Advisories to the Public

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

Preface

The Comprehensive Methamphetamine Control Act of 1996 makes it illegal for any person to distribute a "laboratory supply," which is defined in the final rule 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 constitute the Special Surveillance List. The term "distribution" includes the exportation of a laboratory supply.

The Special Surveillance List focuses on laboratory supplies used in domestic production of controlled substances and listed chemicals. The Drug Enforcement Administration (DEA) chose to limit the number of chemicals, products, materials and equipment on the list to those most frequently used in the clandestine production of controlled substances or listed chemicals.

Note that when reading Page 25912 of the Federal Register Notice, the following correction applies: Under the heading Small Business Impact and Regulatory Flexibility Concerns, a portion of the text was inadvertently omitted, which could result in confusion regarding the civil penalty provisions. The paragraph beginning "The notice serves two purposes . . . " should read as follows:

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 who uses, or attempts to use, that laboratory supply to manufacture a controlled substance or a listed chemical, if the distribution is made with "reckless disregard" for the illegal uses to which the laboratory supply could be put. There is a rebuttable presumption of "reckless disregard" if the distribution is made anytime after the two week period following the receipt of written notification by the Attorney General that the customer has used, attempted to use, or distributed the laboratory supply further for the unlawful production of a controlled substance or listed chemical.

This Special Surveillance List may be revised as appropriate. Notice of proposed changes will be published in the Federal Register as they occur.

In addition to being available on the DEA homepage, the current surveillance list will be available on the U.S. Government Printing Office web site: http://www.access, gpo.gov/nara/cfr/index.html, which provides access to the Federal Register.

Click here for the Federal Register Notice.

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.

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 42(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 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