[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1767 Engrossed in Senate (ES)]
103d CONGRESS
1st Session
S. 1767
_______________________________________________________________________
AN ACT
To amend the Comprehensive Drug Abuse Prevention and Control Act of
1970 to control the diversion of certain chemicals used in the illicit
production of controlled substances such as methcathinone and
methamphetamine, and for other purposes.
103d CONGRESS
1st Session
S. 1767
_______________________________________________________________________
AN ACT
To amend the Comprehensive Drug Abuse Prevention and Control Act of
1970 to control the diversion of certain chemicals used in the illicit
production of controlled substances such as methcathinone and
methamphetamine, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Domestic Chemical Diversion Control
Act of 1993''.
SEC. 2. DEFINITION AMENDMENTS.
(a) Definitions.--Section 102 of the Controlled Substances Act (21
U.S.C. 802) is amended--
(1) in paragraph (33), by striking ``any listed precursor
chemical or listed essential chemical'' and inserting ``any
list I chemical or any list II chemical'';
(2) in paragraph (34)--
(A) by striking ``listed precursor chemical'' and
inserting ``list I chemical''; and
(B) by striking ``critical to the creation'' and
inserting ``important to the manufacture'';
(3) in paragraph (34) (A), (F), and (H), by inserting ``,
its esters,'' before ``and'';
(4) in paragraph (35)--
(A) by striking ``listed essential chemical'' and
inserting ``list II chemical'';
(B) by inserting ``(other than a list I chemical)''
before ``specified''; and
(C) by striking ``as a solvent, reagent, or
catalyst''; and
(5) in paragraph (38), by inserting ``or who acts as a
broker or trader for an international transaction involving a
listed chemical, a tableting machine, or an encapsulating
machine'' before the period;
(6) in paragraph (39)(A)--
(A) by striking ``importation or exportation of''
and inserting ``importation, or exportation of, or an
international transaction involving shipment of,'';
(B) in clause (iii) by inserting ``or any category
of transaction for a specific listed chemical or
chemicals'' after ``transaction'';
(C) by amending clause (iv) to read as follows:
``(iv) any transaction in a listed chemical that is
contained in a drug that may be marketed or distributed
lawfully in the United States under the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) unless--
``(I)(aa) the drug contains ephedrine or
its salts, optical isomers, or salts of optical
isomers as the only active medicinal ingredient
or contains ephedrine or its salts, optical
isomers, or salts of optical isomers and
therapeutically insignificant quantities of
another active medicinal ingredient; or
``(bb) the Attorney General has determined
under section 204 that the drug or group of
drugs is being diverted to obtain the listed
chemical for use in the illicit production of a
controlled substance; and
``(II) the quantity of ephedrine or other
listed chemical contained in the drug included
in the transaction or multiple transactions
equals or exceeds the threshold established for
that chemical by the Attorney General.''; and
(D) in clause (v), by striking the semicolon and
inserting ``which the Attorney General has by
regulation designated as exempt from the application of
this title and title III based on a finding that the
mixture is formulated in such a way that it cannot be
easily used in the illicit production of a controlled
substance and that the listed chemical or chemicals
contained in the mixture cannot be readily
recovered;'';
(7) in paragraph (40), by striking ``listed precursor
chemical or a listed essential chemical'' each place it appears
and inserting ``list I chemical or a list II chemical''; and
(8) by adding at the end the following new paragraphs:
``(42) The term `international transaction' means a transaction
involving the shipment of a listed chemical across an international
border (other than a United States border) in which a broker or trader
located in the United States participates.
``(43) The terms `broker' and `trader' mean a person that assists
in arranging an international transaction in a listed chemical by--
``(A) negotiating contracts;
``(B) serving as an agent or intermediary; or
``(C) bringing together a buyer and seller, a buyer and
transporter, or a seller and transporter.''.
(b) Removal of Exemption of Certain Drugs.--
(1) Procedure.--Part B of the Controlled Substances Act (21
U.S.C. 811 et seq.) is amended by adding at the end the
following new section:
``removal of exemption of certain drugs
``Sec. 204. (a) Removal of Exemption.--The Attorney General shall
by regulation remove from exemption under section 102(39)(A)(iv) a drug
or group of drugs that the Attorney General finds is being diverted to
obtain a listed chemical for use in the illicit production of a
controlled substance.
