Schedules of Controlled Substances: Temporary Placement of Cyclopropyl Fentanyl in Schedule I, 469-472 [2017-28470]

Download as PDF Federal Register / Vol. 83, No. 3 / Thursday, January 4, 2018 / Rules and Regulations List of Subjects in 18 CFR Part 381 Electric power plants, Electric utilities, Natural gas, reporting and recordkeeping requirements. Temporary amendment; temporary scheduling order. ACTION: Anton C. Porter, Executive Director. In consideration of the foregoing, the Commission amends Part 381, Chapter I, Title 18, Code of Federal Regulations, as set forth below. PART 381—FEES 1. The authority citation for Part 381 continues to read as follows: ■ Authority: 15 U.S.C. 717–717w; 16 U.S.C. 791–828c, 2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App. U.S.C. 1–85. § 381.302 [Amended] 2. In 381.302, paragraph (a) is amended by removing ‘‘$25,640’’ and adding ‘‘$27,130’’ in its place. ■ § 381.303 [Amended] 3. In 381.303, paragraph (a) is amended by removing ‘‘$37,430’’ and adding ‘‘$39,610’’ in its place. ■ § 381.304 [Amended] 4. In 381.304, paragraph (a) is amended by removing ‘‘$19,630’’ and adding ‘‘$20,770’’ in its place. ■ § 381.305 FOR FURTHER INFORMATION CONTACT: [Amended] Michael J. Lewis, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598–6812. SUPPLEMENTARY INFORMATION: 5. In 381.305, paragraph (a) is amended by removing ‘‘$7,350’’ and adding ‘‘$7,780’’ in its place. ■ § 381.403 [Amended] 6. Section 381.403 is amended by removing ‘‘$12,760’’ and adding ‘‘$13,500’’ in its place. ■ § 381.505 Legal Authority Section 201 of the Controlled Substances Act (CSA), 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance in schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling 1 for up to one year. 21 U.S.C. 811(h)(2). Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, [Amended] 7. In 381.505, paragraph (a) is amended by removing ‘‘$22,050’’ and adding ‘‘$23,330’’ in its place and by removing ‘‘$24,960’’ and adding ‘‘$26,410’’ in its place. ■ [FR Doc. 2017–28466 Filed 1–3–18; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF JUSTICE Drug Enforcement Administration rmajette on DSKBCKNHB2PROD with RULES 21 CFR Part 1308 [Docket No. DEA–474] Schedules of Controlled Substances: Temporary Placement of Cyclopropyl Fentanyl in Schedule I Drug Enforcement Administration, Department of Justice. AGENCY: VerDate Sep<11>2014 14:53 Jan 03, 2018 Jkt 244001 The Administrator of the Drug Enforcement Administration is issuing this temporary scheduling order to schedule the synthetic opioid, N-(1phenethylpiperidin-4-yl)-Nphenylcyclopropanecarboxamide (cyclopropyl fentanyl), and its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers in schedule I. This action is based on a finding by the Administrator that the placement of cyclopropyl fentanyl in schedule I of the Controlled Substances Act is necessary to avoid an imminent hazard to the public safety. As a result of this order, the regulatory controls and administrative, civil, and criminal sanctions applicable to schedule I controlled substances will be imposed on persons who handle (manufacture, distribute, reverse distribute, import, export, engage in research, conduct instructional activities or chemical analysis, or possess), or propose to handle, cyclopropyl fentanyl. DATES: This temporary scheduling order is effective January 4, 2018, until January 4, 2020. If this order is extended or made permanent, the DEA will publish a document in the Federal Register. SUMMARY: 1 Though DEA has used the term ‘‘final order’’ with respect to temporary scheduling orders in the past, this document adheres to the statutory language of 21 U.S.C. 811(h), which refers to a ‘‘temporary scheduling order.’’ No substantive change is intended. PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 469 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1). The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100. Background Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance in schedule I of the CSA.2 The Administrator transmitted notice of his intent to place cyclopropyl fentanyl in schedule I on a temporary basis to the Assistant Secretary for Health of HHS by letter dated August 28, 2017. The Assistant Secretary responded by letter dated September 6, 2017, and advised that based on review by the Food and Drug Administration (FDA), there are currently no investigational new drug applications or approved new drug applications for cyclopropyl fentanyl. The Assistant Secretary also stated that the HHS has no objection to the temporary placement of cyclopropyl fentanyl in schedule I of the CSA. The DEA has taken into consideration the Assistant Secretary’s comments as required by 21 U.S.C. 811(h)(4). Cyclopropyl fentanyl is not currently listed in any schedule under the CSA, and no exemptions or approvals are in effect for cyclopropyl fentanyl under section 505 of the FDCA, 21 U.S.C. 355. The DEA has found that the control of cyclopropyl fentanyl in schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety, and as required by 21 U.S.C. 811(h)(1)(A), a notice of intent to temporarily schedule cyclopropyl fentanyl was published in the Federal Register on November 21, 2017. 82 FR 55333. To find that placing a substance temporarily in schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance’s 2 As discussed in a memorandum of understanding entered into by the Food and Drug Administration (FDA) and the National Institute on Drug Abuse (NIDA), the FDA acts as the lead agency within the HHS in carrying out the Secretary’s scheduling responsibilities under the CSA, with the concurrence of NIDA. 50 FR 9518, Mar. 8, 1985. The Secretary of the HHS has delegated to the Assistant Secretary for Health of the HHS the authority to make domestic drug scheduling recommendations. 58 FR 35460, July 1, 1993. E:\FR\FM\04JAR1.SGM 04JAR1 470 Federal Register / Vol. 83, No. 3 / Thursday, January 4, 2018 / Rules and Regulations rmajette on DSKBCKNHB2PROD with RULES history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3). A substance meeting the statutory requirements for temporary scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1). Available data and information for cyclopropyl fentanyl, summarized below, indicate that this synthetic opioid has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA’s threefactor analysis and the Assistant Secretary’s September 6, 2017 letter are available in their entirety under the tab ‘‘Supporting Documents’’ of the public docket of this action at www.regulations.gov under FDMS Docket ID: DEA–2017–0005 (Docket Number DEA–474). Factor 4. History and Current Pattern of Abuse The recreational abuse of fentanyl-like substances continues to be a significant concern. These substances are distributed to users, often with unpredictable outcomes. Cyclopropyl fentanyl has been encountered by law enforcement and public health officials beginning as early as May 2017. The DEA is not aware of any laboratory identifications of this substance prior to 2017. Adverse health effects and outcomes of cyclopropyl fentanyl abuse are consistent with those of other opioids and are demonstrated by fatal overdose cases involving this substance. On October 1, 2014, the DEA implemented STARLiMS (a web-based, commercial laboratory information management system) to replace the System to Retrieve Information from Drug Evidence (STRIDE) as its laboratory drug evidence data system of record. DEA laboratory data submitted after September 30, 2014, are reposited in STARLiMS. Data from STRIDE and STARLiMS were queried on August 25, 2017. STARLiMS registered a total of three reports containing cyclopropyl fentanyl from California, Connecticut, and New York. Of these three exhibits, one had a net weight of approximately VerDate Sep<11>2014 14:53 Jan 03, 2018 Jkt 244001 one