Regular Session 2015-2016 House Bill 0608 P.N. 0681

PRINTER'S NO. 681

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

608

Session of

2015

INTRODUCED BY BAKER, COHEN, MILLARD, THOMAS, CORBIN, PICKETT,

D. COSTA, M. K. KELLER, V. BROWN, A. HARRIS, READSHAW, MAJOR,

MURT, DeLUCA, GINGRICH, BOBACK, GIBBONS, KORTZ, PASHINSKI,

EVERETT, KNOWLES, HARHART, REGAN AND MOUL, FEBRUARY 24, 2015

REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 24, 2015

AN ACT

Amending the act of April 14, 1972 (P.L.233, No.64), entitled

"An act relating to the manufacture, sale and possession of

controlled substances, other drugs, devices and cosmetics;

conferring powers on the courts and the secretary and

Department of Health, and a newly created Pennsylvania Drug,

Device and Cosmetic Board; establishing schedules of

controlled substances; providing penalties; requiring

registration of persons engaged in the drug trade and for the

revocation or suspension of certain licenses and

registrations; and repealing an act," further providing for

authority to control, for liquefied ammonia gas, precursors

and chemicals and for promulgation of regulations.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Section 3(c) of the act of April 14, 1972

(P.L.233, No.64), known as The Controlled Substance, Drug,

Device and Cosmetic Act, is amended and the section is amended

by adding subsections to read:

Section 3. Authority to Control.--

* * *

control under this act unless specifically authorized by the

General Assembly to do so. The secretary shall not reschedule

any controlled substance unless specifically authorized by the

board to do so.] Notwithstanding subsection (a), if the

secretary finds that the health and safety of the public will

not be adversely affected, the secretary may:

(1) Reschedule any controlled substance to coincide with

Federal law, including the Controlled Substances Act (Public Law

91-513, 84 Stat. 1236, 21 U.S.C. § 801 et seq.), regulations

promulgated under 21 CFR Ch. 2 (relating to drug enforcement

administration, department of justice) or any Federal judicial

order. The secretary shall publish a notice in the Pennsylvania

Bulletin of the rescheduling of a controlled substance under

this clause. The rescheduling of the controlled substance to a

higher schedule may not take effect earlier than thirty days

after publication of the notice in the Pennsylvania Bulletin.

The rescheduling of a controlled substance to a lower schedule

may take effect upon publication in the Pennsylvania Bulletin.

(2) Exclude any substance or remove any controlled substance

from any schedule, provided that the substance or controlled

substance has been approved for over-the-counter use without a

prescription under Federal law, including the Federal Food, Drug

and Cosmetic Act (52 Stat. 1040, 21 U.S.C. § 301, et seq.),

regulations promulgated under 21 CFR Ch. 1 (relating to food and

drug administration, department of health and human services) or

any Federal judicial order.

(d) If the secretary finds that the scheduling of a

substance on a temporary basis is necessary to avoid an imminent

hazard to public safety, the secretary may, by publishing a

final notice in the Pennsylvania Bulletin and without regard to

the requirements of subsection (a), schedule a substance under

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one of the schedules in section 4 if the substance is not listed

in any other schedule in section 4 or 28 Pa. Code §§ 25.72

(relating to schedules of controlled substances) and 25.75

(relating to paregoric) and if no exception or approval is in

effect for the substance under section 505 of the Federal Food,

Drug and Cosmetic Act (52 Stat. 1040, 21 U.S.C. § 355). The

following apply:

(1) A final order may not be issued before the expiration of

fourteen days after both:

(i) The date of publication in the Pennsylvania Bulletin of

a proposed notice of the intention to issue a final notice and

the grounds upon which the order is to be issued.

(ii) The date the secretary transmitted the notice to the

Attorney General as required by clause (4).

(2) The scheduling of a substance under this subsection

shall expire at the end of one year from the date of publication

of the final notice scheduling of the substance except that the

secretary may, during the pendency of proceedings under

subsection (a) with respect to the substance, extend the

temporary scheduling for up to one additional year by publishing

a subsequent notice in the Pennsylvania Bulletin prior to the

expiration of the initial notice.

(3) When issuing a proposed notice under clause (1), the

secretary shall be required to consider, with respect to the

finding of an imminent hazard to public safety, only those

factors set forth in subsection (a)(4), (5), (6) and (8), except

that, if clause (8) has been met regarding the temporary or

permanent scheduling of a specific substance under Federal law,

the secretary shall be authorized to temporarily schedule the

substance without regard to clauses (4), (5) and (6).

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(4) The secretary shall transmit the proposed notice issued

under clause (1) to the Attorney General. The Attorney General

shall have thirty days from receipt of the proposed notice to

provide written comments, if any, on relevant issues, including

actual abuse, diversion from legitimate channels and clandestine

importation, manufacture or distribution. In issuing a final

notice under this subsection, the secretary shall take into

consideration any comments submitted by the Attorney General.

(5) (i) Except as provided in subclause (ii), during the

time period that a substance is temporarily scheduled, the

secretary shall proceed with the permanent scheduling of the

substance pursuant to the requirements under subsection (a).

