Date="02/28/95" Citation="60 FR 10814" Group="legal" Type="PROPOSED RULE" Department="DEPARTMENT OF JUSTICE" Agency="DRUG ENFORCEMENT ADMINISTRATION (DEA), JUSTICE" Subject="Records, Reports, and Exports of Listed Chemicals"

DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1310 [DEA No. 128P] RIN 1117-AA26 Records, Reports, and Exports of Listed Chemicals AGENCY: Drug Enforcement Administration (DEA), Justice. ACTION: Notice of Proposed Rulemaking.

DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1310 [DEA No. 128P] RIN 1117-AA26 Records, Reports, and Exports of Listed Chemicals AGENCY: Drug Enforcement Administration (DEA), Justice. ACTION: Notice of Proposed Rulemaking. + ------------------------------------------------------------ SUMMARY: This rule proposes to include methyl isobutyl ketone (MIBK) as a List II Chemical under the Controlled Substances Act (CSA) for the purpose of imposing controls on exports which may be destined for cocaine producing regions. This proposed action by the DEA Deputy Administrator is based on substantial evidence that MIBK is increasingly being used as a solvent in the production of cocaine hydrochloride during the conversion of cocaine base to cocaine hydrochloride. The recent steps by the Government of Colombia (GOC) to control MIBK further support this proposed action. This proposed action will only effect export transactions; international transactions in which a U.S. broker or trader participates; and transshipments through the U.S., which are greater than 500 gallons or 1523 kilograms of MIBK destined for countries in the Western Hemisphere (with the exception of transactions destined for Canada). DATES: Written comments and objections must be received on or before March 30, 1995. ADDRESSES: Comments and objections 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: Howard McClain Jr., Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537 at (202) 307-7183. SUPPLEMENTARY INFORMATION: The Controlled Substances Act (CSA), specifically 21 U.S.C. section 802, 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 illicit manufacture of controlled substances. Section 802(39) also provides the Attorney General with authority to establish a threshold amount for "listed chemicals'' if the Attorney General so elects. 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. While methyl ethyl ketone (MEK) has become the solvent of choice in the processing of cocaine base to cocaine hydrochloride, recent regulatory and enforcement efforts in Latin America have resulted in a reduced availability of MEK. Information available to DEA indicates that in response to this shortfall of MEK, cocaine laboratory operators have moved to the utilization of MIBK for the processing of cocaine base to cocaine hydrochloride. Due to information regarding the use of MIBK for cocaine processing, the dramatic increase in MIBK importation, and the importation of MIBK by some firms that the Government of Colombia (GOC) considers suspect, the GOC has recently taken steps to control the sale and distribution of MIBK. In making the determination regarding the possible control of MIBK under the CSA, the DEA considered the following: (1) The chemistry of the compound (2) The legitimate use and commerce of the compound (3) Evidence of illicit use An examination of the chemistry of MIBK shows that it appears to be ideally suited for the conversion of cocaine base to cocaine hydrochloride. MIBK possesses the correct solubility characteristics, is partially miscible with water and is relatively volatile. The U.S. is a major producer of MIBK and exports this chemical to Latin America. The major commercial application for MIBK is as a solvent for vinyl, epoxy and acrylic resins, for natural resins, for nitrocellulose and for dyes in the printing industry. It is also a versatile extracting agent, e.g. for the production of antibiotics, or the removal of paraffins from mineral oil for the production of lubricating oils. MIBK's uses are similar to those of MEK. There is a legitimate need for these chemicals in Colombia. Although Colombian imports of MEK have decreased, U.S. firms believe that the legitimate need for MEK is being met. In contrast, however, importations into Colombia of MIBK have increased dramatically in 1994 following regulatory and enforcement actions taken by the GOC and other countries against MEK. No significant increase in the legitimate need for MIBK has been identified. The amount of MIBK imported into Colombia in the second quarter of 1994 exceeded the total quantity imported over the preceding 15 months. Some of these importations were to firms which the GOC considers suspect. The use of MIBK in cocaine hydrochloride production has recently