DEA Congressional Testimony

Statement by:
Harold D. Wankel
Chief of Operations
Drug Enforcement Administration
United States Department of Justice

Before the:
House Judiciary Committee
Subcommittee on Crime

Regarding:
The Comprehensive Methamphetamine Control Act of 1996, H.R. 3852

Location:
Rayburn House Office Building
Room 2226
Washington, D.C.

Date:
September 5, 1996

Note: This document may not reflect changes made in actual delivery.

Chairman McCollum and Members of the Subcommittee, thank you for this opportunity to testify on "The Comprehensive Methamphetamine Control Act of 1996" H.R. 3852. Before I discuss the bill directly, I believe that it is important to highlight the severity of the methamphetamine abuse problem in the United States and the importance of current efforts to control this problem.

The Methamphetamine Problem

Methamphetamine, which DEA regulates as a Schedule II controlled substance, is the most prevalent controlled substance clandestinely manufactured in the United States. Between January l, 1994, and July 31, 1996, the Drug Enforcement Administration (DEA) had been involved in the domestic seizure of 1,015 methamphetamine laboratories. From January to June of this year, we have seized 365 clandestine laboratories, almost all of them used to produce methamphetamine. Ephedrine importation has risen 20% per year for the last two years. State law enforcement agencies have seized hundreds more labs. The chemicals ephedrine and/or pseudoephedrine were used as the precursor material at the vast majority of these laboratories. Increasingly, we are seeing pseudoephedrine more and more frequently at lab sites.

The clandestine manufacture and distribution of methamphetamine are serious national public health problems which require federal action. Nationally, over 700 methamphetamine-related deaths were documented in the United States in 1994. But this is only an indicator of an abuse problem involving hundreds of thousands of Americans with the concomitant mental and physical injury loss of opportunity and disruption of families. In addition, there is substantial evidence that the abuse of methamphetamine is associated with violent behavior and criminal activity.

Despite considerable efforts by U.S. law enforcement, the illicit production, distribution and abuse of methamphetamine continues to grow at an alarming rate. As noted in the President's National Methamphetamine Strategy, which was unveiled in April of 1996, methamphetamine deaths in four U.S. cities were up 176% in three years. Data from medical examiners reporting to the Drug Abuse Warning Network (DAWN) shows that there have been 2,439 methamphetamine-related deaths for the period 1991 - 1995. Approximately three-fourths or 1,896 of these deaths occurred in the last three years ( 1993 - 1995). The cities of Los Angeles, Phoenix, San Diego and San Francisco have accounted for 1,878 (73 percent) of the 2,439 deaths.

The majority of the methamphetamine available in the United States is controlled by traffickers from Mexico who manufacture the product in Mexico, or in major labs in California and the Southwest. There are hundreds of other labs across the United States-- in the Midwest, the Southeast, as well as in the Southwest and California--which are operated on a smaller scale, but are no less a threat to the well- being of Americans. In many of these smaller labs, meth manufacturers rely on pseudoephedrine products to make methamphetamine. The large scale operators in Mexico, or those traffickers operating large labs with help from Mexican traffickers in the United States, have relied in the pat on ephedrine, which is now tightly controlled in the U.S. These traffickers found alternative sources of supply from countries such as China, the Czech Republic and India to compensate for a lack of supply in the U.S. As ephedrine becomes even more difficult to obtain, these large scale manufacturers are also turning to pseudoephedrine.

An integral part of the President's strategy, in addition to targeting the highest level methamphetamine violators, is the control of pseudoephedrine drug products. The percentage of laboratories using pseudoephedrine as the precursor for methamphetamine is increasing. This is a result of the success we have had in cutting the foreign supplies of ephedrine to Mexico and in controlling ephedrine drug products in the United States. In 1992, less than 1.5 percent of laboratories used pseudoephedrine. In 1995, approximately 28 percent of laboratories used pseudoephedrine, whereas, data available shows that this percentage has increased to over 38 percent and could be over 55 percent in 1996. To date, all of the pseudoephedrine encountered has been in the form of legal drug products. DEA has yet to discover a laboratory using pseudoephedrine bulk powder. Present laboratory analysis and case investigations show that these drug products are being diverted in huge quantities from mail order houses and retail outlets, including 'head shops' and legitimate pharmacies--all of these sources considered to be over the counter.

Comments on H.R. 3852

DEA and the Department of Justice (DOJ) have been involved in extensive negotiations with the Senate staff on S. 1965, the Senate companion bill to H.R. 3852, and we are hopeful that a number of constructive changes will be made. While it does not contain everything which we would like, assuming the amendments to S. 1965, to which we have agreed, are incorporated into the final bill, the amended version of S. 1965 is acceptable to DEA. Indeed, certain portions of the bill greatly strengthen our ability to deal with the methamphetamine problem.

In this testimony, however, I will address features of HR 3852 in its present form before the Subcommittee. My comments will be limited to those sections with which we have the greatest concern, but l do want to be clear that there are a number of features of the bill that we strongly support.

I first wish to discuss Section 401. The bill provides that this section not apply to the sale of over-the- counter products initially introduced into interstate commerce prior to 9 months after the date of enactment of the Act. When a product is "initially introduced into interstate commerce" will be extremely troublesome for retailers, regulatory and law enforcement officials to determine.

