[Federal Register Volume 66, Number 201 (Wednesday, October 17, 2001)]
[Rules and Regulations]
[Pages 52670-52675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-26013]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Parts 1309 and 1310

[DEA Number 198F1]
RIN 1117-AA57


Control of Red Phosphorus, White Phosphorus and Hypophosphorous 
Acid (and its salts) as List I Chemicals

AGENCY: Drug Enforcement Administration (DEA), Justice.

ACTION: Final Rule with request for comments.

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SUMMARY: This rulemaking finalizes a September 25, 2000 Notice of 
Proposed Rulemaking (65 FR 57577) in which DEA proposed the addition of 
red phosphorus, white phosphorus (also known as yellow phosphorus) and 
hypophosphorous acid (and its salts) as List I chemicals. This action 
is being taken because of the use and importance of these chemicals in 
the illicit manufacture of methamphetamine (a Schedule II controlled 
substance).
    As List I chemicals, handlers of these materials will be subject to 
CSA chemical regulatory controls including registration, recordkeeping, 
reporting, and import/export requirements. The Drug Enforcement 
Administration (DEA) has determined that these controls are necessary 
to prevent the diversion of these chemicals to clandestine drug 
laboratories.
    Given the small quantities of these chemicals necessary for the 
production of methamphetamine, no threshold is being established for 
domestic and international transactions. As such, all transactions 
(regardless of size) shall be considered regulated transactions, 
subject to recordkeeping, reporting and/

[[Page 52671]]

or import/export notification requirements.

DATES: Effective Date: This final rule is effective November 16, 2001.
    Comment date: Written comments on 21 CFR 1309.29(b), 1309.29(c) and 
1310.09(d) must be submitted on or before November 16, 2001.

ADDRESSES: Comments should be submitted to the Administrator, 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) and its implementing 
regulations, specifically 21 U.S.C. 802(34) and 21 CFR 1310.02(c), 
provide the Attorney General with the authority to specify, by 
regulation, additional chemicals as ``List I'' chemicals if they are 
used in the manufacture of a controlled substance in violation of the 
CSA and are important to the manufacture of the controlled substance. 
This authority has been delegated to the Administrator of DEA by 28 CFR 
0.100.

What Specific Chemicals Does This Regulation Include? What Related 
Chemicals Will Not Be Subject to This Control Action?

    Phosphorus is a nonmetallic element that can occur in three main 
allotropic (i.e. crystalline) forms (white, red and black). Elemental 
phosphorus is derived from phosphate rock. The most abundant variety 
produced is white phosphorus (also known as yellow phosphorus). Most 
other forms of phosphorus and phosphorus chemicals are produced from 
white phosphorus.
    The second crystalline form is red phosphorus. Red phosphorus is 
usually prepared as a powder and is more stable and less toxic than the 
white form. A black crystalline form of phosphorus is also occasionally 
made and is similar to graphite in its physical, thermal and electrical 
properties.
    The white and red forms of elemental phosphorus are being 
designated as List I chemicals. Black phosphorus and phosphate rock 
will not be affected by this action.
    Additionally, DEA is adding hypophosphorous acid and its salts as 
List I chemicals. While hypophosphorous acid 
(H3PO2) is most commonly sold as 10%, 30% or 50% 
solutions, control will apply to all aqueous dilutions of 
hypophosphorous acid. Salts of hypophosphorous acid are known as 
hypophosphite salts. These salts are also being designated as List I 
chemicals. Examples of these salts include: Ammonium hypophosphite, 
calcium hypophosphite, iron hypophosphite, potassium hypophosphite, 
manganese hypophosphite, magnesium hypophosphite and sodium 
hypophosphite.

Why Does DEA Believe That Control of Red Phosphorus, White 
Phosphorus, and Hypophosphorous Acid (and its Salts) Is Necessary?

