Report Title:

Controlled Substances; Precursor Chemicals

Description:

Amends law regulating chemical precursors to controlled substances to require reporting of certain data relating to transactions in specific chemicals. Establishes procedure for adding to list of regulated chemicals. Imposes additional penalties for violations relating to precursor chemicals.

HOUSE OF REPRESENTATIVES

H.B. NO.

2206

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CONTROLLED SUBSTANCES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 329, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§329-   Requirements when selling specific chemicals. (a) Any manufacturer, wholesaler, retailer, or other person in this State who sells to any person in this State or any other state any quantity of sodium cyanide, potassium cyanide, cyclohexanone, bromobenzene, magnesium turnings, mercuric chloride, sodium metal, lead acetate, paladium black, red phosphorus, white phosphorus (other names yellow phosphorus), iodine, hydrogen chloride gas, trichlorofluoromethane (fluorotrichloromethane), dichlorodifluoromethane, 1,1,2-trichloro-1,2,2-trifluoroethane (trichlorotrifluoroethane), sodium acetate, or acetic anhydride, notwithstanding any other provision of law, shall do the following:

(1) Require proper purchaser identification for in-state sales that shall include a valid motor vehicle operator's license or other official and valid state-issued identification of the purchaser that contains a photograph of the purchaser, and includes the residential or mailing address of the purchaser, other than a post office box number, the motor vehicle license number of the motor vehicle used by the purchaser at the time of purchase, a description of how the substance is to be used, the Environmental Protection Agency certification number or general excise tax license number assigned to the individual or business entity for which the individual is purchasing any chlorofluorocarbon product, and the signature of the purchaser. Proper purchaser identification for out-of-state sales shall include all of the above information, except the motor vehicle license number and the signature of the purchaser. The out-of-state sale information shall also include the means by which the purchase was delivered or provided to the purchaser and the delivery address, if different from the identification address provided by the purchaser;

(2) Prepare a bill of sale that both describes with particularity the specific items and quantities sold and sets forth the proper purchaser identification information and affix to the bill of sale the preparer’s signature as witness to the sale and identification of the purchaser;

(3) Retain the original bill of sale containing the purchaser identification information for at least three years in a readily producible manner, and produce the bill of sale containing the sale information and purchaser identification information upon demand by any law enforcement officer or authorized representative of the department; and

(4) Submit a report to the department of public safety of all sales covered by this section.

(b) Any manufacturer, wholesaler, retailer, or other person in this State who purchases any item listed in subsection (a) shall do the following:

(1) Prepare a record of the purchase including information identifying the source of the items purchased, the date of purchase, the specific items purchased, the quantities of each item purchased, and the cost of the items purchased; and

(2) Retain the record of purchase for at least three years in a readily producible manner and produce the record of purchase upon demand to any law enforcement officer or authorized representative of the department.

(c) Additional requirements for manufacturers, wholesalers, retailers, or other persons who sell any of the following:

(1) Except as provided in subsection (d), no manufacturer, wholesaler, retailer, or other person shall sell to any individual, and no individual shall buy, more than four ounces of iodine in any thirty-day period; and

(2) Except as provided in subsection (d), no manufacturer, wholesaler, retailer, or other person shall sell to any individual, and no individual shall buy, more than two ounces of red or white phosphorous in any thirty day period. This paragraph shall not apply to any sale of red phosphorous made to a person or business that is licensed or regulated by state or federal law with respect to the purchase or use of red or white phosphorous.

(d) The requirements of this section do not apply to either of the following:

(1) Any sale of iodine at concentrations less than 1.5 per cent by weight in a solution or matrix under the threshold of two ounces in a single transaction; or

(2) Any sale of iodine made to a licensed health care facility, any manufacturer licensed by the department of health, or wholesaler licensed by the Hawaii state board of pharmacy who sells, transfers, or otherwise furnishes the iodine to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian.

(e) A person violating this section shall be fined not more than $100,000 or imprisoned not more than one year, or both.

(f) The department of public safety shall adopt rules pursuant to chapter 91 necessary for the purposes of this section."

