[Federal Register Volume 69, Number 80 (Monday, April 26, 2004)]
[Notices]
[Pages 22564-22565]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9335]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration


Timothy Norray; Denial of Application

    On June 4, 2003, the Deputy Assistant Administrator, Office of 
Diversion Control, Drug Enforcement Administration (DEA), issued an 
Order to Show Cause to Timothy Scott Norray (Mr. Norray), proposing to 
deny his application for DEA Certificate of Registration as a 
researcher. The Order to Show Cause alleged that granting Mr. Norray's 
application would be inconsistent with the public interest as that term 
is used in 21 U.S.C. 823(f). The show cause order also notified Mr. 
Norray that should no request for a hearing be filed within 30 days, 
his hearing right would be deemed waived.
    The Order to Show Cause was sent by certified mail to Mr. Norray at 
his address of record and DEA received a signed receipt indicating that 
it was received by him on June 11, 2003. DEA has not received a request 
for hearing or any other reply from Mr. Norray or anyone purporting to 
represent him in this matter.
    Therefore, the Acting Deputy Administrator, finding that (1) 30 
days have passed since the receipt of the Order to Show Cause, and (2) 
no request for a hearing having been received, concludes that Mr. 
Norray is deemed to have waived his hearing right. After considering 
material from the investigative file in this matter, the Acting Deputy 
Administrator now enters her final order without a hearing pursuant to 
21 C.F.R. 1301.43(d) and (e) and 1301.46
    The Acting Deputy Administrator finds that Mr. Norray submitted a 
DEA registration application dated December 30, 2001, seeking 
authorization to handle controlled substances in Schedules I through V 
as a researcher. Mr. Norray proposed as his registered location an 
address in Berne, New York. He requested registration for the following 
Schedules I and II controlled substances: heroin, marijuana, mescaline, 
peyote, cocaine, methadone and methamphetamine. Mr. Norray attached to 
his application, a protocol which stated in part, that he ``will train 
and handle Labrador Retrievers to detect narcotics in schools and 
businesses throughout the New York area. . . with the goal of providing 
a pro-active program to reduce or eliminate drugs from our school or 
workplace.''
    On October 16, 2002, a DEA Diversion Investigator spoke with Mr. 
Norray by telephone regarding his intended use of a registration with 
DEA. Mr. Norray outlined his desire to establish a bomb and drug 
detection business using trained dogs. Mr. Norray stated that he 
already possessed a dog trained to detect explosives which he had 
purchased from a North Carolina dog trainer. He further stated that he 
had completed a course in North Carolina related to handling a bomb 
detection dog.
    Mr. Norray also informed DEA that he had been investigated by the 
New York State Department of Health, Bureau of Controlled Substances 
(NYBCS) and had received a controlled substance license from that state 
agency under the researcher category. Mr. Norray further stated that he 
had obtained the required safe to store drugs, which was bolted to the 
floor as advised by a local state investigator.
    On October 16, 2002, DEA personnel interviewed a researcher 
registered with the agency who stated that he trained and sold 
explosive and drug detection canines. The researcher further explained 
that he had was responsible for certifying Mr. Norray on a course 
involving work with dogs trained to detect explosives. The researcher 
added however, that Mr. Norray was not a dog trainer but had only 
learned to handle a trained dog.
    A review of the investigative file reveals further that on October 
17, 2002, DEA personnel spoke with an investigator for the NYBCS. That 
individual stated that his investigation of Mr. Norray consisted 
primarily of a criminal background check and a visit to the latter's 
residence. The NYBCS investigator further stated that in the absence of 
a criminal record for an applicant or indications of ongoing criminal 
activity at the proposed licensed location, it was automatic that a 
controlled substance license would be issued. The NYBCS investigator 
opined that the state criteria for the licensure of researchers were 
not stringent. DEA later confirmed that Mr. Norray had obtained state 
researcher licenses which authorized him to handle controlled 
substances in Schedules I through V.
    On November 5, 2002, DEA personnel spoke with a sergeant from the 
office of the New York State Police in Albany. The officer informed DEA 
that he has trained over 250 dogs over the preceding nineteen years, 
and was at the time of DEA's investigation the officer in charge of the 
New York State Police K-9 Program (the K-9 Program) located in 
Cooperstown, New York. The DEA investigative report references a state 
of the art training facility operated by the K-9 Program, and how that 
unit is responsible for training explosive and drug detection canines.
    The sergeant also informed DEA that the New York State Police have 
a certification course for police departments who purchase detection 
dogs from private kennels. The certification is restricted to law 
enforcement agencies. The sergeant also stated that he was aware of Mr. 
Norray based on the latter's request to attend the New York State 
Police certification course. The sergeant further stated that Mr. 
Norray's request for certification in the area of canine detection was 
denied because Mr. Norray was not affiliated with law enforcement.
    On November 5, 2002, a DEA Diversion Investigator along with an 
officer from the New York State Police met with Mr. Norray at the 
latter's home in furtherance of DEA's pre-registration investigation. 
Mr. Norray showed the

