[Federal Register Volume 82, Number 67 (Monday, April 10, 2017)]
[Rules and Regulations]
[Pages 17119-17124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07118]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1308

[Docket No. DEA-446]


Schedules of Controlled Substances: Temporary Placement of Six 
Synthetic Cannabinoids (5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-
CHMICA and MDMB-FUBINACA) into Schedule I

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Temporary scheduling order.

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SUMMARY: The Administrator of the Drug Enforcement Administration is 
issuing this temporary scheduling order to schedule six synthetic 
cannabinoids: methyl 2-(1-(5-fluoropentyl)-1H-indazole-3-carboxamido)-
3,3-dimethylbutanoate [5F-ADB; 5F-MDMB-PINACA]; methyl 2-(1-(5-
fluoropentyl)-1H-indazole-3-carboxamido)-3-methylbutanoate [5F-AMB]; N-
(adamantan-1-yl)-1-(5-fluoropentyl)-1H-indazole-3-carboxamide [5F-
APINACA, 5F-AKB48]; N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(4-
fluorobenzyl)-1H-indazole-3-carboxamide [ADB-FUBINACA]; methyl 2-(1-
(cyclohexylmethyl)-1H-indole-3-carboxamido)-3,3-dimethylbutanoate 
[MDMB-CHMICA, MMB-CHMINACA] and methyl 2-(1-(4-fluorobenzyl)-1H-
indazole-3-carboxamido)-3,3-dimethylbutanoate [MDMB-FUBINACA], and 
their optical, positional, and geometric isomers, salts, and salts of 
isomers into schedule I pursuant to the temporary scheduling provisions 
of the Controlled Substances Act. This action is based on a finding by 
the Administrator that the placement of these synthetic cannabinoids 
into schedule I of the Controlled Substances Act is necessary to avoid 
an imminent hazard to the public safety. As a result of this order, the 
regulatory controls and administrative, civil, and criminal sanctions 
applicable to schedule I controlled substances will be imposed on 
persons who handle (manufacture, distribute, reverse distribute, 
import, export, engage in research, conduct instructional activities or 
chemical analysis, or possess), or propose to handle, 5F-ADB, 5F-AMB, 
5F-APINACA, ADB-FUBINACA, MDMB-CHMICA or MDMB-FUBINACA.

DATES: This temporary scheduling order is effective on April 10, 2017. 
This temporary order will expire on April 10, 2019, unless it is 
extended for an additional year or a permanent scheduling proceeding is 
completed.

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

SUPPLEMENTARY INFORMATION:

Legal Authority

    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 protect the public health and safety.
    Under the CSA, every 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.

[[Page 17120]]

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.
    Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney 
General with the authority to temporarily place a substance into 
schedule I of the CSA for two years without regard to the requirements 
of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid 
an imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In 
addition, if proceedings to control a substance are initiated under 21 
U.S.C. 811(a)(1), the Attorney General may extend the temporary 
scheduling \1\ for up to one year. 21 U.S.C. 811(h)(2).
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    \1\ Though DEA has used the term ``final order'' with respect to 
temporary scheduling orders in the past, this notification adheres 
to the statutory language of 21 U.S.C. 811(h), which refers to a 
``temporary scheduling order.'' No substantive change is intended.
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    Where the necessary findings are made, a substance may be 
temporarily scheduled if it is not listed in any other schedule under 
section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or 
approval in effect for the substance under section 505 of the Federal 
Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 
811(h)(1). The Attorney General has delegated scheduling authority 
under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.

