[Congressional Record Volume 155, Number 9 (Thursday, January 15, 2009)]
[Senate]
[Pages S614-S615]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. Kyl, Mr. Reid, Mr. Durbin, 
        Mr. McConnell, Mr. Bingaman, Mr. Ensign, Mr. Schumer, Mr. 
        Inhofe, Mrs. McCaskill, Mr. Kerry, Mr. Bayh, Mr. Alexander, Mr. 
        Grassley, Mr. Nelson of Florida, Mr. Johnson, and Ms. 
        Cantwell):
  S. 256. A bill to enhance the ability to combat methamphetamine; to 
the Committee on the Judiciary.
  Mrs. FEINSTEIN. Mr. President, I am pleased to introduce, along with 
Senators Kyl, Reid, Durbin, McConnell, Bingaman, Ensign, Schumer, 
Inhofe, McCaskill, Kerry, Bayh, Alexander, Grassley, Nelson of Florida, 
Johnson, and Cantwell the Combat Methamphetamine Enhancement Act of 
2009.
  This Act is designed to address problems that the Drug Enforcement 
Administration, DEA, has identified in the implementation of the Combat 
Methamphetamine Epidemic Act of 2005. I was pleased to join former 
Senator Talent in drafting, introducing, and securing the passage of 
the original bill. I am pleased to introduce this legislation today to 
ensure that it operates as Congress intended.
  The bill that I introduce today would clarify that all retailers, 
including mail order retailers, who sell products that contain 
chemicals often used to make methamphetamine--like ephedrine, 
pseudoepedrine and phenylpropanolamine--must self-certify that they 
have trained their personnel and will comply with the Combat Meth Act's 
requirements; require distributors to sell these products only to 
retailers who have certified that they will comply with the law; 
require the DEA to publish the list of all retailers who have filed 
self-certifications, on the DEA's website; and clarify that any 
retailer who negligently fails to file self-certification as required, 
may be subject to civil fines and penalties.
  The Combat Methamphetamine Epidemic Act that we passed in 2006 has 
been a resounding success. The number of methamphetamine labs in the 
United States has declined dramatically now that the ingredients used 
to make methamphetamine are harder to get.
  The Combat Meth Act that became effective in September 2006 included 
important new provisions for retailer self-certification, employee 
training, requiring products to be placed behind counters, packaging 
requirements, required sales logbooks, and limits on the amounts that a 
person can purchase in a given day and over a 30-day period.
  Now, because of that law's implementation, the number of 
methamphetamine labs decreased from about 12,000 labs to about 7,300 
labs a 41 percent decrease in just 1 year. Once the bill was enacted 
into law, the number of meth ``super labs'' in my home State of 
California declined from 30 in 2005 to only 17 in 2006.
  Fewer meth labs means more than just less illegal drug production. 
According to the Fresno Bee, the DEA has noted that in 2003, 3,663 
children were reported exposed to toxic meth labs nationwide but that 
number had been reduced to 319 in 2006.
  So things are moving in the right direction, and that is good news. 
But with more thousands of methamphetamine labs still operating in the 
U.S., and children still being exposed to their toxins, it is also 
clear that there is still work to be done.
  After the Combat Meth Act became law, DEA examined how the retailer 
self-certification process was working. On May 16, 2007, DEA sent 
letters to the 1,600 distributors who they believed were selling 
products that contained ephedrine or pseudoephedrine, asking them to 
turn over lists of the retail stores that they sell to, so that DEA 
could check to see how many of those retailers had self-certified as 
that law requires.
  Rather than actively assisting the DEA in its efforts, about \3/4\ of 
the distributors failed or declined to provide any information about 
the retail stores.
  The distributors who did cooperate provided DEA with the names of 
12,375 retail customers. When DEA checked those out, it found that 
about 8,300 of those retail stores had never self-certified as the law 
requires.
  Based on these findings, the DEA estimates that nationwide, as many 
as 30,000 additional retail sellers of products are not complying with 
the law.
  In short, retailers' non-compliance with the self-certification 
requirement appears to be widespread, and undercuts the effectiveness 
of the Combat Meth Act.
  Unfortunately, there is no effective way for law enforcement to 
determine the universe of who is, and who is not, obeying the law. 
Currently, there is no requirement that retailers notify the DEA before 
they start selling products with these listed chemicals.
  Retailers can likely avoid negative consequences if they are ever 
confronted with their failure to self-certify. Currently, the law 
imposes sanctions only for willful and reckless refusals to self-
certify. There is no punishment available if a retailer negligently 
fails to self-certify as required. Not even civil sanctions are 
available.
  In short, without distributors restricting the supply of these 
products to retailers who have self-certified, retailers may simply 
take their chances, rather than self-certifying as the law intended, 
figuring that they'll never get caught, or if they do get caught, that 
they will never be punished.
  It is unacceptable that, over two years after the Combat Meth Act 
imposed this requirement and became fully effective, tens of thousands 
of retailers still are not following the law. It is unacceptable that 
distributors of these products can continue to profit off of their 
sales to retailers who are not complying, or are even refusing to 
comply with the law.
  So this bill is designed to make the Combat Meth Act more effective, 
by putting in place a process that will ensure that every retailer who 
orders these products that can be used to make methamphetamine must 
comply with the law before they can get and resell the products.
  First, it will require that all retail sellers of products with these 
listed chemicals must file self-certifications, closing a loophole that 
now exists for mail-order retailers.
  Second, the DEA will be required to post all self-certified retailers 
on its