    DEA has identified these chemicals as being used in the illicit 
production of methamphetamine. The public health consequences of the 
manufacture, trafficking, and abuse of methamphetamine are well known 
and documented. The September 25, 2000 NPRM (65 FR 57577) demonstrated 
how the chemistry and illicit use of these chemicals make them 
important to the manufacture of methamphetamine and therefore meet the 
definition of List I chemicals. Hence, this rulemaking makes these 
chemicals subject to CSA regulatory controls for List I chemicals, 
including registration, recordkeeping, reporting, and import/export 
requirements as specified in 21 CFR parts 1309, 1310 and 1313. DEA 
believes that these regulatory controls are needed to prevent the 
diversion of these phosphorus chemicals to clandestine laboratories.

What Regulatory Controls Will Apply to These Chemicals?

    As List I chemicals, red phosphorus, white phosphorus, and 
hypophosphorous acid and its salts will be subject to the chemical 
regulatory control provisions and civil and criminal sanctions of the 
CSA. As such, recordkeeping, reporting and import/export notification 
requirements (as described in 21 CFR parts 1310 and 1313) shall apply. 
Manufacturers, distributors, importers and exporters of white 
phosphorus, red phosphorus and hypophosphorous acid (and its salts) 
will be required to register with DEA pursuant to the provisions of 21 
CFR part 1309.
    Handlers of these chemicals will also be required to maintain 
records and meet CSA import/export notification requirements for 
``regulated transactions'' of these chemicals. The CSA (21 U.S.C. 
802(39)) defines the term ``regulated transaction'' as a 
``distribution, receipt, sale, importation, or exportation of, or an 
international transaction involving the shipment of, a listed chemical, 
or if the Attorney General establishes a threshold amount for a 
specific listed chemical, a transaction involving a threshold amount''. 
The CSA, therefore, provides the Attorney General with authority to 
establish a threshold amount for ``listed chemicals'' if the Attorney 
General so elects. This rulemaking does not establish a threshold for 
red phosphorus, white phosphorus or hypophosphorous acid (and its 
salts). Therefore, all transactions regardless of size will be 
considered ``regulated transactions''.
    DEA has endeavored, within this rulemaking, to limit the impact of 
these regulations on the affected industry. In some instances, as 
discussed below in the responses to specific comments (e.g., separate 
registration for separate locations) the specific language of the CSA 
established the parameters of control. However, in other areas, DEA has 
been able to take additional steps in these final regulations to lessen 
the impact of these regulatory requirements on the affected industry, 
while simultaneously carrying out DEA's mandate of preventing diversion 
of these chemicals.

When Will These Regulatory Requirements Become Effective?

    Effective November 16, 2001, any person distributing, importing, or 
exporting any of these listed chemicals will become subject to the 
registration requirement under the CSA. DEA recognizes, however, that 
it is not possible for persons who distribute, import, or export any of 
these listed chemicals to immediately complete and submit an 
application for registration and for DEA to immediately issue 
registrations for those activities. Therefore, in order to allow 
continued legitimate commerce in these listed chemicals, DEA is 
establishing in 21 CFR 1310.09 a temporary exemption from the 
registration requirement for persons desiring to distribute, import, or 
export red phosphorus, white phosphorus and hypophosphorous acid (and 
its salts), provided that DEA receives a properly completed application 
for registration on or before December 17, 2001. The temporary 
exemption for such persons will remain in effect until DEA takes final 
action on their application for registration. The temporary exemption 
applies solely to the registration requirement; all other chemical 
control requirements, including recordkeeping and reporting, are 
effective on November 16. 2001. Additionally, the temporary exemption 
does not suspend applicable Federal

[[Page 52672]]

criminal laws relating to these listed chemicals, nor does it supersede 
state or local laws or regulations. All handlers of the listed 
chemicals must comply with applicable state and local requirements in 
addition to the CSA regulatory controls.

