Schedules of Controlled Substances: Temporary Placement of N, 44474-44478 [2018-18988]
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readily visible part of the outside of the
floating cabin.
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(c) A floating cabin moored at a
location approved pursuant to the
regulations in this subpart shall not be
relocated and moored at a different
location without prior approval by TVA,
except for movement to a new location
within the designated harbor limits of
the same commercial dock or marina.
§ 1304.103
[Removed and Reserved]
Docks, piers, and boathouses.
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(a) Docks, piers, boathouses, and all
other residential water-use facilities
shall not exceed a total footprint area of
greater than 1,000 square feet, unless the
proposed water-use facility will be
located in an area of preexisting
development. For the purpose of this
regulation, ‘‘preexisting development’’
means either: The water-use facility will
be located in a subdivision recorded
before November 1, 1999, and TVA
permitted at least one water-use facility
in the subdivision prior to November 1,
1999; or if there is no subdivision,
where the water-use facility will be
located within a quarter-mile radius of
another water-use facility that TVA
permitted prior to November 1, 1999.
TVA may allow even larger facilities
where an applicant requests and
justifies a waiver or variance, set forth
in §§ 1304.212 and 1304.408
respectively, but such waivers or
variances shall be made in TVA’s
discretion and on a case-by-case basis.
(b) Docks, boatslips, piers, and fixed
or floating boathouses are allowable.
These and other water-use facilities
associated with a lot must be sited
within a 1,000- or 1,800-square-foot
rectangular or square area as required by
§ 1304.204(a) at the lakeward end of the
access walkway that extends from the
shore to the structure. Access walkways
to the water-use structure are not
included in calculating the 1,000- or
1,800-square foot area.
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(n) Except for floating cabins
approved in accordance with subpart B
of this part, toilets and sinks are not
permitted on water-use facilities.
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[Amended]
9. Amend § 1304.406 in the first
sentence by removing the words
‘‘nonnavigable houseboat’’ and adding
■
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Definitions.
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§ 1304.406
10. Amend § 1304.412 by:
a. Adding in alphabetical order
definitions for ‘‘Existing floating cabin’’
and ‘‘New floating cabin’’;
■ b. Removing the definition of
‘‘Nonnavigable houseboat’’; and
■ c. Adding in alphabetical order
definitions for ‘‘Rebuilding’’ and
‘‘Tennessee River System’’.
The additions read as follows:
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§ 1304.412
7. Remove and reserve § 1304.103.
■ 8. Amend § 1304.204 by revising
paragraphs (a), (b), and (n) to read as
follows:
■
§ 1304.204
in their place the words ‘‘floating
cabin’’.
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Existing floating cabin means a
floating cabin that was located or
moored on the Tennessee River System
on or before December 16, 2016.
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New floating cabin means a floating
cabin that was not located or moored on
the Tennessee River System on or before
December 16, 2016.
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Rebuilding means replacement of all
or a significant portion of an approved
obstruction to the same configuration,
total footprint, and dimensions (length,
width, and height) as the approved
plans, standards, and conditions of the
Section 26a permit.
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Tennessee River System means TVA
reservoirs, the Tennessee River or any of
the Tennessee River’s tributaries.
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David L. Bowling,
Vice President, Land & River Management.
[FR Doc. 2018–18887 Filed 8–30–18; 8:45 am]
BILLING CODE 8120–08–P
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1308
[Docket No. DEA–482]
Schedules of Controlled Substances:
Temporary Placement of NEthylpentylone in Schedule I
Drug Enforcement
Administration, Department of Justice.
ACTION: Temporary amendment;
temporary scheduling order.
AGENCY:
The Acting Administrator of
the Drug Enforcement Administration is
issuing this temporary scheduling order
to schedule the synthetic cathinone, 1(1,3-benzodioxol-5-yl)-2-(ethylamino)pentan-1-one (N-ethylpentylone,
ephylone) and its optical, positional,
and geometric isomers, salts, and salts
SUMMARY:
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of isomers in schedule I. This action is
based on a finding by the Acting
Administrator that the placement of Nethylpentylone in schedule I of the
Controlled Substances Act (CSA) 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 N-ethylpentylone.
DATES: This temporary scheduling order
is effective August 31, 2018, until
August 31, 2020. If this order is
extended or made permanent, the DEA
will publish a document in the Federal
Register.
FOR FURTHER INFORMATION CONTACT:
Thomas D. Sonnen, Diversion Control
Division, Drug Enforcement
Administration; Mailing Address: 8701
Morrissette Drive, Springfield, Virginia
22152; Telephone: (202) 598–2896.
