DEA Proposes Additions to Longstanding Precursor Chemical Special Surveillance List

The Drug Enforcement Administration (“DEA”) has designated precursor chemicals, including 4-piperidone just last month, used in the illicit manufacture of controlled substances as List I and II chemicals over the years as “laboratory supplies,” but has never revised or updated its Special Surveillance List.  Until now.  The Comprehensive Methamphetamine Control Act of 1996 (“MCA”) amended the Controlled Substances Act (“CSA”) by providing 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).  “Laboratory supply,” as defined by the MCA, is “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 the Special Surveillance List on May 13, 1999.  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).  Then last week DEA issued a notice with proposed updates to the Special Surveillance List.  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 available here.

In determining updates to the Special Surveillance List, DEA consulted multiple levels of law enforcement, forensic laboratory authorities, intelligence groups, drug profiling programs and international organizations.  The agency reviewed clandestine lab seizure and drug profiling reports on illicit drug production methods as well as chemicals and their role in the clandestine manufacture and synthesis of controlled substances and listed chemicals.  DEA also considered legitimate uses of the chemicals.  Id. at 39,480.

The updated list, as with the original list, would include chemicals used in the manufacture of methamphetamine, PCP, and LSD, but also those being used now in the production of fentanyl, amphetamine, and other controlled substances and listed chemicals.  Id.  So, in addition to current List I and II chemicals, and the chemical mixtures and over-the-counter products and dietary supplements containing them, the Special Surveillance List would include 28 additional chemicals.  Id. at 39,481.  DEA would remove hypophosphorus acid and red phosphorus from the Surveillance List because as List I chemicals they are automatically included as laboratory supplies.  Id.  The Special Surveillance List has always included hydrogenators, tableting and encapsulating machines and 22-liter heating mantels, but DEA is proposing to specifically add “tableting machines, including punches and dies.”  Id.

DEA notes that the Special Surveillance List serves several purposes.  The list informs about the potential illegal uses of the listed chemicals and other items.  It also 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 39,480. If manufacturers, distributors and others are not already doing so, they should take this opportunity to incorporate monitoring their distribution of chemicals, products, materials and equipment on the Special Surveillance List into their due diligence policies and procedures.

While the CSA does not require notice and comment for revisions of the Special Surveillance List, DEA is providing notice and comment of the proposed changes because the list has never been updated.  The agency will accept public comments on or before July 17th.