[Federal Register: December 15, 2004 (Volume 69, Number 240)]
[Rules and Regulations]
[Page 74957-74973]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de04-5]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1310
[Docket No. DEA-137F2]
RIN 1117-AA31
Exemption of Chemical Mixtures
AGENCY: Drug Enforcement Administration (DEA), Justice.
ACTION: Final rule with request for comment.
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SUMMARY: On September 16, 1998, the Drug Enforcement Administration
(DEA) published a Notice of Proposed Rulemaking (NPRM) (63 FR 49506)
that proposed new regulations concerning chemical mixtures that contain
any of the 34 listed chemicals subject to DEA control at that time. The
NPRM was the initial step toward implementation of Controlled
Substances Act (CSA) provisions that require that only those chemical
mixtures identified by regulation be exempt from applicable regulatory
controls. This Final Rule will implement regulations that define those
chemical mixtures that qualify for automatic exemption for 27 of the 34
listed chemicals addressed in the NPRM.
Under separate rulemaking (68 FR 23195) DEA has finalized
regulations pertaining to six of the listed chemicals addressed in the
initial NPRM. That rulemaking specifies those chemical mixtures
qualifying for automatic exemption based upon specific exemption
categories and concentration limits. That rulemaking also finalized an
application process for chemical mixtures that do not qualify for
automatic exemption.
This Final Rulemaking will add a new provision not previously
raised in the NPRM. This newly introduced provision will exempt from
the recordkeeping and reporting requirements both domestic and import
transactions in mixtures containing the List II chemicals acetone,
ethyl ether, 2-butanone, and toluene. Because this exemption was not
discussed in the NPRM published on September 16, 1998, DEA is
implementing this exemption on an interim basis and requests public
comment with respect to only this exemption.
DATES: This Final Rule is effective January 14, 2005. Persons seeking
registration must apply on or before February 14, 2005, in order to
continue their business pending final action by DEA on their
application. DEA is seeking comments on new Section 1310.08(l) only.
Written comments must be postmarked, and electronic comments must be
sent, on or before January 14, 2005.
ADDRESSES: To ensure proper handling of comments, please reference
``Docket No. DEA-137F2'' on all written and electronic correspondence.
Written comments being sent via regular mail should be sent to the
Deputy Administrator, Drug Enforcement Administration, Washington, DC
20537, Attention: DEA Federal Register Representative/CCD. Written
comments sent via express mail should be sent to DEA Headquarters,
Attention: DEA Federal Register Representative/CCD, 2401 Jefferson-
Davis Highway, Alexandria, VA 22301. Comments may be directly sent to
DEA electronically by sending an electronic message to
dea.diversion.policy@usdoj.gov. Comments may also be sent
electronically through http://www.regulations.gov using the electronic
comment form provided on that site. An electronic copy of this document
is also available at the http://www.regulations.gov Web site. DEA will
accept attachments to electronic comments in Microsoft word,
WordPerfect, Adobe PDF, or Excel file formats only. DEA will not accept
any file format other than those specifically listed here.
FOR FURTHER INFORMATION CONTACT: Christine A. Sannerud, Ph.D., Chief,
Drug & Chemical Evaluation Section, Office of Diversion Control, Drug
Enforcement Administration, Washington, DC 20537, telephone (202) 307-
7183
SUPPLEMENTARY INFORMATION:
I. Background
Historical Legal Status of Chemical Mixtures
The Chemical Diversion and Trafficking Act of 1988 (Pub. L. 100-
690) (CDTA) created the definition of ``chemical mixture'' (21 U.S.C.
802(40)), and exempted chemical mixtures from regulatory control. The
CDTA established 21 U.S.C. 802(39)(A)(v) to exclude ``any transaction
in a chemical mixture'' from the definition of a ``regulated
transaction.'' The exemption of all chemical mixtures, however,
provided traffickers with an unregulated source for obtaining listed
chemicals for use in the illicit manufacture of controlled substances.
To remedy this situation, the Domestic Chemical Diversion Control
Act of 1993 (DCDCA), enacted in April 1994, subjected chemical mixtures
containing listed chemicals to CSA regulatory requirements, unless
specifically exempted by regulation. The DCDCA, therefore, subjected
all regulated chemical mixtures to recordkeeping, reporting, and
security requirements of the CSA. Additionally, the DCDCA added a
registration requirement for handlers of regulated List I chemical
mixtures.
The DCDCA, however, also amended 21 U.S.C. 802(39)(A)(v) to provide
the Attorney General with the authority to establish regulations
exempting chemical mixtures from the definition of a ``regulated
transaction'' ``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'' (21 U.S.C.
802(39)(A)(v)). This authority has been delegated to the Administrator
of DEA by 28 CFR 0.100 and redelegated to the Deputy Administrator
under 28 CFR 0.104 (Subpart R) Appendix Sec. 12.
Prior to publication of a final rulemaking, chemical mixtures
containing listed chemicals have been treated as exempt from CSA
regulatory control. This final rulemaking specifies criteria used to
determine whether chemical mixtures qualify for automatic exemption
from CSA chemical regulatory controls. Those chemical mixtures that do
not meet the exemption criteria shall be treated as regulated chemicals
and therefore subject to CSA chemical regulatory controls.
Since DEA recognizes that concentration or category criteria alone
cannot identify all mixtures that warrant exemption, an application
process has been implemented in 21 CFR 1310.13. This process, finalized
in a Final Rule published in the Federal Register at 68 FR 23195 (May
1, 2003), allows manufacturers to apply for exemption from CSA
regulatory controls, for those chemical mixtures that do not qualify
for automatic exemption.
Chemical Mixture Definition
21 U.S.C. 802(40) defines the term ``chemical mixture'' as ``a
combination of two or more chemical substances, at least one of which
is not a List I chemical or a List II chemical, except that such term
does not include any combination of a List I chemical or a List II
chemical with another chemical that is present solely as an impurity.''
Therefore, a chemical mixture contains any number of listed chemicals
along with any number of non-listed chemicals. A combination of only
listed chemicals is, therefore, not a chemical mixture pursuant to CSA
definition. As such, the regulatory controls pertaining
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to each individual listed chemical are applicable.
DEA does not consider a chemical mixture to mean the combination of
a listed chemical in an inert carrier. An inert carrier can be any
chemical that does not interfere with the listed chemical's function
but is present to aid in the delivery of the listed chemical so it can
be used in some chemical process. Examples include, but are not limited
to, solutions of listed chemicals such as methylamine in water or
hydrogen chloride dissolved in water or alcohol. Sassafras oil, an
essential oil mostly consisting of safrole, is not regarded as a
chemical mixture containing safrole. It is regulated as the List I
chemical safrole. These examples have always been treated as listed
chemicals and are not new to this rulemaking. Persons who question if
their formulations are chemical mixtures should contact DEA for
guidance.
Federal Register Publications Pertaining to Chemical Mixture Exemption
Regulations regarding the exemption of chemical mixtures were
initially proposed by DEA on October 13, 1994 as part of its proposed
regulations to implement the DCDCA (59 FR 51888). In response to
industry concerns, the proposed regulations were withdrawn on December
9, 1994 (59 FR 63738).
DEA proposed new regulations regarding the exemption of chemical
mixtures by publishing a new NPRM entitled ``Exemption of Chemical
Mixtures'' on September 16, 1998 (63 FR 49506). DEA proposed the
following three-tiered approach to identify which chemical mixtures
qualify for automatic exemption: (1) It contains a listed chemical at
or below an established concentration limit; or (2) it falls within a
specifically defined category; or (3) the manufacturer of the mixture
applies for and is granted a specific exemption for the product.
1. Concentration Limits
DEA proposed that each chemical be assigned a concentration limit
that, if found at or below the limit, will cause the mixture to be
treated as a non-regulated chemical. This quantitative approach is
considered necessary in order to simplify the method of identifying
regulated chemical mixtures. Identifying regulated chemical mixtures by
narrative is impractical due to the variety of chemical products. These
concentration limits are expected to exempt the vast majority of
chemical mixtures containing listed chemicals.
2. Exemption Categories
DEA also proposed the creation of three specific categories of
automatic exemption. They are (1) waste materials regulated by the
Environmental Protection Agency (EPA); (2) fully formulated paints and
coatings; and (3) harvested plant material. A chemical mixture that
falls into one of these three categories is exempt regardless of the
amount of listed chemical it contains.
Waste materials were proposed as an exempt category provided there
is documentation on EPA Form 8700-22 (Uniform Hazardous Waste Manifest)
and the materials are being distributed to another person solely for
the purpose of disposal by incineration. These mixtures include only
those that are covered by EPA regulations and have a ``cradle to
grave'' paper trail. Further, the exemption applies only to the extent
that the Form 8700-22 is available for inspection and copying by DEA.
Completely formulated paints and coatings were proposed for
exemption because they contain ingredients, such as pigments, and other
components, which render them unsuitable to traffickers. Proposed for
inclusion in this category were paints, clear coats, topcoats, primers,
varnishes, sealers, adhesives, lacquers, stains, shellacs, inks, and
temporary protective coatings.
The final proposed exempt category is harvested plant material.
Harvested plant material that contains listed chemicals, while meeting
the definition of a chemical mixture, was proposed for exemption if the
plant material is not concentrated or changed from its natural state.
This provision was finalized in a Federal Register Notice (68 FR 23195)
published May 1, 2003. Harvested plant material refers to the plant
itself and not material growing on a plant, such as Ergot, a source for
the List I chemicals ergonovine and ergotamine.
3. Exemption by Application Process
As stated above, DEA recognizes that the concentration limit and
category exemption criteria cannot identify all mixtures that should
receive exemption status. DEA has implemented an application process to
exempt additional mixtures (21 CFR 1310.13). This application process
was also finalized in the Federal Register Notice (68 FR 23195)
published May 1, 2003. Under the application process manufacturers may
submit an application for exemption for those mixtures that do not
qualify for automatic exemption. Exemption status can be granted if DEA
determines that the mixture is formulated in such a way that it cannot
be easily used in the illicit production of a controlled substance and
the listed chemical cannot be readily recovered (i.e., it meets the
conditions in 21 U.S.C. 802(39)(A)(v)). An application may be for a
single or a multiple number of formulations.
Actions Being Taken in This Final Rule
a. Exemption Based on Concentration Limits for Each Listed Chemical
While the September 16, 1998 NPRM (63 FR 49506) pertained to the
regulation of chemical mixtures which contain any of 34 listed
chemicals subject to DEA control, this rulemaking finalizes only those
portions of the NPRM pertaining to the 27 chemicals given in The Table
of Concentration Limits provided in this rulemaking (hereafter referred
to as ``The Table''). Six of the 34 listed chemicals--ephedrine, N-
methylephedrine, N-methylpseudoephedrine, norpseudoephedrine,
phenylpropanolamine, and pseudoephedrine--were addressed in a separate
rulemaking (68 FR 23195, May 1, 2003). Concentration limits for the
List I chemical iodine, which were proposed to be established as part
of the September 16, 1998 rulemaking, will be addressed in a separate
rulemaking.
A concentration limit is established for each listed chemical
provided in The Table. If the concentration of the listed chemical is
at or below the limit, then the mixture will be automatically exempted
and treated as a non-regulated chemical mixture. The Table also gives
conditions for calculating the concentration limit.
The concentration limits are being finalized as proposed, except
those for the chemicals benzaldehyde, anthranilic acid, and
phenylacetic acid. The concentration limits for these three chemicals
are being increased from the limits which were proposed.
