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Federal Register / Vol. 70, No.

2 / Tuesday, January 4, 2005 / Rules and Regulations 291

NGA to provide non-discriminatory Pipeline, L.L.C.; and Texas Eastern addiction; these include opiates,
service and the non-discriminatory Transmission, LP (collectively, Duke stimulants, depressants, hallucinogens,
provisions of the Standards of Conduct Pipelines) anabolic steroids, and substances that
Calpine Corporation (Calpine)
regarding the implementation of tariffs are immediate precursors to these
Cinergy Services, Inc. (Cinergy)
should serve as a guideline for Texas Edison Electric Institute (EEI) controlled substances. Controlled
Gas’s behavior in complying with Entergy Services, Inc. (Entergy) substances are listed in 21 CFR part
sections 4 and 5 of the NGA. Interstate Natural Gas Association of America 1308. The substances are divided into
(INGAA) five schedules. Schedule I substances
G. Miscellaneous Corrections National Fuel Gas Supply Corporation jointly are drugs for which there is a high
50. The Commission is also making with National Fuel Gas Distribution potential for abuse, no currently
some miscellaneous corrections to Corporation (collectively, National Fuel) accepted medical treatment in use in the
typographical errors in the regulatory National Grid USA (National Grid) United States, and lack accepted safety
text. Specifically, Entergy has pointed Natural Gas Supply Association (NGSA)
for use under medical supervision.
OkTex Pipeline Company (OkTex)
out that § 358.4(b)(3)(vi) contains a Schedule II–V substances have accepted
Public Service Commission of the State of
reference to § 37.3 which Entergy New York (PSC New York) medical uses, but have a potential for
believes should be § 37.6. The Southwest Gas Corporation (Southwest Gas) abuse and may lead to physical and
Commission agrees, and § 358.4(b)(3)(vi) Tractebel Calypso Pipeline, LLC (Tractebel) psychological dependence. Such drugs
is being corrected to reference § 37.6. Utah Public Service Commission (Utah PSC) are subject to varying levels of control.
Also, § 358.3(d)(6)(vi) is revised to Wyoming Public Service Commission Chemicals that can be used to
remove ‘‘producer’’ and replace it with (Wyoming PSC) manufacture controlled substances are
‘‘processor’’ to reflect the Commission’s [FR Doc. 05–16 Filed 1–3–05; 8:45 am] regulated as either List I chemicals
intent of this provision as described in BILLING CODE 6717–01–P
(important to the manufacture) or List II
paragraph 30 of Order No. 2004–B. chemicals (used in the manufacture) of
By the Commission. controlled substances.
Linda Mitry, DEPARTMENT OF JUSTICE Background
Deputy Secretary. Gamma-Hydroxybutyric acid (GHB) is
■ In consideration of the foregoing, the Drug Enforcement Administration
a central nervous system depressant
Commission amends part 358, Chapter I, drug. In recent years, the abuse of GHB
Title 18 of the Code of Federal 21 CFR Parts 1304, 1306, and 1310
has increased substantially. GHB is
Regulations, as follows: [Docket No. DEA–234F] abused for its euphoric and purported
RIN 1117–AA71
hallucinogenic effects, as well as for its
PART 358—STANDARDS OF alleged role as an agent to stimulate
CONDUCT muscle growth. GHB can produce
Recordkeeping and Reporting
■ 1. The authority citation for part 358 Requirements for Drug Products drowsiness, dizziness, nausea, visual
continues to read as follows: Containing Gamma-Hydroxybutyric disturbances, unconsciousness,
Acid (GHB) seizures, severe respiratory depression,
Authority: 15 U.S.C. 717–717w, 3301–
coma, and death.
3432; 16 U.S.C. 791–825r, 2601–2645; 31 AGENCY: Drug Enforcement
U.S.C. 9701; 42 U.S.C. 7101–7352.
