Legal Memorandum: Transactions involving Listed Chemicals

Issue: When does a person have a duty to report transactions involving listed chemicals to the U.S. government?

           A person commits unlawful acts under 21 U.S.C. §§ 842(a)(5) and (10) if he was required, but failed, to report to the DEA suspicious transactions, as defined in 21 U.S.C. § 830(b)(1)(A).  There is no violation of a reporting duty imposed by § 830(b)(1) if that provision imposed no duty on the person.

The statute provides:

(b) Reports to Attorney General.  (1) Each regulated person shall report to the Attorney General, in such form and manner as the Attorney General shall prescribe by regulation—

(A) any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance that the regulated person believes may indicate that the listed chemical will be used in violation of this title; . . .

Each report under subparagraph (A) shall be made at the earliest practicable opportunity after the regulated person becomes award of the circumstances involved. . . .  The Attorney General shall make available to regulated persons guidance documents describing transactions and circumstances for which reports are required under subparagraph (A) and subparagraph (C).

21 U.S.C. § 830(b)(1) (emphasis added). 

The reporting requirement of 21 U.S.C. § 830(b)(1) is not triggered merely because, viewed objectively, a particular transaction involves an extraordinary quantity.  Instead, a report is not required until "after the regulated person becomes aware of the circumstances involved."  Id. 

Congress’ language— "after the regulated person becomes aware"—clearly shows its intent […]