SUPPLEMENTARY INFORMATION:
Legal Authority
Section 201 of the 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
(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.
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.
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Background
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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 Acting
Administrator transmitted notice of his
intent to place N-ethylpentylone in
schedule I on a temporary basis to the
Acting Assistant Secretary for Health of
HHS by letter dated November 22, 2017.
The Acting Assistant Secretary
responded to this notice of intent by
letter dated December 13, 2017, and
advised that based on a review by the
Food and Drug Administration (FDA),
there are currently no active
investigational new drug applications or
approved new drug applications for Nethylpentylone. The Acting Assistant
Secretary also stated that HHS has no
objection to the temporary placement of
N-ethylpentylone 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). N-Ethylpentylone is not
currently listed in any schedule under
the CSA, and no exemptions or
approvals are in effect for this substance
under section 505 of the FDCA, 21
U.S.C. 355. The DEA has found that the
control of N-ethylpentylone 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 N-ethylpentylone
was published in the Federal Register
on June 13, 2018. 83 FR 27520.
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,
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).
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.
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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 Nethylpentylone, summarized below,
indicate that this synthetic cathinone
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 December 13, 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–2018–0011 (Docket
Number DEA–482).
N-Ethylpentylone
Around 2014, the synthetic cathinone,
N-ethylpentylone, emerged in the
United States’ illicit drug market after
the scheduling of other popular
synthetic cathinones (e.g., ethylone, 4methyl-N-ethylcathinone (4–MEC),
mephedrone, methylone, pentylone, and
3,4-methylenedioxypyrovalerone
(MDPV)). The identification of Nethylpentylone in forensic evidence and
overdose deaths indicates that this
substance is being misused and abused.
Law enforcement encounters include
those reported to the National Forensic
Laboratory Information System (NFLIS),
a DEA sponsored program that
systematically collects drug
identification results and associated
information from drug cases analyzed
by Federal, State, and local forensic
laboratories, the System to Retrieve
Information from Drug Evidence
(STRIDE), a federal database for the drug
samples analyzed by DEA forensic
laboratories, and STARLiMS (a webbased, commercial laboratory
information management system that
replaced STRIDE in 2014). Forensic
laboratories have analyzed drug exhibits
received from Federal, State, or local,
law enforcement agencies that were
found to contain N-ethylpentylone.3
NFLIS registered over 6,000 reports
from state and local forensic laboratories
identifying this substance in drugrelated exhibits for a period from
January 2013 to December 2017 from 41
states. There were no occurrences of N3 NFLIS and STRIDE/STARLiMS databases were
queried on February 8, 2018.
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ethylpentylone reported in NFLIS for
2013. N-Ethylpentylone was first
identified in NFLIS in May 2014.
STRIDE/STARLiMS registered over 300
reports from DEA forensic laboratories
from January 2013 to December 2017.
There were no occurrences of Nethylpentylone reported in STRIDE/
STARLiMS for 2013. N-Ethylpentylone
was first reported to STRIDE/
STARLiMS in December 2015.
Additionally, U.S. Customs and Border
Protection (CBP) encounters of Nethylpentylone have occurred.
N-Ethylpentylone, like other synthetic
cathinones, is a designer drug of the
phenethylamine class and it is
pharmacologically similar to schedule I
synthetic cathinones (e.g., cathinone,
methcathinone, mephedrone,
methylone, pentylone, and MDPV) and
well-known schedule I and II
sympathomimetic agents (e.g.,
methamphetamine, 3,4methylenedioxymethamphetamine
(MDMA), and cocaine). Nethylpentylone, similar to these
substances, causes stimulant related
psychological and somatic effects.
Consequently, there have been
documented reports of emergency room
admissions and numerous deaths
associated with the abuse of Nethylpentylone. No approved medical
use has been identified for this
substance, nor has it been approved by
the FDA for human consumption.
Factor 4. History and Current Pattern of
Abuse
N-Ethylpentylone is a synthetic
cathinone of the phenethylamine class
and it is structurally and
pharmacologically similar to cathinone,
methcathinone, mephedrone,
methylone, pentylone, MDPV,
methamphetamine, MDMA, and other
schedule I and II substances. Thus, it is
highly likely that N-ethylpentylone is
abused in the same manner and by the
same users as these substances. That is,
N-ethylpentylone, like these substances,
is most likely ingested by swallowing
capsules or tablets or snorted by nasal
insufflation of the powder tablets.
