[Federal Register Volume 80, Number 207 (Tuesday, October 27, 2015)]
[Rules and Regulations]
[Pages 65635-65637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27266]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1308

[Docket No. DEA-367]
RIN 1117-AB39


Schedules of Controlled Substances: Table of Excluded Nonnarcotic 
Products: Vicks[supreg] VapoInhaler[supreg]

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Interim final rule.

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SUMMARY: The Drug Enforcement Administration (DEA) is amending the 
table of Excluded Nonnarcotic Products to update the listing for 
Vicks[supreg] VapoInhaler[supreg], containing 50 mg levmetamfetamine in 
a nasal decongestant inhaler, marketed by The Proctor & Gamble Company. 
This over-the-counter, non-narcotic drug product is excluded from 
provisions of the Controlled Substances Act.

DATES: This interim final rule is effective on October 27, 2015. 
Interested persons may file written comments on this rule pursuant to 
21 CFR 1308.21(c). Electronic comments must be submitted, and written 
comments must be postmarked, on or before December 28, 2015. Commenters 
should be aware that the electronic Federal Docket Management System 
will not accept comments after 11:59 p.m. Eastern Time on the last day 
of the comment period. Interested persons are defined as those 
``adversely affected or aggrieved by any rule or proposed rule issuable 
pursuant to section 201 of the Act (21 U.S.C. 811).'' 21 CFR 
1300.01(b).

ADDRESSES: To ensure proper handling of comments, please reference 
``Docket No. DEA-367'' on all electronic and written correspondence, 
including any attachments. The DEA encourages that all comments be 
submitted electronically through the Federal eRulemaking Portal which 
provides the ability to type short comments directly into the comment 
field on the Web page or attach a file for lengthier comments. Please 
go to http://www.regulations.gov and follow the online instructions at 
that site for submitting comments. Paper comments that duplicate 
electronic submissions are not necessary. Should you, however, wish to 
submit written comments, in lieu of electronic comments, they should be 
sent via regular or express mail to: Drug Enforcement Administration, 
Attention: DEA Federal Register Representative/ODL, 8701 Morrissette 
Drive, Springfield, Virginia 22152.

FOR FURTHER INFORMATION CONTACT: John R. Scherbenske, Office of 
Diversion Control, Drug Enforcement Administration; Mailing Address: 
8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 
598-6812.

SUPPLEMENTARY INFORMATION:

Posting of Public Comments

    Please note that all comments received in response to this docket 
are considered part of the public record and will be made available for 
public inspection online at http://www.regulations.gov. Such 
information includes personal identifying information (such as your 
name, address, etc.) voluntarily submitted by the commenter.
    The Freedom of Information Act (FOIA) applies to all comments 
received. If you want to submit personal identifying information (such 
as your name, address, etc.) as part of your comment, but do not want 
it to be made publicly available, you must include the phrase 
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your 
comment. You must also place all of the personal identifying 
information you do not want made publicly available in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be made publicly available, you 
must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the 
first paragraph of your comment. You must also prominently identify the 
confidential business information to be redacted within the comment.
    Comments containing personal identifying information or 
confidential business information identified as directed above will be 
made publicly available in redacted form. If a comment has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be made publicly 
available. Comments posted to http://www.regulations.gov may include 
any personal identifying information (such as name, address, and phone 
number) included in the text of your electronic submission that is not 
identified as directed above as confidential.
    An electronic copy of this document and supplemental information to 
this interim final rule is available at http://www.regulations.gov for 
easy reference.

Legal Authority

    The Drug Enforcement Administration (DEA) implements and enforces 
titles II and III of the Comprehensive Drug Abuse Prevention and 
Control Act of 1970, as amended. 21 U.S.C. 801-971. Titles II and III 
are referred to as the ``Controlled Substances Act'' and the 
``Controlled Substances Import and Export Act,'' respectively, and are 
collectively referred to as the ``Controlled Substances Act'' or the 
``CSA'' for the purpose of this action. The DEA publishes the 
implementing regulations for these statutes in title 21 of the Code of 
Federal Regulations (CFR), chapter II.
    The CSA and its implementing regulations are designed to prevent, 
detect, and eliminate the diversion of controlled substances and listed 
chemicals into the illicit market while ensuring an adequate supply is 
available for the legitimate medical, scientific, research, and 
industrial needs of the United States. Controlled substances have the 
potential for abuse and dependence and are controlled to

