[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Notices]
[Pages 4830-4831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1976]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Southwest K-9; Decision and Order
On August 16, 2011, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration, issued an Order to
[[Page 4831]]
Show Cause to Southwest K-9 (hereinafter, Applicant), of New Braunfels,
Texas. The Show Cause Order proposed the denial of Applicant's
application for a DEA Certificate of Registration as a Canine Handler/
Researcher, on the ground that its ``registration would be inconsistent
with the public interest.'' Show Cause Order at 1.
More specifically, the Show Cause Order alleged that Applicant had
applied for a registration as a Canine Handler/Researcher of controlled
substances in schedule I but that it currently lacks authority to
handle controlled substances in the State of Texas, the State in which
it seeks a DEA registration. Id. The Show Cause Order further alleged
that Applicant has failed to: (1) Obtain other required state licenses,
(2) provide information required by DEA on the application for
registration, (3) ``provide proposed procedures for sufficiently
reporting findings of illicit drugs to law enforcement officials,'' (4)
``provide evidence that [it has] taken steps to obtain dogs from a
kennel or trainer,'' as well as to either lease or build its own kennel
space, and (5) ``institute * * * procedures for ensuring that its
services will not be offered to illegal drug traffickers.'' Id. at 2.
In addition, the Order alleged that Applicant ``requested a
registration to handle controlled substances in types and quantities
far in excess of what is required to conduct research involving
canines'' and that it ``failed to provide sufficient evidence of need''
for canine drug detection services in the area where it proposes to do
business. Id. The Order also notified applicant of its right to request
a hearing on the allegations or to submit a written statement in lieu
of a hearing, the procedures for doing so, and the consequences for
failing to do either. Id.
As evidenced by the signed return receipt card, on September 6,
2011, the Government served the Show Cause Order on Applicant. GX 4.
Since then, more than thirty days have now passed and neither
Applicant, nor anyone purporting to represent it, have requested a
hearing or submitted a written statement in lieu of a hearing. 21 CFR
1301.43(d). I therefore find that Applicant has waived its right to a
hearing or to submit a written statement and issue this Decision and
Final Order based on the record submitted by the Government. Id.
1301.43(d) & (e). I make the following findings.
Findings
On March 3, 2010, Applicant applied for a registration authorizing
it to handle schedule I controlled substances as a canine handler, an
activity which requires a researcher's registration. GX 6. Applicant
provided as its proposed registered location an address in New
Braunfels, Texas and checked each of the twenty-two schedule I
controlled substances listed on the application form as drugs it sought
authority to handle. Id. at 1-2. While on the application, Applicant
was required to list any state licenses or controlled substances
registration which authorizes it to engage in research or otherwise
handle controlled substances, Applicant left this part of the form
blank. Id. at 3. According to the affidavit of a Diversion Investigator
(DI) who was assigned to review its application, Applicant possesses
neither a Texas Controlled Substances Registration, which is required
by Texas law, nor the license required by Texas law to operate a Guard
Dog Company. GX 5, at 2. (citing Texas Health & Safety Code Sec.
481.061(a) and Texas Occupations Code Sec. 1702.116).
According to the DI, he interviewed Mr. Ryan Taylor, Applicant's
co-owner, who stated he had two and one half years of law enforcement
experience and that its manager, Ms. Mellissa Jones, was a retired
police officer with twenty years of law enforcement experience. Id.
However, Mr. Taylor ``provided no evidence that any of its employees
and/or owners possessed any ability or experience [in] training * * *
canines for drug detection.'' Id. (citing 21 CFR 1301.18(a)(1)(iii)).
The DI also found Applicant's protocols to be deficient in that they
did not explain how Applicant would screen its potential customers to
ensure that it was not providing services to drug dealers. Id.
Discussion
Under the Controlled Substances Act (CSA), a canine handler is
deemed to be a researcher and is subject to the registration and
licensing requirements of section 303(f), 21 U.S.C. 823(f). See Angelos
Michalatos d/b/a Contraband Searches and Investigations, 54 FR 48161
(1989) (applying registration standards of 21 U.S.C. 823(f) to canine
handlers); see also 21 U.S.C. 802(21) (``The term `practitioner' means
* * * [an] other person licensed, registered, or otherwise permitted,
by the United States or the jurisdiction in which he practices or does
research, to distribute, * * * conduct research with respect to, * * *
or use in teaching or chemical analysis, a controlled substance in the
course of professional practice or research.''). Likewise, section
823(f) imposes, as a condition of obtaining a registration under this
provision, that the applicant must be currently authorized to handle
controlled substances under the laws of the State in which it performs
such activities. See 21 U.S.C. 823(f) (``The Attorney General shall
register practitioners * * * to * * * conduct research with[]
controlled substances * * * if the applicant is authorized to * * *
conduct research with respect to controlled substances under the laws
of the State in which he practices.''); see also id.Sec. 824(a)(3)
(authorizing revocation of a registration ``upon a finding that the
registrant * * * has had his State license or registration suspended
[or] revoked * * * and is no longer authorized by State law to engage
in the * * * distribution [or] dispensing of controlled substances'').
See Michalatos, 54 FR at 48161; see also Robert G. Crummie, 76 FR 71369
(2011); David W. Wang, 72 FR 54297 (2007).
Under Texas law, ``a person who is not a registrant may not
manufacture, distribute, prescribe, possess, analyze, or dispense a
controlled substance in th[at] State.'' Tex. Health & Safety Code Sec.
481.061(a).\1\ Because Applicant does not possess authority under Texas
law to handle controlled substances, it therefore does not meet a
threshold requirement for obtaining a registration as a researcher
under the CSA.\2\ See 21 U.S.C. 802(21) & 823(f). Accordingly,
Respondent's application will be denied.
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\1\ While Texas law provides several exemptions from
registration, none of these apply here. See Tex. Health & Safety
Code Sec. 481.062(a).
\2\ Because Respondent does not have current authority to handle
controlled substances under Texas law, it is not necessary to make
further findings as to whether its registration is consistent with
the public interest.
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Order
Pursuant to the authority vested in me by 21 U.S.C. 823(f), as well
as 28 CFR 0.100(b), I order that the application of Southwest K-9 for a
DEA Certificate of Registration as a Canine Handler/Researcher, be, and
it hereby is, denied. This Order is effective March 1, 2012.
Dated: January 19, 2012.
Michele M. Leonhart,
Administrator.
[FR Doc. 2012-1976 Filed 1-30-12; 8:45 am]
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