Self-Certification and Employee Training of Mail-Order Distributors of Scheduled Listed Chemical Products, 3957-3959 [2016-01377]
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Federal Register / Vol. 81, No. 15 / Monday, January 25, 2016 / Rules and Regulations
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1314
[Docket No. DEA–347]
RIN 1117–AB30
Self-Certification and Employee
Training of Mail-Order Distributors of
Scheduled Listed Chemical Products
Drug Enforcement
Administration, Department of Justice.
ACTION: Final rule.
AGENCY:
This document finalizes the
Drug Enforcement Administration’s rule
implementing the requirements of the
Combat Methamphetamine
Enhancement Act of 2010 establishing
self-certification and training
requirements for mail-order distributors
of scheduled listed chemical products.
This action finalizes without change the
interim final rule with request for
comment published on April 13, 2011.
DATES: This rule takes effect January 25,
2016.
FOR FURTHER INFORMATION CONTACT:
Barbara J. Boockholdt, Office of
Diversion Control, Drug Enforcement
Administration, 8701 Morrissette Drive,
Springfield, Virginia 22512; Telephone:
(202) 598–6812.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Legal Authority
The Drug Enforcement
Administration (DEA) implements and
enforces titles II and III of the
Comprehensive Drug Abuse Prevention
and Control Act of 1970, as amended. 21
U.S.C. 801–971. Titles II and III are
referred to as the ‘‘Controlled
Substances Act’’ and the ‘‘Controlled
Substances Import and Export Act,’’
respectively, but they are collectively
referred to as the ‘‘Controlled
Substances Act’’ or the ‘‘CSA’’ for the
purposes of this action. The DEA
publishes the implementing regulations
for these statutes in title 21 of the Code
of Federal Regulations (CFR), parts 1300
to 1321. The CSA and its implementing
regulations are designed to prevent,
detect, and eliminate the diversion of
controlled substances and listed
chemicals into the illicit market while
providing for the legitimate medical,
scientific, research, and industrial needs
of the United States.
The CSA grants the Attorney General
authority to promulgate rules and
regulations relating to the registration
and control of the manufacture,
distribution, and dispensing of
controlled substances and listed
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13:57 Jan 22, 2016
Jkt 238001
chemicals, 21 U.S.C. 821, and the
efficient execution of his statutory
functions. 21 U.S.C. 871(b). The
Attorney General has delegated this
authority to the Administrator of the
DEA, 28 CFR 0.100(b), who in turn has
redelegated certain authorities to the
Deputy Assistant Administrator of the
DEA Office of Diversion Control
(‘‘Deputy Assistant Administrator’’), 28
CFR part 0, appendix to subpart R.
By this document, the DEA finalizes
the interim final rule, ‘‘Self-Certification
and Employee Training of Mail-Order
Distributors of Scheduled Listed
Chemical Products’’ published on April
13, 2011, at 76 FR 20518. This rule
became effective on April 13, 2011. The
interim final rule solicited public
comments for which the comment
period closed on June 13, 2011. No
comments were received in response to
the publication. No changes are being
made to the rule.
Background
The preamble to the interim final rule
explained that section 2 of the Combat
Methamphetamine Enhancement Act of
2010 (MEA) (Pub. L. 111–268, 124 Stat.
2847) amended 21 U.S.C. 830(e)(2) to
establish new requirements for mailorder distributors to self-certify with the
DEA in order to sell scheduled listed
chemical products at retail. Sales ‘‘at
retail’’ are those intended for personal
use. 21 U.S.C. 802(48); 21 CFR
1300.02(b). As Congress directed in the
MEA, the DEA has established through
this rule criteria for certifications of
mail-order distributors consistent with
the criteria previously established for
certifications of other regulated sellers.1
The self-certification must include a
statement that the mail-order distributor
understands the requirements
applicable under 21 CFR part 1314 and
agrees to comply with those
requirements. Prior to certification,
mail-order distributors of scheduled
listed chemical products are required to
provide the DEA-developed training
(available at the DEA’s Web site) to their
employees.
