Schedules of Controlled Substances: Temporary Placement of Fentanyl-Related Substances in Schedule I, 5188-5192 [2018-02319]
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Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / Rules and Regulations
inspector, the manager of the local flight
standards district office/certificate holding
district office.
(2) Contacting the Manufacturer: For any
requirement in this AD to obtain corrective
actions from a manufacturer, the action must
be accomplished using a method approved
by the Manager, International Section,
Transport Standards Branch, FAA; or the
European Aviation Safety Agency (EASA); or
Airbus’s EASA Design Organization
Approval (DOA). If approved by the DOA,
the approval must include the DOAauthorized signature.
(j) Special Flight Permits
Special flight permits, as described in
Section 21.197 and Section 21.199 of the
Federal Aviation Regulations (14 CFR 21.197
and 21.199), are not allowed.
(k) Related Information
(1) Refer to Mandatory Continuing
Airworthiness Information (MCAI) EASA
Airworthiness Directive 2017–0257R1, dated
January 9, 2018, for related information. You
may examine the MCAI on the internet at
https://www.regulations.gov by searching for
and locating Docket No. FAA–2018–0024.
(2) For more information about this AD,
contact Sanjay Ralhan, Aerospace Engineer,
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(l) Material Incorporated by Reference
None.
Issued in Renton, Washington, on January
19, 2018.
Michael Kaszycki,
Acting Director, System Oversight Division,
Aircraft Certification Service.
[FR Doc. 2018–02364 Filed 2–5–18; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1308
[Docket No. DEA–476]
Schedules of Controlled Substances:
Temporary Placement of FentanylRelated Substances in Schedule I
Drug Enforcement
Administration, Department of Justice.
ACTION: Temporary amendment;
temporary scheduling order.
AGENCY:
The Administrator of the Drug
Enforcement Administration is issuing
this temporary scheduling order to
schedule fentanyl-related substances
that are not currently listed in any
schedule of the Controlled Substances
Act (CSA) and their isomers, esters,
ethers, salts and salts of isomers, esters,
and ethers in schedule I. This action is
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SUMMARY:
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based on a finding by the Administrator
that the placement of these synthetic
opioids in schedule I 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 fentanylrelated substances.
This temporary scheduling order
is effective February 6, 2018, until
February 6, 2020. If this order is
extended or made permanent, the DEA
will publish a document in the Federal
Register.
DATES:
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
permanently are initiated under 21
U.S.C. 811(a)(1) while the substance is
temporarily controlled under section
811(h), 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,
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
(FD&C Act), 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.
1 Though DEA has used the term ‘‘final order’’
with respect to temporary scheduling orders in the
past, this notification adheres to the statutory
language of 21 U.S.C. 811(h), which refers to a
‘‘temporary scheduling order.’’ No substantive
change is intended.
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Background
The Nature of the Problem and DEA’s
Approach to Correct It
It is well known that deaths
associated with the abuse of substances
structurally related to fentanyl 2 in the
United States are on the rise and have
already reached alarming levels. While
a number of factors appear to be
contributing to this public health crisis,
chief among the causes is the sharp
increase in recent years in the
availability of illicitly produced, potent
substances structurally related to
fentanyl. Fentanyl is approximately 100
times more potent than morphine, and
the substances structurally related to
fentanyl that DEA is temporarily
controlling also tend to be potent
substances. Typically, these substances
are manufactured outside the United
States by clandestine manufacturers and
then smuggled into the United States.
Fentanyl is often mixed with heroin
and other substances (such as cocaine
and methamphetamine) or used in
counterfeit pharmaceutical prescription
drugs. As a consequence, users who buy
these substances on the illicit market are
often unaware of the specific substance
they are actually consuming and the
associated risk. According to the Centers
for Disease Control and Prevention
(CDC), drug overdose deaths involving
synthetic opioids (excluding
methadone), such as fentanyl and
tramadol, increased from 5,544 in 2014
to 9,580 in 2015. According to
provisional data released in August
2017 by the CDC, National Center for
Health Statistics, an estimated 55
Americans are dying every day from
overdoses of synthetic opioids
(excluding methadone).3 Drug overdose
deaths involving synthetic opioids
excluding methadone for the 12-month
period ending in January of 2017
(20,145 deaths) more than doubled from
the corresponding data for the period
ending in January of 2016 (9,945
deaths).
DEA has responded to this crisis by
issuing eight temporary scheduling
2 As explained further below, in this document,
the term ‘‘fentanyl-related substances’’ is defined to
include substances structurally related to fentanyl
but which are not controlled under a separate
scheduling action (listed under another
Administration Controlled Substance Code
Number). Thus, all ‘‘fentanyl-related substances’’
are structurally related to fentanyl, but some
fentanyl-related substances are controlled under
separate scheduling actions.
3 Provisional synthetic opioid death overdose
counts are based on CDC data available for analysis
as of August 6, 2017, based on the 12-month
reporting period ending January 2017. See https://
www.cdc.gov/nchs/data/health_policy/monthlydrug-overdose-death-estimates.pdf accessed 09–06–
2017.
