\ lb. of the
remaining substances. In the third protocol, Mr. Kessler again revised
the quantities of controlled substances that he would have on hand. On
all three protocols, Mr. Kessler stated that his canines would search
for drugs and explosives, even though he previously reported that his
dogs were trained to detect only drugs and not explosives. In addition,
while the Respondent's DEA registration application sought
authorization to handle controlled substances in Schedule I through V,
the research protocols provided by the Respondent only made mention of
drugs in Schedules I and II.
DEA obtained additional information from the Washington County
Sheriff's Department and the Drugs and Vice Division of the Portland
Police Bureau (which both handle drug-detecting dogs) regarding the
need for certifications for drug detecting dogs. DEA was informed that
for purposes of court testimony, the handler of a drug-detecting dog
would have to show that the dog had passed, at minimum, an annual
certification. However, the Oregon Police Canine Association, the
primary certifying organization for drug-detecting dogs, does not
provide certifications for non-law enforcement dog handlers. The Deputy
Administrator finds that the Respondent is not affiliated with any law
enforcement entities.
During a regulatory inspection of its proposed registered location
on April 24, 2001, DEA learned that the
[[Page 76194]]
Respondent does not have any customers for which it will perform
searches with dogs. Mr. Kessler also stated that he had not spoken to
any business owners about hiring his company to perform drug-detection
services. However, he informed DEA investigations that he had spoken to
the principal and vice-principal of Century High School in Hillsboro,
Oregon about hiring his company to perform drug searches of lockers and
the school's personnel seemed receptive to the proposal. Mr. Kessler
further informed DEA investigators that he had also approached the
vice-principals of Tigard and Beaverton High School about performing
drug detection services at their institutions.
Despite Mr. Kessler's representations, DEA investigators
subsequently learned from the principal of Century High that the
governing board for the entire Hillsboro school district decided
against general searches through any of the district's schools through
the use of a drug-detecting dog. The principal stated that if
circumstances warranted a search, they would utilize the services of
drug dogs trained by the Washington County Sheriff's Department. The
principal added that this arrangement would not cost the school any
additional funds. DEA investigators also learned that Mr. Kessler had
never approached the vice-principal of Century High School regarding
the use of drug searching dogs.
The Deputy Administrator finds that a DEA investigator also
contacted officials from Tigard and Beaverton High Schools. Both
schools reported that they had not been approached by Mr. Kessler
regarding the use of drug detection dogs. In addition, both
institutions had contingency plans in place for drug detection that
relied upon the services of city and county law enforcement
authorities.
The Deputy Administrator also finds that a DEA investigator
consulted with several law enforcement officers with experience in
conducting drug searches with canines. One of the persons interviewed
was a detective for the Gresham (Oregon) Police Department who was also
a Task Force Officer (TFO) for DEA's Airport Task Force and a former
President and ``Master Trainer'' of the Oregon Police Canine
Association. Upon his review of the quantities of controlled substances
the Respondent proposed for use in training, the officer found that
there was no rationale for possessing more than 50 grams total of any
drug for on-going dog training purposes. The officer concluded that the
quantities outlined in the Respondent's Research Protocols far exceeded
those required to conduct drug-detection training with canines.
The Deputy Administrator also finds that DEA investigators
interviewed individuals from the private sector involved in dog
training for drug-detection purposes. The general response from those
entities was that there is no demand in the private sector for drug-
detection services involving schools and businesses.
The Deputy Administrator also finds that DEA investigators also
consulted with the Chief Deputy of the Washington County Sheriff's
Office regarding the Respondent's proposed registration with DEA. The
Chief Deputy expressed concerns about Respondent's plan to possess
controlled substances and conduct training at specified locations such
as schools and businesses. Among his concerns was that the Respondent's
registered location would be within a few hundred yards of a middle
school. The Chief Deputy expressed further concern that introduction of
controlled substances in close proximity to a school would pose a
health and safety threat to schoolchildren. Finally, the Washington
County Sheriff's Office further informed DEA of information received
that the District Attorney of Washington County would not prosecute any
case where controlled substances had been seized as a result of a
search conducted by the Respondent.
Pursuant to 21 U.S.C. 823(f), the Deputy Administrator may deny an
application for a DEA Certificate of Registration if he determines that
granting the registration would be inconsistent with the public
interest. Section 823(f) requires that the following factors be
considered in determining the public interest:
(1) The recommendation of the appropriate state licensing board or
professional disciplinary authority.
(2) The applicant's experience in dispensing, or conducting
research with respect to controlled substances.
(3) The applicant's conviction record under federal or state laws
relating to the manufacture, distribution, or dispensing of controlled
substances.
(4) Compliance with applicable state, federal, or local laws
relating to controlled substances.
(5) Such other conduct which may threaten the public health or
safety.
These factors are to considered in the disjunctive; the Deputy
Administrator may rely on any one or a combination of factors and may
give each factor the weight he deems appropriate in determining whether
a registration should be revoked or an application for registration
denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16422 (1989).
It is clear that granting the Respondent's application for DEA
Certificate of Registration would be inconsistent with the public
interest. The Respondent has requested authorization to handle
controlled substances in Schedules I through V although its research
protocols only reference drugs in Schedules I and II. The Deputy
Administrator finds that the drugs outlined in the protocols are in
quantities far in excess of what is required to conduct research
involving canines.
The Deputy Administrator finds that the Respondent seeks to engage
in an activity that is not needed in the area in which it seeks
registration. The Deputy Administrator also finds that the Washington
County Sheriff's Department, the Drugs and Vice Division of the
Portland Police Bureau, and other local law enforcement entities have
narcotics detection canines of sufficient numbers to service the needs
of the law enforcement community, businesses and private citizens. DEA
has previously found such factor relevant in denying an application for
registration as a researcher. See, e.g., Albanoski, Broughton &
Associates International, 57 FR 4646 (1992); K-9 Drug Detection
Services of Florida, Inc., 56 FR 5238 (1991).
DEA has also found that grounds exist to deny an application for
registration as a researcher where, as in this matter, the applicant
lacks relevant experience in training canines for drug detection
purposes. Angelos Michalatos d/b/a/ Contraband Searches and
Investigation, 54 FR 48161 (1989).
No evidence has been submitted on behalf of the applicant.
Therefore, the Deputy Administrator concludes that the Respondent has
failed to demonstrate a need for, or the ability to perform, the
activity for which it sought registration to handle controlled
substances. Based on the above, the Deputy Administrator concludes that
the Respondent's registration would be inconsistent with the public
interest and therefore, its application for registration must be
denied.
Accordingly, the deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823 and 28 CFR 0.100(b), hereby orders that the application for DEA
Certificate of Registration as a researcher submitted by Shane Kessler
on behalf of K-Nine Detectives be, and it hereby is, denied. This order
is effective January 10, 2003.
[[Page 76195]]
Dated: November 20, 2002.
John B. Brown, III,
Deputy Administrator.
[FR Doc. 02-31209 Filed 12-10-02; 8:45 am]
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