The MEA is the most recent in a series
of legislative actions aimed at
preventing illicit drug manufacturers’
access to methamphetamine precursor
chemicals and enhancing penalties for
1 The DEA initially established criteria for
certifications for regulated sellers pursuant to the
Combat Methamphetamine Epidemic Act of 2005
(CMEA), Public Law 109–177, 120 Stat. 256. The
DEA implemented the retail sales provisions of the
CMEA through Interim Final Rule, ‘‘Retail Sales of
Scheduled Listed Chemical Products; SelfCertification of Regulated Sellers of Scheduled
Listed Chemical Products,’’ published Sept. 26,
2006 at 71 FR 56008; corrected at 71 FR 60609, Oct.
13, 2006.
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3957
methamphetamine production and
trafficking. Methamphetamine is a
highly addictive stimulant drug in
schedule II of the CSA. As recognized
through the acts of Congress, the
clandestine manufacture and
distribution of methamphetamine have
been and continue to be serious national
public health problems.2
Who are ‘‘mail-order distributors’’
subject to the training and selfcertification requirements?
The MEA refers to ‘‘mail-order
distributors’’ but does not define the
term. As stated in the interim final rule,
the idea of mail-order distributor is
developed in 21 CFR part 1314, which
discusses regulated persons who make a
sale at retail of a scheduled listed
chemical product and are required
under § 1310.03(c) to submit a report of
the sales transaction to the
Administration. 21 CFR 1314.100(a).
The CSA and its implementing
regulations impose recordkeeping and
reporting requirements on regulated
persons who engage in transactions with
a nonregulated person or who engage in
an export transaction involving
ephedrine, pseudoephedrine,
phenylpropanolamine, or gammahydroxybutyric acid, including drug
products containing these chemicals,
and who use or attempt to use the Postal
Service or any private or commercial
carrier. 21 CFR 1310.03(c). Of those
subject to the recordkeeping and
reporting requirements, only those
distributors who engage in mail-order
sales at retail of scheduled listed
chemical products are subject to the
training and self-certification
requirements. 21 CFR 1314.101 and
1314.102. A ‘‘mail-order sale,’’ for
purposes of part 1314, is defined by
DEA regulations as a retail sale of
scheduled listed chemical products for
personal use where a regulated person
uses or attempts to use the U.S. Postal
Service or any private or commercial
carrier to deliver the product to the
customer. 21 CFR 1314.03. Mail-order
sales include purchase orders submitted
by phone, mail, fax, Internet, or any
method other than a face-to-face
transaction. Id. The terms ‘‘regulated
person,’’ ‘‘scheduled listed chemical
product,’’ and ‘‘at retail’’ are defined in
21 U.S.C. 802.
The DEA is taking this opportunity in
publishing this final rule to provide in
this supplementary information a
clearer discussion of the development of
2 E.g., H.R.Rep. No. 109–299, pt. 2 (2005); For a
summary of effects of methamphetamine abuse and
addiction see NIDA InfoFacts: Methamphetamine
(available at https://www.drugabuse.gov/
publications/drugfacts/methamphetamine).
E:\FR\FM\25JAR1.SGM
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Federal Register / Vol. 81, No. 15 / Monday, January 25, 2016 / Rules and Regulations
the statutory and regulatory
requirements relating to ‘‘mail-order
distributors’’ than was included in the
preamble of the interim final rule.
Before 1996 persons now labeled as
‘‘mail-order distributors’’ were not
subject to specific regulation as a
distinct group. Beginning in 1996,
Congress has imposed a number of
requirements on these distributors,
specifically, in such laws as the
Comprehensive Methamphetamine
Control Act of 1996 (CMCA), Public
Law 104–237, 110 Stat. 3099; the
Methamphetamine Anti-Proliferation
Act of 2000 (MAPA), Public Law 106–
310, 114 Stat. 1227; the Combat
Methamphetamine Epidemic Act of
2005 (CMEA), Public Law 109–177, 120
Stat. 256; and the MEA.
The CMCA established monthly
reporting requirements applicable to
regulated persons who engage in
transactions with nonregulated persons
involving ephedrine, pseudoephedrine,
or phenylpropanolamine (including
drug products containing these
chemicals) and use or attempt to use the
Postal Service or any private or
commercial carrier. 21 U.S.C.
830(b)(3)(B). The DEA implemented the
monthly reporting requirement at 21
CFR 1310.03(c). The MAPA amended 21
U.S.C. 830(b)(3)(B) to require regulated
persons also to report mail-order export
transactions involving ephedrine,
pseudoephedrine, and
phenylpropanolamine.
