Brief⁽¹⁾

Sub. for H.B. 2469 establishes the manufacture of methamphetamines as an aggravating factor permitting departure by the sentencing judge of not to exceed twice the maximum presumptive sentence and enacts a new Kansas Chemical Control Act establishing certain reporting and other requirements for chemical distributors and retailers. It also would establish procedures for the voluntary reporting of suspicious purchases of nonprescription drugs by retailers to the Kansas Bureau of Investigation (KBI). The bill creates a new crime of unlawful endangerment and a crime of possession of certain drugs with the intent to use these as a precursor to any illegal substance. The bill permits the use of silencers by police officer tactical units regarding drug crimes and makes other changes.

Major features of the bill are as follows.

Methamphetamine Manufacturing--

Enhanced Penalty for Departure

A violation of the prohibition against the manufacture of a controlled substance (K.S.A. 65-4159) for the first offense and for a second or subsequent violation would be subject to an upward departure if it involved the manufacture of methamphetamines.

New Crimes Created--Possession of Certain

Drugs; Unlawful Endangerment

The bill creates a new crime which makes it illegal to possess ephedrine, pseudoephedrine, or phenylpropanolamine or their salts with the intent to use the product as a precursor to any illegal substance. Further, it will be illegal to market, sell, distribute, advertise, or label any drug product containing these chemicals for stimulation, mental alertness, weight loss, appetite control, energy, or other purpose not federally approved. The penalty for a violation is a drug severity level 1 felony.

The bill creates the new crime of unlawful endangerment which includes the following provisions:

• Anyone who, while engaging in the production or protection of the controlled substance, and who sets up, builds, erects, or uses any device or weapon which causes or is intended to cause damage or injury to another. This provision is punishable as a level 8 nonperson felony.



• Anyone who, while engaged in the activities specified above and which causes physical injury. This provision constitutes a severity level 7 person felony.



• Anyone who, while engaged in the activities above and which causes serious physical injury. This provision is a severity level 5 person felony.

Anhydrous Ammonia

The chemical anhydrous ammonia to be used for the illegal production of a controlled substance is added to the list of prohibited substances and items. A violation would be a drug severity level 4 felony.

Use of Silencers

An additional exception to this crime which prohibits the use of silencers would allow for the use of silencers by law enforcement officers with a tactical unit which receives specialized training regarding drug crimes.

Hazardous Materials--Evidence Distribution

Amendments to K.S.A. 22-2512 would allow for the destruction or disposition of hazardous materials, with the approval of the appropriate court. Representatives of such hazardous materials accompanied by photographs, videotapes, laboratory analysis reports, or other verification means will be admissible as evidence in any proceeding, hearing, or trial.

Forfeited Property

The House Committee of the Whole amended the bill to provide that any property forfeited under the Act will be sold to the highest bidder for cash. Moneys from the sale will go to the cleanup account in the Chemical Control Fund to be used only for cleanup costs.

Multi-Jurisdictional Law Enforcement

Any county which borders another state may enter into agreement with the other state's contiguous county to form a multi-jurisdictional law enforcement group for the enforcement of drug and controlled substances laws. The other state's law enforcement officers will have the same powers and immunities as Kansas law enforcement officers in these instances.

The Kansas Chemical Control Act

• The purpose of the Act is to prevent the illegal diversion of precursor chemicals by creating a system which will provide information on the distribution of regulated chemicals while protecting legitimate uses.



• Regulated chemicals are defined as chemicals used to manufacture a controlled substance or other chemical in violation of the Controlled Substances Act. The list of regulated chemicals is included. An exception to the list which includes ephedrine are products containing ephedra marketed as dietary supplements under federal law.



• Exceptions to the Act include those persons who lawfully transport, administer, or dispense regulated chemicals. Such an exemption would apply to truck drivers, warehousemen, physicians, dentists, veterinarians, and pharmacists in the lawful course of business.



• The Secretary of the Kansas Department of Health and Environment (KDHE) is authorized to adopt rules and regulations to carry out the provisions of the Act.



• A regulated distributor or retailer would be required to report to the KBI the following suspicious transactions:

• any regulated transaction involving an extraordinary quantity of a listed chemical, uncommon method of payment or delivery, or other suspicious circumstance that could indicate a violation of the Act;



• any regulated transaction with a person whose description has been furnished by the KBI; and



• any unusual or excessive loss or disappearance of a regulated chemical under the control of the retailer or distributor; an in-transit loss report is the responsibility of the distributor.