Products containing N-ethylpentylone,
similar to schedule I synthetic
cathinones, are likely to be falsely
marketed as ‘‘research chemicals,’’
‘‘jewelry cleaner,’’ ‘‘stain remover,’’
‘‘plant food or fertilizer,’’ ‘‘insect
repellants’’ or ‘‘bath salts,’’ sold at
smoke shops, head shops, convenience
stores, adult book stores, and gas
stations, and purchased on the internet.
Like those seen with commercial
products that contain synthetic
cathinones, the packages of products
that contain N-ethylpentylone also
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probably contain the warning ‘‘not for
human consumption,’’ most likely in an
effort to circumvent statutory
restrictions for these substances.
Demographic data collected from
published reports and mortality records
suggest that the main users of Nethylpentylone, similar to schedule I
synthetic cathinones and MDMA, are
young adults.
Available evidence suggests that the
history and pattern of abuse of Nethylpentylone parallels that of MDMA,
methamphetamine, or cocaine and that
N-ethylpentylone has been marketed as
a replacement for these substances. NEthylpentylone has been identified in
law enforcement seizures that were
initially suspected to be MDMA. In
addition, there are reports that abusers
of N-ethylpentylone thought they were
using
MDMA or another illicit substance
but toxicological analysis revealed that
the psychoactive substance was Nethylpentylone. Toxicology reports also
revealed that N-ethylpentylone is being
ingested with other substances
including other synthetic cathinones,
common cutting agents, or other
recreational substances. Consequently,
products containing synthetic
cathinones, including N-ethylpentylone,
are distributed to users, often with
unpredictable outcomes. Thus, the
recreational abuse of synthetic
cathinones, including N-ethylpentylone,
is a significant concern.
Factor 5. Scope, Duration and
Significance of Abuse
N-Ethylpentylone is a popular
recreational drug that emerged on the
United States’ illicit drug market after
the scheduling of other popular
synthetic cathinones (e.g., ethylone,
mephedrone, methylone, pentylone, and
MDPV) (see DEA 3-Factor Analysis for
a full discussion). Forensic laboratories
have confirmed the presence of Nethylpentylone in drug exhibits received
from state, local, and federal law
enforcement agencies. Law enforcement
data show that N-ethylpentylone first
appeared in the illicit drug market in
2014 with one encounter and began
increasing thereafter.4 In 2015, NFLIS
registered five reports from three states
regarding N-ethylpentylone. However,
in 2016, there were 2,074 reports from
39 states and, in 2017, there were 3,955
reports from 39 states related to this
substance registered in NFLIS. NEthylpentylone represented 60% of all
synthetic cathinones encountered by
local law enforcement agencies and
4 NFLIS and STRIDE/STARLiMS databases were
queried on February 8, 2018.
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reported to NFLIS in 2017. From
January 2013 to December 2017, NFLIS
registered 6,035 reports from state and
local forensic laboratories identifying
this substance in drug-related exhibits
from 41 states. STRIDE/STARLiMS
registered over 338 reports from DEA
forensic laboratories during January
2013 to December 2017. There were no
occurrences of N-ethylpentylone
reported in NFLIS or STRIDE/
STARLiMS for 2013. Additionally,
seizures of N-ethylpentylone have
occurred by the U.S. Customs and
Border Protection (CBP) beginning in
2016. Concerns over the continuing
abuse of synthetic cathinones have led
to the control of many synthetic
cathinones.
Factor 6. What, if Any, Risk There Is to
the Public Health
The identification of Nethylpentylone in toxicological samples
associated with fatal and non-fatal
overdoses have been reported in
medical and scientific literature,
forensic laboratory reports, and public
health documents. Like schedule I
synthetic cathinones, N-ethylpentylone
has caused acute health problems
leading to emergency department (ED)
admissions, violent behaviors causing
harm to self or others, and/or death.
Adverse health effects associated with
the abuse of N-ethylpentylone include a
number of stimulant-like adverse health
effects such as diaphoresis, insomnia,
mydriasis, hyperthermia, vomiting,
agitation, disorientation, paranoia,
abdominal pain, cardiac arrest,
respiratory failure, and coma. In
addition, N-ethylpentylone has been
involved in deaths of many individuals.
The DEA is aware of approximately 151
overdose deaths involving Nethylpentylone abuse reported in the
United States between 2014 and 2018.
Thus, the abuse of N-ethylpentylone,
like that of the abuse of schedule I
synthetic cathinones and stimulant
drugs, poses significant adverse health
risks. Furthermore, because abusers of
synthetic cathinones obtain these
substances through unregulated sources,
the identity, purity, and quantity are
uncertain and inconsistent. These
unknown factors pose an additional risk
for significant adverse health effects to
the end user.
