Recordkeeping and Reporting Requirements for Drug Products Containing Gamma-Hydroxybutyric Acid (GHB), 291-294 [05-56]
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Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations
NGA to provide non-discriminatory
service and the non-discriminatory
provisions of the Standards of Conduct
regarding the implementation of tariffs
should serve as a guideline for Texas
Gas’s behavior in complying with
sections 4 and 5 of the NGA.
G. Miscellaneous Corrections
50. The Commission is also making
some miscellaneous corrections to
typographical errors in the regulatory
text. Specifically, Entergy has pointed
out that § 358.4(b)(3)(vi) contains a
reference to § 37.3 which Entergy
believes should be § 37.6. The
Commission agrees, and § 358.4(b)(3)(vi)
is being corrected to reference § 37.6.
Also, § 358.3(d)(6)(vi) is revised to
remove ‘‘producer’’ and replace it with
‘‘processor’’ to reflect the Commission’s
intent of this provision as described in
paragraph 30 of Order No. 2004–B.
Pipeline, L.L.C.; and Texas Eastern
Transmission, LP (collectively, Duke
Pipelines)
Calpine Corporation (Calpine)
Cinergy Services, Inc. (Cinergy)
Edison Electric Institute (EEI)
Entergy Services, Inc. (Entergy)
Interstate Natural Gas Association of America
(INGAA)
National Fuel Gas Supply Corporation jointly
with National Fuel Gas Distribution
Corporation (collectively, National Fuel)
National Grid USA (National Grid)
Natural Gas Supply Association (NGSA)
OkTex Pipeline Company (OkTex)
Public Service Commission of the State of
New York (PSC New York)
Southwest Gas Corporation (Southwest Gas)
Tractebel Calypso Pipeline, LLC (Tractebel)
Utah Public Service Commission (Utah PSC)
Wyoming Public Service Commission
(Wyoming PSC)
[FR Doc. 05–16 Filed 1–3–05; 8:45 am]
BILLING CODE 6717–01–P
By the Commission.
Linda Mitry,
Deputy Secretary.
DEPARTMENT OF JUSTICE
In consideration of the foregoing, the
Commission amends part 358, Chapter I,
Title 18 of the Code of Federal
Regulations, as follows:
Drug Enforcement Administration
21 CFR Parts 1304, 1306, and 1310
PART 358—STANDARDS OF
CONDUCT
RIN 1117–AA71
I
[Docket No. DEA–234F]
1. The authority citation for part 358
continues to read as follows:
Authority: 15 U.S.C. 717–717w, 3301–
3432; 16 U.S.C. 791–825r, 2601–2645; 31
U.S.C. 9701; 42 U.S.C. 7101–7352.
Recordkeeping and Reporting
Requirements for Drug Products
Containing Gamma-Hydroxybutyric
Acid (GHB)
AGENCY:
I
§ 358.3
Drug Enforcement
Administration (DEA), Justice.
ACTION: Final rule.
[Amended]
2. In § 358.3(d)(6)(vi) the word
‘‘producer’’ is removed and the word
‘‘processor’’ is inserted in its place.
I
SUMMARY: DEA is amending its
regulations to require additional
recordkeeping and reporting
requirements for drug products
§ 358.4 [Amended]
containing gamma-hydroxybutyric acid
I 3. In § 358.4(b)(3)(vi) the word ‘‘§ 37.3’’
(GHB) for which an application has
is removed and the word ‘‘§ 37.6’’ is
been approved under the Federal Food,
inserted in its place.
Drug, and Cosmetic Act. DEA makes
these changes under section 4 of the
§ 358.5 [Amended]
‘‘Hillory J. Farias and Samantha Reid
I 4. In § 358.5(d), the words ‘‘the
Date-Rape Drug Prohibition Act of
quantity of power or gas scheduled to be
2000.’’ These additional requirements
moved’’ are removed and the words ‘‘the
are necessary to protect against the
quantity of power or gas upon which the
diversion of GHB for illicit purposes.
discount is based,’’ are inserted in their
EFFECTIVE DATE: February 3, 2005.
place.
FOR FURTHER INFORMATION CONTACT:
Note: This Appendix A will not be
Patricia M. Good, Chief, Liaison and
published in the Code of Federal Regulations.
Policy Section, Office of Diversion
Control, Drug Enforcement
Appendix A
Administration, Washington, DC 20537.
List of Petitioners Requesting Rehearing or
Telephone (202) 307–7297.
Clarification or submitting Comments
SUPPLEMENTARY INFORMATION:
American Gas Association (AGA)
AES Ocean Express LLC (AES)
Algonquin Gas Transmission, LLC; jointly
with East Tennessee Natural Gas, LLC;
Egan Hub Storage, LLC; Gulfstream Natural
Gas System, L.L.C.; Maritimes & Northeast
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Controlled Substances and Listed
Chemicals
Controlled substances are drugs that
have a potential for abuse and
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291
addiction; these include opiates,
stimulants, depressants, hallucinogens,
anabolic steroids, and substances that
are immediate precursors to these
controlled substances. Controlled
substances are listed in 21 CFR part
1308. The substances are divided into
five schedules. Schedule I substances
are drugs for which there is a high
potential for abuse, no currently
accepted medical treatment in use in the
United States, and lack accepted safety
for use under medical supervision.
Schedule II–V substances have accepted
medical uses, but have a potential for
abuse and may lead to physical and
psychological dependence. Such drugs
are subject to varying levels of control.
Chemicals that can be used to
manufacture controlled substances are
regulated as either List I chemicals
(important to the manufacture) or List II
chemicals (used in the manufacture) of
controlled substances.