kilogram. According to STARLiMS, the first laboratory submission of cyclopropyl fentanyl occurred in Connecticut in June 2017. The National Forensic Laboratory Information System (NFLIS) is a national drug forensic laboratory reporting system that systematically collects results from drug chemistry analyses conducted by other federal, state and local forensic laboratories across the country. NFLIS registered 10 reports containing cyclopropyl fentanyl from state or local forensic laboratories in Oklahoma in July 2017 (query date: August 29, 2017).3 In addition to data recorded in NFLIS and STARLiMS, cyclopropyl fentanyl was identified in drug evidence submitted to state and local forensic laboratories in Georgia and Pennsylvania. Cyclopropyl fentanyl was confirmed in combination with U– 47700, another synthetic opioid temporarily controlled in schedule I of the CSA, in 24 glassine paper packets submitted to a law enforcement forensic laboratory in Pennsylvania.4 A law enforcement forensic laboratory in Georgia confirmed 5 the presence of cyclopropyl fentanyl in counterfeit oxycodone tablets which also contained U–47700. The distribution of cyclopropyl fentanyl in these forms, and in combination with another synthetic opioid, suggests that this substance was marketed as heroin or prescription opioids in the illicit market. Evidence suggests that the pattern of abuse of fentanyl analogues, including cyclopropyl fentanyl, parallels that of heroin and prescription opioid analgesics. Seizures of cyclopropyl fentanyl have been encountered in powder form, similar to fentanyl and heroin, and in counterfeit prescription opioid analgesics (i.e. counterfeit oxycodone tablets). Cyclopropyl fentanyl was also confirmed in toxicology samples from fatal overdose cases. Factor 5. Scope, Duration and Significance of Abuse Reports collected by the DEA demonstrate that cyclopropyl fentanyl is being abused for its opioid effects. Abuse of cyclopropyl fentanyl has resulted in mortality (see DEA 3-Factor Analysis for full discussion). The DEA collected post-mortem toxicology and 3 Data are still being collected for May 2017– August 2017 due to the normal lag period for labs reporting to NFLIS. 4 Email from Philadelphia Police DepartmentOffice of Forensic Science, to DEA (August 18, 2017 11:09 a.m.) (on file with DEA). 5 Laboratory report obtained from Division of Forensic Science, Georgia Bureau of Investigation. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 medical examiner reports on 115 confirmed fatalities associated with cyclopropyl fentanyl which occurred in Georgia (1), Maryland (24), Mississippi (1), North Carolina (75), and Wisconsin (14). It is likely that the prevalence of this substance in opioid related emergency room admissions and deaths is underreported as standard immunoassays may not differentiate this fentanyl analogue from fentanyl. NFLIS and STARLiMS have a total of 13 drug reports in which cyclopropyl fentanyl was identified in drug exhibits submitted to forensic laboratories in 2017 from law enforcement encounters in California, Connecticut, New York, and Oklahoma. In addition to the data collected in these databases, cyclopropyl fentanyl was identified in drug evidence submitted to forensic laboratories in Georgia (counterfeit oxycodone preparation) and Pennsylvania (24 glassine paper packets). The population likely to abuse cyclopropyl fentanyl overlaps with the population abusing prescription opioid analgesics, heroin, fentanyl and other fentanyl-related substances. This is supported by cyclopropyl fentanyl being identified in powder contained within glassine paper packets and counterfeit prescription opioid products. This is also demonstrated by routes of drug administration and drug use history documented in cyclopropyl fentanyl fatal overdose cases. Because abusers of cyclopropyl fentanyl obtain this substance through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent, thus posing significant adverse health risks to the end user. Individuals who initiate (i.e. use a drug for the first time) cyclopropyl fentanyl abuse are likely to be at risk of developing substance use disorder, overdose, and death similar to that of other opioid analgesics (e.g., fentanyl, morphine, etc.). Factor 6. What, if Any, Risk There Is to the Public Health With no legitimate medical use, cyclopropyl fentanyl has emerged on the illicit drug market and is being misused and abused for its opioid properties. Cyclopropyl fentanyl exhibits pharmacological profiles similar to that of fentanyl and other mopioid receptor agonists. The abuse of cyclopropyl fentanyl poses significant adverse health risks when compared to abuse of pharmaceutical preparations of opioid analgesics, such as morphine and oxycodone. The toxic effects of cyclopropyl fentanyl in humans are demonstrated by overdose fatalities involving this substance. E:\FR\FM\04JAR1.SGM 04JAR1 Federal Register / Vol. 83, No. 3 / Thursday, January 4, 2018 / Rules and Regulations Based on information received by the DEA, the misuse and abuse of cyclopropyl fentanyl lead to, at least, the same qualitative public health risks as heroin, fentanyl, and other opioid analgesic substances. As with any nonmedically approved opioid agonist, the health and safety risks for users are high. The public health risks attendant to the abuse of heroin and opioid analgesics are well established and have resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses. Cyclopropyl fentanyl has been associated with numerous fatalities. At least 115 confirmed overdose deaths involving cyclopropyl fentanyl abuse have been reported from Georgia (1), Maryland (24), Mississippi (1), North Carolina (75), and Wisconsin (14) in 2017. As the data demonstrate, the potential for fatal and non-fatal overdoses exists for cyclopropyl fentanyl and this substance poses an imminent hazard to the public safety. rmajette on DSKBCKNHB2PROD with RULES Finding of Necessity of Schedule I Placement To Avoid Imminent Hazard to Public Safety In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the continued uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of cyclopropyl fentanyl pose an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for cyclopropyl fentanyl in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in schedule I. Substances in schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for cyclopropyl fentanyl indicate that this substance has a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, by letter dated August 28, 2017, notified the Assistant Secretary of the DEA’s intention to temporarily place this substance in schedule I. A notice of intent was subsequently published in the Federal Register on November 21, 2017. 