[House Report 109-299]
[From the U.S. Government Publishing Office]
109th Congress Rept. 109-299
HOUSE OF REPRESENTATIVES
1st Session Part 2
======================================================================
METHAMPHETAMINE EPIDEMIC ELIMINATION ACT
_______
November 17, 2005.--Ordered to be printed
_______
Mr. Barton of Texas, from the Committee on Energy and Commerce,
submitted the following
R E P O R T
[To accompany H.R. 3889]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 3889) to further regulate and punish illicit
conduct relating to methamphetamine, and for other purposes,
having considered the same, report favorably thereon with
amendments and recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 1
Purpose and Summary.............................................. 9
Background and Need for Legislation.............................. 9
Hearings......................................................... 11
Committee Consideration.......................................... 11
Committee Votes.................................................. 11
Committee Oversight Findings..................................... 11
Statement of General Performance Goals and Objectives............ 11
New Budget Authority, Entitlement Authority, and Tax Expenditures 12
Committee Cost Estimate.......................................... 12
Congressional Budget Office Estimate............................. 12
Federal Mandates Statement....................................... 16
Advisory Committee Statement..................................... 16
Constitutional Authority Statement............................... 16
Applicability to Legislative Branch.............................. 16
Section-by-Section Analysis of the Legislation................... 16
Changes in Existing Law Made by the Bill, as Reported............ 24
Exchange of Committee Correspondence............................. 42
Amendment
The amendments are as follows:
Strike title I and insert the following (and conform the
table of contents accordingly):
TITLE I--DOMESTIC REGULATION OF PRECURSOR CHEMICALS
SEC. 101. SCHEDULED LISTED CHEMICAL PRODUCTS; RESTRICTIONS ON SALES
QUANTITY, BEHIND-THE-COUNTER ACCESS, AND OTHER
SAFEGUARDS.
(a) Scheduled Listed Chemical Products.--
(1) In general.--Section 102 of the Controlled Substances Act
(21 U.S.C. 802) is amended--
(A) by redesignating paragraph (46) as paragraph
(49); and
(B) by inserting after paragraph (44) the following
paragraphs:
``(45)(A) The term `scheduled listed chemical product' means, subject
to subparagraph (B), a product that--
``(i) contains ephedrine, pseudoephedrine, or
phenylpropanolamine; and
``(ii) may be marketed or distributed lawfully in the United
States under the Federal, Food, Drug, and Cosmetic Act as a
nonprescription drug.
Each reference in clause (i) to ephedrine, pseudoephedrine, or
phenylpropanolamine includes each of the salts, optical isomers, and
salts of optical isomers of such chemical.
``(B) Such term does not include a product described in subparagraph
(A) if the product contains a chemical specified in such subparagraph
that the Attorney General has under section 201(a) added to any of the
schedules under section 202(c). In the absence of such scheduling by
the Attorney General, a chemical specified in such subparagraph may not
be considered to be a controlled substance.
``(46) The term `regulated seller' means a retail distributor
(including a pharmacy or a mobile retail vendor), except that such term
does not include an employee or agent of such distributor.
``(47) The term `mobile retail vendor' means a person or entity that
makes sales at retail from a stand that is intended to be temporary, or
is capable of being moved from one location to another, whether the
stand is located within or on the premises of a fixed facility (such as
a kiosk at a shopping center or an airport) or whether the stand is
located on unimproved real estate (such as a lot or field leased for
retail purposes).
``(48) The term `at retail', with respect to the sale or purchase of
a scheduled listed chemical product, means a sale or purchase for
personal use, respectively.''.
(2) Conforming amendments.--The Controlled Substances Act (21
U.S.C. 801 et seq.) is amended--
(A) in section 102, in paragraph (49) (as
redesignated by paragraph (1)(A) of this subsection)--
(i) in subparagraph (A), by striking
``pseudoephedrine or'' and inserting
``ephedrine, pseudoephedrine, or''; and
(ii) by striking subparagraph (B) and
redesignating subparagraph (C) as subparagraph
(B); and
(B) in section 310(b)(3)(D)(ii), by striking
``102(46)'' and inserting ``102(49)''.
(b) Restrictions on Sales Quantity; Behind-the-Counter Access;
Logbook Requirement; Training of Sales Personnel; Privacy
Protections.--
(1) In general.--Section 310 of the Controlled Substances Act
(21 U.S.C. 830) is amended by adding at the end the following
subsections:
``(d) Scheduled Listed Chemicals; Restrictions on Sales Quantity;
Requirements Regarding Nonliquid Forms.--With respect to ephedrine
base, pseudoephedrine base, or phenylpropanolamine base in a scheduled
listed chemical product--
``(1) the quantity of such base sold at retail in such a
product by a regulated seller, or a distributor required to
submit reports by subsection (b)(3) may not, for any purchaser,
exceed a daily amount of 3.6 grams, without regard to the
number of transactions; and
``(2) such a seller or distributor may not sell such a
product in nonliquid form (including gell caps) at retail
unless the product is packaged in blister packs, each blister
containing not more than 2 dosage units, or where the use of
blister packs is technically infeasible, the product is
packaged in unit dose packets or pouches.
``(e) Scheduled Listed Chemicals; Behind-the-Counter Access; Logbook
Requirement; Training of Sales Personnel; Privacy Protections.--
``(1) Requirements regarding retail transactions.--
``(A) In general.--Each regulated seller shall ensure
that, subject to subparagraph (F), sales by such seller
of a scheduled listed chemical product at retail are
made in accordance with the following:
``(i) In offering the product for sale, the
seller places the product such that customers
do not have direct access to the product before
the sale is made (in this paragraph referred to
as `behind-the-counter' placement). For
purposes of this paragraph, a behind-the-
counter placement of a product includes
circumstances in which the product is stored in
a locked cabinet that is located in an area of
the facility involved to which customers do
have direct access.
``(ii) The seller delivers the product
directly into the custody of the purchaser.
``(iii) The seller maintains, in accordance
with criteria issued by the Attorney General, a
written or electronic list of such sales that
identifies the products by name, the quantity
sold, the names and addresses of purchasers,
and the dates and times of the sales (which
list is referred to in this subsection as the
`logbook'), except that such requirement does
not apply to any purchase by an individual of a
single sales package if that package contains
not more than 60 milligrams of pseudoephedrine.
``(iv) In the case of a sale to which the
requirement of clause (iii) applies, the seller
does not sell such a product unless--
``(I) the prospective purchaser--
``(aa) presents an
identification card that
provides a photograph and is
issued by a State or the
Federal Government, or a
document that, with respect to
identification, is considered
acceptable for purposes of
sections 274a.2(b)(1)(v)(A) and
274a.2(b)(1)(v)(B) of title 8,
Code of Federal Regulations (as
in effect on or after the date
of the enactment of the Combat
Methamphetamine Epidemic Act of
2005); and
``(bb) signs the logbook and
enters in the logbook his or
her name, address, and the date
and time of the sale; and
``(II) the seller--
``(aa) determines that the
name entered in the logbook
corresponds to the name
provided on such identification
and that the date and time
entered are correct; and
``(bb) enters in the logbook
the name of the product and the
quantity sold.
``(v) The logbook includes, in accordance
with criteria of the Attorney General, a notice
to purchasers that entering false statements or
misrepresentations in the logbook may subject
the purchasers to criminal penalties under
section 1001 of title 18, United States Code,
which notice specifies the maximum fine and
term of imprisonment under such section.
``(vi) The seller maintains each entry in the
logbook for not fewer than two years after the
date on which the entry is made.
``(vii) In the case of individuals who are
responsible for delivering such products into
the custody of purchasers or who deal directly
with purchasers by obtaining payments for the
products, the seller has submitted to the
Attorney General a self-certification that all
such individuals have, in accordance with
criteria under subparagraph (B)(ii), undergone
training provided by the seller to ensure that
the individuals understand the requirements
that apply under this subsection and subsection
(d).
``(viii) The seller maintains a copy of such
certification and records demonstrating that
individuals referred to in clause (vii) have
undergone the training.
``(ix) If the seller is a mobile retail
vendor:
``(I) The seller complies with clause
(i) by placing the product in a locked
cabinet.
``(II) The seller does not sell more
than 7.5 grams of ephedrine base,
pseudoephedrine base, or
phenylpropanolamine base in such
products per customer during a 30-day
period.
``(B) Additional provisions regarding certifications
and training.--
``(i) In general.--A regulated seller may not
sell any scheduled listed chemical product at
retail unless the seller has submitted to the
Attorney General the self-certification
referred to in subparagraph (A)(vii). The
certification is not effective for purposes of
the preceding sentence unless, in addition to
provisions regarding the training of
individuals referred to in such subparagraph,
the certification includes a statement that the
seller understands each of the requirements
that apply under this paragraph and under
subsection (d) and agrees to comply with the
requirements.
``(ii) Issuance of criteria; self-
certification.--The Attorney General shall by
regulation establish criteria for
certifications under this paragraph. The
criteria shall--
``(I) provide that the certifications
are self-certifications provided
through the program under clause (iii);
``(II) provide that a separate
certification is required for each
place of business at which a regulated
seller sells scheduled listed chemical
products at retail; and
``(III) include criteria for training
under subparagraph (A)(vii).
``(iii) Program for regulated sellers.--The
Attorney General shall establish a program
regarding such certifications and training in
accordance with the following:
``(I) The program shall be carried
out through an Internet site of the
Department of Justice and such other
means as the Attorney General
determines to be appropriate.
``(II) The program shall inform
regulated sellers that section 1001 of
title 18, United States Code, applies
to such certifications.
``(III) The program shall make
available to such sellers an
explanation of the criteria under
clause (ii).
``(IV) The program shall be designed
to permit the submission of the
certifications through such Internet
site.
``(V) The program shall be designed
to automatically provide the
explanation referred to in subclause
(III), and an acknowledgement that the
Department has received a
certification, without requiring direct
interactions of regulated sellers with
staff of the Department (other than the
provision of technical assistance, as
appropriate).
``(iv) Availability of certification to state
and local officials.--Promptly after receiving
a certification under subparagraph (A)(vii),
the Attorney General shall make available a
copy of the certification to the appropriate
State and local officials.
``(C) Privacy protections.--In order to protect the
privacy of individuals who purchase scheduled listed
chemical products, the Attorney General shall by
regulation establish restrictions on disclosure of
information in logbooks under subparagraph (A)(iii).
Such regulations shall--
``(i) provide for the disclosure of the
information as appropriate to the Attorney
General and to State and local law enforcement
agencies; and
``(ii) prohibit accessing, using, or sharing
information in the logbooks for any purpose
other than to ensure compliance with this title
or to facilitate a product recall to protect
public health and safety.
``(D) False statements or misrepresentations by
purchasers.--For purposes of section 1001 of title 18,
United States Code, entering information in the logbook
under subparagraph (A)(iii) shall be considered a
matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of
the United States.
``(E) Good faith protection.--A regulated seller who
in good faith releases information in a logbook under
subparagraph (A)(iii) to Federal, State, or local law
enforcement authorities is immune from civil liability
for such release unless the release constitutes gross
negligence or intentional, wanton, or willful
misconduct.
``(F) Inapplicability of requirements to certain
sales.--Subparagraph (A) does not apply to the sale at
retail of a scheduled listed chemical product if a
report on the sales transaction is required to be
submitted to the Attorney General under subsection
(b)(3).
``(G) Certain measures regarding theft and
diversion.--A regulated seller may take reasonable
measures to guard against employing individuals who may
present a risk with respect to the theft and diversion
of scheduled listed chemical products, which may
include, notwithstanding State law, asking applicants
for employment whether they have been convicted of any
crime involving or related to such products or
controlled substances.''.
(2) Effective dates.--With respect to subsections (d) and
(e)(1) of section 310 of the Controlled Substances Act, as
added by paragraph (1) of this subsection:
(A) Such subsection (d) applies on and after the
expiration of the 30-day period beginning on the date
of the enactment of this Act.
(B) Such subsection (e)(1) applies on and after
September 30, 2006.
(c) Mail-Order Reporting.--
(1) In general.--Section 310(e) of the Controlled Substances
Act, as added by subsection (b)(1) of this section, is amended
by adding at the end the following:
``(2) Mail-order reporting; verification of identity of
purchaser; 30-day restriction on quantities for individual
purchasers.--Each regulated person who makes a sale at retail
of a scheduled listed chemical product and is required under
subsection (b)(3) to submit a report of the sales transaction
to the Attorney General is subject to the following:
``(A) The person shall, prior to shipping the
product, confirm the identity of the purchaser in
accordance with procedures established by the Attorney
General. The Attorney General shall by regulation
establish such procedures.
``(B) The person may not sell more than 7.5 grams of
ephedrine base, pseudoephedrine base, or
phenylpropanolamine base in such products per customer
during a 30-day period.''.
(2) Inapplicability of reporting exemption for retail
distributors.--Section 310(b)(3)(D)(ii) of the Controlled
Substances Act (21 U.S.C. 830(b)(3)(D)(ii)) is amended by
inserting before the period the following: ``, except that this
clause does not apply to sales of scheduled listed chemical
products at retail''.
(3) Effective date.--The amendments made by paragraphs (1)
and (2) apply on and after the expiration of the 30-day period
beginning on the date of the enactment of this Act.
(d) Exemptions for Certain Products.--Section 310(e) of the
Controlled Substances Act, as added and amended by subsections (b) and
(c) of this section, respectively, is amended by adding at the end the
following paragraph:
``(3) Exemptions for certain products.--Upon the application
of a manufacturer of a scheduled listed chemical product, the
Attorney General may by regulation provide that the product is
exempt from the provisions of subsection (d) and paragraphs (1)
and (2) of this subsection if the Attorney General determines
that the product cannot be used in the illicit manufacture of
methamphetamine.''.