The MAPA also established
exemptions from the mail-order
reporting requirements, including an
exemption relating to non-‘‘face-to-face’’
transactions. 21 U.S.C. 830(b)(3)(D)(ii).
That exemption stipulates that retail
distributors generally are not required to
report non-face-to-face sales of U.S.
Food and Drug Administrationapproved (FDA-approved) drug
products containing ephedrine,
pseudoephedrine, or
phenylpropanolamine to ultimate users
if the seller’s activities related to those
products are almost exclusively
confined to sales for personal use, both
in terms of number and volume of sales.
Id.; 21 U.S.C. 802(49). Subsequently, the
CMEA specified, however, that this
clause is not applicable to sales of
scheduled listed chemical products at
retail. 21 U.S.C. 830(b)(3)(D)(ii). The
DEA interprets this to mean that ‘‘retail
stores that deliver these products to
customers by mail or delivery services
will need to comply with the provisions
for mail order sales reporting for these
transaction[s].’’ 71 FR 56008, 56011,
Sept. 26, 2006.
Certain additional requirements apply
to mail-order distributors. For instance,
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13:57 Jan 22, 2016
Jkt 238001
under the CMEA, mail-order
distributors making retail sales of
scheduled listed chemical products
must confirm the purchaser’s identity
and may not sell more than 7.5 grams
of ephedrine base, pseudoephedrine
base, or phenylpropanolamine base in
scheduled listed chemical products per
customer during a 30-day period. 21
U.S.C. 830(e)(2)(A)–(B). Most recently,
the MEA added the requirement that
mail-order distributors self-certify in
order to sell scheduled listed chemical
products at retail, and makes it unlawful
for any person to negligently fail to selfcertify as required under section 830. 21
U.S.C. 830(e)(2)(C) and 842(a)(10).
Which locations are subject to the selfcertification requirement?
Section 2 of the MEA, codified at 21
U.S.C. 830(e)(2)(c), requires the
Attorney General to establish by
regulation ‘‘criteria for certifications of
mail-order distributors that are
consistent with the criteria established
for the certifications of regulated
sellers’’ under the CMEA. The CMEA
specifies that a separate certification is
required for each place of business at
which scheduled listed chemical
products are sold at retail. 21 U.S.C.
830(e)(1)(B)(ii)(II); 21 CFR 1314.40(c).
The DEA analyzed the plain language
and purpose of the statute to interpret
the meaning of ‘‘each place of business’’
where retail sales are made.3 As
described in the interim final rule, DEA
concludes that mail-order distributors
are required to certify at: (1) Every
location that prepares or packages
product for distribution to customers,
and (2) every location where employees
accept payment for such sales. This
interpretation is consistent with the
intent of the MEA to ensure that mailorder distributors of scheduled listed
chemical products are aware of their
recordkeeping, reporting, customer
identification, and sales limit
requirements.
Regulatory Analyses
Executive Order 12866 (Regulatory
Planning and Review)
This regulation has been drafted and
reviewed in accordance with Executive
Order 12866, ‘‘Regulatory Planning and
Review,’’ section 1(b), Principles of
Regulation. It has been determined that
this is not ‘‘a significant regulatory
action.’’ As discussed above, and in the
3 The DEA notes that this statutory language is
materially different than the language requiring
entities that manufacture, distribute, or dispense
controlled substances or list I chemicals to register
at ‘‘each principal place of business or professional
practice.’’ 21 U.S.C. 822(e). The intent and rationale
for the two requirements are different, as well.
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interim final rule, this action is
codifying statutory provisions and
involves no agency discretion as to
regulatory alternatives. As analyzed in
the interim final rule at 76 FR 20158,
the DEA has determined that the MEA’s
requirements will not impose an annual
cost on the economy of $100 million or
more, the standard for an economically
significant rule under Executive Order
12866. The DEA received no public
comments with respect to the interim
final rule.
Paperwork Reduction Act of 1995
To address the new mandates of the
MEA, the DEA has revised its existing
information collection ‘‘SelfCertification, Training and Logbooks for
Regulated Sellers and Mail-Order
Distributors of Scheduled Listed
Chemical Products,’’ Information
Collection 1117–0046. The MEA
requires mail-order distributors to train
any employee who will be involved in
selling scheduled listed chemical
products and to document the training.