SECTION 2. Section 329-61, Hawaii Revised Statutes, is amended to read as follows:

"§329-61 Substances subject to reporting. (a) List 1 chemicals. Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any of the following substances to any person in this State or for use in this State shall submit a report to the department of all those transactions:

(1) Phenyl-2-propanone;

(2) Methylamine and its salts;

(3) Phenylacetic acid, its esters and salts;

(4) Ephedrine, its salts, optical isomers, and salts of optical isomers;

(5) Pseudoephedrine, its salts, optical isomers, and salts of optical isomers;

(6) Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers;

(7) Phenylpropanolamine, its salts, optical isomers, and salts of optical isomers;

(8) Hydriodic acid;

(9) Benzyl cyanide;

(10) Benzyl chloride;

(11) N-methylformamide;

(12) N-methylephedrine, its salts, optical isomers, and salts of optical isomers;

(13) N-ethylephedrine;

(14) N-ethylpseudoephedrine;

(15) N-methylpseudoephedrine, its salts, optical isomers, and salts of optical isomers;

(16) Chloroephedrine;

(17) Chloropseudoephedrine;

(18) Ethylamine;

(19) D-lysergic acid;

(20) Ergotamine and its salts;

(21) Piperidine and its salts;

(22) N-acetylanthranilic acid, its esters and salts;

(23) Anthranilic acid, its esters and salts;

(24) Propionic anhydride;

(25) Isosafrole;

(26) Safrole;

(27) Piperonal;

(28) Thionychloride;

(29) Ergonovine and its salts;

(30) 3,4-Methylenedioxyphenyl-2-propanone;

(31) Benzaldehyde;

(32) Nitroethane;

(33) [Red phosphorus;

(34) Iodine crystals;

(35)] Iodine at concentrations greater than 1.5 per cent by weight in a solution or matrix above the threshold of two ounces in a single transaction;

[(36)] (34) Gamma butyrolactone (GBL) including butyrolactone; butyrolactone gamma; 4-butyrolactone; 2(3H)-furanone dihydro; dihydro-2(3H)-furanone; tetrahydro-2-furanone; 1,2-butanolide; 1,4-butanolide; 4-butanolide; gamma-hydroxybutyric acid lactone; 3-hydroxybutyric acid lactone; and 4-hydroxybutanoic acid lactone with chemical abstract service number 96-48-0;

[(37)] (35) 1,4-butanediol, including butanediol; butane-1,4-diol; 1,4-butylene glycol; butylene glycol; 1,4-dihydroxybutane; 1,4-tetramethylene glycol; tetramethylene glycol; and tetramethylene; 1,4-diol;

[(38)] (36) Hypophosphorous acid and its salts (including ammonium hypophosphite, calcium hypophosphite, iron hypophosphite, potassium hypophosphite, manganese hypophosphite, magnesium hypophosphite, and sodium hypophosphite);

[(39) White phosphorus (other names yellow phosphorus); and

(40)] (37) Anhydrous ammonia.

(b) List 2 chemicals. Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any extraordinary quantity of any of the following chemicals, or sells, transfers, or otherwise furnishes the chemicals through the use of an uncommon method of payment or delivery or under any other circumstances that may make that person believe that the following chemicals could be used in violation of this part by any person in this State, shall report to the department all those transactions of:

(1) [Acetic anhydride;

(2)] Acetone;

[(3)] (2) Ethyl ether;

[(4)] (3) Potassium permanganate;

[(5)] (4) 2-Butanone (or methyl ethyl ketone or MEK);

[(6)] (5) Toluene;

[(7)] (6) Hydrochloric acid;

[(8)] (7) Sulfuric acid;

[(9)] (8) Methyl isobutyl ketone (MIBK);

[(10)] (9) Hydrogen chloride; and

[(11)] (10) Methyl sulfone (MSM, DMS, Dimethyl sulfone or DMSO2).

(c) Additional chemicals. If a chemical is added or deleted as a regulated list 1 or list 2 chemical under federal law and notice of the designation is given to the department, the department may recommend that a corresponding change be made to state law. The department of public safety shall designate the chemical as added or deleted under this chapter after the expiration of thirty days from publication in the Federal Register of a final order and the change shall have the effect of law. If a chemical is added or deleted under this subsection, the control shall be temporary and, if the temporary designation of the added or deleted chemical is not permanently enacted in corresponding changes to this chapter at the next regular session of the legislature, the temporary designation shall be nullified.

(d) The department of public safety shall adopt rules pursuant to chapter 91 necessary for the purposes of this section."