been scientifically confirmed via the identification of MIBK in seized cocaine hydrochloride. While MEK is the most frequently seen solvent appearing in cocaine hydrochloride, MIBK has also been identified in seized material. Recent samples show an increased incidence of MIBK in seized cocaine hydrochloride. During the fourth quarter ---- page 10815 ---- of 1994, 54 percent of the cocaine hydrochloride exhibits received under DEA's solvent analysis program contained MIBK. The recent increase in the incidence of MIBK in seized cocaine hydrochloride is consistent with the timing of initial reports regarding its illicit use. Given these factors, DEA has determined that the control of MIBK as a List II Chemical is warranted. Since the illicit use of MIBK for cocaine processing occurs in Latin America, the DEA proposes that MIBK shipments exported from the U.S., shipments transshipped or transferred through the U.S., and international transactions in which a U.S. broker or trader participates, be considered regulated transactions if destined for any country in the Western Hemisphere (with the exception of transactions destined for Canada) 21 U.S.C. section 802(39)(A)(iii). In addition, the DEA proposes that a threshold similar to that of MEK be established for MIBK. DEA proposes that a threshold of 500 gallons (by volume) or 1523 kilograms (by weight) be established for MIBK. Therefore, this proposed action will only effect (1) export transactions; (2) international transactions in which a U.S. broker or trader participates; and (3) transshipments through the U.S., which are greater than 500 gallons or 1523 kilograms of MIBK destined for designated countries. Import transactions of MIBK into the U.S. (not destined for transshipment or transfer to designated countries), and domestic transactions of MIBK are excluded from the definitions of regulated transactions contained in 21 CFR 1310.01(f) and 1313.02(d). The Deputy Administrator hereby certifies that this proposed rulemaking will have no significant impact upon entities whose interests must be considered under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. A review of maritime shipments of MIBK reveals that during a two year period, there were less than 100 above-threshold export transactions destined for designated countries. This proposed rule is not a significant regulatory action and therefore has not been reviewed by the Office of Management and Budget pursuant to Executive Order 12866. This action has been analyzed in accordance with the principles and criteria in E.O. 12612, and it has been determined that the proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. List of Subjects in 21 CFR Part 1310 Durg traffic control, reporting and recordkeeping requirements. For reasons set out above, it is proposed that 21 CFR part 1310 be amended as follows: PART 1310-[AMENDED] 1. The authority citation for part 1310 continues to read as follows: Authority: 21 U.S.C. 802, 830, 871(b). 2. Section 1310.02 is proposed to be amended by adding a new paragraph (b)(10) to read as follows: sec 1310.02 Substances covered. * * * * * (b) * * * (10) Methyl Isobutyl Ketone (MIBK) * * * * * 3. Section 1310.04 is proposed to be amended by adding new paragraph (f)(2)(v) to read as follows: sec 1310.04 Maintenance of records. * * * * * (f) * * * (2) * * * (v) Export and International Transactions to Designated Countries, and Importations for Transshipment or Transfer to Designated Countries. -----------------------------------+---------------------------+------------------------- Chemical | Treshold by volume | Threshold by weight -----------------------------------+---------------------------+------------------------- | | (A) Methyl Isobutyl Ketone (MIBK) | 500 gallons ............. | 1523 kilograms. (B) Reserved | | -----------------------------------+---------------------------+------------------------- 4. Section 1310.08 is proposed to be amended by adding new paragraphs (c), (d) and (e) to read as follows: sec 1310.08 Excluded transactions. * * * * * (c) Domestic transactions of Methyl Isobutyl Ketone (MIBK). (d) Import transactions of Methyl Isobutyl Ketone (MIBK) destined for the United States. (e) Export transactions, international transactions, and import transactions for transshipment or transfer of Methyl Isobutyl Ketone (MIBK) destined for Canada or any country outside of the Western Hemisphere. Dated: February 16, 1995. Stepehn G. Greene, Deputy Administrator. [FR Doc. 95-4795 Filed 2-27-95; 8:45 am] BILLING CODE 4410-09-M ------------------------------------------------------ The Contents entry for this article reads as follows: Records, reports, and exports of listed chemicals: Methyl isobutyl ketone (MIBK), 10814