Comments

    DEA received eight comments in response to the NPRM. While the 
general tone of the comments was supportive of efforts to prevent the 
flow of listed chemicals to clandestine laboratories, the commentors 
raised a number of concerns regarding certain provisions of the 
proposed regulation.

Registration

    1. Four commentors expressed concerns regarding the registration 
requirement for handlers of List I chemicals. These commentors 
requested clarification as to the need for the List I registration 
requirement and expressed the belief that List II controls would be 
adequate to address the diversion problem.
    DEA strongly believes that given the nature of the diversion of red 
phosphorus, white phosphorus and hypophosphorous acid (and its salts), 
the registration requirement is necessary in order to effectively 
prevent diversion. While neither DEA nor any commentors identified any 
household uses for any of these chemicals, they have been widely 
distributed by firms engaged primarily in retail sales to the general 
public.
    The CSA requires persons who distribute, import or export a List I 
chemical to obtain a registration and requires that DEA determine if 
such registration would be in the public interest pursuant to the 
criteria set forth in 21 U.S.C. 823(h). Each registration applicant 
would be subject to a separate pre-registration investigation that 
would require, among other things, a visit to the applicant's place of 
business and a determination as to whether the criteria regarding 
public interest are met. DEA will closely scrutinize each registration 
applicant to ensure that only those who distribute these chemicals for 
legitimate purposes become and remain registered.
    DEA has also noted that these chemicals have commonly been sold via 
the Internet to the general public. DEA has strong concerns regarding 
the sale of these chemicals via such means. DEA believes that those 
Internet sites which choose not to prohibit the sales of such items 
should, at a minimum, require sellers to provide proof of DEA 
registration prior to listing such items for sale. The registration 
requirement is essential to identify rogue distributors and eliminate 
the ability of firms to illegally distribute these chemicals.
    2. Two commentors stated that the List I registration requirement 
would place a significant burden on industry. One of these commentors, 
a major national trade association, stated that it had identified six 
member firms which distribute hypophosphorous acid (and its salts). The 
commentor further stated that two of these members have between 22 and 
30 facilities and expressed concerns regarding the need to register 
each location. One additional commentor objected to the requirement 
that a separate registration be obtained at each location at which List 
I chemicals activities are carried out. The commentor suggested that 
DEA allow companies to obtain a single registration, with attendant 
fee, for multiple locations.
    The law, however, is specific on this point. The Domestic Chemical 
Diversion Control Act of 1993 (Pub. L. 103-200) requires that a 
separate registration be obtained at each location at which the List I 
chemicals are distributed, imported or exported (21 U.S.C. 822(e) and 
958(h).
    3. The previously-mentioned trade association also expressed 
concerns that if a firm handles multiple phosphorus chemicals, then 
they must obtain multiple registrations. However, DEA wishes to 
emphasize that registration is by individual location (and not by 
chemicals handled). Only one registration is required for a firm which 
handles multiple listed chemicals at a single location.
    Furthermore, there is the likelihood that chemical distributors 
represented by this trade association are already registered with DEA 
since they may already handle other listed chemicals. Therefore these 
firms would not be required to obtain a new registration, and instead, 
would only be required to add additional chemicals to their existing 
registration. No additional fees are required to make such additions.
    Additionally, DEA is attempting to reduce the financial burden of 
registration. On December 1, 1999, DEA published a Notice of Proposed 
Rulemaking (64 FR 67216) which proposed a reduction in application fees 
for registration and reregistration of manufacturers, distributors 
importers and exporters of list I chemicals. DEA proposed a 
registration fee of $326 and re-registration fee of $171.

Importer Issues

    4. Two commentors requested clarification regarding the 
registration of importers which distribute List I chemicals. These 
commentors inquired as to whether multiple registrations are required 
for importers which distribute. Pursuant to 21 CFR 1309.22(b), ``a 
person registered to import any List I chemical shall be authorized to 
distribute that List I chemical after importation, but no other 
chemical that the person is not registered to import.'' Therefore, an 
importer is not required to obtain multiple registrations to distribute 
a List I chemical, as long as the only List I chemical distributed is 
imported material for which the person is a registered importer.