``(b) Factors To Be Considered.--In removing a drug or group of
drugs from exemption under subsection (a), the Attorney General shall
consider, with respect to a drug or group of drugs that is proposed to
be removed from exemption--
``(1) the scope, duration, and significance of the
diversion;
``(2) whether the drug or group of drugs is formulated in
such a way that it cannot be easily used in the illicit
production of a controlled substance; and
``(3) whether the listed chemical can be readily recovered
from the drug or group of drugs.
``(c) Specificity of Designation.--The Attorney General shall limit
the designation of a drug or a group of drugs removed from exemption
under subsection (a) to the most particularly identifiable type of drug
or group of drugs for which evidence of diversion exists unless there
is evidence, based on the pattern of diversion and other relevant
factors, that the diversion will not be limited to that particular drug
or group of drugs.
``(d) Reinstatement of Exemption With Respect to Particular Drug
Products.--
``(1) Reinstatement.--On application by a manufacturer of a
particular drug product that has been removed from exemption
under subsection (a), the Attorney General shall by regulation
reinstate the exemption with respect to that particular drug
product if the Attorney General determines that the particular
drug product is manufactured and distributed in a manner that
prevents diversion.
``(2) Factors to be considered.--In deciding whether to
reinstate the exemption with respect to a particular drug
product under paragraph (1), the Attorney General shall
consider--
``(A) the package sizes and manner of packaging of
the drug product;
``(B) the manner of distribution and advertising of
the drug product;
``(C) evidence of diversion of the drug product;
``(D) any actions taken by the manufacturer to
prevent diversion of the drug product; and
``(E) such other factors as are relevant to and
consistent with the public health and safety, including
the factors described in subsection (b) as applied to
the drug product.
``(3) Status pending application for reinstatement.--A
transaction involving a particular drug product that is the
subject of a bona fide pending application for reinstatement of
exemption filed with the Attorney General not later than 60
days after a regulation removing the exemption is issued
pursuant to subsection (a) shall not be considered to be a
regulated transaction if the transaction occurs during the
pendency of the application and, if the Attorney General denies
the application, during the period of 60 days following the
date on which the Attorney General denies the application,
unless--
``(A) the Attorney General has evidence that,
applying the factors described in subsection (b) to the
drug product, the drug product is being diverted; and
``(B) the Attorney General so notifies the
applicant.
``(4) Amendment and modification.--A regulation reinstating
an exemption under paragraph (1) may be modified or revoked
with respect to a particular drug product upon a finding that--
``(A) applying the factors described in subsection
(b) to the drug product, the drug product is being
diverted; or
``(B) there is a significant change in the data
that led to the issuance of the regulation.''.
(2) Clerical amendment.--The table of contents of the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (84
Stat. 1236) is amended by adding at the end of that portion
relating to part B of title II the following new item:
``Sec. 204. Removal of exemption of certain drugs.''.
(c) Regulation of Listed Chemicals.--Section 310 of the Controlled
Substances Act (21 U.S.C. 830) is amended--
(1) in subsection (a)(1)--
(A) by striking ``precursor chemical'' and
inserting ``list I chemical''; and
(B) in subparagraph (B), by striking ``an essential
chemical'' and inserting ``a list II chemical''; and
(2) in subsection (c)(2)(D), by striking ``precursor
chemical'' and inserting ``chemical control''.
SEC. 3. REGISTRATION REQUIREMENTS.
(a) Rules and Regulations.--Section 301 of the Controlled
Substances Act (21 U.S.C. 821) is amended by striking the period and
inserting ``and to the registration and control of regulated persons
and of regulated transactions.''.
(b) Persons Required To Register Under Section 302.--Section 302 of
the Controlled Substances Act (21 U.S.C. 822) is amended--
(1) in subsection (a)(1), by inserting ``or list I
chemical'' after ``controlled substance'' each place it
appears;
(2) in subsection (b)--
(A) by inserting ``or list I chemicals'' after
``controlled substances''; and
(B) by inserting ``or chemicals'' after ``such
substances'';
(3) in subsection (c), by inserting ``or list I chemical''
after ``controlled substance'' each place it appears; and
(4) in subsection (e), by inserting ``or list I chemicals''
after ``controlled substances''.