(e) Enforcement of Requirements for Retail Sales.--
(1) Civil and criminal penalties.--
(A) In general.--Section 402(a) of the Controlled
Substances Act (21 U.S.C. 842(a)) is amended--
(i) in paragraph (10), by striking ``or''
after the semicolon;
(ii) in paragraph (11), by striking the
period at the end and inserting a semicolon;
and
(iii) by inserting after paragraph (11) the
following paragraphs:
``(12) who is a regulated seller, or a distributor required
to submit reports under subsection (b)(3) of section 310--
``(A) to sell at retail a scheduled listed chemical
product in violation of paragraph (1) of subsection (d)
of such section, knowing at the time of the transaction
involved (independent of consulting the logbook under
subsection (e)(1)(A)(iii) of such section) that the
transaction is a violation; or
``(B) to knowingly or recklessly sell at retail such
a product in violation of paragraph (2) of such
subsection (d);
``(13) who is a regulated seller to knowingly or recklessly
sell at retail a scheduled listed chemical product in violation
of subsection (e) of such section; or
``(14) who is a regulated seller or an employee or agent of
such seller to disclose, in violation of regulations under
subparagraph (C) of section 310(e)(1), information in logbooks
under subparagraph (A)(iii) of such section, or to refuse to
provide such a logbook to Federal, State, or local law
enforcement authorities.''.
(B) Conforming amendment.--Section 401(f)(1) of the
Controlled Substances Act (21 U.S.C. 841(f)(1)) is
amended by inserting after ``shall'' the following: ``,
except to the extent that paragraph (12), (13), or (14)
of section 402(a) applies,''.
(2) Authority to prohibit sales by violators.--Section 402(c)
of the Controlled Substances Act (21 U.S.C. 842(c)) is amended
by adding at the end the following paragraph:
``(4)(A) If a regulated seller, or a distributor required to submit
reports under section 310(b)(3), violates paragraph (12) of subsection
(a) of this section, or if a regulated seller violates paragraph (13)
of such subsection, the Attorney General may by order prohibit such
seller or distributor (as the case may be) from selling any scheduled
listed chemical product. Any sale of such a product in violation of
such an order is subject to the same penalties as apply under paragraph
(2).
``(B) An order under subparagraph (A) may be imposed only through the
same procedures as apply under section 304(c) for an order to show
cause.''.
(f) Preservation of State Authority to Regulate Scheduled Listed
Chemicals.--This section and the amendments made by this section may
not be construed as having any legal effect on section 708 of the
Controlled Substances Act as applied to the regulation of scheduled
listed chemicals (as defined in section 102(45) of such Act).
SEC. 102. REGULATED TRANSACTIONS.
(a) Conforming Amendments Regarding Scheduled Listed Chemicals.--The
Controlled Substances Act (21 U.S.C. 801 et seq.) is amended--
(1) in section 102--
(A) in paragraph (39)(A)--
(i) by amending clause (iv) to read as
follows:
``(iv) any transaction in a listed chemical that is
contained in a drug that may be marketed or distributed
lawfully in the United States under the Federal Food,
Drug, and Cosmetic Act, subject to clause (v), unless--
``(I) the Attorney General has determined
under section 204 that the drug or group of
drugs is being diverted to obtain the listed
chemical for use in the illicit production of a
controlled substance; and
``(II) the quantity of the listed chemical
contained in the drug included in the
transaction or multiple transactions equals or
exceeds the threshold established for that
chemical by the Attorney General;'';
(ii) by redesignating clause (v) as clause
(vi); and
(iii) by inserting after clause (iv) the
following clause:
``(v) any transaction in a scheduled listed chemical
product; or''; and
(B) by striking the paragraph (45) that relates to
the term ``ordinary over-the-counter pseudoephedrine or
phenylpropanolamine product'';
(2) in section 204, by striking subsection (e); and
(3) in section 303(h), in the second sentence, by striking
``section 102(39)(A)(iv)'' and inserting ``clause (iv) or (v)
of section 102(39)(A)''.
(b) Public Law 104-237.--Section 401 of the Comprehensive
Methamphetamine Control Act of 1996 (21 U.S.C. 802 note) (Public Law
104-237) is amended by striking subsections (d), (e), and (f).
SEC. 103. AUTHORITY TO ESTABLISH PRODUCTION QUOTAS.
Section 306 of the Controlled Substances Act (21 U.S.C. 826) is
amended--
(1) in subsection (a), by inserting ``and for ephedrine,
pseudoephedrine, and phenylpropanolamine'' after ``for each
basic class of controlled substance in schedules I and II'';
(2) in subsection (b), by inserting ``or for ephedrine,
pseudoephedrine, or phenylpropanolamine'' after ``for each
basic class of controlled substance in schedule I or II'';
(3) in subsection (c), in the first sentence, by inserting
``and for ephedrine, pseudoephedrine, and phenylpropanolamine''
after ``for the basic classes of controlled substances in
schedules I and II'';
(4) in subsection (d), by inserting ``or ephedrine,
pseudoephedrine, or phenylpropanolamine'' after ``that basic
class of controlled substance'';
(5) in subsection (e), by inserting ``or for ephedrine,
pseudoephedrine, or phenylpropanolamine'' after ``for a basic
class of controlled substance in schedule I or II'';
(6) in subsection (f)--
(A) by inserting ``or ephedrine, pseudoephedrine, or
phenylpropanolamine'' after ``controlled substances in
schedules I and II'';
(B) by inserting ``or of ephedrine, pseudoephedrine,
or phenylpropanolamine'' after ``the manufacture of a
controlled substance''; and
(C) by inserting ``or chemicals'' after ``such
incidentally produced substances''; and
(7) by adding at the end the following subsection:
``(g) Each reference in this section to ephedrine, pseudoephedrine,
or phenylpropanolamine includes each of the salts, optical isomers, and
salts of optical isomers of such chemical.''.
SEC. 104. PENALTIES; AUTHORITY FOR MANUFACTURING; QUOTA.
Section 402(b) of the Controlled Substances Act (21 U.S.C. 842(b)) is
amended by inserting after ``manufacture a controlled substance in
schedule I or II'' the following: ``, or ephedrine, pseudoephedrine, or
phenylpropanolamine or any of the salts, optical isomers, or salts of
optical isomers of such chemical,''
SEC. 105. RESTRICTIONS ON IMPORTATION; AUTHORITY TO PERMIT IMPORTS FOR
MEDICAL, SCIENTIFIC, OR OTHER LEGITIMATE PURPOSES.
Section 1002 of the Controlled Substances Import and Export Act (21
U.S.C. 952) is amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1), by
inserting ``or ephedrine, pseudoephedrine, or
phenylpropanolamine,'' after ``schedule III, IV, or V
of title II,''; and
(B) in paragraph (1), by inserting ``, and of
ephedrine, pseudoephedrine, and phenylpropanolamine, ''
after ``coca leaves''; and
(2) by adding at the end the following subsections:
``(d)(1) With respect to a registrant under section 1008 who is
authorized under subsection (a)(1) to import ephedrine,
pseudoephedrine, or phenylpropanolamine, at any time during the year
the registrant may apply for an increase in the amount of such chemical
that the registrant is authorized to import, and the Attorney General
may approve the application if the Attorney General determines that the
approval is necessary to provide for medical, scientific, or other
legitimate purposes regarding the chemical.
``(2) With respect to the application under paragraph (1):
``(A) Not later than 60 days after receiving the application,
the Attorney General shall approve or deny the application.
``(B) In approving the application, the Attorney General
shall specify the period of time for which the approval is in
effect, or shall provide that the approval is effective until
the registrant involved is notified in writing by the Attorney
General that the approval is terminated.
``(C) If the Attorney General does not approve or deny the
application before the expiration of the 60-day period under
subparagraph (A), the application is deemed to be approved, and
such approval remains in effect until the Attorney General
notifies the registrant in writing that the approval is
terminated.
``(e) Each reference in this section to ephedrine, pseudoephedrine,
or phenylpropanolamine includes each of the salts, optical isomers, and
salts of optical isomers of such chemical.''.
SEC. 106. NOTICE OF IMPORTATION OR EXPORTATION; APPROVAL OF SALE OR
TRANSFER BY IMPORTER OR EXPORTER.
(a) In General.--Section 1018 of the Controlled Substances Import and
Export Act (21 U.S.C. 971) is amended--
(1) in subsection (b)(1), in the first sentence, by striking
``or to an importation by a regular importer'' and inserting
``or to a transaction that is an importation by a regular
importer'';
(2) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(3) by inserting after subsection (c) the following
subsection:
``(d)(1)(A) Information provided in a notice under subsection (a) or
(b) shall include the name of the person to whom the importer or
exporter involved intends to transfer the listed chemical involved, and
the quantity of such chemical to be transferred.
``(B) In the case of a notice under subsection (b) submitted by a
regular importer, if the transferee identified in the notice is not a
regular customer, such importer may not transfer the listed chemical
until after the expiration of the 15-day period beginning on the date
on which the notice is submitted to the Attorney General.
``(C) After a notice under subsection (a) or (b) is submitted to the
Attorney General, if circumstances change and the importer or exporter
will not be transferring the listed chemical to the transferee
identified in the notice, or will be transferring a greater quantity of
the chemical than specified in the notice, the importer or exporter
shall update the notice to identify the most recent prospective
transferee or the most recent quantity or both (as the case may be) and
may not transfer the listed chemical until after the expiration of the
15-day period beginning on the date on which the update is submitted to
the Attorney General, except that such 15-day restriction does not
apply if the prospective transferee identified in the update is a
regular customer. The preceding sentence applies with respect to
changing circumstances regarding a transferee or quantity identified in
an update to the same extent and in the same manner as such sentence
applies with respect to changing circumstances regarding a transferee
or quantity identified in the original notice under subsection (a) or
(b).
``(D) In the case of a transfer of a listed chemical that is subject
to a 15-day restriction under subparagraph (B) or (C), the transferee
involved shall, upon the expiration of the 15-day period, be considered
to qualify as a regular customer, unless the Attorney General otherwise
notifies the importer or exporter involved in writing.
``(2) With respect to a transfer of a listed chemical with which a
notice or update referred to in paragraph (1) is concerned:
``(A) The Attorney General, in accordance with the same
procedures as apply under subsection (c)(2)--
``(i) may order the suspension of the transfer of the
listed chemical by the importer or exporter involved,
except for a transfer to a regular customer, on the
ground that the chemical may be diverted to the
clandestine manufacture of a controlled substance
(without regard to the form of the chemical that may be
diverted, including the diversion of a finished drug
product to be manufactured from bulk chemicals to be
transferred), subject to the Attorney General ordering
such suspension before the expiration of the 15-day
period referred to in paragraph (1) with respect to the
importation or exportation (in any case in which such a
period applies); and
``(ii) may, for purposes of clause (i) and paragraph
(1), disqualify a regular customer on such ground.
``(B) From and after the time when the Attorney General
provides written notice of the order under subparagraph (A)
(including a statement of the legal and factual basis for the
order) to the importer or exporter, the importer or exporter
may not carry out the transfer.
``(3) For purposes of this subsection:
``(A) The terms `importer' and `exporter' mean a regulated
person who imports or exports a listed chemical, respectively.
``(B) The term `transfer', with respect to a listed chemical,
includes the sale of the chemical.
``(C) The term `transferee' means a person to whom an
importer or exporter transfers a listed chemical.''; and
(4) by adding at the end the following subsection:
``(g) Within 30 days after a transaction covered by this section is
completed, the importer or exporter shall send the Attorney General a
return declaration containing particulars of the transaction, including
the date, quantity, chemical, container, name of transferees, and such
other information as the Attorney General may specify in regulations.
For importers, a single return declaration may include the particulars
of both the importation and distribution. If the importer has not
distributed all chemicals imported by the end of the initial 30-day
period, the importer shall file supplemental return declarations no
later than 30 days from the date of any further distribution, until the
distribution or other disposition of all chemicals imported pursuant to
the import notification or any update are accounted for.''.
(b) Conforming Amendments.--
(1) Controlled substances import and export act.--The
Controlled Substances Import and Export Act (21 U.S.C. 951 et
seq.) is amended--
(A) in section 1010(d)(5), by striking ``section
1018(e)(2) or (3)'' and inserting ``paragraph (2) or
(3) of section 1018(f)''; and
(B) in section 1018(c)(1), in the first sentence, by
inserting before the period the following: ``(without
regard to the form of the chemical that may be
diverted, including the diversion of a finished drug
product to be manufactured from bulk chemicals to be
transferred)''.
(2) Controlled substances act.--Section 310(b)(3)(D)(v) of
the Controlled Substances Act (21 U.S.C. 830(b)(3)(D)(v)) is
amended by striking ``section 1018(e)(2)'' and inserting
``section 1018(f)(2)''.
SEC. 107. ENFORCEMENT OF RESTRICTIONS ON IMPORTATION AND OF REQUIREMENT
OF NOTICE OF TRANSFER.
Section 1010(d)(6) of the Controlled Substances Import and Export Act
(21 U.S.C. 960(d)(6)) is amended to read as follows:
``(6) imports a listed chemical in violation of section 1002,
imports or exports such a chemical in violation of section 1007
or 1018, or transfers such a chemical in violation of section
1018(d); or''.
SEC. 108. COORDINATION WITH UNITED STATES TRADE REPRESENTATIVE.