[[Page 22565]]

officers his proposed storage area for controlled substances which was 
Mr. Norray's garage. The garage, a detached wooden structure, was not 
alarmed, nor was Mr. Norray's residence. DEA also found inside the 
garage, a metal cabinet and a safe, both bolted to the floor of the 
garage with concrete anchors and bolts. There was no alarm system for 
the safe.
    Mr. Norray informed the officers that he has no law enforcement 
experience, and at the time of DEA's inspection he worked at a local 
plant of the General Electric Corporation in an unspecified capacity in 
the shipping and receiving department. Mr. Norray further divulged that 
while he has never been employed as a dog trainer and has no actual 
experience training dogs, he nevertheless planned to acquire a puppy 
and train the dog himself for the purpose of detecting illegal drugs.
    Mr. Norray also discussed his planned approach for training dogs 
with controlled substances. Mr. Norray stated that he beleived that 
dogs trained with actual (i.e., controlled) drugs were more effective 
than dogs trained exclusively with pseudo (simulated) drugs. Mr. Norray 
was then informed by the state officer that the state police trained 
detection canines with pseudo drugs because there was no danger of the 
animal ingesting the actual drug, especially during the initial stages 
of training. The officer added that dogs trained with pseudo drugs were 
able to find real drugs after the introduction of genuine drugs later 
in the training. When asked why he still wanted the DEA Registration if 
a dog could be effectively trained with pseudo drugs, Mr. Norray 
replied that it would be better if a detection business could claim to 
be licensed by the DEA.'' Mr. Norray further informed law enforcement 
personnel that he had no prospective customers for his drug detection 
service, and as of the date of DEA's interview, Mr. Norray had not had 
a paying customer for the explosive detection business.
    Pursuant to 21 U.S.C. 823(f), the Acting Deputy Administrator may 
deny an application for a DEA Certificate of Registration if she 
determines that granting the registration would be inconsistent with 
the public interest. Section 823(f) requires that the following factors 
be considered in determining the public interest:
    (1) The recommendation of the appropriate state licensing board or 
professional disciplinary authority.
    (2) The applicant's experience in dispensing, or conducting 
research with respect to controlled substances.
    (3) The applicant's conviction record under federal or state laws 
relating to the manufacture, distribution, or dispensing of controlled 
substances.
    (4) Compliance with applicable state, federal, or local laws 
relating to controlled substances.
    (5) Such other conduct which may threaten the public health or 
safety.
    These factors are to considered in the disjunctive; the Acting 
Deputy Administrator may rely on any one or a combination of factors 
and may give each factor the weight she deems appropriate in 
determining whether a registration should be revoked or an application 
for registration denied. See Henry J. Schwartz, Jr., M.D., 54 FR 16,422 
(1989).
    It is clear that granting Mr. Norray's application for DEA 
Certificate of Registration would be inconsistent with the public 
interest. Mr. Norray has requested authorization to handle controlled 
substances in Schedules I through V although his registration 
application only reference drugs in Schedules I and II. The Acting 
Deputy Administrator finds that Mr. Norray's request to handle 
additional controlled substances beyond those set forth in his 
registration application are arguably in excess of what is required to 
conduct research involving canines.
    The Acting Deputy Administrator also finds that Mr. Norray seeks to 
engage in an activity that is not needed in the area where he seeks 
registration. The investigative file reveals that Mr. Norray's place of 
business is located in the vicinity of both the New York State Police 
headquarters in Albany, as well as the canine kennels in Cooperstown, 
New York. The investigative file reveals further that the New York 
State Police provide canine detection services and have narcotics 
detection canines of sufficient numbers to service the needs of the law 
enforcement community, businesses and private citizens. DEA has 
previously found that anticipated duplication or unnecessarily 
performed services are relevant factors in determining whether or not 
an application for registration as a researcher should be denied. See, 
e.g., K-Nine Detectives, 67 FR 76193 (2002); Albanoski, Broughton & 
Associates International, 57 FR 4646 (1992); K-9 Drug Detection 
Services of Florida, Inc., 56 FR 5238 (1991).
    DEA's investigation also revealed that Mr. Norray intends to train 
his drug detection dog entirely by himself. He is not recognized as a 
dog trainer in new York, and there is no information that he has ever 
worked or apprenticed at any organization that trains dogs such as the 
military, law enforcement or even pet obedience school. DEA has found 
that grounds exist to deny an application for registration as a 
researcher where, as in this matter, the applicant lacks relevant 
experience in training canines for drug detection purposes. Angelos 
Michalatos d/b/a Contraband Searches and Investigations, 54 FR 48161 
(1989).
    The Acting Deputy Administrator is also concerned with the apparent 
lack of security at the location where Mr. Norray proposes to store 
controlled substances. DEA's investigation revealed that Mr. Norray 
plans to store controlled substances in a wooden structured garage 
which is detached from the main residence, and without alarms to secure 
the doors, windows, or the bolted safe.
    Finally, DEA's investigation revealed that the New York State 
Police has effectively trained drug detection dogs through the use of 
non-controlled substances, and Mr. Norray has no potential customers 
for the services he offers. Mr. Norray's statement to law enforcement 
personnel that a DEA registration would help further his business goals 
further supports the denial of his pending application.
    In reviewing the instant request for DEA registration, and in light 
of Mr. Norray's failure to request a hearing, the Acting Deputy 
Administrator has only the benefit of the DEA investigative file in 
making a determination. No evidence has been submitted on behalf of the 
applicant. Therefore, the Acting Deputy Administrator concludes that 
Mr. Norray has failed to demonstrate a need for, or the ability to 
perform, the activity for which he seeks a registration to handle 
controlled substances. Based on the above, the Acting Deputy 
Administrator concludes that Mr. Norray's registration would be 
inconsistent with the public interest and therefore, his application 
for registration must be denied.
    Accordingly, the Acting Deputy Administrator of the Drug 
Enforcement Administration, pursuant to the authority vested in her by 
21 U.S.C. 823 and 28 CFR 0.100(b), hereby orders that the application 
for DEA Certificate of Registration as a researcher submitted by 
Timothy Norray be, and it hereby is, denied. This order is effective 
May 26, 2004.

    Dated: March 29, 2004.
Michele M. Leonhart,
Acting Deputy Administrator.
[FR Doc. 04-9335 Filed 4-23-04; 8:45 am]
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