One comment, which DEA received in response to the NPRM, informed
DEA that there are a significant number of chemical mixtures in
anthranilic acid and phenylacetic acid that could be regulated at the
proposed concentration limit of 20 percent. Since DEA determined that
these chemical mixtures do not pose a significant risk of being
diverted, the DEA is increasing the concentration limit to 50 and 40
percent for anthranilic acid and phenylacetic acid, respectively. The
comment also suggested increasing the concentration limit for
benzaldehyde from 35 percent to 85 percent. However, the DEA determined
that chemical mixtures containing greater than 50 percent benzaldehyde
are at risk of diversion. Therefore, in order to
[[Page 74959]]
minimize the risk of diversion and provide the maximum amount of
regulatory relief, the concentration limit for benzaldehyde is being
finalized at 50 percent (for a discussion see Part II Comment Section
11. Exempt Formulations Used as Flavor and Fragrances).
b. Exemption by Category
Two categories that were originally proposed as exempt categories
of chemical mixtures are distributions to waste disposal facilities and
completely formulated paints and coatings. These categories may contain
chemical mixtures that have listed chemical(s) above the established
concentration limits. However, DEA believes that chemical mixtures in
these categories are not likely to be diverted.
Based on comments to the NPRM, DEA modified these categories from
those originally proposed. The proposed category that includes
transportation of chemical waste has been modified to include chemical
mixtures intended for recycling. Added are distributions to waste
recycling facilities that have a ``paper trail'' as required by the
United States Environmental Protection Agency.
The category of paints and coatings is modified to make it clear
that inks are included in the category. Inks were intended to be
included, however, a comment pointed out that the inclusion of inks
could be overlooked under the proposed wording. A comment raised
concern over distributions of multiple-component paint systems, which
are not included in this category because they are not completely
formulated. The DEA agrees that multiple-component paint systems are
not likely to be diverted in domestic and import transactions. DEA is
introducing an interim rule that addresses this concern and provides
regulatory relief for chemical mixtures that are not at risk of
diversion (see below).
c. Introduction of A New Category of List II Chemical Mixtures as an
Interim Rule
Based on comments and DEA's analysis of the potential for
diversion, this Final Rule also adds a new exemption category. Comments
informed DEA of a significant number of distributions that may not be
exempt under the proposed regulations. DEA determined that certain
solvent based mixtures involving silicon-based products, paint-related
materials, and other solvent-based chemical mixtures containing
acetone, ethyl ether, 2-butanone, and toluene are not likely to be
diverted domestically. These solvent chemicals are mostly a concern
because they are used in cocaine and heroin processing, which occurs
outside the United States. These chemical mixtures pose a risk of
diversion for international transactions for which the requirement of
21 U.S.C. 802(39)(A)(v) is not met.
Therefore, DEA is creating a new exemption category for these
mixtures. Domestic and import transactions in chemical mixtures that
are regulated solely due to the presence of the List II solvent
chemicals acetone, ethyl ether, 2-butanone, or toluene are removed from
the definition of a regulated transaction by adding a new paragraph to
21 CFR 1310.08. Methyl isobutyl ketone, also a List II solvent
chemical, is not included because domestic and import transactions in
that chemical have already been excluded from the definition of a
regulated transaction at 21 CFR 1310.08.
DEA is exempting domestic and import transactions in these chemical
mixtures under 21 CFR 1310.08 pursuant to 21 U.S.C. 802(39) (A) (iii)
because regulation of such transactions has been determined to be
unnecessary for the enforcement of the CSA. DEA determined that there
is not a significant risk of domestic diversion for these chemical
mixtures. However, exports of these chemical mixtures could have
significant potential for diversion. Therefore, these chemical
mixtures, unless otherwise exempt, are subject to the export
requirements of the CSA. Mixtures containing these List II chemicals
will not qualify for automatic exemption if the mixture also contains
another listed chemical above its concentration limit.
This new exemption (for domestic and import transactions in
chemical mixtures containing the List II chemicals acetone, ethyl
ether, 2-butanone, and toluene) was not discussed in the original NPRM.
Therefore, this exemption will be implemented on an interim basis with
opportunity for public comment. DEA is soliciting comments only on this
portion of this final rule. After close of this comment period, DEA
will publish a Final Rule in the Federal Register to inform interested
persons if changes are needed or if this regulation will be adopted as
written.
Other Actions Taken in This Rulemaking
In addition, other modifications to the original proposed
regulations are being made. All references to the American Society for
Testing Materials have been removed and the manufacturers are being
allowed to determine the unit of measurement in calculating the
concentration limit for liquid chemicals. These modifications were
suggested in the comments and DEA agrees that they should be
implemented.
Chemical Mixture Issues Not Being Addressed in the Rulemaking
a. Iodine
DEA received comments that chemical mixtures containing seven
percent iodine are being diverted for the illicit manufacture of
methamphetamine. Methamphetamine is an addictive Schedule II controlled
substance and is the primary controlled substance clandestinely
produced in the United States. It is regarded by DEA as a major threat
to public health and safety.
DEA proposed a 20 percent concentration limit for iodine. This
proposed amount is consistent with the proposed concentration limit for
other listed chemicals that are used as reagents, as is iodine. Prior
to the publication of the NPRM and while DEA was formulating the
proposed regulations, seven percent iodine chemical mixtures were not a
concern to law enforcement. Although DEA theorized that seven percent
iodine solutions have the potential to be diverted, DEA lacked
sufficient evidence to show that these chemical mixtures were being
diverted prior to establishing the proposed concentration limit.
In addition to information obtained from law enforcement, public
sources, and communication with the regulated community, DEA relies on
comments to the NPRM to help establish regulations. DEA was informed
that seven percent iodine chemical mixtures are being used in the
illicit manufacture of methamphetamine. The proposed concentration
limit of 20 percent is high relative to the concentration of iodine
contained in mixtures used by traffickers. The approach of the proposed
rule dictates that the concentration limit be lowered to assure that
chemical mixtures desirable to traffickers are not automatically
exempt. Persons who may not have commented on the 20 percent
concentration limit may have comments on this relatively lower
concentration limit. In order to ensure that the public has adequate
opportunity for comment, the DEA is addressing issues relating to the
regulation of iodine chemical mixtures in a separate NPRM.
b. Ephedrine Alkaloids
In a separate final rule (68 FR 23195, May 1, 2003), DEA finalized
those portions of the NPRM pertaining to the
[[Page 74960]]
six List I chemicals ephedrine, N-methylephedrine, N-
methylpseudoephedrine, norpseudoephedrine, phenylpropanolamine, and
pseudoephedrine. Like the approach taken in this rulemaking, that Final
Rule established a concentration limit for each of the above List I
chemicals. The exempt category of harvested plant material was also
finalized in that rulemaking.
c. Gamma-butyrolactone (GBL) and Phosphorus-Related Compounds
This rulemaking does not address the List I chemicals gamma-
butyrolactone (GBL), red phosphorus, white phosphorus, or
hypophosphorous acid and its salts. When the NPRM ``Exemption of
Chemical Mixtures'' was published, they were not listed chemicals.
Therefore, regulations to exempt their chemical mixtures were not
proposed. DEA will address provisions concerning GBL and the above
phosphorus chemicals in separate Federal Register publications.
To that end, on July 19, 2002, DEA published an Advance Notice of
Proposed Rulemaking soliciting comments from the regulated industry
regarding chemical mixtures containing GBL (67 FR 47493; corrected at
67 FR 53842, August 19, 2002; corrected at 67 FR 56776, September 5,
2002). DEA also published an Advance Notice of Proposed Rulemaking
soliciting industry comment regarding chemical mixtures containing
listed forms of phosphorus (68 FR 4968, January 31, 2003). Based on
comments received from these publications, DEA will develop regulations
concerning chemical mixtures containing GBL and the phosphorus
chemicals.
II. Comments Received Regarding the Proposed Regulations
DEA received fourteen comments in response to the NPRM which was
published September 16, 1998 (63 FR 49506). Five comments were from
industry related membership organizations, three from law enforcement
organizations, and the remaining from commercial interests.
Comment Summary
In general, the comments supported efforts by DEA to regulate
chemical mixtures that have potential use to drug traffickers. Some
comments requested that DEA exempt an additional category or increase
some concentration limits. Comments also suggested that mixtures be
exempted based on the type of distribution. Other comments requested
clarification or suggested ways to ease compliance.
Specific Comments
1. Reference to the American Society for Testing Materials (ASTM):
ASTM is a not-for-profit organization that develops test methods, and
other criteria, with application to 130 areas. Reference to ASTM was
made in the NPRM section that proposed the exemption of paints/
coatings. That section stated that a paint/coating would be exempt if,
among other things, it met the ASTM specifications for the product.
This statement was included to help authenticate the product.
Authenticity is desired by DEA to prevent this category from being used
by traffickers as a loophole. However, DEA was informed that such a
requirement is not practical.
Although the manufacturer can use some test methods to insure
quality control, the methods are not definitive in qualifying a
product. Not all paints/coatings are necessarily subject to these test
methods in order to be marketed as an authentic product.
DEA was also informed that ASTM standards are not written to cover
all applications. Some products can have unique applications where ASTM
standards are not applicable. Therefore, in response to the comments,
DEA is removing all references to the ASTM requirement. This action
does not alter the basic definition of ``completely formulated,'' which
determines whether such products are automatically exempt.
2. Request to exempt small container transactions: Three persons
suggested that DEA exempt chemical mixtures based on container size.
One comment requested that DEA consider a minimum container volume
limit to which the rule does not apply. The commenter questioned
whether the rule applies to a 1-ml vial or a 3-ounce tube. A second
comment suggested that mixtures of List II solvents in containers of
five gallons or less be exempt from regulation. A third comment
suggested that transactions in 55-gallon size containers and less
should be exempt.
DEA has considered the request to exempt transactions of regulated
chemicals based on container size. DEA determined that traffickers have
and could divert regulated chemicals if packaged in small containers.
Therefore, an exemption based on container size will not be added.
DEA regulates transactions of chemicals that are desirable to
traffickers, in part, by establishing thresholds. Thresholds are
established so that records do not have to be maintained for certain
transactions, i.e., those below the threshold to a single customer
within a calendar month. The thresholds for export of the List II
solvent chemicals acetone, ethyl ether, 2-butanone, methyl isobutyl
ketone, and toluene are considered large enough that distributions in
small container sizes are not likely to be above the established
threshold.
The threshold is meant to allow smaller volume distributions
without the imposition of regulatory controls. However, the threshold
can be easily reached using gallon size containers, including five and
55-gallon containers. DEA determined that adopting this suggestion
would result in unlimited non-regulated export of chemicals desired by
traffickers, especially those chemicals desired by cocaine traffickers.
3. Request to adopt a single concentration limit for List II
chemicals: Three comments requested that List II chemicals be assigned
a single concentration limit of 35 percent. They believed this would
allow for better compliance and management of inventory by simplifying
the process.
DEA proposed that the List II solvent chemicals, which have the
same basic application, be assigned the same concentration limit. The
chemicals acetone, ethyl ether, 2-butanone, methyl isobutyl ketone, and
toluene all function as solvents. These chemicals have been identified
to be responsible for the greatest number of List II chemical mixtures,
some of which may be regulated. This group of chemicals already has
been assigned a single concentration limit of 35 percent. Thus, the
argument to ease compliance with a uniform concentration limit is
addressed by the single value for these chemicals having the same basic
application.
