01-20578. Listed Chemicals; Establishment of Non-Regulated Transactions in Anhydrous Hydrogen Chloride

AGENCY:

Drug Enforcement Administration (DEA), Justice.

ACTION:

Final rule confirmation.

SUMMARY:

Effective October 3, 1996, the Comprehensive Methamphetamine Control Act of 1996 (MCA) had the practical effect of directing the DEA to place domestic controls on anhydrous hydrogen chloride. Previously, exports of the listed chemical hydrochloric acid (including anhydrous hydrogen chloride, referred to in the MCA as hydrochloric gas, which is a form of hydrogen chloride) were already regulated pursuant to 21 CFR 1310. A domestic threshold of zero (0.0 kilograms) for anhydrous hydrogen chloride became effective September 1, 2000, by a Final Rule published on August 2, 2000 (65 FR 47309).

Although the threshold for anhydrous hydrogen chloride is established at 0.0 kilogram, DEA has concluded that certain transactions in anhydrous hydrogen chloride are not sources for diversion. The Final Rule establishing a zero threshold for anhydrous hydrogen chloride also provided exemption, on an interim basis, from the recordkeeping and reporting requirements for: (1) Domestic transactions involving pipeline distributions; and (2) domestic distributions of 12,000 pounds (net weight) or more in a single container. Because these exemptions were not discussed in the Notice of Proposed Rulemaking published on September 30, 1997 (62 FR 51072), DEA requested public comment with respect to the exemption for these two types of transactions involving anhydrous hydrogen chloride. The period for public comment closed on September 1, 2000. Two comments were received supporting these exemptions. This publication finalizes the interim rule without change.

EFFECTIVE DATE:

The final rule published at 65 FR 47309 remains effective as of August 2, 2000.

FOR FURTHER INFORMATION CONTACT:

Frank Sapienza, Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, Telephone [phone].

SUPPLEMENTARY INFORMATION:

A. What Is Anhydrous Hydrogen Chloride?

Anhydrous hydrogen chloride is the water free form of hydrochloric acid and is a List II chemical under the Controlled Substances Act (CSA). The statutory term “hydrochloric gas” used in the MCA refers to a form of hydrogen chloride more properly called anhydrous hydrogen chloride. Anhydrous hydrogen chloride is hydrogen chloride that is free from water. At ambient temperature and normal atmospheric pressure, anhydrous hydrogen chloride exists as a gas. Therefore, sometimes anhydrous hydrogen chloride is referred to as hydrogen chloride gas or hydrochloric gas.

When the atmospheric pressure is increased and/or the temperature is decreased, anhydrous hydrogen chloride can change from a gas to a liquid. This is sometimes referred to as refrigerated hydrogen chloride. Refrigerated hydrogen chloride is the same as anhydrous hydrogen chloride although the physical state has been changed from a gas to a liquid.

B. What Is DEA Doing in this Rulemaking?

The DEA is finalizing the interim portion of the Final Rule “Listed Chemicals; Final Establishment of Thresholds for Iodine and Hydrochloric Gas (Anhydrous Hydrogen Chloride),” published on August 2, 2000 (65 FR 47309). That rulemaking provided that there would be a zero threshold for domestic transactions involving anhydrous hydrogen chloride. However, it also provided an exemption, on an interim basis, from the recordkeeping and reporting requirements for transactions of anhydrous hydrogen chloride involving pipeline distributions and distributions of 12,000 pounds (net weight) or more in a single container. That is, two new paragraphs were added to Title 21 Section 1310.08 to exclude these types of transactions from the definition of regulated transactions. Although the exemption for these categories became effective upon publication in the Federal Register, the DEA sought public comment on these exemptions.

C. Why Is DEA Exempting These Categories of Transactions

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 regulated transaction. DEA has determined that transactions in anhydrous hydrogen chloride in the form of refrigerated liquid and transactions involving the direct transfer of anhydrous hydrogen chloride by pipeline are unlikely sources for diversion and should be removed from the definition of regulated transaction. DEA became aware of these types of transactions by the comments received in response to the Federal Register proposal to establish thresholds for iodine and anhydrous hydrogen chloride (62 FR 51072).

To better evaluate this request, DEA collected additional information from the affected industry. DEA learned that rail and truck carriers ship refrigerated liquid only in large containers. The average payload of a rail car is approximately 135,000 pounds. The capacity for tank trucks is approximately 12,000 to 30,000 pounds. These shipments are in single containers holding the specified weights. Specialized equipment and engineering skills are needed to off-load this commodity. Distributors are aware of their customers and are involved in tracking shipments. The DEA believes that anhydrous hydrogen chloride in this form and in these quantities is not likely to be diverted.

DEA has not identified any shipment of refrigerated anhydrous hydrogen chloride less than the tank truck size of approximately 12,000 pounds. Therefore, domestic distributions of anhydrous hydrogen chloride in single container shipments of 12,000 pounds (net weight) or more will be excluded from the definition of regulated transaction. Transactions that involve multiple containers, each containing less than 12,000 pounds of the chemical are regulated transactions even if the aggregate weight is over 12,000 pounds.

D. Comments Received

The DEA received two comments on the exemption of certain transactions of anhydrous hydrogen chloride. Both favored the exemptions as written. One comment supports the exempt categories because of technological restraints that prevent diversion from these sources. The other comment states that these exemptions are in concert with DEA's desire to control sales of cylinders that are used in illicit methamphetamine production.

The DEA will finalize the interim rule without change to exempt the following categories of transactions involving anhydrous hydrogen chloride: (1) Domestic distribution of anhydrous hydrogen chloride weighing 12,000 pounds (net weight) or more in a single container; and (2) Domestic distribution of anhydrous hydrogen chloride by pipeline. Therefore, the interim rule amending 21 CFR Part 1310, which was published in the Federal Register on August 2, 2000, at 65 FR 47309 is adopted as a final rule.

Regulatory Flexibility and Small Business Concerns

This regulation will not have a significant economic impact upon a substantial number of small entities that trade in anhydrous hydrogen chloride. This Final Rule excludes from the definition of “regulated transaction” domestic transactions involving anhydrous hydrogen chloride in bulk quantities of 12,000 pounds (net weight) or more and domestic distribution made by pipeline.

The Administrator in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), 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 for the following reasons: This Rulemaking removes recordkeeping and reporting requirements for certain transactions in anhydrous hydrogen chloride. This action is being taken in response to industry's request to relieve them of regulatory burdens.

Executive Order 12866

This regulation has been drafted and reviewed in accordance with Executive Order 12866, Section 1(b), Principles of Regulation. The DEA has determined that this rule is not a “significantly regulatory action” under Executive Order 12866, Section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

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 $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

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 cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete in domestic and export markets.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988

This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.

Plain Language Instructions

The Drug Enforcement Administration makes every effort to write clearly. If you have suggestions as to how to improve the clarity of this regulation, call or write Patricia M. Good, Chief, Liaison and Policy Section, Drug Enforcement Administration, Office of Diversion Control, Washington, DC 20537, Telephone [phone].

Therefore, DEA confirms the final rule with request for comment amending 21 CFR Part 1310, which was published in the Federal Register on August 2, 2000, at 65 FR 47309, without change.

Dated: August 3, 2001.

William B. Simpkins,

Acting Administrator.