2011-8541. 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. §§ 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.