In implementing sections 103 through 107 and section 201 of this Act,
the Attorney General shall consult with the United States Trade
Representative to ensure implementation complies with all applicable
international treaties and obligations of the United States.
Strike title IV and insert the following (and conform the
table of contents accordingly):
TITLE IV--ENHANCED ENVIRONMENTAL REGULATION OF METHAMPHETAMINE BY-
PRODUCTS
SEC. 401. BIENNIAL REPORT TO CONGRESS ON AGENCY DESIGNATIONS OF BY-
PRODUCTS OF METHAMPHETAMINE LABORATORIES AS
HAZARDOUS MATERIALS.
Section 5103 of title 49, Unites States Code, is amended by adding at
the end the following:
``(d) Biennial Report.--The Secretary of Transportation shall submit
to the Committee on Transportation and Infrastructure of the House of
Representatives and the Senate Committee on Commerce, Science, and
Transportation a biennial report providing information on whether the
Secretary has designated as hazardous materials for purposes of chapter
51 of such title all by-products of the methamphetamine-production
process that are known by the Secretary to pose an unreasonable risk to
health and safety or property when transported in commerce in a
particular amount and form.''.
SEC. 402. METHAMPHETAMINE PRODUCTION REPORT.
Section 3001 of the Solid Waste Disposal Act (42 U.S.C. 6921) is
amended at the end by adding the following:
``(j) Methamphetamine Production.--Not later than every 24 months,
the Administrator shall submit to the Committee on Energy and Commerce
of the House of Representatives and the Committee on Environment and
Public Works of the Senate a report setting forth information collected
by the Administrator from law enforcement agencies, States, and other
relevant stakeholders that identifies the byproducts of the
methamphetamine production process and whether the Administrator
considers each of the byproducts to be a hazardous waste pursuant to
this section and relevant regulations.''.
SEC. 403. CLEANUP COSTS.
(a) In General.--Section 413(q) of the Controlled Substances Act (21
U.S.C. 853(q)) is amended--
(1) in the matter preceding paragraph (1), by inserting ``,
the possession, or the possession with intent to distribute, ''
after ``manufacture''; and
(2) in paragraph (2), by inserting ``, or on premises or in
property that the defendant owns, resides, or does business
in'' after ``by the defendant''.
(b) Savings Clause.--Nothing in this section shall be interpreted or
construed to amend, alter, or otherwise affect the obligations,
liabilities and other responsibilities of any person under any Federal
or State environmental laws.
Purpose and Summary
H.R. 3889 would enact retail restrictions on
methamphetamine precursor chemicals to reduce drug
manufacturers access to these chemicals, expand regulations of
the wholesale methamphetamine precursor market, enhance
criminal penalties for methamphetamine production and
trafficking, and increase environmental regulation requirements
for methamphetamine by-products.
Background and Need for Legislation
Methamphetamine is an addictive stimulant drug that
strongly activates certain systems in the brain. The drug can
be swallowed in pill form, snorted in powder form, smoked, or
injected. Users may become addicted quickly, and will use the
drug with increasing frequency and in increasing doses to
produce the same effect.
Methamphetamine causes increased heart rate and blood
pressure and can cause irreversible damage to blood vessels in
the brain producing strokes. Other effects of methamphetamine
include respiratory problems, irregular heartbeat, and extreme
anorexia. Methamphetamine use can result in cardiovascular
collapse and death. Chronic users and those exposed to
methamphetamine production also commonly suffer paranoia.
In the past, methamphetamine had been considered a drug
predominantly used in the Western part of the United States.
However, nationwide use has been increasing. According to the
2003 National Survey on Drug Use and Health, 12.3 million
Americans age 12 and older had tried methamphetamine at least
once in their lifetimes. In many parts of the country the
problem of methamphetamine use eclipses that of other illicit
drugs. Since the late 1990s, methamphetamine abuse has spread
to the South and Midwest, particularly in rural areas. In 2004,
more lab incidents were reported in Illinois (926) than in
California (673). In 2003, methamphetamine lab incidents
reached new highs in Georgia, Minnesota, and Texas.
Roughly two-thirds of the methamphetamine consumed in this
country comes from ``super labs'' that produce large quantities
of the drug. The majority of these super labs are located in
Mexico. However, the remaining portion is produced in ``small
toxic labs.'' These labs produced small amounts of the illegal
drug, but create numerous health issues and leaves hazardous
waste byproducts.
The proliferation of small toxic labs can be attributed to
the relative ease of producing methamphetamine. An Internet
search of ``methamphetamine recipe'' will produce numerous
websites that provide step-by-step processes to manufacture the
drug. In addition, the materials needed to produce
methamphetamine are easily accessible. The primary ingredient
of methamphetamine is pseudoephedrine. The pseudoephedrine is
``cooked'' by a heat source and using common products such as
anhydrous ammonia, used in fertilizer, and batteries. These
labs can be found in apartment buildings, basements, and even
car trunks. These producers are often manufacturing limited
quantities to supply their own habit and a small network of
friends. Although the small toxic labs account for only a third
of the methamphetamine consumed, these labs are stretching the
resources of many local and state governments as well as law
enforcement agencies.
A recent survey conducted by the National Association of
Counties found 58 percent of county law enforcement agencies
reported that methamphetamine is their largest drug problem,
outpacing cocaine and marijuana.
Pseudoephedrine is also the active ingredient used in many
over-the- counter cold medications that millions of Americans
depend on during cold and allergy seasons. Legislation to
address the methamphetamine problem should not unduly burden
individuals who purchase pseudoephedrine products for
legitimate medical needs.
The Congressional Research Service approximates that each
pound of methamphetamine produces about six pounds of hazardous
waste. Illicit methamphetamine ``cooks'' usually release this
waste into sewers, streams, rivers, or the ground near the lab.
Water used to extinguish lab fires also carries toxic chemicals
into the environment. While health effects on a user from
direct use of methamphetamine have been well studied, long-term
health-effects research on exposures to substances associated
with illicit methamphetamine production has just recently
begun. Such health-effects research considers impacts on
children, as well as on adults, who might be in the vicinity of
a methamphetamine- making site.
While seven (7) states [Alaska, Arizona, Alabama, Colorado,
Minnesota, Tennessee, and Washington] currently have
feasibility-based remediation standards specific to
methamphetamine, there are no uniform, voluntary federal
guidelines nor mandatory standards governing the clean-up or
remediation of former methamphetamine sites, either for
methamphetamine residues themselves, or for chemicals related
to illicit methamphetamine production.
Hearings
The Subcommittee on Health and the Subcommittee on the
Environment and Hazardous Materials held a joint hearing on
``Comprehensively Combating Methamphetamines: Impacts on Health
and Environment'' on October 20, 2005. The Subcommittees
received testimony from Peter Murtha, Director, Office of
Criminal Enforcement, Forensics and Training, Office of
Enforcement and Compliance Assurance, U.S. Environmental
Protection Agency; Mr. Joseph T. Rannazzisi, Deputy Chief,
Office of Enforcement Operations, U.S. Drug Enforcement
Administration; Mrs. Stephanie Colston, Senior Advisor to the
Administrator, Substance Abuse and Mental Health Services
Administration, U.S. Department of Health and Human Services;
The Honorable Eric Coleman, County Commissioner, Oakland
County, Michigan, testifying on behalf of the National
Association of Counties; Mrs. Mary Ann Wagner, Senior Vice
President for Pharmacy, Policy and Regulatory Affairs, National
Association of Chain Drug Stores; Mr. Gordon Knapp, President,
PCH North America, Pfizer Inc.; Sheriff Ted G. Kamatchus,
Marshall County, Iowa, testifying on behalf of the National
Sheriffs' Association; and, Mr. Joseph R. Heerens, Senior Vice
President for Government Affairs, Marsh Supermarkets, Inc.,
testifying on behalf of the Food Marketing Institute.
Committee Consideration
On Tuesday, November 15, 2005, the Committee on Energy and
Commerce met in open markup session and ordered H.R. 3889
favorably reported to the House, amended, by voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto.
There were no record votes taken in connection with ordering
H.R. 3889 reported. A motion by Mr. Barton to order H.R. 3889
reported to the House, amended, was agreed to by a voice vote.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee held an oversight
hearing and made findings that are reflected in this report.
Statement of General Performance Goals and Objectives
The goal of H.R. 3889 is to strengthen retail reporting
requirements for regulated retail transactions of
methamphetamine precursors, expand regulations of the wholesale
methamphetamine precursor market, enhance criminal penalties
for methamphetamine production and trafficking, and increase
environmental regulation requirements for methamphetamine by-
products.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee finds that H.R.
3889, Methamphetamine Epidemic Elimination Act, would result in
no new or increased budget authority, entitlement authority, or
tax expenditures or revenues.
Committee Cost Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
provided by the Congressional Budget Office pursuant to section
402 of the Congressional Budget Act of 1974:
November 15, 2005.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
completed the enclosed cost estimate for H.R. 3889, the
Methamphetamine Epidemic Elimination Act.
The CBO staff contacts for this estimate are Mark Grabowicz
(for federal costs), Melissa Merrell (for the impact on state
and local governments), and Fatimot Ladipo (for the impact on
the private sector).
Sincerely,
Donald B. Marron
(For Douglas Holtz-Eakin, Director).
Enclosure.
H.R. 3889--Methamphetamine Epidemic Elimination Act
Summary: H.R. 3889 would authorize the appropriation of $5
million for each of fiscal years 2006 and 2007 for the
Department of State mostly to combat the smuggling of
methamphetamine from Mexico to the United States. In addition,
the bill would strengthen the regulation of pseudoephedrine,
ephedrine, and phenylpropanolamine and would limit retail sales
of products that contain those substances. Assuming
appropriation of the authorized amounts, CBO estimates that
implementing H.R. 3889 would cost $10 million over the 2006-
2009 period. Enacting the bill also could affect direct
spending and revenues, but CBO estimates that any effects would
not be significant for any year.
H.R. 3889 would impose an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) by
preempting some state laws that regulate pharmaceutical sales.
In addition, the bill would impose an intergovernmental mandate
on some publicly owned pharmacies by requiring tighter controls
for selling and storing over-the-counter drugs containing
pseudoephedrine, ephedrine, or phenylpropanolamine. CBO
estimates that the costs, if any, for states, localities, and
publicly owned pharmacies to comply with those mandates would
be insignificant and well below the threshold established in
UMRA ($62 million in 2005, adjusted annually for inflation).
H.R. 3889 would impose private-sector mandates, as defined
in UMRA, on retail businesses and persons involved in the sale
and distribution of certain medications containing ephedrine,
pseudoephedrine, or phenylpropanolamine. CBO estimates that the
aggregate direct costs of complying with those mandates would
fall below the annual threshold established by UMRA for
private-sector mandates ($123 million in 2005, adjusted
annually for inflation).
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 3889 is shown in the following table.
The costs of this legislation fall within budget function 150
(international affairs).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION \1\
Authorization Level................................................ 5 5 0 0 0
Estimated Outlays.................................................. 3 4 2 1 0
----------------------------------------------------------------------------------------------------------------
\1\ In addition to the amounts shown above, enacting H.R. 3889 also could affect direct spending and revenues,
but CBO estimates that any effects would not be significant in any year.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted by the end of calendar year 2005. CBO
estimates that implementing H.R. 3889 would cost $10 million
over the 2006-2009 period, assuming appropriation of the
authorized amounts. Enacting the bill could affect direct
spending and receipts, but we estimate that any effects would
not be significant in any year.
Spending subject to appropriation
For this estimate, CBO assumes that the amounts authorized
by the bill for the programs listed below will be appropriated
near the start of each fiscal year and that spending will
follow the historical spending patterns for those or similar
activities.
For the Department of State, H.R. 3889 would authorize the
appropriation of:
$4 million for each of fiscal years 2006 and
2007 to prevent the smuggling of methamphetamine from
Mexico to the United States; and
$1 million for each of fiscal years 2006 and
2007 for analysis for reports on countries that export
and import the most pseudoephedrine, ephedrine, and
phenylpropanolamine and the cost of developing a plan
to prevent the diversion of those chemicals to illegal
uses.
In addition, H.R. 3889 would strengthen the regulation of
pseudoephedrine, ephedrine, and phenylpropanolamine and would
limit retail sales of products that contain those substances.
CBO estimates that any resulting increase in administrative or
investigative costs for the Drug Enforcement Administration
would not be significant.
Direct spending and revenues
Enacting H.R. 3889 could increase collections of civil and
criminal fines for violations of the bill's provisions relating
to methamphetamine production and trafficking as well as those
regarding the importation of precursor chemicals. CBO estimates
that any additional collections would not be significant
because of the relatively small number of additional cases
likely to be affects. Civil fines are recorded as revenues.
Criminal fines are recorded as revenues, deposited in the Crime
Victims Fund, and subsequently spent without further
appropriation.
Estimated impact on state, local, and tribal governments:
H.R. 3889 would impose an intergovernmental mandate, as defined
in UMRA, by preempting state laws that place less-burdensome
requirements than those established in this bill on
pharmaceutical dispensers for selling and storing over-the-
counter drugs containing pseudoephedrine, ephedrine, or
phenylpropanolamine. In addition, the bill would impose an
intergovernmental mandate on publicly owned pharmacies by
requiring compliance with those sale and storage requirements.
Because the preemption would not require states to take any
action and because we expect that very few public pharmacies
would be affected by the new requirements, CBO estimates that
compliance costs would be insignificant and well below the
threshold established in UMRA ($62 million in 2005, adjusted
annually for inflation).
