[Federal Register Volume 76, Number 69 (Monday, April 11, 2011)]
[Notices]
[Page 20034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-8541]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No. 10-28]
Louisiana All Snax, Inc.; Dismissal of Proceeding
On January 21, 2010, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order To
Show Cause to Louisiana All Snax, Inc. (Respondent), of Baton Rouge,
Louisiana. The Show Cause Order proposed the revocation of Respondent
DEA's Certificate of Registration, which authorized it to distribute
the list I chemicals ephedrine and pseudoephedrine, on the ground that,
effective August 15, 2009, the State of Louisiana made both chemicals
Schedule V controlled substances; that those persons who distribute
these substances ``must possess a license issued by the Louisiana Board
of Pharmacy''; that Respondent ``does not possess'' the necessary
license; and that DEA must therefore revoke its registration. Show
Cause Order at 1 (citing 21 U.S.C. 824(a)(3), La. Rev. Stat. Ann.
Sec. Sec. 40:973 & 40:1049.1).
On February 18, 2010, Respondent requested a hearing on the
allegations. In his letter, Respondent's owner stated that it had
``stopped distributing ephedrine products prior to August 15, 2009 and
do[es] not plan to distribute any as long as Act 314 * * * is in
effect. My registration certificate will expire in March 2010 and we do
not plan to renew it because we can not distribute legally.'' Letter of
Robert Howerter to Hearing Clerk (Jan. 28, 2010). Mr. Howerter further
wrote: ``We do not understand why the DEA is revoking a certificate we
can not use and will expire in a little over a month especially since
we do not plan to renew it.'' Id. ``As a token of [his] good faith,''
Mr. Howerter ``attached [his] certificate to [his] letter.'' Id.
The matter was then placed on the docket of the DEA Office of
Administrative Law Judges (ALJs), and on February 22, 2010, the ALJ
ordered the Government to determine whether Respondent had filed a
timely renewal application and to provide evidence supporting its
allegation that Respondent lacked the requisite State authority. Order
Directing the Government To Provide Proof That Respondent Lacks State
Authority To Handle Controlled Substances and Briefing Schedule, at 1.
Two days later, the Government moved for summary disposition or to
dismiss on the grounds of mootness. Therein, the Government noted that
it had determined that Respondent's registration ``expires on March 31,
2010'' and that, ``[a]s of the date of this filing, Respondent has not
filed an application for renewal of its registration, and in its
request for a hearing Respondent admitted that it does not plan to
renew its DEA registration.'' Motion for Summ. Disp., at 2. While the
Government also provided a copy of a letter from the Louisiana Board of
Pharmacy to a Diversion Investigator stating that Respondent does not
hold a Louisiana Controlled Dangerous Substances License and argued
that ``DEA must therefore revoke Respondent's DEA registration,'' the
Government also observed that ``[d]ismissal of this matter will also be
appropriate * * * after March 31, 2010, on grounds of mootness, if
Respondent does not apply for renewal of its registration.'' Id. at 3-
4.
Respondent did not file a response to the Government's motion. ALJ
Dec. at 2. On March 8, 2010, the ALJ granted the Government's motion
for summary disposition based on Respondent's lack of authority under
State law to handle listed chemicals. Id. at 5-6. However, the ALJ also
noted that under Agency precedent, ```[i]f a registrant has not
submitted a timely renewal application prior to the expiration date,
then the registration expires and there is nothing to revoke.' '' Id.
at 2 (quoting David L. Wood, M.D., 72 FR 54936, 54937 (2007) (quoting
Ronald J. Riegel, D.V.M., 63 FR 67132, 67133 (1998))). Noting that the
Agency's regulation imposes a 25-day period to allow the parties to
file exceptions prior to the ALJ's forwarding of the record to my
Office for final agency action, the ALJ observed that by the time a
decision is issued ``on the proposed revocation * * * there will be
nothing to revoke and the issue will be moot.'' Id. at n.2. The ALJ
thus explained that ``dismissal of this proceeding on mootness grounds
* * * will be required when the matter is transmitted to'' me. Id. at
2.
Having taken Official Notice of the registration records of the
Agency, I find that Respondent's registration expired on March 31,
2010, and that Mr. Howerter was true to his word that Respondent did
``not plan to renew it.'' Because Respondent's registration has now
expired and there is no pending renewal application, there is neither a
registration, nor an application, to act upon. Accordingly, the case is
now moot. See, e.g., Riegel, 63 FR at 67133.
Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f) and
824(a), as well as 28 CFR 0.100(b) and 0.104, I order that the Order To
Show Cause issued to Louisiana All Snax, Inc., be, and it hereby is,
dismissed. This order is effective immediately.
Dated: April 1, 2011.
Michelle M. Leonhart,
Administrator.
[FR Doc. 2011-8541 Filed 4-8-11; 8:45 am]
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