(c) Registration Requirements Under Section 303.--Section 303 of
the Controlled Substances Act (21 U.S.C. 823) is amended by adding at
the end the following new subsection:
``(h) The Attorney General shall register an applicant to
distribute a list I chemical unless the Attorney General determines
that registration of the applicant is inconsistent with the public
interest. Registration under this subsection shall not be required for
the distribution of a drug product that is exempted under section
102(39)(A)(iv). In determining the public interest for the purposes of
this subsection, the Attorney General shall consider--
``(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.''.
(d) Denial, Revocation, or Suspension of Registration.--Section 304
of the Controlled Substances Act (21 U.S.C. 824) is amended--
(1) in subsection (a)--
(A) by inserting ``or a list I chemical'' after
``controlled substance'' each place it appears; and
(B) by inserting ``or list I chemicals'' after
``controlled substances'';
(2) in subsection (b), by inserting ``or list I chemical''
after ``controlled substance'';
(3) in subsection (f), by inserting ``or list I chemicals''
after ``controlled substances'' each place it appears; and
(4) in subsection (g)--
(A) by inserting ``or list I chemicals'' after
``controlled substances'' each place it appears; and
(B) by inserting ``or list I chemical'' after
``controlled substance'' each place it appears.
(e) Persons Required To Register Under Section 1007.--Section 1007
of the Controlled Substances Import and Export Act (21 U.S.C. 957) is
amended--
(1) in subsection (a)--
(A) in paragraph (1), by inserting ``or list I
chemical'' after ``controlled substance''; and
(B) in paragraph (2), by striking ``in schedule I,
II, III, IV, or V,'' and inserting ``or list I
chemical,''; and
(2) in subsection (b)--
(A) in paragraph (1), by inserting ``or list I
chemical'' after ``controlled substance'' each place it
appears; and
(B) in paragraph (2), by inserting ``or list I
chemicals'' after ``controlled substances''.
(f) Registration Requirements Under Section 1008.--Section 1008 of
the Controlled Substances Import and Export Act (21 U.S.C. 958) is
amended--
(1) in subsection (c)--
(A) by inserting ``(1)'' after ``(c)''; and
(B) by adding at the end the following new
paragraph:
``(2)(A) The Attorney General shall register an applicant to import
or export a list I chemical unless the Attorney General determines that
registration of the applicant is inconsistent with the public interest.
Registration under this subsection shall not be required for the import
or export of a drug product that is exempted under section
102(39)(A)(iv).
``(B) In determining the public interest for the purposes of
subparagraph (A), the Attorney General shall consider the factors
specified in section 303(h).'';
(2) in subsection (d)--
(A) in paragraph (3), by inserting ``or list I
chemical or chemicals,'' after ``substances,''; and
(B) in paragraph (6), by inserting ``or list I
chemicals'' after ``controlled substances'' each place
it appears;
(3) in subsection (e), by striking ``and 307'' and
inserting ``307, and 310''; and
(4) in subsections (f), (g), and (h), by inserting ``or
list I chemicals'' after ``controlled substances'' each place
it appears.
(g) Prohibited Acts C.--Section 403(a) of the Controlled Substances
Act (21 U.S.C. 843(a)) is amended--
(1) by amending paragraphs (6) and (7) to read as follows:
``(6) to possess any three-neck round-bottom flask,
tableting machine, encapsulating machine, or gelatin capsule,
or any equipment, chemical, product, or material which may be
used to manufacture a controlled substance or listed chemical,
knowing, intending, or having reasonable cause to believe, that
it will be used to manufacture a controlled substance or listed
chemical in violation of this title or title III;
``(7) to manufacture, distribute, export, or import any
three-neck round-bottom flask, tableting machine, encapsulating
machine, or gelatin capsule, or any equipment, chemical,
product, or material which may be used to manufacture a
controlled substance or listed chemical, knowing, intending, or
having reasonable cause to believe, that it will be used to
manufacture a controlled substance or listed chemical in
violation of this title or title III or, in the case of an
exportation, in violation of this title or title III or of the
laws of the country to which it is exported;'';
(2) by striking the period at the end of paragraph (8) and
inserting ``; or''; and
(3) by adding at the end the following new paragraph:
``(9) to distribute, import, or export a list I chemical
without the registration required by this title or title
III.''.