Background
Gamma-Hydroxybutyric acid (GHB) is
a central nervous system depressant
drug. In recent years, the abuse of GHB
has increased substantially. GHB is
abused for its euphoric and purported
hallucinogenic effects, as well as for its
alleged role as an agent to stimulate
muscle growth. GHB can produce
drowsiness, dizziness, nausea, visual
disturbances, unconsciousness,
seizures, severe respiratory depression,
coma, and death.
GHB can be produced in clandestine
laboratories using a relatively simple
synthesis with readily available and
inexpensive source materials. GammaButyrolactone (GBL), a List I chemical,
is an industrial chemical that is used in
the illicit manufacture of GHB. GBL and
1,4-butanediol, another industrial
chemical, are also abused for their GHBlike effects. Due to their structural and
pharmacological similarities to GHB,
GBL and 1,4-butanediol are considered
controlled substance analogues as
defined by 21 U.S.C. 802(32).
Manufactured GHB usually results in a
clear solution that can be disguised by
adding food coloring, flavorings, or
storing it in different kinds of bottles
and containers.
The listed chemical GBL has many
industrial applications, and has not
been scheduled at this time to prevent
an undue regulatory burden to
legitimate commerce in this substance.
Because GBL is a controlled substance
analogue, individuals who manufacture
or distribute or possess with intent to
manufacture or distribute this chemical
intending it for human consumption
may be prosecuted under provisions of
the Controlled Substances Act. This is
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Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations
because a controlled substance analogue
which is intended for human
consumption is treated as a Schedule I
controlled substance. When handled for
industrial purposes, with no intent for
human consumption, it is not treated as
a Schedule I controlled substance and
those handling it are not subject to any
Schedule I controlled substances
penalties under the Controlled
Substances Act.
Regulatory History
On February 18, 2000, the ‘‘Hillory J.
Farias and Samantha Reid Date-Rape
Drug Prohibition Act of 2000’’ was
enacted (Pub. L. 106–172, 114 Stat. 7).
Public Law 106–172 declared GHB an
imminent hazard to public safety that
required immediate regulatory action
under the Controlled Substances Act.
Public Law 106–172 required the
Attorney General to list GHB as a
Schedule I controlled substance and
designated GBL as a List I chemical. As
a result of the Hillory J. Farias and
Samantha Reid Date-Rape Drug
Prohibition Act, DEA issued two final
rules: Schedules of Controlled
Substances: Addition of GammaHydroxybutyric Acid to Schedule I (65
FR 13235, March 13, 2000) (corrected at
65 FR 17440, April 3, 2000) and
Placement of Gamma-Butyrolactone in
List I of the Controlled Substances Act
(21 U.S.C. 802(34)) (65 FR 21645, April
24, 2000).
Under the March 13, 2000 final rule,
GHB and its salts, isomers, and salts of
isomers were placed in Schedule I, and
GHB became subject to the regulatory
controls and administrative, civil, and
criminal sanctions applicable to the
manufacture, distribution, dispensing,
importing, and exporting of a Schedule
I controlled substance. As required by
the Hillory J. Farias and Samantha Reid
Date-Rape Drug Prohibition Act, the
March 13, 2000 final rule created an
exception for drug products containing
GHB, including its salts, isomers, and
salts of isomers, for which an
application is approved under section
505 of the Federal Food, Drug, and
Cosmetic Act (FDCA) (21 U.S.C. 355).
The exception placed any such drug
products—there were none approved at
the time the legislation was passed—in
Schedule III. Therefore, registered
manufacturers and distributors of FDAapproved drug products containing GHB
are subject to Schedule III regulatory
requirements. However, criminal
penalties for unlawful distributions of
these drug products are those for
Schedule I controlled substances.
On July 17, 2002, the Food and Drug
Administration (FDA) approved Xyrem,
a drug product containing gamma-
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hydroxybutyric acid, as a drug for the
treatment of cataplexy associated with
narcolepsy.
Notice of Proposed Rulemaking
The March 13, 2000 final rule did not
address the recordkeeping and reporting
requirements recommended by the
Hillory J. Farias and Samantha Reid
Date-Rape Drug Prohibition Act for drug
products containing GHB for which an
application is approved under section
505 of the FDCA. On November 25,
2003 DEA issued a notice of proposed
rulemaking (68 FR 66048) to establish
requirements to prevent the diversion of
Schedule III GHB drug products for
illicit purposes as was intended by
Congress as part of the regulatory
scheme for these products. DEA
received no comments in response to
the November 25, 2003 notice of
proposed rulemaking and is adopting
the rule language as proposed.
In response to section 4 of the Hillory
J. Farias and Samantha Reid Date-Rape
Drug Prohibition Act, this rule
establishes recordkeeping requirements
for practitioners dispensing Schedule III
GHB drug products and reporting
requirements for manufacturers and
distributors of Schedule III GHB drug
products. Under existing 21 CFR
1304.22(c), dispensers of any controlled
substance, including GHB, are required
to maintain the name and address of the
person to whom the controlled
substance was dispensed, the date of
dispensing, the number of units or
volume dispensed, and the written or
typewritten name or initials of the
individual who dispensed or
administered the substance on behalf of
the dispenser. This final rule adds 21
CFR 1304.26, which requires
pharmacies and practitioners dispensing
GHB to maintain and make available for
inspection the name of the prescribing
practitioner, the prescribing
practitioner’s Federal and State
registration numbers with expiration
dates, verification that the prescribing
practitioner possesses appropriate
registration, and the patient’s insurance
provider, if available. Section 4 of the
Hillory J. Farias and Samantha Reid
Date-Rape Drug Prohibition Act also
recommended that DEA establish a
recordkeeping requirement for
‘‘documentation by a medical
practitioner licensed and registered to
prescribe the drug of the patient’s
medical need for the drug.’’ Part of this
recommendation is satisfied by existing
DEA requirements in 21 CFR 1306.04
which state that prescriptions ‘‘must be
issued for a legitimate medical
purpose.’’ To further satisfy this
statutory requirement, DEA has
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amended 21 CFR 1306.05 to require that
the medical need be written on the
prescription.
