[Federal Register: September 1, 2006 (Volume 71, Number 170)]
[Notices]
[Page 52165-52166]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se06-73]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Sato Pharmaceutical, Inc.; Denial of Application
On August 5, 2005, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
Show Cause to Sato Pharmaceutical, Inc., (Respondent) of Torrance,
California. The Show Cause Order proposed to deny Respondent's pending
application for registration as a non-retail distributor of List I
chemicals on the ground that Respondent's registration would be
inconsistent with the public interest. See 21 U.S.C. 823(h); Show Cause
Order at 1.
The Show Cause Order specifically alleged that Respondent sells
dietary supplements and Asian healthcare products to convenience stores
and small markets. See Show Cause Order at 2. The Show Cause Order
alleged that Respondent had been illegally importing from Taiwan and
Japan pseudoephedrine 60 mg. products that were sold under the
``Stona'' brand. See id. The Show Cause Order further alleged that
Respondent had been engaged in this activity for over ten years. See
id. Finally, the Show Cause order alleged that Respondent had sold
these products to distributors who also lacked a DEA registration. See
id. The Show Cause Order further advised Respondent of its right to a
hearing. Id.
The Show Cause Order was served by certified mail. Respondent,
through its counsel, initially requested a hearing; the matter was
assigned to Administrative Law Judge (ALJ) Mary Ellen Bittner. Several
days later, however, Respondent withdrew its request for a hearing and
the ALJ terminated the proceeding. Thereafter, the investigative file
was forwarded to me for final agency action. Because Respondent has
expressly waived its right to a hearing, I hereby enter this final
order based on relevant material in the investigative file and make the
following findings.
Findings
Pseudoephedrine is a List I chemical that has a lawful therapeutic
use. It is, however, easily extracted from over-the-counter products
and used in the illicit manufacture of methamphetamine, a schedule II
controlled substance. See 21 U.S.C. 802(34); 21 CFR 1308.12(d). As
noted in numerous prior DEA orders, ``methamphetamine is an extremely
potent central nervous system stimulant.'' David M. Starr, 71 FR 39637
(2006). Methamphetamine abuse has destroyed lives and families, ravaged
communities, and created serious environmental harms.
Respondent is a United States subsidiary of a Japanese
pharmaceutical company. Respondent, which is located in Torrance,
California, sells a variety of products including over-the-counter
medicines and dietary supplements. Among these products were ``Stona''
brand pseudoephedrine pills and liquid cold remedies that were made in
Japan and Taiwan.
In March 2004, DEA was advised by a regulatory consultant to
Respondent's U.S. subsidiary that the company had been importing and
distributing several Stona brand pseudoephedrine products without the
registrations required under the Controlled Substances Act. See 21
U.S.C. 823(h); id. 957(a) & 958(c)(2). At a meeting, the consultant
further told several DEA Diversion Investigators (DIs) that Respondent
had been importing and distributing products containing pseudoephedrine
and phenylpropanolamine (PPA) for at least 10 years but that Respondent
had stopped importing PPA products. According to the consultant,
Respondent was never registered to either import or distribute List I
chemicals because neither he (the consultant) nor the company knew that
registration was required.
The investigation also determined that Respondent had sold
pseudoephedrine products to other distributors who were not registered.
Moreover, the investigative file states that Respondent failed to file
form DEA-486, Import/Export Declaration, for its importations of the
pseudoephedrine. See 21 CFR 1313.12(a).
Respondent also advised DEA that it had a sizeable inventory of
pseudoephedrine products at its Torrance, California facility.\1\
Respondent informed DEA that it had ``quarantined'' the inventory; it
also requested authorization to export the products back to its
facilities in Japan and Taiwan.
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\1\The inventory included approximately 6992 bottles (120 ml.)
of Stona cough syrup, 3915 packages of 24 Stona tablets, 2943
packages of 24 Stona caplets, and 720 packages of 24 Stona S
caplets.
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On August 9, 2004, DEA approved a one time distribution by
Respondent to Leiner Health Products, a DEA registered exporter, for
the purpose of returning the products. On or about August 27, 2004, the
shipment occurred.
Thereafter, on September 29, 2004, Respondent applied for a DEA
registration to distribute pseudoephedrine. On February 23, 2005, DEA
conducted a pre-registration investigation at Respondent's Torrance
facility. Respondent's officials told the DIs that it was seeking
registration to distribute the remaining portion of the product that it
had previously returned to Taiwan and which it had not been able to
sell. In particular, Respondent sought authorization to import a one-
time shipment of 7,000 bottles containing 24 tablets of 30 mg.
pseudoephedrine from its Taiwan facility. Respondent's officials
further told the DIs that it was no longer manufacturing
pseudoephedrine products.
The DIs determined that Respondent had in place adequate procedures
for identifying and verifying customers, recordkeeping and reporting,
and for the handling and delivery of the products. The DIs also
determined that Respondent would provide adequate security for the
products.
The DIs also conducted verifications of Respondent's customers.
Respondent's customers are a combination of small groceries,
pharmacies, and medical providers that primarily serve Asian-American
communities. Eighty percent of Respondent's customers are located in
Southern California. The DIs also ran criminal background checks on
Respondent's officers and found no derogatory information. The DIs
further determined that with the exception of the conduct described
above, Respondent was in compliance with applicable laws and had
obtained a California permit for chemical precursors.
