[As Amended by Senate Committee of the Whole]
         

         
As Amended by Senate Committee
         

          Session of 1998
                   
SENATE BILL No. 667
         
By Senator Schraad
         
2-13
          12             AN ACT enacting the Kansas chemical control act.
13            
14       Be it enacted by the Legislature of the State of Kansas:
15           Section 1. This act shall be known and may be cited as the ``Kansas
16       chemical control act.''
17           Sec. 2. The purpose of this act is to prevent the illegal diversion of
18       precursor chemicals by creating a monitoring system which traces a chem-
19       ical from its distribution to its use while protecting the transfer of chem-
20       icals for legitimate commercial uses.
21           Sec. 3. (a) The term ``administer'' means to apply a regulated chem-
22       ical whether by injection, inhalation, ingestion or any other means, di-
23       rectly to the body of a patient or research subject by: (1) A practitioner,
24       or in the practitioner's presence, by such practitioner's authorized agent;
25       or
26           (2) the patient or research subject at the direction and in the presence
27       of the practitioner.
28           (b) The term ``agent or representative'' means a person who is au-
29       thorized to receive, possess, manufacture or distribute or in any other
30       manner control or have access to a regulated chemical on behalf of an-
31       other person.
32           (c) The term ``broker'' or ``trader'' means a person who assists in ar-
33       ranging a transaction of a regulated chemical by negotiating contracts,
34       serving as an agent or intermediary or bringing a buyer, seller or trans-
35       porter, or any combination thereof, together.
36           (d) The term ``controlled premises'' means: (1) A place where regu-
37       lated chemical distributors or regulated chemical possessors are required
38       under this act to, or in fact, keep or maintain records related to regulated
39       chemical transactions; and
40           (2) a place, including a factory, warehouse, establishment and con-
41       veyance, in which regulated chemical distributors or regulated chemical
42       possessors are permitted under this act to, or in fact, possess, manufac-
43       ture, compound, process, sell, deliver or dispose of a regulated chemical.

SB 667--Am. by SCW

2

  1           (e) The term ``delivers'' or ``delivery'' means the actual, constructive
  2       or attempted transfer of a regulated chemical from one person to another,
  3       whether or not there is an agency relationship.
  4           (f) The term ``dispense'' means to deliver a regulated chemical to an
  5       ultimate user, patient or research subject by, or pursuant to the lawful
  6       order of, a practitioner, including the prescribing, administering, pack-
  7       aging, labeling or compounding necessary to prepare the regulated chem-
  8       ical for that delivery.
  9           (g) The term ``distribute'' means to deliver other than by administer-
10       ing or dispensing a regulated chemical.
11           (h) The term ``manager'' means one who represents the interest of
12       any owner, partner or corporate officer in the operation of a business
13       involved in the manufacture, distribution or possession of regulated
14       chemicals whose duties include, but are not limited to: (1) The making
15       or changing of policy; (2) approving credit; (3) hiring or firing employees;
16       or (4) generally exercising independent judgment in the operation of the
17       business. Such person need not have a financial interest in the business.
18           (i) The term ``manufacture'' means to produce, prepare, propagate,
19       compound, convert or process a regulated chemical directly or indirectly,
20       by extraction from substances of natural origin, chemical synthesis or a
21       combination of extraction and chemical synthesis, and may include pack-
22       aging or repackaging of the substance or labeling or relabeling of its con-
23       tainer. The term excludes the preparation, compounding, packaging, re-
24       packaging, labeling or relabeling of a regulated chemical:
25           (1) By a practitioner as an incident to the practitioner's administering
26       or dispensing of a regulated chemical in the course of the practitioner's
27       professional practice; or
28           (2) by a practitioner, or by the practitioner's authorized agent under
29       the practitioner's supervision, for the purpose of, or as an incident to
30       research, teaching or chemical analysis and not for sale.
31           (j) The term ``person'' means any individual or entity capable of hold-
32       ing a legal or beneficial interest in property.
33           (k) The term ``practitioner'' means a physician, dentist, veterinarian,
34       scientific investigator, pharmacist, pharmacy, hospital or other person li-
35       censed, registered or otherwise permitted, by the state, to distribute, dis-
36       pense conduct research with respect to, administer or use in teaching or
37       chemical analysis, a regulated chemical in the course of professional prac-
38       tice or research.
39           (l) The term ``regulated chemical'' means a chemical that is used di-
40       rectly or indirectly to manufacture a controlled substance or other regu-
41       lated chemical in violation of the state controlled substances act or this
42       act. The fact that a chemical may be used for a purpose other than the
43       manufacturing of a controlled substance or regulated chemical does not

