[Federal Register Volume 66, Number 159 (Thursday, August 16, 2001)]
[Rules and Regulations]
[Pages 42944-42946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20578]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1310

[DEA-156FF]
RIN #1117-AA43


Listed Chemicals; Establishment of Non-Regulated Transactions in 
Anhydrous Hydrogen Chloride

AGENCY: Drug Enforcement Administration (DEA), Justice.

ACTION: Final rule confirmation.

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SUMMARY: Effective October 3, 1996, the Comprehensive Methamphetamine

[[Page 42945]]

Control Act of 1996 (MCA) had the practical effect of directing the DEA 
to place domestic controls on anhydrous hydrogen chloride. Previously, 
exports of the listed chemical hydrochloric acid (including anhydrous 
hydrogen chloride, referred to in the MCA as hydrochloric gas, which is 
a form of hydrogen chloride) were already regulated pursuant to 21 CFR 
1310. A domestic threshold of zero (0.0 kilograms) for anhydrous 
hydrogen chloride became effective September 1, 2000, by a Final Rule 
published on August 2, 2000 (65 FR 47309).
    Although the threshold for anhydrous hydrogen chloride is 
established at 0.0 kilogram, DEA has concluded that certain 
transactions in anhydrous hydrogen chloride are not sources for 
diversion. The Final Rule establishing a zero threshold for anhydrous 
hydrogen chloride also provided exemption, on an interim basis, from 
the recordkeeping and reporting requirements for: (1) Domestic 
transactions involving pipeline distributions; and (2) domestic 
distributions of 12,000 pounds (net weight) or more in a single 
container. Because these exemptions were not discussed in the Notice of 
Proposed Rulemaking published on September 30, 1997 (62 FR 51072), DEA 
requested public comment with respect to the exemption for these two 
types of transactions involving anhydrous hydrogen chloride. The period 
for public comment closed on September 1, 2000. Two comments were 
received supporting these exemptions. This publication finalizes the 
interim rule without change.

EFFECTIVE DATE: The final rule published at 65 FR 47309 remains 
effective as of August 2, 2000.

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

SUPPLEMENTARY INFORMATION:

A. What Is Anhydrous Hydrogen Chloride?

    Anhydrous hydrogen chloride is the water free form of hydrochloric 
acid and is a List II chemical under the Controlled Substances Act 
(CSA). The statutory term ``hydrochloric gas'' used in the MCA refers 
to a form of hydrogen chloride more properly called anhydrous hydrogen 
chloride. Anhydrous hydrogen chloride is hydrogen chloride that is free 
from water. At ambient temperature and normal atmospheric pressure, 
anhydrous hydrogen chloride exists as a gas. Therefore, sometimes 
anhydrous hydrogen chloride is referred to as hydrogen chloride gas or 
hydrochloric gas.
    When the atmospheric pressure is increased and/or the temperature 
is decreased, anhydrous hydrogen chloride can change from a gas to a 
liquid. This is sometimes referred to as refrigerated hydrogen 
chloride. Refrigerated hydrogen chloride is the same as anhydrous 
hydrogen chloride although the physical state has been changed from a 
gas to a liquid.

B. What Is DEA Doing in this Rulemaking?

    The DEA is finalizing the interim portion of the Final Rule 
``Listed Chemicals; Final Establishment of Thresholds for Iodine and 
Hydrochloric Gas (Anhydrous Hydrogen Chloride),'' published on August 
2, 2000 (65 FR 47309). That rulemaking provided that there would be a 
zero threshold for domestic transactions involving anhydrous hydrogen 
chloride. However, it also provided an exemption, on an interim basis, 
from the recordkeeping and reporting requirements for transactions of 
anhydrous hydrogen chloride involving pipeline distributions and 
distributions of 12,000 pounds (net weight) or more in a single 
container. That is, two new paragraphs were added to Title 21 Section 
1310.08 to exclude these types of transactions from the definition of 
regulated transactions. Although the exemption for these categories 
became effective upon publication in the Federal Register, the DEA 
sought public comment on these exemptions.