GHB can be produced in clandestine
Administration (DEA), Justice. laboratories using a relatively simple
§ 358.3 [Amended] ACTION: Final rule. synthesis with readily available and
■ 2. In § 358.3(d)(6)(vi) the word inexpensive source materials. Gamma-
SUMMARY: DEA is amending its Butyrolactone (GBL), a List I chemical,
‘‘producer’’ is removed and the word regulations to require additional
‘‘processor’’ is inserted in its place. is an industrial chemical that is used in
recordkeeping and reporting the illicit manufacture of GHB. GBL and
§ 358.4 [Amended] requirements for drug products 1,4-butanediol, another industrial
containing gamma-hydroxybutyric acid chemical, are also abused for their GHB-
■ 3. In § 358.4(b)(3)(vi) the word ‘‘§ 37.3’’
(GHB) for which an application has like effects. Due to their structural and
is removed and the word ‘‘§ 37.6’’ is been approved under the Federal Food,
inserted in its place. pharmacological similarities to GHB,
Drug, and Cosmetic Act. DEA makes GBL and 1,4-butanediol are considered
§ 358.5 [Amended] these changes under section 4 of the controlled substance analogues as
‘‘Hillory J. Farias and Samantha Reid defined by 21 U.S.C. 802(32).
■ 4. In § 358.5(d), the words ‘‘the
Date-Rape Drug Prohibition Act of Manufactured GHB usually results in a
quantity of power or gas scheduled to be
2000.’’ These additional requirements clear solution that can be disguised by
moved’’ are removed and the words ‘‘the
are necessary to protect against the adding food coloring, flavorings, or
quantity of power or gas upon which the
diversion of GHB for illicit purposes. storing it in different kinds of bottles
discount is based,’’ are inserted in their
place. EFFECTIVE DATE: February 3, 2005. and containers.
FOR FURTHER INFORMATION CONTACT: The listed chemical GBL has many
Note: This Appendix A will not be industrial applications, and has not
published in the Code of Federal Regulations.
Patricia M. Good, Chief, Liaison and
Policy Section, Office of Diversion been scheduled at this time to prevent
Appendix A Control, Drug Enforcement an undue regulatory burden to
Administration, Washington, DC 20537. legitimate commerce in this substance.
List of Petitioners Requesting Rehearing or Telephone (202) 307–7297. Because GBL is a controlled substance
Clarification or submitting Comments analogue, individuals who manufacture
American Gas Association (AGA) SUPPLEMENTARY INFORMATION:
AES Ocean Express LLC (AES)
or distribute or possess with intent to
Controlled Substances and Listed manufacture or distribute this chemical
Algonquin Gas Transmission, LLC; jointly Chemicals
with East Tennessee Natural Gas, LLC; intending it for human consumption
Egan Hub Storage, LLC; Gulfstream Natural Controlled substances are drugs that may be prosecuted under provisions of
Gas System, L.L.C.; Maritimes & Northeast have a potential for abuse and the Controlled Substances Act. This is

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292 Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations

because a controlled substance analogue hydroxybutyric acid, as a drug for the amended 21 CFR 1306.05 to require that
which is intended for human treatment of cataplexy associated with the medical need be written on the
consumption is treated as a Schedule I narcolepsy. prescription.
controlled substance. When handled for This final rule also amends 21 CFR
Notice of Proposed Rulemaking
industrial purposes, with no intent for 1304.33 to include Schedule III GHB
human consumption, it is not treated as The March 13, 2000 final rule did not drug products as controlled substances
a Schedule I controlled substance and address the recordkeeping and reporting that must be reported under the
those handling it are not subject to any requirements recommended by the Automation of Reports and
Schedule I controlled substances Hillory J. Farias and Samantha Reid Consolidated Orders System (ARCOS).
