[Federal Register: April 26, 2004 (Volume 69, Number 80)]
[Notices]
[Page 22564-22565]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap04-111]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Timothy Norray; Denial of Application
On June 4, 2003, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA), issued an
Order to Show Cause to Timothy Scott Norray (Mr. Norray), proposing to
deny his application for DEA Certificate of Registration as a
researcher. The Order to Show Cause alleged that granting Mr. Norray's
application would be inconsistent with the public interest as that term
is used in 21 U.S.C. 823(f). The show cause order also notified Mr.
Norray that should no request for a hearing be filed within 30 days,
his hearing right would be deemed waived.
The Order to Show Cause was sent by certified mail to Mr. Norray at
his address of record and DEA received a signed receipt indicating that
it was received by him on June 11, 2003. DEA has not received a request
for hearing or any other reply from Mr. Norray or anyone purporting to
represent him in this matter.
Therefore, the Acting Deputy Administrator, finding that (1) 30
days have passed since the receipt of the Order to Show Cause, and (2)
no request for a hearing having been received, concludes that Mr.
Norray is deemed to have waived his hearing right. After considering
material from the investigative file in this matter, the Acting Deputy
Administrator now enters her final order without a hearing pursuant to
21 C.F.R. 1301.43(d) and (e) and 1301.46
The Acting Deputy Administrator finds that Mr. Norray submitted a
DEA registration application dated December 30, 2001, seeking
authorization to handle controlled substances in Schedules I through V
as a researcher. Mr. Norray proposed as his registered location an
address in Berne, New York. He requested registration for the following
Schedules I and II controlled substances: heroin, marijuana, mescaline,
peyote, cocaine, methadone and methamphetamine. Mr. Norray attached to
his application, a protocol which stated in part, that he ``will train
and handle Labrador Retrievers to detect narcotics in schools and
businesses throughout the New York area. . . with the goal of providing
a pro-active program to reduce or eliminate drugs from our school or
workplace.''
On October 16, 2002, a DEA Diversion Investigator spoke with Mr.
Norray by telephone regarding his intended use of a registration with
DEA. Mr. Norray outlined his desire to establish a bomb and drug
detection business using trained dogs. Mr. Norray stated that he
already possessed a dog trained to detect explosives which he had
purchased from a North Carolina dog trainer. He further stated that he
had completed a course in North Carolina related to handling a bomb
detection dog.
Mr. Norray also informed DEA that he had been investigated by the
New York State Department of Health, Bureau of Controlled Substances
(NYBCS) and had received a controlled substance license from that state
agency under the researcher category. Mr. Norray further stated that he
had obtained the required safe to store drugs, which was bolted to the
floor as advised by a local state investigator.
On October 16, 2002, DEA personnel interviewed a researcher
registered with the agency who stated that he trained and sold
explosive and drug detection canines. The researcher further explained
that he had was responsible for certifying Mr. Norray on a course
involving work with dogs trained to detect explosives. The researcher
added however, that Mr. Norray was not a dog trainer but had only
learned to handle a trained dog.
A review of the investigative file reveals further that on October
17, 2002, DEA personnel spoke with an investigator for the NYBCS. That
individual stated that his investigation of Mr. Norray consisted
primarily of a criminal background check and a visit to the latter's
residence. The NYBCS investigator further stated that in the absence of
a criminal record for an applicant or indications of ongoing criminal
activity at the proposed licensed location, it was automatic that a
controlled substance license would be issued. The NYBCS investigator
opined that the state criteria for the licensure of researchers were
not stringent. DEA later confirmed that Mr. Norray had obtained state
researcher licenses which authorized him to handle controlled
substances in Schedules I through V.
On November 5, 2002, DEA personnel spoke with a sergeant from the
office of the New York State Police in Albany. The officer informed DEA
that he has trained over 250 dogs over the preceding nineteen years,
and was at the time of DEA's investigation the officer in charge of the
New York State Police K-9 Program (the K-9 Program) located in
Cooperstown, New York. The DEA investigative report references a state
of the art training facility operated by the K-9 Program, and how that
unit is responsible for training explosive and drug detection canines.
The sergeant also informed DEA that the New York State Police have
a certification course for police departments who purchase detection
dogs from private kennels. The certification is restricted to law
enforcement agencies. The sergeant also stated that he was aware of Mr.
Norray based on the latter's request to attend the New York State
Police certification course. The sergeant further stated that Mr.
Norray's request for certification in the area of canine detection was
denied because Mr. Norray was not affiliated with law enforcement.
On November 5, 2002, a DEA Diversion Investigator along with an
officer from the New York State Police met with Mr. Norray at the
latter's home in furtherance of DEA's pre-registration investigation.