Background

    Section 201(h)(4) of the CSA 21 U.S.C. 811(h)(4), requires the 
Administrator to notify the Secretary of the Department of Health and 
Human Services (HHS) of his intention to temporarily place a substance 
into schedule I of the CSA.\2\ The Acting Administrator transmitted 
notice of his intent to place 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, 
MDMB-CHMICA and MDMB-FUBINACA into schedule I on a temporary basis to 
the Assistant Secretary by letter dated April 22, 2016. The Assistant 
Secretary responded to this notice by letter dated May 2, 2016, and 
advised that based on a review by the Food and Drug Administration 
(FDA), there were no investigational new drug applications or approved 
new drug applications for 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, 
MDMB-CHMICA or MDMB-FUBINACA. The Assistant Secretary also stated that 
the HHS had no objection to the temporary placement of 5F-ADB, 5F-AMB, 
5F-APINACA, ADB-FUBINACA, MDMB-CHMICA or MDMB-FUBINACA into 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). 5F-ADB, 5F-
AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA or MDMB-FUBINACA are not 
currently listed in any schedule under the CSA, and no exemptions or 
approvals are in effect for 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, 
MDMB-CHMICA or MDMB-FUBINACA under section 505 of the FDCA, 21 U.S.C. 
355. The DEA has found that the control of 5F-ADB, 5F-AMB, 5F-APINACA, 
ADB-FUBINACA, MDMB-CHMICA or MDMB-FUBINACA 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 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-
CHMICA or MDMB-FUBINACA was published in the Federal Register on 
December 21, 2016. 81 FR 93595.
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    \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 
Department of Health and Human Service (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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    To find that placing a substance temporarily into schedule I of the 
CSA is necessary to avoid an imminent hazard to the public safety, the 
Administrator is required to consider three of the eight factors set 
forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's 
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 into 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 5F-ADB, 5F-AMB, 5F-APINACA, ADB-
FUBINACA, MDMB-CHMICA and MDMB-FUBINACA, summarized below, indicate 
that these synthetic cannabinoids (SCs) 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. The DEA's three-factor analysis, and the Assistant 
Secretary's May 2, 2016 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-2016-0020 (Docket Number 
DEA-446).

Factor 4. History and Current Pattern of Abuse

    Synthetic cannabinoids have been developed over the last 30 years 
as tools for investigating the endocannabinoid system (e.g., 
determining CB1 and CB2 receptor activity). The first encounter of SCs 
within the United States occurred in November 2008 by U.S. Customs and 
Border Protection. Since then the popularity of SCs and their 
associated products has increased steadily as evidenced by law 
enforcement seizures, public health information, and media reports. 5F-
ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-FUBINACA 
are SCs that have been recently encountered (see ``Supporting and 
Related Material,'' factor 5). Multiple overdoses involving emergency 
medical intervention or deaths have been associated with 5F-ADB, 5F-
AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-FUBINACA.
    Research and clinical reports have demonstrated that SCs are 
applied onto plant material so that the material may be smoked as users 
attempt to obtain a euphoric and/or psychoactive ``high,'' believed to 
be similar to marijuana. Data gathered from published studies, 
supplemented by discussions on Internet discussion Web sites, 
demonstrate that these products are being abused mainly by smoking for 
their psychoactive properties. The adulterated products are marketed as 
``legal'' alternatives to marijuana. In recent overdoses, 5F-ADB, 5F-
AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-FUBINACA have been 
shown to be applied onto plant material, similar to the SCs that have 
been previously available.
    Law enforcement personnel have encountered various application 
methods, including buckets or cement mixers, in which plant material 
and one or more SCs (including 5F-ADB, 5F-AMB, 5F-APINACA, ADB-
FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA) are mixed together, as well 
as large areas where the plant material is spread out so that a 
dissolved SC

[[Page 17121]]

mixture can be applied directly. Once mixed, the SC plant material is 
then allowed to dry before manufacturers package the product for 
distribution, ignoring any control mechanisms to prevent contamination 
or to ensure a consistent, uniform concentration of the substance in 
each package. Adverse health consequences may also occur from directly 
ingesting the substance(s) during the manufacturing process. 5F-ADB, 
5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-FUBINACA, 
similar to other SCs, have been encountered in the form of dried leave 
or herbal blends.
    The designer drug products laced with SCs, including 5F-ADB, 5F-
AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-FUBINACA, are often 
sold under the guise of ``herbal incense'' or ``potpourri,'' use 
various product names, and are routinely labeled ``not for human 
consumption.'' Additionally, these products are marketed as a ``legal 
high'' or ``legal alternative to marijuana'' and are readily available 
over the Internet, in head shops, or sold in convenience stores. There 
is an incorrect assumption that these products are safe, that they are 
a synthetic form of marijuana, and that labeling these products as 
``not for human consumption'' is a legal defense to criminal 
prosecution.
    A major concern, as reiterated by public health officials and 
medical professionals, is the targeting and direct marketing of SCs and 
SC-containing products to adolescents and youth. This is supported by 
law enforcement encounters and reports from emergency departments; 
however, all age groups have been reported by media as abusing these 
substances and related products. Individuals, including minors, are 
purchasing SCs from Internet Web sites, gas stations, convenience 
stores, and head shops.