penalties under the Controlled Date-Rape Drug Prohibition Act for drug ARCOS is an automated, comprehensive
Substances Act. products containing GHB for which an drug reporting system that monitors the
application is approved under section flow of DEA controlled substances from
Regulatory History 505 of the FDCA. On November 25, their point of manufacture through
On February 18, 2000, the ‘‘Hillory J. 2003 DEA issued a notice of proposed commercial distribution channels to
Farias and Samantha Reid Date-Rape rulemaking (68 FR 66048) to establish point of sale or distribution at the
Drug Prohibition Act of 2000’’ was requirements to prevent the diversion of dispensing/retail level, e.g., hospitals,
enacted (Pub. L. 106–172, 114 Stat. 7). Schedule III GHB drug products for retail pharmacies, practitioners, mid-
Public Law 106–172 declared GHB an illicit purposes as was intended by level practitioners, and teaching
imminent hazard to public safety that Congress as part of the regulatory institutions. Included in the list of
required immediate regulatory action scheme for these products. DEA
controlled substance transactions
under the Controlled Substances Act. received no comments in response to
tracked by ARCOS are the following: All
Public Law 106–172 required the the November 25, 2003 notice of
Schedules I and II materials
Attorney General to list GHB as a proposed rulemaking and is adopting
(manufacturers and distributors);
Schedule I controlled substance and the rule language as proposed.
In response to section 4 of the Hillory Schedule III narcotic materials
designated GBL as a List I chemical. As
J. Farias and Samantha Reid Date-Rape (manufacturers and distributors); and
a result of the Hillory J. Farias and
Drug Prohibition Act, this rule selected Schedules III and IV
Samantha Reid Date-Rape Drug
establishes recordkeeping requirements psychotropic controlled substances
Prohibition Act, DEA issued two final
for practitioners dispensing Schedule III (manufacturers only). This final rule
rules: Schedules of Controlled
Substances: Addition of Gamma- GHB drug products and reporting adds Schedule III GHB drug products to
Hydroxybutyric Acid to Schedule I (65 requirements for manufacturers and this list for both manufacturers and
FR 13235, March 13, 2000) (corrected at distributors of Schedule III GHB drug distributors.
65 FR 17440, April 3, 2000) and products. Under existing 21 CFR In addition, section 4 of the Hillory J.
Placement of Gamma-Butyrolactone in 1304.22(c), dispensers of any controlled Farias and Samantha Reid Date-Rape
List I of the Controlled Substances Act substance, including GHB, are required Drug Prohibition Act recommended that
(21 U.S.C. 802(34)) (65 FR 21645, April to maintain the name and address of the DEA apply the mail order reporting
24, 2000). person to whom the controlled requirements of 21 U.S.C. 830(b)(3) to
Under the March 13, 2000 final rule, substance was dispensed, the date of ‘‘gamma hydroxybutyric acid to the
GHB and its salts, isomers, and salts of dispensing, the number of units or same extent and in the same manner as
isomers were placed in Schedule I, and volume dispensed, and the written or such section applies with respect to the
GHB became subject to the regulatory typewritten name or initials of the chemicals and drug products specified
controls and administrative, civil, and individual who dispensed or in subparagraph (B)(i) of such section.’’
criminal sanctions applicable to the administered the substance on behalf of DEA has complied with these
manufacture, distribution, dispensing, the dispenser. This final rule adds 21 recommendations in this final rule by
importing, and exporting of a Schedule CFR 1304.26, which requires amending 21 CFR 1310.03(c), which
I controlled substance. As required by pharmacies and practitioners dispensing makes GHB subject to mail order
the Hillory J. Farias and Samantha Reid GHB to maintain and make available for requirements established under the
Date-Rape Drug Prohibition Act, the inspection the name of the prescribing Methamphetamine Anti-Proliferation
March 13, 2000 final rule created an practitioner, the prescribing Act of 2000 (MAPA) (Title XXXVI of the
exception for drug products containing practitioner’s Federal and State ‘‘Children’s Health Act of 2000’’ (Pub. L.