• Initial reports to the KBI will be oral at the earliest opportunity; written reports must be filed within 15 days of the occurrence.

• Exceptions to the reporting requirement include pharmacists, practitioners, lawful sales involving regulated chemicals in over-the-counter transactions, and a retailer who sells or distributes nonprescription medicines with less than 3 grams of base ingredient as follows:

• blister packs of not more than two dosage units per blister;
• liquid cold or cough medicines;
• liquid cold or cough gel capsules; and
• nasal drops or sprays.





• Violations of the Act are punishable by a fine of up to $25,000. For continuing violations, every day the violation continues will be a separate violation. The Secretary of KDHE or the Director of the Division of Environment may impose the penalty. A person who violates the Act will also be liable for detection and investigation costs, costs of cleanup, and for damages or injury to natural resources. In addition, a civil action in the county where the violation allegedly occurred may be brought. Any moneys collected under these provisions will be deposited in a new fund entitled the Chemical Control Fund. Provisions regarding the Fund are contained in the bill.



• The Secretary of KDHE is authorized to contract with a hazardous waste contractor regarding the investigation and cleanup of chemical materials.



• KDHE would be authorized to enter onto the premises of an alleged illegal drug manufacturing site at reasonable times to take remedial and other actions.



• Other responsibilities and duties of the Secretary are outlined in the bill. The bill also creates joint and several liability for cleanup costs, among the following:



• a person operating an alleged illegal drug manufacturing site;



• an owner of an alleged illegal drug manufacturing site;

• an owner of such a site who had actual knowledge of the illegal operations and who failed to notify the appropriate authorities;



• a person who may have caused or contributed to the illegal operation;



• a person who unlawfully hinders or delays entry to, investigation of, or cleanup action at a site.

• Exceptions to liability involving cleanup include the following:



• a unit of state or local government that acquired ownership or control of a site as a result of tax delinquency, abandonment, exercise of eminent domain, forfeiture, purchase, or condemnation;



• an owner or operator who acquired the site after the creation of the illegal operation and who did not know of the damages;



• a person not otherwise responsible who acquired a site by inheritance or bequest;



• local governments that take action in response to an emergency created by chemicals at a site owned by another person; and



• manufacturers, distributors, and retailers registered with the Board of Pharmacy who act without knowledge of or intent to furnish supplies to an illegal drug manufacturing site.





• All regulated chemicals which have been or are intended to be involved in the described illegal activities are deemed to be contraband and may be seized and forfeited to the state.

The Senate Committee amended the bill to delete illegal drug manufacturing penalty enhancements and provide instead departure for methamphetamine manufacturing, to add the retailer voluntarily reporting to allow KDHE to enter onto alleged illegal drug manufacturing sites and to make a technical change regarding an exception from the Chemical Control Act for licensed producers.

The Senate Committee of the Whole amended the bill to delete the authorization for use of silencers; to delete ammunition and components thereof from saving of samples of hazardous materials that may otherwise be destroyed which would otherwise be considered evidence; and to strike the word "potential" when referring to an illegal drug manufacturing site dealing with site investigation and cleanup.

Background

The Attorney General, who requested the bill, testified in support of the bill. An Assistant Attorney General explained provisions of the bill for the Committee. Letters of support for the measure were submitted on behalf of the Kansas Peace Officers Association, the Douglas County Sheriff, and the Kansas Association of Chiefs of Police. The State Representative from Cherokee County testified in favor of the measure. He cited specific problems in his area as a result of methamphetamine laboratories. The representative from KDHE expressed support for the measure as a means to create a chemical monitoring program for precursor chemicals used in the illegal manufacture of methamphetamines.

Opposition to certain provisions of the bill was expressed by conferees from the Non-Prescription Drug Manufacturers Association and the Dietary Supplement Coalition. A letter from the Bayer Corporation echoed these concerns. Written material was provided by the Executive Director of the Kansas Sentencing Commission.

The revised fiscal note for H.B. 2469 as it passed the House Committee estimated the following:

• Six added employees for KDHE with an annual operations cost of $90,300 plus estimated cleanup costs as high as $1,086,000 annually.



• Prison impact of between 111 and 426 added admissions for a prison capacity cost of between $28.6 million to $161.1 million plus additional Department of Corrections operating costs of between $14.3 million and $32.3 million.

There has not been a revised fiscal note prepared to reflect changes made by the Senate Committee.

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/bill_search.html