[Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)]
[Notices]
[Pages 66199-66201]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31962]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[DEA-172N]
Special Surveillance List of Chemicals, Products, Materials and
Equipment Used in the Clandestine Production of Controlled Substances
or Listed Chemicals
AGENCY: Drug Enforcement Administration (DEA), Justice.
ACTION: Publication of Proposed Special Surveillance List.
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SUMMARY: On October 3, 1996, the Comprehensive Methamphetamine Control
Act of 1996 (MCA) was signed into law. The MCA provides for a civil
penalty of not more than $250,000 for the distribution of a laboratory
supply to a person who uses, or attempts to use, that laboratory supply
to manufacture a controlled substance or a listed chemical, if that
distribution was made with reckless disregard for the illegal uses to
which such laboratory supply will be put. The term ``laboratory
supply'' is defined as ``a listed chemical or any chemical, substance,
or item on a special surveillance list published by the Attorney
General which contains chemicals, products, materials, or equipment
used in the manufacture of controlled substances and listed
chemicals.'' DEA is hereby providing notice of its intent to publish
this Special Surveillance List. Upon review of written comments or
objections, DEA will publish the Special Surveillance List in a final
notice.
DATES: Written comments or objections must be received no later than
December 31, 1998.
ADDRESSES: Comments and objections should be submitted in quintuplicate
to the Acting Deputy Administrator, Drug Enforcement Administration,
Washington, DC, Attention: DEA Federal Register Representative/CCR.
FOR FURTHER INFORMATION CONTACT:
[[Page 66200]]
Frank Sapienza, Chief, Drug and Chemical Evaluation Section, Office of
Diversion Control, Drug Enforcement Administration, Washington, DC
20537, Telephone (202) 307-7183.
SUPPLEMENTARY INFORMATION: On October 3, 1996, the Comprehensive
Methamphetamine Control Act of 1996 (MCA) was signed into law. The MCA
broadens controls on listed chemicals used in the production of
methamphetamine and other controlled substances, increases penalties
for the trafficking and manufacturing of methamphetamine and listed
chemicals, and expands regulatory controls to include the distribution
of lawfully marketed drug products which contain the listed chemicals
ephedrine, pseudoephedrine and phenylpropanolamine. The MCA (Section
205) also provides for the publication of a Special Surveillance List
by the Attorney General. The proposed Surveillance List identifies
laboratory supplies which are used in the manufacture of controlled
substances or listed chemicals. The MCA defines ``laboratory supply''
as ``a listed chemical or any chemical, substance, or item on a special
surveillance list published by the Attorney General which contains
chemicals, products, materials, or equipment used in the manufacture of
controlled substances and listed chemicals.'' (21 U.S.C. 842 (a))
The MCA provides for a civil penalty of not more than $250,000 for
the distribution of a laboratory supply to a person who uses, or
attempts to use, that laboratory supply to manufacture a controlled
substance or a listed chemical, if that distribution was made with
``reckless disregard'' for the illegal uses to which such a laboratory
supply would be put. For purposes of this provision, the term
``distribution'' includes the exportation of a laboratory supply. For
any succeeding violation, the MCA provides for a civil fine of not more
than $250,000 or double the last previously imposed penalty, whichever
is greater.
Section 205 of the MCA further states that, for purposes of 21
U.S.C. 842(a)(11), there is a ``rebuttable presumption of reckless
disregard at trial if the Attorney General notifies a firm in writing
that a laboratory supply sold by the firm, or any other person or firm,
has been used by a customer of the notified firm, or distributed
further by that customer, for the unlawful production of controlled
substances or listed chemicals a firm distributes and 2 weeks or more
after the notification the notified firm distributes a laboratory
supply to the customer.''
The CSA contains other sections relating to the illegal manufacture
of controlled substances. Section 841(d)(2) of Title 21 provides that
any person who knowingly or intentionally distributes a listed chemical
knowing, or having reasonable cause to believe, that it will be used in
the illegal manufacture of a controlled substance, is subject to
criminal prosecution. Section 843(a)(7) of Title 21 provides that any
person who distributes any chemical, product, equipment or material
which may be used to manufacture a controlled substance or listed
chemical, knowing, or having reasonable cause to believe, that it will
be used in the illegal manufacture of a controlled substance or listed
chemical, is subject to criminal prosecution.
In developing the proposed Special Surveillance List, the DEA
consulted with both DEA and State/Local law enforcement and forensic
laboratory authorities. The DEA examined clandestine laboratory seizure
reports for information regarding (1) illicit drug production methods;
(2) chemicals actually used in clandestine production of controlled
substances and listed chemicals; and (3) the role and importance of
chemicals used in the syntheses. In addition, the DEA considered the
legitimate uses and market for these chemicals.
The proposed Special Surveillance List focuses on chemicals used in
the domestic production of controlled substances and listed chemicals.
Therefore the list includes those chemicals used not only in the
production of methamphetamine, but also of controlled substances such
as PCP, LSD, methcathinone and amphetamine. The list does not focus on
chemicals used in the production of heroin or cocaine since these drugs
are seldom produced domestically. However, the proposed Special
Surveillance List includes all listed chemicals as specified in 21 CFR
1310.02 (a) or (b). The phrase ``all listed chemicals'' includes all
chemical mixtures and all over-the-counter (OTC) pharmaceutical
products and dietary supplements which contain a listed chemical,
regardless of their dosage form or packaging and regardless of whether
the chemical mixture, drug product or dietary supplement is exempt from
regulatory controls.