SEC. 4. REPORTS BY BROKERS AND TRADERS; CRIMINAL PENALTIES.
(a) Notification, Suspension of Shipment, and Penalties With
Respect to Importation and Exportation of Listed Chemicals.--Section
1018 of the Controlled Substances Import and Export Act (21 U.S.C. 971)
is amended by adding at the end the following new subsection:
``(d) A person located in the United States who is a broker or
trader for an international transaction in a listed chemical that is a
regulated transaction solely because of that person's involvement as a
broker or trader shall, with respect to that transaction, be subject to
all of the notification, reporting, recordkeeping, and other
requirements placed upon exporters of listed chemicals by this title
and title II.''.
(b) Prohibited Acts A.--Section 1010(d) of the Controlled
Substances Import and Export Act (21 U.S.C. 960(d)) is amended to read
as follows:
``(d) A person who knowingly or intentionally--
``(1) imports or exports a listed chemical with intent to
manufacture a controlled substance in violation of this title
or title II;
``(2) exports a listed chemical in violation of the laws of
the country to which the chemical is exported or serves as a
broker or trader for an international transaction involving a
listed chemical, if the transaction is in violation of the laws
of the country to which the chemical is exported;
``(3) imports or exports a listed chemical knowing, or
having reasonable cause to believe, that the chemical will be
used to manufacture a controlled substance in violation of this
title or title II; or
``(4) exports a listed chemical, or serves as a broker or
trader for an international transaction involving a listed
chemical, knowing, or having reasonable cause to believe, that
the chemical will be used to manufacture a controlled substance
in violation of the laws of the country to which the chemical
is exported,
shall be fined in accordance with title 18, imprisoned not more than 10
years, or both.''.
SEC. 5. EXEMPTION AUTHORITY; ANTISMUGGLING PROVISION.
(a) Notification Requirement.--Section 1018 of the Controlled
Substances Import and Export Act (21 U.S.C. 971), as amended by section
1505(a) of this Act, is amended by adding at the end the following new
subsection:
``(e)(1) The Attorney General may by regulation require that the
15-day notification requirement of subsection (a) apply to all exports
of a listed chemical to a specified country, regardless of the status
of certain customers in such country as regular customers, if the
Attorney General finds that such notification is necessary to support
effective chemical diversion control programs or is required by treaty
or other international agreement to which the United States is a party.
``(2) The Attorney General may by regulation waive the 15-day
notification requirement for exports of a listed chemical to a
specified country if the Attorney General determines that such
notification is not required for effective chemical diversion control.
If the notification requirement is waived, exporters of the listed
chemical shall be required to submit to the Attorney General reports of
individual exportations or periodic reports of such exportation of the
listed chemical, at such time or times and containing such information
as the Attorney General shall establish by regulation.
``(3) The Attorney General may by regulation waive the 15-day
notification requirement for the importation of a listed chemical if
the Attorney General determines that such notification is not necessary
for effective chemical diversion control. If the notification
requirement is waived, importers of the listed chemical shall be
required to submit to the Attorney General reports of individual
importations or periodic reports of the importation of the listed
chemical, at such time or times and containing such information as the
Attorney General shall establish by regulation.''.
(b) Prohibited Acts A.--Section 1010(d) of the Controlled
Substances Import and Export Act (21 U.S.C. 960(d)), as amended by
section 4(b) of this Act, is amended--
(1) by striking ``or'' at the end of paragraph (3);
(2) by striking the comma at the end of paragraph (4) and
inserting a semicolon; and
(3) by adding at the end the following new paragraphs:
``(5) imports or exports a listed chemical, with the intent
to evade the reporting or recordkeeping requirements of section
1018 applicable to such importation or exportation by falsely
representing to the Attorney General that the importation or
exportation qualifies for a waiver of the 15-day notification
requirement granted pursuant to section 1018(e) (2) or (3) by
misrepresenting the actual country of final destination of the
listed chemical or the actual listed chemical being imported or
exported; or
``(6) imports or exports a listed chemical in violation of
section 1007 or 1018,''.
