4422 Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices 

9As found above, Respondent is currently using 

a rental storage unit to store list I products. In 

several cases, DEA has held that the use of such 

units does not provide adequate security. More 

specifically, I have noted a number of ‘‘security 

concerns which are raised by these facilities 

including the inadequacy of their construction, the 

lack of alarm systems, the lack of 24 hour on-site 

monitoring, the ability of unauthorized persons to 

gain access to the facility and the storage units, and 

the fact that the tenant does not control what other 

tenants the landlord rents to.’’ Novelty Distributors, 

73 FR at 52698; see also Heldman, 72 FR at 4034; 

Sujak Distributors, 71 FR at 50104. 

While it seems unlikely that Respondent’s storage 

unit provides adequate security, the Government 

did not raise this as an issue at any time in this 

proceeding. Consistent with the Due Process Clause 

and Administrative Procedure Act, because 

Respondent has had no opportunity to contest 

whether his storage unit provides adequate security, 

I do not consider the issue. See CBS Wholesale, 74 

FR at 36749–50. 

directed that the following factors be 

considered: 

(1) maintenance by the [registrant] of 

effective controls against diversion of listed 

chemicals into other than legitimate 

channels; 

(2) compliance by the [registrant] with 

applicable Federal, State, and local law; 

(3) any prior conviction record of the 

[registrant] under Federal or State laws 

relating to controlled substances or to 

chemicals controlled under Federal or State 

law; 

(4) any past experience of the [registrant] 

in the manufacture and distribution of 

chemicals; and 

(5) such other factors as are relevant to and 

consistent with the public health and safety. 

Id. 

‘‘These factors are considered in the 

disjunctive.’’ Gregg & Son Distributors, 

74 FR at 17520; see also Joy’s Ideas, 70 

FR 33195, 33197 (2005). I may rely on 

any one or a combination of factors, and 

I may give each factor the weight I deem 

appropriate in determining whether to 

revoke an existing registration or to 

deny an application for renewal of a 

registration. Gregg & Son, 74 FR at 

17520; Jacqueline Lee Pierson Energy 

Outlet, 64 FR 14269, 14271 (1999). 

Moreover, I am not required to make 

findings as to all of the factors. Volkman 

v. DEA, 567 F.3d 215, 222 (6th Cir. 

2009); Morall v. DEA, 412 F.3d 165, 

173–74 (D.C. Cir. 2005). 

The Government bears the burden of 

proof. 21 CFR 1309.54. Having 

considered all of the factors, I conclude 

that while the Government has proved 

a single violation of Federal law, the 

evidence does not support the 

conclusion that Respondent’s continued 

registration is inconsistent with the 

public interest. 

During the hearing, the Government 

appeared to raise three principal 

allegations: (1) That Respondent was 

selling excessive quantities of listed 

chemical products to non-traditional 

retailers, (2) that Respondent sold an 

item which is used as drug 

paraphernalia, and (3) that Respondent 

distributed products directly from a 

storage facility which was located forty 

miles from its registered location 

without first returning them to its 

registered location. The first two 

allegations require no more than token 

discussion because they fail for lack of 

substantial evidence. While the third 

allegation was proved, Respondent 

quickly corrected the violation. 

As for the first allegation, having 

previously found that the Government 

Expert’s methodology is unreliable and 

it being apparent that the expert’s 

affidavit relies on the same 

methodology, once again I conclude that 

his findings as to both the monthly 

expected sales range and the statistical 

improbability of certain sales levels of 

listed chemical products in legitimate 

commerce at convenience stores are not 

supported by substantial evidence. See 

Novelty Distributors, 73 FR at 52693–94; 

see also CBS Wholesale Distributors, 74 

FR 36746, 36748 (2009); Gregg & Son, 

74 FR at 17520. While this provides 

reason alone to find the allegation 

unproven, the deficiency in the 

Government’s case is compounded by 

its failure to show what Respondent’s 

average monthly sales were to its 

various customers. The allegation is 

therefore rejected. 

The Government also failed to prove 

that Respondent violated Federal law by 

selling drug paraphernalia. See 21 

U.S.C. 863. While I have now held in 

several cases that glass roses constitute 

drug paraphernalia, see, e.g., Gregg & 

Son, 74 FR at 17521, the Supreme Court 

has held that the statute imposes a 

scienter requirement. See Posters ‘N’ 

Things, Ltd. v. United States, 511 U.S. 

513, 524 (1994). (‘‘It is sufficient that the 

defendant be aware that customers in 

general are likely to use the 

merchandise with drugs. Therefore, the 

Government must establish that the 

defendant knew that the items at issue 

are likely to be used with illegal drugs.’’) 

