Possible Control of Red Phosphorus as a Listed Chemical

AGENCY:

Drug Enforcement Administration (DEA), Justice.

ACTION:

Advance notice of proposed rulemaking; Request for comments.

SUMMARY:

The Controlled Substances Act (CSA), provides the Attorney General Authority to specify by regulation, additional precursor and essential chemicals as “listed chemicals” if they are used in the manufacture of controlled substances in violation of the CSA. This notice provides advance notification that the United States Drug Enforcement Administration (DEA) is considering the possible control of red phosphorus as a listed chemical.

Red phosphorus has been identified as being an important chemical used in the illicit production of methamphetamine. DEA is considering whether CSA chemical regulatory controls (such as registration, recordkeeping, reporting, and import/export requirements) are necessary to prevent the diversion of red phosphorus to clandestine drug laboratories.

Prior to deciding whether to control red phosphorus as a listed chemical, the DEA is seeking information on red phosphorus trade so that diversion of red phosphorous may be prevented with minimal impact on legitimate trade. The DEA is soliciting information on the manufacturing, distribution, consumption, storage, disposal, and uses of red phosphorus.

DATES:

Written comments must be received on or before April 3, 2000.

ADDRESSES:

Comments should be submitted in quintuplicate to the Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative/CCR.

FOR FURTHER INFORMATION CONTACT:

Frank L. Sapienza, Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537 at (202) 307-7183.

SUPPLEMENTARY INFORMATION:

What Is the Purpose of This Notice?

The Controlled Substances Act (CSA), specifically 21 U.S.C. sections 802(34) and (35); 21 CFR 1310.02(c), provides the Attorney General with the authority to specify, by regulation, additional precursor and essential chemicals as “listed chemicals” if they are used in the manufacture of controlled substances in violation of the CSA. 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.

This notice provides advance notification that the U.S. Drug Enforcement Administration is considering the control of red phosphorus as a listed chemical. Red phosphorus has been identified as being an important chemical used in the illicit production of methamphetamine. The public health consequences of the manufacture, trafficking, and abuse of methamphetamine are well known and documented.

What Regulatory Controls Currently exist on Red Phosphorus?

Since red phosphorus is a common chemical used in methamphetamine production, it has already been placed on the Attorney General's “special surveillance list” of “laboratory supplies”. The Comprehensive Methamphetamine Control Act of 1996 (MCA) amended the CSA via the addition of 21 U.S.C. 842(a)(11), which makes it unlawful for any person to distribute a laboratory supply to a person who uses, or attempts to use, that laboratory supply to manufacture a controlled substance or a listed chemical, with reckless disregard for the illegal uses to which such laboratory supply will be put.

The MCA defines “laboratory supply” as a “listed chemical or any chemical, substance, or item on a special surveillance list published by the Attorney General, which contains chemicals, products, materials, or equipment used in the manufacture of controlled substances and listed chemicals.” This special surveillance list was published by DEA on May 13, 1999 (64 FR 25910) and includes red phosphorus.

What Additional Action is DEA Considering?

Due to the continued use of red phosphorus in illicit methamphetamine synthesis, the DEA is considering whether to place additional controls on red phosphorus, by adding red phosphorus as a listed chemical. As such, red phosphorus would be subject to additional CSA regulatory controls such as registration, recordkeeping, reporting, and import/export requirements as specified in 21 CFR part 1300. DEA is considering whether these additional regulatory controls are needed to prevent the diversion of red phosphorus to clandestine laboratories.

Why Is DEA Seeking Information?

DEA is seeking information on red phosphorus trade so that diversion of red phosphorus may be prevented with minimal impact on legitimate trade. DEA is aware that the industrial uses of red phosphorus include the manufacture of pyrotechnics, safety matches, phosphoric acid and other phosphorus compounds, fertilizers, incendiary shells, smoke bombs, tracer bullets, and pesticides. DEA recognizes that regulation of red phosphorus may have some effect upon these, and other, industrial activities. However, DEA is not aware of the entire scope of use of red phosphorus by industry and consumers.

What Information Does This Notice Seek?

The DEA is soliciting input from the potentially affected parties regarding (1) the nature of the legitimate phosphorus industry, (2) the legitimate uses of red phosphorus at all levels of distribution (including industrial uses and use by individual end-users at the retail level of distribution), (3) the potential burden such regulatory controls may have on legitimate industry (particularly with respect to the impact on small businesses), (4) the potential number of individuals/firms which may be adversely affected by increased regulatory requirements, and (5) any other information on the manner of manufacturing, distribution, consumption, storage, disposal, and uses of red phosphorus by industry and others. Both quantitative and qualitative data are sought.

Such information may be submitted to the Drug and Chemical Evaluation Section and is requested by April 3, 2000. 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) (FOIA), 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.