[Federal Register Volume 70, Number 29 (Monday, February 14, 2005)]
[Proposed Rules]
[Pages 7449-7451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2884]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

[Docket No. DEA-262P]

21 CFR Part 1308


Schedules of Controlled Substances: Placement of Zopiclone Into 
Schedule IV

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule is issued by the Deputy Administrator of 
the Drug Enforcement Administration (DEA) to place the substance 
zopiclone, including its salts, isomers and salts of isomers into 
Schedule IV of the Controlled Substances Act (CSA). This proposed 
action is based on a recommendation from the Acting Assistant Secretary 
for Health of the Department of Health and Human Services (DHHS) and on 
an evaluation of the relevant data by DEA. If finalized, this action 
will impose the regulatory controls and criminal sanctions of Schedule 
IV on those who handle zopiclone and products containing zopiclone.

DATES: Written comments must be postmarked, and electronic comments 
must be sent, on or before March 16, 2005.

ADDRESSES: To ensure proper handling of comments, please reference 
``Docket No. DEA-262P'' on all written and electronic correspondence. 
Written comments being sent via regular mail should be sent to the 
Deputy Administrator, Drug Enforcement Administration, Washington, DC 
20537, Attention: DEA Federal Register Representative/ODL. Written 
comments sent via express mail should be sent to Deputy Administrator, 
Drug Enforcement Administration, Attention: DEA Federal Register 
Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, VA 22301. 
Comments may be directly sent to DEA electronically by sending an 
electronic message to [email protected]. Comments may also 
be sent electronically through http://www.regulations.gov using the 
electronic comment form provided on that site. An electronic copy of 
this document is also available at the http://www.regulations.gov Web 
site. DEA will accept electronic comments containing MS Word, 
WordPerfect, Adobe PDF, or Excel file formats only. DEA will not accept 
any file format other than those specifically listed here.

FOR FURTHER INFORMATION CONTACT: Christine Sannerud, Ph.D., Chief, Drug 
and Chemical Evaluation Section, Drug Enforcement Administration, 
Washington, DC 20537, (202) 307-7183.

SUPPLEMENTARY INFORMATION: Zopiclone is a central nervous system 
depressant drug. On December 15, 2004, the Food and Drug Administration 
(FDA) approved (S)-zopiclone (or eszopiclone), the active (S) isomer of 
zopiclone, for marketing under the trade name LunestaTM. 
Eszopiclone will be marketed as a prescription drug product for the 
short-term treatment of insomnia.
    Racemic (R, S) zopiclone, commonly known as zopiclone, is a 
pyrrolopyrazine derivative of the cyclopyrrolone class and is a mixture 
composed of equal proportions of two optical isomers identified as (S)-
zopiclone (or eszopiclone) and (R)-zopiclone. Its chemical name is 1-
piperazinecarboxylic, 4-methyl-, (5RS)-6-(5-chloro-2-pyridinyl)-6,7-
dihydro-7-oxo-5H-pyrrolo [3,4-b]pyrazin-5yl ester (CAS number 43200-80-
2). Eszopiclone is the most active component of the racemic (R,S) 
zopiclone.
    Zopiclone and its (S) and (R) forms of optical isomers share with 
benzodiazepines (e.g. diazepam) substantial similarities in their 
pharmacological properties such as anxiolytic, sedative and hypnotic 
actions. In controlled clinical studies, zopiclone has been found to be 
superior to placebo on subjective measures of sleep latency and total 
sleep time. In

[[Page 7450]]

