[Federal Register Volume 84, Number 210 (Wednesday, October 30, 2019)]
[Rules and Regulations]
[Pages 58045-58047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23372]


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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1308

[Docket No. DEA-472a]


Schedules of Controlled Substances: Extension of Temporary 
Placement of FUB-AMB in Schedule I of the Controlled Substances Act

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Temporary rule; temporary scheduling order; extension.

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SUMMARY: The Acting Administrator of the Drug Enforcement 
Administration is issuing this temporary scheduling order to extend the 
temporary schedule I status of a synthetic cannabinoid, methyl 2-(1-(4-
fluorobenzyl)-1H-indazole-3-carboxamido)-3-methylbutanoate (other 
names: FUB-AMB, MMB-FUBINACA, AMB-FUBINACA), including its optical, 
positional and geometric isomers, salts, and salts of isomers. The 
schedule I status of FUB-AMB currently is in effect until November 4, 
2019. This temporary order will extend the temporary scheduling of FUB-
AMB for one year, or until the permanent scheduling action for this 
substance is completed, whichever occurs first.

DATES: This temporary scheduling order, which extends the order (82 FR 
51154, November 3, 2017), is effective November 3, 2019 and expires on 
November 3, 2020. If the Drug Enforcement Administration publishes a 
final rule making this scheduling action permanent, this order will 
expire on the effective date of that rule, if the effective date is 
earlier than November 3, 2020.

FOR FURTHER INFORMATION CONTACT: Scott Brinks, Diversion Control 
Division, Drug Enforcement Administration; Mailing Address: 8701 
Morrissette Drive, Springfield, Virginia 22152; Telephone: (571) 362-
8209.

SUPPLEMENTARY INFORMATION: 

Background and Legal Authority

    On November 3, 2017, the Acting Administrator of the Drug 
Enforcement Administration (DEA) published a temporary scheduling order 
in the Federal Register (82 FR 51154) placing methyl 2-(1-(4-
fluorobenzyl)-1H-indazole-3-carboxamido)-3-methylbutanoate (other 
names: FUB-

[[Page 58046]]

AMB, MMB-FUBINACA, AMB-FUBINACA), a synthetic cannabinoid (SC) 
substance, in schedule I of the Controlled Substances Act (CSA) 
pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). 
That order was effective on the date of publication, and was based on 
findings by the Acting Administrator of the DEA that the temporary 
scheduling of this SC was necessary to avoid an imminent hazard to the 
public safety pursuant to 21 U.S.C. 811(h)(1). Section 201(h)(2) of the 
CSA, 21 U.S.C. 811(h)(2), requires that the temporary control of this 
substance expires two years from the effective date of the scheduling 
order, or on November 3, 2019. However, the CSA also provides that 
during the pendency of proceedings under 21 U.S.C. 811(a)(1) with 
respect to the substance, the temporary scheduling \1\ of that 
substance could be extended for up to one year. Proceedings for the 
scheduling of a substance under 21 U.S.C. 811(a) may be initiated by 
the Attorney General (delegated to the Administrator of the DEA 
pursuant to 28 CFR 0.100) on his own motion, at the request of the 
Secretary of Health and Human Services (HHS),\2\ or on the petition of 
any interested party.
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    \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.
    \2\ Because the Secretary of the Department of Health and Human 
Services (HHS) has delegated to the Assistant Secretary for Health 
of the HHS the authority to make domestic drug scheduling 
recommendations, for purposes of this temporary scheduling order, 
all subsequent references to ``Secretary'' have been replaced with 
``Assistant Secretary.''
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    The Acting Administrator of the DEA (Acting Administrator), on his 
own motion pursuant to 21 U.S.C. 811(a), has initiated proceedings 
under 21 U.S.C. 811(a)(1) to permanently schedule FUB-AMB. The DEA has 
gathered and reviewed the available information regarding the 
pharmacology, chemistry, trafficking, actual abuse, pattern of abuse, 
and the relative potential for abuse for this SC. On March 9, 2018, the 
DEA submitted a request to the HHS to provide the DEA with a scientific 
and medical evaluation of available information and a scheduling 
recommendation for FUB-AMB, and in accordance with 21 U.S.C. 811(b) and 
(c). Upon evaluating the scientific and medical evidence, on September 
19, 2019, the HHS submitted to the Acting Administrator of the DEA its 
scientific and medical evaluation and a scheduling recommendation for 
FUB-AMB. Upon receipt of the scientific and medical evaluation and 
scheduling recommendation from the HHS, the DEA reviewed the documents 
and all other relevant data, and conducted its own eight-factor 
analysis of the abuse potential of FUB-AMB in accordance with 21 U.S.C. 
811(c). The DEA published a notice of proposed rulemaking for the 
placement of FUB-AMB in schedule I elsewhere in this issue of the 
Federal Register. If the scheduling of this substance is made 
permanent, the DEA will publish a final rule in the Federal Register.
    Pursuant to 21 U.S.C. 811(h)(2), the Acting Administrator orders 
that the temporary scheduling of FUB-AMB, including its optical, 
positional and geometric isomers, salts, and salts of isomers, be 
extended for one year, or until the permanent scheduling proceeding is 
completed, whichever occurs first.
    In accordance with the temporary scheduling order in this document, 
the schedule I requirements for handling FUB-AMB, including its 
optical, positional and geometric isomers, salts, and salts of isomers, 
will remain in effect for one year, or until the permanent scheduling 
proceeding is completed, whichever occurs first.

Regulatory Matters

    The CSA provides for an expedited temporary scheduling action where 
such action is necessary to avoid an imminent hazard to the public 
safety. 21 U.S.C. 811(h). The Attorney General may, by order, schedule 
a substance in schedule I on a temporary basis. Id. 21 U.S.C. 811(h) 
also provides that the temporary scheduling of a substance shall expire 
at the end of two years from the date of the issuance of the order 
scheduling such substance, except that the Attorney General may, during 
the pendency of proceedings to permanently schedule the substance, 
extend the temporary scheduling for up to one year.
    To the extent that 21 U.S.C. 811(h) directs that temporary 
scheduling actions be issued by order and sets forth the procedures by 
which such orders are to be issued and extended, 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 
extension of the temporary scheduling action. In the alternative, even 
assuming that this action 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 extending the temporary scheduling order 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 order extending the 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 reviewed by 
the Office of Management and Budget (OMB).
    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 maintain the temporary placement of FUB-AMB in 
schedule I because it poses a public health risk. The temporary 
scheduling action was 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. Under 21 U.S.C. 
811(h), temporary scheduling orders are not subject to notice and 
comment rulemaking procedures. The DEA understands that the CSA frames 
temporary scheduling actions as orders rather than rules to ensure that 
the process moves swiftly, and this extension of the temporary 
scheduling order continues to serve that purpose. For the same reasons 
that underlie 21 U.S.C. 811(h), that is, the need to place this 
substance in schedule

[[Page 58047]]

I because it poses an imminent hazard to public safety, it would be 
contrary to the public interest to delay implementation of this 
extension of the temporary scheduling order. Therefore, in accordance 
with section 808(2) of the CRA, this order extending the temporary 
scheduling order shall take effect immediately upon its publication. 
The DEA has submitted a copy of this temporary scheduling order to both 
Houses of Congress and to the Comptroller General, although such filing 
is not required under the Congressional Review Act, 5 U.S.C. 801-808, 
because, as noted above, this action is an order, not a rule.

    Dated: October 21, 2019.
Uttam Dhillon,
Acting Administrator.
[FR Doc. 2019-23372 Filed 10-29-19; 8:45 am]
 BILLING CODE 4410-09-P