This final rule also amends 21 CFR
1304.33 to include Schedule III GHB
drug products as controlled substances
that must be reported under the
Automation of Reports and
Consolidated Orders System (ARCOS).
ARCOS is an automated, comprehensive
drug reporting system that monitors the
flow of DEA controlled substances from
their point of manufacture through
commercial distribution channels to
point of sale or distribution at the
dispensing/retail level, e.g., hospitals,
retail pharmacies, practitioners, midlevel practitioners, and teaching
institutions. Included in the list of
controlled substance transactions
tracked by ARCOS are the following: All
Schedules I and II materials
(manufacturers and distributors);
Schedule III narcotic materials
(manufacturers and distributors); and
selected Schedules III and IV
psychotropic controlled substances
(manufacturers only). This final rule
adds Schedule III GHB drug products to
this list for both manufacturers and
distributors.
In addition, section 4 of the Hillory J.
Farias and Samantha Reid Date-Rape
Drug Prohibition Act recommended that
DEA apply the mail order reporting
requirements of 21 U.S.C. 830(b)(3) to
‘‘gamma hydroxybutyric acid to the
same extent and in the same manner as
such section applies with respect to the
chemicals and drug products specified
in subparagraph (B)(i) of such section.’’
DEA has complied with these
recommendations in this final rule by
amending 21 CFR 1310.03(c), which
makes GHB subject to mail order
requirements established under the
Methamphetamine Anti-Proliferation
Act of 2000 (MAPA) (Title XXXVI of the
‘‘Children’s Health Act of 2000’’ (Pub. L.
106–310, 114 Stat. 1101)). The
Methamphetamine Anti-Proliferation
Act of 2000 imposed mail order
reporting requirements for export
transactions involving ephedrine,
pseudoephedrine, or
phenylpropanolamine. These reporting
requirements do not apply to
distributions of drug products,
including GHB, under a valid
prescription, which were excluded
under MAPA (21 U.S.C. 830(b)(3)(D)).
Regulations implementing MAPA were
published October 7, 2003 (68 FR
57799). The net effect is that all export
transactions involving GHB must be
reported to DEA. Transactions involving
prescriptions of GHB are not required to
be reported to DEA.
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Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations
Regulatory Certifications
Unfunded Mandates Reform Act of 1995
Regulatory Flexibility Act
This rulemaking will not result in the
expenditure by State, local, and tribal
governments in the aggregate, or by the
private sector, of $114.5 million or more
in any one year, and will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
The Deputy Assistant Administrator
certifies that this rulemaking has been
drafted in accordance with the
Regulatory Flexibility Act (5 U.S.C.
605(b)). The Deputy Assistant
Administrator has reviewed this
regulation, and by approving it certifies
that it will not have a significant
economic impact upon a substantial
number of small entities. This
rulemaking creates new recordkeeping
and reporting requirements which will
have an extremely limited impact on a
small number of registrants due to the
restricted use of GHB for legitimate
medical purposes. As a condition of
Xyrem’s (the FDA-approved product
containing GHB) approval, a risk
management program was designed to
limit its distribution. Under this
program, Xyrem will only be available
to physicians and patients through a
single centralized pharmacy. As a result
of this program, at this time, controlled
substance distributors and retail
pharmacies will not be handling Xyrem
and, thus, will not be affected by these
requirements. For those few persons
affected by these regulations, the
information requested by these added
records is readily and commonly
available, and due to the limited
distribution of GHB, the impact on
reporting requirements should be
minimal.
Executive Order 12866
The Deputy Assistant Administrator
further certifies that this regulation has
been drafted in accordance with the
principles of Executive Order 12866,
Section 1(b). This action has been
determined to be a ‘‘significant
regulatory action’’ under Executive
Order 12866, and accordingly this rule
has been reviewed by the Office of
Management and Budget.
Executive Order 12988
This regulation meets the applicable
standards set forth in Sections 3(a) and
3(b)(2) of Executive Order 12988.
Executive Order 13132
This rulemaking does not preempt or
modify any provision of State law; nor
does it impose enforcement
responsibilities on any State; nor does it
diminish the power of any State to
enforce its own laws. Accordingly, this
rulemaking does not have federalism
implications warranting the application
of Executive Order 13132.
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Paperwork Reduction Act
While, technically, this rule requires
new, minimal recordkeeping and
reporting requirements for drug
products containing GHB, DEA does not
believe that these recordkeeping and
reporting requirements create any
greater hour or cost burden for
respondents than what already exists.
Records required to be maintained by
dispensing practitioners under 21 CFR
1304.26, including the prescribing
practitioner’s name, address, state
license and federal registration
numbers, and the patient’s insurance
provider (if available) are all records
which are maintained as a usual course
of professional practice by a dispensing
practitioner. The reporting requirements
in 21 CFR 1304.33 are part of an
already-approved collection of
information (OMB 1117–0003: ARCOS
Transaction Reporting—DEA Form 333).
DEA believes that the additional
reporting requirements will have no
impact on the hour or cost burden for
respondents as reports are generated
and submitted electronically. As has
been stated previously, due to the risk
management plan established for Xyrem
(the FDA-approved drug product
containing GHB) this product has an
extremely limited distribution potential.