Further, although DEA hopes this is not the case, this effective date may well have the unfortunate result of providing additional opportunities for diversion. Manufacturers would be able to manufacture and distribute these products prior to the end of the nine-month period. Those distributors (such as mail order houses) that have been associated with the provision of these products to traffickers will have an incentive to stock up on products, which they can distribute at any time in the future, possibly two or three years after enactment of this bill. The result could be that the same firms could use an exemption to serve the same nefarious customers, and more methamphetamine could be made.

For all of these reasons, a simple effective date of enactment without qualifications is preferable. DEA believes that a reasonable time frame for enactment would be 90 to 120 days recognizing that industry needs lead time to educate consumers and sales personnel about the new procedures. However, for purposes of reaching agreement on the Senate version of this bill we have agreed to 12 months, which we believe will give industry ample time.

This legislation has provided for an exception to the threshold amount of 24 grams for pseudoephedrine packaged in "blister packs." While the diversion of "blister packs" is not yet occurring in as significant quantities as other over-the-counter pseudoephedrine products, we do have several seizures that document their increased use in the illicit manufacturing of methamphetamine. While this is not ideal, DEA is concerned mainly with the legislation's prohibition against immediate collection of data on the use of "blister packs" to manufacture methamphetamine. DEA believes that traffickers will logically and inevitably turn to "blister packs" as the source of uncontrolled pseudoephedrine as bulk quantities through wholesalers, as over-the-counter products, become more difficult to obtain. The most effective way for DEA to monitor this potential trend is to be able to collect data from the date of enactment. This would have two benefits: first, to give DEA a head start in addressing a new enforcement challenge; and second, the timely collection of data will provide a more accurate picture of the diversion of pseudoephedrine.

Section 204 adds iodine and hydrochloric gas to List II. However, it also exempts iodine from all import and export controls and specifically requires DEA to go through the lengthy process of adding these controls by regulation. Mexico is a major player both in the production of methamphetamine that is smuggled into the United States, and is a source for precursor chemicals for clandestine methamphetamine laboratories in the United States. The ability to control exports of iodine, especially to Mexico, is an important component of an effective strategy to limit Mexico's role in illicit methamphetamine production. Requiring DEA to add these controls through the regulatory process could mean a delay of up to a year before such controls can be put into effect.

Section 205 authorizes civil penalties of up to $250,000 on firms which distribute "laboratory supplies" (as defined by this section) to operators of clandestine laboratories. This section was originally proposed by the Department of Justice based on a standard of "reasonable care" and prior notice to the distributor. This has been changed in the current bill to a standard of "reckless disregard." The bill establishes a presumption of "reckless disregard" in cases in which a firm sells a laboratory supply to an individual previously identified to the firm by the Attorney General. We would prefer the version of this section as drafted by DOJ.

Penalty Provisions (Title III)

The Drug Enforcement Administration agrees with the following opinions of the Department on the penalty provisions. Section 301 of the House bill includes a significant and needed increase in penalties for trafficking in methamphetamine. It does so by lowering the threshold quantities that trigger the respective 5 and 10 year mandatory minimum penalties. The thresholds would be equal to those for crack cocaine, a drug whose abuse patterns and destructive capacity are similar to methamphetamine in many respects.

Section 302 provides for increased penalties for trafficking in precursor (list 1) chemicals. Because the relatively low penalties in the existing statute and sentencing guidelines have not adequately punished these traffickers, DEA and DOJ fully support legislation to increase the penalties. However, we believe this goal would be better effected through revised language that resolves some problems in the current draft. The Department of Justice is prepared to offer alternative language that allows for more subtle gradations of penalties depending on the various criminal states of mind involved in the offense. DOJ advises that this revision would avoid a possible constitutional problem with current Section 302. Also, our revised text gives the Sentencing Commission "emergency" authority to revise its guidelines, which will allow them to take effect sooner than under the current wording. Finally, this revision explicitly ensures that the penalties for chemical trafficking incorporate the mandatory minimum sentences corresponding to the drugs that could be produced from those chemicals in a clandestine lab setting. DOJ will be happy to provide the Subcommittee with a copy of the text today.

Section 303 directs the Sentencing Commission to determine whether the Sentencing Guidelines adequately punish certain enumerated environmental offenses, and if not, to promulgate or amend the guidelines to provide for an "appropriate enhancement.'' This directive does not sufficiently ensure that there will be sentences under the guidelines. In light of the complex legal and factual issues in proving an environmental crime, as a practical matter, this section may well leave unpunished the environmental degradation wrought by careless clandestine lab "cooks'' who display little or no concern for public safety or the environment in either the manufacturing or chemical disposal process.

As part of the legislation forwarded with announcement of the National Methamphetamine Strategy, the Department of Justice initially proposed a relatively short additional mandatory penalty for specified environmental offenses committed in the course of manufacturing methamphetamine or other controlled substances. The Department of Justice regrets the innovative provision has been weakened in the present Section 303 and would prefer to see something along the lines of their original proposal.

There are a number of additional changes to this bill which we believe are important and would be happy to discuss them with your staff as this proposal advances.