Mail-order distributors must also selfcertify to the DEA that all affected
employees have been trained and that
the mail-order distributor is in
compliance with all provisions of the
CMEA. No comments were received by
the DEA regarding the information
collection.
Regulatory Flexibility Analysis
The Deputy Assistant Administrator,
in accordance with the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601–
612), has reviewed this regulation and
by approving it certifies that this
regulation will not have a significant
economic impact on a substantial
number of small entities. As noted in
the interim final rule, the RFA applies
to rules that are subject to notice and
comment. The DEA determined, as
explained in the interim final rule, that
public notice and comment were
impracticable and contrary to the public
interest. Consequently, the RFA does
not apply.
Although the RFA does not apply to
this rulemaking, the DEA has reviewed
the potential impacts in the interim
final rule, in which the DEA certified
that the rule will not have a significant
economic impact on small entities. As
published in the interim final rule,
based on reports filed, DEA expects that
the rule will affect only 9 firms, two of
which are not small based on the Small
Business Administration’s size
standards. For the seven small firms, the
only costs are the $21 annual fee, the
time required to complete the
certification (0.5 hours or about $20 for
a new self-certification application), and
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Federal Register / Vol. 81, No. 15 / Monday, January 25, 2016 / Rules and Regulations
cost of training (0.5 hours or about $10).
The cost of compliance for these firms,
which appear to have between 5 and 25
employees, not all of whom would need
to be trained, is less than $200 and in
most cases, less than $100. The smallest
mail order pharmacies (those with fewer
than five employees) have average
annual sales of $1 million. The cost of
compliance is, therefore, less than 0.1
percent of sales and would not impose
a significant economic burden on any
small entity.
The DEA received no public
comments with respect to the interim
final rule and the DEA has not received
any other information that would
materially change the impact of this rule
on small entities. Therefore, the DEA
concludes this rulemaking will not have
a significant economic impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not impose unfunded
mandates as defined by the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4, 109 Stat. 48). This rule will not
result in the expenditure by State, local
and tribal governments, in the aggregate,
or by the private sector, of $100 million
or more in any one year, and it 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.
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E.O. 12988 (Civil Justice Reform)
This regulation meets the applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988 Civil
Justice Reform.
Executive Order 13132 (Federalism)
This rulemaking has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132, and the DEA has determined that
this action does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement. This rulemaking does
not impose enforcement responsibilities
on any State; nor does it diminish the
power of any State to enforce its own
laws. The requirements of this rule are
mandated under the MEA, and the DEA
has no authority to alter them or change
the preemption. Accordingly, this
rulemaking does not have federalism
implications warranting the application
of Executive Order 13132.
Executive Order 13175 (Tribal
Consultation)
The DEA has analyzed this action
under Executive Order 13175 and this
rule will not have substantial direct
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13:57 Jan 22, 2016
Jkt 238001
effects on one or more Indian tribes; will
not impose substantial direct
compliance costs on Indian tribal
governments; and will not preempt
tribal law. Therefore, a tribal summary
impact statement is not required.
Congressional Review Act
This rule is not a major rule as
defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Congressional
Review Act). This rule will not result in
an annual effect on the economy of $100
million or more. It will not cause a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of the United States-based
companies to compete with foreignbased companies in domestic and
export markets.
List of Subjects in 21 CFR Part 1314
Drug traffic control, Reporting and
recordkeeping requirements.
Accordingly, the interim final rule
amending 21 CFR part 1314 which was
published at 76 FR 20518 on April 13,
2011, is adopted as a final rule without
change.
Dated: January 19, 2016.
Louis J. Milione,
Deputy Assistant Administrator, Office of
Diversion Control.
[FR Doc. 2016–01377 Filed 1–22–16; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 252
[Docket ID: DOD–2012–OS–0170]
RIN 0790–AI98
Professional U.S. Scouting
Organization Operations at U.S.
Military Installations Overseas
Under Secretary of Defense for
Personnel and Readiness, DoD.
ACTION: Final rule.
AGENCY:
This rule updates policy and
outlines fiscal and logistical support the
DoD may provide to qualified scouting
organizations operating on U.S. military
installations overseas based on
Executive Order 12715, Support of
Overseas Scouting Activities for
Military Dependents, and pertinent
statutes as discussed below. It is DoD
policy to cooperate with and assist
qualified scouting organizations in
establishing and providing facilities and
SUMMARY:
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3959
services, within available resources, at
locations outside the United States to
support DoD personnel and their
families.