Because of the nature of this product’s
distribution, DEA anticipates that fewer
than five persons will be impacted by
the requirement to report handling
Schedule III GHB products to ARCOS,
and those persons are already filing
reports with DEA for other controlled
substances handled. The system
modifications necessary to generate this
report will occur as a normal part of a
registrant’s handling of this product.
Therefore, DEA is not submitting any
changes or amendments to its active
information collections under the
Paperwork Reduction Act of 1995.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rulemaking is not a major rule as
defined by section 804 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This rule will not
result in an annual effect on the
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293
economy of $100 million or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation or on the
ability of U.S.-based companies to
compete with foreign-based companies
in domestic and export markets.
List of Subjects
21 CFR Part 1304
Drug traffic control, Reporting and
recordkeeping requirements.
21 CFR Part 1306
Drug traffic control, Prescription
drugs.
21 CFR Part 1310
Drug traffic control, List I and List II
chemicals, Reporting and recordkeeping
requirements.
I For the reasons set out above, 21 CFR
parts 1304, 1306, and 1310 are amended
as follows:
PART 1304—RECORDS AND
REPORTS OF REGISTRANTS
1. The authority citation for 21 CFR
part 1304 continues to read as follows:
I
Authority: 21 U.S.C. 821, 827, 871(b), 958,
965, unless otherwise noted.
2. Section 1304.22 is amended by
revising paragraph (c) to read as follows:
I
§ 1304.22 Records for manufacturers,
distributors, dispensers, researchers,
importers and exporters.
*
*
*
*
*
(c) Records for dispensers and
researchers. Each person registered or
authorized to dispense or conduct
research with controlled substances
shall maintain records with the same
information required of manufacturers
pursuant to paragraph (a)(2)(i), (ii), (iv),
(vii), and (ix) of this section. In addition,
records shall be maintained of the
number of units or volume of such
finished form dispensed, including the
name and address of the person to
whom it was dispensed, the date of
dispensing, the number of units or
volume dispensed, and the written or
typewritten name or initials of the
individual who dispensed or
administered the substance on behalf of
the dispenser. In addition to the
requirements of this paragraph,
practitioners dispensing gammahydroxybutyric acid under a
prescription must also comply with
§ 1304.26.
*
*
*
*
*
I 3. Section 1304.26 is added to read as
follows:
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Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations
§ 1304.26 Additional recordkeeping
requirements applicable to drug products
containing gamma-hydroxybutyric acid.
In addition to the recordkeeping
requirements for dispensers and
researchers provided in § 1304.22,
practitioners dispensing gammahydroxybutyric acid that is
manufactured or distributed in
accordance with an application under
section 505 of the Federal Food, Drug,
and Cosmetic Act must maintain and
make available for inspection and
copying by the Attorney General, all of
the following information for each
prescription:
(a) Name of the prescribing
practitioner.
(b) Prescribing practitioner’s Federal
and State registration numbers, with the
expiration dates of these registrations.
(c) Verification that the prescribing
practitioner possesses the appropriate
registration to prescribe this controlled
substance.
(d) Patient’s name and address.
(e) Patient’s insurance provider, if
available.
I 4. Section 1304.33 is amended by
revising paragraph (c) and the
introductory text of paragraph (d)(1) to
read as follows:
§ 1304.33
Reports to ARCOS.
*
*
*
*
*
(c) Persons reporting. For controlled
substances in Schedules I, II, narcotic
controlled substances in Schedule III,
and gamma-hydroxybutyric acid drug
product controlled substances in
Schedule III, each person who is
registered to manufacture in bulk or
dosage form, or to package, repackage,
label or relabel, and each person who is
registered to distribute, including each
person who is registered to reverse
distribute, shall report acquisition/
distribution transactions. In addition to
reporting acquisition/distribution
transactions, each person who is
registered to manufacture controlled
substances in bulk or dosage form shall
report manufacturing transactions on
controlled substances in Schedules I
and II, each narcotic controlled
substance listed in Schedules III, IV,
and V, gamma-hydroxybutyric acid drug
product controlled substances in
Schedule III, and on each psychotropic
controlled substance listed in Schedules
III and IV as identified in paragraph (d)
of this section.
(d) Substances covered. (1)
Manufacturing and acquisition/
distribution transaction reports shall
include data on each controlled
substance listed in Schedules I and II,
on each narcotic controlled substance
listed in Schedule III (but not on any
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Jkt 205001
material, compound, mixture or
preparation containing a quantity of a
substance having a stimulant effect on
the central nervous system, which
material, compound, mixture or
preparation is listed in Schedule III or
on any narcotic controlled substance
listed in Schedule V), and on gammahydroxybutyric acid drug products
listed in Schedule III. Additionally,
reports on manufacturing transactions
shall include the following psychotropic
controlled substances listed in
Schedules III and IV:
*
*
*
*
*
PART 1306—PRESCRIPTIONS
5. The authority citation for part 1306
continues to read as follows:
I
Authority: 21 U.S.C. 821, 829, 871(b)
unless otherwise noted.
6. Section 1306.05 is amended by
revising paragraph (a) to read as follows:
I
§ 1306.05 Manner of issuance of
prescriptions.