SEC. 6. ADMINISTRATIVE INSPECTIONS AND AUTHORITY.
Section 510 of the Controlled Substances Act (21 U.S.C. 880) is
amended--
(1) by amending subsection (a)(2) to read as follows:
``(2) places, including factories, warehouses, and other
establishments, and conveyances, where persons registered under
section 303 (or exempt from registration under section 302(d)
or by regulation of the Attorney General) or regulated persons
may lawfully hold, manufacture, distribute, dispense,
administer, or otherwise dispose of controlled substances or
listed chemicals or where records relating to those activities
are maintained.''; and
(2) in subsection (b)(3)--
(A) in subparagraph (B), by inserting ``, listed
chemicals,'' after ``unfinished drugs''; and
(B) in subparagraph (C), by inserting ``or listed
chemical'' after ``controlled substance'' and inserting
``or chemical'' after ``such substance''.
SEC. 7. THRESHOLD AMOUNTS.
Section 102(39)(A) of the Controlled Substances Act (21 U.S.C.
802(39)(A)), as amended by section 2, is amended by inserting ``a
listed chemical, or if the Attorney General establishes a threshold
amount for a specific listed chemical,'' before ``a threshold amount,
including a cumulative threshold amount for multiple transactions''.
SEC. 8. AMENDMENTS TO LIST I.
Section 102(34) of the Controlled Substances Act (21 U.S.C.
802(34)) is amended--
(1) by striking subparagraphs (O), (U), and (W);
(2) by redesignating subparagraphs (P) through (T) as (O)
through (S), subparagraph (V) as (T), and subparagraphs (X) and
(Y) as (U) and (X), respectively;
(3) in subparagraph (X), as redesignated by paragraph (2),
by striking ``(X)'' and inserting ``(U)''; and
(4) by inserting after subparagraph (U), as redesignated by
paragraph (2), the following new subparagraphs:
``(V) benzaldehyde.
``(W) nitroethane.''.
SEC. 9. ELIMINATION OF REGULAR SUPPLIER STATUS AND CREATION OF REGULAR
IMPORTER STATUS.
(a) Definition.--Section 102(37) of the Controlled Substances Act
(21 U.S.C. 802(37)) is amended to read as follows:
``(37) The term `regular importer' means, with respect to a listed
chemical, a person that has an established record as an importer of
that listed chemical that is reported to the Attorney General.''.
(b) Notification.--Section 1018 of the Controlled Substances Act
(21 U.S.C. 971) is amended--
(1) in subsection (b)--
(A) in paragraph (1) by striking ``regular supplier
of the regulated person'' and inserting ``to an
importation by a regular importer''; and
(B) in paragraph (2)--
(i) by striking ``a customer or supplier of
a regulated person'' and inserting ``a customer
of a regulated person or to an importer''; and
(ii) by striking ``regular supplier'' and
inserting ``the importer as a regular
importer''; and
(2) in subsection (c)(1) by striking ``regular supplier''
and inserting ``regular importer''.
SEC. 10. REPORTING OF LISTED CHEMICAL MANUFACTURING.
Section 310(b) of the Controlled Substances Act (21 U.S.C. 830(b))
is amended--
(1) by inserting ``(1)'' after ``(b)'';
(2) by redesignating paragraphs (1), (2), (3), and (4) as
subparagraphs (A), (B), (C), and (D), respectively;
(3) by striking ``paragraph (1)'' each place it appears and
inserting ``subparagraph (A)'';
(4) by striking ``paragraph (2)'' and inserting
``subparagraph (B)'';
(5) by striking ``paragraph (3)'' and inserting
``subparagraph (C)''; and
(6) by adding at the end the following new paragraph:
``(2) A regulated person that manufactures a listed
chemical shall report annually to the Attorney General, in such
form and manner and containing such specific data as the
Attorney General shall prescribe by regulation, information
concerning listed chemicals manufactured by the person. The
requirement of the preceding sentence shall not apply to the
manufacture of a drug product that is exempted under section
102(39)(A)(iv).''.
SEC. 11. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on
the date that is 120 days after the date of enactment of this Act.
Passed the Senate November 20 (legislative day, November
2), 1993.
Attest:
Secretary.
S 1767 ES----2
S 1767 ES----3
S 1767 ES----4