[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]
BILLING CODE 4410-09-P