Mr. Norray showed the
[[Page 22565]]
officers his proposed storage area for controlled substances which was
Mr. Norray's garage. The garage, a detached wooden structure, was not
alarmed, nor was Mr. Norray's residence. DEA also found inside the
garage, a metal cabinet and a safe, both bolted to the floor of the
garage with concrete anchors and bolts. There was no alarm system for
the safe.
Mr. Norray informed the officers that he has no law enforcement
experience, and at the time of DEA's inspection he worked at a local
plant of the General Electric Corporation in an unspecified capacity in
the shipping and receiving department. Mr. Norray further divulged that
while he has never been employed as a dog trainer and has no actual
experience training dogs, he nevertheless planned to acquire a puppy
and train the dog himself for the purpose of detecting illegal drugs.
Mr. Norray also discussed his planned approach for training dogs
with controlled substances. Mr. Norray stated that he beleived that
dogs trained with actual (i.e., controlled) drugs were more effective
than dogs trained exclusively with pseudo (simulated) drugs. Mr. Norray
was then informed by the state officer that the state police trained
detection canines with pseudo drugs because there was no danger of the
animal ingesting the actual drug, especially during the initial stages
of training. The officer added that dogs trained with pseudo drugs were
able to find real drugs after the introduction of genuine drugs later
in the training. When asked why he still wanted the DEA Registration if
a dog could be effectively trained with pseudo drugs, Mr. Norray
replied that it would be better if a detection business could claim to
be licensed by the DEA.'' Mr. Norray further informed law enforcement
personnel that he had no prospective customers for his drug detection
service, and as of the date of DEA's interview, Mr. Norray had not had
a paying customer for the explosive detection business.
Pursuant to 21 U.S.C. 823(f), the Acting Deputy Administrator may
deny an application for a DEA Certificate of Registration if she
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 Acting
Deputy Administrator may rely on any one or a combination of factors
and may give each factor the weight she 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 16,422
(1989).
It is clear that granting Mr. Norray's application for DEA
Certificate of Registration would be inconsistent with the public
interest. Mr. Norray has requested authorization to handle controlled
substances in Schedules I through V although his registration
application only reference drugs in Schedules I and II. The Acting
Deputy Administrator finds that Mr. Norray's request to handle
additional controlled substances beyond those set forth in his
registration application are arguably in excess of what is required to
conduct research involving canines.
The Acting Deputy Administrator also finds that Mr. Norray seeks to
engage in an activity that is not needed in the area where he seeks
registration. The investigative file reveals that Mr. Norray's place of
business is located in the vicinity of both the New York State Police
headquarters in Albany, as well as the canine kennels in Cooperstown,
New York. The investigative file reveals further that the New York
State Police provide canine detection services and have narcotics
detection canines of sufficient numbers to service the needs of the law
enforcement community, businesses and private citizens. DEA has
previously found that anticipated duplication or unnecessarily
performed services are relevant factors in determining whether or not
an application for registration as a researcher should be denied. See,
e.g., K-Nine Detectives, 67 FR 76193 (2002); Albanoski, Broughton &
Associates International, 57 FR 4646 (1992); K-9 Drug Detection
Services of Florida, Inc., 56 FR 5238 (1991).
DEA's investigation also revealed that Mr. Norray intends to train
his drug detection dog entirely by himself. He is not recognized as a
dog trainer in new York, and there is no information that he has ever
worked or apprenticed at any organization that trains dogs such as the
military, law enforcement or even pet obedience school. DEA has 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 Investigations, 54 FR 48161
(1989).
The Acting Deputy Administrator is also concerned with the apparent
lack of security at the location where Mr. Norray proposes to store
controlled substances. DEA's investigation revealed that Mr. Norray
plans to store controlled substances in a wooden structured garage
which is detached from the main residence, and without alarms to secure
the doors, windows, or the bolted safe.
Finally, DEA's investigation revealed that the New York State
Police has effectively trained drug detection dogs through the use of
non-controlled substances, and Mr. Norray has no potential customers
for the services he offers. Mr. Norray's statement to law enforcement
personnel that a DEA registration would help further his business goals
further supports the denial of his pending application.
In reviewing the instant request for DEA registration, and in light
of Mr. Norray's failure to request a hearing, the Acting Deputy
Administrator has only the benefit of the DEA investigative file in
making a determination. No evidence has been submitted on behalf of the
applicant. Therefore, the Acting Deputy Administrator concludes that
Mr. Norray has failed to demonstrate a need for, or the ability to
perform, the activity for which he seeks a registration to handle
controlled substances. Based on the above, the Acting Deputy
Administrator concludes that Mr. Norray's registration would be
inconsistent with the public interest and therefore, his application
for registration must be denied.
Accordingly, the Acting Deputy Administrator of the Drug
Enforcement Administration, pursuant to the authority vested in her 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
Timothy Norray be, and it hereby is, denied. This order is effective
May 26, 2004.
Dated: March 29, 2004.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 04-9335 Filed 4-23-04; 8:45 am]
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