The chemicals acetic anhydride and benzyl chloride can be
considered precursors while hydrochloric acid, iodine, and sulfuric
acid function as reagents. Except for iodine, which is being addressed
in a separate NPRM, these are assigned the single concentration limit
of 20 percent. Potassium permanganate, also a reagent, is assigned the
concentration limit of 15 percent. The limit is lower for this chemical
because DEA has not identified any legitimately produced chemical
mixture containing potassium permanganate greater than 15 percent.
After careful consideration, DEA decided not to change the
concentration limit for all List II chemicals to 35 percent. Concerns
regarding compliance are mostly addressed because the concentration
limits are the same for List II chemicals that have similar functions.
In addition, other comments
[[Page 74961]]
have raised the issue of iodine and hydrochloric acid as having
application to the manufacture of illicit substances at a lower
concentration than the proposed concentration limit.
4. Request to allow companies to choose the unit of measure to
calculate the percent concentration: Two comments suggested that each
manufacturer should be allowed to determine the unit of measurement to
use when calculating the percent concentration. There appears to be no
commercial standard practice that predisposes that a chemical is
measured by weight or by volume when formulating a mixture. These
persons are concerned about the possible administrative impact of
forcing manufacturers to convert existing and extensive records and
chemical record systems.
The amount of chemical present in a mixture can vary depending on
the unit used to measure the chemical when formulating. Chemicals can
be measured in units of weight or volume. The numerical values of
weight and volume for chemicals are not usually equal. Therefore, a
mixture reporting the concentrations of a chemical can actually contain
different amounts of the chemical, depending on whether the
concentration is based on weight or volume.
The comments informed DEA that some manufacturers might already
have procedures in place to calculate the concentration. They state
that converting from one unit to another is burdensome. DEA has
considered this and decided that manufacturers should determine the
unit of measure when formulating liquid mixtures. Therefore, a
formulation containing liquid chemicals may have a concentration based
on the volume or the weight of the chemicals contained.
DEA determined that accurate measurement of solids and gases by the
unit of volume is not practical. Therefore, solids and gases should be
calculated by unit of weight. The ``Table of Concentration Limits'' is
being amended to reflect this modification.
5. Request for clarification of issues relating to internal
transfer and research and development: Two persons requested
clarification on issues of internal transfers and research and
development. A third person asked whether research and development
activities are exempt from this rule.
Chemical mixtures that do not qualify for automatic exemption are
regarded and treated like listed chemicals. The term ``regulated
transaction'' as defined in 21 U.S.C. 802(39), excludes ``a domestic
lawful distribution in the usual course of business between agents or
employees of a single regulated person.'' Therefore, such internal
transfers are not regarded as regulated transactions. However, one must
understand what a regulated person is to understand what transactions
are regulated.
The definition of a ``regulated person'' is given in 21 U.S.C.
802(38) and means a person who manufactures, distributes, imports, or
exports a listed chemical. The term ``distribute'' and ``distributor''
are defined in 21 U.S.C. 802(11). By definition, a distribution occurs
when a listed chemical is delivered while a distributor is the person
who makes the delivery.
21 U.S.C. 822(e) requires that each site which handles a List I
chemical must have a separate registration. Each registered location is
regarded as a ``regulated person.'' A distribution of List I chemicals
between separate locations, even if owned by the same person, fulfills
the definition in 21 U.S.C. 802(11). Therefore, above threshold
distributions of List I chemicals between separately registered sites
are regulated transactions as defined in 21 U.S.C. 802(39).
However, different locations that do not require separate
registration are regarded as a single ``regulated person'' if owned by
a single business. Because separate site registration for handling List
II chemicals is not required, distributions of List II chemicals
between sites owned by a single person are not regulated transactions.
The CSA does not include provisions that exempt the distribution of
listed chemicals if associated with research and development. If a
regulated mixture is distributed at or above threshold quantities, even
for the purpose of research and development, the transaction is
regulated.
6. Request for publication of Chemical Abstract Service numbers for
listed chemicals: Two persons requested that Chemical Abstract Service
(CAS) numbers be published for listed chemicals in the ``Table of
Concentration Limits.'' The commenter stated that CAS numbers are used
worldwide by industry and should be listed to simplify the
identification of listed chemicals.
Although the CAS numbers are used throughout industry and specific
to a chemical, DEA believes that publishing these numbers in the Code
of Federal Regulations (CFR) may not be beneficial. CAS numbers are
specific to a given chemical. If a chemical can exist in the form of a
salt, for example, there is a separate CAS number for each form of the
salt. Several listed chemicals include their salts, esters, optical
isomers, and salts of optical isomers. All of these variations have
individual CAS numbers. DEA believes it is not practical to list all
such numbers, as the list will be extensive and possibly non-inclusive.
Listing only the CAS numbers for the specifically named listed
chemicals may mislead some to believe the list is all-inclusive.
Therefore, DEA has decided not to publish CAS numbers in the CFR.
7. Request for category exemption of multiple-component paint
systems: DEA proposed the exemption of paints/coatings only if the
product is ``completely formulated.'' ``Completely formulated'' is
defined in the proposed rule as ``only those formulations that contain
all the components of the paint/coating for use in the final
application without the need to add any additional substance except
possibly a thinner.''
DEA proposed the exemption of completely formulated paints/coatings
because these products are complex, high density mixtures having
several components, including pigments, binders, curing agents, and
other chemicals in a single system. The numerous additives that make up
a substantial bulk of the formulation deter the use of these mixtures
in an illicit operation. In addition, completely formulated paints cure
upon exposure to air or heat, rendering them unusable by traffickers.
One comment argued that some paints actually consist of multiple
components. Multiple-component paint systems consist of one or more
separate formulations of hardeners, activators, catalysts, polymeric
material, pigments, accelerators, solvents, or other components. A
single component may contain one or more of these ingredients mixed,
suspended, emulsified, dissolved, or somehow formulated into a chemical
mixture containing a List II chemical(s). The List II chemicals are
typically solvent chemicals in these formulations. The components are
kept separate because once mixed, the paint begins to cure. Therefore,
they are mixed just prior to application. The comment claimed that the
use of any one of these component mixtures in an illicit operation is
as difficult as using a completely formulated paint.
DEA was informed that multiple-component paint systems are a
predominant technology used in the automobile refinishing market. There
are approximately 60,000 such body shops in the United States; each one
engages in a large number of domestic transactions each year. The
mixtures they utilize may contain one or more of the List II solvent
chemicals acetone,
[[Page 74962]]
ethyl ether, 2-butanone, methyl isobutyl ketone, and toluene.
DEA has not found significant examples of diversion of these
chemical mixtures domestically or through imports. However, traffickers
in other countries have used related formulations. Therefore, DEA will
exempt domestic and import distributions of mixtures in the List II
solvent chemicals acetone, ethyl ether, 2-butanone, and toluene from
the definition of ``regulated transaction.'' Such an exemption for
domestic and import distributions of methyl isobutyl ketone already
exists under 21 CFR 1310.08.
This exemption will not apply if the mixture contains a List I
chemical or a List II chemical (other than acetone, ethyl ether, 2-
butanone, methyl isobutyl ketone, or toluene) above its established
concentration limit. This category exempts chemical mixtures used by
different industries, not only those associated with paints and
coatings. Therefore, it will be included separately from the category
of fully formulated paints and coatings.
This new exemption (for domestic and import transactions in
chemical mixtures containing the List II chemicals acetone, ethyl
ether, 2-butanone, and toluene) was not discussed in the original NPRM.
Therefore, this exemption will be implemented on an interim basis with
opportunity for public comment. DEA is soliciting comments only on this
portion of this final rule. Comments should be submitted on or before
January 14, 2005. After close of this comment period, DEA will publish
a notice in the Federal Register to inform interested persons if
changes are needed or if this regulation will be adopted as written.
Although DEA is establishing this exemption on an interim basis, an
alternative means to exempt multiple-component paint systems was
supplied in this comment. It sets a concentration limit for both the
solid component and for the listed chemical(s). The commenter suggested
that a chemical mixture be exempt if it contains at least 10 percent by
weight of solids, including resins, polymers, or film formers, and less
than 65 percent cumulative weight of List II solvents.
Although the above suggestion addresses those concerned about
multiple-component paint systems, it may only partially address similar
concerns of other sectors. Also, a dual-exemption criterion that
considers both the concentration of solids and the listed chemical may
be confusing and difficult for both industry and law enforcement to
implement. Therefore, DEA decided to create a new category, as
explained above, to exempt a broader range of mixtures. The new exempt
category is easily interpreted and is not limited to a single sector
but all industries that may use these solvents in chemical mixtures.
A second comment suggested the inclusion of multiple-component
paint systems in the category of exempt paints and coatings. The
comment included suggested wording that is similar to the language
proposed by DEA except that it includes, in addition to completely
formulated paints, two-part systems. It is anticipated that perceived
burdens incurred by regulating distributions of multiple-component
paint systems will be addressed via the creation of the interim
exemption of domestic and import transactions of the List II solvents
discussed above.
8. Silicone products as exempt mixtures: One comment suggested that
exempt mixtures should include silicone related products. These
silicone products are manufactured for downstream customers who produce
end products and could contain List II solvent chemicals. To exempt
these products, the commenter suggested that the mixture meet three
criteria: the mixture is produced and distributed (1) through
sophisticated, well-established channels; (2) in accordance with
recognized commercial specifications; and (3) for controlled end-use
applications.
The comment did not elaborate on how to define these criteria or
how to identify if a product is produced in compliance with these
criteria. DEA concluded that these suggestions regarding the exemption
of silicone products are overly subjective and open to interpretation.
In attempting to identify silicone products, DEA learned that
silicone products cannot be clearly distinguished by the chemical
content alone. Representative formulations submitted by this industry
show concentrations of up to 99 percent listed chemical. The example
formulations contain silicone material from less than 1 percent to 75
percent while some contain no silicone or other solid material. These
silicone related chemical mixtures are similar to the multiple
component paint systems discussed above in relation to their risk of
diversion. DEA has determined that regulation of domestic and import
transactions are not at significant risk of diversion.
DEA is establishing provisions, on an interim basis, to exempt all
domestic and import transactions in the List II chemicals of concern to
this industry (see above). Some export transactions in these mixtures
are exempt via the established concentration limit. Therefore, DEA
decided that there is no need to take additional action to exempt this
category because most transactions in these mixtures are addressed in
the interim portion of this rulemaking. Because the exemption is on an
interim basis, this interest, as well as others, will have the
opportunity to inform DEA whether this approach is suitable.
9. Mixtures intended for recycling: One comment stated that the
exemption category that includes distributions of waste products to
incinerators does not include distributions to recycling centers. The
comment suggested including distributions to authorized waste recyclers
and reprocessors under the category of exempt waste material. DEA
agrees with this comment.
Waste materials were proposed as an exempt category provided there
is documentation on U.S. Environmental Protection Agency (EPA) Form
8700-22 (Uniform Hazardous Waste Manifest) and the waste materials are
being distributed to another person solely for the purpose of disposal
by incineration. These mixtures include only those that are covered by
EPA regulations and have a ``cradle to grave'' paper trail. Further,
the exemption applies only to the extent that the Form 8700-22 is
available for inspection and copying by DEA.