healthy human subjects, eszopiclone is rapidly absorbed with a time to 
peak concentration (tmax) of approximately 1 hour following 
oral ingestion (1-7.5 mg) and has an elimination half-life (t[frac1s2]) 
of approximately 6 hours.
    In clinical trials, eszopiclone shows an adverse event profile 
comparable to that of other hypnotics. Some adverse effects of 
eszopiclone include hallucinations, amnesia, difficulty concentrating, 
memory impairment, depression, somnolence and accidental injury.
    The abuse potential of zopiclone and its optical isomers is similar 
to those of the benzodiazepines and the nonbenzodiazepine hypnotics, 
zaleplon and zolpidem, that are all currently listed in Schedule IV of 
the CSA. It produces euphoria, alterations in mood, perception, memory 
and subjective effects in humans typical of other benzodiazepines with 
abuse potential in Schedule IV. Zopiclone is positively reinforcing in 
monkeys. Zopiclone generalizes to the discriminative stimulus effects 
of zolpidem and benzodiazepines such as diazepam, chlordiazepoxide, and 
midazolam in animals. Conversely, benzodiazepines, namely diazepam, 
nitrazepam and alprazolam, generalize to stimulus effects of zopiclone 
in animals.
    Case reports of dependence and withdrawal effects to zopiclone have 
been published in the scientific literature. Some symptoms of zopiclone 
withdrawal include insomnia, anxiety, tremors, palpitations, and 
craving. Clinical trials indicate that withdrawal effects from 
eszopiclone are similar to those of benzodiazepines.
    From 1995 to 2004, there was one zopiclone encounter by Federal law 
enforcement. It involved a seizure of four tablets contained in a 
square foil blister pack in the State of Washington in 2000.
    On January 18, 2005, the Acting Assistant Secretary for Health, 
DHHS, sent the Deputy Administrator of DEA scientific and medical 
evaluation and a letter recommending that zopiclone and its isomers be 
placed into Schedule IV of the CSA. Enclosed with the January 18, 2005, 
letter was a document prepared by the FDA entitled, ``Basis for the 
Recommendation for Control of Zopiclone and its Optical Isomers in 
Schedule IV of the Controlled Substances Act (CSA).'' The document 
contained a review of the factors which the CSA requires the Secretary 
to consider (21 U.S.C. 811(b)).
    The correspondence from the Acting Assistant Secretary for Health 
to DEA dated January 18, 2005, confirmed that FDA approved the New Drug 
Application (NDA) for eszopiclone and issued an approval letter to the 
NDA sponsor on December 15, 2004.
    The factors considered by the Acting Assistant Secretary of Health 
and DEA with respect to zopiclone were:
    (1) Its actual or relative potential for abuse;
    (2) Scientific evidence of its pharmacological effects;
    (3) The state of current scientific knowledge regarding the drug;
    (4) Its history and current pattern of abuse;
    (5) The scope, duration, and significance of abuse;
    (6) What, if any, risk there is to the public health;
    (7) Its psychic or physiological dependence liability; and
    (8) Whether the substance is an immediate precursor of a substance 
already controlled under this subchapter. (21 U.S.C. 811(c))
    Based on the recommendation of the Acting Assistant Secretary for 
Health, received in accordance with section 201(b) of the Act (21 
U.S.C. 811(b)), and the independent review of the available data by 
DEA, the Deputy Administrator of DEA, pursuant to sections 201(a) and 
201(b) of the Act (21 U.S.C. 811(a) and 811(b)), finds that:
    (1) Based on information now available, zopiclone has a low 
potential for abuse relative to the drugs or other substances in 
Schedule III;
    (2) Zopiclone has a currently accepted medical use in treatment in 
the United States; and
    (3) Abuse of zopiclone may lead to limited physical dependence or 
psychological dependence relative to the drugs or other substances in 
Schedule III. (21 U.S.C. 812(b)(4))
    Based on these findings, the Deputy Administrator of DEA concludes 
that zopiclone, including its salts, isomers, and salts of isomers, 
warrants control in Schedule IV of the CSA.
    Interested persons are invited to submit their comments, objections 
or requests for a hearing with regard to this proposal. Requests for a 
hearing should state, with particularity, the issues concerning which 
the person desires to be heard. All correspondence regarding this 
matter should be submitted to the Deputy Administrator, Drug 
Enforcement Administration, Washington, DC 20537, Attention: DEA 
Federal Register Representative/ODL. In the event that comments, 
objections, or requests for a hearing raise one or more issues which 
the Deputy Administrator finds warrant a hearing, the Deputy 
Administrator shall order a public hearing by notice in the Federal 
Register, summarizing the issues to be heard and setting the time for 
the hearing.