(ii) If a substance has been temporarily scheduled and the

secretary proceeds with permanent scheduling, the secretary

shall only be required to proceed under section 5(a) of the act

of June 25, 1982 (P.L.633, No.181), known as the "Regulatory

Review Act," by submitting final omitted regulations.

(iii) A final notice issued under clause (1) with respect to

a substance shall be vacated upon the conclusion of a subsequent

rulemaking proceeding initiated under subsection (a) with

respect to the substance or the enactment of law by the General

Assembly permanently scheduling the substance.

(iv) While the substance is temporarily scheduled, if the

secretary determines that a substance should not be permanently

scheduled, and no law has been enacted by the General Assembly

to permanently schedule the substance, the secretary shall

publish a notice in the Pennsylvania Bulletin with a rationale

as to why the substance is not being permanently scheduled. Upon

publication of the notice, the substance shall no longer be

considered a controlled substance. Withdrawal of a temporarily

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scheduled substance under this subclause shall not affect any

criminal proceeding or civil action initiated based on the

temporary scheduling.

(6) Temporary scheduling of a substance by the secretary

under this subsection shall not be subject to section 612 of the

act of April 9, 1929 (P.L.177, No.175), known as "The

Administrative Code of 1929," the act of July 31, 1968 (P.L.769,

No.240), referred to as the Commonwealth Documents Law, the act

of October 15, 1980 (P.L.950, No.164), known as the

"Commonwealth Attorneys Act," or the "Regulatory Review Act."

(7) A proposed or final notice issued by the secretary under

this subsection shall not be subject to judicial review.

(e) As used in this section, the term "substance" shall

include any group of substances, material, mixture, compound,

salts, isomers, salts of isomers, analogs, homologues or

homologous series.

Section 2. Section 13.1 of the act, amended June 24, 2013

(P.L.147, No.26), is amended to read:

Section 13.1. Liquefied Ammonia Gas; Precursors and

Chemicals.--(a) The following acts are prohibited:

(1) Possessing or transporting liquefied ammonia gas:

(i) for any purpose other than legitimate agricultural or

industrial use; or

(ii) in a container not approved by the Department of

Agriculture or the Department of Transportation or both.

(2) Possessing or transporting liquefied ammonia gas with

intent to unlawfully manufacture a controlled substance.

(3) Possessing [red phosphorous, hypophosphoric acid,

ammonium sulfate, phosphorous, iodine, hydriodic acid,

ephedrine, pseudoephedrine, lithium, sodium, potassium,

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sassafras oil, safrole oil or other oil containing safrole or

equivalent, whether in powder or liquid form,]

phenylpropanolamine, phenyl acetone, methylamine, ammonium

sulfate, ammonium nitrate [or], phenyl acetic acid or a

precursor substance with intent to unlawfully manufacture a

controlled substance.

(4) Possessing the esters, salts, optical isomers or salts

of optical isomers of any of the substances under clause (3)

with intent to manufacture a controlled substance.

(b) A person who violates subsection (a)(1) commits a

misdemeanor and upon conviction shall be sentenced to

imprisonment not exceeding five years and to pay a fine not

exceeding ten thousand dollars ($10,000).

commits a felony and upon conviction shall be sentenced to

imprisonment not exceeding seven years and to pay a fine not

exceeding fifteen thousand dollars ($15,000).

(d) As used in this section, the term "precursor substance"

means:

(1) red phosphorous, hypophosphoric acid, ammonium sulfate,

phosphorous, iodine, hydriodic acid or ephedrine,

pseudoephedrine, phenylpropanolamine or any of their salts or

optical isomers;

(2) salts of optical isomers or lithium, sodium, potassium,

sassafras oil or safrole oil or other oil containing safrole or

equivalent, whether in powder or liquid form; and

(3) any chemical in a regulation promulgated by the

secretary under section 35(b).

Section 3. Section 35 of the act is amended to read:

Section 35. Promulgation of Regulations.--(a) The secretary

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shall have the authority to promulgate in accordance with the

provisions of this section and of the act of July 31, 1968

(P.L.769, No. 240), known as the "Commonwealth Documents Law"

any regulations hereinbefore referred to in this act and such

other regulations with the consent of the board regarding the

possession, distribution, sale, purchase or manufacture of

controlled substances, other drugs or devices or cosmetics as

may be necessary to aid in the enforcement of this act.

(b) The following apply to a regulation adding a chemical to

the definition of "precursor substance" in section 13.1(d):

(1) The secretary may promulgate the regulation:

(i) as part of the administration of this act; or

(ii) in response to a petition of an interested party.

(2) In determining whether to add a chemical, the secretary

shall consider all of the following:

(i) Whether the chemical is already a controlled substance.

(ii) The availability of the chemical for potential illegal

diversion.

(iii) The historical, actual or potential use of the

chemical in the illegal production of a controlled substance,

including the scope, duration and significance of use.

(iv) The nature and extent of the legitimate uses of the

chemical.

(v) The clandestine and legitimate importation, manufacture

or distribution of the chemical.

(vi) Any other factors relevant to and consistent with

public health and safety.

(3) Promulgation of the regulation is exempt from section

612 of the act of April 9, 1929 (P.L.177, No.175), known as "The

Administrative Code of 1929" and the act of June 25, 1982

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(P.L.633, No.181), known as the "Regulatory Review Act."

Section 4. This act shall take effect in 60 days.

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