Based on information received by the
DEA, the misuse and abuse of Nethylpentylone has led to, at least, the
same qualitative public health risks as
schedule I synthetic cathinones,
MDMA, and methamphetamine. The
public health risks attendant to the
abuse of synthetic cathinones, including
N-ethylpentylone, are well established
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and have resulted in large numbers of
ED visits and fatal overdoses.
Finding of Necessity of Schedule I
Placement To Avoid an Imminent
Hazard to the Public Safety
In accordance with 21 U.S.C.
811(h)(3), based on the available data
and information, summarized above, the
uncontrolled manufacture, distribution,
reverse distribution, importation,
exportation, conduct of research and
chemical analysis, possession, and/or
abuse of N-ethylpentylone poses an
imminent hazard to the public safety.
The DEA is not aware of any currently
accepted medical uses for this substance
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 Nethylpentylone indicate that this
synthetic cathinone 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 Acting
Administrator, through a letter dated
November 22, 2017, notified the Acting
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 June 13, 2018.
83 FR 27520.
Conclusion
In accordance with the provisions of
section 201(h) of the CSA, 21 U.S.C.
811(h), the Acting Administrator
considered available data and
information, herein set forth the
grounds for his determination that it is
necessary to temporarily schedule Nethylpentylone in schedule I of the CSA,
and finds that placement of Nethylpentylone in schedule I of the CSA
is necessary in order to avoid an
imminent hazard to the public safety.
Because the Acting Administrator
hereby finds that it is necessary to
temporarily place N-ethylpentylone in
schedule I to avoid an imminent hazard
to the public safety, this temporary
order scheduling this substance 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
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(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, N-ethylpentylone 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, N-ethylpentylone
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 August 31, 2018. Any person
who currently handles Nethylpentylone, and is not registered
with the DEA, must submit an
application for registration and may not
continue to handle N-ethylpentylone as
of August 31, 2018, unless the DEA has
approved that application for
registration pursuant to 21 U.S.C. 822,
823, 957, and 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
August 31, 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
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a schedule I registration to handle Nethylpentylone must surrender all
currently held quantities of Nethylpentylone.
3. Security. N-ethylpentylone 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 August 31, 2018.
4. Labeling and Packaging. All labels,
labeling, and packaging for commercial
containers of N-ethylpentylone 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 August
31, 2018, to comply with all labeling
and packaging requirements.
5. Inventory. Every DEA registrant
who possesses any quantity of Nethylpentylone 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 N-ethylpentylone)
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 Nethylpentylone pursuant to 21 U.S.C.
827 and 958(e), and in accordance with
21 CFR parts 1304, 1312, 1317 and
§ 1307.11. Current DEA registrants
authorized to handle N-ethylpentylone
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 Nethylpentylone must submit reports
pursuant to 21 U.S.C. 827 and in
accordance with 21 CFR parts 1304 and
1312 as of August 31, 2018.
8. Order Forms. All DEA registrants
who distribute N-ethylpentylone must
comply with order form requirements
pursuant to 21 U.S.C. 828 and in
accordance with 21 CFR part 1305 as of
August 31, 2018.
9. Importation and Exportation. All
importation and exportation of Nethylpentylone must be in compliance
with 21 U.S.C. 952, 953, 957, 958, and
in accordance with 21 CFR part 1312 as
of August 31, 2018.
10. Quota. Only DEA registered
manufacturers may manufacture N-
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ethylpentylone in accordance with a
quota assigned pursuant to 21 U.S.C.
826 and in accordance with 21 CFR part
1303 as of August 31, 2018.
11. Liability. Any activity involving
N-ethylpentylone not authorized by, or
in violation of the CSA, occurring as of
August 31, 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 DEA believes that the
notice and comment requirements of
section 553 of the Administrative
Procedure Act (APA), 5 U.S.C. 553, do
not apply to this notice of intent. In the
alternative, even assuming that this
notice of intent might be subject to
section 553 of the APA, the Acting
Administrator finds 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 impracticable and 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 (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
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Federal Register / Vol. 83, No. 170 / Friday, August 31, 2018 / Rules and Regulations
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 (CRA) is
inapplicable, as it applies only to rules.
However, if this were a rule, pursuant
to the CRA, ‘‘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.
daltland on DSKBBV9HB2PROD with RULES
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:
VerDate Sep<11>2014
16:04 Aug 30, 2018
Jkt 244001
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)(36)
to read as follows:
■
§ 1308.11
Schedule I.