[[Page 65636]]

protect the public health and safety. 21 U.S.C. 801.
    Under the CSA, each controlled substance is classified into one of 
five schedules based upon its potential for abuse, its currently 
accepted medical use in treatment in the United States, and the degree 
of dependence the drug or other substance may cause. 21 U.S.C. 812. The 
initial schedules of controlled substances established by Congress are 
found at 21 U.S.C. 812(c), and the current list of all scheduled 
substances is published at 21 CFR part 1308. 21 U.S.C. 812(a).
    The CSA states that the Attorney General shall by regulation 
exclude any non-narcotic drug which contains a controlled substance 
from the application of the CSA, if such drug may, under the Federal 
Food, Drug, and Cosmetic Act (FD&C Act), [21 U.S.C. 301 et seq.] be 
lawfully sold over-the-counter without a prescription. 21 U.S.C. 
811(g)(1). Such exclusions apply only to specific non-narcotic drugs 
following suitable application to the DEA in accordance with 21 CFR 
1308.21. The current table of Excluded Nonnarcotic Products is found in 
21 CFR 1308.22. The authority to exclude such substances has been 
delegated to the Administrator of the DEA, 28 CFR 0.100, and 
redelegated to the Deputy Assistant Administrator of the Office of 
Diversion Control, section 7 of 28 CFR part 0, appendix to subpart R.

Background

    On February 9, 2012, pursuant to the application process of 21 CFR 
1308.21, the DEA received correspondence from The Proctor & Gamble 
Company (``P&G'') notifying the DEA that it had reduced the quantity of 
l-desoxyephedrine (levmetamfetamine) from 113 mg to 50 mg in their 
Vicks[supreg] InhalerTM product which is currently excluded 
under 21 CFR 1308.22. Levmetamfetamine is controlled in schedule II as 
an isomer of methamphetamine. 21 CFR 1308.12(d)(2). P&G requested that 
the DEA update the current exclusion for their Vicks[supreg] 
InhalerTM and indicated it had acquired Richardson-Vicks, 
Inc. (including its subsidiary, the Vick Chemical Company). The company 
also stated that the product name has been modified from Vicks[supreg] 
InhalerTM to Vicks[supreg] VapoInhaler[supreg] and that the 
change included a corresponding National Drug Code (NDC) number 
reassignment by the U.S. Food and Drug Administration. P&G also stated 
that the nomenclature for the active ingredient/controlled substance 
had been changed from l-desoxyephedrine to levmetamfetamine. P&G 
indicated that nothing in the formulation change affects other aspects 
of the drug delivery system.
    Based on the application and other information received, including 
the quantitative composition of the substance and labeling and 
packaging information, the DEA has determined that this product may, 
under the FD&C Act, be lawfully sold over-the-counter without a 
prescription. 21 U.S.C. 811(g)(1). In addition, the Deputy Assistant 
Administrator of the Office of Diversion Control finds that the active 
ingredient in this drug product (levmetamfetamine) is a schedule II 
controlled substance and is not a narcotic drug as defined by 21 U.S.C. 
802(17). The Deputy Assistant Administrator of the Office of Diversion 
Control therefore finds and concludes that this product continues to 
meet the criteria for exclusion from the CSA pursuant to 21 U.S.C. 
811(g)(1).
    This exclusion only applies to the finished drug product in the 
form of an inhaler (in the exact formulation detailed in the 
application for exclusion), which is lawfully sold under the FD&C Act 
over-the-counter without a prescription. The extraction or removal of 
the active ingredient (levmetamfetamine) from the inhaler shall negate 
this exclusion and result in the possession of a schedule II controlled 
substance.