82 FR 55333. VerDate Sep<11>2014 14:53 Jan 03, 2018 Jkt 244001 Conclusion In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, and herein sets forth the grounds for his determination that it is necessary to temporarily schedule cyclopropyl fentanyl in schedule I of the CSA to avoid an imminent hazard to the public safety. Because the Administrator hereby finds it necessary to temporarily place this synthetic opioid in schedule I to avoid an imminent hazard to the public safety, this temporary order scheduling cyclopropyl fentanyl is effective on the date of publication in the Federal Register, and is in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2). The CSA sets forth specific criteria for scheduling a drug or other substance. Permanent scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done ‘‘on the record after opportunity for a hearing’’ conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The permanent scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the permanent scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6). Requirements for Handling Upon the effective date of this temporary order, cyclopropyl fentanyl will be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, engagement in research, and conduct of instructional activities or chemical analysis with, and possession of schedule I controlled substances including the following: 1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, cyclopropyl fentanyl must be registered with the DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958 and in PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 471 accordance with 21 CFR parts 1301 and 1312, as of January 4, 2018. Any person who currently handles cyclopropyl fentanyl, and is not registered with the DEA, must submit an application for registration and may not continue to handle cyclopropyl fentanyl as of January 4, 2018, unless the DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity of this substance in a manner not authorized by the CSA on or after January 4, 2018 is unlawful and those in possession of any quantity of this substance may be subject to prosecution pursuant to the CSA. 2. Disposal of stocks. Any person who does not desire or is not able to obtain a schedule I registration to handle cyclopropyl fentanyl must surrender all currently held quantities of cyclopropyl fentanyl. 3. Security. Cyclopropyl fentanyl is subject to schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 821, 823, 871(b), and in accordance with 21 CFR 1301.71–1301.93, as of January 4, 2018. 4. Labeling and packaging. All labels, labeling, and packaging for commercial containers of cyclopropyl fentanyl must be in compliance with 21 U.S.C. 825, 958(e), and be in accordance with 21 CFR part 1302. Current DEA registrants shall have 30 calendar days from January 4, 2018, to comply with all labeling and packaging requirements. 5. Inventory. Every DEA registrant who possesses any quantity of cyclopropyl fentanyl on the effective date of this order must take an inventory of all stocks of this substance on hand, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. Current DEA registrants shall have 30 calendar days from the effective date of this order to be in compliance with all inventory requirements. After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including cyclopropyl fentanyl) on hand on a biennial basis, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. 6. Records. All DEA registrants must maintain records with respect to cyclopropyl fentanyl pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR parts 1304, 1312, 1317, and § 1307.11. Current DEA registrants shall have 30 calendar days from the effective E:\FR\FM\04JAR1.SGM 04JAR1 472 Federal Register / Vol. 83, No. 3 / Thursday, January 4, 2018 / Rules and Regulations date of this order to be in compliance with all recordkeeping requirements. 7. Reports. All DEA registrants who manufacture or distribute cyclopropyl fentanyl must submit reports pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312 as of January 4, 2018. 8. Order Forms. All DEA registrants who distribute cyclopropyl fentanyl must comply with order form requirements pursuant to 21 U.S.C. 828 and in accordance with 21 CFR part 1305 as of January 4, 2018. 9. Importation and Exportation. All importation and exportation of cyclopropyl fentanyl must be in compliance with 21 U.S.C. 952, 953, 957, 958, and in accordance with 21 CFR part 1312 as of January 4, 2018. 10. Quota. Only DEA registered manufacturers may manufacture cyclopropyl fentanyl in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of January 4, 2018. 11. Liability. Any activity involving cyclopropyl fentanyl not authorized by, or in violation of, the CSA, occurring as of January 4, 2018, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions. rmajette on DSKBCKNHB2PROD with RULES Regulatory Matters Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and (2) the date that notice of the proposed temporary scheduling order is transmitted to the Assistant Secretary. 21 U.S.C. 811(h)(1). Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of the Administrative Procedure Act (APA) at 5 U.S.C. 553, do not apply to this temporary scheduling action. In the alternative, even assuming that this action might be subject to 5 U.S.C. 553, the Administrator finds that there is good cause to forgo the notice and comment requirements of 5 U.S.C. 553, as any further delays in the process for issuance of temporary scheduling orders would be contrary to the public interest VerDate Sep<11>2014 14:53 Jan 03, 2018 Jkt 244001 in view of the manifest urgency to avoid an imminent hazard to the public safety. Further, the DEA believes that this temporary scheduling action is not a ‘‘rule’’ as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act. The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by the APA or any other law to publish a general notice of proposed rulemaking. Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. As noted above, this action is an order, not a rule. Accordingly, the Congressional Review Act (CRA) is inapplicable, as it applies only to rules. However, if this were a rule, pursuant to the Congressional Review Act, ‘‘any rule for which an agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the federal agency promulgating the rule determines.’’ 5 U.S.C. 808(2). It is in the public interest to schedule this substance immediately to avoid an imminent hazard to the public safety. This temporary scheduling action is taken pursuant to 21 U.S.C. 811(h), which is specifically designed to enable the DEA to act in an expeditious manner to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h) exempts the temporary scheduling order from standard notice and comment rulemaking procedures to ensure that the process moves swiftly. For the same reasons that underlie 21 U.S.C. 811(h), that is, the DEA’s need to move quickly to place this substance in schedule I because it poses an imminent hazard to the public safety, it would be contrary to the public interest to delay implementation of the temporary scheduling order. Therefore, this order shall take effect immediately upon its publication. The DEA has submitted a PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 copy of this temporary order to both Houses of Congress and to the Comptroller General, although such filing is not required under the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act), 5 U.S.C. 801–808 because, as noted above, this action is an order, not a rule. List of Subjects in 21 CFR Part 1308 Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements. For the reasons set out above, the DEA amends 21 CFR part 1308 as follows: PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES 1. The authority citation for part 1308 continues to read as follows: ■ Authority: 21 U.S.C. 811, 812, 871(b), 956(b), unless otherwise noted. 2. In § 1308.11, add paragraph (h)(22) to read as follows: ■ § 1308.11 Schedule I. * * * * * (h) * * * (22) N-(1-phenethylpiperidin-4-yl)-Nphenylcyclopropanecarboxamide, its isomers, esters, ethers, salts and salts of isomers, esters and ethers (Other name: cyclopropyl fentanyl). . . . . . . . . . . .(9845) Dated: December 28, 2017. Robert W. Patterson, Acting Administrator. [FR Doc. 2017–28470 Filed 1–3–18; 8:45 am] BILLING CODE 4410–09–P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Chapter I [Docket ID FEMA–2016–0022] Revisions to the Public Assistance Program and Policy Guide Federal Emergency Management Agency, DHS. ACTION: Notification of availability. AGENCY: This document provides notice of the availability of the final policy Public Assistance Program and Policy Guide (PAPPG). DATES: FEMA applies the revisions in this policy to incidents declared on or after August 23, 2017, or to any application for assistance that, as of January 1, 2018 is pending before SUMMARY: E:\FR\FM\04JAR1.SGM 04JAR1