SB 667--Am. by SCW

3

  1       exempt it from the provisions of this act. The term includes:
  2           (1) Acetic anhydride.
  3           (2) Anthranilic acid, its esters and its salts.
  4           (3) Benzaldehyde.
  5           (4) Benzyl chloride.
  6           (5) Benzyl cyanide.
  7           (6) D-lysergic acid.
  8           (7) Diethylamine and its salts.
  9           (8) Ephedrine, its salts, optical isomers and salts of optical isomers.
10           (9) Ethylamine and its salts.
11           (10) Ergotamine and its salts.
12           (11) Ergonovine and its salts.
13           (12) Hydriodic acid.
14           (13) Isosafrole.
15           (14) Malonic acid and its esters.
16           (15) 3, 4-methylenedioxyphenyl-2-propanone.
17           (16) Methylamine and its salts.
18           (17) Morpholine and its salts.
19           (18) N-acetylanthranilic acid, its esters and salts.
20           (19) N-ethylephedrine, its salts, optical isomers and sand salts of op-
21       tical isomers.
22           (20) N-ethylpseudoephedrine, its salts, optical isomers, and salts of
23       optical isomers.
24           (21) N-methylephedrine, its salts, optical isomers, and salts of optical
25       isomers.
26           (22) N-methylseudoephedrine, its salts, optical isomers, and salts of
27       optical isomers.
28           (23) Nitroethane.
29           (24) Norpseudoephedrine, its salts, optical isomers, and salts of op-
30       tical isomers.
31           (25) 1-phenyl-1-choloro-2 = /methylaminopropane (chloroephedrine;
32       chloropseudoephedrine), their salts, optical isomers, and salts of optical
33       isomers.
34           (26) Phenyl-2-propanone.
35           (27) Phenylacetic acid, its esters and salts.
36           (28) Phenylpropanolamine its salts, optical isomers, and salts of op-
37       tical isomers.
38           (29) Piperidine and its salts.
39           (30) Piperonal.
40           (31) Propronic anhdride.
41           (32) Pseudoephedrine, its salts, optical isomers, and salts of optical
42       isomers.
43           (33) Pyrrolidine and its salts.

SB 667--Am. by SCW

4

  1           (34) Safrole.
  2           (35) Thionylchloride.
  3           (m) The term ``regulated chemical distributor'' means any person,
  4       whether or not the person is registered pursuant to the act, who manu-
  5       factures or distributes a regulated chemical.
  6           (n) The term ``regulated chemical possessor'' means any person who
  7       possesses a regulated chemical.
  8           (o) The term ``regulated chemical transaction'' means the manufac-
  9       ture of a regulated chemical or the distribution of a regulated chemical
10       within, into, or out of the state.
11           (p) The term ``secretary'' means the secretary of health and environ-
12       ment.
13           Sec. 4. The provisions of this act shall not apply to: (a) A domestic
14       lawful distribution in the usual course of business between agents or em-
15       ployees of a single regulated distributor or regulated chemical possessor;
16           (b) a distribution of a regulated chemical to or by a common or con-
17       tract carrier for carriage in the lawful and usual course of the business of
18       the common or contract carrier, or to or by a warehouseman for storage
19       in the lawful and usual course of the business of the warehouseman;
20           (c) the administering or dispensing of a regulated chemical;
21           (d) the receipt of a regulated chemical pursuant to the lawful order
22       of a practitioner;
23           (e) the purchase, distribution or possession of a regulated chemical
24       by a local, state or federal law enforcement agency while in the discharge
25       of official duties unless the Kansas bureau of investigation properly no-
26       tifies the local law enforcement agency relying on the exclusion that its
27       investigatory activities are contrary to the public interest; or
28           (f) the purchase, distribution, manufacture, administering, dispensing
29       or possession of a drug product containing a regulated chemical if the
30       drug product has been granted an exemption pursuant to this section.;
31       or
32           (g) [(f)] the sale, transfer, furnishing, distribution, manufac-
33       ture, administering, dispensing or possession of less than 24 grams
34       of any drug product containing a regulated chemical if the drug
35       product is lawfully sold, marketed, transferred or furnished over
36       the counter [with or] without prescription pursuant to the federal
37       food, drug and cosmetic act and regulations adopted thereunder[,
38       except for the sale at retail of more than 24 grams of any product
39       containing a regulated chemical in a single transaction].
40           Sec. 5. (a) The secretary may, by rule or regulation, add chemicals
41       to or delete chemicals from the list of regulated chemicals in subsection
42       (l) of section 3. In determining whether to add or delete a chemical, the
43       secretary shall consider the following: (1) Whether the chemical is already