(citing United States v. United States 

Gypsum Co., 438 U.S. 422, 444 (1978) 

(‘‘knowledge of ‘probable consequences’ 

sufficient for conviction’’)). 

The Government produced absolutely 

no evidence that Mr. Naulty was aware 

that the glass roses’ likely use is as drug 

paraphernalia. Nor did it even pose this 

obvious question to Mr. Naulty when it 

cross-examined him. The allegation 

therefore also fails for lack of substantial 

evidence. 

The only allegation that was proved 

was that Respondent distributed list I 

chemical products directly from a 

storage facility which was not a 

registered location (and which was 

located approximately forty miles from 

its registered location). Under Federal 

law, ‘‘[a] separate registration is required 

for each principal place of business at 

one general physical location where List 

I chemicals are distributed * * * by a 

person.’’ 21 CFR 1309.23(a). However, a 

registration is not required for ‘‘[a] 

warehouse where List I chemicals are 

stored by or on behalf of a registered 

person, unless such chemicals are 

distributed directly from such 

warehouse to locations other than the 

registered location from which the 

chemicals were originally delivered.’’ Id. 

§ 1309.23(b)(1). 

Respondent did not dispute that it 

distributed list I chemicals from its 

McKinney storage unit without first 

returning them to its registered location. 

In doing so, Respondent violated 

Federal law. 21 U.S.C. 843(a)(9) (‘‘It 

shall be unlawful for any person 

knowingly or intentionally * * * to 

distribute * * * a list I chemical 

without registration required by this 

subchapter[.]’’). However, the 

Government did not establish the extent 

of the violations and Mr. Naulty 

immediately ceased doing so upon 

being told by the DIs that this was a 

violation. The Government’s evidence 

therefore does not establish that 

Respondent’s continued registration is 

inconsistent with the public interest. 

Respondent’s violation does, however, 

warrant an admonition, which shall be 

made a part of Respondent’s record.9

Order 

Pursuant to the authority vested in me 

by 21 U.S.C. 823(h) and 824(a), as well 

as 28 CFR 0.100(b) and 0.104, I hereby 

order that Mr. Checkout North Texas, 

be, and it hereby is, admonished. I 

further order that the application of Mr. 

Checkout North Texas for renewal of its 

DEA Certificate of Registration be, and 

it hereby is, granted. This order is 

effective immediately. 

Dated: January 18, 2010. 

Michele M. Leonhart, 

Deputy Administrator. 

[FR Doc. 2010–1634 Filed 1–26–10; 8:45 am] 

BILLING CODE 4410–09–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to The National 

Cooperative Research and Production 

Act of 1993—Cooperative Research 

Group on Clean Diesel V 

Notice is hereby given that, on 

December 10, 2009, pursuant to Section 


srobinson on DSKHWCL6B1PROD with NOTICES
Federal Register / Vol. 75, No. 17 / Wednesday, January 27, 2010 / Notices 4423 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301 et seq. (‘‘the Act’’), 

Southwest Research Institute— 

Cooperative Research Group on Clean 

Diesel V (‘‘Clean Diesel V’’) has filed 

written notifications simultaneously 

with the Attorney General and the 

Federal Trade Commission disclosing 

changes in its membership. The 

notifications were filed for the purpose 

of extending the Act’s provisions 

limiting the recovery of antitrust 

plaintiffs to actual damages under 

specified circumstances. Specifically, 

the following parties have withdrawn 

from this venture: BP America, Inc. 

Global Fuels Technology, Naperville, IL 

and Federal Mogul, Inc., Plymouth, MI. 

No other changes have been made in 

either the membership or planned 

activity of the group research project. 

Membership in this group research 

project remains open, and Clean Diesel 

V intends to file additional written 

notifications disclosing all changes in 

membership. 

On January 10, 2008, Clean Diesel V 

filed its original notification pursuant to 

Section 6(a) of the Act. The Department 

of Justice published a notice in the 

Federal Register pursuant to Section 

6(b) of the Act on February 25, 2008 (73 

FR 10064). 

The last notification was filed with 

the Department on November 9, 2009. A 

notice was published in the Federal 

Register on December 17, 2009 (74 FR 

66995). 

Patricia A. Brink, 

Deputy Director of Operations, Antitrust 

Division. 

[FR Doc. 2010–1240 Filed 1–26–10; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to the National 

Cooperative Research and Production 

Act of 1993—Portland Cement 

Association 

Notice is hereby given that, on 

December 14, 2009, pursuant to Section 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301 et seq. (‘‘the Act’’), 

Portland Cement Association (‘‘PCA’’) 

has filed written notifications 

simultaneously with the Attorney 

General and the Federal Trade 

Commission disclosing changes in its 

membership. The notifications were 

filed for the purpose of extending the 

Act’s provisions limiting the recovery of 

antitrust plaintiffs to actual damages 

under specified circumstances. 