Factor 5. Scope, Duration and Significance of Abuse

    SCs, including 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-
CHMICA and MDMB-FUBINACA, continue to be encountered on the illicit 
market regardless of scheduling actions that attempt to safeguard the 
public from the adverse effects and safety issues associated with these 
substances. Numerous substances are encountered each month, differing 
only by small modifications intended to avoid prosecution while 
maintaining the pharmacological effects. Law enforcement and health 
care professionals continue to report abuse of these substances and 
their associated products.
    As described by the National Institute on Drug Abuse (NIDA), many 
substances being encountered in the illicit market, specifically SCs, 
have been available for years but have reentered the marketplace due to 
a renewed popularity.
    The threat of serious injury to the individual following the 
ingestion of 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and 
MDMB-FUBINACA and other SCs persists. Numerous calls have been received 
by poison centers regarding the abuse of products potentially laced 
with SCs that have resulted in visits to emergency departments. Law 
enforcement continues to encounter novel SCs on the illicit market, 
including 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and 
MDMB-FUBINACA (see factor 5 in ``Supporting and Related Material'').
    The following information details information obtained through 
NFLIS \3\ (queried on November 7, 2016), including dates of first 
encounter, exhibits/reports, and locations.
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    \3\ The National Forensic Laboratory Information System (NFLIS) 
is a national drug forensic laboratory reporting system that 
systematically collects results from drug chemistry analyses 
conducted by state and local forensic laboratories in the United 
States.
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    5F-ADB: NFLIS-2,311 reports, first encountered in September 2014, 
locations include: Arizona, Arkansas, California, Florida, Georgia, 
Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, New 
Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, 
Texas, Virginia, and Wisconsin.
    5F-AMB: NFLIS-3,349 reports, first encountered in January 2014, 
locations include: Arizona, Arkansas, California, Colorado, Florida, 
Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, 
Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, 
Nebraska, New Hampshire, New Jersey, New Mexico, New York, North 
Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, 
Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.
    5F-APINACA: NFLIS-1,936 reports, first encountered in August 2012, 
locations include: Alabama, Arizona, Arkansas, California, Colorado, 
Connecticut, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, 
Kentucky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, 
Nebraska, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, 
Pennsylvania, Puerto Rico, South Carolina, Tennessee, Texas, Utah, 
Virginia, West Virginia, Wisconsin, and Wyoming.
    ADB-FUBINACA: NFLIS--942 reports, first encountered in March 2014, 
locations include: Arkansas, California, Colorado, Florida, Georgia, 
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, 
Mississippi, Missouri, New Jersey, New Mexico, New York, North Dakota, 
Ohio, Pennsylvania, Texas, Utah, Virginia, and Wyoming.
    MDMB-CHMICA: NFLIS--227 reports, first encountered in March 2015, 
locations include: Arkansas, Georgia, Indiana, Kentucky, Louisiana, 
Nevada, Ohio, Oklahoma, South Carolina, and Texas.
    MDMB-FUBINACA: NFLIS--507 reports, first encountered in July 2015, 
locations include: Arkansas, California, Colorado, Connecticut, 
Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nevada, 
New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, 
Texas, Virginia, Wisconsin, and West Virginia.