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orders to control seventeen substances
structurally related to fentanyl since
2015. However, this approach has not
been completely effective in preventing
the emergence of new substances
structurally related to fentanyl. This is
because when DEA temporarily controls
a given substance structurally related to
fentanyl, illicit manufacturers located
abroad begin producing new such
substances through other structural
modifications. Those new nonscheduled
substances then are smuggled into the
United States, where they are
distributed by traffickers in this country
as a purportedly ‘‘noncontrolled’’
substance.4 In this way, traffickers are
effectively circumventing the temporary
control mechanism that Congress
established under 21 U.S.C. 811(h) to
combat newly emerging dangerous
drugs. Post mortem toxicology and
medical examiner reports collected by
the DEA show mortality connected to
substances structurally related to
fentanyl. Control of these substances is
necessary to avoid an imminent hazard
to the public safety.
Given the gravity of the ongoing
fentanyl-related overdose crisis in the
United States, protection of the public
safety demands the utilization of 21
U.S.C. 811(h) in a manner that cannot be
readily circumvented by drug
traffickers. Specifically, in issuing this
temporary scheduling order, DEA
exercises its authority to avoid an
imminent hazard to the public safety by
placing fentanyl-related substances, as
defined later in this document, in
schedule I. As explained below, these
fentanyl-related substances—including
those that have not yet been introduced
by traffickers into the U.S. market—
present a significant risk to the public
health and safety and need to be
controlled under section 811(h) to avoid
an imminent hazard to the public safety.
It should also be noted that none of the
substances that is being temporarily
controlled has a currently accepted
medical use in treatment in the United
States; nor is any of the substances the
subject of an exemption or approval
under section 505 of the FD&C Act. In
accordance with section 811(h), if any
exemption or approval is in effect under
section 505 of the FD&C Act with
respect to a substance that falls within
the definition of a fentanyl-related
substance set forth in this document,
4 Such trafficking is actually illegal as persons
who do so can be prosecuted using the controlled
substance analogue provisions of the CSA. 21
U.S.C. 802(32), 813. However, prosecution under
the analogue provisions requires proof of additional
elements not required for prosecuting trafficking in
scheduled substances.
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such substance is excluded from the
temporary scheduling order.
What Is Controlled Under This
Temporary Scheduling Order
On December 29, 2017, as required by
21 U.S.C. 811(h)(A), the DEA
Administrator published a notice of
intent to issue an order temporarily
placing fentanyl-related substances in
schedule I. 82 FR 61700. This temporary
order places fentanyl-related substances
in schedule I of the CSA for two years.
DEA may extend the temporary
scheduling for an additional year (a total
of three years) if proceedings to
permanently schedule the substances
are pending. As defined in the notice of
intent, as well as in this temporary
order, fentanyl-related substances
includes any substance not otherwise
controlled in any schedule (i.e., not
included under any other
Administration Controlled Substance
Code Number) that is structurally
related to fentanyl by one or more of the
following modifications:
(A) Replacement of the phenyl
portion of the phenethyl group by any
monocycle, whether or not further
substituted in or on the monocycle;
(B) substitution in or on the phenethyl
group with alkyl, alkenyl, alkoxyl,
hydroxyl, halo, haloalkyl, amino or
nitro groups;
(C) substitution in or on the
piperidine ring with alkyl, alkenyl,
alkoxyl, ester, ether, hydroxyl, halo,
haloalkyl, amino or nitro groups;
(D) replacement of the aniline ring
with any aromatic monocycle whether
or not further substituted in or on the
aromatic monocycle; and/or
(E) replacement of the N-propionyl
group by another acyl group.
How DEA Will Identify Individual
Fentanyl-Related Substances That Fall
Within This Temporary Scheduling
Order
As indicated, the temporary
scheduling order includes all substances
that fall within the above definition—
even if such substances have not yet
emerged on the illicit market in the
United States. As a result, DEA cannot
currently specify the chemical name of
every potential substance that might fall
under this new definition. However,
because the definition of fentanylrelated substance describes a unique
chemical structure, DEA has the
authority to under 21 U.S.C. 811(h) to
temporarily schedule this category of
substance. In the future, if and when
DEA identifies a specific new substance
that falls under the definition, the
agency will publish in the Federal
Register, and on the agency website, the
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5189
chemical name of such substance. Thus,
the text of the definition of fentanylrelated substance includes language
indicating that it ‘‘includes, but is not
limited to, the following substances:’’ It
bears emphasis, however, that even in
the absence of a future publication by
DEA specifically identifying such a
substance, the substance is controlled
by virtue of this temporary scheduling
order if it falls within the definition of
fentanyl-related substance.