Agencies

[Federal Register Volume 83, Number 3 (Thursday, January 4, 2018)]
[Rules and Regulations]
[Pages 469-472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28470]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1308

[Docket No. DEA-474]


Schedules of Controlled Substances: Temporary Placement of 
Cyclopropyl Fentanyl in Schedule I

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Temporary amendment; temporary scheduling order.

-----------------------------------------------------------------------

SUMMARY: The Administrator of the Drug Enforcement Administration is 
issuing this temporary scheduling order to schedule the synthetic 
opioid, N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopropanecarboxamide 
(cyclopropyl fentanyl), and its isomers, esters, ethers, salts, and 
salts of isomers, esters, and ethers in schedule I. This action is 
based on a finding by the Administrator that the placement of 
cyclopropyl fentanyl in schedule I of the Controlled Substances Act is 
necessary to avoid an imminent hazard to the public safety. As a result 
of this order, the regulatory controls and administrative, civil, and 
criminal sanctions applicable to schedule I controlled substances will 
be imposed on persons who handle (manufacture, distribute, reverse 
distribute, import, export, engage in research, conduct instructional 
activities or chemical analysis, or possess), or propose to handle, 
cyclopropyl fentanyl.

DATES: This temporary scheduling order is effective January 4, 2018, 
until January 4, 2020. If this order is extended or made permanent, the 
DEA will publish a document in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Michael J. Lewis, Diversion Control 
Division, Drug Enforcement Administration; Mailing Address: 8701 
Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-
6812.