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

    5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-
FUBINACA have all been identified in overdose and/or cases involving 
death attributed to their abuse. Adverse health effects reported from 
these incidents involving 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, 
MDMB-CHMICA and/or MDMB-FUBINACA have included: Nausea, persistent 
vomiting, agitation, altered mental status, seizures, convulsions, loss 
of consciousness and/or cardio toxicity. Large clusters of overdoses 
requiring medical care have been reported involving 5F-AMB, MDMB-
FUBINACA, MDMB-CHMICA and 5F-ADB. Reported deaths involving these SCs 
have included 5F-ADB (8); 5F-AMB (6); 5F-APINACA (1); ADB-FUBINACA (2); 
and MDMB-CHMICA (4). The European Monitoring Centre for Drugs and Drug 
Addiction has reported an additional 12 deaths involving MDMB-CHMICA; 
and MDMB-FUBINACA (1) (see factor 6 in ``Supporting and Related 
Material'').

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

    In accordance with 21 U.S.C. 811(h)(3), based on the available data 
and information summarized above, the continued uncontrolled 
manufacture, distribution, importation, exportation, conduct of 
research and chemical

[[Page 17122]]

analysis, possession, and abuse of 5F-ADB, 5F-AMB, 5F-APINACA, ADB-
FUBINACA, MDMB-CHMICA and MDMB-FUBINACA pose an imminent hazard to the 
public safety. The DEA is not aware of any currently accepted medical 
uses for these substances in the United States. A substance meeting the 
statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), 
may only be placed into 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 5F-
ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-FUBINACA 
indicate that these SCs 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. As required by 
section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, 
through a letter dated April 22, 2016, notified the Assistant Secretary 
of the DEA's intention to temporarily place these six substances into 
schedule I. A notice of intent was subsequently published in the 
Federal Register on December 21, 2016.\4\ 81 FR 93595.
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    \4\ A publication error occurred with the December 21, 2016 
notification (81 FR 93595), which resulted in 21 CFR 1308.11 being 
amended. As a result, a correction was issued by the Federal 
Register on January 9, 2017 (82 FR 2218), and the amended text was 
removed. The original notice of intent was republished on January 9, 
2017 (82 FR 2280), with the corrected non-amendatory language.
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Conclusion

    In accordance with the provisions of section 201(h) of the CSA, 21 
U.S.C. 811(h), the Administrator considered available data and 
information, and herein set forth the grounds for his determination 
that it is necessary to temporarily schedule methyl 2-(1-(5-
fluoropentyl)-1H-indazole-3-carboxamido)-3,3-dimethylbutanoate [5F-ADB; 
5F-MDMB-PINACA]; methyl 2-(1-(5-fluoropentyl)-1H-indazole-3-
carboxamido)-3-methylbutanoate [5F-AMB]; N-(adamantan-1-yl)-1-(5-
fluoropentyl)-1H-indazole-3-carboxamide [5F-APINACA, 5F-AKB48]; N-(1-
amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1H-indazole-3-
carboxamide [ADB-FUBINACA]; methyl 2-(1-(cyclohexylmethyl)-1H-indole-3-
carboxamido)-3,3-dimethylbutanoate [MDMB-CHMICA, MMB-CHMINACA] and 
methyl 2-(1-(4-fluorobenzyl)-1H-indazole-3-carboxamido)-3,3-
dimethylbutanoate [MDMB-FUBINACA] into schedule I of the CSA to avoid 
an imminent hazard to the public safety.
    Because the Administrator hereby finds it necessary to temporarily 
place these SCs into schedule I to avoid an imminent hazard to the 
public safety, this temporary order scheduling these substances will be 
effective on the date of publication in the Federal Register, and will 
be in effect for a period of two years, with a possible extension of 
one additional year, pending completion of the regular (permanent) 
scheduling process. 21 U.S.C. 811(h) (1) and (2).
    The CSA sets forth specific criteria for scheduling a drug or other 
substance. Permanent scheduling actions in accordance with 21 U.S.C. 
811(a) are subject to formal rulemaking procedures done ``on the record 
after opportunity for a hearing'' conducted pursuant to the provisions 
of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The permanent scheduling 
process of formal rulemaking affords interested parties with 
appropriate process and the government with any additional relevant 
information needed to make a determination. Final decisions that 
conclude the permanent scheduling process of formal rulemaking are 
subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders 
are not subject to judicial review. 21 U.S.C. 811(h)(6).

