Request for letter or single record reflecting the legal status of Phenethylamine under the Federal Analogue Act

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 any single document, letter, or record in the DEA's possession opining on the legality of the chemical phenethylamine (formula: C8H11N; CAS Number 64-04-0), and its substantial similarity to any Schedule I or II substances as required for restriction under the Federal Analogue Act. 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. I am a legal scholar who researches government analog policy and case law--my work is published in law reviews and is readily available online: e.g., https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=3321&context=nlr One of my articles focuses heavily on the legal status of phenethylamine. As my request will shed light on government actions and policy regarding drug law enforcement and prosecution, I humbly request that all fees be waived.

Sincerely,

Andrew Fels

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

Hi,

I want to note that your agency had until September 8, 2022, to provide a determination as to whether or not my request will be granted. See 5 U.S.C.A. § 552 (a)(6)(A)(i). If this was in error, please send the determination upon receipt of this message. An appeal of this constructive denial will be filed if necessary.

Thank you,

Andrew Fels, Esq.

Hello,

I am appealing the September 8, 2022 constructive denial of FOIA request #22-00983-F for DEA any one record analyzing the legality of phenethylamine.

The DEA has in its possession records regarding 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.

Please let me know if I can be of any further assistance.

Thank you,

Andrew Fels, Esq.

I am renewing the appeal of the constructive denial of my request.

I filed this request on August 18, 2022. A response was required in twenty working days, which would have been by September 16, 2022. After receiving no response, I filed an appeal on September 26, 2022. I received an initial response on September 30, 2022. In that initial response, I was told that unusual circumstances applied which would further delay release of my records on the grounds that the records required searching the records of another agency.

In order to preserve my statutory rights, I must note that this response is insufficient and untimely. First, the response is untimely and insufficient. The unusual circumstances clause allows an additional 10 working days in which to provide a response either granting or denying my request. The September 30 response is 31 days after my initial request, meaning that it needed to either grant or deny my request. It did neither. Instead, it contradictorily claimed that a search was required of another agency and also that it was unclear whether my records existed.

Second, I am requesting one single record, not all responsive records; DEA is saying that a search is required of another agency's records regarding a drug enforcement question. DEA is the Drug Enforcement Agency. DEA scientists have previously testified regarding the question. An indictment was issued for phenethylamine possession most recently in 2018. See Indictment at 2, United States v. Thomas, No. 18-CR-00104 (S.D. Ala. Apr. 26, 2018) (issuing a phenethylamine indictment for .987 of a gram). In order for the search of another agency's records to be required, DEA would need to have no responsive single record. It has a single responsive record for the reasons stated above.

Third, my initial appeal cannot be cut short by a belated agency response ignoring the substance of my appeal and committing additional FOIA violations--such as failure to abide by FOIA deadlines and improper categorization of my request for a single document as being "unusual."

The above stated, I am renewing my appeal of DEA's constructive denial of my request by failing to abide by the statutory timelines.

Thank you,

Andrew Fels, Esq.