The comment cites Department of Transportation (DOT) regulation 49
CFR 172.205 to show that records are required for waste-recovery
shipments. Examination of this section shows that DOT requires the same
EPA Form 8700-22 that was proposed as a requirement for exemption of
waste product. Therefore, the same ``paper trail'' is in place for
distributions sent to incinerators or to recyclers. DEA agrees that
distributions to recycling facilities should be included in the
category that exempts distributions to incinerators. DEA is amending
the language of Section 1310.12(d)(2) to expand the category to include
distribution to recyclers as requested in the comment.
DEA proposed the exemption of distributions of waste material
provided a ``paper trail,'' which is required by another agency,
already exists. Exemption, if to a recycler or incinerator, is
contingent on the existence of a hazardous waste manifest (EPA form
8700-22). It will be the generator's responsibility to maintain records
if EPA does not already require a hazardous waste manifest.
Although a distribution to a recycling facility may not be a
regulated
[[Page 74963]]
transaction, recovering a listed chemical from a chemical mixture in a
recycling process satisfies the term ``manufacture'' as defined at 21
U.S.C. 802(15). However, this is not new to this rulemaking. Any person
who performs a manufacturing operation, including the recovery of a
listed chemical from a chemical mixture, has been bound to applicable
regulations since their inception.
The comment also expressed concerns over distributions that are not
required to have an EPA Form 8700-22 and, therefore, are not
automatically exempt under this category. DEA decided not to
categorically exempt all distributions for waste recycling or
incineration. Such a category would include any combination of listed
and non-listed chemical. DEA decided that such an exemption category
could result in diversion of chemicals desirable to traffickers. Such
distributions shall be regulated unless the transactions meet other
exemption criteria.
10. Clarification as to whether chemical mixtures are included in
21 CFR Part 1313: One comment requested that DEA clarify whether the
requirements governing the importation, exportation, transshipment and
in-transit shipment of listed chemicals pursuant to 21 CFR Part 1313
apply to regulated chemical mixtures.
The commenter asserted that Part 1313 includes reference to
``listed chemicals'' but does not specifically include chemical
mixtures. Therefore, the commenter concluded, mixtures of List II
chemicals do not appear to be subject to import/export notification
requirements.
DEA disagrees. A chemical mixture, if not exempt by regulation or
the application process, is regarded and treated as a listed chemical
pursuant to all provisions of the CSA. This includes provisions of 21
CFR Part 1313.
The term ``regulated transaction'' means ``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 * * * of a listed chemical * * *'' (21 U.S.C. 802(39)).
The term excludes ``any transaction in a chemical mixture which the
Attorney General has by regulation designated as exempt * * * 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'' (21 U.S.C. 802(39)(A)(v)). The term ``chemical
mixture'' is defined in 21 U.S.C. 802(40) as a combination of two or
more chemicals, at least one of which is not a List I or List II
chemical.
This rulemaking is finalizing regulations that identify those
chemical mixtures that the Attorney General designates as exempt.
Outside of those exemptions, distributions in chemical mixtures,
including importation, exportation, transshipment, and in-transit
shipment, are subject to the regulatory controls of the CSA that
pertain to listed chemicals. This rulemaking establishes that chemical
mixtures containing listed chemicals are treated as listed chemicals
unless exempted by regulation.
11. Request for exemption of formulations used as flavors and
fragrances: One commenter, representing both the Flavor and Extract
Manufacturers Association of the United States and the Fragrance
Materials Association of the United States (hereafter referred to as
the flavor and fragrance industries), gave arguments as to why their
mixtures should be exempt from regulatory controls. The commenter
suggested that the flavor and fragrance industries be exempt by
category. As an alternative, the commenter suggested that the
concentration limits for benzaldehyde, anthranilic acid, and
phenylacetic acid be increased.
The commenter stated that an industry exemption should be provided
because of the manner in which the flavor and fragrance industry
operates. The commenter stated that while manufacturers work closely
with customers to develop the necessary flavoring or fragrance,
routinely their formulations are unknown to the customer. The commenter
asserted that traffickers would not know what to order because the
trafficker would not know the mixture's composition. Additionally, the
commenter stated that these mixtures are expensive because of
developmental costs and therefore, they would not be a practical source
of precursor chemicals. The commenter also stated that these mixtures
are not sold to the public but only to manufacturers of foods and
toiletries. In addition, the commenter claimed that the mixtures are
complex formulations that make the extraction of listed chemicals, or
direct use of the mixture impractical.
DEA agrees that legitimately traded, expensive, and chemically
complex chemical mixtures, which are marketed under strict self-imposed
practices, are at a lower risk of diversion. However, these conditions
may not be universal to all that trade in these commodities. Therefore,
DEA has decided that exempting these industries would create a loophole
for traffickers to divert List I chemicals. Under a blanket exemption
for these industries, any person could distribute any listed chemical
they use without restriction.
The comment requested that, as an alternative to a category
exemption, the concentration limits for benzaldehyde, anthranilic acid,
and phenylacetic acid be set to 85, 50, and 40 percent, respectively.
The concentration limits for these chemicals were proposed at 35
percent for benzaldehyde and 20 percent for anthranilic acid and
phenylacetic acid. The concentration limit for benzaldehyde was
proposed higher than the 20 percent proposed for most other precursor
chemicals because benzaldehyde was known to be used by food flavoring
manufacturers in higher concentrations than the other chemicals.
DEA weighed the degree of regulatory relief, as indicated in the
comment, against the risk of diversion for the chemicals of concern to
these industries. Based on the comments and an examination of sample
formulations, DEA concluded that some, but not all, of the conditions
requested in the comment could be put into regulation without
significantly increasing the risk of diversion.
i. Concentration Limits for Anthranilic Acid and Phenylacetic Acid
The commenter indicated that these industries' formulations contain
no more than 50 and 40 percent of anthranilic acid and phenylacetic
acid, respectively, and that these formulations are not at risk of
diversion. This was the only comment concerned with these List I
chemicals. DEA has not identified these chemicals as being important in
the formulation of other chemical mixtures. Formulations that use these
chemicals are complex and not likely to be diverted. Considering these
facts, DEA has decided to increase the concentration limits for
benzaldehyde and anthranilic acid to 50 percent and phenylacetic acid
to 40 percent.
ii. Increasing the Concentration Limit for Benzaldehyde
The commenter also requested that the concentration limit be
increased to 85 percent for benzaldehyde. Benzaldehyde is used in
clandestine operations to make the Schedule II controlled substances
amphetamine, phenyl-2-propanone, and methamphetamine. It was once the
chemical of choice in the synthesis of
[[Page 74964]]
methamphetamine. Currently, over 95 percent of the clandestine
laboratories seized in the United States are methamphetamine
laboratories. Although the precursor favored in the clandestine
synthesis of methamphetamine has changed, the demand for
methamphetamine and increased controls of the current precursor of
choice is likely to contribute to increased diversion of benzaldehyde
if it is not carefully regulated.
DEA considered increasing the concentration limit for benzaldehyde
from the proposed 35 percent to the suggested 85 percent. However,
benzaldehyde may be found in simpler formulations than those alluded to
in the comment, either within the represented industries or other
sectors. Increasing the concentration limit will impact all sectors of
the chemical industry, including those conducting commerce with the
public. Increasing the concentration limit to 85 percent could result
in unrestricted trade in exempt mixtures useful to traffickers. DEA
determined that traffickers would seek simpler formulations containing
benzaldehyde at the suggested concentration limit if there are no
regulatory controls governing their distribution. DEA regards an 85
percent concentration limit in benzaldehyde to be significantly high;
such mixtures are at risk of diversion.
DEA re-examined the concentration limit for benzaldehyde in light
of the comment from the flavor and fragrance industries and decided
that increasing the concentration limit to 50 percent will not
significantly increase the risk of diversion. The comment stated that
the types of formulations containing benzaldehyde are as complex as
those containing anthranilic acid and phenylacetic acid. DEA has not
identified benzaldehyde chemical mixtures as being used prominently
outside the flavor and fragrance industry. A 50 percent concentration
limit is consistent with objectives of this regulation.
DEA recognizes that benzaldehyde is important to the food flavoring
industry and sometimes found in formulations at a higher concentration
than other List I chemicals. However, DEA decided that an 85 percent
concentration limit is too high, especially in light of the fact that
it is a chemical used in the illicit manufacture of methamphetamine,
the primary illicit controlled substance manufactured in the United
States.
The comment also expressed concerns regarding the exemption
application process (Section 1310.13) and claimed that the application
process is an impractical means to exempt these formulations because
hundreds or thousands of new formulations are produced monthly and
formulations are altered continuously. In addition, the industry
resists revealing their formulations as required in the application,
because they are closely guarded trade secrets.
There should be no concern over the need to reapply for each change
in formulation or revealing details about a formulation. The
application process is written to alleviate the need to reapply every
time a formulation changes. A group of mixtures may be exempted within
a single application. Formulations having identical function and
containing the same listed chemical(s) can be part of the same group.
However, not all formulations are required to have the same non-listed
chemicals to be included in a group. This approach will eliminate the
need for persons to reapply every time a formulation changes.
DEA will allow for partial disclosure in the application process of
a complex chemical formulation. DEA has learned that formulations used
by the food and flavoring industries sometimes contain several
chemicals at a concentration of less than one-percent. DEA will accept
an application without the need to reveal each chemical present at less
than one-percent. DEA will work with the applicant to obtain enough
information to make a decision while minimizing the amount of detail
necessary to process the application.
DEA notes that information designated as confidential or
proprietary will be treated accordingly. The release of confidential
business information that is protected from disclosure under Exemption
4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), is governed by
section 310(c) of the CSA (21 U.S.C. 830(c)) and the Department of
Justice procedures set forth in 28 CFR 16.7. DEA has a longstanding
history of protecting such information from unauthorized disclosure.
12. Comment stating that mixtures of List II solvent chemicals are
useful to traffickers regardless of the concentration of listed
chemical: One comment pointed out how chemical mixtures containing List
II solvent chemicals can be useful to traffickers regardless of the
concentration. The List II solvent chemicals are acetone, ethyl ether,
2-butanone, methyl isobutyl ketone, and toluene. They are referred to
as solvent chemicals because they are liquids generally used to
dissolve substances.
The comment argues that mixtures of these chemicals will have the
same chemical properties that make the pure List II solvent chemicals
desirable to traffickers. The reason for this is that different liquids
are miscible (i.e. susceptible of being mixed) if they have similar
chemical properties that are related to their behavior as solvents. The
commenter stated that if they mix, the resultant blend must have
chemical properties similar to the pure List II solvent chemical,
otherwise, they would not mix in the first place. Therefore, the blend
could possibly dissolve whatever the listed chemical could dissolve.
Likewise, if the solvent properties of different liquids are dissimilar
they may not mix when brought together.
A well-known example of this behavior is that of oil and water. The
solvent properties for oil and water are different. Oil dissolves
different substances than water. When brought in contact, they form
separate layers. However, mixing water with vinegar, for example,
causes the two liquids to blend as one. They have similar solvent
properties. The resulting blend would be expected to dissolve whatever
the water would dissolve.
The commenter stated that the same is true for the List II solvent
chemicals. Mixing them with other liquids may cause separation or
result in a single blend. If they blend, it means that the mixture has
some liquid properties that are similar to the listed solvent chemical.
However, the resultant blend is not exactly the same as the pure listed
chemical.