This rule is effective February
24, 2016.
FOR FURTHER INFORMATION CONTACT: Mr.
Chris Wright, 703–588–0172.
SUPPLEMENTARY INFORMATION: The
Department of Defense published a
proposed rule on November 24, 2014
(79 FR 69777–69781), with a request for
public comments. The 60-day public
comment period ended on January 23,
2015. One public comment was
received. This comment is addressed as
follows:
Comment: It is my opinion that this
unchecked support of the scouting
organizations violates the Establishment
Clause of Amendment I to the United
States Constitution. The Boy Scouts
have acted as a religious organization by
using religion as a reason to exclude gay
scout leaders. Providing facilities and
equipment free of charge effectively
supports this effort and therefore
violates the Establishment Clause. I
wholeheartedly do not support this rule
change.
Response: During litigation, the
Department of Defense (DoD), along
with the Department of Justice, has
consistently defended the legality of the
statutorily authorized support to the
Boy Scouts of America (BSA) and other
organizations. In briefs, the Government
has argued that: (1) The BSA is a civic
organization, which focuses on
citizenship training, community service
and outdoor activities and physical
fitness; (2) DoD support to the BSA has
advanced several compelling military
purposes; and (3) DoD support to the
BSA does not result in Government
indoctrination or endorsement of
religion.
DATES:
Executive Summary
I. Purpose of the Regulatory Action
This rule provides that support
provided by DoD is documented in
written agreements and signed by the
appropriate regional combatant
commander. Also, it would require
installation-specific support and
services to be based on a written
agreement and signed by the installation
commander or designee. These
agreements will replace the need for
these organizations to submit individual
articles of incorporation, written
constitutions, charters, or articles of
agreement to gain approval from the
installation commander to operate on
the installation. In addition to Executive
Order 12715, Title 10 of the United
E:\FR\FM\25JAR1.SGM
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Agencies
[Federal Register Volume 81, Number 15 (Monday, January 25, 2016)]
[Rules and Regulations]
[Pages 3957-3959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01377]
[[Page 3957]]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1314
[Docket No. DEA-347]
RIN 1117-AB30
Self-Certification and Employee Training of Mail-Order
Distributors of Scheduled Listed Chemical Products
AGENCY: Drug Enforcement Administration, Department of Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document finalizes the Drug Enforcement Administration's
rule implementing the requirements of the Combat Methamphetamine
Enhancement Act of 2010 establishing self-certification and training
requirements for mail-order distributors of scheduled listed chemical
products. This action finalizes without change the interim final rule
with request for comment published on April 13, 2011.
DATES: This rule takes effect January 25, 2016.
FOR FURTHER INFORMATION CONTACT: Barbara J. Boockholdt, Office of
Diversion Control, Drug Enforcement Administration, 8701 Morrissette
Drive, Springfield, Virginia 22512; Telephone: (202) 598-6812.
SUPPLEMENTARY INFORMATION:
Legal Authority
The Drug Enforcement Administration (DEA) implements and enforces
titles II and III of the Comprehensive Drug Abuse Prevention and
Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III
are referred to as the ``Controlled Substances Act'' and the
``Controlled Substances Import and Export Act,'' respectively, but they
are collectively referred to as the ``Controlled Substances Act'' or
the ``CSA'' for the purposes of this action. The DEA publishes the
implementing regulations for these statutes in title 21 of the Code of
Federal Regulations (CFR), parts 1300 to 1321. The CSA and its
implementing regulations are designed to prevent, detect, and eliminate
the diversion of controlled substances and listed chemicals into the
illicit market while providing for the legitimate medical, scientific,
research, and industrial needs of the United States.
The CSA grants the Attorney General authority to promulgate rules
and regulations relating to the registration and control of the
manufacture, distribution, and dispensing of controlled substances and
listed chemicals, 21 U.S.C. 821, and the efficient execution of his
statutory functions. 21 U.S.C. 871(b). The Attorney General has
delegated this authority to the Administrator of the DEA, 28 CFR
0.100(b), who in turn has redelegated certain authorities to the Deputy
Assistant Administrator of the DEA Office of Diversion Control
(``Deputy Assistant Administrator''), 28 CFR part 0, appendix to
subpart R.
