13 May April 1999
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: May 13, 1999 (Volume 64, Number 92)]
[Notices]
[Page 25910-25912]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13my99-96]

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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

[[Page 25911]]

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

[[Page 25912]]

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