GHB, including its salts, isomers, and registration numbers with expiration 106–310, 114 Stat. 1101)). The
salts of isomers, for which an dates, verification that the prescribing Methamphetamine Anti-Proliferation
application is approved under section practitioner possesses appropriate Act of 2000 imposed mail order
505 of the Federal Food, Drug, and registration, and the patient’s insurance reporting requirements for export
Cosmetic Act (FDCA) (21 U.S.C. 355). provider, if available. Section 4 of the transactions involving ephedrine,
The exception placed any such drug Hillory J. Farias and Samantha Reid pseudoephedrine, or
products—there were none approved at Date-Rape Drug Prohibition Act also phenylpropanolamine. These reporting
the time the legislation was passed—in recommended that DEA establish a requirements do not apply to
Schedule III. Therefore, registered recordkeeping requirement for distributions of drug products,
manufacturers and distributors of FDA- ‘‘documentation by a medical including GHB, under a valid
approved drug products containing GHB practitioner licensed and registered to prescription, which were excluded
are subject to Schedule III regulatory prescribe the drug of the patient’s under MAPA (21 U.S.C. 830(b)(3)(D)).
requirements. However, criminal medical need for the drug.’’ Part of this Regulations implementing MAPA were
penalties for unlawful distributions of recommendation is satisfied by existing published October 7, 2003 (68 FR
these drug products are those for DEA requirements in 21 CFR 1306.04 57799). The net effect is that all export
Schedule I controlled substances. which state that prescriptions ‘‘must be transactions involving GHB must be
On July 17, 2002, the Food and Drug issued for a legitimate medical reported to DEA. Transactions involving
Administration (FDA) approved Xyrem, purpose.’’ To further satisfy this prescriptions of GHB are not required to
a drug product containing gamma- statutory requirement, DEA has be reported to DEA.

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Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations 293

Regulatory Certifications Unfunded Mandates Reform Act of 1995 economy of $100 million or more; a
This rulemaking will not result in the major increase in costs or prices; or
Regulatory Flexibility Act significant adverse effects on
expenditure by State, local, and tribal
The Deputy Assistant Administrator governments in the aggregate, or by the competition, employment, investment,
certifies that this rulemaking has been private sector, of $114.5 million or more productivity, innovation or on the
drafted in accordance with the in any one year, and will not ability of U.S.-based companies to
Regulatory Flexibility Act (5 U.S.C. significantly or uniquely affect small compete with foreign-based companies
605(b)). The Deputy Assistant governments. Therefore, no actions were in domestic and export markets.
Administrator has reviewed this deemed necessary under the provisions List of Subjects
regulation, and by approving it certifies of the Unfunded Mandates Reform Act
that it will not have a significant of 1995. 21 CFR Part 1304
economic impact upon a substantial Paperwork Reduction Act Drug traffic control, Reporting and
number of small entities. This recordkeeping requirements.
rulemaking creates new recordkeeping While, technically, this rule requires
new, minimal recordkeeping and 21 CFR Part 1306
and reporting requirements which will
have an extremely limited impact on a reporting requirements for drug Drug traffic control, Prescription
small number of registrants due to the products containing GHB, DEA does not drugs.
restricted use of GHB for legitimate believe that these recordkeeping and
reporting requirements create any 21 CFR Part 1310
medical purposes. As a condition of
Xyrem’s (the FDA-approved product greater hour or cost burden for Drug traffic control, List I and List II
containing GHB) approval, a risk respondents than what already exists. chemicals, Reporting and recordkeeping
management program was designed to Records required to be maintained by requirements.
limit its distribution. Under this dispensing practitioners under 21 CFR ■ For the reasons set out above, 21 CFR
program, Xyrem will only be available 1304.26, including the prescribing parts 1304, 1306, and 1310 are amended
to physicians and patients through a practitioner’s name, address, state as follows:
single centralized pharmacy. As a result license and federal registration
numbers, and the patient’s insurance PART 1304—RECORDS AND
of this program, at this time, controlled
provider (if available) are all records REPORTS OF REGISTRANTS
substance distributors and retail
which are maintained as a usual course
pharmacies will not be handling Xyrem ■ 1. The authority citation for 21 CFR
of professional practice by a dispensing
and, thus, will not be affected by these part 1304 continues to read as follows:
practitioner. The reporting requirements
requirements. For those few persons
in 21 CFR 1304.33 are part of an Authority: 21 U.S.C. 821, 827, 871(b), 958,
affected by these regulations, the already-approved collection of 965, unless otherwise noted.
information requested by these added information (OMB 1117–0003: ARCOS
records is readily and commonly Transaction Reporting—DEA Form 333). ■ 2. Section 1304.22 is amended by
available, and due to the limited DEA believes that the additional revising paragraph (c) to read as follows:
distribution of GHB, the impact on reporting requirements will have no
reporting requirements should be § 1304.22 Records for manufacturers,
impact on the hour or cost burden for distributors, dispensers, researchers,
minimal. respondents as reports are generated importers and exporters.