Notification to the Secretary of Health
and Human Services
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.5 On November 6,
2017, the Administrator transmitted
notice by letter to the Assistant
Secretary for Health of HHS of his intent
to place fentanyl-related substances,
unless listed in another schedule, in
schedule I on a temporary basis. The
Assistant Secretary responded by letter
dated November 29, 2017, and advised
that based on a review by the Food and
Drug Administration (FDA), they are not
aware of any investigational new drug
applications or approved new drug
applications for fentanyl-related
substances as defined above under
section 505 of the FD&C Act, 21 U.S.C.
355, and that HHS has no objection to
the temporary placement of these
substances in schedule I of the CSA. As
indicated, in accordance with section
811(h), fentanyl-related substances are
defined under this temporary
scheduling order to exclude any
substance for which an exemption or
approval is in effect under section 505
of the FD&C Act.
Grounds for Temporary Scheduling
Order
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 21 U.S.C. 811(c): The
substance’s history and current pattern
of abuse; the scope, duration and
significance of abuse; and what, if any,
5 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.
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risk there is to the public health. 21
U.S.C. 811(h)(3). These factors include,
but are not limited to, actual abuse,
diversion from legitimate channels, and
clandestine importation, manufacture,
or distribution. Id. DEA has considered
these factors for fentanyl-related
substances, as defined above, and finds
that the information is consistent across
this class of substances. The DEA’s
three-factor analysis is available in its
entirety under ‘‘Supporting and Related
Material’’ of the public docket for this
action at www.regulations.gov under
Docket Number DEA–476.
Substances that are included in the
above-listed structural modifications
and any combination of these structural
modifications have been found to cause
pharmacological effects that are similar
to those of fentanyl. It therefore is
reasonable to expect that all such
substances, even if they have yet to
appear on the illicit market in the
United States, share the dangerous and
potentially lethal properties that have
caused the recent spike in fentanylrelated overdose deaths in the United
States. While these substances may not
yet have appeared in the domestic illicit
market, with 21 U.S.C. 811(h), Congress
empowered DEA to act proactively to
‘‘avoid an imminent hazard to the
public safety’’ by scheduling dangerous
substances on a temporary basis before
they adversely impact the public safety.
Thus, where, as here, DEA has evidence
indicating that certain substances, due
to their chemical structure and resulting
pharmacological properties, as well as
observed patterns of production and
trafficking of closely related substances,
will pose an imminent hazard to the
public safety in the absence of control
in schedule I (having considered the
relevant factors under 21 U.S.C.
811(h)(3)), DEA may issue a temporary
order under 21 U.S.C. 811(h). By
temporarily placing these fentanylrelated substances in schedule I, it is
DEA’s intention to deter the production
and introduction of these substances
into the United States that traffickers
might be considering—before such
activity even begins—thereby avoiding
an imminent hazard to the public safety.
The alternative approach, of only
temporarily controlling substances that
have already appeared in the illicit U.S.
market, is beneficial but has not
eliminated the danger these newly
created substances pose and is not as
effective in preventing future deaths and
serious injuries associated with these
substances. In addition, by controlling
fentanyl-related substances, the
temporary scheduling order will
facilitate the development of
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international, national, and local
prevention strategies that decrease
morbidity and mortality from overdoses
caused by or associated with fentanylrelated substances.
For these reasons, DEA has concluded
that issuing a temporary scheduling
order is necessary to avoid an imminent
hazard to the public safety.
Schedule I Classification
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).
As indicated, DEA finds that the
fentanyl-related substances that are
temporarily controlled by virtue of this
order have a high potential for abuse.
Information provided by the Assistant
Secretary of HHS indicates that these
fentanyl-related substances, as defined,
have no currently accepted medical use
in treatment in the United States and
lack accepted safety for use under
medical supervision.
Conclusion
In accordance with the provisions of
section 201(h) of the CSA, 21 U.S.C.
811(h), the Administrator issues this
temporary scheduling order to place
fentanyl-related substances in schedule
I of the CSA. Because the Administrator
hereby finds that it is necessary to
temporarily place fentanyl-related
substances in schedule I to avoid an
imminent hazard to the public safety,
this temporary order scheduling these
substances is effective on the date the
order is published in the Federal
Register, and is in effect for a period of
two years. DEA may extend the
temporary scheduling for an additional
year (a total of three years) if
proceedings to permanently schedule
the substances are pending. 21 U.S.C.
811(h)(1) and (2).
Requirements for Handling
Upon the effective date of this
temporary order, fentanyl-related
substances 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:
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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, fentanyl-related
substances 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 February 6, 2018. Any
person who currently handles fentanylrelated substances, and is not registered
with the DEA, must submit an
application for registration and may not
continue to handle fentanyl-related
substances as of February 6, 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 these
substances in a manner not authorized
by the CSA on or after February 6, 2018
is unlawful and those in possession of
any quantity of these substances 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
fentanyl-related substances must
surrender all currently held quantities
of fentanyl-related substances.
3. Security. Fentanyl-related
substances are 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 February 6, 2018.
4. Labeling and packaging. All labels,
labeling, and packaging for commercial
containers of fentanyl-related
substances 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 February 6, 2018, to
comply with all labeling and packaging
requirements.