[[Page S615]]

website, so that advocacy groups and others who are concerned about 
methamphetamine in their communities can identify retailers who are 
selling these products without complying with the law, and can notify 
the authorities.
  Third, distributors of these products will only be allowed to sell to 
retailers who have self-certified, which they will be able to verify by 
checking the DEA's public website. Once recalcitrant retailers are 
faced with the real and immediate economic consequence of a possible 
cut-off of their desire to purchase these products, I am confident that 
most will file self-certifications as the law requires.
  Finally, the bill clarifies that even a negligent failure to self-
certify, if proven, can give rise to civil sanctions.
  This is a common-sense bill, designed to strengthen the 
implementation of the Combat Methamphetamine Epidemic Act. This bill 
would create incentives to ensure that the self-certification process 
of the law is made both effective and enforceable.
  I urge my colleagues to support this legislation.
  Mr. Presdient, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 256

       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 ``Combat Methamphetamine 
     Enhancement Act of 2009''.

     SEC. 2. REQUIREMENT OF SELF-CERTIFICATION BY ALL REGULATED 
                   PERSONS SELLING SCHEDULED LISTED CHEMICALS.

       Section 310(e)(2) of the Controlled Substances Act (21 
     U.S.C. 830(e)(2)) is amended by inserting at the end the 
     following:
       ``(C) Each regulated person who makes a sale at retail of a 
     scheduled listed chemical product and is required under 
     subsection (b)(3) to submit a report of the sales transaction 
     to the Attorney General may not sell any scheduled listed 
     chemical product at retail unless such regulated person has 
     submitted to the Attorney General a self-certification 
     including a statement that the seller understands each of the 
     requirements that apply under this paragraph and under 
     subsection (d) and agrees to comply with the requirements. 
     The Attorney General shall by regulation establish criteria 
     for certifications of mail-order distributors that are 
     consistent with the criteria established for the 
     certifications of regulated sellers under paragraph 
     (1)(B).''.

     SEC. 3. PUBLICATION OF SELF-CERTIFIED REGULATED SELLERS AND 
                   REGULATED PERSONS LISTS.

       Section 310(e)(1)(B) of the Controlled Substances Act (21 
     U.S.C. 830(e)(1)(B)) is amended by inserting at the end the 
     following:
       ``(v) Publication of list of self-certified persons.--The 
     Attorney General shall develop and make available a list of 
     all persons who are currently self-certified in accordance 
     with this section. This list shall be made publicly available 
     on the website of the Drug Enforcement Administration in an 
     electronically downloadable format.''.

     SEC. 4. REQUIREMENT THAT DISTRIBUTORS OF LISTED CHEMICALS 
                   SELL ONLY TO SELF-CERTIFIED REGULATED SELLERS 
                   AND REGULATED PERSONS.

       Section 402(a) of the Controlled Substances Act (21 U.S.C. 
     842(a)) is amended--
       (1) in paragraph (13), by striking ``or'' after the 
     semicolon;
       (2) in paragraph (14), by striking the period and inserting 
     ``; or'';
       (3) by inserting after paragraph (14) the following:
       ``(15) to distribute a scheduled listed chemical product to 
     a regulated seller, or to a regulated person referred to in 
     section 310(b)(3)(B), unless such regulated seller or 
     regulated person is, at the time of such distribution, 
     currently registered with the Drug Enforcement 
     Administration, or on the list of persons referred to under 
     section 310(e)(1)(B)(v).''; and
       (4) inserting at the end the following: ``For purposes of 
     paragraph (15), if the distributor is temporarily unable to 
     access the list of persons referred to under section 
     310(e)(1)(B)(v), the distributor may rely on a written, 
     faxed, or electronic copy of a certificate of self-
     certification submitted by the regulated seller or regulated 
     person, provided the distributor confirms within 7 business 
     days of the distribution that such regulated seller or 
     regulated person is on the list referred to under section 
     310(e)(1)(B)(v).''.

     SEC. 5. NEGLIGENT FAILURE TO SELF-CERTIFY AS REQUIRED.

       Section 402(a) of the Controlled Substances Act (21 U.S.C. 
     842(a)(10)) is amended by inserting before the semicolon the 
     following: ``or negligently to fail to self-certify as 
     required under section 310 (21 U.S.C. 830)''.

     SEC. 6. EFFECTIVE DATE AND REGULATIONS.

       (a) Effective Date.--This Act and the amendments made by 
     this Act shall take effect 180 days after the date of 
     enactment of this Act.
       (b) Regulations.--In promulgating the regulations 
     authorized by section 2, the Attorney General may issue 
     regulations on an interim basis as necessary to ensure the 
     implementation of this Act by the effective date.
                                 ______