Estimated impact on the private sector: H.R. 3889 would
impose private-sector mandates, as defined in UMRA, on retail
businesses and persons involved in the sale and distribution of
certain medications containing ephedrine, pseudoephedrine, or
phenylpropanolamine. The bill would reclassify those drugs,
which are found in many over-the-counter medications, as
``scheduled listed chemical products''--a new category of
chemicals under the Controlled Substances Act. The sale and
distribution of products containing those substances would be
regulated by the Controlled Substances Act as amended by this
bill. Based on information from industry and government
sources, CBO estimates that the aggregate direct costs of
complying with those mandates would fall below the annual
threshold established by UMRA for private-sector mandates ($123
million in 2005, adjusted annually for inflation).
Retail businesses
The bill would impose private-mandates on retail businesses
and persons involved in the sale and distribution of certain
medications by restricting access to ephedrine,
pseudoephedrine, and phenylpropanolamine products and imposing
limits on the amount of such products that can be sold per
customer. Retail sellers would be required to verify the
identification of individuals purchasing those products and
maintain a written or electronic record of each sales
transaction for not fewer than two years. Such requirement
would not apply to any purchase by an individual of a single
sales package if that package contains not more than 60
milligrams of pseudoephedrine. The bill also would require
sellers to submit to the Attorney General certification that
certain employees involved in the delivery and direct sales of
those products to consumers have undergone specific training.
Under H.R. 3889, certain retail establishments would have
to move the location of pharmaceutical products containing
those substances behind the counter or store them in locked
cabinets, train employees to alert them to the new regulations,
and implement new sales and hiring practices. Retail businesses
might also reprogram software to signal or block transactions
exceeding the threshold, although this would not be explicitly
required. Finally, the bill would require sellers who ship
(mail order or Internet sales) such medications to confirm the
identify of a purchaser prior to shipping in accordance with
procedures to be established by the Attorney General.
According to government and industry sources, at least 13
states have already enacted laws that place restrictions on
such medications and many large retailers have voluntarily
complied with the restrictions in this bill. In addition,
similar products that do not contain those substances are
readily available to be sold as an alternative or substitute.
According to those industry sources, the costs associated with
relocating a product, logging the sale, certification,
retraining, and implementing new sales and hiring practices
would be small. Therefore CBO estimates that the direct cost to
comply with those mandates would be small relative to UMRA's
threshold for private-sector mandates.
Consumers
The bill would require individuals who purchase products
containing ephedrine, pseudoephedrine, or phenylpropanolamine
to provide photo identification and sign a written log of the
transaction. CBO expects that the direct cost for individuals
to comply with the mandate would be minimal.
Importers and Exporters
The bill also would impose a new mandate by expanding the
current reporting requirements for certain importers and
exporters of listed chemicals, such as ephedrine,
pseudoephedrine, or phenylpropanolamine. Currently, certain
importers and exporters (those that are not regular importers
or exporters as determined by the Department of Justice) must
file an initial advanced notice with the department 15 days
before the shipment of such listed chemicals. Under the bill,
if an original planned sale of such chemicals falls through,
those importers and exporters must file a second advance notice
with the department identifying the new purchaser 15 days prior
to a new shipment. Finally, the bill would require importer to
file a report with federal regulators listing complete
information about the chain of distribution of imported
chemicals. Based on information from government sources, CBO
expects that the cost of complying with the mandate would be
small.
Previous CBO estimates: On November 15, 2005, CBO
transmitted a cost estimate for H.R. 3889 as ordered reported
by the House Committee on the Judiciary on November 9, 2005.
CBO estimated that implementing that version of the bill would
cost $377 million over the 2006-1010 period, assuming
appropriation of the authorized amounts.
On September 15, 2005, CBO transmitted a cost estimate for
S. 103, the Combat Meth Act of 2005, as reported by the Senate
Committee on the Judiciary on July 28, 2005. CBO estimated that
implementing S. 103 would cost about $90 million over the 2006-
2010 period, assuming appropriations of the necessary amounts.
Enacting that bill also could affect direct spending, but we
estimated that any net affect direct spending, but we estimated
that any net affects would not be significant in any year.
Both bills would impose similar mandates on individuals and
person involved in the sale and distribution of certain
medications containing pseudoephedrine or ephedrine S. 103 did
not contain any mandates on the sale or distribution of
phenylprapanolamine products or on importer or exporters. Both
S. 103 and H.R. 3889, as ordered reported by the House
Committee on the Judiciary, would impose a limit of 7.5 grams
of such medications that consumers could purchase in any 30-day
period. The aggregate direct cost of complying with the
mandates in each bill would fall below the annual threshold
established by UMRA for private-sector mandates.
Estimate prepared by: Federal Costs: DOJ--Mark Grabowicz;
Department of State--Sam Papenfuss; Receipts--Emily Schlect;
impact on sale, local, and tribal governments: Melissa Merrell;
impact on the private sector: Fatimot Ladipo and Paige Piper/
Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 3, which grants Congress the power
to regulate commerce with foreign nations, among the several
States, and with the Indian tribes.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 101. Schedule listed chemical products; restrictions on sales
quantities, behind-the-counter access, and other safeguards
Subsection 101(a) amends Section 102 of the Controlled
Substances Act by creating four new terms. First, ``scheduled
listed chemical (SLC) product'' is defined as a product that
contains ephedrine, pseudoephedrine, or phenylpropanolamine and
can be marketed or distributed lawfully in the United States
under the Federal Food, Drug, and Cosmetic Act as a
nonprescription drug. The Committee intends for regulations
pertaining to scheduled listed chemical products to apply to
over-the-counter drugs and not prescription drugs. The
Committee believes increased regulatory requirements for these
over-the-counter products are warranted, but the regulatory
requirements of a Schedule V designation under the Controlled
Substances Act are not appropriate for these products.
This subsection also creates the term ``regulated seller''
which is defined as a retail distributor of scheduled listed
chemical products (including a pharmacy or retail vendor). The
term does not apply to an employee or agent of such
distributor.
The term ``mobile retail vendor'' means a person or entity
that makes sales at retail from a stand that is intended to be
temporary, or is capable of being moved from one location to
another, whether the stand is located within or on the premises
of a fixed facility (such as a kiosk at a shopping center or an
airport) or whether the stand is located on unimproved real
estate (such as a lot or field leased for retail purposes).
The term ``at retail'' with respect to the sale or purchase
of a scheduled listed chemical product, means a sale or
purchase for personal use.
Subsection 101(b) amends Section 310 of the Controlled
Substances Act by adding a new subsection 310(d). New
subsection 310(d) limits the amount of SLC product an
individual can purchase in a day to 3.6 grams. The 3.6 grams
limit is the base weight of the SLC contained in the product,
not the weight of the total product. To help facilitate
compliance with this provision the Committee encourages
manufacturers to include on packages the total amount of SLC
contained in the product package. This section also states a
seller or distributor may not sell such a product in non-liquid
form (including gel caps) at retail unless the product is
packaged in blister packs, each blister containing not more
than 2 dosage units, or where the use of blister packs is
technically infeasible, the product is packaged in unit dose
packets or pouches.
New subsection 310(e) states that a seller of a scheduled
listed chemical product ensures that sales are made in
accordance with certain conditions. The seller is required to
store the SLC products behind the counter or in locked cabinet
storage.
The seller is required to maintain a written or electronic
log of each purchase. The log will identify the products by
name, and list the quantity sold, the name and address of the
purchaser, and the date and time of the sale. Entering such
information into the written or electronic log is not required
for those purchasing one single-dose package of SLC product.
The single sales package cannot contain more than 60 milligrams
of pseudoephedrine, two pills of regular strength
pseudoephedrine product. The exemption does not apply when an
individual purchases more than one single-dose package per
transaction.
The seller cannot sell the product if the purchaser does
not present an identification card that contains a photograph.
The purchaser must enter into the logbook their name, address,
and the date and time of sale. The seller must determine that
the name entered into the logbook corresponds to the
identification provided, and that the date and time entered
into the logbook are correct. The logbook must contain a notice
that false statements or misrepresentations in the logbook may
subject the purchaser to criminal penalties under Title 18
United States Code 1001. In the October 20th hearing, law
enforcement witnesses testified that the existence of these
logbooks is a critical tool to deter individuals from roaming
from store to store purchasing small quantities of cold
medications for the use of methamphetamine production.
The seller will be required to maintain each entry in the
logbook for two years after the date on which the entry is
made. Each regulated seller is required to provide to the
Attorney General a certification that it is in compliance with
the regulatory requirements for the sale of these products, and
that its employees who deliver these products to purchasers
have been trained to comply with these requirements. The seller
must maintain a copy of the certification and records
demonstrating that individuals providing SLC products directly
to purchasers have undergone training. The Committee does not
intend for the seller to have to provide to the Attorney
General the specific name of each individual who has undergone
training or update the Attorney General when a new employee has
been trained. However, the seller is required to keep a list of
names of employees that have undergone training to deliver
these products.
The Attorney General must make available a copy of these
certifications to state and local officials. A separate
certification is required for each place of business at which
the seller sells scheduled listed chemical products at retail.
The Attorney General is charged with establishing a program
regarding certification and training. The program shall be
carried out through an Internet site of the Department of
Justice and other means the Attorney General deems appropriate.
The program shall inform sellers that Section 1001 of Title 18
of the United States Code applies to such certifications. The
program shall be designed to permit the submissions of
certifications through the Internet site. This program shall be
designed so as not to require direct interaction between
regulated sellers and the staff of the Department of Justice.
Mobile retail vendors must comply with all requirements of
regulated sellers and, in addition, may not sell more than 7.5
grams of SLC base product to a customer in a 30-day period.
The Attorney General shall by regulation establish
restrictions on disclosure of information in logbooks. The
disclosure of this information is limited to the Attorney
General and to state and local law enforcement authorities.
Regulated sellers are prohibited from accessing, using, or
sharing information in the logbooks for any purpose other than
to ensure compliance with this title or to facilitate a product
recall to protect public health and safety.
A regulated seller who in good faith releases information
in a logbook to Federal, state, or local law enforcement
authorities is immune from civil liability for such release
unless the release constitutes gross negligence or intentional,
wanton, or willful misconduct.
The theft of SLC products by retail employees is a
significant barrier to preventing illegal diversion of these
products. A regulated seller may take reasonable measures to
guard against employing individuals who may present a risk with
respect to the theft and diversion of scheduled listed chemical
products, which may include, notwithstanding state law, asking
applicants for employment whether they have been convicted of
any crime involving or related to such products or controlled
substances.
The effective date for subsection 310(d) is 30-days after
the date of enactment. The effective date for new subsection
(e)(1) is September 30, 2006.
Subsection 101(c) amends Section 310(e) of the Controlled
Substances Act imposing certain restrictions on mail order
purchases. A person prior to shipping the product shall confirm
the identification of the purchaser with procedures established
by the Attorney General. A person may not sell through mail
order more than 7.5 grams of SLC base in such products to a
customer within a 30-day period.
Subsection 101(d) allows the Attorney General by
regulation, upon application of the manufacturer of a scheduled
listed chemical product, to exempt that product from the
provisions of subsection (d) and paragraph(1) and (2) if the
Attorney General determines that product cannot be used in the illicit
production of methamphetamine.
Subsection 101(e) adds three new categories of unlawful
activities with respect to controlled substances. These include
(1) making it unlawful for a regulated seller or distributor to
sell at retail a scheduled listed chemical product knowing at
the time of the transaction that the transaction is a
violation; (2) making it unlawful for a regulated seller to
knowingly or recklessly sell at retail a scheduled listed
chemical product in violation of subsection (e); and, (3)
making it unlawful for a regulated seller to disclose, in
violation of regulations under subparagraph (C) of section
310(e)(1), information in logbooks. Such a person may not
refuse to provide such a logbook to Federal, state, or local
law enforcement authorities.
If a regulated seller or distributor violates these new
sections, the Attorney General may prohibit such seller or
distributor from selling any scheduled listed chemical product.
Any sale of such a product in violation of such an order is
subject to penalties including imprisonment of not more than 1
year for a first offense and not more than 2 years for one or
more prior convictions. A fine under Title 18 of the United
States Code could also be applied.
Subsesection 101(f) preserves state authority to regulate
scheduled listed chemical products. This section clarifies that
this legislation will not pre-empt existing state laws.
Section 102. Regulated transactions
Section 102 makes conforming amendments to the Controlled
Substances Act to ensure that Scheduled Listed Chemicals are
treated similarly to Listed Chemicals and other changes are
incorporated.
Section 103. Authority to establish production quotas
Section 103 extends the Attorney General's existing
authority to set production quotas for certain controlled
substances to pseudoephedrine, ephedrine, and
phenylpropanolamine. Currently, domestic production of these
chemicals is not very high, as most of our supply is imported.
However, if Congress adopts the import quotas enacted by
section 104 of the bill, the Attorney General would need to
have corresponding authority within the U.S. if domestic
production were to increase. Current law (as amended) would
allow manufacturers to apply for increases in their production
quotas.
Section 104. Penalties; authority for manufacturing; quota
Section 104 expands the existing penalty for illegal
production beyond established quotas to take into account the
Attorney General's new authority to set quotas for
methamphetamine precursors.
Section 105. Restrictions on importation; authority to permit imports
for medical, scientific, or other legitimate purposes
Section 105 extends the Attorney General's existing
authority to set import quotas for controlled substances to
pseudoephedrine, ephedrine, and phenylpropanolamine. This
section contains a provision allowing registered importers to
apply for temporary or permanent increases in a quota to meet
legitimate needs, which would have to be acted on by the
Attorney General within 60 days.