SUPPLEMENTARY INFORMATION: 

Legal Authority

    Section 201 of the Controlled Substances Act (CSA), 21 U.S.C. 811, 
provides the Attorney General with the authority to temporarily place a 
substance in schedule I of the CSA for two years without regard to the 
requirements of 21 U.S.C. 811(b) if he finds that such action is 
necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 
811(h)(1). In addition, if proceedings to control a substance are 
initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend 
the temporary scheduling \1\ for up to one year. 21 U.S.C. 811(h)(2).
---------------------------------------------------------------------------

    \1\ Though DEA has used the term ``final order'' with respect to 
temporary scheduling orders in the past, this document adheres to 
the statutory language of 21 U.S.C. 811(h), which refers to a 
``temporary scheduling order.'' No substantive change is intended.
---------------------------------------------------------------------------

    Where the necessary findings are made, a substance may be 
temporarily scheduled if it is not listed in any other schedule under 
section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or 
approval in effect for the substance under section 505 of the Federal 
Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 
811(h)(1). The Attorney General has delegated scheduling authority 
under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.

Background

    Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the 
Administrator to notify the Secretary of the Department of Health and 
Human Services (HHS) of his intention to temporarily place a substance 
in schedule I of the CSA.\2\ The Administrator transmitted notice of 
his intent to place cyclopropyl fentanyl in schedule I on a temporary 
basis to the Assistant Secretary for Health of HHS by letter dated 
August 28, 2017. The Assistant Secretary responded by letter dated 
September 6, 2017, and advised that based on review by the Food and 
Drug Administration (FDA), there are currently no investigational new 
drug applications or approved new drug applications for cyclopropyl 
fentanyl. The Assistant Secretary also stated that the HHS has no 
objection to the temporary placement of cyclopropyl fentanyl in 
schedule I of the CSA. The DEA has taken into consideration the 
Assistant Secretary's comments as required by 21 U.S.C. 811(h)(4). 
Cyclopropyl fentanyl is not currently listed in any schedule under the 
CSA, and no exemptions or approvals are in effect for cyclopropyl 
fentanyl under section 505 of the FDCA, 21 U.S.C. 355. The DEA has 
found that the control of cyclopropyl fentanyl in schedule I on a 
temporary basis is necessary to avoid an imminent hazard to the public 
safety, and as required by 21 U.S.C. 811(h)(1)(A), a notice of intent 
to temporarily schedule cyclopropyl fentanyl was published in the 
Federal Register on November 21, 2017. 82 FR 55333.
---------------------------------------------------------------------------

    \2\ As discussed in a memorandum of understanding entered into 
by the Food and Drug Administration (FDA) and the National Institute 
on Drug Abuse (NIDA), the FDA acts as the lead agency within the HHS 
in carrying out the Secretary's scheduling responsibilities under 
the CSA, with the concurrence of NIDA. 50 FR 9518, Mar. 8, 1985. The 
Secretary of the HHS has delegated to the Assistant Secretary for 
Health of the HHS the authority to make domestic drug scheduling 
recommendations. 58 FR 35460, July 1, 1993.
---------------------------------------------------------------------------

    To find that placing a substance temporarily in schedule I of the 
CSA is necessary to avoid an imminent hazard to the public safety, the 
Administrator is required to consider three of the eight factors set 
forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's

[[Page 470]]

history and current pattern of abuse; the scope, duration and 
significance of abuse; and what, if any, risk there is to the public 
health. 21 U.S.C. 811(h)(3). Consideration of these factors includes 
actual abuse, diversion from legitimate channels, and clandestine 
importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).
    A substance meeting the statutory requirements for temporary 
scheduling may only be placed in schedule I. 21 U.S.C. 811(h)(1). 
Substances in schedule I are those that have a high potential for 
abuse, no currently accepted medical use in treatment in the United 
States, and a lack of accepted safety for use under medical 
supervision. 21 U.S.C. 812(b)(1).
    Available data and information for cyclopropyl fentanyl, summarized 
below, indicate that this synthetic opioid has a high potential for 
abuse, no currently accepted medical use in treatment in the United 
States, and a lack of accepted safety for use under medical 
supervision. The DEA's three-factor analysis and the Assistant 
Secretary's September 6, 2017 letter are available in their entirety 
under the tab ``Supporting Documents'' of the public docket of this 
action at www.regulations.gov under FDMS Docket ID: DEA-2017-0005 
(Docket Number DEA-474).

Factor 4. History and Current Pattern of Abuse

    The recreational abuse of fentanyl-like substances continues to be 
a significant concern. These substances are distributed to users, often 
with unpredictable outcomes. Cyclopropyl fentanyl has been encountered 
by law enforcement and public health officials beginning as early as 
May 2017. The DEA is not aware of any laboratory identifications of 
this substance prior to 2017. Adverse health effects and outcomes of 
cyclopropyl fentanyl abuse are consistent with those of other opioids 
and are demonstrated by fatal overdose cases involving this substance.
    On October 1, 2014, the DEA implemented STARLiMS (a web-based, 
commercial laboratory information management system) to replace the 
System to Retrieve Information from Drug Evidence (STRIDE) as its 
laboratory drug evidence data system of record. DEA laboratory data 
submitted after September 30, 2014, are reposited in STARLiMS. Data 
from STRIDE and STARLiMS were queried on August 25, 2017. STARLiMS 
registered a total of three reports containing cyclopropyl fentanyl 
from California, Connecticut, and New York. Of these three exhibits, 
one had a net weight of approximately one kilogram. According to 
STARLiMS, the first laboratory submission of cyclopropyl fentanyl 
occurred in Connecticut in June 2017.
    The National Forensic Laboratory Information System (NFLIS) is a 
national drug forensic laboratory reporting system that systematically 
collects results from drug chemistry analyses conducted by other 
federal, state and local forensic laboratories across the country. 
NFLIS registered 10 reports containing cyclopropyl fentanyl from state 
or local forensic laboratories in Oklahoma in July 2017 (query date: 
August 29, 2017).\3\
---------------------------------------------------------------------------