DEA agrees with the comment in principle. However, the higher the
concentration of listed chemical(s), the more likely it will be that
the blend will more closely mimic the properties of the listed
chemical(s). This means that not all mixtures containing List II
chemical solvents are equally likely to be used in illicit
laboratories. Thus, regulating all mixtures that contain any amount of
a List II solvent chemical is unnecessary to reasonably prevent
diversion. Further, solvent chemicals are mostly a concern because they
are used in cocaine and heroin processing, which occurs outside the
United States. Therefore, instead of regulating all chemical mixtures
containing List II solvent chemicals, DEA will exempt all such domestic
and import transactions containing the List II solvents acetone, ethyl
ether, 2-butanone, and toluene from the definition of regulated
transaction as discussed earlier. The List II chemical methyl isobutyl
ketone is not included here because its transactions are already
excluded. Because a chemical mixture regulated due to the presence of a
List II solvent chemical is expected to mimic the
[[Page 74965]]
solvent properties of the listed chemical, the threshold will be
calculated based on the amount of the entire mixture and not just the
amount of listed chemical in the mixture.
13. Comment stating that traffickers can use twenty-percent
solutions of hydrochloric acid or sulfuric acid: One comment mentioned
that both hydrochloric and sulfuric acids are used to isolate
methamphetamine. For this purpose, a 20 percent solution of either is
sufficient to carry out an illicit manufacturing operation.
In response, DEA notes that domestic and import transactions in
these acids have been excluded from the definition of regulated
transactions pursuant to 21 CFR 1310.08. Only transactions to
designated countries identified in that section are defined as
regulated transactions. Those provisions also apply to mixtures of
these chemicals. DEA notes that acids dissolved in water, alcohol
solutions, or other pure solvents, are not regarded as chemical
mixtures. Therefore, DEA decided not to lower the concentration limit
for these acids.
14. Comment stating that multifunctional formulations containing
sulfuric acid should be an exempt category: One comment requested that
formulations containing sulfuric acid should be exempt when used in
industrial applications. DEA regards this category as too broad and, if
enacted, will create a loophole for unscrupulous persons to traffic in
mixtures of sulfuric acid that could be used in illicit laboratories.
Therefore, DEA has determined that this category is inappropriate for
exemption.
These types of mixtures, if not useful to traffickers, may be
exempt pursuant to Section 1310.13 (i.e. the application process).
Several such mixtures may be exempt as a group under a single
application, provided the different formulations have the same basic
function. DEA notes that domestic transactions in sulfuric acid and,
therefore, its mixtures, are not regarded as regulated transactions
pursuant to Section 1310.08(a). Section 1310.08(b) regulates only above
threshold transactions to certain designated countries. In addition, if
a person consumes a chemical mixture, then that person is an end user.
End users are not regarded as regulated persons and are not subject to
chemical regulatory controls.
15. Comment expressing concern that iodine concentration limit is
high and does not capture mixtures being used by traffickers: One
comment believes that the proposed rule does not adequately address the
regulation of iodine. The DEA has decided to address iodine issues
under separate rulemaking.
The comment points out that the most common method for the
production of methamphetamine on the West Coast utilizes seven-percent
iodine solution. The comment states that non-traditional customers
purchasing large quantities of seven-percent iodine solution have
inundated retailers in Oregon, Washington, California, and Louisiana.
Another comment stated that clandestine laboratories often use either
iodine crystals or a seven-percent iodine tincture as a source for
iodine crystals.
Seven-percent iodine solution and tincture are regarded as chemical
mixtures subject to this final rule but are a viable source of iodine
crystals. Iodine crystals can be readily extracted from these chemical
mixtures and used in the illicit manufacture of methamphetamine or
amphetamine. DEA agrees that regulatory action is necessary to prevent
the illicit use of iodine readily obtained from these sources.
At the time that the NPRM was being drafted, the DEA did not regard
iodine chemical mixtures as an important source of iodine crystals.
Since publication of the NPRM, the use of iodine chemical mixtures as a
source for iodine crystals increased dramatically. The El Paso
Intelligence Center (EPIC) maintains a database on clandestine
laboratories seized by Federal, State, and local law enforcement
agencies. Although the database does not account for all seizures in
clandestine laboratories, it serves as an indicator of what is being
used by traffickers.
In 1998, the year in which the NPRM was published, EPIC reported 10
incidences of iodine tincture out of 1,485 for all sources of diverted
iodine found in illicit methamphetamine laboratories. In 1999, 2000,
2001, and 2002, the number of iodine tincture seizures compared to the
number of all forms of diverted iodine reported by EPIC is 71 out of
2,888; 397 out of 3,432; 1,147 out of 4,734; and 1,619 out of 4,921,
respectively. These statistics show that iodine tincture is a
significant source of iodine crystals for the illicit manufacture of
methamphetamine.
Based on the comments to the NPRM and the documented diversion of
certain chemical mixtures containing iodine, the DEA determined that
the proposed concentration limit for iodine is relatively high compared
to the concentration found in chemical mixtures useful to traffickers.
To address adequately the diversion of iodine, DEA must consider new
approaches other than what was proposed. Therefore, the regulation of
iodine chemical mixtures is being addressed in a separate NPRM. This
will give persons an opportunity to comment on any approach DEA
suggests.
16. Request for exemption of crime labs from quantitative analysis
of mixtures: One comment stated that city and county laboratories in
California perform qualitative analysis for only controlled substances.
The commenter requested that local crime laboratories be exempt from
requirements to analyze the contents of non-controlled substances or
reporting of mixtures.
DEA has no role in determining such policy. How state and local
crime laboratories handle their analysis is based on their own policy.
Because this rulemaking does not impose mandatory testing, exemption is
not necessary.
17. Request for exemption of adhesive intermediates under the
category of paints/coatings: One comment questioned whether solutions
that are intermediates for the manufacture of adhesives are exempt
under the category of paints and coatings. These adhesive intermediates
are formulated as a vehicle for further additions of chemical
ingredients that will eventually form an adhesive. DEA determined that
if these solvent mixtures contain listed chemicals above the
concentration limit, they are regarded as regulated chemicals. They are
not ``fully formulated'' as required to be exempt under the category of
paints and coatings and, therefore, not automatically exempt.
DEA decided not to exempt all chemical mixtures that are used to
form adhesives because that would include solvent systems containing
listed chemicals in any concentration. Unscrupulous persons could then
distribute solvent blends rich in List II chemicals to traffickers
unchecked. Adhesive mixtures that contain listed chemicals are regarded
as exempt when they are completely formulated and have less risk of
diversion. If not exempt, distributions are regulated only if
distributed at or above threshold quantities.
DEA does not impose recordkeeping or reporting requirements for
listed chemicals that are consumed in a manufacturing process (21 CFR
1310.03(a)). If the blend is converted to an adhesive on-site, then
transactions in it are not regulated and, because the listed chemical
is consumed, recordkeeping and reporting requirements are not required.
In addition, as stated previously, DEA is exempting, on an interim
basis, domestic and import transactions of mixtures containing the List
II solvent chemicals that are a concern to this interest.
[[Page 74966]]
18. Inks as part of the category of paints and coatings: One
comment requested the inclusion of inks in the category of paints and
coatings by changing the category to paints, coatings, and inks. The
commenter expressed concerns that the public will not recognize inks as
being within the category of paints and coatings.
DEA recognizes that inks may be overlooked within Section
1310.12(d)(2), which identifies the category of paints and coatings as
being exempt chemical mixtures. It was the intention of DEA to have
inks included in this category. The preamble of the original NPRM (63
FR 49510) states that completely formulated inks are included in this
category.
DEA determined that adding inks as a new category in addition to
the existing category of paints and coatings is not appropriate. Inks
are already included within the category of coatings. This situation
will be corrected by adding a sentence to section 1310.12(d)(3):
``Included in this category are clear coats, topcoats, primers,
varnishes, sealers, adhesives, lacquers, stains, shellacs, inks, and
temporary protective coatings.'' In this way, all products intended to
be included in the category of paints and coatings will be apparent.
19. Request for allowance of a concentration variation of 2 percent
absolute and 10 percent nominal: One comment suggested that DEA allow a
plus or minus concentration range of 10 percent nominal and 2 percent
absolute rather than require a new application for exemption for each
and every mixture. This range is to reflect variation in raw material
and inaccuracies in the manufacturing process.
The exemption application process already allows for a range of
concentrations without the need to reapply, as long as this
concentration range is specified in the approved application.
Therefore, the suggested variation is not necessary to prevent the need
for reapplication. (Please note, however, that any concentration
greater than the established range for exemption would cause the
mixture to be subject to the regulatory provisions of the CSA.)
For non-exempt mixtures, the concentration limit (as specified in
the Table of Concentration Limits) is established as a maximum
concentration of listed chemical that a chemical mixture may contain to
be automatically exempt. Mixtures containing more than this established
limit are regarded by DEA as regulated chemicals. Manufacturers that
produce chemical mixtures having the listed chemical near the
concentration limit are responsible for knowing whether the actual
concentration exceeds the limit.
III. Final Regulatory Actions: Individual Discussion for Each Listed
Chemical
1. Chemical Mixtures Containing List I Chemicals
List I chemicals compose the largest number of listed chemicals,
but only a few have been identified that are routinely used in chemical
mixtures. Mixtures containing those List I chemicals are utilized by a
small number of industries. DEA identified food flavoring
manufacturers, fragrance manufacturers, and a segment of the dietary
supplements industry as the main commercial sectors that utilize
mixtures containing List I chemicals.
The food flavoring and fragrance manufacturing sectors handle most
chemical mixtures containing List I chemicals being addressed in this
rulemaking. The chemicals of concern to these interests, at the
proposed concentration limits, are benzaldehyde, anthranilic acid, and
phenylacetic acid. None of the remaining List I chemicals were
mentioned in the comments, except those associated with some dietary
supplements. The comments pertaining to dietary supplements containing
Ephedra were addressed in a separate final rule (68 FR 23195, May 1,
2003).
Only one comment addressed issues relating to the List I chemicals
benzaldehyde, anthranilic acid, and phenylacetic acid. This comment was
submitted by an industry group representing both the Flavor and Extract
Manufacturers Association of the United States and the Fragrance
Materials Association of the United States (food flavoring and
fragrance manufacturing sectors).
DEA originally proposed concentration limits of 35 percent for
benzaldehyde, and 20 percent for anthranilic acid and phenylacetic
acid. The concentration limit for benzaldehyde was proposed higher than
the 20 percent proposed for most other precursor chemicals because DEA
was aware that the food flavoring manufacturers used benzaldehyde in
complex formulations not likely to be diverted. The comment from this
interested party expressed the opinion that their formulations are not
likely to be diverted even if the concentration limits for
benzaldehyde, anthranilic acid, and phenylacetic acid are set at 85
percent, 50 percent, and 40 percent, respectively.
After a thorough review of the comments, DEA is finalizing
concentration limits of 50 percent for benzaldehyde, 50 percent for
anthranilic acid and 40 percent for phenylacetic acid. The DEA
concluded that chemical mixtures containing lower concentrations of
these chemicals do not present a significant risk of diversion. (For a
discussion on what DEA considered in order to exempt this interest, see
under Comments.)
This concentration limit is expected to exempt the majority of List
I chemical mixtures identified by DEA. Most, if not all, mixtures in
anthranilic acid and phenylacetic acid are expected to be exempt
because available products are formulated whereby they are not useful
to traffickers.
No comments were received concerning other List I chemicals being
addressed in this rulemaking. Therefore, DEA concludes that the
concentration limits proposed for the remaining List I chemicals are
not a major concern to industry. Finalizing regulations based on the
proposed concentration limits for these chemicals is not expected to
increase significantly the number of new registrants. Chemical mixtures
that do not qualify for automatic exemption can be considered for
exemption based on the application process (21 CFR 1310.13; finalized
at 68 FR 23195).
