[Federal Register Volume 64, Number 92 (Thursday, May 13, 1999)]
[Notices]
[Pages 25910-25912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12037]


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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: Final notice.

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SUMMARY: On October 3, 1996, the Comprehensive Methamphetamine Control 
Act of 1996 (MCA) was signed into law. The MCA makes it unlawful for 
any person to distribute a laboratory supply to a person who uses, or 
attempts to use, that laboratory supply to manufacture a controlled 
substance or a listed chemical, with reckless disregard for the illegal 
uses to which such laboratory supply will be put. Individuals who 
violate this provision are subject to a civil penalty of not more than 
$25,000; businesses which violate this provision are subject to a civil 
penalty of not more than $250,000. 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.'' This final 
notice contains the list of ``laboratory supplies'' which constitutes 
the Special Surveillance List that was required to be published by the 
Attorney General pursuant to Title 21, United States Code, Section 
842(a).
EFFECTIVE DATE: May 13, 1999.

FOR FURTHER INFORMATION CONTACT: Frank Sapienza, Chief, Drug and 
Chemical Evaluation Section, Office of Diversion Control, Drug 
Enforcement Administration, Washington, D.C. 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 also

[[Page 25911]]

provides for the publication of a Special Surveillance List by the 
Attorney General. 21 U.S.C. 842(a). The Special 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 Deputy Administrator of the DEA, in a December 1, 1998, Federal 
Register notice (63 FR 66201), published a proposed Special 
Surveillance List. The notice provided an opportunity for all 
interested parties to submit their comments and objections in writing 
on the proposed Special Surveillance List until December 31, 1998, DEA 
received one comment regarding the proposal. The comment was a joint 
response from the Agricultural Retailers Association (ARA) and The 
Fertilizer Institute (TFI). Both organizations fully supported the 
DEA's implementation of the Methamphetamine Control Act of 1996 and 
specifically the publication of the ``Special Surveillance List'' of 
laboratory supplies used in methamphetamine production. The ARA/TFI, 
however, asked if its members would be subject to the $250,000 civil 
penalty provisions of the MCA for thefts of anhydrous ammonia, a 
Special Surveillance List chemical, from portable tanks stored on their 
properties. In response to the ARA/TFI question, the civil penalty 
provision of the MCA applies to a ``distribution'' or ``sale'' of a 
laboratory supply by a business or firm to a customer for the unlawful 
production of controlled substances or listed chemicals. A theft by 
definition is not a distribution or a sale and thus individuals would 
not be subject to the civil penalty provisions of the MCA for thefts of 
a laboratory supply.
    The MCA provides for a civil penalty of not more than $250,000 for 
the distribution by a business 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. 21 U.S.C. 842(a)(11), 842(c)(2)(C). 
Individuals who violate 21 U.S.C. 84(a)(11) are subject to a civil 
penalty of not more than $25,000. 21 U.S.C 842(c)(1)(A). For purposes 
of this provision, the term ``distribution'' includes the exportation 
of a laboratory supply.
    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 knowingly or intentionally distributes any chemical, 
product, equipment 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 mauufacture a 
controlled substance or listed chemical, is subject to criminal 
prosecution.
    In developing the 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 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 other 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 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 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

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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. Notice of 
proposed changes will be published as they occur. While publication in 
the Federal Register satisfies the notification requirements for the 
Special Surveillance List, DEA is attempting to disseminate the list as 
widely as possible. Therefore, copies of 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 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 record-keeping or reporting requirements for any of 
the laboratory supplies which are not listed chemicals. Thus the 
surveillance 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 Attorney 
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, products, materials, 
and equipment on the Special Surveillance List to those most frequently 
used in the clandestine production of controlled substances or listed 
chemicals. Limiting the number of such items on the list minimizes the 
impact on wholesalers and retailers of the chemicals.
    The Deputy Administrator hereby certifies that this notice has been 
drafted in a manner consistent with the principles of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). This 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 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 chemicals and controlled substances. A copy of 
this notice has been provided to the Chief Counsel for Advocacy at the 
Small Business Administration.
    This notice has been drafted and reviewed in accordance with 
Executive Order 12866. This notice has not been determined to be a 
significant action. Therefore, this notice has not been reviewed and 
approved by the Office of Management and Budget.
    This action has been analyzed in accordance with the principles and 
criteria in Executive Order 12612, and it has been determined that this 
notice does not have sufficient federalism implications to warrant the 
preparation of a Federalism Assessment.
    This 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 notice is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This 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: May 3, 1999.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 99-12037 Filed 5-12-99; 8:45 am]
BILLING CODE 4410-09-M