By this document, the DEA finalizes the interim final rule, ``Self-
Certification and Employee Training of Mail-Order Distributors of
Scheduled Listed Chemical Products'' published on April 13, 2011, at 76
FR 20518. This rule became effective on April 13, 2011. The interim
final rule solicited public comments for which the comment period
closed on June 13, 2011. No comments were received in response to the
publication. No changes are being made to the rule.
Background
The preamble to the interim final rule explained that section 2 of
the Combat Methamphetamine Enhancement Act of 2010 (MEA) (Pub. L. 111-
268, 124 Stat. 2847) amended 21 U.S.C. 830(e)(2) to establish new
requirements for mail-order distributors to self-certify with the DEA
in order to sell scheduled listed chemical products at retail. Sales
``at retail'' are those intended for personal use. 21 U.S.C. 802(48);
21 CFR 1300.02(b). As Congress directed in the MEA, the DEA has
established through this rule criteria for certifications of mail-order
distributors consistent with the criteria previously established for
certifications of other regulated sellers.\1\ The self-certification
must include a statement that the mail-order distributor understands
the requirements applicable under 21 CFR part 1314 and agrees to comply
with those requirements. Prior to certification, mail-order
distributors of scheduled listed chemical products are required to
provide the DEA-developed training (available at the DEA's Web site) to
their employees.
---------------------------------------------------------------------------
\1\ The DEA initially established criteria for certifications
for regulated sellers pursuant to the Combat Methamphetamine
Epidemic Act of 2005 (CMEA), Public Law 109-177, 120 Stat. 256. The
DEA implemented the retail sales provisions of the CMEA through
Interim Final Rule, ``Retail Sales of Scheduled Listed Chemical
Products; Self-Certification of Regulated Sellers of Scheduled
Listed Chemical Products,'' published Sept. 26, 2006 at 71 FR 56008;
corrected at 71 FR 60609, Oct. 13, 2006.
---------------------------------------------------------------------------
The MEA is the most recent in a series of legislative actions aimed
at preventing illicit drug manufacturers' access to methamphetamine
precursor chemicals and enhancing penalties for methamphetamine
production and trafficking. Methamphetamine is a highly addictive
stimulant drug in schedule II of the CSA. As recognized through the
acts of Congress, the clandestine manufacture and distribution of
methamphetamine have been and continue to be serious national public
health problems.\2\
---------------------------------------------------------------------------
\2\ E.g., H.R.Rep. No. 109-299, pt. 2 (2005); For a summary of
effects of methamphetamine abuse and addiction see NIDA InfoFacts:
Methamphetamine (available at https://www.drugabuse.gov/publications/drugfacts/methamphetamine).
---------------------------------------------------------------------------
Who are ``mail-order distributors'' subject to the training and self-
certification requirements?
The MEA refers to ``mail-order distributors'' but does not define
the term. As stated in the interim final rule, the idea of mail-order
distributor is developed in 21 CFR part 1314, which discusses regulated
persons who make a sale at retail of a scheduled listed chemical
product and are required under Sec. 1310.03(c) to submit a report of
the sales transaction to the Administration. 21 CFR 1314.100(a). The
CSA and its implementing regulations impose recordkeeping and reporting
requirements on regulated persons who engage in transactions with a
nonregulated person or who engage in an export transaction involving
ephedrine, pseudoephedrine, phenylpropanolamine, or gamma-
hydroxybutyric acid, including drug products containing these
chemicals, and who use or attempt to use the Postal Service or any
private or commercial carrier. 21 CFR 1310.03(c). Of those subject to
the recordkeeping and reporting requirements, only those distributors
who engage in mail-order sales at retail of scheduled listed chemical
products are subject to the training and self-certification
requirements. 21 CFR 1314.101 and 1314.102. A ``mail-order sale,'' for
purposes of part 1314, is defined by DEA regulations as a retail sale
of scheduled listed chemical products for personal use where a
regulated person uses or attempts to use the U.S. Postal Service or any
private or commercial carrier to deliver the product to the customer.
21 CFR 1314.03. Mail-order sales include purchase orders submitted by
phone, mail, fax, Internet, or any method other than a face-to-face
transaction. Id. The terms ``regulated person,'' ``scheduled listed
chemical product,'' and ``at retail'' are defined in 21 U.S.C. 802.