Chemical Mixtures

    5. One commentor stated that its red phosphorus is distributed in a 
thermoplastic encapsulated form and requested that such mixtures be 
exempted. It is apparent to DEA that such material is considered a 
``chemical mixture''. Chemical mixtures are currently exempt from 
regulatory provisions of the CSA such as recordkeeping, registration 
and import/export requirements. On September 16, 1998 (63 FR 49506) DEA 
proposed regulations pertaining to the regulation of mixtures 
containing any of 34 listed chemicals. That notice proposed criteria 
for the determination of whether a chemical mixture shall qualify for 
automatic exemption from CSA regulatory controls. The NPRM was 
published to implement CSA requirements that only those chemical 
mixtures identified by regulation be exempt from applicable regulatory 
controls. Additionally, the NPRM defined an application process by 
which manufacturers may apply for an exemption for chemical mixtures 
that do not qualify for automatic exemption.
    Upon publication of this Final Notice, red phosphorus, white 
phosphorus and hypophosphorous acid (and its salts) shall be subject to 
CSA chemical regulatory controls. However, chemical mixtures containing 
these chemicals shall remain exempt until such time as DEA proposes and 
finalizes regulations for chemical mixtures containing these chemicals. 
At such time, the manufacturer of chemical mixtures containing these 
chemicals may either qualify for automatic exemption, or may apply to 
DEA for exemption after documenting why the mixtures can not be easily 
used in the manufacture of a controlled substance and the listed 
chemical can not be readily extracted.

Threshold Issues

    6. One commentor suggested that the zero threshold would place an 
undue burden on the company and its customers in the research 
community. The commentor stated that the Special

[[Page 52673]]

Surveillance List controls should be adequate to prevent diversion.
    The Special Surveillance List chemicals are subject to civil 
penalties for the distribution of a ``laboratory supply'' with 
``reckless disregard'' for the intended purpose. Red phosphorus and 
hypophosphorous acid have been on the Special Surveillance List since 
its initial publication on May 13, 1999.
    DEA has determined that these civil penalty provisions alone are 
not adequate to prevent illicit use of these chemicals and the 
unregulated sale to the general public continues to be a source of 
diversion. DEA has concluded that these chemicals should be subject to 
registration, recordkeeping, reporting and import/export notification 
requirements of the CSA. As noted in the NPRM, these chemicals are used 
as catalysts in the illicit synthesis of methamphetamine. As such, the 
manufacture of methamphetamine requires only small quantities of these 
chemicals. DEA has evidence that indicates that small transactions are 
being diverted for illicit use. Therefore, no threshold is being 
established for domestic and international transactions. Consequently, 
all transactions involving these chemicals, regardless of size, shall 
be regulated.

