[House Report 111-615]
[From the U.S. Government Publishing Office]
111th Congress Rept. 111-615
2d Session HOUSE OF REPRESENTATIVES Part 1
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COMBAT METHAMPHETAMINE ENHANCEMENT ACT OF 2009
_______
September 22, 2010.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Waxman, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 2923]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 2923) to enhance the ability to combat
methamphetamine, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for Legislation.............................. 2
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings and Recommendations................. 3
New Budget Authority, Entitlement Authority, and Tax Expenditures 3
Statement of General Performance Goals and Objectives............ 3
Constitutional Authority Statement............................... 4
Earmarks and Tax and Tariff Benefits............................. 4
Federal Advisory Committee Statement............................. 4
Applicability of Law to Legislative Branch....................... 4
Federal Mandates Statement....................................... 4
Committee Cost Estimate.......................................... 4
Congressional Budget Office Cost Estimate........................ 4
Section-by-Section Analysis of the Legislation................... 6
Changes in Existing Law Made by the Bill, as Reported............ 6
Purpose and Summary
H.R. 2923, the ``Combat Methamphetamine Enhancement Act of
2009'', was introduced by Reps. Bart Gordon (D-TN) and James
Sensenbrenner (R-WI) on June 17, 2009, and was referred to the
Committee on Energy and Commerce. In addition, the bill was
also referred to the House Committee on the Judiciary.
The goal of H.R. 2923 is to increase the compliance of
retailers and distributors of pseudoephedrine and ephedrine
products (which are precursor chemicals for the production of
methamphetamine) with the 2006 Combat Methamphetamine Epidemic
Act.
To achieve this goal, H.R. 2923 includes the following
provisions:
Clarifies that all persons engaged in retail sales
of pseudoephedrine or ephedrine products, including by mail
order, must self-certify that they have trained their personnel
and agree to comply with the Combat Methamphetamine Epidemic
Act.
Requires distributors of these products to sell
only to retailers who are registered with the Drug Enforcement
Agency (DEA).
Requires the DEA to provide a downloadable
database of all retailers which have filed self-certifications
on their website so that distributors can check their customers
against this database to ensure compliance.
Clarifies that a retailer which negligently fails
to file self-certifications as required can face civil fines.
Background and Need for Legislation
Methamphetamine is a highly addictive illegal drug with
widespread use across the country, including among children as
young as 12 years of age.\1\ According to the National
Institute on Drug Abuse at the National Institutes of Health,
chronic methamphetamine users often face severe structural and
functional brain damage in addition to other health effects,
including increased heart rate, extreme weight loss, severe
dental problems, and violent behavior.\2\ According to a 2008
study of a National Survey on Drug Use and Health, the
Department of Health and Human Services found that 314,000
people used methamphetamine in one 30-day period of the
survey.\3\
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\1\National Institute on Drug Abuse, Drugs of Abuse Information
(online at: http://www.drugabuse.gov/DrugPages/Methamphetamine.html).
\2\National Institute on Drug Abuse, ``NIDA InfoFacts:
Methamphetamine'' (online at: http://drugabuse.gov/infofacts/
methamphetamine.html).
\3\U.S. Department of Health and Human Services, Substance Abuse
and Mental Health Services Administration, Office of Applied Studies,
Results from the 2008 National Survey on Drug Use and Health: National
Findings, September 2009. http://www.oas.samhsa.gov/nsduh/2k8nsduh/
2k8results.cfm#fig5-6
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Commonly used cold medications, such as Sudafed, contain
ingredients known as pseudoephedrine or ephedrine that can be
used to make methamphetamine. In 2006, Congress passed sweeping
legislation, known as the ``Combat Methamphetamine Epidemic
Act'', which required that the sale of cold medicines
containing these ingredients occur only from behind the counter
or from a locked cabinet.\4\ The 2006 legislation limits the
daily and monthly amount any individual can purchase, requires
individuals to present photo identification in order to
purchase such medications, and requires stores to keep personal
information about these customers for at least two years after
the purchase of these medicines.
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\4\P.L. No: 109-177.
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In the years following the enactment of the 2006 law, DEA
officials have found that thousands of retail establishments
are not complying with the law, and that no penalty exists to
prevent distributors from selling the medications to these
retailers.\5\
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\5\http://www.justice.gov/dea/pubs/cngrtest/ct091807.html
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The production, use, and availability of methamphetamine is
an ongoing issue across the United States. The 2006 law was an
important step in regulating the sale of these precursor
chemicals. By increasing DEA's ability to enforce the 2006 law,
H.R. 2923 will further help to address the methamphetamine
epidemic by limiting the distribution and sale of products used
to produce methamphetamine.
Committee Consideration
H.R. 2923 was referred to the Subcommittee on Health on
June 18, 2009. The Subcommittee met in open markup session to
consider H.R. 2923 on July 22, 2010. Following consideration,
the Subcommittee forwarded H.R. 2923 favorably to the full
Committee, without amendment, by a voice vote.