SB 667--Am. by SCW

5

  1       controlled under the uniform controlled substances act;
  2           (2) the availability of the chemical for potential illegal diversion;
  3           (3) the historical, actual, or potential use of the chemical in the illegal
  4       production of a substance controlled under the uniform controlled sub-
  5       stances act, including the scope, duration and significance of use;
  6           (4) the nature and extent of the legitimate uses of the chemical;
  7           (5) the clandestine and legitimate importation, manufacture, or dis-
  8       tribution of the chemical; and
  9           (6) any other factors relevant to and consistent with public health and
10       safety.
11           (b) Notwithstanding the requirements in subsection (a), the secretary
12       may by rule or regulation add a chemical to the list of regulated chemicals
13       in subsection (l) of section 3 on a temporary basis to avoid an imminent
14       hazard to the public health and safety. With respect to the finding of an
15       imminent hazard, the secretary shall consider: (1) The recent history and
16       current pattern of abuse;
17           (2) the imminent risk to the public health; and
18           (3) available information on factors set forth in subsection (a).
19           An emergency rule may not be adopted until the secretary initiates a
20       rulemaking or other regulatory proceeding under subsection (a) with re-
21       spect to the chemical. Except as otherwise provided by law, or the sec-
22       retary provides otherwise, an emergency rule will expire on the later of:
23       (1) One year after its adoption; or
24           (2) the effective date of the final rule or other conclusion of the rule
25       making proceeding initiated under subsection (a).
26           (c) A manufacturer may apply to the secretary for an exemption of a
27       drug product containing a regulated chemical from the provisions of this
28       act on a form which the secretary shall furnish upon request. The sec-
29       retary shall grant the exemption upon finding that the applicant has shown
30       by a preponderance of the evidence that the drug product is manufac-
31       tured and distributed in a manner which prevents its illegal diversion. In
32       making the finding, the secretary shall consider: (1) Evidence of illegal
33       diversion of the drug product, including the scope, duration and signifi-
34       cance of the diversion;
35           (2) whether the drug product is formulated in such a way that it
36       cannot be easily used in the illegal production of a drug;
37           (3) whether the regulated chemical can be readily recovered from
38       the drug product;
39           (4) the manner of packaging the drug product, including the package
40       sizes;
41           (5) the manner of distribution and advertising of the drug product by
42       the manufacturer and others;
43           (6) any specific actions taken by the manufacturer to prevent illegal

SB 667--Am. by SCW

6

  1       diversion of the drug product; and
  2           (7) any other factors which are relevant to and consistent with public
  3       health and safety.
  4           The secretary shall grant or deny an exemption by rule or regulation
  5       in accordance with the Kansas administrative procedure act.
  6           (d) (1) A drug product that is lawfully marketed in this state on the
  7       effective date of this act and which is the subject of a request made under
  8       subsection (c) shall be deemed in compliance with this act: (A) During
  9       the pendency of the request; and
10           (B) for the 60 days after denial of the exemption, unless the denial
11       was based on a finding that the drug product is being illegally diverted.
12           (2) The manufacturer shall file a request under this subsection no
13       later than 60 days from the effective date of this act.
14           (e) Applications pursuant to subsection (c) that involve a drug prod-
15       uct for which an exemption was previously denied may be made only if
16       there is a significant change in the data which led to the denial.
17           (f) The secretary may adopt rules and regulations to modify or re-
18       move an exemption upon finding: (1) That the drug product is being
19       illegally diverted; or
20           (2) that there is a significant change in the data which led to the
21       granting of the exemption.
22           In making a finding, the secretary shall consider the factors listed in
23       subsection (c).
24           (g) If any chemical is designated or deleted as a listed chemical under
25       the provisions of the federal controlled substances act, the secretary may
26       by rule or regulation similarly add or delete a chemical as a regulated
27       chemical without making the determination required under subsection
28       (a).
29           Sec. 6. (a) Except as provided in section 8, each regulated chemical
30       distributor shall apply annually for a registration from the secretary and
31       engage in a regulated chemical transaction only to the extent authorized
32       by the registration and in conformity with this act.
33           (b) The application shall be in such form and provide such informa-
34       tion as the secretary shall require by rule or regulation.
35           (c) The secretary shall register an applicant unless the secretary de-
36       termines that the registration shall be denied in accordance with subsec-
37       tion (a) of section 9.
38           (d) A separate registration is required for each principal place of busi-
39       ness or professional practice of the regulated chemical distributor.
40           (e) A regulated chemical distributor shall notify the secretary of any
41       change in business name, address, zip code, area code and telephone
42       number, or a change in managers, agent or representatives, no later than
43       the seventh calendar day after the change.