2. Chemical Mixtures Containing List II Chemicals
The List II chemicals being addressed in this rulemaking are
acetone, ethyl ether, 2-butanone (methyl ethyl ketone), methyl isobutyl
ketone, toluene, acetic anhydride, benzyl chloride, hydrochloric acid,
sulfuric acid, potassium permanganate, and iodine. The first five
chemicals are used as solvents and, based on the comments, are
responsible for the majority of chemical mixtures addressed by this
rulemaking. The chemicals acetic anhydride and benzyl chloride have
limited use as solvents and have not been the subject of any comment.
The remaining List II chemicals are reagents. DEA received comments on
iodine, hydrochloric acid, and sulfuric acid. Iodine is being addressed
under a separate rulemaking. The types of mixtures containing the
remaining chemicals are limited and will not significantly add to the
number of newly regulated transactions. There were no comments received
for mixtures containing potassium permanganate.
a. The List II Solvent Chemicals
The List II solvent chemicals acetone, ethyl ether, 2-butanone,
methyl isobutyl
[[Page 74967]]
ketone, and toluene are mostly a concern to DEA because of their use in
the illicit production of cocaine. Suspicious shipments of mixtures
containing List II solvents to cocaine producing areas have been
identified by DEA. Additionally, diversion of chemical mixtures for the
illicit production of cocaine in foreign countries has been established
by DEA.
DEA continually monitors the chemical composition of seized cocaine
hydrochloride samples. The DEA laboratory system is able to detect the
trace quantities of solvents present in seized cocaine hydrochloride,
which is a ``street form'' of cocaine. Such solvents are utilized in
the final stage of cocaine production whereby cocaine base is converted
to cocaine hydrochloride. Recent data indicates that a broader range of
solvents and solvent combinations are being used in cocaine processing.
This laboratory data supports intelligence information that chemical
mixtures are used in the illicit production of cocaine hydrochloride.
DEA is aware of chemical mixtures containing List II solvent
chemicals and solid material. The solids may be dissolved, suspended,
emulsified, or in some way formulated into the liquid component. These
mixtures are used by different industries to formulate silicones,
paints, adhesives, polymers, and various related materials. DEA
realizes that, in general, mixtures formulated with solids will not
likely be used ``as is'' in the production of a controlled substance,
including cocaine. However, recovery of the listed chemical (e.g.,
distillation) may allow the mixture to be used by traffickers.
Traffickers, especially those involved in the illicit production of
cocaine, are known to recycle solvents by distillation.
After considering all comments, DEA has decided to exempt domestic
and import transactions of all mixtures containing acetone, ethyl
ether, 2-butanone, and toluene, unless they contain other listed
chemicals above the concentration limit.
Since the NPRM did not discuss this exemption for domestic and
import transactions, the public did not have the opportunity to comment
on the exclusion of these transactions from the definition of a
regulated transaction. To avoid unnecessary burdens on affected
companies during the pendency of proceedings in this matter, DEA has
decided to implement this exemption on an interim basis, with a request
for comments. DEA will then publish a final rulemaking regarding this
exemption after a review of such comments. (See Section V for further
discussion of this interim exemption). Because of their identified
potential for use in illicit cocaine production, as discussed above,
this rulemaking will not automatically exempt by regulation export
transactions in these mixtures.
b. The List II Chemicals Hydrochloric Acid and Sulfuric Acid
Distributions of hydrochloric acid (except domestic distributions
of anhydrous hydrogen chloride) and sulfuric acid are regulated only as
exports to certain geographical regions. Domestic transactions in
sulfuric acid and hydrochloric acid (except anhydrous hydrogen
chloride) are excluded from the recordkeeping and reporting
requirements of the CSA pursuant to 21 CFR 1310.08(a). Therefore, their
chemical mixtures are also excluded.
Anhydrous hydrogen chloride, which is regulated domestically, has
not been identified as part of any chemical mixture. These chemicals
are used in synthetic chemistry and to stabilize materials in solution,
both in legitimate industries and illicit operations. Formulations of
sulfuric acid have been identified that are used in papermaking,
treatment of industrial water cooling systems, and for treating oil
wells.
Although one comment informed DEA that chemical mixtures at the
proposed concentration limit of 20 percent for hydrochloric acid could
be used in the illicit production of methamphetamine, DEA is not
lowering this concentration limit. Methamphetamine production is mostly
a domestic concern while domestic transactions in hydrochloric acid are
not regulated.
DEA regards any concentration of hydrogen chloride dissolved in an
inert carrier, such as water or alcohol, as a regulated chemical under
the heading of hydrochloric acid. The 20 percent concentration limit
pertains to hydrochloric acid mixed with an additional non-listed
chemical. The concentration limit is determined by taking the weight of
hydrogen chloride in the mixture and does not include the weight of the
carrier solvent.
DEA received only one comment on mixtures containing sulfuric acid.
Only exports to South American countries and Panama above threshold are
regulated transactions. The comment did not state if their mixtures are
for export to these specific regions. The mixtures, as described in the
comment, may be suitable for a group exemption by the application
process. DEA concludes that newly regulated mixtures containing
hydrochloric acid or sulfuric acid will be minimal at the concentration
limits proposed.
c. The List II Reagent Chemicals Iodine and Potassium Permanganate
Iodine and potassium permanganate are List II chemicals that
function as reagents. Reagents are chemicals that cause, or help to
cause, a chemical reaction to occur. Iodine and potassium permanganate
are important in methamphetamine and cocaine production, respectively.
Iodine is found in a variety of formulations. Strong iodine
solution and strong iodine tincture contain seven-percent iodine and
are regarded as chemical mixtures. DEA proposed a 20 percent
concentration limit for iodine but was informed, by comment, that
seven-percent solutions are being diverted for their iodine content. In
addition, DEA has documented the use of seven-percent iodine mixtures
as a source for iodine crystals in clandestine methamphetamine
production. Chemical mixtures containing iodine are being addressed
under a separate NPRM to allow adequate comment on the regulation of
iodine desirable to traffickers.
DEA has not identified mixtures of potassium permanganate being
diverted for illicit drug production or being formulated in a
concentration greater than the proposed 15 percent. DEA has determined
that legitimately produced chemical mixtures containing less than 15
percent potassium permanganate do not have a significant potential for
diversion. Therefore, the concentration limit for potassium
permanganate was proposed to be 15 percent. No comments were received
to suggest that there are any chemical mixtures containing greater than
15 percent potassium permanganate.
d. The List II Precursor Chemicals Acetic Anhydride and Benzyl Chloride
The List II chemicals acetic anhydride and benzyl chloride may be
regarded as precursor chemicals. Precursors are substances that are
chemically modified to become part of the final product. Acetic
anhydride is important in the production of heroin while benzyl
chloride can be used to make methamphetamine. These chemicals also have
limited use as solvents. No comments were received regarding these
chemicals and DEA has not identified them as being routinely used in
chemical mixtures. The concentration limit for acetic anhydride and
benzyl chloride was proposed to be 20 percent and is being finalized at
the 20 percent limit.
[[Page 74968]]
IV. Final Rule Provisions
a. Specific Requirements That Will Apply to Regulated Chemical Mixtures
Containing List I Chemicals Upon Publication of This Final Rule
A chemical mixture that is regulated because it contains a List I
chemical will be treated as a List I chemical. Transactions that meet
or exceed the cumulative monthly threshold for the listed chemical
shall be regulated transactions. Persons interested in handling a
regulated mixture must comply with the following:
Registration. Any person who manufactures or distributes a
regulated mixture, or proposes to engage in the manufacture or
distribution of a regulated mixture containing a List I chemical, shall
obtain a registration pursuant to the CSA (21 U.S.C. 822). Regulations
describing registration for list I chemical handlers are set forth in
21 CFR part 1309.
Separate registration is required for retail distribution, non-
retail distribution, importing, and exporting. A separate registration
is required for each principal place of business at one general
physical location where List I chemicals are distributed, imported, or
exported by a person (21 CFR 1309.23). Effective February 14, 2005, any
person distributing, importing, or exporting any amount of a regulated
mixture will become subject to the registration requirement under the
CSA. DEA recognizes, however, that it is not possible for persons who
are subject to the registration requirement to immediately complete and
submit an application for registration and for DEA to immediately issue
registrations for those activities. Therefore, in order to allow
continued legitimate commerce in regulated mixtures, DEA is
establishing in 21 CFR 1310.09 a temporary exemption from the
registration requirement for persons desiring to engage in activities
with regulated mixtures that are subject to registration requirements,
provided that DEA receives a properly completed application for
registration on or before February 14, 2005. The temporary exemption
for such persons will remain in effect until DEA takes final action on
their application for registration.
Any person whose application for exemption is subsequently rejected
by DEA must obtain a registration with DEA. A temporary exemption from
the registration requirement will also be provided for these persons,
if DEA receives a properly completed application for registration on or
before 30 days following the date of official DEA notification that the
application for exemption has not been approved. The temporary
exemption for such persons will remain in effect until DEA takes final
action on their registration application.
The temporary exemption applies solely to the registration
requirement; all other chemical control requirements, including
recordkeeping and reporting, are effective on January 14, 2005.
Therefore, all transactions of the chemical mixture will be regulated,
if at or above threshold, while an application for registration or
exemption is pending. This is necessary because not regulating these
transactions could result in increased diversion of chemicals desirable
to drug traffickers.
Additionally, the temporary exemption does not suspend applicable
federal criminal laws relating to the regulated mixture, nor does it
supersede state or local laws or regulations. All handlers of a
regulated mixture must comply with applicable state and local
requirements in addition to the CSA regulatory controls.
Records and Reports. The CSA (21 U.S.C. 830) requires certain
records to be kept and reports to be made involving listed chemicals.
Regulations describing recordkeeping and reporting requirements are set
forth in 21 CFR 1310. A record must be made and maintained for two
years after the date of a regulated transaction involving a List I
chemical. Only a distribution, receipt, sale, importation, or
exportation of a regulated mixture at or above the established
threshold is a regulated transaction (21 CFR 1300.02(b)(28)).
Each regulated bulk manufacturer of a regulated mixture shall
submit manufacturing, inventory and use data on an annual basis (21 CFR
1310.05(d)). Bulk manufacturers producing the mixture solely for
internal consumption, e.g., formulating a non-regulated mixture, are
not required to submit this information. Existing standard industry
reports containing the required information are acceptable, provided
the information is readily retrievable from the report.
21 CFR 1310.05 requires that each regulated person shall report to
DEA any regulated transaction involving an extraordinary quantity, an
uncommon method of payment or delivery, or any other circumstance that
causes the regulated person to believe that the listed chemical will be
used in violation of the CSA.
Security: All applicants and registrants shall provide effective
controls against theft and diversion of chemicals as described in 21
CFR 1309.71.
Imports/Exports. All import/exports and brokered transactions of
regulated mixtures shall comply with the CSA (21 U.S.C. 957 and 971).
Regulations for importation and exportation of List I chemicals are
described in 21 CFR 1313. Separate registration is necessary for each
activity (21 CFR 1309.22).
