Special Surveillance List of Chemicals, Products, Materials and Equipment Used in the Clandestine Production of Controlled Substances or Listed Chemicals

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: Final notice.

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SUMMARY: On October 3, 1996, the Comprehensive Methamphetamine Control

Act of 1996 (MCA) was signed into law. The MCA 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. Individuals who

violate this provision are subject to a civil penalty of not more than

$25,000; businesses which violate this provision are subject to a civil

penalty of not more than $250,000. 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.'' This final

notice contains the list of ``laboratory supplies'' which constitutes

the Special Surveillance List that was required to be published by the

Attorney General pursuant to Title 21, United States Code, Section

842(a).

EFFECTIVE DATE: May 13, 1999.

FOR FURTHER INFORMATION CONTACT: Frank Sapienza, Chief, Drug and

Chemical Evaluation Section, Office of Diversion Control, Drug

Enforcement Administration, Washington, D.C. 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 also

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provides for the publication of a Special Surveillance List by the

Attorney General. 21 U.S.C. 842(a). The Special 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 Deputy Administrator of the DEA, in a December 1, 1998, Federal

Register notice (63 FR 66201), published a proposed Special

Surveillance List. The notice provided an opportunity for all

interested parties to submit their comments and objections in writing

on the proposed Special Surveillance List until December 31, 1998, DEA

received one comment regarding the proposal. The comment was a joint

response from the Agricultural Retailers Association (ARA) and The

Fertilizer Institute (TFI). Both organizations fully supported the

DEA's implementation of the Methamphetamine Control Act of 1996 and

specifically the publication of the ``Special Surveillance List'' of

laboratory supplies used in methamphetamine production. The ARA/TFI,

however, asked if its members would be subject to the $250,000 civil

penalty provisions of the MCA for thefts of anhydrous ammonia, a

Special Surveillance List chemical, from portable tanks stored on their

properties. In response to the ARA/TFI question, the civil penalty

provision of the MCA applies to a ``distribution'' or ``sale'' of a

laboratory supply by a business or firm to a customer for the unlawful

production of controlled substances or listed chemicals. A theft by

definition is not a distribution or a sale and thus individuals would

not be subject to the civil penalty provisions of the MCA for thefts of

a laboratory supply.

The MCA provides for a civil penalty of not more than $250,000 for

the distribution by a business 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. 21 U.S.C. 842(a)(11), 842(c)(2)(C).

Individuals who violate 21 U.S.C. 84(a)(11) are subject to a civil

penalty of not more than $25,000. 21 U.S.C 842(c)(1)(A). For purposes

of this provision, the term ``distribution'' includes the exportation

of a laboratory supply.

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 knowingly or intentionally distributes any chemical,

product, equipment or material which may be used to manufacture a

controlled substance or listed chemical, knowing, intending, or having

reasonable cause to believe, that it will be used to mauufacture a

controlled substance or listed chemical, is subject to criminal

prosecution.

In developing the 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 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 other 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 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 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

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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. Notice of

proposed changes will be published as they occur. While publication in

the Federal Register satisfies the notification requirements for the

Special Surveillance List, DEA is attempting to disseminate the list as

widely as possible. Therefore, copies of 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 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 record-keeping or reporting requirements for any of

the laboratory supplies which are not listed chemicals. Thus the

surveillance 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 Attorney

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, products, materials,

and equipment on the Special Surveillance List to those most frequently

used in the clandestine production of controlled substances or listed

chemicals. Limiting the number of such items on the list minimizes the

impact on wholesalers and retailers of the chemicals.

The Deputy Administrator hereby certifies that this notice has been

drafted in a manner consistent with the principles of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.). This 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 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 chemicals and controlled substances. A copy of

this notice has been provided to the Chief Counsel for Advocacy at the

Small Business Administration.

This notice has been drafted and reviewed in accordance with

Executive Order 12866. This notice has not been determined to be a

significant action. Therefore, this notice has not been reviewed and

approved by the Office of Management and Budget.

This action has been analyzed in accordance with the principles and

criteria in Executive Order 12612, and it has been determined that this

notice does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

This 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 notice is not a major rule as defined by Section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This 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: May 3, 1999.

Donnie R. Marshall,

Deputy Administrator.

[FR Doc. 99-12037 Filed 5-12-99; 8:45 am]

BILLING CODE 4410-09-M