5. Inventory. Every DEA registrant
who possesses any quantity of fentanylrelated substances on the effective date
of this order must take an inventory of
all stocks of these substances 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
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substances (including fentanyl-related
substances) 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
fentanyl-related substances pursuant to
21 U.S.C. 827 and 958, and in
accordance with 21 CFR parts 1304,
1312, and 1317. Current DEA registrants
shall have 30 calendar days from the
effective date of this order to be in
compliance with all recordkeeping
requirements.
7. Reports. All DEA registrants who
manufacture or distribute fentanylrelated substances must submit reports
pursuant to 21 U.S.C. 827 and in
accordance with 21 CFR parts 1304 and
1312 as of February 6, 2018.
8. Order Forms. All DEA registrants
who distribute fentanyl-related
substances must comply with order
form requirements pursuant to 21 U.S.C.
828 and in accordance with 21 CFR part
1305 as of February 6, 2018.
9. Importation and Exportation. All
importation and exportation of fentanylrelated substances must be in
compliance with 21 U.S.C. 952, 953,
957, 958, and in accordance with 21
CFR part 1312 as of February 6, 2018.
10. Quota. Only DEA registered
manufacturers may manufacture
fentanyl-related substances in
accordance with a quota assigned
pursuant to 21 U.S.C. 826 and in
accordance with 21 CFR part 1303 as of
February 6, 2018.
11. Liability. Any activity involving
fentanyl-related substances not
authorized by, or in violation of, the
CSA, occurring as of February 6, 2018,
is unlawful, and may subject the person
to administrative, civil, and/or criminal
sanctions.
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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 of HHS. 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 notice-and-comment
requirements of section 553 of the
Administrative Procedure Act (APA), 5
U.S.C. 553, do not apply to this
temporary order. In the alternative, even
if this order were subject to section 553
of the APA, the Administrator would
find that there is good cause to forgo the
notice-and-comment requirements of
section 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 urgent
need to control fentanyl-related
substances to avoid an imminent hazard
to the public safety.
Since this temporary scheduling
action is not a ‘‘rule’’ as defined by 5
U.S.C. 601(2), it is not subject to the
requirements of the Regulatory
Flexibility Act (RFA). 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 section 553
of 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.
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 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 these
substances 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 these substances in schedule I
because they pose 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
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)(30)
to read as follows:
■
§ 1308.11
*
Schedule I.
*
*
(h) * * *
*
*
(30) Fentanyl-related substances, their isomers, esters, ethers, salts and salts of isomers, esters and ethers .............................
(i) Fentanyl-related substance means
any substance not otherwise listed
under another Administration
VerDate Sep<11>2014
17:43 Feb 05, 2018
Jkt 244001
Controlled Substance Code Number,
and for which no exemption or approval
is in effect under section 505 of the
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
5191
9850
Federal Food, Drug, and Cosmetic Act
[21 U.S.C. 355], that is structurally
E:\FR\FM\06FER1.SGM
06FER1
5192
Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / Rules and Regulations
related to fentanyl by one or more of the
following modifications:
(A) Replacement of the phenyl
portion of the phenethyl group by any
monocycle, whether or not further
substituted in or on the monocycle;
(B) Substitution in or on the
phenethyl group with alkyl, alkenyl,
alkoxyl, hydroxyl, halo, haloalkyl,
amino or nitro groups;
(C) Substitution in or on the
piperidine ring with alkyl, alkenyl,
alkoxyl, ester, ether, hydroxyl, halo,
haloalkyl, amino or nitro groups;
(D) Replacement of the aniline ring
with any aromatic monocycle whether
or not further substituted in or on the
aromatic monocycle; and/or
(E) Replacement of the N-propionyl
group by another acyl group.
(ii) This definition includes, but is not
limited to, the following substances:
(A) [Reserved]
(B) [Reserved]
Dated: February 1, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018–02319 Filed 2–5–18; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[189A2100DD/AAKC001030/
A0A501010.999900253G]
25 CFR Parts 140, 141, 211, 213, 225,
226, 227, 243, and 249
RIN 1076–AF40
Civil Penalties Inflation Adjustments;
Annual Adjustments
Bureau of Indian Affairs,
Interior.
ACTION: Final rule.
AGENCY:
This rule provides for annual
adjustments to the level of civil
monetary penalties contained in Bureau
of Indian Affairs (Bureau) regulations to
account for inflation under the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 and Office of
Management and Budget (OMB)
guidance.
DATES: This rule is effective on February
6, 2018.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Appel, Director, Office of
Regulatory Affairs and Collaborative
Action, Office of the Assistant
Secretary—Indian Affairs; telephone
(202) 273–4680, elizabeth.appel@
bia.gov.
daltland on DSKBBV9HB2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
17:43 Feb 05, 2018
Jkt 244001
SUPPLEMENTARY INFORMATION:
I. Background
II. Calculation of Annual Adjustments
III. Procedural Requirements
A. Regulatory Planning and Review (E.O.
12866, 13563, and 13771)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement
Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O.