SB 667--Am. by SCW

7

  1           (f) A registration shall terminate if and when the regulated chemical
  2       distributor dies, ceases legal existence, discontinues business or profes-
  3       sional practice, or changes ownership.
  4           (g) No registration shall be assigned or otherwise transferred except
  5       upon such conditions as the secretary may specifically designate and then
  6       only pursuant to the secretary's written consent.
  7           Sec. 7. (a) Except as provided in section 8 and subsection (i), a per-
  8       son shall obtain a permit to possess from the secretary each time the
  9       person seeks to possess a regulated chemical. The person shall possess a
10       regulated chemical only to the extent authorized by the permit and in
11       conformity with this act.
12           (b) An individual applicant shall provide the following information on
13       an application furnished by the secretary: (1) Name, residential address
14       other than a post office box and telephone number;
15           (2) current and valid driver's license number or other current and
16       valid official state-issued identification number;
17           (3) social security number;
18           (4) date of birth;
19           (5) prior convictions, including those with an appeal pending, which
20       involve a felony violation of state or federal law, or the law of another
21       country, or a misdemeanor violation of this act or the controlled sub-
22       stances act;
23           (6) pending charges involving a felony violation of federal or state
24       law, or the law of another country, or a misdemeanor violation of this act
25       or the controlled substances act;
26           (7) the type and quantity of each regulated chemical to be possessed;
27           (8) a complete description of the intended uses of each chemical;
28           (9) the location where each chemical is to be stored and used;
29           (10) the intended date and method of delivery of each regulated
30       chemical;
31           (11) the intended method of disposal of any unused chemical or
32       chemical waste; and
33           (12) any additional information requested by the secretary relating to
34       possible grounds for denial as set forth in section 9.
35           (c) Each owner, partner, corporate officer or manager, and any agent
36       or representative of a business applicant shall provide the information
37       required in subsections (b)(1) through (b)(6) and (b)(12). An individual
38       making application on behalf of the business shall provide all the infor-
39       mation required in subsection (b) in addition to: (1) The individual's re-
40       lationship to the business;
41           (2) an affirmation that the individual is authorized to make applica-
42       tion on behalf of the business;
43           (3) the name, business address, other than a post office address and

SB 667--Am. by SCW

8

  1       business phone number of the individual's immediate supervisor;
  2           (4) the name, address other than a post office address and telephone
  3       number of the business; and
  4           (5) the nature of the business and type of business ownership.
  5           (d) The application shall be signed by the applicant under penalty of
  6       perjury, or in the case of a business applicant, by the individual making
  7       application on behalf of the business and, except as provided in subsection
  8       (f), each owner, partner, corporate officer or manager, and any agent or
  9       representative.
10           (e) An applicant for an initial permit shall submit with the application
11       two notarized sets of 10 print fingerprint cards. A business applicant is
12       required to submit cards for the individual making application on behalf
13       of the business and, except as provided in subsection (f), for each owner,
14       partner, corporate officer or manager, and any agent or representative.
15           (f) An owner, partner, or corporate officer of a business applicant is
16       exempted from the requirements of subsection (c), (d), and (e) if the
17       business applicant is a publicly held corporation of 35 shareholders or
18       more.
19           (g) The secretary shall issue or deny a permit no later than 21 days
20       after receipt of the completed application, unless the secretary deter-
21       mines there is good cause for an extension. The secretary shall state in
22       writing the reasons for the extension and the new time period for issuance
23       or denial of the permit. The applicant shall have a right to appeal the
24       secretary's failure to act within the prescribed time period pursuant to
25       the administrative procedure act.
26           (h) The permit shall consist of five parts, including: (1) One copy to
27       be retained by the applicant;
28           (2) one copy to be retained by the secretary;
29           (3) one copy to be delivered to the regulated chemical distributor by
30       the applicant;
31           (4) one copy to be delivered to the Kansas bureau of investigation;
32       and
33           (5) one copy to be attached to the container of the regulated chem-
34       icals and to be kept with the chemicals at all times. In the case of multiple
35       containers related to a single permit, a label reflecting the permit number
36       shall be attached to each additional container.
37           (i) (1) A possessor may submit a comprehensive monthly report to
38       the secretary in lieu of the permit required by this section if the secretary
39       so authorizes upon finding in writing that: (A) The possessor is eligible
40       to apply for a permit;
41           (B) there are no grounds for denial of a permit pursuant to section
42       9; and
43           (C) (i) there is a regular relationship of supply and purchase between