End Users

    7. Two commentors requested clarification regarding the term 
``chemical handler'' and the potential applicability of this regulation 
on end-users which utilize red phosphorus in their production 
processes. These commentors expressed concerns that an end-user may 
become subject to regulatory requirements because of distribution of 
excess material off-site for disposal purposes or because of the 
transfer of stock from one company location to another.
    Under the proposed regulations, distributions of red phosphorus, 
white phosphorus and/or hypophosphorous acid (and its salts) for the 
purpose of disposal would be considered regulated transactions subject 
to all CSA chemical regulatory requirements including registration, 
recordkeeping and reporting. Additionally, the transfer of stock from 
one company location to another would require the registration of each 
location.
    However, in order to reduce any burden on end-users of these 
chemicals, DEA is waiving the registration requirement for any person 
whose activities with respect to List I chemicals are limited to the 
distribution of red phosphorus, white phosphorus, or hypophosphorous 
acid (and its salts) to: another location operated by the same firm 
solely for internal end-use; or an EPA or State licensed waste 
treatment or disposal firm for the purpose of waste disposal.
    This waiver of registration as it pertains to distributions for 
waste disposal applies only to the registration requirement and all 
other CSA chemical regulatory controls such as recordkeeping and 
reporting will still apply. It is likely, however, that the CSA 
recordkeeping requirements are already being met as part of normal 
business practice. For phosphorus, compliance with EPA and DOT 
regulations should document such distributions. Hypophosphorous acid 
shipments should be documented, but shipments of the hypophosphites may 
not be. Nonetheless, it is likely that chemical handlers already 
maintain records of shipments and customers even if shipping papers are 
not required.
    21 U.S.C. 822(d) provides that the Attorney General may, by 
regulation, waive the requirement of registration of certain 
manufacturers, distributors or dispensers, if consistent with the 
public health and safety. DEA is therefore modifying 21 CFR 1309.29 to 
provide that ``The requirement of registration is waived for any person 
whose activities with respect to List I chemicals are limited to the 
distribution of red phosphorus, white phosphorus, or hypophosphorous 
acid (and its salts) to: Another location operated by the same firm 
solely for internal end-use; or an EPA or State licensed waste 
treatment or disposal firm for the purpose of waste disposal''.

Large Transactions

    8. Two producers of elemental phosphorus requested that large 
transactions be exempted when shipped in reusable containers with 
capacities of 2500 or 2800 gallons. These commentors stated that these 
bulk containers are exclusively rail cars or large isotainers specially 
designed to enable safe transport.
    After unloading, the bulk containers are shipped back to the 
producers (filled with water for safety reasons due to the remaining 
phosphorus in the container) for reuse. Therefore, the commentors 
expressed concerns that their other sites and customers would possibly 
be subject to recordkeeping and registration requirements due to the 
return shipments.
    The commentors further stated that ``safeguards already include 
recordkeeping, incident reporting, tamper-detection, sealed valves, and 
use of bulk reusable containers''. The commentors believe that 
``registering and tracking these types of shipments back and forth with 
DEA would provide no additional benefit and would impose an undue 
burden on DEA, our operations and our customers.''
    DEA agrees that return shipments should not be impacted by this 
regulation. DEA also recognizes the difficulty in quantifying the 
residual amounts of red and white phosphorus contained in these rail 
cars and isotainers. 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. Therefore DEA is 
excluding from the definition of regulated transaction (21 CFR 
1310.08(j)), domestic transactions involving red phosphorus and white 
phosphorus which are return shipments (from customer to producer) in 
rail cars and isotainers with capacities greater than or equal to 2500 
gallons. As such, these return shipment transactions will not require 
recordkeeping. Additionally, DEA is waiving the registration 
requirement pursuant to 21 CFR 1309.29(c) for any person whose 
distribution of red phosphorus or white phosphorus is limited solely to 
residual quantities of chemical returned to the producer in reusable 
rail cars and isotainers (with capacities greater than or equal to 2500 
gallons in a single container).
    This exemption and waiver, however, pertain only to these return 
shipments. Manufacturers shall still be subject to registration, 
recordkeeping, reporting and other CSA chemical regulatory requirements 
pertaining to the production and distribution of listed chemicals to 
their customers. The customers will not be subject to registration or 
recordkeeping requirements for the return of reusable containers to the 
producer. However, should these customers re-distribute any of the 
received material (other than the return of reusable containers to the 
producer), they shall be subject to all CSA chemical regulatory 
requirements.
    Since the two commentors noted that they already maintain records 
of these transactions, it is likely that normal business records are 
adequate to meet CSA recordkeeping requirements. 21 CFR 1310.06(b) 
provides that normal business records shall be considered adequate, 
provided they contain information described in Sec. 1310.06(a) and are 
readily retrievable from other business records. These records can be 
those already required by other Federal, state and local regulatory 
agencies.
    Because the above exemption was not discussed in the NPRM published 
on September 25, 2000, DEA requests

[[Page 52674]]

public comment with respect to this exemption.