*
*
*
*
*
(h) * * *
(36) N-Ethylpentylone, its optical,
positional, and geometric isomers, salts
and salts of isomers (Other names:
ephylone, 1-(1,3-benzodioxol-5-yl)-2(ethylamino)-pentan-1-one)...........(7543)
Dated: August 24, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018–18988 Filed 8–30–18; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2018–0841]
Drawbridge Operation Regulation;
Trent River, New Bern, NC
Coast Guard, DHS.
Notice of deviation from
drawbridge regulation.
AGENCY:
ACTION:
The Coast Guard has issued a
temporary deviation from the operating
schedule that governs the U.S. 70
(Alfred A. Cunningham) Bridge across
the Trent River, mile 0.0, at New Bern,
NC. The deviation is necessary to
accommodate the 30th Annual Bike MS:
Historic New Bern Ride. This deviation
allows the bridge to remain in the
closed-to-navigation position.
DATES: This deviation is effective from
8:00 a.m. on September 8, 2018 to 9:30
a.m. on September 9, 2018.
ADDRESSES: The docket for this
deviation, [USCG–2018–0841], is
available at https://www.regulations.gov.
Type the docket number in the
‘‘SEARCH’’ box and click ‘‘SEARCH’’.
Click on Open Docket Folder on the line
associated with this deviation.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
deviation, call or email Ms. Kashanda
Booker, Bridge Administration Branch
Fifth District, Coast Guard, telephone
(757) 398–6227, email
kashanda.l.booker@uscg.mil.
SUMMARY:
PO 00000
Frm 00030
Fmt 4700
Sfmt 9990
The event
director, Game On Inc., with approval
from the North Carolina Department of
Transportation, who owns and operates
the U.S. 70 (Alfred A. Cunningham)
Bridge across the Trent River, mile 0.0,
at New Bern, NC, has requested a
temporary deviation from the current
operating regulations. This temporary
deviation is necessary to accommodate
participation by cyclists during the 30th
Annual Bike MS: Historic New Bern
Ride. The bridge is a double bascule
bridge and has a vertical clearance in
the closed position of 14 feet above
mean high water.
The current operating schedule is set
out in 33 CFR 117.843(a). Under this
temporary deviation, the bridge will be
maintained in the closed-to-navigation
position from 8:00 a.m. to 9:30 a.m. on
September 8th and September 9th 2018.
The Trent River is used by a variety of
vessels including small commercial
vessels and recreational vessels. The
Coast Guard has carefully coordinated
the restrictions with waterway users in
publishing this temporary deviation.
Vessels able to pass through the
bridge in the closed position may do so
at anytime. There is no immediate
alternate route for vessels unable to pass
through the bridge in the closed
position but the bridge will be able to
open for emergencies. The Coast Guard
will also inform users of the waterways
through our Local and Broadcast Notice
to Mariners of the change in operating
schedule for the bridge so that vessels
can arrange their transits to minimize
any impacts caused by this temporary
deviation.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the effective period of this
temporary deviation. This deviation
from the operating regulations is
authorized under 33 CFR 117.35.
SUPPLEMENTARY INFORMATION:
Dated: August 27, 2018.
Hal R. Pitts,
Bridge Program Manager, Fifth Coast Guard
District.
[FR Doc. 2018–18929 Filed 8–30–18; 8:45 am]
BILLING CODE 9110–04–P
E:\FR\FM\31AUR1.SGM
31AUR1
Agencies
[Federal Register Volume 83, Number 170 (Friday, August 31, 2018)]
[Rules and Regulations]
[Pages 44474-44478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18988]
=======================================================================
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1308
[Docket No. DEA-482]
Schedules of Controlled Substances: Temporary Placement of N-
Ethylpentylone in Schedule I
AGENCY: Drug Enforcement Administration, Department of Justice.
ACTION: Temporary amendment; temporary scheduling order.
-----------------------------------------------------------------------
SUMMARY: The Acting Administrator of the Drug Enforcement
Administration is issuing this temporary scheduling order to schedule
the synthetic cathinone, 1-(1,3-benzodioxol-5-yl)-2-(ethylamino)-
pentan-1-one (N-ethylpentylone, ephylone) and its optical, positional,
and geometric isomers, salts, and salts of isomers in schedule I. This
action is based on a finding by the Acting Administrator that the
placement of N-ethylpentylone in schedule I of the Controlled
Substances Act (CSA) 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 N-ethylpentylone.
DATES: This temporary scheduling order is effective August 31, 2018,
until August 31, 2020. If this order is extended or made permanent, the
DEA will publish a document in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Thomas D. Sonnen, Diversion Control
Division, Drug Enforcement Administration; Mailing Address: 8701
Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-
2896.