SB 667--Am. by SCW

9

  1       a regulated chemical distributor and the regulated chemical possessor
  2       with respect to the chemical; or
  3           (ii) the regulated chemical possessor has established a record of use
  4       of the chemical solely for a lawful purpose.
  5           (2) The comprehensive monthly report shall be submitted no later
  6       than 15 calendar days after the end of the calendar month which is the
  7       subject of the report. It shall be submitted on a form which the secretary
  8       shall provide, and shall include: (A) The quantity of the chemical pos-
  9       sessed;
10           (B) the date and method of delivery of the chemical;
11           (C) the physical location where the chemical was stored and used;
12           (D) the use of the chemical;
13           (E) the method of disposal of any unused chemical or chemical waste;
14       and
15           (F) any other information required by the secretary.
16           (3) The possessor shall notify the secretary of any change in status
17       relevant to any grounds for suspension or revocation of a comprehensive
18       monthly report authorization no later than seven calendar days after the
19       change.
20           (4) The authorization shall consist of four parts and, in lieu of a per-
21       mit, be retained and delivered as provided in subsections (h)(1), (2), (3)
22       and (4).
23           (5) (A) The grounds for suspension or revocation of a permit under
24       section 9 shall constitute grounds for suspension or revocation of the
25       authorization.
26           (B) The secretary shall suspend or revoke an authorization to submit
27       a comprehensive monthly report in accordance with the procedures de-
28       scribed in subsections (c), (d) and (e) of section 10.
29           Sec. 8. (a) A person is ineligible to apply for a permit or registration
30       if the person: (1) Is an individual less than 18 years of age or a business
31       in which an individual under 18 years of age is in the capacity of owner,
32       partner, corporate officer, manager, agent or representative;
33           (2) has been convicted of a felony violation of federal or state law, or
34       the law of another country, or a federal or state misdemeanor violation
35       involving a controlled substance, controlled substance analog or a chem-
36       ical subject to regulation; or
37           (3) has had a federal or state registration, or a registration from an-
38       other country, to manufacture, distribute, dispense or possess controlled
39       substances or any chemical subject to regulation denied, suspended or
40       revoked.
41           (b) An applicant, registrant, or permit holder shall notify the secretary
42       of any change in status regarding the conditions listed in this section no
43       later than the seventh calendar day after the change.

SB 667--Am. by SCW

10

  1           Sec. 9. (a) The secretary may deny, suspend, or revoke a registration
  2       or permit to possess upon finding that the applicant, registrant, or permit
  3       holder:
  4           (1) Has failed to make proper application to the secretary pursuant
  5       to sections 6 and 7 and any applicable rule or regulation;
  6           (2) has failed to demonstrate that the chemical will be used solely for
  7       legitimate purposes;
  8           (3) has violated any rule and regulation of the secretary or any pro-
  9       vision of this act or the uniform controlled substances act;
10           (4) has failed, or does not demonstrate the ability, to maintain effec-
11       tive controls against diversion of regulated chemical into other than le-
12       gitimate medical, scientific, research or industrial channels;
13           (5) has materially falsified or omitted material information from any
14       application, record, report, inventory or other document required to be
15       kept or filed under this act or any applicable rule and regulation; or
16           (6) has committed such acts as would render the person's registration
17       or permit inconsistent with the public interest as determined by the sec-
18       retary.
19           (b) An applicant, registrant, or permit holder shall notify the secretary
20       of any change in status regarding the conditions listed in subsection (a)
21       no later than the seventh calendar day after the change.
22           (c) Before denying, suspending, or revoking a registration or permit
23       under subsection (a), the secretary shall cause to be served upon the
24       applicant, registrant or permit holder an order to show cause why a reg-
25       istration or permit should not be denied, suspended or revoked. The
26       order to show cause shall contain a statement of its basis and shall call
27       upon the applicant, registrant or permit holder to appear before the ap-
28       propriate person or agency at the time and place within 30 days after the
29       date of service of the order. The proceedings shall be conducted in ac-
30       cordance with the Kansas administrative procedure act without regard to
31       any criminal prosecution or other proceeding. An applicant, registrant or
32       permit holder shall have a right to appeal an adverse decision pursuant
33       to the Kansas administrative procedure act.
34           (d) The secretary shall suspend, without an order to show cause, any
35       registration or permit simultaneously with the institution of proceedings
36       described in subsection (a) if the secretary finds there is imminent danger
37       to the public health or safety. The suspension shall continue in effect until
38       the conclusion of the proceedings, including review thereof, unless with-
39       drawn by the secretary or dissolved by a court of competent jurisdiction.
40           (e) The secretary shall promptly provide the Kansas bureau of inves-
41       tigation the name, address and phone number of any individual whose
42       registration or permit has been denied, suspended or revoked under this
43       section.