13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O.
13211)
L. Clarity of This Regulation
M. Administrative Procedure Act
I. Background
On November 2, 2015, the President
signed into law the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (Sec. 701 of
Pub. L. 114–74) (‘‘the Act’’). The Act
requires Federal agencies to adjust the
level of civil monetary penalties with an
initial ‘‘catch-up’’ adjustment through
rulemaking and then make subsequent
annual adjustments for inflation. The
purpose of these adjustments is to
maintain the deterrent effect of civil
penalties and to further the policy goals
of the underlying statutes.
The Office of Management and Budget
(OMB) issued guidance for Federal
agencies on calculating the catch-up
adjustment. See February 24, 2016,
Memorandum for the Heads of
Executive Departments and Agencies,
from Shaun Donovan, Director, Office of
Management and Budget, re:
Implementation of the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (M–16–06).
Under the guidance, the Department
identified applicable civil monetary
penalties and calculated the catch-up
adjustment. A civil monetary penalty is
any assessment with a dollar amount
that is levied for a violation of a Federal
civil statute or regulation, and is
assessed or enforceable through a civil
action in Federal court or an
administrative proceeding. A civil
monetary penalty does not include a
penalty levied for violation of a criminal
statute, or fees for services, licenses,
permits, or other regulatory review. The
calculated catch-up adjustment is based
on the percent change between the
Consumer Price Index for all Urban
Consumers (CPI0–U) for the month of
October in the year of the previous
adjustment (or in the year of
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
establishment, if no adjustment has
been made) and the October 2015
CPI–U.
The Bureau issued an interim final
rule providing for calculated catch-up
adjustments on June 30, 2016 (81 FR
42478) with an effective date of August
1, 2016, and requesting comments postpromulgation. The Bureau issued a final
rule affirming the catch-up adjustments
set forth in the interim final rule on
December 2, 2016 (81 FR 86953). The
Bureau then issued a final rule making
the next scheduled annual inflation
adjustment for 2017 on January 23, 2017
(82 FR 7649).
II. Calculation of 2018 Annual
Adjustments
OMB recently issued guidance to
assist Federal agencies in implementing
the annual adjustments required by the
Act which agencies must complete by
January 15, 2018. See December 15,
2017, Memorandum for the Heads of
Executive Departments and Agencies,
from Mick Mulvaney, Director, Office of
Management and Budget, re:
Implementation of the Penalty Inflation
Adjustments for 2018, Pursuant to the
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (M–18–03). The guidance states
that the cost-of-living adjustment
multiplier for 2018, based on the
Consumer Price Index (CPI–U) for the
month of October 2017, not seasonally
adjusted, is 1.02041. (The annual
inflation adjustments are based on the
percent change between the October
CPI–U preceding the date of the
adjustment, and the prior year’s October
CPI–U. For 2017, OMB explains,
October 2017 CPI–U (246.663)/October
2016 CPI–U (241.729) = 1.02041.) The
guidance instructs agencies to complete
the 2018 annual adjustment by
multiplying each applicable penalty by
the multiplier, 1.02041, and rounding to
the nearest dollar. Further, agencies
should apply the multiplier to the most
recent penalty amount that includes the
initial catch-up adjustment required by
the Act.
The annual adjustment applies to all
civil monetary penalties with a dollar
amount that are subject to the Act. This
final rule adjusts the following civil
monetary penalties contained in the
Bureau’s regulations for 2018 by
multiplying 1.02041 (i.e., the cost-ofliving adjustment multiplier for 2018)
by each penalty amount as updated by
the adjustment made in 2017:
E:\FR\FM\06FER1.SGM
06FER1
Agencies
[Federal Register Volume 83, Number 25 (Tuesday, February 6, 2018)]
[Rules and Regulations]
[Pages 5188-5192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02319]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1308
[Docket No. DEA-476]
Schedules of Controlled Substances: Temporary Placement of
Fentanyl-Related Substances 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 fentanyl-related
substances that are not currently listed in any schedule of the
Controlled Substances Act (CSA) and their 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
these synthetic opioids in schedule I 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 fentanyl-related
substances.
DATES: This temporary scheduling order is effective February 6, 2018,
until February 6, 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
permanently are initiated under 21 U.S.C. 811(a)(1) while the substance
is temporarily controlled under section 811(h), 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 notification 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 (FD&C Act), 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
The Nature of the Problem and DEA's Approach to Correct It
It is well known that deaths associated with the abuse of
substances structurally related to fentanyl \2\ in the United States
are on the rise and have already reached alarming levels. While a
number of factors appear to be contributing to this public health
crisis, chief among the causes is the sharp increase in recent years in
the availability of illicitly produced, potent substances structurally
related to fentanyl. Fentanyl is approximately 100 times more potent
than morphine, and the substances structurally related to fentanyl that
DEA is temporarily controlling also tend to be potent substances.