Specifically, Continental Cement, 

Hannibal, MO has been added as a party 

to this venture. Also, the following 

parties have withdrawn from this 

venture: ABB, Incorporated, Wickliffe, 

OH; Air Products and Chemicals, Inc., 

Allentown, PA; LWB Refractories, York, 

PA; MikroPul, Charlotte, NC; Penta 

Engineering Corporation, St. Louis, MO; 

Gebr. Pfeiffer USA, Inc., Pembroke 

Pines, FL and River, Columbus, OH. 

In addition, the following companies 

have changed their names: Hanson 

Permanente Cement, Pleasanton, CA to 

Lehigh Hanson; Rinker Materials 

Corporation, West Palm Beach, FL to 

CEMEX; St. Lawrence Cement Inc., 

Mount Royal, PQ, CANADA to Holcim 

Canada. 

No other changes have been made in 

either the membership or planned 

activity of the group research project. 

Membership in each project remains 

open, and PCA intends to file additional 

written notification disclosing all 

changes in membership. 

On January 7, 1985, PCA filed its 

original notification pursuant to Section 

6(a) of the Act. The Department of 

Justice published a notice in the Federal 

Register pursuant to Section 6(b) of the 

Act on February 5, 1985 (50 FR 5015). 

The last notification was filed with 

the Department on May 18, 2009. A 

notice was published in the Federal 

Register pursuant to Section 6(b) of the 

Act on August 9, 2009 (74 FR 30327). 

Patricia A. Brink, 

Deputy Director of Operations, Antitrust 

Division. 

[FR Doc. 2010–1243 Filed 1–26–10; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Antitrust Division 

Notice Pursuant to the National 

Cooperative Research and Production 

Act of 1993—Cooperative Research 

Group on High Efficiency Dilute 

Gasoline Engine II 

Notice is hereby given that, on 

December 10, 2009, pursuant to Section 

6(a) of the National Cooperative 

Research and Production Act of 1993, 

15 U.S.C. 4301 et seq. (‘‘the Act’’), 

Southwest Research Institute— 

Cooperative Research Group on HighEfficiency Dilute Gasoline Engine II, 

(‘‘HEDGE II’’) has filed written 

notifications simultaneously with the 

Attorney General and the Federal Trade 

Commission disclosing changes in its 

membership. The notifications were 

filed for the purpose of extending the 

Act’s provisions limiting the recovery of 

antitrust plaintiffs to actual damages 

under specified circumstances. 

Specifically, Alantum, Gyeonggi-Do, 

Republic of Korea has been added as a 

party to the venture. Also, Deutz, AG 

Cologne, Germany has withdrawn as a 

party to the venture. 

No other changes have been made in 

either the membership or planned 

activity of the group research project. 

Membership in this group research 

project remains open, and HEDGE II 

intends to file additional written 

notifications disclosing all changes in 

membership. 

On February 19, 2009, HEDGE II filed 

its original notification pursuant to 

Section 6(a) of the Act. The Department 

of Justice published a notice in the 

Federal Register pursuant to Section 

6(b) of the Act on April 2, 2009 (74 FR 

15003). 

The last notification was filed with 

the Department on November 9, 2009. A 

notice was published in the Federal 

Register pursuant to Section 6(b) of the 

Act on December 17, 2009 (74 FR 

66995). 

Patricia A. Brink, 

Deputy Director of Operations, Antitrust 

Division. 

[FR Doc. 2010–1238 Filed 1–26–10; 8:45 am] 

BILLING CODE 4410–11–M 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

[Docket No. 2010–2 CRB SD 2004—2007] 

Distribution of the 2004 Through 2007 

Satellite Royalty Funds 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Notice soliciting comments on 

motion of Phase I claimants for partial 

distribution. 

SUMMARY: The Copyright Royalty Judges 

are soliciting comments on a motion of 

Phase I claimants for partial distribution 

in connection with the 2004 through 

2007 satellite royalty funds. 

DATES: Comments are due on or before 

February 26, 2010. 

ADDRESSES: Comments may be sent 

electronically to crb@loc.gov. In the 

alternative, send an original, five copies, 

and an electronic copy on a CD either 

by mail or hand delivery. Please do not 

use multiple means of transmission. 

Comments may not be delivered by an 

overnight delivery service other than the 

U.S. Postal Service Express Mail. If by 

mail (including overnight delivery), 

comments must be addressed to: 


srobinson on DSKHWCL6B1PROD with NOTICES