Section 106. Notice of importation or exportation; approval of sale or
transfer by importer or exporter
Section 106 closes a regulatory loophole for imports and
exports of precursor chemicals for methamphetamine and other
synthetic drugs. Under current law, an importer or exporter who
wishes to import pseudoephedrine or other precursor chemicals
must either (1) notify the Department of Justice 15 days in
advance of the import or export, or (2) be a regular importer
or exporter (i.e., a company that the Department has previously
allowed to import or export) and be planning to sell the
chemicals to a regular customer (again, one that the Department
has previously permitted to take delivery).
A problem can arise, however, when the sale on which the
importer or exporter originally planned falls through. When
this happens, the importer or exporter must quickly find a new
buyer for the chemicals on what is called the ``spot market''--
a wholesale market. Sellers are often under pressure to find a
buyer in a short amount of time, meaning that they may be
tempted to entertain bids from companies without a strong
record of preventing diversion. More importantly, the
Department of Justice has no opportunity to review such
transactions in advance and suspend them if there is a danger
of diversion to illegal drug production.
This section extends the current reporting requirements--as
well as the current exemption for regular importers, exporters,
and customers--to post-import or export transactions. If an
importer or exporter was required to file an initial advance
notice with the Department of Justice 15 days before the
shipment of chemicals, and the originally planned sale fell
through, the importer or exporter would then have to file a
second advance notice with the Department identifying the new
proposed purchaser. The Department would then have 15 days to
review the new transaction and decide whether it presents
enough of a risk of diversion to warrant suspension. As is the
case under existing law, a suspension can be appealed through
an administrative process.
If, however, an importer or exporter is exempt from filing
an initial advance notice because it qualifies as a ``regular''
importer or exporter under existing law, that importer or
exporter would not have to file the second advance notice, as
long as the new proposed purchaser also qualifies as a
``regular'' customer under existing law.
Section 107. Enforcement of restrictions on importation and of
requirement of notice of transfer
Section 107 makes a conforming amendment to current law to
extend existing penalties for illegal imports or exports to the
new regulatory requirements added by sections 105 and 106 of
the bill.
Section 108. Coordination with United States Trade Representative
Since the new import regulations authorized by this title
of the bill also apply to exports and domestically manufactured
products, nothing in the bill should lead to violations of any
international trade treaties or agreements. To ensure that no
inadvertent violations should occur during implementation of
the new regulations, this section requires the Attorney General
to consult with the U.S. Trade Representative.
Section 201. Information on foreign chain of distribution; import
restrictions regarding failure of distributors to cooperate
Section 201 amends the reporting requirements for importers
of methamphetamine precursor chemicals, by requiring them to
file with federal regulators complete information about the
chain of distribution of imported chemicals (from the
manufacturer to the shores of the U.S.). This will help U.S.
law enforcement agencies to better track where methamphetamine
precursors come from, and how they get to the U.S. At present,
very little information exists about the international ``chain
of distribution'' for these chemicals, hindering effective
controls.
If the Attorney General determines that a foreign-chain
distributor is refusing to cooperate with respect to obtaining
this information, this section gives the Attorney General may
issue an order prohibiting the importation of ephedrine,
pseudoephedrine, or phenylpropanolamine in any case where such
a distributor is part of the chain of distribution.
Section 202. Requirements relating to the largest exporting and
importing countries of certain precursor chemicals
Section 202 mandates a separate section of the current
State Department report on major drug producing and transit
countries, identifying the 5 largest exporters of major
methamphetamine precursor chemicals, and the 5 largest
importers that also have the highest rate of methamphetamine
production or diversion of these chemicals to the production of
methamphetamine. If any of those countries were not fully
cooperating with U.S. law enforcement in implementing their
responsibilities under international drug control treaties,
there would be consequences for their eligibility for U.S. aid,
similar to those faced by the major drug trafficking nations
under current law.
This section applies the ``fully cooperates'' standard (and
not the lesser standard under another, separate provision of
law). This standard would only have to apply with respect to
the listed countries' cooperation with respect to
methamphetamine precursor chemicals; cooperation with respect
to other drugs would continue to be evaluated under existing
law.
Section 202 also includes authorization of $1 million for
implementation. The House recently passed an amendment to the
State Department's appropriations bill for FY 2006, adding $5
million for the Department to implement anti-methamphetamine
measures; this $1 million could come out of that amount.
Section 203. Prevention of smuggling of methamphetamine into the United
States from Mexico
Section 203 requires the State Department's Bureau for
International Narcotics and Law Enforcement Affairs (INL) to
provide assistance to Mexico to prevent the production of
methamphetamine in that country, and to encourage Mexico to
stop the illegal diversion of methamphetamine precursor
chemicals. The amendment would authorize the use of $4 million
of the $5 million recently approved by the House for these
purposes.
Section 301. Enhanced penalties for methamphetamine production,
possession, or trafficking
Section 301 would create a new criminal provision for
possession with intent to manufacture a scheduled listed
chemical and impose a maximum punishment of life imprisonment.
This provision increases the currently applicable provision
that imposes a maximum of 20 years imprisonment.
This section also lowers the amount of methamphetamine that
constitutes a violation of the Controlled Substances Act and
carries with it explicit prison terms and fines.
Section 302. Smuggling methamphetamine or methamphetamine precursor
chemicals into the United States while using facilitated entry
programs
Even as more methamphetamine is being smuggled across the
border, increased legitimate international traffic has forced
the Bureau of Customs and Border Protection (CBP) to rely on
facilitated entry programs--so-called ``fastpass'' systems like
SENTRI (for passenger traffic on the Southwest border), FAST
(for commercial truck traffic), and NEXUS (for passenger
traffic on the Northern border). These systems allow pre-
screened individuals to use dedicated lanes at border
crossings, subject only to occasional searches to test
compliance with customs and immigration laws.
These programs can be a powerful tool for CBP to manage
heavy traffic at major border crossings, but they can also
create potential risks. If a drug trafficking organization were
to hire someone cleared for a ``fastpass'' system, it could
smuggle large amounts of drugs through only minimal security.
The problem is compounded by the fact that computerized
criminal background checks cannot be performed in Mexico,
meaning that our ability to screen Mexican citizens who apply
for a fastpass system is minimal at best.
Section 302 creates an added deterrent for anyone to misuse
a facilitated entry program to smuggle methamphetamine or its
precursor chemicals. An additional penalty of up to 15 years
imprisonment would be added to the punishment for the base
offense. If convicted, an individual would also be permanently
barred from using a fastpass system again.
Section 303. Manufacturing controlled substances on Federal property
Section 303 clarifies that current penalties for
cultivating illegal drugs on Federal property also apply to
manufacturing synthetic drugs (such as methamphetamine).
Methamphetamine cooks have frequently moved their operations to
parks, national forests, and other public lands, causing
serious environmental damage. This criminal penalty can help
deter such destructive conduct.
Section 304. Increased punishment for methamphetamine kingpins
Section 304 allows for easier application of the enhanced
penalties of the ``continuing criminal enterprise'' section of
the Controlled Substances Act. That section (commonly referred
to as the ``kingpin'' statute) imposes life imprisonment on a
leader of a drug trafficking organization convicted of
trafficking in very large quantities of a drug, and receiving
very large profits from that activity. This section reduces the
threshold amount of methamphetamine (from 300 to 100 times the
threshold for base violations) and profits from methamphetamine
(from $10 million to $1 million), while still applying the life
imprisonment penalty only to true ``kingpins''--the ringleaders
of methamphetamine trafficking organizations.
Section 401. Biennial report to Congress on agency designations of by-
products of methamphetamine laboratories as hazardous materials
Section 401 amends Section 5103 of Title 49--which
addresses Department of Transportation rules concerning the
transportation of hazardous materials--by creating a new
subsection (d). This new subsection requires the Secretary of
Transportation to submit, once every two years, to the House
Committee on Transportation and Infrastructure and the Senate
Committee on Commerce, Science, and Transportation information
on whether the Department of Transportation has under Chapter
51 of Title 49 designated all by-products of the
methamphetamine production process as hazardous materials that
are known by the Secretary of Transportation to pose an
unreasonable risk to health and safety or property when
transported in commerce.
Section 402. Methamphetamine production report
Section 402 amends Section 3001 of the Solid Waste Disposal
Act by adding a new subsection (j). This new subsection
requires the Administrator of the Environmental Protection
Agency to submit a report, at least once every two years, to
the House Committee on Energy and Commerce and the Senate
Committee on Environment and Public Works that details
information, collected from law enforcement, states, and other
relevant stakeholders, on the by-products of the
methamphetamine production process and whether the
Administrator considers each of these by-products to be a
hazardous waste pursuant to Section C of the Solid Waste
Disposal Act and other relevant regulations.
Section 403. Cleanup costs
Section 403(a) clarifies the obligation of restitution for
environmental cleanup cost, under Section 413(q) of the
Controlled Substances Act, on persons involved in
methamphetamine production and trafficking. Specifically, this
provision ensures that any person convicted of a
methamphetamine related offense can be held liable for cleanup
costs for the methamphetamine production that took place on the
defendant's own property, or in his or her place of business or
residence. Section 403(b) states that nothing in this section
should be interpreted or construed to amend, alter, or
otherwise affect the obligations, liabilities, and other
responsibilities of any person under any Federal or state
environmental laws.
Changes in Existing Law Made by the Bill, as Reported
Pursuant to the terms of the referral of the bill to the
Committee, the Committee adopted an amendment striking those
provisions which were referred to the Committee and inserting
new text.
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the provisions of the bill referred to the Committee, as
reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new matter is printed in
italic, existing law in which no change is proposed is shown in
roman):
CONTROLLED SUBSTANCES ACT
* * * * * * *
Part A--Short Title; Findings and Declaration; Definitions
* * * * * * *
definitions
Sec. 102. As used in this title:
(1) * * *
* * * * * * *
(39) The term ``regulated transaction'' means--
(A) a distribution, receipt, sale, importation, or
exportation of, or an international transaction
involving shipment of, a listed chemical, or if the
Attorney General establishes a threshold amount for a
specific listed chemical, a threshold amount, including
a cumulative threshold amount for multiple transactions
(as determined by the Attorney General, in consultation
with the chemical industry and taking into
consideration the quantities normally used for lawful
purposes), of a listed chemical, except that such term
does not include--
(i) * * *
* * * * * * *
[(iv) any transaction in a listed chemical
that is contained in a drug that may be
marketed or distributed lawfully in the United
States under the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301 et seq.) unless--
[(I)(aa) the drug contains ephedrine
or its salts, optical isomers, or salts
of optical isomers, pseudo-ephedrine or
its salts, optical isomers, or salts of
optical isomers, or phenylpropanolamine
or its salts, optical isomers, or salts
of optical isomers unless otherwise
provided by regulation of the Attorney
General issued pursuant to section
204(e) of this title, except that any
sale of ordinary over-the-counter
pseudoephedrine or phenylpropanolamine
products by retail distributors shall
not be a regulated transaction (except
as provided in section 401(d) of the
Comprehensive Methamphetamine Control
Act of 1996); or
[(bb) the Attorney General has
determined under section 204 that the
drug or group of drugs is being
diverted to obtain the listed chemical
for use in the illicit production of a
controlled substance; and
[(II) the quantity of ephedrine,
pseudoephedrine, phenylpropanolamine,
or other listed chemical contained in
the drug included in the transaction or
multiple transactions equals or exceeds
the threshold established for that
chemical by the Attorney General,
except that the threshold for any sale
of products containing pseudoephedrine
or phenylpropanolamine products by
retail distributors or by distributors
required to submit reports by section
310(b)(3) of this title shall be 9
grams of pseudoephedrine or 9 grams of
phenylpropanolamine in a single
transaction and sold in package sizes
of not more than 3 grams of
pseudoephedrine base or 3 grams of
phenylpropanolamine base; or]
(iv) any transaction in a listed chemical
that is contained in a drug that may be
marketed or distributed lawfully in the United
States under the Federal Food, Drug, and
Cosmetic Act, subject to clause (v), unless--
(I) the Attorney General has
determined under section 204 that the
drug or group of drugs is being
diverted to obtain the listed chemical
for use in the illicit production of a
controlled substance; and
(II) the quantity of the listed
chemical contained in the drug included
in the transaction or multiple
transactions equals or exceeds the
threshold established for that chemical
by the Attorney General;
(v) any transaction in a scheduled listed
chemical product; or
[(v)] (vi) any transaction in a chemical
mixture which the Attorney General has by
regulation designated as exempt from the
application of this title and title III based
on a finding that the mixture is formulated in
such a way that it cannot be easily used in the
illicit production of a controlled substance
and that the listed chemical or chemicals
contained in the mixture cannot be readily
recovered; and
* * * * * * *
[(45) The term ``ordinary over-the-counter
pseudoephedrine or phenylpropanolamine product'' means
any product containing pseudoephedrine or
phenylpropanolamine that is--
[(A) regulated pursuant to this title; and
[(B)(i) except for liquids, sold in package
sizes of not more than 3.0 grams of
pseudoephedrine base or 3.0 grams of
phenylpropanolamine base, and that is packaged
in blister packs, each blister containing not
more than two dosage units, or where the use of
blister packs is technically infeasible, that
is packaged in unit dose packets or pouches;
and
[(ii) for liquids, sold in package sizes of
not more than 3.0 grams of pseudoephedrine base
or 3.0 grams of phenylpropanolamine base.]