Administrative Inspection. Places, including factories, warehouses,
or other establishments and conveyances, where regulated persons may
lawfully hold, manufacture, or distribute, dispense, administer, or
otherwise dispose of a regulated mixture or where records relating to
those activities are maintained, are controlled premises as defined in
21 CFR 1316.02(c). The CSA (21 U.S.C. 880) allows for administrative
inspections of these controlled premises as provided in 21 CFR 1316
Subpart A.
b. Specific Requirements That Will Apply to Regulated Chemical Mixtures
Containing List II Chemicals Upon Publication of This Final Rule
A chemical mixture that is regulated because it contains a List II
chemical will be treated as a List II chemical. Transactions that meet
or exceed the cumulative monthly threshold for the listed chemical
shall be regulated transactions. The regulatory requirements for
regulated chemical mixtures containing List II chemicals are the same
as for regulated chemical mixtures containing List I chemicals, except
that registration requirements do not apply. Therefore, the same
requirements for records and reports, imports/exports (except that
pertaining to 21 U.S.C. 957), and administrative inspection, as
outlined above, apply to handlers of List II regulated chemical
mixtures.
Persons who submit an application for exemption (Section 1310.13)
and whose application is pending or subsequently rejected by DEA must
comply with all chemical control requirements, including recordkeeping
and reporting, effective on January 14, 2005. Therefore, all
transactions of the chemical mixture will be regulated, if at or above
threshold, while an application for exemption is pending or awaiting
correction. This is necessary because not regulating these transactions
could result in increased diversion of chemicals desirable to drug
traffickers.
c. Persons Affected by This Final Rule
This rulemaking will affect only persons who manufacture,
distribute, import, or export chemical mixtures containing listed
chemicals that DEA determined are useful to traffickers for the illicit
production of controlled substances. DEA received comments on
[[Page 74969]]
only a few specific listed chemicals. Therefore, DEA concludes that the
concentration limits proposed in the NPRM for the remaining majority of
listed chemicals were acceptable to chemical handlers.
The goal of this rulemaking is to deny traffickers unregulated
access to useful chemical mixtures while minimizing the burden on
legitimate industry. This final rule seeks to target those chemical
mixtures having the greatest potential for illicit use.
Comments to the NPRM informed DEA of ways to provide additional
regulatory relief to the affected industry. DEA determined that some of
these suggested changes would not compromise law enforcement
objectives. Based on this new information, this final rule exempts the
vast majority of potentially regulated chemical mixtures without
compromising the needs of law enforcement. Certain chemical mixtures
that are a concern to the paints and coatings industries, the food
flavoring industries, fragrance manufacturers, the silicone industries,
ink manufacturers, and others are being identified by regulation as
exempt from CSA regulatory controls. Because DEA is able to adjust some
of its proposed regulations based on information received in the
comments, those persons who trade in chemical mixtures containing
listed chemicals should be minimally impacted or not affected at all by
this rulemaking.
Of those persons whose mixtures are regulated, only those who
distribute above the threshold for the listed chemical(s) are regulated
transactions (21 U.S.C. 802(39)(A)). A threshold is a quantity of
chemical, as specified in 21 CFR 1310.04. Distributions at or above the
specified threshold amount are regulated transactions. Thresholds are
determined by totaling the amount of chemical in all distributions to
the same person within a calendar month.
Persons who obtain a regulated chemical but do not distribute the
chemical are end users. End users are not subject to CSA chemical
regulatory control provisions such as registration or recordkeeping
requirements. Some examples of end users are those who chemically react
the listed chemical and change it into a non-listed chemical or
formulate it into an exempt chemical mixture.
V. Exemption Authority
The CSA authorizes DEA, pursuant to 21 U.S.C. 802(39)(A)(iii), to
remove certain transactions in listed chemicals from the definition of
a regulated transaction that are unnecessary for enforcement of the
CSA. Based on comments to the Federal Register proposed rule
``Exemption of Chemical Mixtures'' (63 FR 49506), DEA identified
certain transactions in mixtures of acetone, ethyl ether, 2-butanone,
and toluene that are unlikely sources for diversion. DEA was informed
that tens of thousands of domestic transactions in these chemical
mixtures occur annually. DEA has determined that the regulation of
domestic and import transactions in mixtures containing the chemicals
acetone, ethyl ether, 2-butanone, and toluene are unnecessary for
enforcement of the CSA and should be removed from the definition of a
regulated transaction.
Since the NPRM to this rulemaking did not discuss this exemption,
the public did not have the opportunity to comment on the exclusion of
these transactions from the definition of a regulated transaction.
However, DEA has determined that good cause exists under the
Administrative Procedure Act (5 U.S.C. 553 et seq.) (APA) to forgo a
notice of proposed rulemaking on these exemptions. The APA states that
an agency may forego a Notice of Proposed Rulemaking if it is
impracticable, unnecessary, or contrary to the public interest.
If this rulemaking did not exempt these transactions upon
publication, DEA would need to establish the exemption by notice and
comment. If exemption of these transactions were delayed, affected
parties would need to implement a system of recordkeeping and reporting
for all these regulated transactions. This would involve several
thousand transactions annually in chemical mixtures that otherwise may
not be regulated if the exemptions became effective immediately.
If a proposed rule were published in the Federal Register to
exclude these transactions from the definition of regulated
transactions, each affected entity might find it necessary to establish
compliance procedures although the requirement might prove to be only
temporary. To avoid unnecessary burdens on affected companies during
the pendency of proceedings in this matter, DEA has decided to include
as part of this rulemaking an interim rule, with request for comment,
that removes these transactions from the definition of a regulated
transaction.
VI. Regulatory Certifications
Regulatory Flexibility Act
DEA, pursuant to 21 U.S.C. 802(39)(A)(v), is finalizing provisions
to identify exempt chemical mixtures. The chemical mixtures being
addressed are those that contain one or more of the 27 listed chemicals
given in the Table of Concentration Limits. A Final Rule establishing
provisions that exempt chemical mixtures containing ephedrine, N-
methylephedrine, N-methylpseudoephedrine, norpseudoephedrine,
phenylpropanolamine, and pseudoephedrine was published in a separate
rulemaking (68 FR 23195, May 1, 2003).
Provisions to exempt chemical mixtures in the listed chemicals
gamma-butyrolactone, red phosphorus, white phosphorus, and
hypophosphorous acid (and its salts) are not being finalized at this
time. These chemicals were not regulated when the NPRM ``Exemption of
Chemical Mixtures'' (63 FR 49506) was published. Therefore, regulations
addressing their mixtures were not proposed. DEA is treating mixtures
containing these listed chemicals as exempt until promulgation of
regulations that identify exempt chemical mixtures in these chemicals.
To identify exempt chemical mixtures, a concentration limit is
placed on each chemical, or combination of chemicals, which determines
the mixture's regulatory status. Categories of exempt chemical mixtures
are also defined. In addition, DEA can determine that a mixture is
exempt via an application process (Section 1310.13).
Comments to the NPRM informed DEA that a substantial number of
chemical mixtures that are not useful to traffickers could potentially
be regulated if the proposed rule were finalized as written. DEA
determined that the regulation of these chemical mixtures is not
necessary for enforcement of the CSA. Therefore, DEA decided to exempt
these chemical mixtures from regulatory controls by identifying new
concentration limits and exemption of certain types of transactions.
DEA notes that the List II solvent chemicals acetone, ethyl ether,
2-butanone, methyl isobutyl ketone, and toluene contribute to the
largest number of potentially regulated chemical mixtures of List II
chemicals. To limit the number of potentially regulated chemical
mixtures to those necessary for enforcement of the CSA, DEA decided to
define all domestic and import transactions of mixtures in these List
II solvent chemicals as exempt transactions. This exemption applies to
all persons that handle these chemical mixtures and not only to those
who are represented in the comments. Although effective upon
publication of this final rule, DEA is accepting post-
[[Page 74970]]
promulgation comments regarding this regulation.
The regulated industry only expressed concerns through comments to
the NPRM with respect to three List I chemicals, anthranilic acid,
benzaldehyde, and phenylacetic acid. The food flavoring and fragrance
industries use these chemicals, as discussed by a single comment
representing both the Flavor and Extract Manufacturers Association of
the United States, and the Fragrance Materials Association of the
United States. No other List I chemicals were addressed in the
comments, therefore, DEA concludes that no other List I chemicals are a
concern to handlers of chemical mixtures at the concentration limits
proposed.
The concentration limits are being increased for the List I
chemicals anthranilic acid and phenylacetic acid to the levels
suggested by comment. Based on the comment, this increase is expected
to exempt all chemical mixtures in anthranilic acid and phenylacetic
acid identified by DEA that are not at substantial risk of diversion.
However, DEA decided that traffickers could use chemical mixtures
containing over 50 percent benzaldehyde, although a comment suggested
that even higher concentrations would not be diverted. Therefore, DEA
increased the concentration limit of benzaldehyde from 35 percent to 50
percent to regulate only those chemical mixtures identified by DEA as
necessary for enforcement of the CSA. Therefore, some commercially
available chemical mixtures in benzaldehyde are expected to be
regulated.
Benzaldehyde is a chemical used in food flavorings. The comment
states that the number of persons that manufacture or use flavors is
97. Provided the number of persons that will be newly registered to
handle chemical mixtures in benzaldehyde is 97, the initial total
registration cost would be $57,715, based on the current new
application fee of $595.00 for each company. The total annual re-
registration cost, based on the present renewal fee of $477.00 for each
company, would be $46,269. In addition to the specific dollar cost, the
registration requirement would require an annual reporting burden of
approximately 48.5 hours. This is based on the estimated one-half hour
required to complete and submit an application for registration or re-
registration.
The comment stated that 66 members of the commenting industry
association manufacture or sell fragrances. Assuming that all persons
involved with the manufacture of food flavorings or fragrances (163)
must register for each of the three chemicals, the combined current
estimated cost for all new application fees is $290,955.
DEA adopted those suggestions that will not adversely impact
enforcement of the CSA while eliminating the greatest number of
transactions in List I and List II chemical mixtures identified by DEA.
Only three List I chemicals and four List II chemicals contribute to
the largest number of potential newly regulated chemical mixtures.
The remaining listed chemicals addressed in the rulemaking were not
addressed in the comments and make up only a small number of new
potentially regulated chemical mixtures. DEA does not anticipate a
significant number of regulated chemical mixtures due to the remaining
listed chemicals. For those chemical mixtures that fall within the
regulatory parameters, the manufacturer can obtain exempt status for a
chemical mixture by the application process. Once a chemical mixture
has been granted exempt status by application, all down-stream
activities in that unaltered mixture are exempt.
Therefore, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), the Deputy Administrator has reviewed this regulation
and by approving it certifies that this regulation will not have a
significant economic impact upon a substantial number of small
entities.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, Section 1(b), Principles of Regulation. DEA has
determined that this rule is a ``significant regulatory action'' under
Executive Order 12866, Section 3(f), Regulatory Planning and Review,
and accordingly this rule has been reviewed by the Office of Management
and Budget.
Executive Order 12988
This regulation meets the applicable standards set forth in
Sections 3(a) and 3(b)(2) of Executive Order 12988.
Executive Order 13132
This rulemaking does not preempt or modify any provision of state
law; nor does it impose enforcement responsibilities on any state; nor
does it diminish the power of any state to enforce its own laws.