Typically, these substances are manufactured outside the United States
by clandestine manufacturers and then smuggled into the United States.
---------------------------------------------------------------------------
\2\ As explained further below, in this document, the term
``fentanyl-related substances'' is defined to include substances
structurally related to fentanyl but which are not controlled under
a separate scheduling action (listed under another Administration
Controlled Substance Code Number). Thus, all ``fentanyl-related
substances'' are structurally related to fentanyl, but some
fentanyl-related substances are controlled under separate scheduling
actions.
---------------------------------------------------------------------------
Fentanyl is often mixed with heroin and other substances (such as
cocaine and methamphetamine) or used in counterfeit pharmaceutical
prescription drugs. As a consequence, users who buy these substances on
the illicit market are often unaware of the specific substance they are
actually consuming and the associated risk. According to the Centers
for Disease Control and Prevention (CDC), drug overdose deaths
involving synthetic opioids (excluding methadone), such as fentanyl and
tramadol, increased from 5,544 in 2014 to 9,580 in 2015. According to
provisional data released in August 2017 by the CDC, National Center
for Health Statistics, an estimated 55 Americans are dying every day
from overdoses of synthetic opioids (excluding methadone).\3\ Drug
overdose deaths involving synthetic opioids excluding methadone for the
12-month period ending in January of 2017 (20,145 deaths) more than
doubled from the corresponding data for the period ending in January of
2016 (9,945 deaths).
---------------------------------------------------------------------------
\3\ Provisional synthetic opioid death overdose counts are based
on CDC data available for analysis as of August 6, 2017, based on
the 12-month reporting period ending January 2017. See https://www.cdc.gov/nchs/data/health_policy/monthly-drug-overdose-death-estimates.pdf accessed 09-06-2017.
---------------------------------------------------------------------------
DEA has responded to this crisis by issuing eight temporary
scheduling
[[Page 5189]]
orders to control seventeen substances structurally related to fentanyl
since 2015. However, this approach has not been completely effective in
preventing the emergence of new substances structurally related to
fentanyl. This is because when DEA temporarily controls a given
substance structurally related to fentanyl, illicit manufacturers
located abroad begin producing new such substances through other
structural modifications. Those new nonscheduled substances then are
smuggled into the United States, where they are distributed by
traffickers in this country as a purportedly ``noncontrolled''
substance.\4\ In this way, traffickers are effectively circumventing
the temporary control mechanism that Congress established under 21
U.S.C. 811(h) to combat newly emerging dangerous drugs. Post mortem
toxicology and medical examiner reports collected by the DEA show
mortality connected to substances structurally related to fentanyl.
Control of these substances is necessary to avoid an imminent hazard to
the public safety.
---------------------------------------------------------------------------
\4\ Such trafficking is actually illegal as persons who do so
can be prosecuted using the controlled substance analogue provisions
of the CSA. 21 U.S.C. 802(32), 813. However, prosecution under the
analogue provisions requires proof of additional elements not
required for prosecuting trafficking in scheduled substances.
---------------------------------------------------------------------------
Given the gravity of the ongoing fentanyl-related overdose crisis
in the United States, protection of the public safety demands the
utilization of 21 U.S.C. 811(h) in a manner that cannot be readily
circumvented by drug traffickers. Specifically, in issuing this
temporary scheduling order, DEA exercises its authority to avoid an
imminent hazard to the public safety by placing fentanyl-related
substances, as defined later in this document, in schedule I. As
explained below, these fentanyl-related substances--including those
that have not yet been introduced by traffickers into the U.S. market--
present a significant risk to the public health and safety and need to
be controlled under section 811(h) to avoid an imminent hazard to the
public safety. It should also be noted that none of the substances that
is being temporarily controlled has a currently accepted medical use in
treatment in the United States; nor is any of the substances the
subject of an exemption or approval under section 505 of the FD&C Act.
In accordance with section 811(h), if any exemption or approval is in
effect under section 505 of the FD&C Act with respect to a substance
that falls within the definition of a fentanyl-related substance set
forth in this document, such substance is excluded from the temporary
scheduling order.
What Is Controlled Under This Temporary Scheduling Order
On December 29, 2017, as required by 21 U.S.C. 811(h)(A), the DEA
Administrator published a notice of intent to issue an order
temporarily placing fentanyl-related substances in schedule I. 82 FR
61700. This temporary order places fentanyl-related substances in
schedule I of the CSA for two years. DEA may extend the temporary
scheduling for an additional year (a total of three years) if
proceedings to permanently schedule the substances are pending. As
defined in the notice of intent, as well as in this temporary order,
fentanyl-related substances includes any substance not otherwise
controlled in any schedule (i.e., not included under any other
Administration Controlled Substance Code Number) that is structurally
related to fentanyl by one or more of the following modifications:
(A) Replacement of the phenyl portion of the phenethyl group by any
monocycle, whether or not further substituted in or on the monocycle;
(B) substitution in or on the phenethyl group with alkyl, alkenyl,
alkoxyl, hydroxyl, halo, haloalkyl, amino or nitro groups;
(C) substitution in or on the piperidine ring with alkyl, alkenyl,
alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino or nitro
groups;
(D) replacement of the aniline ring with any aromatic monocycle
whether or not further substituted in or on the aromatic monocycle;
and/or
(E) replacement of the N-propionyl group by another acyl group.