(45)(A) The term ``scheduled listed chemical product'' means,
subject to subparagraph (B), a product that--
(i) contains ephedrine, pseudoephedrine, or
phenylpropanolamine; and
(ii) may be marketed or distributed lawfully in the
United States under the Federal, Food, Drug, and
Cosmetic Act as a nonprescription drug.
Each reference in clause (i) to ephedrine, pseudoephedrine, or
phenylpropanolamine includes each of the salts, optical
isomers, and salts of optical isomers of such chemical.
(B) Such term does not include a product described in
subparagraph (A) if the product contains a chemical specified
in such subparagraph that the Attorney General has under
section 201(a) added to any of the schedules under section
202(c). In the absence of such scheduling by the Attorney
General, a chemical specified in such subparagraph may not be
considered to be a controlled substance.
(46) The term ``regulated seller'' means a retail distributor
(including a pharmacy or a mobile retail vendor), except that
such term does not include an employee or agent of such
distributor.
(47) The term ``mobile retail vendor'' means a person or
entity that makes sales at retail from a stand that is intended
to be temporary, or is capable of being moved from one location
to another, whether the stand is located within or on the
premises of a fixed facility (such as a kiosk at a shopping
center or an airport) or whether the stand is located on
unimproved real estate (such as a lot or field leased for
retail purposes).
(48) The term ``at retail'', with respect to the sale or
purchase of a scheduled listed chemical product, means a sale
or purchase for personal use, respectively.
[(46)] (49)(A) The term ``retail distributor'' means
a grocery store, general merchandise store, drug store,
or other entity or person whose activities as a
distributor relating to [pseudoephedrine or] ephedrine,
pseudoephedrine, or phenylpropanolamine products are
limited almost exclusively to sales for personal use,
both in number of sales and volume of sales, either
directly to walk-in customers or in face-to-face
transactions by direct sales.
[(B) For purposes of this paragraph, sale for
personal use means the sale of below-threshold
quantities in a single transaction to an individual for
legitimate medical use.]
[(C)] (B) For purposes of this paragraph, entities
are defined by reference to the Standard Industrial
Classification (SIC) code, as follows:
(i) * * *
* * * * * * *
Part B--Authority To Control; Standards and Schedules
* * * * * * *
REMOVAL OF EXEMPTION OF CERTAIN DRUGS
Sec. 204. (a) * * *
* * * * * * *
[(e) Reinstatement of Exemption With Respect to Ephedrine,
Pseudoephedrine, and Phenylpropanolamine Drug Products.--
Pursuant to subsection (d)(1), the Attorney General shall by
regulation reinstate the exemption with respect to a particular
ephedrine, pseudoephedrine, or phenylpropanolamine drug product
if the Attorney General determines that the drug product is
manufactured and distributed in a manner that prevents
diversion. In making this determination the Attorney General
shall consider the factors listed in subsection (d)(2). Any
regulation issued pursuant to this subsection may be amended or
revoked based on the factors listed in subsection (d)(4).]
Part C--Registration of Manufacturers, Distributors, and Dispensers of
Controlled Substances; Piperidine Reporting
* * * * * * *
registration requirements
Sec. 303. (a) * * *
* * * * * * *
(h) The Attorney General shall register an applicant to
distribute a list I chemical unless the Attorney General
determines that registration of the applicant is inconsistent
with the public interest. Registration under this subsection
shall not be required for the distribution of a drug product
that is exempted under [section 102(39)(A)(iv)] clause (iv) or
(v) of section 102(39)(A). In determining the public interest
for the purposes of this subsection, the Attorney General shall
consider--
(1) * * *
* * * * * * *
quotas applicable to certain substances
Sec. 306. (a) The Attorney General shall determine the total
quantity and establish production quotas for each basic class
of controlled substance in schedules I and II and for
ephedrine, pseudoephedrine, and phenylpropanolamine to be
manufactured each calendar year to provide for the estimated
medical, scientific, research, and industrial needs of the
United States, for lawful export requirements, and for the
establishment and maintenance of reserve stocks. Production
quotas shall be established in terms of quantities of each
basic class of controlled substance and not in terms of
individual pharmaceutical dosage forms prepared from or
containing such a controlled substance.
(b) The Attorney General shall limit or reduce individual
production quotas to the extent necessary to prevent the
aggregate of individual quotas from exceeding the amount
determined necessary each year by the Attorney General under
subsection (a). The quota of each registered manufacturer for
each basic class of controlled substance in schedule I or II or
for ephedrine, pseudoephedrine, or phenylpropanolamine shall be
revised in the same proportion as the limitation or reduction
of the aggregate of the quotas. However, if any registrant,
before the issuance of a limitation or reduction in quota, has
manufactured in excess of his revised quota, the amount of the
excess shall be subtracted from his quota for the following
year.
(c) On or before October 1 of each year, upon application
therefor by a registered manufacturer, the Attorney General
shall fix a manufacturing quota for the basic classes of
controlled substances in schedules I and II and for ephedrine,
pseudoephedrine, and phenylpropanolamine that the manufacturer
seeks to produce. The quota shall be subject to the provisions
of subsections (a) and (b) of this section. In fixing such
quotas, the Attorney General shall determine the manufacturer's
estimated disposal, inventory, and other requirements for the
calendar year; and, in making his determination, the Attorney
General shall consider the manufacturer's current rate of
disposal, the trend of the national disposal rate during the
preceding calendar year, the manufacturer's production cycle
and inventory position, the economic availability of raw
materials, yield and stability problems, emergencies such as
strikes and fires, and other factors.
(d) The Attorney General shall, upon application and subject
to the provisions of subsections (a) and (b) of this section,
fix a quota for a basic class of controlled substance in
schedule I or II for any registrant who has not manufactured
that basic class of controlled substance or ephedrine,
pseudoephedrine, or phenylpropanolamine during one or more
preceding calendar years. In fixing such quota, the Attorney
General shall take into account the registrant's reasonably
anticipated requirements for the current year; and, in making
his determination of such requirements, he shall consider such
factors specified in subsection (c) of this section as may be
relevant.
(e) At any time during the year any registrant who has
applied for or received a manufacturing quota for a basic class
of controlled substance in schedule I or II or for ephedrine,
pseudoephedrine, or phenylpropanolamine may apply for an
increase in that quota to meet his estimated disposal,
inventory, and other requirements during the remainder of that
year. In passing upon the application the Attorney General
shall take into consideration any occurrences since the filing
of the registrant's initial quota application that may require
an increased manufacturing rate by the registrant during the
balance of the year. In passing upon the application the
Attorney General may also take into account the amount, if any,
by which the determination of the Attorney General under
subsection (a) of this section exceeds the aggregate of the
quotas of all registrants under this section.
(f) Notwithstanding any other provisions of this title, no
registration or quota may be required for the manufacture of
such quantities of controlled substances in schedules I and II
or ephedrine, pseudoephedrine, or phenylpropanolamine as
incidentally and necessarily result from the manufacturing
process used for the manufacture of a controlled substance or
of ephedrine, pseudoephedrine, or phenylpropanolamine with
respect to which its manufacturer is duly registered under this
title. The Attorney General may, by regulation, prescribe
restrictions on the retention and disposal of such incidentally
produced substances or chemicals.
(g) Each reference in this section to ephedrine,
pseudoephedrine, or phenylpropanolamine includes each of the
salts, optical isomers, and salts of optical isomers of such
chemical.
* * * * * * *
REGULATION OF LISTED CHEMICALS AND CERTAIN MACHINES
Sec. 310. (a) * * *
(b)(1) * * *
* * * * * * *
(3) Mail order reporting.--
(A) * * *
* * * * * * *
(D) Except as provided in subparagraph (E), the
following distributions to a nonregulated person, and
the following export transactions, shall not be subject
to the reporting requirement in subparagraph (B):
(i) * * *
(ii) Distributions of drug products by retail
distributors that may not include face-to-face
transactions to the extent that such
distributions are consistent with the
activities authorized for a retail distributor
as specified in section [102(46)] 102(49),
except that this clause does not apply to sales
of scheduled listed chemical products at
retail.
* * * * * * *
(v) Exports which have been reported to the
Attorney General pursuant to section 1004 or
1018 or which are subject to a waiver granted
under [section 1018(e)(2)] section 1018(f)(2).
* * * * * * *
(d) Scheduled Listed Chemicals; Restrictions on Sales
Quantity; Requirements Regarding Nonliquid Forms.--With respect
to ephedrine base, pseudoephedrine base, or phenylpropanolamine
base in a scheduled listed chemical product--
(1) the quantity of such base sold at retail in such
a product by a regulated seller, or a distributor
required to submit reports by subsection (b)(3) may
not, for any purchaser, exceed a daily amount of 3.6
grams, without regard to the number of transactions;
and
(2) such a seller or distributor may not sell such a
product in nonliquid form (including gell caps) at
retail unless the product is packaged in blister packs,
each blister containing not more than 2 dosage units,
or where the use of blister packs is technically
infeasible, the product is packaged in unit dose
packets or pouches.
(e) Scheduled Listed Chemicals; Behind-the-Counter Access;
Logbook Requirement; Training of Sales Personnel; Privacy
Protections.--
(1) Requirements regarding retail transactions.--
(A) In general.--Each regulated seller shall
ensure that, subject to subparagraph (F), sales
by such seller of a scheduled listed chemical
product at retail are made in accordance with
the following:
(i) In offering the product for sale,
the seller places the product such that
customers do not have direct access to
the product before the sale is made (in
this paragraph referred to as ``behind-
the-counter'' placement). For purposes
of this paragraph, a behind-the-counter
placement of a product includes
circumstances in which the product is
stored in a locked cabinet that is
located in an area of the facility
involved to which customers do have
direct access.
(ii) The seller delivers the product
directly into the custody of the
purchaser.
(iii) The seller maintains, in
accordance with criteria issued by the
Attorney General, a written or
electronic list of such sales that
identifies the products by name, the
quantity sold, the names and addresses
of purchasers, and the dates and times
of the sales (which list is referred to
in this subsection as the ``logbook''),
except that such requirement does not
apply to any purchase by an individual
of a single sales package if that
package contains not more than 60
milligrams of pseudoephedrine.
(iv) In the case of a sale to which
the requirement of clause (iii)
applies, the seller does not sell such
a product unless--
(I) the prospective
purchaser--
(aa) presents an
identification card
that provides a
photograph and is
issued by a State or
the Federal Government,
or a document that,
with respect to
identification, is
considered acceptable
for purposes of
sections
274a.2(b)(1)(v)(A) and
274a.2(b)(1)(v)(B) of
title 8, Code of
Federal Regulations (as
in effect on or after
the date of the
enactment of the Combat
Methamphetamine
Epidemic Act of 2005);
and
(bb) signs the
logbook and enters in
the logbook his or her
name, address, and the
date and time of the
sale; and
(II) the seller--
(aa) determines that
the name entered in the
logbook corresponds to
the name provided on
such identification and
that the date and time
entered are correct;
and
(bb) enters in the
logbook the name of the
product and the
quantity sold.
(v) The logbook includes, in
accordance with criteria of the
Attorney General, a notice to
purchasers that entering false
statements or misrepresentations in the
logbook may subject the purchasers to
criminal penalties under section 1001
of title 18, United States Code, which
notice specifies the maximum fine and
term of imprisonment under such
section.
(vi) The seller maintains each entry
in the logbook for not fewer than two
years after the date on which the entry
is made.
(vii) In the case of individuals who
are responsible for delivering such
products into the custody of purchasers
or who deal directly with purchasers by
obtaining payments for the products,
the seller has submitted to the
Attorney General a self-certification
that all such individuals have, in
accordance with criteria under
subparagraph (B)(ii), undergone
training provided by the seller to
ensure that the individuals understand
the requirements that apply under this
subsection and subsection (d).
(viii) The seller maintains a copy of
such certification and records
demonstrating that individuals referred
to in clause (vii) have undergone the
training.
(ix) If the seller is a mobile retail
vendor:
(I) The seller complies with
clause (i) by placing the
product in a locked cabinet.
(II) The seller does not sell
more than 7.5 grams of
ephedrine base, pseudoephedrine
base, or phenylpropanolamine
base in such products per
customer during a 30-day
period.
(B) Additional provisions regarding
certifications and training.--
(i) In general.--A regulated seller
may not sell any scheduled listed
chemical product at retail unless the
seller has submitted to the Attorney
General the self-certification referred
to in subparagraph (A)(vii). The
certification is not effective for
purposes of the preceding sentence
unless, in addition to provisions
regarding the training of individuals
referred to in such subparagraph, the
certification includes a statement that
the seller understands each of the
requirements that apply under this
paragraph and under subsection (d) and
agrees to comply with the requirements.
(ii) Issuance of criteria; self-
certification.--The Attorney General
shall by regulation establish criteria
for certifications under this
paragraph. The criteria shall--
(I) provide that the
certifications are self-
certifications provided through
the program under clause (iii);
(II) provide that a separate
certification is required for
each place of business at which
a regulated seller sells
scheduled listed chemical
products at retail; and
(III) include criteria for
training under subparagraph
(A)(vii).
(iii) Program for regulated
sellers.--The Attorney General shall
establish a program regarding such
certifications and training in
accordance with the following:
(I) The program shall be
carried out through an Internet
site of the Department of
Justice and such other means as
the Attorney General determines
to be appropriate.
(II) The program shall inform
regulated sellers that section
1001 of title 18, United States
Code, applies to such
certifications.
(III) The program shall make
available to such sellers an
explanation of the criteria
under clause (ii).
(IV) The program shall be
designed to permit the
submission of the
certifications through such
Internet site.