(a) All prescriptions for controlled
substances shall be dated as of, and
signed on, the day when issued and
shall bear the full name and address of
the patient, the drug name, strength,
dosage form, quantity prescribed,
directions for use and the name, address
and registration number of the
practitioner. Where a prescription is for
gamma-hydroxybutyric acid, the
practitioner shall note on the face of the
prescription the medical need of the
patient for the prescription. A
practitioner may sign a prescription in
the same manner as he would sign a
check or legal document (e.g., J.H. Smith
or John H. Smith). Where an oral order
is not permitted, prescriptions shall be
written with ink or indelible pencil or
typewriter and shall be manually signed
by the practitioner. The prescriptions
may be prepared by the secretary or
agent for the signature of a practitioner,
but the prescribing practitioner is
responsible in case the prescription
does not conform in all essential
respects to the law and regulations. A
corresponding liability rests upon the
pharmacist, including a pharmacist
employed by a central fill pharmacy,
who fills a prescription not prepared in
the form prescribed by DEA regulations.
*
*
*
*
*
PART 1310—RECORDS AND
REPORTS OF LISTED CHEMICALS
AND CERTAIN MACHINES
7. The authority citation for part 1310
is revised to read as follows:
I
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Authority: 21 U.S.C. 802, 827(h), 830,
871(b) 890.
8. Section 1310.03 is amended by
revising paragraph (c) to read as follows:
I
§ 1310.03 Persons required to keep
records and file reports.
*
*
*
*
*
(c) Each regulated person who
engages in a transaction with a
nonregulated person or who engages in
an export transaction that involves
ephedrine, pseudoephedrine,
phenylpropanolamine, or gammahydroxybutyric acid, including drug
products containing these chemicals,
and uses or attempts to use the Postal
Service or any private or commercial
carrier must file monthly reports of each
such transaction as specified in
§ 1310.05 of this part.
Dated: December 22, 2004.
William J. Walker,
Deputy Assistant Administrator, Office of
Diversion Control.
[FR Doc. 05–56 Filed 1–3–05; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1310
[Docket No. DEA–137f2]
RIN 1117–AA31
Exemption of Chemical Mixtures;
Correction
Drug Enforcement
Administration (DEA), Justice.
ACTION: Final rule with request for
comment; correction.
AGENCY:
SUMMARY: This document corrects the
Final Rule with request for comment
‘‘Exemption of Chemical Mixtures’’
[Docket No. DEA–137f2, RIN 1117–
AA31] which DEA published in the
Federal Register on Wednesday,
December 15, 2004 (69 FR 74957). The
Final Rule concerned the exemption of
certain chemical mixtures containing
listed chemicals from the provisions of
the Controlled Substances Act.
DATES: This correction is effective
January 14, 2005.
FOR FURTHER INFORMATION CONTACT:
Christine A. Sannerud, Ph.D., Chief,
Drug and Chemical Evaluation Section,
Office of Diversion Control, Drug
Enforcement Administration,
Washington, DC 20537, Telephone (202)
307–7183
SUPPLEMENTARY INFORMATION:
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Agencies
[Federal Register Volume 70, Number 2 (Tuesday, January 4, 2005)]
[Rules and Regulations]
[Pages 291-294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-56]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Parts 1304, 1306, and 1310
[Docket No. DEA-234F]
RIN 1117-AA71
Recordkeeping and Reporting Requirements for Drug Products
Containing Gamma-Hydroxybutyric Acid (GHB)
AGENCY: Drug Enforcement Administration (DEA), Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DEA is amending its regulations to require additional
recordkeeping and reporting requirements for drug products containing
gamma-hydroxybutyric acid (GHB) for which an application has been
approved under the Federal Food, Drug, and Cosmetic Act. DEA makes
these changes under section 4 of the ``Hillory J. Farias and Samantha
Reid Date-Rape Drug Prohibition Act of 2000.'' These additional
requirements are necessary to protect against the diversion of GHB for
illicit purposes.
EFFECTIVE DATE: February 3, 2005.
FOR FURTHER INFORMATION CONTACT: Patricia M. Good, Chief, Liaison and
Policy Section, Office of Diversion Control, Drug Enforcement
Administration, Washington, DC 20537. Telephone (202) 307-7297.
SUPPLEMENTARY INFORMATION:
Controlled Substances and Listed Chemicals
Controlled substances are drugs that have a potential for abuse and
addiction; these include opiates, stimulants, depressants,
hallucinogens, anabolic steroids, and substances that are immediate
precursors to these controlled substances. Controlled substances are
listed in 21 CFR part 1308. The substances are divided into five
schedules. Schedule I substances are drugs for which there is a high
potential for abuse, no currently accepted medical treatment in use in
the United States, and lack accepted safety for use under medical
supervision. Schedule II-V substances have accepted medical uses, but
have a potential for abuse and may lead to physical and psychological
dependence. Such drugs are subject to varying levels of control.
Chemicals that can be used to manufacture controlled substances are
regulated as either List I chemicals (important to the manufacture) or
List II chemicals (used in the manufacture) of controlled substances.
Background
Gamma-Hydroxybutyric acid (GHB) is a central nervous system
depressant drug. In recent years, the abuse of GHB has increased
substantially. GHB is abused for its euphoric and purported
hallucinogenic effects, as well as for its alleged role as an agent to
stimulate muscle growth. GHB can produce drowsiness, dizziness, nausea,
visual disturbances, unconsciousness, seizures, severe respiratory
depression, coma, and death.
GHB can be produced in clandestine laboratories using a relatively
simple synthesis with readily available and inexpensive source
materials. Gamma-Butyrolactone (GBL), a List I chemical, is an
industrial chemical that is used in the illicit manufacture of GHB. GBL
and 1,4-butanediol, another industrial chemical, are also abused for
their GHB-like effects. Due to their structural and pharmacological
similarities to GHB, GBL and 1,4-butanediol are considered controlled
substance analogues as defined by 21 U.S.C. 802(32). Manufactured GHB
usually results in a clear solution that can be disguised by adding
food coloring, flavorings, or storing it in different kinds of bottles
and containers.