Administrative Procedure Act

    An agency may find good cause to exempt a rule from certain 
provisions of the Administrative Procedure Act (APA), including notice 
of proposed rulemaking and the pre-promulgation opportunity for public 
comment, if it is determined to be impracticable, unnecessary, or 
contrary to the public interest. 5 U.S.C. 553(b)(B). The DEA finds for 
good cause that it is unnecessary to seek public comment prior to 
amending the table of Excluded Nonnarcotic Products to update the 
listing for this product, as the amendments are primarily technical in 
nature and would not result in any substantive change. The product was 
previously exempted under a different company name, which is no longer 
accurate due to acquisition of Vick Chemical Company by The Proctor & 
Gamble Company. Additionally, the product name has been modified and 
was reassigned a corresponding NDC number, and the nomenclature for the 
active ingredient has changed. Lastly, while the amount of the schedule 
II ingredient l-desoxyephedrine (levmetamfetamine) in this product has 
been reduced by half the original quantity, the changes in the 
formulation will not affect the effectiveness of the product or the 
public's ability to benefit from the use of the product. There is also 
no further formulation change which would affect other aspects of the 
drug delivery system.
    The APA requires the publication of a substantive rule to be made 
not less than 30 days before its effective date. 5 U.S.C. 553(d). 
However, this requirement need not apply for ``a substantive rule which 
grants or recognizes an exemption or relieves a restriction'' or ``as 
otherwise provided by the agency for good cause found and published 
with the rule.'' 5 U.S.C. 553(d)(1). This rule continues the exclusion 
of a nonnarcotic drug product from the provisions of the CSA. Given 
that these amendments to the table of Excluded Nonnarcotic Products are 
primarily technical in nature and thereby would not warrant any further 
delay, the DEA finds that there is good cause to make this rule 
effective immediately upon publication.

Regulatory Analyses

Executive Orders 12866 and 13563

    This regulation has been developed in accordance with the Executive 
Orders 12866, ``Regulatory Planning and Review,'' section 1(b) and 
Executive Order 13563, ``Improving Regulation and Regulatory Review.'' 
The DEA has determined that this rule is not a significant regulatory 
action, and accordingly this rule has not been reviewed by the Office 
of Management and Budget. This product is a modified version of a 
product that is currently exempted under the DEA's regulations. This 
action will not have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities; 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or raise novel legal or 
policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in Executive Order 12866.

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,'' to eliminate drafting errors and ambiguity, minimize

[[Page 65637]]

litigation, provide a clear legal standard for affected conduct, and 
promote simplification and burden reduction.

Executive Order 13132

    This rulemaking does not have federalism implications warranting 
the application of Executive Order 13132. The rule does not have 
substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or the distribution of power and 
responsibilities among the various levels of government.

Executive Order 13175

    This rule does not have tribal implications warranting the 
application of Executive Order 13175. This rule does not have 
substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes.

Unfunded Mandates Reform Act of 1995

    The DEA has determined and certifies pursuant to the Unfunded 
Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et seq., that this 
action would not result in any Federal mandate that may result ``in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100,000,000 or more (adjusted for 
inflation) in any one year * * * .'' Therefore, neither a Small 
Government Agency Plan nor any other action is required under the 
provisions of the UMRA.

Paperwork Reduction Act of 1995

    This rule does not impose a new collection of information 
requirement under the Paperwork Reduction Act, 44 U.S.C. 3501-3521. 
This action would not impose recordkeeping or reporting requirements on 
State or local governments, individuals, businesses, or organizations. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

Congressional Review Act

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act (CRA)). 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 for consumers, individual industries, Federal, 
State, or local government agencies, or geographic regions; 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. However, pursuant to the CRA, the DEA has submitted a 
copy of this interim final rule to both Houses of Congress and to the 
Comptroller General.

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, 21 CFR part 1308 is amended as 
follows:

PART 1308--SCHEDULES OF CONTROLLED SUBSTANCES

0
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.


0
2. In Sec.  1308.22, remove the product listed in the table for the 
company, ``Vicks Chemical Co'' and Trade name, ``Vicks Inhaler,'' and 
add to the table, in alphabetical order, the product listed below:


Sec.  1308.22  Excluded substances.

* * * * *

                                                              Excluded Nonnarcotic Products
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                Company                          Trade name               NDC code             Form           Controlled  substance      (mg or mg/ml)
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                                                                      * * * * * * *
Proctor & Gamble Co., The..............  Vicks VapoInhaler.........       37000-686-01                 IN  Levmetamfetamine (l-                    50.00
                                                                                                            Desoxyephedrine).
 
                                                                      * * * * * * *
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    Dated: October 20, 2015.
Louis J. Milione,
Deputy Assistant Administrator, Office of Diversion Control.
[FR Doc. 2015-27266 Filed 10-26-15; 8:45 am]
BILLING CODE 4410-09-P