Interim Rule With Request for Comments

    This final rule will establish on an interim basis, an exclusion 
from the definition of regulated transaction for domestic transactions 
involving red phosphorus and white phosphorus which are return 
shipments (from customer to producer) in rail cars and isotainers with 
capacities greater than or equal to 2500 gallons. This final rule will 
also establish, on an interim basis, a waiver from the registration 
requirement for such activity. Additionally, this final rule will 
establish on an interim basis, a waiver from the registration 
requirement for any person whose activities with respect to List I 
chemicals are limited to the distribution of red phosphorus, white 
phosphorus, or hypophosphorous acid (and its salts) to: another 
location operated by the same firm solely for internal end-use; or an 
EPA or State licensed waste treatment or disposal firm for the purpose 
of waste disposal.
    DEA is soliciting comments only on those portions of this Final 
Rule pertaining to these specific issues. DEA will allow 30 days for 
persons to comment on the exclusion and waivers. DEA will accept 
comments until November 16, 2001. After the close of this comment 
period, DEA will publish a final rule in the Federal Register to inform 
interested parties if changes are needed or if the exclusion and 
waivers will be adopted as stated.
    DEA became aware of these issues via comments received in response 
to the September 25, 2000 NPRM (65 FR 57577). Since that Notice did not 
propose the exclusion and waivers, the general public did not have an 
opportunity to comment on these issues.
    DEA has determined that good cause exists under the Administrative 
Procedure Act (5 U.S.C. 553 et seq.) (APA) to forgo a Notice of 
Proposed Rulemaking for the exclusion and waivers. The APA states that 
an agency may forgo a NPRM if it is impracticable, unnecessary, or 
contrary to the public interest. To avoid unnecessary or temporary 
burdens on affected companies during the pendency of proceedings in 
this matter, DEA will include as part of this rulemaking an interim 
rule, with request for comments regarding these issues.

Certifications

    This regulation is not considered to have an impact upon a 
substantial number of firms, given the limited distribution of these 
three chemicals. The Administrator hereby certifies that this 
rulemaking has been drafted in a manner consistent with the principles 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It will not 
have a significant economic impact on a substantial number of small 
business entities.
    The Administrator further certifies that this rulemaking has been 
drafted in accordance with the principles in Executive Order 12866 
section 1(b). DEA has determined that this is not a significant 
rulemaking action. Therefore, this action has not been reviewed by the 
Office of Management and Budget.
    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.
    This rulemaking does not preempt or modify any provision of state 
law; nor does it impose enforcement responsibilities on any state; nor 
does it diminish the power of any state to enforce its own laws. 
Accordingly, this rulemaking does not have federalism implications 
warranting the application of Executive Order 13132.
    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.
    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 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.
    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, Office of Diversion Control, Drug Enforcement 
Administration, Washington, DC 20537, telephone (202) 307-7297.

List of Subjects

21 CFR Part 1309

    Administrative practice and procedure, Drug traffic control, List I 
and List II chemicals, Reporting and recordkeeping requirements.

21 CFR Part 1310

    Drug traffic control, Reporting and recordkeeping requirements.

    For reasons set out above, 21 CFR part 1309 and 1310 are amended as 
follows:

PART 1309--[AMENDED]

    1. The authority citation for part 1309 continues to read as 
follows:

    Authority: 21 U.S.C. 821, 822, 823, 824, 830, 871(b), 875, 877, 
958.