(V) The program shall be
designed to automatically
provide the explanation
referred to in subclause (III),
and an acknowledgement that the
Department has received a
certification, without
requiring direct interactions
of regulated sellers with staff
of the Department (other than
the provision of technical
assistance, as appropriate).
(iv) Availability of certification to
state and local officials.--Promptly
after receiving a certification under
subparagraph (A)(vii), the Attorney
General shall make available a copy of
the certification to the appropriate
State and local officials.
(C) Privacy protections.--In order to protect
the privacy of individuals who purchase
scheduled listed chemical products, the
Attorney General shall by regulation establish
restrictions on disclosure of information in
logbooks under subparagraph (A)(iii). Such
regulations shall--
(i) provide for the disclosure of the
information as appropriate to the
Attorney General and to State and local
law enforcement agencies; and
(ii) prohibit accessing, using, or
sharing information in the logbooks for
any purpose other than to ensure
compliance with this title or to
facilitate a product recall to protect
public health and safety.
(D) False statements or misrepresentations by
purchasers.--For purposes of section 1001 of
title 18, United States Code, entering
information in the logbook under subparagraph
(A)(iii) shall be considered a matter within
the jurisdiction of the executive, legislative,
or judicial branch of the Government of the
United States.
(E) Good faith protection.--A regulated
seller who in good faith releases information
in a logbook under subparagraph (A)(iii) to
Federal, State, or local law enforcement
authorities is immune from civil liability for
such release unless the release constitutes
gross negligence or intentional, wanton, or
willful misconduct.
(F) Inapplicability of requirements to
certain sales.--Subparagraph (A) does not apply
to the sale at retail of a scheduled listed
chemical product if a report on the sales
transaction is required to be submitted to the
Attorney General under subsection (b)(3).
(G) Certain measures regarding theft and
diversion.--A regulated seller may take
reasonable measures to guard against employing
individuals who may present a risk with respect
to the theft and diversion of scheduled listed
chemical products, which may include,
notwithstanding State law, asking applicants
for employment whether they have been convicted
of any crime involving or related to such
products or controlled substances.
(2) Mail-order reporting; verification of identity of
purchaser; 30-day restriction on quantities for
individual purchasers.--Each regulated person who makes
a sale at retail of a scheduled listed chemical product
and is required under subsection (b)(3) to submit a
report of the sales transaction to the Attorney General
is subject to the following:
(A) The person shall, prior to shipping the
product, confirm the identity of the purchaser
in accordance with procedures established by
the Attorney General. The Attorney General
shall by regulation establish such procedures.
(B) The person may not sell more than 7.5
grams of ephedrine base, pseudoephedrine base,
or phenylpropanolamine base in such products
per customer during a 30-day period.
(3) Exemptions for certain products.--Upon the
application of a manufacturer of a scheduled listed
chemical product, the Attorney General may by
regulation provide that the product is exempt from the
provisions of subsection (d) and paragraphs (1) and (2)
of this subsection if the Attorney General determines
that the product cannot be used in the illicit
manufacture of methamphetamine.
* * * * * * *
Part D--Offenses and Penalties
prohibited acts a--penalties
Sec. 401. (a) * * *
* * * * * * *
(f)(1) Whoever knowingly distributes a listed chemical in
violation of this title (other than in violation of a
recordkeeping or reporting requirement of section 310) shall,
except to the extent that paragraph (12), (13), or (14) of
section 402(a) applies, be fined under title 18, United States
Code, or imprisoned not more than 5 years, or both.
* * * * * * *
PROHIBITED ACTS B--PENALTIES
Sec. 402. (a) It shall be unlawful for any person--
(1) * * *
* * * * * * *
(10) negligently to fail to keep a record or make a
report under section 310; [or]
(11) 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, in violation of this title or title III, with
reckless disregard for the illegal uses to which such a
laboratory supply will be put[.];
(12) who is a regulated seller, or a distributor
required to submit reports under subsection (b)(3) of
section 310--
(A) to sell at retail a scheduled listed
chemical product in violation of paragraph (1)
of subsection (d) of such section, knowing at
the time of the transaction involved
(independent of consulting the logbook under
subsection (e)(1)(A)(iii) of such section) that
the transaction is a violation; or
(B) to knowingly or recklessly sell at retail
such a product in violation of paragraph (2) of
such subsection (d);
(13) who is a regulated seller to knowingly or
recklessly sell at retail a scheduled listed chemical
product in violation of subsection (e) of such section;
or
(14) who is a regulated seller or an employee or
agent of such seller to disclose, in violation of
regulations under subparagraph (C) of section
310(e)(1), information in logbooks under subparagraph
(A)(iii) of such section, or to refuse to provide such
a logbook to Federal, State, or local law enforcement
authorities.
* * * * * * *
(b) It shall be unlawful for any person who is a registrant
to manufacture a controlled substance in schedule I or II, or
ephedrine, pseudoephedrine, or phenylpropanolamine or any of
the salts, optical isomers, or salts of optical isomers of such
chemical, which is--
(1) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(4)(A) If a regulated seller, or a distributor required to
submit reports under section 310(b)(3), violates paragraph (12)
of subsection (a) of this section, or if a regulated seller
violates paragraph (13) of such subsection, the Attorney
General may by order prohibit such seller or distributor (as
the case may be) from selling any scheduled listed chemical
product. Any sale of such a product in violation of such an
order is subject to the same penalties as apply under paragraph
(2).
(B) An order under subparagraph (A) may be imposed only
through the same procedures as apply under section 304(c) for
an order to show cause.
* * * * * * *
Criminal Forfeitures
property subject to criminal forfeiture
Sec. 413. (a) * * *
* * * * * * *
(q) The court, when sentencing a defendant convicted of an
offense under this title or title III involving the
manufacture, the possession, or the possession with intent to
distribute, of amphetamine or methamphetamine, shall--
(1) * * *
(2) order the defendant to reimburse the United
States, the State or local government concerned, or
both the United States and the State or local
government concerned for the costs incurred by the
United States or the State or local government
concerned, as the case may be, for the cleanup
associated with the manufacture of amphetamine or
methamphetamine by the defendant, or on premises or in
property that the defendant owns, resides, or does
business in; and
* * * * * * *
----------
SECTION 401 OF THE COMPREHENSIVE METHAMPHETAMINE CONTROL ACT OF 1996
SEC. 401. DIVERSION OF CERTAIN PRECURSOR CHEMICALS.
(a) * * *
* * * * * * *
[(d) Regulation of Retail Sales.--
[(1) Pseudoephedrine.--
[(A) Limit.--
[(i) In general.--Not sooner than the
effective date of this section and
subject to the requirements of clause
(ii), the Attorney General may
establish by regulation a single-
transaction limit of 24 grams of
pseudoephedrine base for retail
distributors. Notwithstanding any other
provision of law, the single-
transaction threshold quantity for
pseudoephedrine-containing compounds
may not be lowered beyond that
established in this paragraph.
[(ii) Conditions.--In order to
establish a single-transaction limit of
24 grams of pseudoephedrine base, the
Attorney General shall establish,
following notice, comment, and an
informal hearing that since the date of
enactment of this Act there are a
significant number of instances where
ordinary over-the-counter
pseudoephedrine products as established
in paragraph (45) of section 102 of the
Controlled Substances Act (21 U.S.C.
802(45)), as added by this Act, sold by
retail distributors as established in
paragraph (46) in section 102 of the
Controlled Substances Act (21 U.S.C.
802(46)), are being widely used as a
significant source of precursor
chemicals for illegal manufacture of a
controlled substance for distribution
or sale.
[(B) Violation.--Any individual or business
that violates the thresholds established in
this paragraph shall, with respect to the first
such violation, receive a warning letter from
the Attorney General and, if a business, the
business shall be required to conduct mandatory
education of the sales employees of the firm
with regard to the legal sales of
pseudoephedrine. For a second violation
occurring within 2 years of the first
violation, the business or individual shall be
subject to a civil penalty of not more than
$5,000. For any subsequent violation occurring
within 2 years of the previous violation, the
business or individual shall be subject to a
civil penalty not to exceed the amount of the
previous civil penalty plus $5,000.
[(2) Phenylpropanolamine.--
[(A) Limit.--
[(i) In general.--Not sooner than the
effective date of this section and
subject to the requirements of clause
(ii), the Attorney General may
establish by regulation a single-
transaction limit of 24 grams of
phenylpropanolamine base for retail
distributors. Notwithstanding any other
provision of law, the single-
transaction threshold quantity for
phenylpropanolamine-containing
compounds may not be lowered beyond
that established in this paragraph.
[(ii) Conditions.--In order to
establish a single-transaction limit of
24 grams of phenylpropanolamine base,
the Attorney General shall establish,
following notice, comment, and an
informal hearing, that since the date
of enactment of this Act there are a
significant number of instances where
ordinary over-the-counter
phenylpropanolamine products as
established in paragraph (45) of
section 102 of the Controlled
Substances Act (21 U.S.C. 802(45)), as
added by this Act, sold by retail
distributors as established in
paragraph (46) in section 102 of the
Controlled Substances Act (21 U.S.C.
802(46)), are being used as a
significant source of precursor
chemicals for illegal manufacture of a
controlled substance in bulk.
[(B) Violation.--Any individual or business
that violates the thresholds established in
this paragraph shall, with respect to the first
such violation, receive a warning letter from
the Attorney General and, if a business, the
business shall be required to conduct mandatory
education of the sales employees of the firm
with regard to the legal sales of
pseudoephedrine. For a second violation
occurring within 2 years of the first
violation, the business or individual shall be
subject to a civil penalty of not more than
$5,000. For any subsequent violation occurring
within 2 years of the previous violation, the
business or individual shall be subject to a
civil penalty not to exceed the amount of the
previous civil penalty plus $5,000.
[(3) Significant number of instances.--
[(A) In general.--For purposes of this
subsection, isolated or infrequent use, or use
in insubstantial quantities, of ordinary over-
the-counter pseudoephedrine or
phenylpropanolamine, as defined in section
102(45) of the Controlled Substances Act, as
added by section 401(b) of this Act, and sold
at the retail level for the illicit manufacture
of methamphetamine or amphetamine may not be
used by the Attorney General as the basis for
establishing the conditions under paragraph
(1)(A)(ii) of this subsection, with respect to
pseudoephedrine, and paragraph (2)(A)(ii) of
this subsection, with respect to
phenylpropanolamine.
[(B) Considerations and report.--The Attorney
General shall--
[(i) in establishing a finding under
paragraph (1)(A)(ii) or (2)(A)(ii) of
this subsection, consult with the
Secretary of Health and Human Services
in order to consider the effects on
public health that would occur from the
establishment of new single transaction
limits as provided in such paragraph;
and
[(ii) upon establishing a finding,
transmit a report to the Committees on
the Judiciary in both, respectively,
the House of Representatives and the
Senate in which the Attorney General
will provide the factual basis for
establishing the new single transaction
limits.
[(4) Definition of business.--For purposes of this
subsection, the term ``business'' means the entity that
makes the direct sale and does not include the parent
company of a business not involved in a direct sale
regulated by this subsection.
[(5) Judicial review.--Any regulation promulgated by
the Attorney General under this section shall be
subject to judicial review pursuant to section 507 of
the Controlled Substances Act (21 U.S.C. 877).
[(e) Effect on Thresholds.--Nothing in the amendments made by
subsection (b) or the provisions of subsection (d) shall affect
the authority of the Attorney General to modify thresholds
(including cumulative thresholds) for retail distributors for
products other than ordinary over-the-counter pseudoephedrine
or phenylpropanolamine products (as defined in section 102(45)
of the Controlled Substances Act, as added by this section) or
for non-retail distributors, importers, or exporters.
[(f) Combination Ephedrine Products.--
[(1) In general.--For the purposes of this section,
combination ephedrine products shall be treated the
same as pseudoephedrine products, except that--
[(A) a single transaction limit of 24 grams
shall be effective as of the date of enactment
of this Act and shall apply to sales of all
combination ephedrine products, notwithstanding
the form in which those products are packaged,
made by retail distributors or distributors
required to submit a report under section
310(b)(3) of the Controlled Substances Act (as
added by section 402 of this Act);
[(B) for regulated transactions for
combination ephedrine products other than sales
described in subparagraph (A), the transaction
limit shall be--
[(i) 1 kilogram of ephedrine base,
effective on the date of enactment of
this Act; or
[(ii) a threshold other than the
threshold described in clause (i), if
established by the Attorney General not
earlier than 1 year after the date of
enactment of this Act; and
[(C) the penalties provided in subsection
(d)(1)(B) of this section shall take effect on
the date of enactment of this Act for any
individual or business that violates the single
transaction limit of 24 grams for combination
ephedrine products.
[(2) Definition.--For the purposes of this section,
the term ``combination ephedrine product'' means a drug
product containing ephedrine or its salts, optical
isomers, or salts of optical isomers and
therapeutically significant quantities of another
active medicinal ingredient.]
* * * * * * *
----------
CONTROLLED SUBSTANCES IMPORT AND EXPORT ACT
TITLE III--IMPORTATION AND EXPORTATION; AMENDMENTS AND REPEALS OF
REVENUE LAWS
short title
Sec. 1000. This title may be cited as the ``Controlled
Substances Import and Export Act''.