SB 667--Am. by SCW

11

  1           Sec. 10. (a) Each regulated chemical distributor shall obtain, and
  2       each purchaser shall present the following identification prior to receipt
  3       or distribution of any regulated chemical: (1) The registration number,
  4       or permit, or monthly report authorization of the purchaser;
  5           (2) a current and valid driver's license or other current and valid of-
  6       ficial state issued identification containing a photograph of the individual
  7       purchaser or individual receiving the regulated chemical on behalf of a
  8       business, and the purchaser's or recipient's residential or mailing address
  9       other than a post office box; and
10           (3) the motor vehicle license and vehicle identification number of the
11       motor vehicle used in the regulated chemical transaction.
12           (b) A regulated chemical possessor authorized to submit a monthly
13       report pursuant to subsection (i) of section 7 may designate an individual
14       to receive the regulated chemical on the possessor's behalf for purposes
15       of subsection (a).
16           Sec. 11. (a) Each regulated chemical distributor and regulated chem-
17       ical possessor: (1) Shall prepare annually a complete, legible and accurate
18       physical count of all regulated chemicals on hand. The physical count
19       shall be prepared on the effective date of this act and every year thereafter
20       or, if authorized by the secretary, on the annual general physical inventory
21       date of a regulated chemical distributor or regulated chemical possessor;
22           (2) shall include on the record of each physical count, the date it was
23       conducted, whether the count was taken as of the opening or as of the
24       closing of business on that day, the name of the preparer and any other
25       information which the secretary may require by rule and regulation. The
26       record shall be maintained for four years after the date of the count.
27           (b) Each regulated chemical distributor and regulated chemical pos-
28       sessor shall keep a record of each regulated chemical transaction in which
29       it engages for four years after the date of the transaction.
30           (c) A record required under subsection (b): (1) Shall be kept in a
31       readily retrievable manner and shall include:
32           (A) The date of the regulated chemical transaction;
33           (B) the identity of each party to the transaction;
34           (C) the description and license number of any vehicle used during
35       the transaction;
36           (D) a statement of the quantity and form of the regulated chemical;
37           (E) the permit issued for the transaction; and
38           (F) a description of the method of transfer; and
39           (2) shall be available for inspection and copying as authorized under
40       section 16.
41           Sec. 12. (a) Each regulated chemical distributor and regulated chem-
42       ical possessor shall report to the secretary: (1) Any regulated chemical
43       transaction involving an unusual quantity of a regulated chemical;

SB 667--Am. by SCW

12

  1           (2) a method of payment involving $99 or more in cash, currency or
  2       money orders;
  3           (3) any loss, spillage, breakage or theft of a regulated chemical or
  4       breakage of a container in which a regulated chemical is stored;
  5           (4) any discrepancy between the quantity of regulated chemicals
  6       shipped and received;
  7           (5) any regulated chemical transaction involving circumstances which
  8       would indicate to a reasonable person that a regulated chemical might be
  9       used or disposed of in violation of this act or the controlled substances
10       act, or applicable laws or regulations of the environmental protection
11       agency; or
12           (6) any other regulated chemical transaction required to be reported
13       by the secretary as necessary to protect public health and safety.
14           (b) Submission of the report required by subsection (a) shall be at
15       the earliest practicable opportunity and no later than three calendar days
16       after any occurrence listed in subsection (a).
17           (c) Each regulated chemical distributor shall report to the secretary
18       all distributions of regulated chemicals in which the distributor has en-
19       gaged during a calendar month no later than 15 calendar days after the
20       end of the month.
21           (d) Each broker or trader shall report to the secretary all regulated
22       chemical transactions which the broker or trader has helped arrange dur-
23       ing a calendar month no later than 15 calendar days after the end of the
24       month.
25           (e) The secretary may supply a common form or format for submis-
26       sion of the reports required in subsections (a), (c) and (d).
27           (f) A regulated chemical distributor and regulated chemical possessor
28       may satisfy the requirements of any subsection of this act for transactions
29       involving threshold amounts of regulated chemicals under federal law by
30       submitting to the secretary copies of reports filed pursuant to federal law
31       which contain all of the information required by that subsection.
32           Sec. 13. (a) It is unlawful for a regulated chemical distributor to:
33           (1) Fail to obtain proper identification as required by section 10;
34           (2) engage in a regulated chemical transaction without a registration
35       issued under section 6 or in a manner not authorized by the registration;
36           (3) use a registration number which is altered, fictitious, revoked,
37       suspended or issued to another regulated chemical distributor;
38           (4) engage in a regulated chemical transaction with knowledge or
39       intent that a regulated chemical will be used in violation of this act or the
40       controlled substances act;
41           (5) engage in a regulated chemical transaction in violation of a rule
42       and regulation of the secretary.
43           (b) It is unlawful for any person to: (1) Possess a regulated chemical