How DEA Will Identify Individual Fentanyl-Related Substances That Fall
Within This Temporary Scheduling Order
As indicated, the temporary scheduling order includes all
substances that fall within the above definition--even if such
substances have not yet emerged on the illicit market in the United
States. As a result, DEA cannot currently specify the chemical name of
every potential substance that might fall under this new definition.
However, because the definition of fentanyl-related substance describes
a unique chemical structure, DEA has the authority to under 21 U.S.C.
811(h) to temporarily schedule this category of substance. In the
future, if and when DEA identifies a specific new substance that falls
under the definition, the agency will publish in the Federal Register,
and on the agency website, the chemical name of such substance. Thus,
the text of the definition of fentanyl-related substance includes
language indicating that it ``includes, but is not limited to, the
following substances:'' It bears emphasis, however, that even in the
absence of a future publication by DEA specifically identifying such a
substance, the substance is controlled by virtue of this temporary
scheduling order if it falls within the definition of fentanyl-related
substance.
Notification to the Secretary of Health and Human Services
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.\5\ On November 6, 2017, the Administrator
transmitted notice by letter to the Assistant Secretary for Health of
HHS of his intent to place fentanyl-related substances, unless listed
in another schedule, in schedule I on a temporary basis. The Assistant
Secretary responded by letter dated November 29, 2017, and advised that
based on a review by the Food and Drug Administration (FDA), they are
not aware of any investigational new drug applications or approved new
drug applications for fentanyl-related substances as defined above
under section 505 of the FD&C Act, 21 U.S.C. 355, and that HHS has no
objection to the temporary placement of these substances in schedule I
of the CSA. As indicated, in accordance with section 811(h), fentanyl-
related substances are defined under this temporary scheduling order to
exclude any substance for which an exemption or approval is in effect
under section 505 of the FD&C Act.
---------------------------------------------------------------------------
\5\ 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.
---------------------------------------------------------------------------
Grounds for Temporary Scheduling Order
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 21 U.S.C. 811(c): The substance's history and current pattern
of abuse; the scope, duration and significance of abuse; and what, if
any,
[[Page 5190]]
risk there is to the public health. 21 U.S.C. 811(h)(3). These factors
include, but are not limited to, actual abuse, diversion from
legitimate channels, and clandestine importation, manufacture, or
distribution. Id. DEA has considered these factors for fentanyl-related
substances, as defined above, and finds that the information is
consistent across this class of substances. The DEA's three-factor
analysis is available in its entirety under ``Supporting and Related
Material'' of the public docket for this action at www.regulations.gov
under Docket Number DEA-476.
Substances that are included in the above-listed structural
modifications and any combination of these structural modifications
have been found to cause pharmacological effects that are similar to
those of fentanyl. It therefore is reasonable to expect that all such
substances, even if they have yet to appear on the illicit market in
the United States, share the dangerous and potentially lethal
properties that have caused the recent spike in fentanyl-related
overdose deaths in the United States. While these substances may not
yet have appeared in the domestic illicit market, with 21 U.S.C.
811(h), Congress empowered DEA to act proactively to ``avoid an
imminent hazard to the public safety'' by scheduling dangerous
substances on a temporary basis before they adversely impact the public
safety. Thus, where, as here, DEA has evidence indicating that certain
substances, due to their chemical structure and resulting
pharmacological properties, as well as observed patterns of production
and trafficking of closely related substances, will pose an imminent
hazard to the public safety in the absence of control in schedule I
(having considered the relevant factors under 21 U.S.C. 811(h)(3)), DEA
may issue a temporary order under 21 U.S.C. 811(h). By temporarily
placing these fentanyl-related substances in schedule I, it is DEA's
intention to deter the production and introduction of these substances
into the United States that traffickers might be considering--before
such activity even begins--thereby avoiding an imminent hazard to the
public safety. The alternative approach, of only temporarily
controlling substances that have already appeared in the illicit U.S.
market, is beneficial but has not eliminated the danger these newly
created substances pose and is not as effective in preventing future
deaths and serious injuries associated with these substances. In
addition, by controlling fentanyl-related substances, the temporary
scheduling order will facilitate the development of international,
national, and local prevention strategies that decrease morbidity and
mortality from overdoses caused by or associated with fentanyl-related
substances.
For these reasons, DEA has concluded that issuing a temporary
scheduling order is necessary to avoid an imminent hazard to the public
safety.
Schedule I Classification
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).