The DEA is taking this opportunity in publishing this final rule to
provide in this supplementary information a clearer discussion of the
development of
[[Page 3958]]
the statutory and regulatory requirements relating to ``mail-order
distributors'' than was included in the preamble of the interim final
rule. Before 1996 persons now labeled as ``mail-order distributors''
were not subject to specific regulation as a distinct group. Beginning
in 1996, Congress has imposed a number of requirements on these
distributors, specifically, in such laws as the Comprehensive
Methamphetamine Control Act of 1996 (CMCA), Public Law 104-237, 110
Stat. 3099; the Methamphetamine Anti-Proliferation Act of 2000 (MAPA),
Public Law 106-310, 114 Stat. 1227; the Combat Methamphetamine Epidemic
Act of 2005 (CMEA), Public Law 109-177, 120 Stat. 256; and the MEA.
The CMCA established monthly reporting requirements applicable to
regulated persons who engage in transactions with nonregulated persons
involving ephedrine, pseudoephedrine, or phenylpropanolamine (including
drug products containing these chemicals) and use or attempt to use the
Postal Service or any private or commercial carrier. 21 U.S.C.
830(b)(3)(B). The DEA implemented the monthly reporting requirement at
21 CFR 1310.03(c). The MAPA amended 21 U.S.C. 830(b)(3)(B) to require
regulated persons also to report mail-order export transactions
involving ephedrine, pseudoephedrine, and phenylpropanolamine.
The MAPA also established exemptions from the mail-order reporting
requirements, including an exemption relating to non-``face-to-face''
transactions. 21 U.S.C. 830(b)(3)(D)(ii). That exemption stipulates
that retail distributors generally are not required to report non-face-
to-face sales of U.S. Food and Drug Administration-approved (FDA-
approved) drug products containing ephedrine, pseudoephedrine, or
phenylpropanolamine to ultimate users if the seller's activities
related to those products are almost exclusively confined to sales for
personal use, both in terms of number and volume of sales. Id.; 21
U.S.C. 802(49). Subsequently, the CMEA specified, however, that this
clause is not applicable to sales of scheduled listed chemical products
at retail. 21 U.S.C. 830(b)(3)(D)(ii). The DEA interprets this to mean
that ``retail stores that deliver these products to customers by mail
or delivery services will need to comply with the provisions for mail
order sales reporting for these transaction[s].'' 71 FR 56008, 56011,
Sept. 26, 2006.
Certain additional requirements apply to mail-order distributors.
For instance, under the CMEA, mail-order distributors making retail
sales of scheduled listed chemical products must confirm the
purchaser's identity and may not sell more than 7.5 grams of ephedrine
base, pseudoephedrine base, or phenylpropanolamine base in scheduled
listed chemical products per customer during a 30-day period. 21 U.S.C.
830(e)(2)(A)-(B). Most recently, the MEA added the requirement that
mail-order distributors self-certify in order to sell scheduled listed
chemical products at retail, and makes it unlawful for any person to
negligently fail to self-certify as required under section 830. 21
U.S.C. 830(e)(2)(C) and 842(a)(10).
Which locations are subject to the self-certification requirement?
Section 2 of the MEA, codified at 21 U.S.C. 830(e)(2)(c), requires
the Attorney General to establish by regulation ``criteria for
certifications of mail-order distributors that are consistent with the
criteria established for the certifications of regulated sellers''
under the CMEA. The CMEA specifies that a separate certification is
required for each place of business at which scheduled listed chemical
products are sold at retail. 21 U.S.C. 830(e)(1)(B)(ii)(II); 21 CFR
1314.40(c). The DEA analyzed the plain language and purpose of the
statute to interpret the meaning of ``each place of business'' where
retail sales are made.\3\ As described in the interim final rule, DEA
concludes that mail-order distributors are required to certify at: (1)
Every location that prepares or packages product for distribution to
customers, and (2) every location where employees accept payment for
such sales. This interpretation is consistent with the intent of the
MEA to ensure that mail-order distributors of scheduled listed chemical
products are aware of their recordkeeping, reporting, customer
identification, and sales limit requirements.
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\3\ The DEA notes that this statutory language is materially
different than the language requiring entities that manufacture,
distribute, or dispense controlled substances or list I chemicals to
register at ``each principal place of business or professional
practice.'' 21 U.S.C. 822(e). The intent and rationale for the two
requirements are different, as well.