SB 667--Am. by SCW

13

  1       without a permit or authorization in lieu of a permit issued under section
  2       8 or in a manner not authorized by the permit or authorization;
  3           (2) acquire or obtain, or attempt to acquire or obtain, possession of
  4       a regulated chemical by material misrepresentation, fraud or deception;
  5           (3) knowingly acquire or obtain, or attempt to acquire or obtain, pos-
  6       session of a regulated chemical from anyone other than a regulated chem-
  7       ical distributor properly registered under section 7;
  8           (4) possess a regulated chemical with knowledge or intent that the
  9       chemical will be used in violation of this act or the uniform controlled
10       substances act;
11           (5) possess a regulated chemical with no attached permit or label as
12       required by section 7; or
13           (6) remove, alter, or obliterate any attached permit or label required
14       by section 7;
15           (7) move or distribute a regulated chemical to, or store or possess a
16       regulated chemical at, a location other than that identified in the permit
17       or authorization issued under section 7;
18           (8) fail to present, or to present false or fraudulent identification
19       when identification is required by section 10;
20           (9) knowingly or intentionally furnish false or fraudulent material in-
21       formation in, or omit any material information from, any application, re-
22       port, record, inventory or other document required to be kept or filed
23       under this act or any applicable rule and regulation;
24           (10) fail to attach a permit or label as required by section 7;
25           (11) possess a regulated chemical in violation of a rule and regulation
26       of the secretary;
27           (12) refuse or fail to make, keep, submit or furnish an application,
28       record, report, inventory, notification or other information required un-
29       der this act or any applicable rule and regulation; or
30           (13) refuse entry into controlled premises for any inspection author-
31       ized by section 7 or 8.
32           (c) A person who commits an offense described in subsections (a)(1)
33       through (4) and (b)(1) through (9) is guilty of a severity level 9, nonperson
34       felony.
35           (d) A person who commits an offense described in subsections (a)(5)
36       and (b)(10) through (13) is guilty of a class B nonperson misdemeanor.
37           (e) In addition to any other penalty imposed, a corporation which
38       commits an offense described in this section shall be subject to a civil fine
39       of not more than $20,000.
40           Sec. 14. (a) In addition to any fine or imprisonment imposed under
41       section 13 of this act, the following civil assessment shall be imposed:
42           (1) Ten thousand dollars for each violation described in subsections
43       (a)(5) and (b)(10) through (13) or the actual cleanup costs of illegal lab-

SB 667--Am. by SCW

14

  1       oratory sites, whichever is greater; and
  2           (2) One hundred thousand dollars for each violation described in sub-
  3       sections (a)(1) through (4) and (b)(1) through (9) or the actual cleanup
  4       costs of illegal laboratory sites, whichever is greater.
  5           (b) The assessment provided for in this section shall be collected as
  6       provided for the collection of other civil assessments and judgments.
  7           (c) All moneys collected under this section shall be deposited to the
  8       credit of the chemical control fund and used for the enforcement of this
  9       act and the cleanup of illegal laboratory sites.
10           (d) Moneys from the fund shall not supplant any other local, state or
11       federal funds.
12           Sec. 15. (a) The secretary is authorized to conduct any investigation
13       necessary to determine compliance with this act, and in accordance with
14       the Kansas administrative procedure act may subpoena witnesses, compel
15       their attendance and testimony, and require the production of documen-
16       tary evidence relevant to the investigation. The secretary may invoke the
17       aid of the district court in the jurisdiction of which the investigation is
18       carried on, or in which the subpoenaed person resides, carries on busi-
19       ness, or may be found, to compel compliance with the subpoena.
20           (b) Except as otherwise provided, no documentary material, tran-
21       scripts, oral testimony or copies in the possession of the secretary shall
22       be available prior to the filing of a criminal proceeding for examination
23       by any individual other than the secretary, the secretary's designee, or a
24       local, state or federal law enforcement officer without the consent of the
25       person who produced the material or transcripts.
26           (c) The secretary is authorized to adopt rules and regulations, and to
27       charge reasonable and non-refundable registration, permit, and monthly
28       report authorization fees, which the secretary deems necessary and ap-
29       propriate for the efficient and effective implementation of this act. All
30       nonrefundable fees shall be used for and shall not exceed actual process-
31       ing costs.
32           Sec. 16.[zz] (a) The secretary, the secretary's designee, or a local, state
33       or federal officer empowered by law to conduct investigations of or to
34       make arrests for drug law offenses is authorized to conduct administrative
35       inspections of controlled premises in accordance with the requirements
36       of this section.
37           (b) The secretary's designee, or any law enforcement officer, may
38       inspect controlled premises after making a demand to conduct an in-
39       spection and presenting appropriate credentials to any person identified
40       in an application submitted under section 6 or 7, or if no such person is
41       present or readily available, to any person present at the controlled prem-
42       ises.
43           (c) The demand for inspection must be made and the inspection con-