On July 28, 2010, the full Committee met in open markup
session to consider H.R. 2923. The Committee ordered H.R. 2923
favorably reported to the House, without amendment, by a voice
vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list each record vote
on the motion to report legislation and amendments thereto. A
motion by Mr. Waxman ordering H.R. 2923 reported to the House,
without amendment, was approved by a voice vote. There were no
record votes taken during consideration of this bill.
Committee Oversight Findings and Recommendations
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the oversight findings and recommendations of the Committee are
reflected in the descriptive portions of this report, including
the finding that the Drug Enforcement Administration needs
additional statutory tools to limit the distribution and sale
of products used to produce methamphetamine.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Regarding compliance with clause 3(c)(2) of rule XIII of
the Rules of the House of Representatives, the Committee adopts
as its own the analysis of H.R. 2923 prepared by the Director
of the Congressional Budget Office.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the performance goals and
objectives of the Committee are reflected in the descriptive
portions of this report, including the goal to provide
additional means for the Drug Enforcement Administration to
limit the distribution and sale of products used to produce
methamphetamine.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
constitutional authority for H.R. 2923 is provided under
Article I, section 8, clauses 3 and 18 of the Constitution of
the United States.
Earmarks and Tax and Tariff Benefits
H.R. 2923 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e), or 9(f) of rule XXI of the Rules of the
House of Representatives.
Federal Advisory Committee Statement
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., section 5(b) of the Federal
Advisory Committee Act.
Applicability of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to terms and conditions of
employment or access to public services and accommodations.
H.R. 2923 contains no such provisions.
Federal Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act of 1974 (as amended by section 101(a)(2) of the
Unfunded Mandates Reform Act, P.L. 104-4) requires a statement
on whether the provisions of the report include unfunded
mandates. In compliance with this requirement the Committee
adopts as its own the estimates of federal mandates prepared by
the Director of the Congressional Budget Office.
Committee Cost Estimate
Pursuant to clause 3(d)(2) of rule XIII of the Rules of the
House of Representatives, the Committee adopts as its own the
cost estimate of H.R. 2923 prepared by the Director of the
Congressional Budget Office pursuant to section 402 of the
Congressional Budget Act of 1974.
Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for H.R. 2923 from the
Director of Congressional Budget Office:
August 4, 2010.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2923, the Combat
Methamphetamine Enhancement Act of 2009.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2923--Combat Methamphetamine Enhancement Act of 2009
H.R. 2923 would require retail businesses that sell certain
pharmaceuticals through the mail to submit a self-certification
document to the Drug Enforcement Administration (DEA). The bill
also would prohibit distributors of certain pharmaceuticals
from selling products to persons who have not registered or
self-certified with DEA. Based on information from the DEA, CBO
estimates that implementing the bill would have no significant
cost to the federal government.
Violators of the bill's provisions would be subject to
civil and criminal fines. Civil fines are recorded as revenues
and deposited in the U.S. Treasury. Criminal fines are recorded
as revenues, then deposited in the Crime Victims Fund, and
later spent. Because, enacting H.R. 2923 could increase
revenues and direct spending, pay-as-you-go procedures apply.
However, CBO estimates that any net budget impact would not be
significant in any year.
H.R. 2923 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
H.R. 2923 would impose private-sector mandates, as defined
in UMRA, on distributors and retailers of certain
pharmaceuticals. Distributors and retailers who sell such
products by mail would be required to submit self-certification
documents, including a statement acknowledging that they
understand the law and will comply with the legal guidelines
associated with the sale of those drugs. The bill also would
prohibit anyone from supplying those products to a retailer
unless the retailer has completed either the necessary self-
certification or has otherwise registered with the DEA. Because
the current self-certification list is available online and
based on information from the DEA about compliance costs for
that program, CBO estimates that the cost to the private sector
would be small and well below the annual threshold established
in UMRA ($141 million for private-sector mandates in 2010,
adjusted annually for inflation).
On March 25, 2009, CBO transmitted a cost estimate for S.
256, the Combat Methamphetamine Enhancement Act of 2009, as
ordered reported by the Senate Committee on the Judiciary on
March 5, 2009. The two pieces of legislation are identical, as
are the cost estimates.
The CBO staff contacts for this estimate are Mark Grabowicz
(for federal costs) and Marin Randall (for the private-sector
impact). The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 designates the short title of the Act as the
``Combat Methamphetamine Enhancement Act of 2009''.
Section 2. Requirement of self-certification by all regulated persons
selling scheduled listed chemicals
Section 2 amends the Controlled Substances Act to clarify
that all regulated persons engaged in retail sales of ephedrine
or pseudoephedrine products, including by mail order, must
self-certify to the Attorney General that they have trained
their personnel and agree to comply with requirements governing
the sale of these products under the Controlled Substances Act.