    \3\ Data are still being collected for May 2017-August 2017 due 
to the normal lag period for labs reporting to NFLIS.
---------------------------------------------------------------------------

    In addition to data recorded in NFLIS and STARLiMS, cyclopropyl 
fentanyl was identified in drug evidence submitted to state and local 
forensic laboratories in Georgia and Pennsylvania. Cyclopropyl fentanyl 
was confirmed in combination with U-47700, another synthetic opioid 
temporarily controlled in schedule I of the CSA, in 24 glassine paper 
packets submitted to a law enforcement forensic laboratory in 
Pennsylvania.\4\ A law enforcement forensic laboratory in Georgia 
confirmed \5\ the presence of cyclopropyl fentanyl in counterfeit 
oxycodone tablets which also contained U-47700. The distribution of 
cyclopropyl fentanyl in these forms, and in combination with another 
synthetic opioid, suggests that this substance was marketed as heroin 
or prescription opioids in the illicit market.
---------------------------------------------------------------------------

    \4\ Email from Philadelphia Police Department-Office of Forensic 
Science, to DEA (August 18, 2017 11:09 a.m.) (on file with DEA).
    \5\ Laboratory report obtained from Division of Forensic 
Science, Georgia Bureau of Investigation.
---------------------------------------------------------------------------

    Evidence suggests that the pattern of abuse of fentanyl analogues, 
including cyclopropyl fentanyl, parallels that of heroin and 
prescription opioid analgesics. Seizures of cyclopropyl fentanyl have 
been encountered in powder form, similar to fentanyl and heroin, and in 
counterfeit prescription opioid analgesics (i.e. counterfeit oxycodone 
tablets). Cyclopropyl fentanyl was also confirmed in toxicology samples 
from fatal overdose cases.

Factor 5. Scope, Duration and Significance of Abuse

    Reports collected by the DEA demonstrate that cyclopropyl fentanyl 
is being abused for its opioid effects. Abuse of cyclopropyl fentanyl 
has resulted in mortality (see DEA 3-Factor Analysis for full 
discussion). The DEA collected post-mortem toxicology and medical 
examiner reports on 115 confirmed fatalities associated with 
cyclopropyl fentanyl which occurred in Georgia (1), Maryland (24), 
Mississippi (1), North Carolina (75), and Wisconsin (14). It is likely 
that the prevalence of this substance in opioid related emergency room 
admissions and deaths is underreported as standard immunoassays may not 
differentiate this fentanyl analogue from fentanyl.
    NFLIS and STARLiMS have a total of 13 drug reports in which 
cyclopropyl fentanyl was identified in drug exhibits submitted to 
forensic laboratories in 2017 from law enforcement encounters in 
California, Connecticut, New York, and Oklahoma. In addition to the 
data collected in these databases, cyclopropyl fentanyl was identified 
in drug evidence submitted to forensic laboratories in Georgia 
(counterfeit oxycodone preparation) and Pennsylvania (24 glassine paper 
packets).
    The population likely to abuse cyclopropyl fentanyl overlaps with 
the population abusing prescription opioid analgesics, heroin, fentanyl 
and other fentanyl-related substances. This is supported by cyclopropyl 
fentanyl being identified in powder contained within glassine paper 
packets and counterfeit prescription opioid products. This is also 
demonstrated by routes of drug administration and drug use history 
documented in cyclopropyl fentanyl fatal overdose cases. Because 
abusers of cyclopropyl fentanyl obtain this substance through 
unregulated sources, the identity, purity, and quantity are uncertain 
and inconsistent, thus posing significant adverse health risks to the 
end user. Individuals who initiate (i.e. use a drug for the first time) 
cyclopropyl fentanyl abuse are likely to be at risk of developing 
substance use disorder, overdose, and death similar to that of other 
opioid analgesics (e.g., fentanyl, morphine, etc.).

Factor 6. What, if Any, Risk There Is to the Public Health

    With no legitimate medical use, cyclopropyl fentanyl has emerged on 
the illicit drug market and is being misused and abused for its opioid 
properties. Cyclopropyl fentanyl exhibits pharmacological profiles 
similar to that of fentanyl and other [micro]-opioid receptor agonists. 
The abuse of cyclopropyl fentanyl poses significant adverse health 
risks when compared to abuse of pharmaceutical preparations of opioid 
analgesics, such as morphine and oxycodone. The toxic effects of 
cyclopropyl fentanyl in humans are demonstrated by overdose fatalities 
involving this substance.

[[Page 471]]

    Based on information received by the DEA, the misuse and abuse of 
cyclopropyl fentanyl lead to, at least, the same qualitative public 
health risks as heroin, fentanyl, and other opioid analgesic 
substances. As with any non-medically approved opioid agonist, the 
health and safety risks for users are high. The public health risks 
attendant to the abuse of heroin and opioid analgesics are well 
established and have resulted in large numbers of drug treatment 
admissions, emergency department visits, and fatal overdoses.
    Cyclopropyl fentanyl has been associated with numerous fatalities. 
At least 115 confirmed overdose deaths involving cyclopropyl fentanyl 
abuse have been reported from Georgia (1), Maryland (24), Mississippi 
(1), North Carolina (75), and Wisconsin (14) in 2017. As the data 
demonstrate, the potential for fatal and non-fatal overdoses exists for 
cyclopropyl fentanyl and this substance poses an imminent hazard to the 
public safety.