C. Why Is DEA Exempting These Categories of Transactions

    The CSA authorizes DEA, pursuant to 21 U.S.C. 802(39)(A)(iii), to 
remove certain transactions in listed chemicals from the definition of 
regulated transaction. DEA has determined that transactions in 
anhydrous hydrogen chloride in the form of refrigerated liquid and 
transactions involving the direct transfer of anhydrous hydrogen 
chloride by pipeline are unlikely sources for diversion and should be 
removed from the definition of regulated transaction. DEA became aware 
of these types of transactions by the comments received in response to 
the Federal Register proposal to establish thresholds for iodine and 
anhydrous hydrogen chloride (62 FR 51072).
    To better evaluate this request, DEA collected additional 
information from the affected industry. DEA learned that rail and truck 
carriers ship refrigerated liquid only in large containers. The average 
payload of a rail car is approximately 135,000 pounds. The capacity for 
tank trucks is approximately 12,000 to 30,000 pounds. These shipments 
are in single containers holding the specified weights. Specialized 
equipment and engineering skills are needed to off-load this commodity. 
Distributors are aware of their customers and are involved in tracking 
shipments. The DEA believes that anhydrous hydrogen chloride in this 
form and in these quantities is not likely to be diverted.
    DEA has not identified any shipment of refrigerated anhydrous 
hydrogen chloride less than the tank truck size of approximately 12,000 
pounds. Therefore, domestic distributions of anhydrous hydrogen 
chloride in single container shipments of 12,000 pounds (net weight) or 
more will be excluded from the definition of regulated transaction. 
Transactions that involve multiple containers, each containing less 
than 12,000 pounds of the chemical are regulated transactions even if 
the aggregate weight is over 12,000 pounds.

D. Comments Received

    The DEA received two comments on the exemption of certain 
transactions of anhydrous hydrogen chloride. Both favored the 
exemptions as written. One comment supports the exempt categories 
because of technological restraints that prevent diversion from these 
sources. The other comment states that these exemptions are in concert 
with DEA's desire to control sales of cylinders that are used in 
illicit methamphetamine production.
    The DEA will finalize the interim rule without change to exempt the 
following categories of transactions involving anhydrous hydrogen 
chloride: (1) Domestic distribution of anhydrous hydrogen chloride 
weighing 12,000 pounds (net weight) or more in a single container; and 
(2) Domestic distribution of anhydrous hydrogen chloride by pipeline. 
Therefore, the interim rule amending 21 CFR Part 1310, which was 
published in the Federal Register on August 2, 2000, at 65 FR 47309 is 
adopted as a final rule.

Regulatory Flexibility and Small Business Concerns

    This regulation will not have a significant economic impact upon a 
substantial number of small entities that trade in anhydrous hydrogen 
chloride. This Final Rule excludes from the definition of ``regulated 
transaction'' domestic transactions involving anhydrous hydrogen 
chloride in bulk quantities of 12,000 pounds (net weight)

[[Page 42946]]

or more and domestic distribution made by pipeline.
    The Administrator in accordance with the Regulatory Flexibility Act 
(5 U.S.C. 605(b)), has reviewed this regulation and by approving it 
certifies that this regulation will not have a significant economic 
impact upon a substantial number of small entities for the following 
reasons: This Rulemaking removes recordkeeping and reporting 
requirements for certain transactions in anhydrous hydrogen chloride. 
This action is being taken in response to industry's request to relieve 
them of regulatory burdens.

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Section 1(b), Principles of Regulation. The DEA 
has determined that this rule is not a ``significantly regulatory 
action'' under Executive Order 12866, Section 3(f), Regulatory Planning 
and Review, and accordingly this rule has not been reviewed by the 
Office of Management and Budget.

Unfunded Mandates Reform Act of 1995

    This rule 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in cost or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based companies to 
compete in domestic and export markets.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988

    This regulation meets the applicable standards set forth in 
Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice 
Reform.

Plain Language Instructions

    The Drug Enforcement Administration makes every effort to write 
clearly. If you have suggestions as to how to improve the clarity of 
this regulation, call or write Patricia M. Good, Chief, Liaison and 
Policy Section, Drug Enforcement Administration, Office of Diversion 
Control, Washington, DC 20537, Telephone (202) 307-7297.
    Therefore, DEA confirms the final rule with request for comment 
amending 21 CFR Part 1310, which was published in the Federal Register 
on August 2, 2000, at 65 FR 47309, without change.

    Dated: August 3, 2001.
William B. Simpkins,
Acting Administrator.
[FR Doc. 01-20578 Filed 8-15-01; 8:45 am]
BILLING CODE 4410-09-M