Accordingly, this rulemaking does not have federalism implications
warranting the application of Executive Order 13132.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $114
million or more in any one year, and will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by Section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Paperwork Reduction Act
This Final Rule requires that persons handling nonexempt chemical
mixtures containing a List I chemical must register with DEA to handle
the regulated mixture. Persons will register using DEA Form 510
``Application for Registration under Domestic Chemical Diversion
Control Act of 1993'' addressed in OMB information collection 1117-
0031. As it is not possible for DEA to determine the number of persons
whose chemical mixtures might be exempted from regulation by one of the
three criteria established for exempting such mixtures, it is not
possible for DEA to quantify at this time the number of persons
affected by the requirement of registration. As information regarding
the number of persons registering with DEA due to this rule becomes
available, DEA will adjust its collection of information accordingly.
List of Subjects in 21 CFR Part 1310
Drug traffic control, List I and List II chemicals, Reporting and
recordkeeping requirements.
0
For the reasons set out above, 21 CFR part 1310 is amended to read as
follows:
PART 1310--[AMENDED]
0
1. The authority citation for part 1310 continues to read as follows:
Authority: 21 U.S.C. 802, 830, 871(b), 890.
0
2. Section 1310.04 is amended by revising paragraph (h) and adding new
paragraphs (i) and (j) to read as follows:
[[Page 74971]]
Sec. 1310.04 Maintenance of records.
* * * * *
(h) The thresholds and conditions in paragraphs (f) and (g) of this
section will apply to transactions involving regulated chemical
mixtures. For purposes of determining whether the weight or volume of a
chemical mixture meets or exceeds the applicable quantitative
threshold, the following rules apply:
(1) For chemical mixtures containing List I chemicals or List II
chemicals other than those in paragraph (h)(2) of this section, the
threshold is determined by the weight of the listed chemical in the
chemical mixture.
(2) For the List II chemicals acetone, ethyl ether, 2-butanone,
toluene, and methyl isobutyl ketone, the threshold is determined by the
weight of the entire chemical mixture.
(3) If two or more listed chemicals are present in a chemical
mixture, and the quantity of any of these chemicals equals or exceeds
the threshold applicable to that chemical, then the transaction is
regulated.
0
3. Section 1310.08 is amended by adding a new paragraph (l) to read as
follows:
Sec. 1310.08 Excluded transactions.
* * * * *
(l) Domestic and import transactions in chemical mixtures that
contain acetone, ethyl ether, 2-butanone, or toluene unless regulated
because of being formulated with another listed chemical above the
concentration limit.
0
4. Section 1310.09 is amended by adding new paragraphs (f) and (g) to
read as follows:
Sec. 1310.09 Temporary exemption from registration.
* * * * *
(f) Except for chemical mixtures containing the listed chemicals in
paragraph (e) of this section, each person required by section 302 of
the Act (21 U.S.C. 822) to obtain a registration to distribute, import,
or export regulated chemical mixtures, pursuant to Sec. Sec. 1310.12
and 1310.13, is temporarily exempted from the registration requirement,
provided that DEA receives a proper application for registration or
application for exemption on or before February 14, 2005. The exemption
will remain in effect for each person who has made such application
until the Administration has approved or denied that application. This
exemption applies only to registration; all other chemical control
requirements set forth in parts 1309, 1310, and 1313 of this chapter
remain in full force and effect.
(g) Any person who distributes, imports, or exports a chemical
mixture whose application for exemption is subsequently denied by DEA
must obtain a registration with DEA. A temporary exemption from the
registration requirement will also be provided for these persons,
provided that DEA receives a properly completed application for
registration on or before 30 days following the date of official DEA
notification that the application for exemption has not been approved.
The temporary exemption for such persons will remain in effect until
DEA takes final action on their registration application.
0
5. Section 1310.12 is amended by revising paragraph (c) and adding new
paragraphs (d)(2) and (3) to read as follows:
Sec. 1310.12 Exempt chemical mixtures.
* * * * *
(c) Mixtures containing a listed chemical in concentrations equal
to or less than those specified in the ``Table of Concentration
Limits'' are designated as exempt chemical mixtures for the purpose set
forth in this section. The concentration is determined for liquid-
liquid mixtures by using the volume or weight and for mixtures
containing solids or gases by using the unit of weight.
Table of Concentration Limits
----------------------------------------------------------------------------------------------------------------
DEA chemical
code number Concentration Special conditions
----------------------------------------------------------------------------------------------------------------
List I Chemicals
----------------------------------------------------------------------------------------------------------------
N-Acetylanthranilic acid, its salts 8522 20% by Weight............ Concentration based on any
and esters. combination of N-
acetylanthranilic acid and
its salts and esters.
Anthranilic acid, and its salts and 8530 50% by Weight............ Concentration is based on any
esters. combination of anthranilic
acid and its salts and
esters.
Benzaldehyde.......................... 8256 50% by Weight or Volume..
Benzyl cyanide........................ 8570 20% by Weight or Volume..
Ephedrine, its salts, optical isomers, 8113 5% by Weight, net weight Concentration based on any
and salts of optical isomers. includes capsule, if any. combination of ephedrine,
pseudoephedrine, and their
salts, optical isomers and
salts of optical isomers.
Ergonovine and its salts.............. 8675 Not exempt at any Chemical mixtures containing
concentration. any amount of ergonovine,
including its salts, are not
exempt.
Ergotamine and its salts.............. 8676 Not exempt at any Chemical mixtures containing
concentration. amount of any ergotamine,
including its salts, are not
exempt.
Ethylamine and its salts.............. 8678 20% by Weight or Volume.. Ethylamine or its salts in an
inert carrier solvent is not
considered a mixture.
Concentration is based on
ethylamine in the mixture
and not the combination of
ethylamine and carrier
solvent, if any.
Hydriodic acid........................ 6695 20% by Weight or Volume..
Isosafrole............................ 8704 20% by Weight or Volume.. Concentration in a mixture
cannot exceed 20% if taken
alone or in any combination
with safrole.
Methylamine and its salts............. 8520 20% by Weight............ Methylamine or its salts in
an inert carrier solvent is
not considered a mixture.
Weight is based on
methylamine in the mixture
and not the combined weight
of carrier solvent, if any.
3,4-Methylenedioxyphenyl-2-propanone.. 8502 20% by Weight............
[[Page 74972]]
N-Methylephedrine, its salts, optical 8115 0.1% by Weight........... Concentration based on any
isomers, and salts of optical isomers. combination of salts N-
methylephedrine, N-
methylpseudoephedrine and
their salts, optical isomers
and salts of optical
isomers.
N-Methylpseudoephedrine, its salts, 8119 0.1% by Weight........... Concentration based on any
optical isomers, and salts of optical combination of N-
isomers. methylpseudoephedrine, N-
methylephedrine, and their
salts, optical isomers and
salts of optical isomers.
Nitroethane........................... 6724 20% by Weight or Volume..
Norpseudoephedrine, its salts, optical 8317 0.6% by Weight........... Concentration based on any
isomers, and salts of optical isomers. combination of
norpseudoephedrine,
phenylpropanolamine and
their salts, optical isomers
and salts of optical
isomers.
Phenylacetic acid, and its salts and 8791 40% by Weight............ Concentration is based on any
esters. combination of phenylacetic
acid and its salts and
esters.
Phenylpropanolamine, its salts, 1225 0.6% by Weight........... Concentration based on any
optical isomers, and salts of optical combination of
isomers. phenylpropanolamine,
norpseudoephedrine and their
salts, optical isomers and
salts of optical isomers.
Piperidine, and its salts............. 2704 20% by Weight or Volume.. Concentration based on any
combination of piperidine
and its salts. Concentration
based on weight if a solid,
weight or volume if a
liquid.
Piperonal............................. 8750 20% by Weight or Volume..
Propionic anhydride................... 8328 20% by Weight or Volume..
Pseudoephedrine, its salts, optical 8112 5% by Weight, net weight Concentration based on any
isomers, and salts of optical isomers. includes capsule, if any. combination of
pseudoephedrine, ephedrine,
and their salts, optical
isomers and salts of optical
isomers.
Safrole............................... 8323 20% by Volume............ Concentration in a mixture
cannot exceed 20% if taken
alone or in any combination
with isosafrole.
---------------------------------------
List II Chemicals
----------------------------------------------------------------------------------------------------------------
Acetic Anhydride...................... 8519 20% by Weight or Volume.
Acetone............................... 6532 35% by Weight or Volume.. Exports only; Limit applies
to acetone or any
combination of acetone,
ethyl ether, 2-butanone,
methyl isobutyl ketone, and
toluene if present in the
mixture by summing the
concentrations for each
chemical.
Benzyl chloride....................... 8568 20% by Weight or Volume..
2-butanone............................ 6714 35% by Weight or Volume.. Exports only; Limit applies
to 2-butanone or any
combination of acetone,
ethyl ether, 2-butanone,
methyl isobutyl ketone, and
toluene if present in the
mixture by summing the
concentrations for each
chemical.
Ethyl ether........................... 6584 35% by Weight or Volume.. Exports only; Limit applies
to ethyl ether or any
combination of acetone,
ethyl ether, 2-butanone,
methyl isobutyl ketone, and
toluene if present in the
mixture by summing the
concentrations for each
chemical.
Hydrochloric acid..................... 6545 20% by Weight or Volume.. Hydrogen chloride in an inert
carrier solvent, such as
aqueous or alcoholic
solutions, is not considered
a mixture. Weight is based
on hydrogen chloride in the
mixture and not the combined
weight of the carrier
solvent, if any.
Methyl isobutyl ketone................ 6715 35% by Weight or Volume.. Exports only pursuant to Sec.
1310.08; Limit applies to
methyl isobutyl ketone or
any combination of acetone,
ethyl ether, 2-butanone,
methyl isobutyl ketone, and
toluene if present in the
mixture by summing the
concentrations for each
chemical.
Potassium permanganate................ 6579 15% by Weight...........
[[Page 74973]]
Sulfuric acid......................... 6552 20% by Weight or Volume.. Sulfuric acid in an inert
carrier solvent, such as
aqueous or alcoholic
solutions, is not considered
a mixture. Weight is based
on sulfuric acid in the
mixture and not the combined
weight of the carrier
solvent, if any.
Toluene............................... 594 35% by Weight or Volume.. Exports only; Limit applies
to toluene or any
combination of acetone,
ethyl ether, 2-butanone,
methyl isobutyl ketone, and
toluene if present in the
mixture by summing the
concentrations for each
chemical.
----------------------------------------------------------------------------------------------------------------
(d) The following categories of chemical mixtures are automatically
exempt from the provisions of the Controlled Substances Act as
described in paragraph (a) of this section:
(1) * * *
(2) Chemical mixtures that are distributed directly to an
incinerator for destruction or directly to an authorized waste recycler
or reprocessor where such distributions are documented on United States
Environmental Protection Agency Form 8700-22; persons distributing the
mixture to the incinerator or recycler must maintain and make available
to agents of the Administration, upon request, such documentation for a
period of no less than two years.
(3) Completely formulated paints and coatings: Completely
formulated paints and coatings are only those formulations that contain
all the components of the paint or coating for use in the final
application without the need to add any additional substances except a
thinner if needed in certain cases. A completely formulated paint or
coating is defined as any clear or pigmented liquid, liquefiable or
mastic composition designed for application to a substrate in a thin
layer that is converted to a clear or opaque solid protective,
decorative, or functional adherent film after application. Included in
this category are clear coats, topcoats, primers, varnishes, sealers,
adhesives, lacquers, stains, shellacs, inks, and temporary protective
coatings.
* * * * *
Dated: December 9, 2004.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 04-27449 Filed 12-14-04; 8:45 am]
BILLING CODE 4410-09-P