[Federal Register Volume 66, Number 202 (Thursday, October 18, 2001)]
[Notices]
[Page 52939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26177]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Jack's Sales, Inc.; Denial of Application

    On September 5, 2000, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause (OTSC) to Jack's Sales, Inc. (Respondent), 
proposing to deny its application for a DEA Certificate of Registration 
as a distributor of list I chemicals pursuant to 21 U.S.C. 823(h) on 
the grounds that on June 12, 2000, the California Department of 
Justice, Bureau of Narcotic Enforcement (BNE), denied Respondent's 
application for a Precursor Business Permit. On October 12, 2000, 
Respondent filed a request for a hearing on the issue raised in the 
OTSC.
    On October 18, 2000, the Government filed a motion seeking summary 
disposition, arguing that Respondent is not authorized to distribute or 
otherwise to handle listed chemicals in California, the jurisdiction in 
which it proposes to conduct business.
    On October 23, 2000, Administrative Law Judge Mary Ellen Bittner 
issued a Memorandum to Counsel granting Respondent until November 7, 
2000, to file a response to the Government's motion. Respondent timely 
filed a response, asserting, in substance, that the BNE denied its 
application for a Precursor Business Permit on the basis of information 
provided to BNE by DEA; that Respondent had appealed the denial; that 
counsel for Respondent had spoken with a member of the BNE staff who 
said there would be a meeting within the next ten days to discuss 
respondent's appeal; and that this proceeding should be stayed pending 
the outcome of Respondent's BNE appeal.
    The Administrator has considered the record in its entirety, and 
pursuant to 21 CFR 1316.67, hereby issues his final order based upon 
findings of fact and conclusions of law as hereinafter set forth. The 
Administrator adopts in full the Opinion and Recommended Decision of 
the Administrative Law Judge.
    Loss of state authority to engage in the distribution of list I 
chemicals is grounds to revoke a distributor's registration pursuant to 
21 U.S.C. 824(a)(3). While the Controlled Substances Act does not 
specify that state licensure is a condition precedent to registration 
as a distributor of list I chemicals, it is well-settled that the 
Administrator may apply the bases for revoking a registration pursuant 
to 21 U.S.C. 824(a) to the denial of applications pursuant to 21 U.S.C. 
823. See Anthony D. Funches, 64 FR 14268 (1999). Accordingly, DEA 
consistently has held that a person may not hold a DEA registration if 
that person is without appropriate authority pursuant to the laws of 
the state where he or she conducts business. See Anne Lazar Thorn, 62 
FR 12847 (1997); Bobby Watts, M.D., 53 FR 11919 (1988); Robert F. 
Witek, D.D.S., 52 FR 47770 (1987); Wingfield Drugs, Inc., 52 FR 27070 
(1987).
    In the instant case, Respondent does not deny that it is not 
currently authorized to handle list I chemicals in the State of 
California, the jurisdiction where it conducts business. The Government 
attached to its motion a copy of a letter dated June 12, 2000, from the 
BNE to Respondent, denying Respondent's Precursor Business Permit, 
together with a copy of the applicable provision of the California 
Health and Safety Code governing permits and the application procedure.
    The DEA does not have the statutory authority pursuant ot the 
Controlled Substances Act to issue or to maintain a registration if the 
applicant or registrant is without state authority to handle controlled 
substances in the state in which he or she conducts business. See 21 
U.S.C. 802(21), 823(f), and 824(a)(3). This prerequisite has been 
consistently upheld in prior DEA cases. See Graham Travers Schuler, 
M.D., 65 FR 50570 (2000); Romeo J. Perez, M.D., 62 FR 16193 (1997); 
Demetris A. Green, M.D., 61 FR 60728 (1996); Dominick A. Ricci, M.D., 
58 FR 51104 (1993).
    In the instant case, the Administrator finds the Government has 
presented evidence demonstrating that the Respondent is not authorized 
to handle list I chemicals in California, where it conducts business. 
The Administrator finds that Judge Bittner has allowed Respondent ample 
time to refute the Government's evidence, and that Respondent has 
submitted no evidence or assertions to the contrary. Thus, there is no 
genuine issue of material fact concerning Respondent's lack of 
authorization to handle list I chemicals in the state where it conducts 
business.
    The Administrator concurs with Judge Bittner's finding that it is 
well settled that when there is no question of material fact involved, 
there is no need for a plenary, administrative hearing. Congress did 
not intend for administrative agencies to perform meaningless tasks. 
See Michael G. Dolin, M.D., 65 FR 5661 (2000); Jesus R. Juarez, M.D., 
62 FR 14945 (1997); see also Philip E. Kirk, M.D., 48 FR 32887 (1983), 
aff'd sub nom. Kirk v. Mullen, 749 F.2d 297 (6th Cir. 1984).
    Accordingly, the Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the 
application for registration as a distributor of list I chemicals 
submitted by Jack's Sales, Inc., be, and it hereby is, denied. This 
order is effective November 19, 2001.

    Dated: October 10, 2001.
Asa Hutchison,
Administrator.
[FR Doc. 01-26177 Filed 10-17-01; 8:45 am]
BILLING CODE 4410-09-M