The following is the proposed Special Surveillance List for
laboratory supplies used in the manufacture of controlled substances
and listed chemicals:
Special Surveillance List Published Pursuant to Title 21, United States
Code, Section 842(a)(11)
Chemicals
All listed chemicals as specified in 21 CFR 1310.02 (a) or (b).
This includes all chemical mixtures and all over-the-counter (OTC)
products and dietary supplements which contain a listed chemical,
regardless of their dosage form or packaging and regardless of
whether the chemical mixture, drug product or dietary supplement is
exempt from regulatory controls.
Ammonia Gas
Ammonium Formate
Bromobenzene
1,1-Carbonyldiimidazole
Cyclohexanone
1,1-Dichloro-1-fluoroethane (e.g. Freon 141B)
Diethylamine and its salts
2,5-Dimethoxyphenethylamine and its salts
Formamide
Formic Acid
Hypophosphorous Acid
Lithium Metal
Lithium Aluminum Hydride
Magnesium Metal (Turnings)
Mercuric Chloride
N-Methylformamide
Organomagnesium Halides (Grignard Reagents) (e.g. ethylmagnesium
bromide and phenylmagnesium bromide)
Phenylethanolamine and its salts
Phosphorus Pentachloride
Potassium Dichromate
Pyridine and its salts
Red Phosphorus
Sodium Dichromate
Sodium Metal
Thionyl Chloride
ortho-Toluidine
Trichloromonofluoromethane (e.g. Freon-11, Carrene-2)
Trichlorotrifluoroethane (e.g. Freon 113)
Equipment
Hydrogenators
Tableting Machines
Encapsulating Machines
22 Liter Heating Mantels
Individuals and firms which distribute listed chemicals and
chemicals, products, materials, or equipment on the above list, are
hereby officially notified that these materials may be used in the
illicit production of certain controlled substances or listed
chemicals.
The Attorney General has delegated authority under the CSA and all
subsequent amendments to the CSA to the Administrator of the DEA
pursuant to 28 CFR 0.100. The Administrator, in turn, has redelegated
this authority to the Deputy Administrator pursuant to 28 CFR 0.104.
This surveillance list may be revised as appropriate. The list will
be re-published as changes occur. While publication in the Federal
Register satisfies the notification requirements for the Surveillance
List, DEA is attempting to disseminate the list as widely as possible.
Therefore, copies of
[[Page 66201]]
the list will be sent to appropriate industry associations and trade
journals, and to the extent practical, to individual manufacturers and
distributors of ``laboratory supplies.'' In addition, a current
surveillance list will be available on the DEA homepage at http://
www.usdoj.gov/dea/.
Small Business Impact and Regulatory Flexibility Concerns
The proposed Special Surveillance List applies to all individuals
and firms which distribute the listed chemicals and laboratory supplies
(chemicals, products, materials, or equipment) on the list. The notice
does not impose any recordkeeping or reporting requirements for any of
the laboratory supplies which are not listed chemicals. Thus the
suveillance list will have a negligible impact on affected parties.
The notice serves two purposes. First, it informs individuals and
firms of the potential use of the items on the list for the production
of listed chemicals and illicit drugs. Second, it advises individuals
and firms that civil penalties may be imposed on them if they
distribute a laboratory supply to a person anytime after the two week
period following receipt of written notification by the Attoney General
that the person has used, attempted to use, or distributed the
laboratory supply further for the unlawful production of controlled
substances or listed chemicals.
DEA chose to limit the number of chemicals on the proposed Special
Surveillance List to those most frequently used in the clandestine
production of controlled substances or listed chemicals. Limiting the
number of chemicals on the list minimizes the impact on wholesalers and
retailers of the chemicals.
The Acting Deputy Administrator hereby certifies that this proposed
notice has been drafted in a manner consistent with the principles of
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This proposed
notice will provide an increased level of law enforcement control to
prevent the diversion of laboratory supplies used for the production of
listed chemicals and controlled substances. It will not however impose
any new regulatory burden on the public. This proposed notice fulfills
the requirement imposed by section 205 of the Methamphetamine Control
Act (MCA) of 1996 that the Attorney General shall publish a special
surveillance list which contains chemicals, products, materials, or
equipment used in the manufacture of listed chemcials and controlled
substances. A copy of this proposed notice has been provided to the
Chief Counsel for Advocacy at the Small Business Administration.
This proposed notice has been drafted and reviewed in accordance
with Executive Order 12866. This proposed notice has not been
determined to be a significant action. Therefore, this proposed notice
has not been reviewed and approved by the Office of Management and
Budget.
This proposed action has been analyzed in accordance with the
principles and criteria in Executive Order 12612, and it has been
determined that this proposed notice does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
This proposed notice will not result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
This proposed notice is not a major rule as defined by Section 804
of the Small Business Regulatory Enforcement Fairness Act of 1996. This
proposed notice will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Dated: July 24, 1998.
Donnie R. Marshall,
Acting Deputy Administrator.
[FR Doc. 98-31962 Filed 11-30-98; 8:45 am]
BILLING CODE 4410-09-M