    2. Section 1309.29 is revised to read as follows:


1309.29  Waiver of registration requirement for certain activities.

    (a) The requirement of registration is waived for any retail 
distributor whose activities with respect to List I chemicals are 
restricted to the distribution of below-threshold quantities of a drug 
product that contains a List I chemical that is regulated pursuant to 
Sec. 1300.02(b)(28)(i)(D) of this chapter to an individual for 
legitimate medical use.
    (b) The requirement of registration is waived for any person whose 
activities with respect to List I chemicals are limited to the 
distribution of red phosphorus, white phosphorus, or hypophosphorous 
acid (and its salts) to: Another location operated by the same firm 
solely for internal end-use; or an EPA or State licensed waste 
treatment or disposal firm for the purpose of waste disposal.
    (c) The requirement of registration is waived for any person whose 
distribution of red phosphorus or white phosphorus is limited solely to 
residual quantities of chemical returned to the producer, in reusable 
rail cars and isotainers (with capacities greater than or equal to 2500 
gallons in a single container).
    (d) If any person exempted under paragraph (b) or (c) of this 
section also engages in the distribution, importation or exportation of 
a List I chemical, other than as described in such paragraph, the 
person shall obtain a registration for such activities, as required by 
Sec. 1309.21 of this part.
    (e) The Administrator may, upon finding that continuation of the 
waiver would not be in the public interest, suspend or revoke a waiver 
granted under paragraph (b) or (c) of this section pursuant to the 
procedures set forth in Secs. 1309.43 through 1309.46 and 1309.51 
through 1309.57 of this part.
    (f) Any person exempted from the registration requirement under 
this section shall comply with the security

[[Page 52675]]

requirements set forth in Secs. 1309.71-1309.73 of this part and the 
recordkeeping and reporting requirements set forth under parts 1310 and 
1313 of this chapter.

PART 1310--[AMENDED]

    1. The authority citation for part 1310 continues to read as 
follows:

    Authority: 21 U.S.C. 802, 830, 871(b).


    2. Section 1310.02 is amended by adding new paragraphs (a)(25) 
through (27) to read as follows:


Sec. 1310.02  Substances covered.

* * * * *
    (a) * * *

(25) Red phosphorus..............................................   6795
(26) White phosphorus (Other names: Yellow Phosphorus)...........   6796
(27) Hypophosphorous acid and its salts (Including ammonium         6797
 hypophosphite, calcium hypophosphite, iron hypophosphite,
 potassium hypophosphite, manganese hypophosphite, magnesium
 hypophosphite and sodium hypophosphite).........................
 

* * * * *

    3. Section 1310.04 is amended by adding new paragraphs (g)(1)(ii) 
through (g)(1)(iv) to read as follows:


Sec. 1310.04  Maintenance of records.

* * * * *
    (g) * * *
    (1) * * 
    (ii) Red phosphorus
    (iii) White phosphorus (Other names: Yellow Phosphorus)
    (iv) Hypophosphorous acid and its salts


    4. Section 1310.08 is amended by adding a new paragraph (j) to read 
as follows:


Sec. 1310.08  Excluded transactions.

* * * * *
    (j) Domestic return shipments of reusable containers from customer 
to producer containing residual red phosphorus or white phosphorus in 
isotainers and rail cars with capacities greater than or equal to 2500 
gallons (in a single container).


    5. Section 1310.09 is amended by adding a new paragraph (d) to read 
as follows:


Sec. 1310.09  Temporary exemption from registration.

* * * * *
    (d) Each person required by section 302 of the Act (21 U.S.C. 822) 
to obtain a registration to distribute, import, or export the List I 
chemicals red phosphorus, white phosphorus, and hypophosphorous acid 
(and its salts), is temporarily exempted from the registration 
requirement, provided that the person submits a proper application for 
registration on or before December 17, 2001. The exemption will remain 
in effect for each person who has made such application until the 
Administration has approved or denied that application. This exemption 
applies only to registration; all other chemical control requirements 
set forth in parts 1309, 1310, and 1313 of this chapter remain in full 
force and effect.

    Dated: October 5, 2001.
Asa Hutchinson,
Administrator.
[FR Doc. 01-26013 Filed 10-16-01; 8:45 am]
BILLING CODE 4410-09-P