Finding of Necessity of Schedule I Placement To Avoid Imminent Hazard 
to Public Safety

    In accordance with 21 U.S.C. 811(h)(3), based on the available data 
and information, summarized above, the continued uncontrolled 
manufacture, distribution, reverse distribution, importation, 
exportation, conduct of research and chemical analysis, possession, and 
abuse of cyclopropyl fentanyl pose an imminent hazard to the public 
safety. The DEA is not aware of any currently accepted medical uses for 
cyclopropyl fentanyl in the United States. A substance meeting the 
statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), 
may only be placed in schedule I. Substances in schedule I are those 
that have a high potential for abuse, no currently accepted medical use 
in treatment in the United States, and a lack of accepted safety for 
use under medical supervision. Available data and information for 
cyclopropyl fentanyl indicate that this substance has a high potential 
for abuse, no currently accepted medical use in treatment in the United 
States, and a lack of accepted safety for use under medical 
supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 
811(h)(4), the Administrator, by letter dated August 28, 2017, notified 
the Assistant Secretary of the DEA's intention to temporarily place 
this substance in schedule I. A notice of intent was subsequently 
published in the Federal Register on November 21, 2017. 82 FR 55333.

Conclusion

    In accordance with the provisions of section 201(h) of the CSA, 21 
U.S.C. 811(h), the Administrator considered available data and 
information, and herein sets forth the grounds for his determination 
that it is necessary to temporarily schedule cyclopropyl fentanyl in 
schedule I of the CSA to avoid an imminent hazard to the public safety.
    Because the Administrator hereby finds it necessary to temporarily 
place this synthetic opioid in schedule I to avoid an imminent hazard 
to the public safety, this temporary order scheduling cyclopropyl 
fentanyl is effective on the date of publication in the Federal 
Register, and is in effect for a period of two years, with a possible 
extension of one additional year, pending completion of the regular 
(permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2).
    The CSA sets forth specific criteria for scheduling a drug or other 
substance. Permanent scheduling actions in accordance with 21 U.S.C. 
811(a) are subject to formal rulemaking procedures done ``on the record 
after opportunity for a hearing'' conducted pursuant to the provisions 
of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The permanent scheduling 
process of formal rulemaking affords interested parties with 
appropriate process and the government with any additional relevant 
information needed to make a determination. Final decisions that 
conclude the permanent scheduling process of formal rulemaking are 
subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders 
are not subject to judicial review. 21 U.S.C. 811(h)(6).

Requirements for Handling

    Upon the effective date of this temporary order, cyclopropyl 
fentanyl will be subject to the regulatory controls and administrative, 
civil, and criminal sanctions applicable to the manufacture, 
distribution, reverse distribution, importation, exportation, 
engagement in research, and conduct of instructional activities or 
chemical analysis with, and possession of schedule I controlled 
substances including the following:
    1. Registration. Any person who handles (manufactures, distributes, 
reverse distributes, imports, exports, engages in research, or conducts 
instructional activities or chemical analysis with, or possesses), or 
who desires to handle, cyclopropyl fentanyl must be registered with the 
DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 
958 and in accordance with 21 CFR parts 1301 and 1312, as of January 4, 
2018. Any person who currently handles cyclopropyl fentanyl, and is not 
registered with the DEA, must submit an application for registration 
and may not continue to handle cyclopropyl fentanyl as of January 4, 
2018, unless the DEA has approved that application for registration 
pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR 
parts 1301 and 1312. Retail sales of schedule I controlled substances 
to the general public are not allowed under the CSA. Possession of any 
quantity of this substance in a manner not authorized by the CSA on or 
after January 4, 2018 is unlawful and those in possession of any 
quantity of this substance may be subject to prosecution pursuant to 
the CSA.
    2. Disposal of stocks. Any person who does not desire or is not 
able to obtain a schedule I registration to handle cyclopropyl fentanyl 
must surrender all currently held quantities of cyclopropyl fentanyl.
    3. Security. Cyclopropyl fentanyl is subject to schedule I security 
requirements and must be handled and stored pursuant to 21 U.S.C. 821, 
823, 871(b), and in accordance with 21 CFR 1301.71-1301.93, as of 
January 4, 2018.
    4. Labeling and packaging. All labels, labeling, and packaging for 
commercial containers of cyclopropyl fentanyl must be in compliance 
with 21 U.S.C. 825, 958(e), and be in accordance with 21 CFR part 1302. 
Current DEA registrants shall have 30 calendar days from January 4, 
2018, to comply with all labeling and packaging requirements.
    5. Inventory. Every DEA registrant who possesses any quantity of 
cyclopropyl fentanyl on the effective date of this order must take an 
inventory of all stocks of this substance on hand, pursuant to 21 
U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 
1304.11. Current DEA registrants shall have 30 calendar days from the 
effective date of this order to be in compliance with all inventory 
requirements. After the initial inventory, every DEA registrant must 
take an inventory of all controlled substances (including cyclopropyl 
fentanyl) on hand on a biennial basis, pursuant to 21 U.S.C. 827 and 
958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.
    6. Records. All DEA registrants must maintain records with respect 
to cyclopropyl fentanyl pursuant to 21 U.S.C. 827 and 958, and in 
accordance with 21 CFR parts 1304, 1312, 1317, and Sec.  1307.11. 
Current DEA registrants shall have 30 calendar days from the effective

