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[House Report 111-615]
[From the U.S. Government Publishing Office]


111th Congress                                            Rept. 111-615
  2d Session                 HOUSE OF REPRESENTATIVES            Part 1
=======================================================================
 
             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\
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\P.L. No: 109-177.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\http://www.justice.gov/dea/pubs/cngrtest/ct091807.html
---------------------------------------------------------------------------
    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).

           *       *       *       *       *       *       *