Requirements for Handling

    Upon the effective date of this temporary order, 5F-ADB, 5F-AMB, 
5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and MDMB-FUBINACA will become 
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, 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-
CHMICA and/or MDMB-FUBINACA 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 April 10, 2017. Any 
person who currently handles 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, 
MDMB-CHMICA and/or MDMB-FUBINACA and is not registered with the DEA, 
must submit an application for registration and may not continue to 
handle 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and/or 
MDMB-FUBINACA as of April 10, 2017, unless the DEA has approved that 
application for registration. Retail sales of schedule I controlled 
substances to the general public are not allowed under the CSA. 
Possession of any quantity of these substances in a manner not 
authorized by the CSA on or after April 10, 2017 is unlawful and those 
in possession of any quantity of these substances may be subject to 
prosecution pursuant to the CSA.
    2. Disposal of stocks. Any person who does not desire or is not 
able to obtain a schedule I registration to handle 5F-ADB, 5F-AMB, 5F-
APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA, must surrender 
all quantities of currently held 5F-ADB, 5F-AMB, 5F-APINACA, ADB-
FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA.
    3. Security. 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA 
and/or MDMB-FUBINACA are subject to schedule I security requirements 
and must be handled and stored pursuant to 21 U.S.C. 821, 823, 871(b), 
and in accordance with 21 CFR 1301.71-1301.93, as of April 10, 2017.
    4. Labeling and Packaging. All labels, labeling, and packaging for 
commercial containers of 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, 
MDMB-CHMICA and/or MDMB-FUBINACA 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 April 10, 2017, to comply 
with all labeling and packaging requirements.
    5. Inventory. Every DEA registrant who possesses any quantity of 
5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-
FUBINACA on the effective date of this order, must take an inventory of 
all stocks of these substances on hand, pursuant to 21 U.S.C. 827 and 
958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. 
Current DEA registrants shall have 30 calendar days from the effective 
date of this order to be in compliance with all inventory requirements. 
After the initial inventory, every DEA registrant must take an 
inventory of all controlled substances (including 5F-ADB, 5F-AMB, 5F-
APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA) on hand on a 
biennial basis, pursuant to 21 U.S.C. 827

[[Page 17123]]

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 5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-
FUBINACA pursuant to 21 U.S.C. 827 and 958(e), and in accordance with 
21 CFR parts 1304, 1312, and 1317 and Sec.  1307.11. Current DEA 
registrants authorized to handle 5F-ADB, 5F-AMB, 5F-APINACA, ADB-
FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA 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 5F-
ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA 
must submit reports pursuant to 21 U.S.C. 827 and in accordance with 21 
CFR parts 1304 and 1312 as of April 10, 2017.
    8. Order Forms. All DEA registrants who distribute 5F-ADB, 5F-AMB, 
5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA must comply 
with order form requirements pursuant to 21 U.S.C. 828 and in 
accordance with 21 CFR part 1305 as of April 10, 2017.
    9. Importation and Exportation. All importation and exportation of 
5F-ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-
FUBINACA must be in compliance with 21 U.S.C. 952, 953, 957, 958, and 
in accordance with 21 CFR part 1312 as of April 10, 2017.
    10. Quota. Only DEA registered manufacturers may manufacture 5F-
ADB, 5F-AMB, 5F-APINACA, ADB-FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA 
in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in 
accordance with 21 CFR part 1303 as of April 10, 2017.
    11. Liability. Any activity involving 5F-ADB, 5F-AMB, 5F-APINACA, 
ADB-FUBINACA, MDMB-CHMICA and/or MDMB-FUBINACA not authorized by, or in 
violation of the CSA, occurring as of April 10, 2017, is unlawful, and 
may subject the person to administrative, civil, and/or criminal 
sanctions.