Section 3. Publication of self-certified regulated sellers and
regulated persons lists
Section 3 requires the Attorney General to develop and make
available a list of all self-certified individuals and make
such list publicly available on the website of the Drug
Enforcement Administration.
Section 4. Requirement that distributors of listed chemicals sell only
to self-certified regulated sellers and regulated persons
Section 4 prohibits distributors of listed chemical
products from selling such products to individuals not
currently registered with the Drug Enforcement Administration.
Section 5. Negligent failure to self-certify as required
Section 5 imposes civil penalties for the negligent failure
to self-certify as required by the Controlled Substances Act.
Section 6. Effective date and regulations
Section 6 establishes the effective date of the legislation
as 180 days after the date of enactment of the Combat
Methamphetamine Enhancement Act of 2009. Section 6 also
specifies that, in promulgating regulations authorized by
section 2 of the Act, the Attorney General may issue interim
regulations to ensure its implementation by the effective date.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
CONTROLLED SUBSTANCES ACT
* * * * * * *
TITLE II--CONTROL AND ENFORCEMENT
* * * * * * *
Part C--Registration of Manufacturers, Distributors, and Dispensers of
Controlled Substances; Piperidine Reporting
* * * * * * *
REGULATION OF LISTED CHEMICALS AND CERTAIN MACHINES
Sec. 310. (a) * * *
* * * * * * *
(e) Scheduled Listed Chemicals; Behind-the-Counter Access;
Logbook Requirement; Training of Sales Personnel; Privacy
Protections.--
(1) Requirements regarding retail transactions.--
(A) * * *
(B) Additional provisions regarding
certifications and training.--
(i) * * *
* * * * * * *
(v) Publication of list of self-
certified persons.--The Attorney
General shall develop and make
available a list of all persons who are
currently self-certified in accordance
with this section. This list shall be
made publicly available on the website
of the Drug Enforcement Administration
in an electronically downloadable
format.
* * * * * * *
(2) Mail-order reporting; verification of identity of
purchaser; 30-day restriction on quantities for
individual purchasers.--Each regulated person who makes
a sale at retail of a scheduled listed chemical product
and is required under subsection (b)(3) to submit a
report of the sales transaction to the Attorney General
is subject to the following:
(A) * * *
* * * * * * *
(C) Each regulated person who makes a sale at
retail of a scheduled listed chemical product
and is required under subsection (b)(3) to
submit a report of the sales transaction to the
Attorney General may not sell any scheduled
listed chemical product at retail unless such
regulated person has submitted to the Attorney
General a self-certification including a
statement that the seller understands each of
the requirements that apply under this
paragraph and under subsection (d) and agrees
to comply with the requirements. The Attorney
General shall by regulation establish criteria
for certifications of mail-order distributors
that are consistent with the criteria
established for the certifications of regulated
sellers under paragraph (1)(B).
* * * * * * *
Part D--Offenses and Penalties
* * * * * * *
PROHIBITED ACTS B--PENALTIES
Sec. 402. (a) It shall be unlawful for any person--
(1) * * *
* * * * * * *
(13) who is a regulated seller to knowingly or
recklessly sell at retail a scheduled listed chemical
product in violation of subsection (e) of such section;
[or]
(14) who is a regulated seller or an employee or
agent of such seller to disclose, in violation of
regulations under subparagraph (C) of section
310(e)(1), information in logbooks under subparagraph
(A)(iii) of such section, or to refuse to provide such
a logbook to Federal, State, or local law enforcement
authorities[.]; or
(15) to distribute a scheduled listed chemical
product to a regulated seller, or to a regulated person
referred to in section 310(b)(3)(B), unless such
regulated seller or regulated person is, at the time of
such distribution, currently registered with the Drug
Enforcement Administration, or on the list of persons
referred to under section 310(e)(1)(B)(v).
As used in paragraph (11), the term ``laboratory supply'' means
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 manufacture of controlled substances and listed
chemicals. For purposes of paragraph (11), there is a
rebuttable presumption of reckless disregard at trial if the
Attorney General notifies a firm in writing that a laboratory
supply sold by the firm, or any other person or firm, has been
used by a customer of the notified firm, or distributed further
by that customer, for the unlawful production of controlled
substances or listed chemicals a firm distributes and 2 weeks
or more after the notification the notified firm distributes a
laboratory supply to the customer. For purposes of paragraph
(15), if the distributor is temporarily unable to access the
list of persons referred to under section 310(e)(1)(B)(v), the
distributor may rely on a written, faxed, or electronic copy of
a certificate of self-certification submitted by the regulated
seller or regulated person, provided the distributor confirms
within 7 business days of the distribution that such regulated
seller or regulated person is on the list referred to under
section 310(e)(1)(B)(v).
* * * * * * *