The listed chemical GBL has many industrial applications, and has
not been scheduled at this time to prevent an undue regulatory burden
to legitimate commerce in this substance. Because GBL is a controlled
substance analogue, individuals who manufacture or distribute or
possess with intent to manufacture or distribute this chemical
intending it for human consumption may be prosecuted under provisions
of the Controlled Substances Act. This is
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because a controlled substance analogue which is intended for human
consumption is treated as a Schedule I controlled substance. When
handled for industrial purposes, with no intent for human consumption,
it is not treated as a Schedule I controlled substance and those
handling it are not subject to any Schedule I controlled substances
penalties under the Controlled Substances Act.
Regulatory History
On February 18, 2000, the ``Hillory J. Farias and Samantha Reid
Date-Rape Drug Prohibition Act of 2000'' was enacted (Pub. L. 106-172,
114 Stat. 7). Public Law 106-172 declared GHB an imminent hazard to
public safety that required immediate regulatory action under the
Controlled Substances Act. Public Law 106-172 required the Attorney
General to list GHB as a Schedule I controlled substance and designated
GBL as a List I chemical. As a result of the Hillory J. Farias and
Samantha Reid Date-Rape Drug Prohibition Act, DEA issued two final
rules: Schedules of Controlled Substances: Addition of Gamma-
Hydroxybutyric Acid to Schedule I (65 FR 13235, March 13, 2000)
(corrected at 65 FR 17440, April 3, 2000) and Placement of Gamma-
Butyrolactone in List I of the Controlled Substances Act (21 U.S.C.
802(34)) (65 FR 21645, April 24, 2000).
Under the March 13, 2000 final rule, GHB and its salts, isomers,
and salts of isomers were placed in Schedule I, and GHB became subject
to the regulatory controls and administrative, civil, and criminal
sanctions applicable to the manufacture, distribution, dispensing,
importing, and exporting of a Schedule I controlled substance. As
required by the Hillory J. Farias and Samantha Reid Date-Rape Drug
Prohibition Act, the March 13, 2000 final rule created an exception for
drug products containing GHB, including its salts, isomers, and salts
of isomers, for which an application is approved under section 505 of
the Federal Food, Drug, and Cosmetic Act (FDCA) (21 U.S.C. 355). The
exception placed any such drug products--there were none approved at
the time the legislation was passed--in Schedule III. Therefore,
registered manufacturers and distributors of FDA-approved drug products
containing GHB are subject to Schedule III regulatory requirements.
However, criminal penalties for unlawful distributions of these drug
products are those for Schedule I controlled substances.
On July 17, 2002, the Food and Drug Administration (FDA) approved
Xyrem, a drug product containing gamma-hydroxybutyric acid, as a drug
for the treatment of cataplexy associated with narcolepsy.
Notice of Proposed Rulemaking
The March 13, 2000 final rule did not address the recordkeeping and
reporting requirements recommended by the Hillory J. Farias and
Samantha Reid Date-Rape Drug Prohibition Act for drug products
containing GHB for which an application is approved under section 505
of the FDCA. On November 25, 2003 DEA issued a notice of proposed
rulemaking (68 FR 66048) to establish requirements to prevent the
diversion of Schedule III GHB drug products for illicit purposes as was
intended by Congress as part of the regulatory scheme for these
products. DEA received no comments in response to the November 25, 2003
notice of proposed rulemaking and is adopting the rule language as
proposed.
In response to section 4 of the Hillory J. Farias and Samantha Reid
Date-Rape Drug Prohibition Act, this rule establishes recordkeeping
requirements for practitioners dispensing Schedule III GHB drug
products and reporting requirements for manufacturers and distributors
of Schedule III GHB drug products. Under existing 21 CFR 1304.22(c),
dispensers of any controlled substance, including GHB, are required to
maintain the name and address of the person to whom the controlled
substance was dispensed, the date of dispensing, the number of units or
volume dispensed, and the written or typewritten name or initials of
the individual who dispensed or administered the substance on behalf of
the dispenser. This final rule adds 21 CFR 1304.26, which requires
pharmacies and practitioners dispensing GHB to maintain and make
available for inspection the name of the prescribing practitioner, the
prescribing practitioner's Federal and State registration numbers with
expiration dates, verification that the prescribing practitioner
possesses appropriate registration, and the patient's insurance
provider, if available. Section 4 of the Hillory J. Farias and Samantha
Reid Date-Rape Drug Prohibition Act also recommended that DEA establish
a recordkeeping requirement for ``documentation by a medical
practitioner licensed and registered to prescribe the drug of the
patient's medical need for the drug.'' Part of this recommendation is
satisfied by existing DEA requirements in 21 CFR 1306.04 which state
that prescriptions ``must be issued for a legitimate medical purpose.''
To further satisfy this statutory requirement, DEA has amended 21 CFR
1306.05 to require that the medical need be written on the
prescription.
This final rule also amends 21 CFR 1304.33 to include Schedule III
GHB drug products as controlled substances that must be reported under
the Automation of Reports and Consolidated Orders System (ARCOS). ARCOS
is an automated, comprehensive drug reporting system that monitors the
flow of DEA controlled substances from their point of manufacture
through commercial distribution channels to point of sale or
distribution at the dispensing/retail level, e.g., hospitals, retail
pharmacies, practitioners, mid-level practitioners, and teaching
institutions. Included in the list of controlled substance transactions
tracked by ARCOS are the following: All Schedules I and II materials
(manufacturers and distributors); Schedule III narcotic materials
(manufacturers and distributors); and selected Schedules III and IV
psychotropic controlled substances (manufacturers only). This final
rule adds Schedule III GHB drug products to this list for both
manufacturers and distributors.
