Request for all records regarding the legal status of Phenethylamine under the Federal Analogue Act
| Tracking # |
A-2023-00332 22-00941-F |
| Submitted | Aug. 5, 2022 |
| Est. Completion | None |
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Communications
From: ANDREW FELS
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
My name is Andrew Fels. I am requesting all documents, emails, memoranda notes or other written documents that show how the chemists, laboratory employees, or other experts with the Drug and Chemical Evaluation Section of the DEA's Office of Diversion Control made regarding phenethylamine's substantial similarity to any Schedule I or II substances as required for restriction under the Federal Analogue Act, including any monographs, methodologies and specific testing methods. Given phenethylamine's open and widespread sale as a dietary supplement, the question of whether it might be restricted under the Federal Analogue Act presents a matter of great public importance. To that end, I ask that this request be given expedited processing.
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Sincerely,
ANDREW FELS
From: Drug Enforcement Administration
Dear ANDREW FELS,
Case Number 22-00941-F has been assigned to the request you submitted. In all future correspondence regarding this request please reference case number 22-00941-F.
Regards,
DEA
From: Drug Enforcement Administration
Dear ANDREW FELS,
The status of your FOIA request #22-00941-F has been updated to the following status 'Received'. To log into the DEA Public Access Link click on the Application URL below.
Sincerely,
DEA
From: Drug Enforcement Administration
Dear Andrew Fels: This e-mail responds to your Freedom of Information Act/Privacy Act (FOIA/PA) request dated August 8, 2022, received by the Drug Enforcement Administration (DEA), FOIA/PA Unit, seeking access to DEA records. Your request has been opened and assigned the following case number : 22-00941-F. Please include this case number when communicating with this office. For your information, this office assigns incoming requests to one of three tracks: simple, complex, or expedited. Each request is then handled on a first-in, first-out basis in relation to other requests in the same track. Simple requests usually receive a response in approximately one month, whereas complex requests necessarily take longer. At this time, your request has been assigned to the complex track. You may wish to narrow the scope of your request to limit the number of potentially responsive records or agree to an alternative time frame for processing, should records be located; or you may wish to await the completion of our records search to discuss either of these options. We regret the necessity of this delay, but please be assured that your request will be processed as soon as possible. If you have any questions or wish to discuss reformulation or an alternative time frame for the processing of your request, you may contact FOIA/PA Unit representative Rickey L. Polk, Jr. at (571) 776-3325 or via e-mail at Rickey.L.PolkJr@dea.gov, our FOIA Requester Service Center at (571) 776-2300, or e-mail your correspondence to DEA.FOIA@dea.gov. In addition, you may wish to visit our website at www.dea.gov to determine if the information you are requesting is already available to the public. You may contact our FOIA Public Liaison at (571) 776-2300 for any further assistance and to discuss any aspect of your request . Additionally, you may contact the Office of Government Information Services (OGIS) at the National Archives and Records Administration to inquire about the FOIA mediation services they offer. The contact information for OGIS is as follows: Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road, College Park, Maryland 20740-6001; e-mail at ogis@nara.gov; telephone at (202) 741-5770; toll free at 1-877-684-6448; or facsimile at (202) 741-5769. Sincerely, Rickey L. Polk, Jr. FOIA/PA Specialist
Intake Sub-Unit FOIA/PA Unit Drug Enforcement Administration Telephone: (571) 776-3325 E-mail: Rickey.L.PolkJr@dea.gov PRIVACY ACT NOTICE: This e-mail (including any attachments herein) may contain personal and privileged information that requires protection in compliance with the Privacy Act of 1974 ( U.S.C. § 552a). Any use of this information by anyone other than the intended recipient is prohibited . If you have received this communication in error, please immediately delete all copies of this information and notify me by e-mail. The use, dissemination, distribution, or reproduction of this communication by unintended recipients is not authorized and may be unlawful.
From: Drug Enforcement Administration
Dear Andrew Fels: Please see the attached response to your Freedom of Information Act/Privacy Act (FOIA/PA) request 22-00941-F. If you have any questions, please contact our FOIA Requester Service Center at (571) 776-2300. Sincerely,
Yvette D. Davis, Chief Intake Sub-Unit
FOIA/PA Unit Drug Enforcement Administration Telephone: (571) 776-2300 E-mail: DEA.FOIA@dea.gov PRIVACY ACT NOTICE: This e-mail (including any attachments herein) may contain personal andprivileged information that requires protection in compliance with the PrivacyAct of 1974 (5 U.S.C. § 552a). Any useof this information by anyone other than the intended recipient is prohibited. If you have received this communication inerror, please immediately delete all copies of this information and notify meby e-mail. The use, dissemination,distribution, or reproduction of this communication by unintended recipients is not authorized and may be unlawful.
From: Drug Enforcement Administration
Dear Andrew Fels,
The status of your FOIA request #22-00941-F has been updated to the following status 'In Process'. To log into the DEA Public Access Link click on the Application URL below.
Sincerely,
DEA
From: Drug Enforcement Administration
Dear Andrew Fels,
The status of your FOIA request #22-00941-F has been updated to the following status 'Closed'. To log into the DEA Public Access Link click on the Application URL below.
