Senate methamphetamine bill nearing floor vote, Sen. Hatch tells House hearing.

SENATE NEGOTIATIONS ON HATCH METHAMPHETAMINE BILL are "down to one or two little issues" and "hopefully it can pass within a couple of days," Sen. Orrin Hatch (R-Utah) reported at a Sept. 5 hearing on a similar House bill before the House Judiciary Subcommittee on Crime. Introduced July 17, the Hatch bill (S 1965) is intended to help control illegal methamphetamine production through a number of means, including limits on the sale of precursor materials such as pseudoephedrine and phenylpropanolamine (PPA) ("The Tan Sheet" Aug. 12, p. 1).

Hatch tried to "hotline" S 1965 through the Senate before the August recess. However, the bill stalled due to last-minute reservations expressed by Sens. Edward Kennedy (D-Mass.) and Paul Simon (D-Ill.). Those issues have been resolved, resulting in three amendments to the bill. "We are hopeful that our bill can be passed quickly in the Senate and that together we can move a bill to the President prior to adjournment," Hatch told the subcommittee.

A Kennedy-Simon amendment eliminates mandatory minimum penalties from S 1965 and substitutes sentencing guidelines. A Hatch-Biden-Feinstein amendment makes a number of changes including extending the effective date of the legislation to apply to products on store shelves 12 months from enactment; the bill previously applied to products introduced into interstate commerce nine months after enactment. The amendment also would allow the Drug Enforcement Administration to begin collecting information immediately on products that fall under the bill's "safe harbor" exemption rather than imposing a nine-month wait. A third amendment to S 1965 would revoke DEA's current regulations, which were adopted Aug. 7 ("The Tan Sheet" Aug. 12, p. 1).

The bill considered at the hearing, HR 3852, was introduced by Rep. Fred Heineman (R-N.C.) on July 18. An identical measure was introduced by Rep. Vic Fazio on July 26; Fazio and Heineman are co-sponsors of each other's legislation.

Both the Senate and House bills set a single-transaction reporting threshold of 24 g for non-exempted pseudoephedrine- and PPA-containing products. "Ordinary" products, or those sold in packages including less than 3 g pseudoephedrine or PPA with non-liquid dosage units in blister packs, would be exempt.

"I hope you will put the Heineman/Fazio legislation on the fast-track, for it deserves speedy consideration," Hatch advised. House Crime Subcommittee chairman Bill McCollum (R-Fla.) expressed confidence that they would get a bill out in the three remaining weeks of the session.

However, Rep. Charles Schumer (D-N.Y.) acknowledged some "misgivings" about the House bill. He questioned whether the subcommittee should adopt the Senate's "viable" legislation. "I worry that if we do our own bill that it will get stuck," he said.

Addressing the House lawmakers, Hatch declared that any response to the methamphetamine abuse problem must "make certain that lawfully manufactured and lawfully sold products, such as cough and cold preparations, are exempt from regulation unless the Attorney General finds a need to control them because of their diversion."

The Utah senator had several other recommendations. Some of the goals of the legislation, according to Hatch, should be an "increase [in] penalties for possession and trafficking of methamphetamine and precursor chemicals"; a "crack down on those who manufacture meth"; a focus "in particular, [on] our international `trading partners'"; and "beef[ed] up... government education, prevention and treatment strategies." He concluded: "The bill you are considering more than meets those tests."

Hatch called for a more comprehensive approach than that taken by DEA in its Aug. 7 final rule, which, according to the Utah senator, "targets only some products at the retail level." "Quite frankly, criminals can circumvent the DEA regulation simply by buying pseudoephedrine products that are not covered," he said, adding, "for example, Sudafed and Efidac would be subject to the regulation; Excedrin Sinus, Nyquil, Contac, Advil Cold and Sinus, and Tylenol Cold and Sinus would not." "All of these would be covered by the Hatch/Biden-Heineman/Fazio legislative proposals," Hatch stated.

DEA Chief of Operations Harold Wankel testified that DEA and the Justice Department support the amended Senate version of the meth bill, noting that while DEA objects to the Kennedy compromise language regarding mandatory minimum penalties, "it's not a show stopper."

"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," Wankel stated. "Indeed," he continued, "certain portions of the bill greatly strengthen our ability to deal with the methamphetamine problem." DEA and the Justice Department worked extensively with the Senate staff on S 1965, he said.

Wankel recommended several changes to HR 3952. He suggested that the effective date of the bill, which will apply to products introduced into interstate commerce nine months after enactment, "may well have the unfortunate result of providing additional opportunities for diversion." He also noted that it "will be extremely troublesome for retailers, regulatory and law enforcement officials" to determine when a product has been "initially introduced into interstate commerce."

DEA would prefer that the bill include "a simple effective date of enactment without qualifications," Wankel said, noting that the agency believes that a reasonable time frame for enactment would be 90 to 120 days. "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," Wankel said.

DEA also is concerned about the bill'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," Wankel said. The law enforcement official added that "the most effective way for DEA to monitor this potential trend is to be able to collect data from the date of enactment."

Wankel provided some statistics on the use of pseudoephedrine in producing methamphetamine. He explained that the percentage of illegal methamphetamine labs using pseudoephedrine is rising because of DEA's success "in cutting the foreign supplies of ephedrine to Mexico and in controlling ephedrine drug products in the U.S."

In 1992, Wankel said, less than 1.5% of labs used pseudoephedrine, compared to 28% in 1995 and possibly over 55% 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," he noted. "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.'"

Rep. Melvin Watt (D-N.C.) pointed out that a study of the bill's physical impact has not been conducted. Because the bill would increase the severity of sentencing for methamphetamine producers, traffickers and users, it would cause an increase in the prison population, which would raise prison costs, Watt observed.

Rep. Robert Scott (D-Va.) asked about the source of funding to support the bill's education and prevention programs given that the bill does not contain a provision for additional monies. Wankel responded that the programs would be funded through DEA's existing budget. Methamphetamine is a very high priority for the agency, ranking third after crack cocaine and heroin, he explained.