In addition, section 4 of the Hillory J. Farias and Samantha Reid
Date-Rape Drug Prohibition Act recommended that DEA apply the mail
order reporting requirements of 21 U.S.C. 830(b)(3) to ``gamma
hydroxybutyric acid to the same extent and in the same manner as such
section applies with respect to the chemicals and drug products
specified in subparagraph (B)(i) of such section.'' DEA has complied
with these recommendations in this final rule by amending 21 CFR
1310.03(c), which makes GHB subject to mail order requirements
established under the Methamphetamine Anti-Proliferation Act of 2000
(MAPA) (Title XXXVI of the ``Children's Health Act of 2000'' (Pub. L.
106-310, 114 Stat. 1101)). The Methamphetamine Anti-Proliferation Act
of 2000 imposed mail order reporting requirements for export
transactions involving ephedrine, pseudoephedrine, or
phenylpropanolamine. These reporting requirements do not apply to
distributions of drug products, including GHB, under a valid
prescription, which were excluded under MAPA (21 U.S.C. 830(b)(3)(D)).
Regulations implementing MAPA were published October 7, 2003 (68 FR
57799). The net effect is that all export transactions involving GHB
must be reported to DEA. Transactions involving prescriptions of GHB
are not required to be reported to DEA.
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Regulatory Certifications
Regulatory Flexibility Act
The Deputy Assistant Administrator certifies that this rulemaking
has been drafted in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)). The Deputy Assistant Administrator has reviewed this
regulation, and by approving it certifies that it will not have a
significant economic impact upon a substantial number of small
entities. This rulemaking creates new recordkeeping and reporting
requirements which will have an extremely limited impact on a small
number of registrants due to the restricted use of GHB for legitimate
medical purposes. As a condition of Xyrem's (the FDA-approved product
containing GHB) approval, a risk management program was designed to
limit its distribution. Under this program, Xyrem will only be
available to physicians and patients through a single centralized
pharmacy. As a result of this program, at this time, controlled
substance distributors and retail pharmacies will not be handling Xyrem
and, thus, will not be affected by these requirements. For those few
persons affected by these regulations, the information requested by
these added records is readily and commonly available, and due to the
limited distribution of GHB, the impact on reporting requirements
should be minimal.
Executive Order 12866
The Deputy Assistant Administrator further certifies that this
regulation has been drafted in accordance with the principles of
Executive Order 12866, Section 1(b). This action has been determined to
be a ``significant regulatory action'' under Executive Order 12866, and
accordingly this rule has been reviewed by the Office of Management and
Budget.
Executive Order 12988
This regulation meets the applicable standards set forth in
Sections 3(a) and 3(b)(2) of Executive Order 12988.
Executive Order 13132
This rulemaking does not preempt or modify any provision of State
law; nor does it impose enforcement responsibilities on any State; nor
does it diminish the power of any State to enforce its own laws.
Accordingly, this rulemaking does not have federalism implications
warranting the application of Executive Order 13132.
Unfunded Mandates Reform Act of 1995
This rulemaking will not result in the expenditure by State, local,
and tribal governments in the aggregate, or by the private sector, of
$114.5 million or more in any one year, and will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Paperwork Reduction Act
While, technically, this rule requires new, minimal recordkeeping
and reporting requirements for drug products containing GHB, DEA does
not believe that these recordkeeping and reporting requirements create
any greater hour or cost burden for respondents than what already
exists. Records required to be maintained by dispensing practitioners
under 21 CFR 1304.26, including the prescribing practitioner's name,
address, state license and federal registration numbers, and the
patient's insurance provider (if available) are all records which are
maintained as a usual course of professional practice by a dispensing
practitioner. The reporting requirements in 21 CFR 1304.33 are part of
an already-approved collection of information (OMB 1117-0003: ARCOS
Transaction Reporting--DEA Form 333). DEA believes that the additional
reporting requirements will have no impact on the hour or cost burden
for respondents as reports are generated and submitted electronically.
As has been stated previously, due to the risk management plan
established for Xyrem (the FDA-approved drug product containing GHB)
this product has an extremely limited distribution potential. Because
of the nature of this product's distribution, DEA anticipates that
fewer than five persons will be impacted by the requirement to report
handling Schedule III GHB products to ARCOS, and those persons are
already filing reports with DEA for other controlled substances
handled. The system modifications necessary to generate this report
will occur as a normal part of a registrant's handling of this product.
Therefore, DEA is not submitting any changes or amendments to its
active information collections under the Paperwork Reduction Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rulemaking is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation or on the ability of U.S.-based companies to compete with
foreign-based companies in domestic and export markets.
List of Subjects
21 CFR Part 1304
Drug traffic control, Reporting and recordkeeping requirements.
21 CFR Part 1306
Drug traffic control, Prescription drugs.
21 CFR Part 1310
Drug traffic control, List I and List II chemicals, Reporting and
recordkeeping requirements.
0
For the reasons set out above, 21 CFR parts 1304, 1306, and 1310 are
amended as follows:
PART 1304--RECORDS AND REPORTS OF REGISTRANTS
0
1. The authority citation for 21 CFR part 1304 continues to read as
follows:
Authority: 21 U.S.C. 821, 827, 871(b), 958, 965, unless
otherwise noted.
0
2. Section 1304.22 is amended by revising paragraph (c) to read as
follows:
Sec. 1304.22 Records for manufacturers, distributors, dispensers,
researchers, importers and exporters.