Part A--Importation and Exportation
importation of controlled substances
Sec. 1002. (a) It shall be unlawful to import into the
customs territory of the United States from any place outside
thereof (but within the United States), or to import into the
United States from any place outside thereof, any controlled
substance in schedule I or II of title II, or any narcotic drug
in schedule III, IV, or V of title II, or ephedrine,
pseudoephedrine, or phenylpropanolamine, except that--
(1) such amounts of crude opium poppy straw,
concentrate of poppy straw, and coca leaves, and of
ephedrine, pseudoephedrine, and phenylpropanolamine, as
the Attorney General finds to be necessary to provide
for medical, scientific, or other legitimate purposes,
and
* * * * * * *
(d)(1) With respect to a registrant under section 1008 who is
authorized under subsection (a)(1) to import ephedrine,
pseudoephedrine, or phenylpropanolamine, at any time during the
year the registrant may apply for an increase in the amount of
such chemical that the registrant is authorized to import, and
the Attorney General may approve the application if the
Attorney General determines that the approval is necessary to
provide for medical, scientific, or other legitimate purposes
regarding the chemical.
(2) With respect to the application under paragraph (1):
(A) Not later than 60 days after receiving the
application, the Attorney General shall approve or deny
the application.
(B) In approving the application, the Attorney
General shall specify the period of time for which the
approval is in effect, or shall provide that the
approval is effective until the registrant involved is
notified in writing by the Attorney General that the
approval is terminated.
(C) If the Attorney General does not approve or deny
the application before the expiration of the 60-day
period under subparagraph (A), the application is
deemed to be approved, and such approval remains in
effect until the Attorney General notifies the
registrant in writing that the approval is terminated.
(e) Each reference in this section to ephedrine,
pseudoephedrine, or phenylpropanolamine includes each of the
salts, optical isomers, and salts of optical isomers of such
chemical.
* * * * * * *
prohibited acts a--penalties
Sec. 1010. (a) * * *
* * * * * * *
(d) A person who knowingly or intentionally--
(1) * * *
* * * * * * *
(5) imports or exports a listed chemical, with the
intent to evade the reporting or recordkeeping
requirements of section 1018 applicable to such
importation or exportation by falsely representing to
the Attorney General that the importation or
exportation qualifies for a waiver of the 15-day
notification requirement granted pursuant to [section
1018(e) (2) or (3)] paragraph (2) or (3) of section
1018(f) by misrepresenting the actual country of final
destination of the listed chemical or the actual listed
chemical being imported or exported;
[(6) imports or exports a listed chemical in
violation of section 1007 or 1018; or]
(6) imports a listed chemical in violation of section
1002, imports or exports such a chemical in violation
of section 1007 or 1018, or transfers such a chemical
in violation of section 1018(d); or
* * * * * * *
NOTIFICATION, SUSPENSION OF SHIPMENT, AND PENALTIES WITH RESPECT TO
IMPORTATION AND EXPORTATION OF LISTED CHEMICALS
Sec. 1018. (a) * * *
(b)(1) The Attorney General shall provide by regulation for
circumstances in which the requirement of subsection (a) does
not apply to a transaction between a regulated person and a
regular customer [or to an importation by a regular importer]
or to a transaction that is an importation by a regular
importer. At the time of any importation or exportation
constituting a transaction referred to in the preceding
sentence, the regulated person shall notify the Attorney
General of the transaction.
* * * * * * *
(c)(1) The Attorney General may order the suspension of any
importation or exportation of a listed chemical (other than a
regulated transaction to which the requirement of subsection
(a) does not apply by reason of subsection (b)) or may
disqualify any regular customer or regular importer on the
ground that the chemical may be diverted to the clandestine
manufacture of a controlled substance (without regard to the
form of the chemical that may be diverted, including the
diversion of a finished drug product to be manufactured from
bulk chemicals to be transferred). From and after the time when
the Attorney General provides written notice of the order
(including a statement of the legal and factual basis for the
order) to the regulated person, the regulated person may not
carry out the transaction.
* * * * * * *
(d)(1)(A) Information provided in a notice under subsection
(a) or (b) shall include the name of the person to whom the
importer or exporter involved intends to transfer the listed
chemical involved, and the quantity of such chemical to be
transferred.
(B) In the case of a notice under subsection (b) submitted by
a regular importer, if the transferee identified in the notice
is not a regular customer, such importer may not transfer the
listed chemical until after the expiration of the 15-day period
beginning on the date on which the notice is submitted to the
Attorney General.
(C) After a notice under subsection (a) or (b) is submitted
to the Attorney General, if circumstances change and the
importer or exporter will not be transferring the listed
chemical to the transferee identified in the notice, or will be
transferring a greater quantity of the chemical than specified
in the notice, the importer or exporter shall update the notice
to identify the most recent prospective transferee or the most
recent quantity or both (as the case may be) and may not
transfer the listed chemical until after the expiration of the
15-day period beginning on the date on which the update is
submitted to the Attorney General, except that such 15-day
restriction does not apply if the prospective transferee
identified in the update is a regular customer. The preceding
sentence applies with respect to changing circumstances
regarding a transferee or quantity identified in an update to
the same extent and in the same manner as such sentence applies
with respect to changing circumstances regarding a transferee
or quantity identified in the original notice under subsection
(a) or (b).
(D) In the case of a transfer of a listed chemical that is
subject to a 15-day restriction under subparagraph (B) or (C),
the transferee involved shall, upon the expiration of the 15-
day period, be considered to qualify as a regular customer,
unless the Attorney General otherwise notifies the importer or
exporter involved in writing.
(2) With respect to a transfer of a listed chemical with
which a notice or update referred to in paragraph (1) is
concerned:
(A) The Attorney General, in accordance with the same
procedures as apply under subsection (c)(2)--
(i) may order the suspension of the transfer
of the listed chemical by the importer or
exporter involved, except for a transfer to a
regular customer, on the ground that the
chemical may be diverted to the clandestine
manufacture of a controlled substance (without
regard to the form of the chemical that may be
diverted, including the diversion of a finished
drug product to be manufactured from bulk
chemicals to be transferred), subject to the
Attorney General ordering such suspension
before the expiration of the 15-day period
referred to in paragraph (1) with respect to
the importation or exportation (in any case in
which such a period applies); and
(ii) may, for purposes of clause (i) and
paragraph (1), disqualify a regular customer on
such ground.
(B) From and after the time when the Attorney General
provides written notice of the order under subparagraph
(A) (including a statement of the legal and factual
basis for the order) to the importer or exporter, the
importer or exporter may not carry out the transfer.
(3) For purposes of this subsection:
(A) The terms ``importer'' and ``exporter'' mean a
regulated person who imports or exports a listed
chemical, respectively.
(B) The term ``transfer'', with respect to a listed
chemical, includes the sale of the chemical.
(C) The term ``transferee'' means a person to whom an
importer or exporter transfers a listed chemical.
[(d)] (e) A person located in the United States who is a
broker or trader for an international transaction in a listed
chemical that is a regulated transaction solely because of that
person's involvement as a broker or trader shall, with respect
to that transaction, be subject to all of the notification,
reporting, recordkeeping, and other requirements placed upon
exporters of listed chemicals by this title and title II.
[(e)] (f)(1) * * *
* * * * * * *
(g) Within 30 days after a transaction covered by this
section is completed, the importer or exporter shall send the
Attorney General a return declaration containing particulars of
the transaction, including the date, quantity, chemical,
container, name of transferees, and such other information as
the Attorney General may specify in regulations. For importers,
a single return declaration may include the particulars of both
the importation and distribution. If the importer has not
distributed all chemicals imported by the end of the initial
30-day period, the importer shall file supplemental return
declarations no later than 30 days from the date of any further
distribution, until the distribution or other disposition of
all chemicals imported pursuant to the import notification or
any update are accounted for.
* * * * * * *
----------
SECTION 5103 OF TITLE 49, UNITED STATES CODE
Sec. 5103. General regulatory authority
(a) * * *
* * * * * * *
(d) Biennial Report.--The Secretary of Transportation shall
submit to the Committee on Transportation and Infrastructure of
the House of Representatives and the Senate Committee on
Commerce, Science, and Transportation a biennial report
providing information on whether the Secretary has designated
as hazardous materials for purposes of chapter 51 of such title
all by-products of the methamphetamine-production process that
are known by the Secretary to pose an unreasonable risk to
health and safety or property when transported in commerce in a
particular amount and form.
----------
SECTION 3001 OF THE SOLID WASTE DISPOSAL ACT
identification and listing of hazardous waste
Sec. 3001. (a) * * *
* * * * * * *
(j) Methamphetamine Production.--Not later than every 24
months, the Administrator shall submit to the Committee on
Energy and Commerce of the House of Representatives and the
Committee on Environment and Public Works of the Senate a
report setting forth information collected by the Administrator
from law enforcement agencies, States, and other relevant
stakeholders that identifies the byproducts of the
methamphetamine production process and whether the
Administrator considers each of the byproducts to be a
hazardous waste pursuant to this section and relevant
regulations.
Exchange of Committee Correspondence
House of Representatives,
Committee on International Relations,
Washington, DC, November 15, 2005.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
Rayburn House Office Building, Washington, DC.
Dear Mr. Chairman: I am writing to you concerning H.R.
3889, the ``Methamphetamine Epidemic Elimination Act.'' This
bill was referred by the Speaker to your Committee along with
orders, including the Judiciary Committee and this Committee.
The bill contains language relating to the importing and
exporting of certain chemicals which are precursors used in the
manufacturing of methamphetamines, which falls within the Rule
X jurisdiction of this Committee.
Specifically, the language in section 202 of the bill
concerning requirements relating to the largest exporting and
importing countries of certain precursor chemicals, and the
language of section 203 relating to prevention of smuggling of
methamphetamine into the United States from Mexico, deal with
matters over which this Committee has had a long-term
jurisdictional and subject matter interest. This Committee has
worked closely with the Committee on the Judiciary, which also
has long-term jurisdictional and subject matter interest in the
problem of precursor chemicals. As a result of this
collaboration, we have crafted language in sections 202 and 203
which is acceptable to both committees.
In light of your Committee's desire to proceed to floor
consideration of this bill, I am willing to waive further
consideration of the bill. I do so with the understanding that
by waiving consideration of the bill, the Committee on
International Relations does not waive any future
jurisdictional claim over these or similar measures. In
addition, in the event of a conference with the Senate on this
matter, this Committee reserves the right to seek the
appointment of conferees.
Please place this letter into the Committee's report on
H.R. 3889 or the Congressional Record during consideration of
the measure on the House floor. Thank you for the cooperative
spirit in which you have worked regarding this matter and
others between our respective committees.
Sincerely,
Henry J. Hyde,
Chairman.
------
House of Representatives,
Committee on Energy and Commerce,
Washington, DC, November 15, 2005.
Hon. Henry J. Hyde,
Chairman, Committee on International Relations,
House of Representatives, Washington, DC.
Dear Chairman Hyde: Thank you for your letter concerning
H.R. 3889 ``Methamphetamine Epidemic Elimination Act.'' I
concur with your statements that the bill contains language
relating to the importing and exporting of certain chemicals
which are precursors used in the manufacturing of
methamphetamines which falls within the Rule X jurisdiction of
the International Relations Committee. Section 202 of the bill
concerning requirements relating to the largest exporting and
importing countries of certain precursor chemicals and the
language of section 203 relating to prevention of smuggling of
methamphetamine into the United States from Mexico both deal
with matters over which your Committee has subject matter
jurisdiction.
I appreciate your willingness to waive further
consideration of the bill by your Committee. By waiving the
opportunity to markup the bill I concur that the Committee on
International Relations does not waive any future
jurisdictional claim over these or similar measures. In
addition, in the event of a conference with the Senate on this
matter I will recommend that your Committee have the right to
seek the appointment of conferees.
As you have requested, I will enter this exchange of
letters into the Committee's report on H.R. 3889 or the
Congressional Record during the debate on this bill.
Sincerely,
Joe Barton,
Chairman.
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House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC, November 15, 2005.
Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
Rayburn Building, Washington, DC.
Dear Mr. Chairman: I am writing to you concerning the
jurisdictional interest of the Transportation and
Infrastructure Committee in matters being considered in H.R.
3889, the Methamphetamine Epidemic Elimination Act. As you
know, this Committee received a referral of the bill.
Our Committee recognizes the importance of H.R. 3889 and
the need for the legislation to move expeditiously to the House
Floor this week. Therefore, I am willing to have the
Transportation Committee discharged from consideration of the
bill.
The Committee on Transportation and Infrastructure also
asks that you support our request to be conferees on the
provisions over which we have jurisdiction during any House-
Senate conference. I would appreciate it if you would include a
copy of this letter and your response in the Congressional
Record.
Thank you for your cooperation in this matter.
Sincerely,
Don Young,
Chairman.
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House of Representatives,
Committee on Energy and Commerce,
Washington, DC, November 16, 2005.
Hon. Don Young,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Chairman Young: Thank you for your letter in regards
to H.R. 3889, the Methamphetamine Epidemic Elimination Act,
which the Committee on Energy and Commerce ordered reported on
November 15, 2005.
As the Committee on Transportation and Infrastructure was
named as an additional Committee of jurisdiction upon the
bill's introduction, I acknowledge and appreciate your
willingness not to exercise your full referral on the bill. In
doing so, I agree that your decision to forgo further action on
the bill will not prejudice the Committee on Transportation and
Infrastructure with respect to its jurisdictional prerogatives
on this legislation or similar legislation. Further, I
recognize your right to request conferees on those provisions
within the Committee on Transportation and Infrastructure's
jurisdiction should they be the subject of a House-Senate
conference on this or similar legislation.
I will include your letter and this response in the
Committee's report on H.R. 3889 or in the Congressional Record
during consideration on the House floor.
Sincerely,
Joe Barton,
Chairman.