SB 667--Am. by SCW

15

  1       ducted during regular and usual business hours. The inspection may in-
  2       clude: (1) Inventorying any stock of any regulated chemical and obtaining
  3       samples;
  4           (2) copying records required by this act to be, or in fact, kept; and
  5           (3) inspecting, within reasonable limits and in a reasonable manner,
  6       all pertinent equipment, apparatus, finished and unfinished material, con-
  7       tainers and labeling found thereon, and all other things which help de-
  8       termine compliance with the act including records, files, papers, proc-
  9       esses, controls and facilities.
10           Sec. 17. (a) In addition to procedures provided in section 16 and
11       subsection (e), a district court judge or magistrate within the judge's or
12       magistrate's jurisdiction, and upon proper oath or affirmation showing
13       probably cause, may issue warrants to conduct administrative inspections
14       and seize property as authorized by this act. For the purpose of issuance
15       of an administrative inspection warrant, probable cause exists upon a
16       showing of a valid public interest in the effective enforcement of this act,
17       or rules adopted under this act, sufficient to justify administrative in-
18       spection of the area, premises, building or conveyance in the circum-
19       stances specified in the application for the warrant.
20           (b) A warrant shall be issued only upon an affidavit of the secretary,
21       the secretary's designee, or an officer, sworn to before the judge or mag-
22       istrate, and establishing grounds for issuing the warrant. If the judge or
23       magistrate is satisfied that grounds for the application exist or that there
24       is probable cause to believe they exist, the judge or magistrate shall issue
25       a warrant identifying the area, the conveyance, the building or other
26       premises to be inspected, the purpose of the inspection, and, if appro-
27       priate, the type of property to be inspected, if any.
28           (c) The warrant shall: (1) State the grounds for its issuance and the
29       name of the affiant;
30           (2) be directed to a person authorized by this section to serve and
31       execute the warrant;
32           (3) command the person to whom it is directed to inspect the area,
33       conveyance, building or other premises identified for the purpose spec-
34       ified and, if appropriate, direct the seizure of the property specified;
35           (4) identify the items or types of property to be seized, if any;
36           (5) allow the sale or destruction of regulated chemicals or equipment
37       if appropriate and the deposit of the proceeds of any sale with the court;
38       and
39           (6) direct that the warrant be served during normal business hours
40       or other hours designated by the magistrate and designate the magistrate
41       to whom it shall be returned.
42           (d) A warrant issued pursuant to this section must be served and
43       returned within four days of its date of issue unless, upon a showing of a

SB 667--Am. by SCW

16

  1       need for additional time, the judge or magistrate orders otherwise. If
  2       property is seized pursuant to a warrant, a copy of the warrant shall be
  3       given to the person from whom or from whose premises the property is
  4       taken, together with a receipt for the property taken, or the copy and
  5       receipt shall be left at the place from which the property was taken. The
  6       return of the warrant shall be made promptly, accompanied by a written
  7       inventory of any property taken. The inventory shall be made in the pres-
  8       ence of the person serving the warrant and of the person from whose
  9       possession or premises the property was taken, if present, or in the pres-
10       ence of at least one credible person other than the person serving the
11       warrant. A copy of the inventory shall be delivered to the person from
12       whom or from whose premises the property was taken and to the appli-
13       cant for the warrant.
14           (e) This section does not prevent warrantless entries and administra-
15       tive inspections, including seizures of property, during times other than
16       normal business operating hours: (1) In situations presenting imminent
17       danger to health or safety; or
18           (2) in an emergency or other exigent circumstance where time or
19       opportunity to apply for a warrant is lacking.
20           Sec. 18. (a) All regulated chemicals which have been or are intended
21       to be manufactured, provided, sold, furnished, transferred, delivered, or
22       possessed in violation of this act shall be deemed contraband, and shall
23       be seized and summarily forfeited to the state.
24           (b) A violation of this act shall constitute conduct giving rise to for-
25       feiture pursuant to the Kansas standard asset forfeiture act, K.S.A. 60-
26       4101 et seq. and amendments thereto.
27           Sec. 19. If any provisions of this act or its application to any person
28       or circumstances are held invalid, the invalidity does not affect other
29       provisions or applications of this act which can be given effect without
30       the invalid provision or application, and to this end the provisions of this
31       act are severable.
32           Sec. 20. This act shall take effect and be in force from and after its
33       publication in the statute book.
34      
35