SUPPLEMENTARY INFORMATION:
Legal Authority
Section 201 of the 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 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.
[[Page 44475]]
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 Acting Administrator transmitted
notice of his intent to place N-ethylpentylone in schedule I on a
temporary basis to the Acting Assistant Secretary for Health of HHS by
letter dated November 22, 2017. The Acting Assistant Secretary
responded to this notice of intent by letter dated December 13, 2017,
and advised that based on a review by the Food and Drug Administration
(FDA), there are currently no active investigational new drug
applications or approved new drug applications for N-ethylpentylone.
The Acting Assistant Secretary also stated that HHS has no objection to
the temporary placement of N-ethylpentylone 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). N-Ethylpentylone is not currently
listed in any schedule under the CSA, and no exemptions or approvals
are in effect for this substance under section 505 of the FDCA, 21
U.S.C. 355. The DEA has found that the control of N-ethylpentylone 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 N-ethylpentylone was
published in the Federal Register on June 13, 2018. 83 FR 27520.
---------------------------------------------------------------------------
\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 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, 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 N-ethylpentylone, summarized
below, indicate that this synthetic cathinone 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 December 13, 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-2018-0011
(Docket Number DEA-482).
N-Ethylpentylone
Around 2014, the synthetic cathinone, N-ethylpentylone, emerged in
the United States' illicit drug market after the scheduling of other
popular synthetic cathinones (e.g., ethylone, 4-methyl-N-ethylcathinone
(4-MEC), mephedrone, methylone, pentylone, and 3,4-
methylenedioxypyrovalerone (MDPV)). The identification of N-
ethylpentylone in forensic evidence and overdose deaths indicates that
this substance is being misused and abused. Law enforcement encounters
include those reported to the National Forensic Laboratory Information
System (NFLIS), a DEA sponsored program that systematically collects
drug identification results and associated information from drug cases
analyzed by Federal, State, and local forensic laboratories, the System
to Retrieve Information from Drug Evidence (STRIDE), a federal database
for the drug samples analyzed by DEA forensic laboratories, and
STARLiMS (a web-based, commercial laboratory information management
system that replaced STRIDE in 2014). Forensic laboratories have
analyzed drug exhibits received from Federal, State, or local, law
enforcement agencies that were found to contain N-ethylpentylone.\3\
NFLIS registered over 6,000 reports from state and local forensic
laboratories identifying this substance in drug-related exhibits for a
period from January 2013 to December 2017 from 41 states. There were no
occurrences of N-ethylpentylone reported in NFLIS for 2013. N-
Ethylpentylone was first identified in NFLIS in May 2014. STRIDE/
STARLiMS registered over 300 reports from DEA forensic laboratories
from January 2013 to December 2017. There were no occurrences of N-
ethylpentylone reported in STRIDE/STARLiMS for 2013. N-Ethylpentylone
was first reported to STRIDE/STARLiMS in December 2015. Additionally,
U.S. Customs and Border Protection (CBP) encounters of N-ethylpentylone
have occurred.
---------------------------------------------------------------------------
\3\ NFLIS and STRIDE/STARLiMS databases were queried on February
8, 2018.
---------------------------------------------------------------------------
N-Ethylpentylone, like other synthetic cathinones, is a designer
drug of the phenethylamine class and it is pharmacologically similar to
schedule I synthetic cathinones (e.g., cathinone, methcathinone,
mephedrone, methylone, pentylone, and MDPV) and well-known schedule I
and II sympathomimetic agents (e.g., methamphetamine, 3,4-
methylenedioxymethamphetamine (MDMA), and cocaine). N-ethylpentylone,
similar to these substances, causes stimulant related psychological and
somatic effects. Consequently, there have been documented reports of
emergency room admissions and numerous deaths associated with the abuse
of N-ethylpentylone. No approved medical use has been identified for
this substance, nor has it been approved by the FDA for human
consumption.
Factor 4. History and Current Pattern of Abuse
N-Ethylpentylone is a synthetic cathinone of the phenethylamine
class and it is structurally and pharmacologically similar to
cathinone, methcathinone, mephedrone, methylone, pentylone, MDPV,
methamphetamine, MDMA, and other schedule I and II substances. Thus, it
is highly likely that N-ethylpentylone is abused in the same manner and
by the same users as these substances. That is, N-ethylpentylone, like
these substances, is most likely ingested by swallowing capsules or
tablets or snorted by nasal insufflation of the powder tablets.
