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RESOURCES > Federal Register Notices > Notices - 1998 > Special Surveillance List of Chemicals, Products, Materials and Equipment Used in the Clandestine Production of Controlled Substances or Listed Chemicals

Notices - 1998

[Federal Register Volume 63, Number 230 (Tuesday, December 1, 1998)] [Notices] [Pages 66199-66201] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 98-31962]


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.


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:

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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

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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]

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