[Federal Register Volume 67, Number 43 (Tuesday, March 5, 2002)]
[Notices]
[Pages 9987-9988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5223]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Daniel E. Epps, Jr., Denial of Application

    On or about March 6, 2001, the Deputy Assistant Administrator, 
Office of Diversion Control, Drug Enforcement Administration (DEA), 
issued an Order to Show Cause (OTSC) by certified mail to Daniel E. 
Epps, Jr. (Epps), located in Matthews, North Carolina, notifying him of 
an opportunity to show cause as to why the DEA should not deny his 
applications, dated May 2, 2000, and July 26, 2000, for a DEA 
Certificate of Registration as a distributor of the List I chemicals 
ephedrine, pseudoephedrine, and phenylpropanolamine, pursuant to 21 
U.S.C. 823(h), as being inconsistent with the public interest. The 
order also notified Mr. Epps that, should no request for hearing be 
filed within 30 days, the right to a hearing would be waived.

[[Page 9988]]

    The OTSC was received March 12, 2001, as indicated by the signed 
postal return receipt. Since that time, no further response has been 
received from the applicant nor any person purporting to represent the 
applicant. Therefore, the Administrator of the DEA, finding that (1) 
thirty days having passed since receipt of the Order to Show Cause, and 
(2) no request for a hearing having been received, concludes that Mr. 
Epps is deemed to have waived his right to a hearing. After considering 
relevant material from the investigative file in this matter, the 
Administrator now enters his final order without a hearing pursuant to 
21 CFR 1301.43(d) and (e) and 1301.46.
    The Administrator finds as follows. List I chemicals are chemicals 
that may be used in the manufacture of a controlled substance in 
violation of the Controlled Substances Act. 21 U.S.C. 802(34); 21 CFR 
1310.02(a). Pseudoephedrine, ephedrine, and phenylpropanolamine are 
List I chemicals that are commonly used to illegally manufacture 
methamphetamine, a Schedule II controlled substance. Methamphetamine is 
an extremely potent central nervous system stimulant, and its abuse is 
a growing problem in the United States.
    The Administrator finds that on or about May 2, 2000, an 
application was submitted by and on behalf of Daniel E. Epps, Jr., for 
DEA registration as a distributor of the List I chemical ephedrine. On 
July 26, 2000, Mr. Epps requested that his application be amended to 
include the List I chemicals pseudoephedrine and phenylpropanolamine.
    During the July 29, 2000, pre-registration inspection, Mr. Epps 
informed a DEA investigator that he proposed to sell various products 
from his home, including List I chemical products. While Mr. Epps 
alleged he had 29 years of experience in the grocery/retail business, 
he admitted he had no experience in the handling of listed chemical 
products. Mr. Epps stated he planned to sell List I chemical products 
to convenience stores and gas stations. He also stated that he wished 
to distribute certain List I chemical products in 60 count bottles.
    The DEA investigation showed that Mr. Epps' residence, where he 
proposes to conduct business, is not zoned for business purposes in 
Mecklenburg County, North Carolina. Additionally, as of the date of the 
July 26, 2000, inspection, Mr. Epps had not applied with the North 
Carolina State authorities for a Change of Use Permit for the operation 
of a business from his residence.
    Pursuant to 21 U.S.C. 823(h), the Administrator may deny an 
application for a DEA Certificate of Registration if he determines that 
granting the registration would be inconsistent with the public 
interest. Section 823(h) requires the following factors be considered:
    (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;
    (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.
    Like the public interest analysis for practitioners and pharmacies 
pursuant to subsection (f) of section 823, these factors are to be 
considered in the disjunctive; the Administ6rator may rely on any one 
or combination of factors and may give each factor the weight he deems 
appropriate in determining whether a registration should be revoked or 
an application for registration be denied. See, e.g., Energy Outlet, 64 
FR 14,269 (1999). see also Henry J. Schwartz, Jr., M.D., 54 FR 16,422 
(1989).
    Regarding factor one, the maintenance of effective controls against 
the diversion of listed chemicals, the DEA pre-registration inspection 
documented inadequate security at the proposed business location. Mr. 
Epps proposes to store List I chemical products in an unlocked room in 
the basement of his residence. The residence does not have any sort of 
alarm system, and the DEA investigation shows that the residence goes 
unoccupied for long periods of time. Moreover, Mr. Epps admittedly has 
no experience in handling List I chemicals.
    Regarding factor two, the applicant's compliance with applicable 
law, the Administrator notes that the DEA investigation showed North 
Carolina State or local law requires zoning approval and a Change of 
Use Permit cooperate a business from this residence. Mr. Epps did not 
possess such a permit, and challenged DEA investigators when this lack 
was noted. There is no evidence in the investigative file that Mr. Epps 
ever applied for or received the required Change of Use Permit.
    Regarding factor three, there is no evidence that Mr. Epps has any 
record of convictions related to controlled substances or to chemicals 
controlled under Federal or State law.
    Regarding factor four, the applicant's past experience in the 
distribution of chemicals, the DEA investigation revealed that Mr. Epps 
has no previous experience in handling listed chemicals or distributing 
listed chemical products.
    Regarding factor five, other factors relevant to and consistent 
with the public safety, the Administrator finds that due to the 
applicant's lack of experience in handling listed chemicals, a lack of 
adequate security at the proposed business location, and his failure to 
obtain the required zoning approval to operate a business from his 
residence, the Administrator concludes it would be inconsistent with 
the public interest to grant this application.
    Accordingly, the Administrator of the Drug Enforcement 
Administration, pursuant to the authority vested in him by 21 U.S.C. 
823 and 28 CFR 0.100(b) and 0.104, hereby orders that the application 
for a DEA Certificate of Registration submitted by Mr. Daniel E. Epps, 
Jr. be denied. This order is effective April 4, 2002.

    Dated: February 22, 2002.
Asa Hutchinson,
Administrator.

Certificate of Service

    This is to certify that the undersigned, on February 25, 2002, 
placed a copy of the Final Order referenced in the enclosed letter in 
the interoffice mail addressed to Robert Walker, Esq., Office of Chief 
Counsel, Drug Enforcement Administration, Washington, DC 20537; and 
caused a copy to be mailed, postage prepaid, registered return receipt 
to Mr. Daniel E. Epps, Jr., 539 Walnut Point Drive, Matthews, North 
Carolina 28105.

Karen C. Grant.

[FR Doc. 02-5223 Filed 3-4-02; 8:45 am]
BILLING CODE 4410-09-M