DEA Updates Special Surveillance List of Precursor Chemicals and EquipmentOctober 31, 2023
The Drug Enforcement Administration (“DEA”) has issued its notice finalizing updates to its longstanding Special Surveillance List of chemicals and equipment used in the illicit manufacture of controlled substances and listed chemicals. Special Surveillance List of Chemicals, Products, Materials and Equipment Used in the Manufacture of Controlled Substances and Listed Chemicals, 88 Fed. Reg. 73,044 (Oct. 24, 2023). DEA’s notice of updates with the Special Surveillance List is attached here.
The Comprehensive Methamphetamine Control Act of 1996 (“MCA”) amended the Controlled Substances Act (“CSA”) and provides for the Attorney General to publish a Special Surveillance List of chemicals and other “laboratory supplies” used in the clandestine manufacture of controlled substances. 21 U.S.C. § 842(a). A “laboratory supply,” is defined as “a listed chemical or any chemical, substance, or item on a special surveillance list published by the Attorney General, which contains chemicals, products, materials, or equipment used in the [illicit] manufacture of controlled substances and listed chemicals.” 21 U.S.C. § 842(a).
DEA published its Special Surveillance List on May 13, 1999 and has never revised it. Special Surveillance List of Chemicals, Products, Materials and Equipment Used in the Clandestine Production of Controlled Substances or Listed Chemicals, 64 Fed. Reg. 25,910 (May 13, 1999). Although the CSA does not require notice and comment for revisions of the Special Surveillance List, DEA provided notice and comment of the proposed changes in June. Special Surveillance List of Chemicals, Products, Materials and Equipment Used in the Manufacture of Controlled Substances and Listed Chemicals, 88 Fed. Reg. 39,479 (June 16, 2023). DEA’s notice of proposed updates is attached here. Our blog post on the proposed updates is here.
The updated List, as with the original List, contains chemicals used in the manufacture of methamphetamine, PCP, and LSD, but now also includes those being used in the production of fentanyl, amphetamine, and other controlled substances and listed chemicals. In addition to current List I and II chemicals, and the chemical mixtures and over-the-counter products and dietary supplements containing them, the updated Special Surveillance List includes 28 additional chemicals. 88 Fed. Reg. 73,045. DEA also removed hypophosphorus acid and red phosphorus from the Special Surveillance List because as List I chemicals they are automatically included as laboratory supplies. Id. at 73,045-46. And while the Special Surveillance List has always included hydrogenators, tableting and encapsulating machines, and 22-liter heating mantels, DEA specifically added “tableting machines, including punches and dies.” Id.
DEA received 29 comments to its proposed updates to the Special Surveillance List. Commenters asserted that the proposed updates would further regulate the chemical industry by imposing “additional regulatory burdens on small businesses.” Id. at 73,044. DEA explained that the updates do not impose any new regulatory burden as they do not impose any recordkeeping or reporting requirements. Id. Commenters also objected to the addition of sodium borohydride, propiophenone and propionyl chloride to the List. Id. DEA replied that sodium borohydride and propionyl chloride can be used in the manufacture of fentanyl and fentanyl analogues, and propiophenone can be used in the manufacture of several schedule I substituted cathinones. Id. at 73,045.
DEA noted that the Special Surveillance List informs about the potential illegal uses of the listed chemicals and other items. It reminds that civil penalties of up to $250,000 (with inflation, now $470,640) may be imposed under 21 U.S.C. §§ 842(a)(11) and (c)(2)(C) on businesses who distribute or export a laboratory supply with reckless disregard for the illegal uses to which it will be put. Id. at 73,044.
The updated Special Surveillance List became effective on October 24th, the day the notice was published in the Federal Register.