Regulatory Matters

    Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a 
temporary scheduling action where such action is necessary to avoid an 
imminent hazard to the public safety. As provided in this subsection, 
the Attorney General may, by order, schedule a substance in schedule I 
on a temporary basis. Such an order may not be issued before the 
expiration of 30 days from (1) the publication of a notice in the 
Federal Register of the intention to issue such order and the grounds 
upon which such order is to be issued, and (2) the date that notice of 
the proposed temporary scheduling order is transmitted to the Assistant 
Secretary. 21 U.S.C. 811(h)(1).
    Inasmuch as section 201(h) of the CSA directs that temporary 
scheduling actions be issued by order and sets forth the procedures by 
which such orders are to be issued, the DEA believes that the notice 
and comment requirements of the Administrative Procedure Act (APA) at 5 
U.S.C. 553, do not apply to this temporary scheduling action. In the 
alternative, even assuming that this action might be subject to 5 
U.S.C. 553, the Administrator finds that there is good cause to forgo 
the notice and comment requirements of 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 the APA or any other law to publish a 
general notice of proposed rulemaking.
    Additionally, this action is not a significant regulatory action as 
defined by Executive Order 12866 (Regulatory Planning and Review), 
section 3(f), and, accordingly, this action has not been reviewed by 
the Office of Management and Budget.
    This action will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with Executive Order 
13132 (Federalism) it is determined that this action does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.
    As noted above, this action is an order, not a rule. Accordingly, 
the Congressional Review Act (CRA) is inapplicable, as it applies only 
to rules. However, if this were a rule, pursuant to the Congressional 
Review Act, ``any rule for which an agency for good cause finds that 
notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest, shall take effect at such time as the 
federal agency promulgating the rule determines. 5 U.S.C. 808(2). It is 
in the public interest to schedule these substances immediately because 
they pose a public health risk. 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 need to move quickly to place 
these substances into schedule I because they pose an imminent hazard 
to 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 follow:

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


0
2. Section 1308.11 is amended by adding paragraphs (h)(10) through (15) 
to read as follows:


Sec.  1308.11   Schedule I.

* * * * *
    (h) * * *

(10) methyl 2-(1-(5-fluoropentyl)-1H-indazole-3-carboxamido)-     (7034)
 3,3-dimethylbutanoate, its optical, positional, and geometric
 isomers, salts and salts of isomers (Other names: 5F-ADB; 5F-
 MDMB-PINACA)..................................................
(11) methyl 2-(1-(5-fluoropentyl)-1H-indazole-3-carboxamido)-3-   (7033)
 methylbutanoate, its optical, positional, and geometric
 isomers, salts and salts of isomers (Other names: 5F-AMB).....

[[Page 17124]]

 
(12) N-(adamantan-1-yl)-1-(5-fluoropentyl)-1H-indazole-3-         (7049)
 carboxamide, its optical, positional, and geometric isomers,
 salts and salts of isomers (Other names: 5F-APINACA, 5F-AKB48)
(13) N-(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(4-               (7010)
 fluorobenzyl)-1H-indazole-3-carboxamide, its optical,
 positional, and geometric isomers, salts and salts of isomers
 (Other names: ADB-FUBINACA)...................................
(14) methyl 2-(1-(cyclohexylmethyl)-1H-indole-3-carboxamido)-     (7042)
 3,3-dimethylbutanoate, its optical, positional, and geometric
 isomers, salts and salts of isomers (Other names: MDMB-CHMICA,
 MMB-CHMINACA).................................................
(15) methyl 2-(1-(4-fluorobenzyl)-1H-indazole-3-carboxamido)-     (7020)
 3,3-dimethylbutanoate, its optical, positional, and geometric
 isomers, salts and salts of isomers (Other names: MDMB-
 FUBINACA).....................................................
 


    Dated: April 4, 2017.
Chuck Rosenberg,
Acting Administrator.
[FR Doc. 2017-07118 Filed 4-7-17; 8:45 am]
BILLING CODE 4410-09-P