Products containing N-ethylpentylone, similar to schedule I synthetic
cathinones, are likely to be falsely marketed as ``research
chemicals,'' ``jewelry cleaner,'' ``stain remover,'' ``plant food or
fertilizer,'' ``insect repellants'' or ``bath salts,'' sold at smoke
shops, head shops, convenience stores, adult book stores, and gas
stations, and purchased on the internet. Like those seen with
commercial products that contain synthetic cathinones, the packages of
products that contain N-ethylpentylone also
[[Page 44476]]
probably contain the warning ``not for human consumption,'' most likely
in an effort to circumvent statutory restrictions for these substances.
Demographic data collected from published reports and mortality records
suggest that the main users of N-ethylpentylone, similar to schedule I
synthetic cathinones and MDMA, are young adults.
Available evidence suggests that the history and pattern of abuse
of N-ethylpentylone parallels that of MDMA, methamphetamine, or cocaine
and that N-ethylpentylone has been marketed as a replacement for these
substances. N-Ethylpentylone has been identified in law enforcement
seizures that were initially suspected to be MDMA. In addition, there
are reports that abusers of N-ethylpentylone thought they were using
MDMA or another illicit substance but toxicological analysis
revealed that the psychoactive substance was N-ethylpentylone.
Toxicology reports also revealed that N-ethylpentylone is being
ingested with other substances including other synthetic cathinones,
common cutting agents, or other recreational substances. Consequently,
products containing synthetic cathinones, including N-ethylpentylone,
are distributed to users, often with unpredictable outcomes. Thus, the
recreational abuse of synthetic cathinones, including N-ethylpentylone,
is a significant concern.
Factor 5. Scope, Duration and Significance of Abuse
N-Ethylpentylone is a popular recreational drug that emerged on the
United States' illicit drug market after the scheduling of other
popular synthetic cathinones (e.g., ethylone, mephedrone, methylone,
pentylone, and MDPV) (see DEA 3-Factor Analysis for a full discussion).
Forensic laboratories have confirmed the presence of N-ethylpentylone
in drug exhibits received from state, local, and federal law
enforcement agencies. Law enforcement data show that N-ethylpentylone
first appeared in the illicit drug market in 2014 with one encounter
and began increasing thereafter.\4\ In 2015, NFLIS registered five
reports from three states regarding N-ethylpentylone. However, in 2016,
there were 2,074 reports from 39 states and, in 2017, there were 3,955
reports from 39 states related to this substance registered in NFLIS.
N-Ethylpentylone represented 60% of all synthetic cathinones
encountered by local law enforcement agencies and reported to NFLIS in
2017. From January 2013 to December 2017, NFLIS registered 6,035
reports from state and local forensic laboratories identifying this
substance in drug-related exhibits from 41 states. STRIDE/STARLiMS
registered over 338 reports from DEA forensic laboratories during
January 2013 to December 2017. There were no occurrences of N-
ethylpentylone reported in NFLIS or STRIDE/STARLiMS for 2013.
Additionally, seizures of N-ethylpentylone have occurred by the U.S.
Customs and Border Protection (CBP) beginning in 2016. Concerns over
the continuing abuse of synthetic cathinones have led to the control of
many synthetic cathinones.
---------------------------------------------------------------------------
\4\ NFLIS and STRIDE/STARLiMS databases were queried on February
8, 2018.
---------------------------------------------------------------------------
Factor 6. What, if Any, Risk There Is to the Public Health
The identification of N-ethylpentylone in toxicological samples
associated with fatal and non-fatal overdoses have been reported in
medical and scientific literature, forensic laboratory reports, and
public health documents. Like schedule I synthetic cathinones, N-
ethylpentylone has caused acute health problems leading to emergency
department (ED) admissions, violent behaviors causing harm to self or
others, and/or death. Adverse health effects associated with the abuse
of N-ethylpentylone include a number of stimulant-like adverse health
effects such as diaphoresis, insomnia, mydriasis, hyperthermia,
vomiting, agitation, disorientation, paranoia, abdominal pain, cardiac
arrest, respiratory failure, and coma. In addition, N-ethylpentylone
has been involved in deaths of many individuals. The DEA is aware of
approximately 151 overdose deaths involving N-ethylpentylone abuse
reported in the United States between 2014 and 2018. Thus, the abuse of
N-ethylpentylone, like that of the abuse of schedule I synthetic
cathinones and stimulant drugs, poses significant adverse health risks.
Furthermore, because abusers of synthetic cathinones obtain these
substances through unregulated sources, the identity, purity, and
quantity are uncertain and inconsistent. These unknown factors pose an
additional risk for significant adverse health effects to the end user.