Sincerely,
DEA
From: Drug Enforcement Administration
Dear Andrew Fels: Please see the attached response to your Freedom of Information Act/Privacy Act (FOIA/PA) request 22-00941-F. If you have any questions, please contact our FOIA Requester Service Center at (571) 776-2300. Sincerely, Rickey L. Polk, Jr. FOIA/PA Specialist Intake Sub-Unit
FOIA/PA Unit Drug Enforcement Administration Telephone: (571) 776-3325 E-mail: Rickey.L.PolkJr@dea.gov PRIVACY ACT NOTICE: This e-mail (including any attachments herein) may contain personal andprivileged information that requires protection in compliance with the PrivacyAct of 1974 (5 U.S.C. § 552a). Any useof this information by anyone other than the intended recipient is prohibited. If you have received this communication inerror, please immediately delete all copies of this information and notify meby e-mail. The use, dissemination,distribution, or reproduction of this communication by unintended recipients is not authorized and may be unlawful.
From: ANDREW FELS
Hello,
I am appealing the September 9, 2022 denial of my request for DEA records analyzing the legality of. phenethylamine. The denial claims that the DEA searched the records of DEA Diversion Control but found no documents pertaining to phenethylamine’s legality.
The DEA must have some documents opining upon phenethylamine’s legality because DEA chemists, testifying as expert witnesses, have represented that this chemical is an illicit analogue of methamphetamine: "Although phenethylamine is not a listed controlled substance, the government's position at trial was that phenethylamine was an analogue of the controlled substance methamphetamine and thus prohibited under the analogue statute. . . . Government chemists offered descriptions and comparisons of the chemical structures of the substances.” United States v. McKinney, 79 F.3d 105, 107 (8th Cir. 1996), cert. granted, judgment vacated on other grounds, 520 U.S. 1226 (1997).
There have been more recent attempts to charge defendants for phenethylamine-related crimes. Those attempted prosecution almost certainly relied upon DEA’s determination of the chemical’s legal status.
In order to ensure an “adequate search for responsive records.” Edelman v. S.E.C., 172 F.Supp.3d 133, 144 (D.D.C. 2016), DEA may also want to look into the records of the DEA Office of Forensic Sciences.
Please let me know if I can be of any further assistance.
Thank you,
Andrew Fels, Esq.
From: Muckrock Staff
To Whom It May Concern:
I wanted to follow up on the following Freedom of Information Act request, copied below, and originally submitted on Aug. 8, 2022. Please let me know when I can expect to receive a response. You had assigned it reference number #22-00941-F.
Thanks for your help, and let me know if further clarification is needed.
From: Drug Enforcement Administration
The Office of Information Policy has received your FOIA Appeal. Please see the attached acknowledgment letter.
From: ANDREW FELS
Dear Mrs. Jones,
Thank you for your November 29, 2022 letter responding to my November 3, 2022 appeal. Your letter states that "OIP has adopted a a general practice of assigning appeals in the approximate order of receipt." I understand both OIP's need to maintain an orderly system of appeals and also that you are not personally responsible for setting OIP policy. However, Congress requires an agency answer to an appeal within twenty working days. 5 U.S.C. § 552(a)(6)(A)(ii). No such answer has been received here despite the passage of more than twenty working days. This letter serves as notice that the agency has constructively exhausted all administrative proceedings by failing to respond in a timely manner to this appeal. This FOIA request may now be submitted for judicial review.
As stated in the communication initiating this appeal, DEA scientists have testified upon the legality of phenethylamine during a criminal prosecution. This public testimony both confirms the existence of my requested records and also waives any exceptions or exemptions from FOIA disclosure.
I am more than willing to discuss and negotiate the scope of my request with a DEA FOIA employee in the hopes that some amicable solution can be reached. Ultimately, I simply want to know if phenethylamine is considered an analogue of a Schedule I or II drug and, if so, which features make it an analogue. This is a straightforward, good-faith inquiry. There is no reason to force resort to judicial review.
Thank you,
Andrew Fels, Esq.
From: Drug Enforcement Administration
Dear Andrew Fels: Please see the attached response to your Freedom of Information Act/Privacy Act (FOIA/PA) request 22-00941-F. If you have any questions, please contact our FOIA Requester Service Center at (571) 776-2300. Sincerely, Rickey L. Polk, Jr. FOIA/PA Specialist Intake Sub-Unit
FOIA/PA Unit Drug Enforcement Administration Telephone: (571) 776-3325 E-mail: Rickey.L.PolkJr@dea.gov PRIVACY ACT NOTICE: This e-mail (including any attachments herein) may contain personal andprivileged information that requires protection in compliance with the PrivacyAct of 1974 (5 U.S.C. § 552a). Any useof this information by anyone other than the intended recipient is prohibited. If you have received this communication inerror, please immediately delete all copies of this information and notify meby e-mail. The use, dissemination,distribution, or reproduction of this communication by unintended recipients is not authorized and may be unlawful.
From: Drug Enforcement Administration
The Office of Information Policy has made its final determination on your FOIA Appeal Number A-2023-00332 . A copy of this determination is enclosed for your review, along with any enclosures, if applicable. Thank you.
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