Discussion
Under 21 U.S.C. 823(h), an applicant to distribute List I chemicals
is entitled to be registered unless the registration would be
``inconsistent with the public interest.'' In making this
determination, Congress directed that I consider the following factors:
(1) Maintenance by the applicant of effective controls against
diversion of listed chemicals into other than legitimate channels;
(2) Compliance by the applicant with applicable Federal, State,
and local law;
[[Page 52166]]
(3) Any prior conviction record of the applicant under Federal
or State laws relating to controlled substances or to chemicals
controlled under Federal or State law;
(4) Any past experience of the applicant in the manufacture and
distribution of chemicals; and
(5) Such other factors as are relevant to and consistent with
the public health and safety.
Id. ``These factors are considered in the disjunctive.'' Joy's Ideas,
70 FR 33195, 33197 (2005). I may rely on any one or a combination of
factors, and may give each factor the weight I deem appropriate in
determining whether an application for registration should be denied.
See, e.g., David M. Starr, 71 FR 39367 (2006); Energy Outlet, 64 FR
14269 (1999).
I acknowledge that Respondent maintains effective controls against
diversion. I also recognize that there is no evidence that Respondent,
or any of its officers, has been convicted of a criminal offense under
Federal or State laws related to controlled substances or chemicals.
Applying factor two, however, I conclude that Respondent's application
must be denied because of its lengthy non-compliance with the
registration requirements. See 21 U.S.C. 823(h)(2).
The investigative file establishes that Respondent imported and
distributed List I chemical products containing both pseudoephedrine
and PPA for a period lasting over ten years. In the Methamphetamine
Control Act of 1996, Pub. L. 104-237, Sec. 401, 110 Stat. 3099, 3106-
07-3113, Congress removed an ``exemption from regulation as List I
chemicals which had applied to pseudoephedrine'' and PPA.
Implementation of the Comprehensive Methamphetamine Control Act of
1996, 67 FR 14853 (2002). ``This action [made] persons who distribute
the products subject to the registration requirement,'' and also
rendered ``importations'' of the products ``subject to the existing
chemical controls relating to regulated transactions'' except for in
certain limited circumstances. Id.
In the notice of proposed rulemaking implementing the Act, DEA
clearly explained that ``importers, exporters, and distributors (other
than retail distributors) of pseudoephedrine and [PPA] drug products
(including ordinary over-the-counter pseudoephedrine and [PPA]
products) became subject to the registration requirement of the [Act]
on October 3, 1997.'' Implementation of the Comprehensive
Methamphetamine Control Act of 1996, 62 FR 52294, 52298 (proposed Oct.
7, 1997). DEA further explained that ``[a]ny person who engages in such
activities and is not subject to an existing or proposed exemption from
the registration requirement should submit an application for
registration at the earliest possible time, to ensure that they may
continue to distribute these products pending issuance of their
registration.'' Id. Finally, DEA stated that it was ``providing a
temporary exemption from the registration requirement for persons who
submit[ted] their applications on or before December 3, 1997.'' Id.
In accordance with the Comprehensive Methamphetamine Act, and DEA's
interpretation of it, Respondent was required to submit an application
for the necessary registrations no later than December 3, 1997. Thus,
at the time Respondent finally notified DEA of its non-compliance, it
had been unlawfully importing and distributing pseudoephedrine (and
possibly PPA) for more than six years. See 21 U.S.C. 843(a) (9) and
957(a).\2\
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\2\ It also appears that Respondent failed to file DEA Form 486s
to report its imports of pseudoephedrine. See 21 CFR 1313.12.
However, the investigative file does not contain any documents such
as bills of lading establishing that Respondent exceeded the one
kilogram threshold which triggers the reporting obligation with
respect to any particular importation. See id. 1310.04. Accordingly,
I base this final order only on Respondent's failure to register.
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I do not find persuasive Respondent's explanation that it was
unaware that pseudoephedrine had been regulated as a list I chemical.
While I appreciate that Respondent voluntarily disclosed its misconduct
to DEA and ceased all distribution of its pseudoephedrine products, the
duration and scope of Respondent's misconduct cannot be overlooked.
Registration is one of the essential features of the CSA; Respondent's
failure to register to import and distribute List I chemicals simply
cannot be characterized as a technical violation of the Act.
It is well settled that ``ignorance of the law or a mistake of law
is no defense.'' Cheek v. United States, 498 U.S. 192, 199 (1991).
Moreover, the principle ``applies whether the law be a statute or a
duly promulgated and published regulation.'' United States v.
International Minerals & Chemical Corp., 402 U.S. 558, 563 (1971).
Respondent's ignorance of Federal law and regulations is especially
troubling because it engages in the highly regulated industry of
manufacturing, importing and distributing pharmaceuticals. There is
simply no excuse for Respondent's failure to be on top of changes in
Federal law and regulations that affect its business.
I therefore conclude that Respondent's lengthy failure of non-
compliance with the registration requirements demonstrates that
granting its application would be inconsistent with the public
interest. Furthermore, because of the seriousness and duration of these
violations, I deem them dispositive of the ultimate issue and need not
make findings on the remaining factors. See Hoxie v. DEA, 419 F.3d 477,
482 (2005); Morall v. DEA, 412 F.3d 165, 173 (2005).
Order
Accordingly, pursuant to the authority vested in me by 21 U.S.C.
Sec. 823(h), and 28 CFR 0.100(b) & 0.104, I hereby order that the
previously submitted application of Sato Pharmaceutical, Inc., for a
DEA Certificate of Registration as a distributor of List I chemicals
be, and it hereby is, denied. This order is effective October 2, 2006.
Dated: August 22, 2006.
Michele M. Leonhart,
Deputy Administrator. 1
[FR Doc. E6-14522 Filed 8-31-06; 8:45 am]
BILLING CODE 4410-09-P