* * * * *
(c) Records for dispensers and researchers. Each person registered
or authorized to dispense or conduct research with controlled
substances shall maintain records with the same information required of
manufacturers pursuant to paragraph (a)(2)(i), (ii), (iv), (vii), and
(ix) of this section. In addition, records shall be maintained of the
number of units or volume of such finished form dispensed, including
the name and address of the person to whom it was dispensed, the date
of dispensing, the number of units or volume dispensed, and the written
or typewritten name or initials of the individual who dispensed or
administered the substance on behalf of the dispenser. In addition to
the requirements of this paragraph, practitioners dispensing gamma-
hydroxybutyric acid under a prescription must also comply with Sec.
1304.26.
* * * * *
0
3. Section 1304.26 is added to read as follows:
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Sec. 1304.26 Additional recordkeeping requirements applicable to drug
products containing gamma-hydroxybutyric acid.
In addition to the recordkeeping requirements for dispensers and
researchers provided in Sec. 1304.22, practitioners dispensing gamma-
hydroxybutyric acid that is manufactured or distributed in accordance
with an application under section 505 of the Federal Food, Drug, and
Cosmetic Act must maintain and make available for inspection and
copying by the Attorney General, all of the following information for
each prescription:
(a) Name of the prescribing practitioner.
(b) Prescribing practitioner's Federal and State registration
numbers, with the expiration dates of these registrations.
(c) Verification that the prescribing practitioner possesses the
appropriate registration to prescribe this controlled substance.
(d) Patient's name and address.
(e) Patient's insurance provider, if available.
0
4. Section 1304.33 is amended by revising paragraph (c) and the
introductory text of paragraph (d)(1) to read as follows:
Sec. 1304.33 Reports to ARCOS.
* * * * *
(c) Persons reporting. For controlled substances in Schedules I,
II, narcotic controlled substances in Schedule III, and gamma-
hydroxybutyric acid drug product controlled substances in Schedule III,
each person who is registered to manufacture in bulk or dosage form, or
to package, repackage, label or relabel, and each person who is
registered to distribute, including each person who is registered to
reverse distribute, shall report acquisition/distribution transactions.
In addition to reporting acquisition/distribution transactions, each
person who is registered to manufacture controlled substances in bulk
or dosage form shall report manufacturing transactions on controlled
substances in Schedules I and II, each narcotic controlled substance
listed in Schedules III, IV, and V, gamma-hydroxybutyric acid drug
product controlled substances in Schedule III, and on each psychotropic
controlled substance listed in Schedules III and IV as identified in
paragraph (d) of this section.
(d) Substances covered. (1) Manufacturing and acquisition/
distribution transaction reports shall include data on each controlled
substance listed in Schedules I and II, on each narcotic controlled
substance listed in Schedule III (but not on any material, compound,
mixture or preparation containing a quantity of a substance having a
stimulant effect on the central nervous system, which material,
compound, mixture or preparation is listed in Schedule III or on any
narcotic controlled substance listed in Schedule V), and on gamma-
hydroxybutyric acid drug products listed in Schedule III. Additionally,
reports on manufacturing transactions shall include the following
psychotropic controlled substances listed in Schedules III and IV:
* * * * *
PART 1306--PRESCRIPTIONS
0
5. The authority citation for part 1306 continues to read as follows:
Authority: 21 U.S.C. 821, 829, 871(b) unless otherwise noted.
0
6. Section 1306.05 is amended by revising paragraph (a) to read as
follows:
Sec. 1306.05 Manner of issuance of prescriptions.
(a) All prescriptions for controlled substances shall be dated as
of, and signed on, the day when issued and shall bear the full name and
address of the patient, the drug name, strength, dosage form, quantity
prescribed, directions for use and the name, address and registration
number of the practitioner. Where a prescription is for gamma-
hydroxybutyric acid, the practitioner shall note on the face of the
prescription the medical need of the patient for the prescription. A
practitioner may sign a prescription in the same manner as he would
sign a check or legal document (e.g., J.H. Smith or John H. Smith).
Where an oral order is not permitted, prescriptions shall be written
with ink or indelible pencil or typewriter and shall be manually signed
by the practitioner. The prescriptions may be prepared by the secretary
or agent for the signature of a practitioner, but the prescribing
practitioner is responsible in case the prescription does not conform
in all essential respects to the law and regulations. A corresponding
liability rests upon the pharmacist, including a pharmacist employed by
a central fill pharmacy, who fills a prescription not prepared in the
form prescribed by DEA regulations.
* * * * *
PART 1310--RECORDS AND REPORTS OF LISTED CHEMICALS AND CERTAIN
MACHINES
0
7. The authority citation for part 1310 is revised to read as follows:
Authority: 21 U.S.C. 802, 827(h), 830, 871(b) 890.
0
8. Section 1310.03 is amended by revising paragraph (c) to read as
follows:
Sec. 1310.03 Persons required to keep records and file reports.
* * * * *
(c) Each regulated person who engages in a transaction with a
nonregulated person or who engages in an export transaction that
involves ephedrine, pseudoephedrine, phenylpropanolamine, or gamma-
hydroxybutyric acid, including drug products containing these
chemicals, and uses or attempts to use the Postal Service or any
private or commercial carrier must file monthly reports of each such
transaction as specified in Sec. 1310.05 of this part.
Dated: December 22, 2004.
William J. Walker,
Deputy Assistant Administrator, Office of Diversion Control.
[FR Doc. 05-56 Filed 1-3-05; 8:45 am]
BILLING CODE 4410-09-P