Records, Reports, and Exports of Listed Chemicals

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1310

[DEA No. 128F]

RIN 1117-AA26

Records, Reports, and Exports of Listed Chemicals

AGENCY: Drug Enforcement Administration (DES), Justice.

ACTION: Final rule.

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

SUMMARY: This final rule adds methyl isobutyl ketone (MIBK) as a List

II Chemical under the Controlled Substances Act (CSA). This action is

based on substantial evidence that MIBK is increasingly being used as a

solvent in the production of cocaine hydrochloride during the

conversion of cocaine base to cocaine hydrochloride. The recent steps

by the Government of Columbia (GOC) to control MIBK further support

this action.

This action will only affect specific types of transactions which

are greater than 500 gallons or 1523 kilograms of MIBK destined for

countries in the Western Hemisphere (with the exception of transactions

destined for Canada). These transactions include (1) export

transactions; (2) international transactions in which a U.S. broker or

trader participates; and (3) transshipments through the U.S.

EFFECTIVE DATE: May 19, 1995.

FOR FURTHER INFORMATION CONTACT:

Howard McClain Jr., Chief, Drug and Chemical Evaluation Section, Office

of Diversion Control, Drug Enforcement Administration, Washington, DC

20537 at (202) 307-7183.

SUPPLEMENTARY INFORMATION: The Controlled Substances Act (CSA).

specifically 21 U.S.C. section 802, 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

illicit manufacture of controlled substances. Section 802(39) also

provides the Attorney General with authority to establish a threshold

amount for ``listed chemicals'' if the Attorney General so elects. 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.

On February 28, 1995 the Deputy Administrator of the Drug

Enforcement Administration (DEA) published a Notice of Proposed

Rulemaking (60 FR 10814). This notice proposed the addition of methyl

isobutyl ketone (MIBK) as a List II Chemical under the Controlled

Substances Act (CSA). Interested parties were given 30 days in which to

submit comments and objections.

Only one comment was received in response to the Notice of Proposed

Rulemaking. This comment requested further clarification of the meaning

of the term ``Western Hemisphere''. Webster's II New Riverside

University Dictionary defines the term ``Western Hemisphere'' to mean,

``The half of the earth that includes North and South America, the

surrounding waters, and all neighboring islands''. For purposes of this

rulemaking, this is the definition that the DEA is adopting.

While methyl ethyl ketone (MEK) has become the solvent of choice in

the processing of cocaine base to cocaine hydrochloride, recent

regulatory and enforcement efforts in Latin America have resulted in a

reduced availability of MEK. Information available to DEA indicates

that in response to this shortfall of MEK, cocaine laboratory operators

have moved to the utilization of MIBK for the processing of cocaine

base to cocaine hydrochloride. Due to information regarding the use of

MIBK for cocaine processing, the dramatic increase in MIBK importation,

and the importation of MIBK by some firms that the Government of

Colombia (GOC) considers suspect, the GOC has recently taken steps to

control the sale and distribution of MIBK.

The United States is a major producer of MIBK and exports MIBK to

Colombia and other countries within Latin America. In light of the

above, the DEA has determined that the control of MIBK as a List II

Chemical under the CSA is warranted. Since the illicit use of MIBK for

cocaine processing occurs in Latin America, MIBK shipments exported

from the U.S., shipments transshipped or transferred through the U.S.,

and international transactions in which a U.S. broker or trader

participates, shall be considered regulated transactions if destined

for any country in the Western Hemisphere (with the exception of

transactions destined for Canada) 21 U.S.C. section 802(39)(A)(iii). In

addition, a threshold similar to that of MEK shall be established for

MIBK. A threshold of 500 gallons (by volume) or 1523 kilograms (by

weight) shall be established for MIBK. Therefore, this action will only

effect specific types of transactions which are greater than 500

gallons or 1523 kilograms of MIBK destined for designated countries.

These transactions include (1) export transactions; (2) international

transactions in which a U.S. broker or trader participates; and (3)

transshipments through the U.S. Import transactions of MIBK into the

U.S. (not destined for transshipment or transfer to designated

countries), and domestic transactions of MIBK are excluded from the

definitions of regulated transactions contained in 21 CFR 1310.01(f)

and 1313.02(d).

The Deputy Administrator hereby certifies that this rulemaking will

have no significant impact upon entities whose interests must be

considered under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. A

review of maritime shipments of MIBK reveals that during a two year

period, there were less than [[Page 19510]] 100 above-threshold export

transactions destined for designated countries. This rule is not a

significant regulatory action and therefore has not been reviewed by

the Office of Management and Budget pursuant to Executive Order 12866.

This action has been analyzed in accordance with the principles and

criteria in E.O. 12612, and it has been determined that the rule does

not have sufficient federalism implications to warrant the preparation

of a Federalism Assessment.

List of Subjects in 21 CFR Part 1310

Drug traffic control, Reporting and recordkeeping requirements.

For reasons set out above, 21 CFR part 1310 is amended as follows:

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 a new paragraph (b)(10) to

read as follows:

Sec. 1310.02 Substances Covered.

* * * * *

(b) * * *

(10) Methyl Isobutyl Ketone (MIBK)

* * * * *

3. Section 1310.04 is amended by adding new paragraph (f)(2)(v) to

read as follows:

Sec. 1310.04 Maintenance of Records.

* * * * *

(f) * * *

(2) * * *

(v) Export and International Transactions to Designated Countries,

and Importations for Transshipment or Transfer to Designated Countries

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

Threshold by Threshold by

Chemical volume weight

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

(A) Methyl Isobutyl Ketone (MIBK).... 500 gallons.... 1523 kilograms.

(B) Reserved.

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

4. Section 1310.08 is amended by adding new paragraphs (c), (d) and

(e) to read as follows:

Sec. 1310.08 Excluded transactions.

* * * * *

(c) Domestic transactions of Methyl Isobutyl Ketone (MIBK).

(d) Import transactions of Methyl Isobutyl Ketone (MIBK) destined

for the United States.

(e) Export transactions, international transactions, and import

transactions for transshipment or transfer of Methyl Isobutyl Ketone

(MIBK) destined for Canada or any country outside of the Western

Hemisphere.

Dated: April 12, 1995.

Stephen H. Greene,

Deputy Administrator.

[FR Doc. 95-9589 Filed 4-18-95; 8:45 am]

BILLING CODE 4410-09-M