[[Page 472]]

date of this order to be in compliance with all recordkeeping 
requirements.
    7. Reports. All DEA registrants who manufacture or distribute 
cyclopropyl fentanyl must submit reports pursuant to 21 U.S.C. 827 and 
in accordance with 21 CFR parts 1304 and 1312 as of January 4, 2018.
    8. Order Forms. All DEA registrants who distribute cyclopropyl 
fentanyl must comply with order form requirements pursuant to 21 U.S.C. 
828 and in accordance with 21 CFR part 1305 as of January 4, 2018.
    9. Importation and Exportation. All importation and exportation of 
cyclopropyl fentanyl must be in compliance with 21 U.S.C. 952, 953, 
957, 958, and in accordance with 21 CFR part 1312 as of January 4, 
2018.
    10. Quota. Only DEA registered manufacturers may manufacture 
cyclopropyl fentanyl in accordance with a quota assigned pursuant to 21 
U.S.C. 826 and in accordance with 21 CFR part 1303 as of January 4, 
2018.
    11. Liability. Any activity involving cyclopropyl fentanyl not 
authorized by, or in violation of, the CSA, occurring as of January 4, 
2018, is unlawful, and may subject the person to administrative, civil, 
and/or criminal sanctions.

Regulatory Matters

    Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a 
temporary scheduling action where such action is necessary to avoid an 
imminent hazard to the public safety. As provided in this subsection, 
the Attorney General may, by order, schedule a substance in schedule I 
on a temporary basis. Such an order may not be issued before the 
expiration of 30 days from (1) the publication of a notice in the 
Federal Register of the intention to issue such order and the grounds 
upon which such order is to be issued, and (2) the date that notice of 
the proposed temporary scheduling order is transmitted to the Assistant 
Secretary. 21 U.S.C. 811(h)(1).
    Inasmuch as section 201(h) of the CSA directs that temporary 
scheduling actions be issued by order and sets forth the procedures by 
which such orders are to be issued, the DEA believes that the notice 
and comment requirements of the Administrative Procedure Act (APA) at 5 
U.S.C. 553, do not apply to this temporary scheduling action. In the 
alternative, even assuming that this action might be subject to 5 
U.S.C. 553, the Administrator finds that there is good cause to forgo 
the notice and comment requirements of 5 U.S.C. 553, as any further 
delays in the process for issuance of temporary scheduling orders would 
be contrary to the public interest in view of the manifest urgency to 
avoid an imminent hazard to the public safety.
    Further, the DEA believes that this temporary scheduling action is 
not a ``rule'' as defined by 5 U.S.C. 601(2), and, accordingly, is not 
subject to the requirements of the Regulatory Flexibility Act. The 
requirements for the preparation of an initial regulatory flexibility 
analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA 
is not required by the APA or any other law to publish a general notice 
of proposed rulemaking.
    Additionally, this action is not a significant regulatory action as 
defined by Executive Order 12866 (Regulatory Planning and Review), 
section 3(f), and, accordingly, this action has not been reviewed by 
the Office of Management and Budget (OMB).
    This action will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132 (Federalism) it is determined that this action does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.
    As noted above, this action is an order, not a rule. Accordingly, 
the Congressional Review Act (CRA) is inapplicable, as it applies only 
to rules. However, if this were a rule, pursuant to the Congressional 
Review Act, ``any rule for which an agency for good cause finds that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest, shall take effect at such time as the 
federal agency promulgating the rule determines.'' 5 U.S.C. 808(2). It 
is in the public interest to schedule this substance immediately to 
avoid an imminent hazard to the public safety. This temporary 
scheduling action is taken pursuant to 21 U.S.C. 811(h), which is 
specifically designed to enable the DEA to act in an expeditious manner 
to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h) 
exempts the temporary scheduling order from standard notice and comment 
rulemaking procedures to ensure that the process moves swiftly. For the 
same reasons that underlie 21 U.S.C. 811(h), that is, the DEA's need to 
move quickly to place this substance in schedule I because it poses an 
imminent hazard to the public safety, it would be contrary to the 
public interest to delay implementation of the temporary scheduling 
order. Therefore, this order shall take effect immediately upon its 
publication. The DEA has submitted a copy of this temporary order to 
both Houses of Congress and to the Comptroller General, although such 
filing is not required under the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Congressional Review Act), 5 U.S.C. 801-808 
because, as noted above, this action is an order, not a rule.

List of Subjects in 21 CFR Part 1308

    Administrative practice and procedure, Drug traffic control, 
Reporting and recordkeeping requirements.

    For the reasons set out above, the DEA amends 21 CFR part 1308 as 
follows:

PART 1308--SCHEDULES OF CONTROLLED SUBSTANCES

0
1. The authority citation for part 1308 continues to read as follows:

    Authority:  21 U.S.C. 811, 812, 871(b), 956(b), unless otherwise 
noted.

0
2. In Sec.  1308.11, add paragraph (h)(22) to read as follows:


Sec.  1308.11  Schedule I.

* * * * *
    (h) * * *
    (22) N-(1-phenethylpiperidin-4-yl)-N-phenylcyclopropanecarboxamide, 
its isomers, esters, ethers, salts and salts of isomers, esters and 
ethers (Other name: cyclopropyl fentanyl). . . . . . . . . . . .(9845)

    Dated: December 28, 2017.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2017-28470 Filed 1-3-18; 8:45 am]
 BILLING CODE 4410-09-P