Requirements for Handling Zopiclone

    If this rule is finalized as proposed, zopiclone would be subject 
to Controlled Substances Act regulatory controls and administrative, 
civil and criminal sanctions applicable to the manufacture, 
distribution, dispensing, importing and exporting of a Schedule IV 
controlled substance, including the following:
    Registration. Any person who manufactures, distributes, dispenses, 
imports, exports, engages in research or conducts instructional 
activities with zopiclone, or who desires to manufacture, distribute, 
dispense, import, export, engage in instructional activities or conduct 
research with zopiclone, must be registered to conduct such activities 
in accordance with part 1301 of Title 21 of the Code of Federal 
Regulations.
    Security. Zopiclone would be subject to Schedule III-V security 
requirements and must be manufactured, distributed and stored in 
accordance with Sec. Sec.  1301.71, 1301.72(b), (c), and (d), 1301.73, 
1301.74, 1301.75(b) and (c) and 1301.76 of Title 21 of the Code of 
Federal Regulations.
    Labeling and Packaging. All labels and labeling for commercial 
containers of zopiclone which are distributed after finalization of 
this rule shall comply with requirements of Sec. Sec.  1302.03-1302.07 
of Title 21 of the Code of Federal Regulations.
    Inventory. Every registrant required to keep records and who 
possesses any quantity of zopiclone would be required to keep an 
inventory of all stocks of zopiclone on hand pursuant to Sec. Sec.  
1304.03, 1304.04 and 1304.11 of Title 21 of the Code of Federal 
Regulations. Every registrant who desires registration in Schedule IV 
for zopiclone would be required to conduct an inventory of all stocks 
of the substance on hand at the time of registration.
    Records. All registrants are required to keep records pursuant to 
Sec. Sec.  1304.03, 1304.04, 1304.21, 1304.22, and 1304.23 of Title 21 
of the Code of Federal Regulations.
    Prescriptions. All prescriptions for zopiclone or prescriptions for 
products containing zopiclone would be required to be issued pursuant 
to 21 CFR 1306.03-1306.06 and 1306.21-1306.27. All prescriptions for 
zopiclone or products containing zopiclone issued after publication of 
the Final Rule, if authorized for refilling, would be limited to five 
refills.
    Importation and Exportation. All importation and exportation of

[[Page 7451]]

zopiclone must be in compliance with part 1312 of Title 21 of the Code 
of Federal Regulations.
    Criminal Liability. Any activity with zopiclone not authorized by, 
or in violation of, the Controlled Substances Act or the Controlled 
Substances Import and Export Act occurring on or after finalization of 
this proposed rule would be unlawful.

Regulatory Certifications

Executive Order 12866
    In accordance with the provisions of the CSA (21 U.S.C. 811(a)), 
this action is a formal rulemaking ``on the record after opportunity 
for a hearing.'' Such proceedings are conducted pursuant to the 
provisions of 5 U.S.C. 556 and 557 and, as such, are exempt from review 
by the Office of Management and Budget pursuant to Executive Order 
12866, section 3(d)(1).
Regulatory Flexibility Act
    The Deputy Administrator, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this proposed rule and 
by approving it certifies that it will not have a significant economic 
impact on a substantial number of small entities. Eszopiclone products 
will be prescription drugs used for the short term treatment of 
insomnia. Handlers of eszopiclone also handle other controlled 
substances used to treat insomnia which are already subject to the 
regulatory requirements of the CSA.
Executive Order 12988
    This regulation meets the applicable standards set forth in 
Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice 
Reform.
Executive Order 13132
    This rulemaking does not preempt or modify any provision of State 
law; nor does it impose enforcement responsibilities on any State; nor 
does it diminish the power of any State to enforce its own laws. 
Accordingly, this rulemaking does not have federalism implications 
warranting the application of Executive Order 13132.
Unfunded Mandates Reform Act of 1995
    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of 
$115,000,000 or more in any one year, and will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1995
    This rule is not a major rule as defined by Sec.  804 of the Small 
Business Regulatory Enforcement Fairness Act of 1996. This rule will 
not result in an annual effect on the economy of $100,000,000 or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign 
based companies in domestic and export markets.

List of Subjects in 21 CFR Part 1308

    Administrative practice and procedure, Drug traffic control, 
Narcotics, Prescription drugs.

    Under the authority vested in the Attorney General by section 
201(a) of the CSA (21 U.S.C. 811(a)), and delegated to the 
Administrator of DEA by Department of Justice regulations (28 CFR 
0.100), and redelegated to the Deputy Administrator pursuant to 28 CFR 
0.104, the Deputy Administrator hereby proposes that 21 CFR part 1308 
be amended as follows:

PART 1308--SCHEDULES OF CONTROLLED SUBSTANCES [AMENDED]

    1. The authority citation for 21 CFR part 1308 continues to read as 
follows:

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

    2. Section 1308.14 is proposed to be amended by adding a new 
paragraph (c)(51) to read as follows:


Sec.  1308.14  Schedule IV.

* * * * *
    (c) * * *

(51) Zopiclone.................................................     2784
 

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    Dated: February 9, 2005.
Michele M. Leonhart,
Deputy Administrator.
[FR Doc. 05-2884 Filed 2-11-05; 8:45 am]
BILLING CODE 4410-09-P