Brief⁽¹⁾

S.B. 667 enacts the Kansas Chemical Control Act to prevent the illegal diversion of chemicals for use in the manufacture of illegal drugs such as methamphetamine by creating a dealer registration and monitoring system to protect the transfer of chemicals for legitimate commercial uses. The bill establishes both criminal and civil penalties for violation of the Act. Chemicals manufactured, distributed, or sold in violation of the Act are declared contraband and made subject to forfeiture and any conduct in violation of the Act shall constitute conduct giving rise to forfeiture under the Kansas Standard Asset Forfeiture Act.

Each regulated chemical distributor shall be required to apply annually for a registration from the Secretary of Health and Environment and engage in a regulated chemical transaction only to the extent authorized by the registration and in conformity with this Act.

A person must obtain a permit from the Secretary each time the person seeks to possess a regulated chemical. The person shall possess a regulated chemical only to the extent authorized by the permit and in conformity with this Act.

A person is ineligible to apply for a permit or registration if the person:

• is an individual less than 18 years of age or a business in which an individual under 18 years of age is in the capacity of owner, partner, corporate officer, manager, agent, or representative;



• has been convicted of a felony violation of federal or state law, or the law of another country, or a federal or state misdemeanor violation involving a controlled substance, controlled substance analog, or a chemical subject to regulation; or



• has had a federal or state registration, or a registration from another country, to manufacture, distribute, dispense, or possess controlled substances or any chemical subject to regulation denied, suspended, or revoked.

Each regulated chemical distributor shall be required to obtain, and each purchaser shall present, the following identification prior to receipt or distribution of any regulated chemical:

• the registration number, or permit, or monthly report authorization of the purchaser;



• a current and valid driver's license or other current and valid official state issued identification containing a photograph of the individual purchaser or individual receiving the regulated chemical on behalf of a business, and the purchaser's or recipient's residential or mailing address other than a post office box; and



• the motor vehicle license and vehicle identification number of the motor vehicle used in the regulated chemical transaction.

Each regulated chemical distributor and regulated chemical possessor:

• shall prepare annually a complete physical count of all regulated chemicals on hand; the physical count shall be prepared on the effective date of this Act and every year thereafter;



• shall include on the record of each physical count, the date it was conducted, whether the count was taken as of the opening or as of the closing of business on that day, the name of the preparer and any other information which the Secretary may require by rule and regulation; the record shall be maintained for four years after the date of the count.

Each regulated chemical distributor and regulated chemical possessor shall keep a record of each regulated chemical transaction in which it engages for four years after the date of the transaction.

Each regulated chemical distributor and regulated chemical possessor shall report to the Secretary:

• any regulated chemical transaction involving an unusual quantity of a regulated chemical;



• a method of payment involving $99 or more in cash, currency, or money orders;



• any loss, spillage, breakage, or theft of a regulated chemical or breakage of a container in which a regulated chemical is stored;



• any discrepancy between the quantity of regulated chemicals shipped and received;



• any regulated chemical transaction involving circumstances which would indicate to a reasonable person that a regulated chemical might be used or disposed of in violation of this Act or the controlled substances act, or applicable laws or regulations of the environmental protection agency; or



• any other regulated chemical transaction required to be reported by the Secretary as necessary to protect public health and safety.

Submission of the report required shall be at the earliest practicable opportunity and no later than three calendar days after any occurrence listed above.

A person who commits an offense proscribed by the Act (Section 13(a)(1) through (4)(b)(1) through (9)) shall be guilty of a severity level 9, nonperson felony. Certain infractions of the law (Section 13(a)(5) and (b)(10) through (13)) are a class B nonperson misdemeanor. In addition to any other penalty imposed, a corporation which commits a proscribed offense shall be subject to a civil fine of not more than $20,000.

In addition to any fine or imprisonment imposed above, the following civil assessment shall be imposed:

• $10,000 for each violation described in Section 13, subsections (a)(5) and (b)(10) through (13) or the actual cleanup costs of illegal laboratory sites, whichever is greater; and



• $100,000 for each violation described in Section 13, subsections (a)(1) through (4) and (b)(1) through (9) or the actual cleanup costs of illegal laboratory sites, whichever is greater.

The provisions of this Act shall not apply to:

• a domestic lawful distribution in the usual course of business between agents or employees of a single regulated distributor or regulated chemical possessor;



• a distribution of a regulated chemical to or by a common or contract carrier for carriage in the lawful and usual course of the business of the common or contract carrier, or to or by a warehouseman for storage in the lawful and ususal course of the business of the warehouseman;



• the administering or dispensing of a regulated chemical;



• the receipt of a regulated chemical pursuant to the lawful order of a practitioner as defined (e.g., doctor, veterinarian, pharmacist, etc.);



• the purchase, distribution, or possession of a regulated chemical by a local, state, or federal law enforcement agency while in the discharge of official duties unless the Kansas Bureau of Investigation properly notifies the local law enforcement agency relying on the exclusion that its investigatory activities are contrary to the public interest;



• the purchase, distribution, manufacture, administering, dispensing, or possession of a drug product containing a regulated chemical if the drug product has been granted an exemption pursuant to this section; or



• the sale, transfer, furnishing, distribution, manufacture, administering, dispensing, or possession of any drug product containing a regulated chemical if the drug product is lawfully sold, marketed, transferred, or furnished with or without prescription pursuant to the federal Food, Drug, and Cosmetic Act and regulations, except for sale at retail of more than 24 grams of any product containing a regulated chemical in a single transaction.

The Senate Committee of the Whole amendment added prescription drugs to the 24-gram and under exemption.

Background

The bill was supported by the Kansas Attorney General's Office, the Kansas Bureau of Investigation, the Kansas Peace Officers' Association, an Assistant Attorney General from the State of California, and others. Proponents said the bill was necessary to help the state deal with the epidemic of the illegal manufacturing of methamphetamine. This highly volatile illegal drug is being manufactured in residential areas, motel rooms, and other areas where the public are exposed. The drug can be manufactured from a variety of otherwise legal chemicals and even from over the counter drugs such as antihistamines. These illegal laboratories pose serious public health problems because of the volatility of the chemicals used due to the risk of fire and explosion and the major environmental contamination that can result from the disposal of chemicals used in the illegal manufacture of this drug.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext-bill.html.