Based on information received by the DEA, the misuse and abuse of
N-ethylpentylone has led to, at least, the same qualitative public
health risks as schedule I synthetic cathinones, MDMA, and
methamphetamine. The public health risks attendant to the abuse of
synthetic cathinones, including N-ethylpentylone, are well established
and have resulted in large numbers of ED visits and fatal overdoses.
Finding of Necessity of Schedule I Placement To Avoid an Imminent
Hazard to the Public Safety
In accordance with 21 U.S.C. 811(h)(3), based on the available data
and information, summarized above, the uncontrolled manufacture,
distribution, reverse distribution, importation, exportation, conduct
of research and chemical analysis, possession, and/or abuse of N-
ethylpentylone poses an imminent hazard to the public safety. The DEA
is not aware of any currently accepted medical uses for this substance
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 N-ethylpentylone
indicate that this synthetic cathinone 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
Acting Administrator, through a letter dated November 22, 2017,
notified the Acting 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 June 13, 2018. 83 FR
27520.
Conclusion
In accordance with the provisions of section 201(h) of the CSA, 21
U.S.C. 811(h), the Acting Administrator considered available data and
information, herein set forth the grounds for his determination that it
is necessary to temporarily schedule N-ethylpentylone in schedule I of
the CSA, and finds that placement of N-ethylpentylone in schedule I of
the CSA is necessary in order to avoid an imminent hazard to the public
safety.
Because the Acting Administrator hereby finds that it is necessary
to temporarily place N-ethylpentylone in schedule I to avoid an
imminent hazard to the public safety, this temporary order scheduling
this substance 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
[[Page 44477]]
(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, N-ethylpentylone
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, N-ethylpentylone 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 August
31, 2018. Any person who currently handles N-ethylpentylone, and is not
registered with the DEA, must submit an application for registration
and may not continue to handle N-ethylpentylone as of August 31, 2018,
unless the DEA has approved that application for registration pursuant
to 21 U.S.C. 822, 823, 957, and 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 August 31, 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 N-ethylpentylone
must surrender all currently held quantities of N-ethylpentylone.
3. Security. N-ethylpentylone 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
August 31, 2018.
4. Labeling and Packaging. All labels, labeling, and packaging for
commercial containers of N-ethylpentylone 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 August 31, 2018, to
comply with all labeling and packaging requirements.
5. Inventory. Every DEA registrant who possesses any quantity of N-
ethylpentylone 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 N-
ethylpentylone) 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 N-ethylpentylone pursuant to 21 U.S.C. 827 and 958(e), and in
accordance with 21 CFR parts 1304, 1312, 1317 and Sec. 1307.11.
Current DEA registrants authorized to handle N-ethylpentylone 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 N-
ethylpentylone must submit reports pursuant to 21 U.S.C. 827 and in
accordance with 21 CFR parts 1304 and 1312 as of August 31, 2018.
8. Order Forms. All DEA registrants who distribute N-ethylpentylone
must comply with order form requirements pursuant to 21 U.S.C. 828 and
in accordance with 21 CFR part 1305 as of August 31, 2018.
9. Importation and Exportation. All importation and exportation of
N-ethylpentylone must be in compliance with 21 U.S.C. 952, 953, 957,
958, and in accordance with 21 CFR part 1312 as of August 31, 2018.
10. Quota. Only DEA registered manufacturers may manufacture N-
ethylpentylone in accordance with a quota assigned pursuant to 21
U.S.C. 826 and in accordance with 21 CFR part 1303 as of August 31,
2018.
11. Liability. Any activity involving N-ethylpentylone not
authorized by, or in violation of the CSA, occurring as of August 31,
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 DEA believes that the notice
and comment requirements of section 553 of the Administrative Procedure
Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the
alternative, even assuming that this notice of intent might be subject
to section 553 of the APA, the Acting Administrator finds 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 impracticable and 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 (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
[[Page 44478]]
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 (CRA) is inapplicable, as it applies only
to rules. However, if this were a rule, pursuant to the CRA, ``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)(36) to read as follows:
Sec. 1308.11 Schedule I.
* * * * *
(h) * * *
(36) N-Ethylpentylone, its optical, positional, and geometric
isomers, salts and salts of isomers (Other names: ephylone, 1-(1,3-
benzodioxol-5-yl)-2-(ethylamino)-pentan-1-one)...........(7543)
Dated: August 24, 2018.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2018-18988 Filed 8-30-18; 8:45 am]
BILLING CODE 4410-09-P