SECTION 3. Section 329-64, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The requirements imposed by sections 329-62, 329-63, and 329-67 of this part shall not apply to any of the following:

(1) Any pharmacist or other authorized person who sells or furnishes a substance upon the prescription of a physician, dentist, podiatrist, or veterinarian;

(2) Any physician, dentist, podiatrist, or veterinarian who administers or furnishes a substance to patients;

(3) Any manufacturer or wholesaler licensed by the State who sells, transfers, or otherwise furnishes a substance to a licensed pharmacy, physician, dentist, podiatrist, or veterinarian; [and]

(4) Any sale, transfer, furnishing, or receipt of any drug which contains ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine and which is lawfully sold, transferred, or furnished over the counter without a prescription pursuant to the federal Food, Drug, and Cosmetic Act (21 United States Code Sec. 301 et seq.) or regulations adopted thereunder[.]; provided that section 329-62 and 329-63 shall apply to preparations in solid or liquid dosage form, except pediatric liquid forms, containing ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine where the individual retail transaction involves more than three packages or six grams of ephedrine, pseudoephedrine, norpseudoephedrine, or phenylpropanolamine; and

(5) Any "dietary supplement" as defined by the federal Food, Drug, and Cosmetic Act (21 United States Code Sec. 301) containing ephedrine alkaloids extracted from any species of Ephedra that meets all of the following criteria:

(A) It contains, per dosage unit or serving, not more than twenty-five milligrams of ephedrine alkaloids and its labeling does not suggest or recommend a total daily intake of more than one hundred milligrams of ephedrine alkaloids;

(B) It contains no hydrochloride or sulfate salts of ephedrine alkaloids;

(C) It is packaged with a prominent label securely affixed to each package that states all of the following:

(i) The amount in milligrams of ephedrine alkaloids in a dosage unit or serving;

(ii) The amount of the dietary supplement that constitutes a dosage unit or serving; and

(iii) The maximum recommended dosage of ephedrine alkaloids for a healthy adult human is not more than one hundred milligrams in a twenty-four hour period."

SECTION 4. Section 329-65, Hawaii Revised Statutes, is amended to read as follows:

"§329-65 Penalty. (a) Any manufacturer, wholesaler, retailer, or other person who does not submit a report as required by section 329-63 or who knowingly submits a report with false or fictitious information shall be fined not more than $5,000, or imprisoned not more than thirty days, or both.

(b) Any manufacturer, wholesaler, retailer, or other person who has previously been convicted of violating subsection (a), upon a subsequent conviction thereof, shall be fined not more than $100,000, or imprisoned not more than one year, or both.

(c) Any manufacturer, wholesaler, retailer, or other person who sells, transfers, or otherwise furnishes any of the substances listed in section 329-61 with [knowledge or the intent] intending, knowing, or acting in reckless disregard of the risk that the recipient will use the substance to unlawfully manufacture any controlled substance shall be fined not more than $100,000, or imprisoned not more than five years, or both. For the purpose of this part, "unlawfully manufacture" means to manufacture, compound, convert, produce, derive, process, or prepare, either directly or indirectly by chemical extraction, or independently by means of chemical synthesis, any controlled substance specified in section 329-14, 329-16, 329-18, 329-20, or 329-22 without a valid state controlled substance registration as designated under section 329-33.

(d) Any manufacturer, wholesaler, retailer, or other person who possesses any of the substances listed in section 329-61 with the intent to unlawfully manufacture any controlled substance shall be fined not more than $100,000, or imprisoned not more than ten years, or both.

(e) Any person who possesses, sells, distributes, purchases for resale, or causes to be sold, distributed, or purchased for resale any ephedrine-containing product with a label that claims or implies that consumption of the product will produce effects such as ecstasy, euphoria, increased sexual sensations, legal "highs", and other similar effects shall be fined not more than $5,000, or imprisoned not more than one year, or both.

(f) It is unlawful for any person to knowingly or intentionally obtain or attempt to obtain any of the substances listed in section 329-61 or procure or attempt to procure any substances listed in section 329-61:

(1) By fraud, deceit, misrepresentation, embezzlement, or theft;

(2) By furnishing fraudulent documentation or information or the concealment of a material fact regarding the use, location, or ultimate user of the substances listed in section 329-61; or

(3) By the use of a false name, photo identification, general excise tax information, or the giving of a false address.

(g) Any person who violates subsection (f) shall be fined not more than $100,000, or imprisoned not more than five years, or both.

(h) Any person who receives or distributes any substance listed in section 329-61 with intent to evade the record keeping or reporting requirements of this part, shall be guilty of a class C felony for which, in addition to any other penalty provided by law, a fine of not more than $100,000 may be imposed."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________