As indicated, DEA finds that the fentanyl-related substances that
are temporarily controlled by virtue of this order have a high
potential for abuse. Information provided by the Assistant Secretary of
HHS indicates that these fentanyl-related substances, as defined, have
no currently accepted medical use in treatment in the United States and
lack accepted safety for use under medical supervision.
Conclusion
In accordance with the provisions of section 201(h) of the CSA, 21
U.S.C. 811(h), the Administrator issues this temporary scheduling order
to place fentanyl-related substances in schedule I of the CSA. Because
the Administrator hereby finds that it is necessary to temporarily
place fentanyl-related substances in schedule I to avoid an imminent
hazard to the public safety, this temporary order scheduling these
substances is effective on the date the order is published in the
Federal Register, and is in effect for a period of two years. DEA may
extend the temporary scheduling for an additional year (a total of
three years) if proceedings to permanently schedule the substances are
pending. 21 U.S.C. 811(h)(1) and (2).
Requirements for Handling
Upon the effective date of this temporary order, fentanyl-related
substances 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, fentanyl-related substances 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
February 6, 2018. Any person who currently handles fentanyl-related
substances, and is not registered with the DEA, must submit an
application for registration and may not continue to handle fentanyl-
related substances as of February 6, 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 these substances in a
manner not authorized by the CSA on or after February 6, 2018 is
unlawful and those in possession of any quantity of these substances
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 fentanyl-related
substances must surrender all currently held quantities of fentanyl-
related substances.
3. Security. Fentanyl-related substances are 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 February 6, 2018.
4. Labeling and packaging. All labels, labeling, and packaging for
commercial containers of fentanyl-related substances 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
February 6, 2018, to comply with all labeling and packaging
requirements.
5. Inventory. Every DEA registrant who possesses any quantity of
fentanyl-related substances on the effective date of this order must
take an inventory of all stocks of these substances 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
[[Page 5191]]
substances (including fentanyl-related substances) 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 fentanyl-related substances pursuant to 21 U.S.C. 827 and 958, and
in accordance with 21 CFR parts 1304, 1312, and 1317. Current DEA
registrants shall have 30 calendar days from the effective date of this
order to be in compliance with all recordkeeping requirements.
7. Reports. All DEA registrants who manufacture or distribute
fentanyl-related substances must submit reports pursuant to 21 U.S.C.
827 and in accordance with 21 CFR parts 1304 and 1312 as of February 6,
2018.
8. Order Forms. All DEA registrants who distribute fentanyl-related
substances must comply with order form requirements pursuant to 21
U.S.C. 828 and in accordance with 21 CFR part 1305 as of February 6,
2018.
9. Importation and Exportation. All importation and exportation of
fentanyl-related substances must be in compliance with 21 U.S.C. 952,
953, 957, 958, and in accordance with 21 CFR part 1312 as of February
6, 2018.
10. Quota. Only DEA registered manufacturers may manufacture
fentanyl-related substances in accordance with a quota assigned
pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of
February 6, 2018.
11. Liability. Any activity involving fentanyl-related substances
not authorized by, or in violation of, the CSA, occurring as of
February 6, 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 of HHS. 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 notice-and-comment requirements
of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553,
do not apply to this temporary order. In the alternative, even if this
order were subject to section 553 of the APA, the Administrator would
find that there is good cause to forgo the notice-and-comment
requirements of section 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 urgent need to control fentanyl-related
substances to avoid an imminent hazard to the public safety.
Since this temporary scheduling action is not a ``rule'' as defined
by 5 U.S.C. 601(2), it is not subject to the requirements of the
Regulatory Flexibility Act (RFA). 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 section 553
of 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.
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 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 these substances 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 these substances in schedule I because they pose
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)(30) to read as follows:
Sec. 1308.11 Schedule I.
* * * * *
(h) * * *
(30) Fentanyl-related substances, their isomers, esters, 9850
ethers, salts and salts of isomers, esters and ethers..
(i) Fentanyl-related substance means any substance not otherwise
listed under another Administration Controlled Substance Code Number,
and for which no exemption or approval is in effect under section 505
of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355], that is
structurally
[[Page 5192]]
related to fentanyl by one or more of the following modifications:
(A) Replacement of the phenyl portion of the phenethyl group by any
monocycle, whether or not further substituted in or on the monocycle;
(B) Substitution in or on the phenethyl group with alkyl, alkenyl,
alkoxyl, hydroxyl, halo, haloalkyl, amino or nitro groups;
(C) Substitution in or on the piperidine ring with alkyl, alkenyl,
alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino or nitro
groups;
(D) Replacement of the aniline ring with any aromatic monocycle
whether or not further substituted in or on the aromatic monocycle;
and/or
(E) Replacement of the N-propionyl group by another acyl group.
(ii) This definition includes, but is not limited to, the following
substances:
(A) [Reserved]
(B) [Reserved]
Dated: February 1, 2018.
Robert W. Patterson,
Acting Administrator.
[FR Doc. 2018-02319 Filed 2-5-18; 8:45 am]
BILLING CODE 4410-09-P