[Federal Register Volume 65, Number 22 (Wednesday, February 2, 2000)]
[Proposed Rules]
[Pages 4913-4914]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-2151]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1310

[DEA Number 198]


Possible Control of Red Phosphorus as a Listed Chemical

AGENCY:  Drug Enforcement Administration (DEA), Justice.

ACTION:  Advance notice of proposed rulemaking; Request for comments.

-----------------------------------------------------------------------

SUMMARY:  The Controlled Substances Act (CSA), provides the Attorney 
General Authority to specify by regulation, additional precursor and 
essential chemicals as ``listed chemicals'' if they are used in the 
manufacture of controlled substances in violation of the CSA. This 
notice

[[Page 4914]]

provides advance notification that the United States Drug Enforcement 
Administration (DEA) is considering the possible control of red 
phosphorus as a listed chemical.
    Red phosphorus has been identified as being an important chemical 
used in the illicit production of methamphetamine. DEA is considering 
whether CSA chemical regulatory controls (such as registration, 
recordkeeping, reporting, and import/export requirements) are necessary 
to prevent the diversion of red phosphorus to clandestine drug 
laboratories.
    Prior to deciding whether to control red phosphorus as a listed 
chemical, the DEA is seeking information on red phosphorus trade so 
that diversion of red phosphorous may be prevented with minimal impact 
on legitimate trade. The DEA is soliciting information on the 
manufacturing, distribution, consumption, storage, disposal, and uses 
of red phosphorus.

DATES:  Written comments must be received on or before April 3, 2000.

ADDRESSES:  Comments should be submitted in quintuplicate to the Deputy 
Assistant Administrator, Office of Diversion Control, Drug Enforcement 
Administration, Washington, DC 20537, Attention: DEA Federal Register 
Representative/CCR.

FOR FURTHER INFORMATION CONTACT:  Frank L. Sapienza, Chief, Drug and 
Chemical Evaluation Section, Office of Diversion Control, Drug 
Enforcement Administration, Washington, DC 20537 at (202) 307-7183.

SUPPLEMENTARY INFORMATION:

What Is the Purpose of This Notice?

    The Controlled Substances Act (CSA), specifically 21 U.S.C. 
sections 802(34) and (35); 21 CFR 1310.02(c), provides the Attorney 
General with the authority to specify, by regulation, additional 
precursor and essential chemicals as ``listed chemicals'' if they are 
used in the manufacture of controlled substances in violation of the 
CSA. This authority has been delegated to the Administrator of DEA by 
28 CFR 0.100 and redelegated to the Deputy Administrator under 28 CFR 
0.104 (Subpart R) Appendix Sec. 12.
    This notice provides advance notification that the U.S. Drug 
Enforcement Administration is considering the control of red phosphorus 
as a listed chemical. Red phosphorus has been identified as being an 
important chemical used in the illicit production of methamphetamine. 
The public health consequences of the manufacture, trafficking, and 
abuse of methamphetamine are well known and documented.

What Regulatory Controls Currently exist on Red Phosphorus?

    Since red phosphorus is a common chemical used in methamphetamine 
production, it has already been placed on the Attorney General's 
``special surveillance list'' of ``laboratory supplies''. The 
Comprehensive Methamphetamine Control Act of 1996 (MCA) amended the CSA 
via the addition of 21 U.S.C. 842(a)(11), which 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.
    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.'' This special surveillance list was published by DEA 
on May 13, 1999 (64 FR 25910) and includes red phosphorus.

What Additional Action is DEA Considering?

    Due to the continued use of red phosphorus in illicit 
methamphetamine synthesis, the DEA is considering whether to place 
additional controls on red phosphorus, by adding red phosphorus as a 
listed chemical. As such, red phosphorus would be subject to additional 
CSA regulatory controls such as registration, recordkeeping, reporting, 
and import/export requirements as specified in 21 CFR part 1300. DEA is 
considering whether these additional regulatory controls are needed to 
prevent the diversion of red phosphorus to clandestine laboratories.

Why Is DEA Seeking Information?

    DEA is seeking information on red phosphorus trade so that 
diversion of red phosphorus may be prevented with minimal impact on 
legitimate trade. DEA is aware that the industrial uses of red 
phosphorus include the manufacture of pyrotechnics, safety matches, 
phosphoric acid and other phosphorus compounds, fertilizers, incendiary 
shells, smoke bombs, tracer bullets, and pesticides. DEA recognizes 
that regulation of red phosphorus may have some effect upon these, and 
other, industrial activities. However, DEA is not aware of the entire 
scope of use of red phosphorus by industry and consumers.

What Information Does This Notice Seek?

    The DEA is soliciting input from the potentially affected parties 
regarding (1) the nature of the legitimate phosphorus industry, (2) the 
legitimate uses of red phosphorus at all levels of distribution 
(including industrial uses and use by individual end-users at the 
retail level of distribution), (3) the potential burden such regulatory 
controls may have on legitimate industry (particularly with respect to 
the impact on small businesses), (4) the potential number of 
individuals/firms which may be adversely affected by increased 
regulatory requirements, and (5) any other information on the manner of 
manufacturing, distribution, consumption, storage, disposal, and uses 
of red phosphorus by industry and others. Both quantitative and 
qualitative data are sought.
    Such information may be submitted to the Drug and Chemical 
Evaluation Section and is requested by April 3, 2000. Information 
designated as confidential or proprietary will be treated accordingly. 
The release of confidential business information that is protected from 
disclosure under Exemption 4 of the Freedom of Information Act, 5 
U.S.C. 552(b)(4) (FOIA), is governed by section 310(c) of the CSA (21 
U.S.C. 830(c) and the Department of Justice procedures set forth in 28 
CFR 16.7.

    Dated: January 11, 2000.
John H. King,
Deputy Assistant Administrator, Office of Diversion Control.
[FR Doc. 00-2151 Filed 2-1-00; 8:45 am]
BILLING CODE 4410-09-M