The U.S. Drug Enforcement Administration (DEA) is expected to finalize a proposed rule soon that regulates the use of chemical mixtures containing red phosphorus, white phosphorus, and hypophosphorus acid and its salts (i.e., hypophosphite salts). This rule impacts the surface finishing industry because these chemicals are contained in nickel plating solutions. The regulation was proposed June 25, 2010 (75 Fed. Reg. 36306) and is currently being reviewed by the Department of Justice and the White House Office of Management and Budget (OMB). The rule is expected to be promulgated in early 2011.
In 2001 the DEA promulgated a rule under the authority of The Controlled Substances Act (CSA) requiring registration by manufacturers, distributors, importers and exporters of these chemicals because they are used in the illicit manufacture of methamphetamine, a federally regulated controlled substance. At the time of the 2001 rule, DEA indicated that chemical mixtures containing these chemicals were exempt from the CSA requirements, until such time that the DEA promulgates regulations for chemical mixtures containing red phosphorus, white phosphorus and hypophosphite salts.
The new proposed regulation would require registration for chemical mixtures that contain more than 80% red phosphorus, more than 30% of hypophosphite salts, or any white phosphorus.
Chemical mixtures are defined as a combination of two or more chemical substances that include the regulated chemicals, but they do not include combinations of these compounds with an inert carrier such as water, alcohol or the presence of a carrier gas.
The regulation does provide an exemption for those mixtures that are formulated in such a way that it cannot be easily used in an illicit production of a controlled substance (i.e., methamphetamine) and that the listed chemical or chemicals contained in the mixture cannot be readily recovered. According to the DEA, this exemption was intended to be applied in very limited circumstances.
The registration requirements would not apply to end users of the regulated chemicals, only the manufacturers, distributors, importers and exporters. The cost of the registration process is estimated to be approximately $2,000 and would apply to each separate location that manufactures, distributes, imports or exports the regulated chemicals.
NASF will continue to provide additional information of this regulation as it becomes available. If you have any questions or would like additional information on this issue, please contact Christian Richter or Jeff Hannapel.