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Regulatory Analyses
Executive Order 12866 (Regulatory Planning and Review)
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation. It has been determined that this is not
``a significant regulatory action.'' As discussed above, and in the
interim final rule, this action is codifying statutory provisions and
involves no agency discretion as to regulatory alternatives. As
analyzed in the interim final rule at 76 FR 20158, the DEA has
determined that the MEA's requirements will not impose an annual cost
on the economy of $100 million or more, the standard for an
economically significant rule under Executive Order 12866. The DEA
received no public comments with respect to the interim final rule.
Paperwork Reduction Act of 1995
To address the new mandates of the MEA, the DEA has revised its
existing information collection ``Self-Certification, Training and
Logbooks for Regulated Sellers and Mail-Order Distributors of Scheduled
Listed Chemical Products,'' Information Collection 1117-0046. The MEA
requires mail-order distributors to train any employee who will be
involved in selling scheduled listed chemical products and to document
the training. Mail-order distributors must also self-certify to the DEA
that all affected employees have been trained and that the mail-order
distributor is in compliance with all provisions of the CMEA. No
comments were received by the DEA regarding the information collection.
Regulatory Flexibility Analysis
The Deputy Assistant Administrator, in accordance with the
Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), has reviewed this
regulation and by approving it certifies that this regulation will not
have a significant economic impact on a substantial number of small
entities. As noted in the interim final rule, the RFA applies to rules
that are subject to notice and comment. The DEA determined, as
explained in the interim final rule, that public notice and comment
were impracticable and contrary to the public interest. Consequently,
the RFA does not apply.
Although the RFA does not apply to this rulemaking, the DEA has
reviewed the potential impacts in the interim final rule, in which the
DEA certified that the rule will not have a significant economic impact
on small entities. As published in the interim final rule, based on
reports filed, DEA expects that the rule will affect only 9 firms, two
of which are not small based on the Small Business Administration's
size standards. For the seven small firms, the only costs are the $21
annual fee, the time required to complete the certification (0.5 hours
or about $20 for a new self-certification application), and
[[Page 3959]]
cost of training (0.5 hours or about $10). The cost of compliance for
these firms, which appear to have between 5 and 25 employees, not all
of whom would need to be trained, is less than $200 and in most cases,
less than $100. The smallest mail order pharmacies (those with fewer
than five employees) have average annual sales of $1 million. The cost
of compliance is, therefore, less than 0.1 percent of sales and would
not impose a significant economic burden on any small entity.
The DEA received no public comments with respect to the interim
final rule and the DEA has not received any other information that
would materially change the impact of this rule on small entities.
Therefore, the DEA concludes this rulemaking will not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not impose unfunded mandates as defined by the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48).
This rule will not result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it 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.
E.O. 12988 (Civil Justice Reform)
This regulation meets the applicable standards set forth in section
3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.
Executive Order 13132 (Federalism)
This rulemaking has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132, and the DEA has
determined that this action does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement. This rulemaking does not impose enforcement responsibilities
on any State; nor does it diminish the power of any State to enforce
its own laws. The requirements of this rule are mandated under the MEA,
and the DEA has no authority to alter them or change the preemption.
Accordingly, this rulemaking does not have federalism implications
warranting the application of Executive Order 13132.
Executive Order 13175 (Tribal Consultation)
The DEA has analyzed this action under Executive Order 13175 and
this rule will not have substantial direct effects on one or more
Indian tribes; will not impose substantial direct compliance costs on
Indian tribal governments; and will not preempt tribal law. Therefore,
a tribal summary impact statement is not required.
Congressional Review Act
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act). This rule will not result in an annual
effect on the economy of $100 million or more. It will not cause a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of the United States-based companies to compete with
foreign-based companies in domestic and export markets.
List of Subjects in 21 CFR Part 1314
Drug traffic control, Reporting and recordkeeping requirements.
Accordingly, the interim final rule amending 21 CFR part 1314 which
was published at 76 FR 20518 on April 13, 2011, is adopted as a final
rule without change.
Dated: January 19, 2016.
Louis J. Milione,
Deputy Assistant Administrator, Office of Diversion Control.
[FR Doc. 2016-01377 Filed 1-22-16; 8:45 am]
BILLING CODE 4410-09-P