Executive Order 12866 and submitted electronically. As has * * * * *
been stated previously, due to the risk (c) Records for dispensers and
The Deputy Assistant Administrator management plan established for Xyrem researchers. Each person registered or
further certifies that this regulation has (the FDA-approved drug product authorized to dispense or conduct
been drafted in accordance with the containing GHB) this product has an research with controlled substances
principles of Executive Order 12866, extremely limited distribution potential. shall maintain records with the same
Section 1(b). This action has been Because of the nature of this product’s information required of manufacturers
determined to be a ‘‘significant distribution, DEA anticipates that fewer pursuant to paragraph (a)(2)(i), (ii), (iv),
regulatory action’’ under Executive than five persons will be impacted by (vii), and (ix) of this section. In addition,
Order 12866, and accordingly this rule the requirement to report handling records shall be maintained of the
has been reviewed by the Office of Schedule III GHB products to ARCOS, number of units or volume of such
Management and Budget. and those persons are already filing finished form dispensed, including the
reports with DEA for other controlled name and address of the person to
Executive Order 12988 substances handled. The system whom it was dispensed, the date of
modifications necessary to generate this dispensing, the number of units or
This regulation meets the applicable
report will occur as a normal part of a volume dispensed, and the written or
standards set forth in Sections 3(a) and
registrant’s handling of this product. typewritten name or initials of the
3(b)(2) of Executive Order 12988.
Therefore, DEA is not submitting any individual who dispensed or
Executive Order 13132 changes or amendments to its active administered the substance on behalf of
information collections under the the dispenser. In addition to the
This rulemaking does not preempt or Paperwork Reduction Act of 1995.
modify any provision of State law; nor requirements of this paragraph,
does it impose enforcement Small Business Regulatory Enforcement practitioners dispensing gamma-
responsibilities on any State; nor does it Fairness Act of 1996 hydroxybutyric acid under a
diminish the power of any State to prescription must also comply with
This rulemaking is not a major rule as
enforce its own laws. Accordingly, this § 1304.26.
defined by section 804 of the Small
rulemaking does not have federalism Business Regulatory Enforcement * * * * *
implications warranting the application Fairness Act of 1996. This rule will not ■ 3. Section 1304.26 is added to read as
of Executive Order 13132. result in an annual effect on the follows:

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294 Federal Register / Vol. 70, No. 2 / Tuesday, January 4, 2005 / Rules and Regulations

§ 1304.26 Additional recordkeeping material, compound, mixture or Authority: 21 U.S.C. 802, 827(h), 830,
requirements applicable to drug products preparation containing a quantity of a 871(b) 890.
containing gamma-hydroxybutyric acid. substance having a stimulant effect on
In addition to the recordkeeping ■ 8. Section 1310.03 is amended by
the central nervous system, which revising paragraph (c) to read as follows:
requirements for dispensers and material, compound, mixture or
researchers provided in § 1304.22, preparation is listed in Schedule III or § 1310.03 Persons required to keep
practitioners dispensing gamma- on any narcotic controlled substance records and file reports.
hydroxybutyric acid that is listed in Schedule V), and on gamma- * * * * *
manufactured or distributed in hydroxybutyric acid drug products (c) Each regulated person who
accordance with an application under listed in Schedule III. Additionally, engages in a transaction with a
section 505 of the Federal Food, Drug, reports on manufacturing transactions nonregulated person or who engages in
and Cosmetic Act must maintain and shall include the following psychotropic an export transaction that involves
make available for inspection and controlled substances listed in ephedrine, pseudoephedrine,
copying by the Attorney General, all of Schedules III and IV: phenylpropanolamine, or gamma-
the following information for each * * * * * hydroxybutyric acid, including drug
prescription: products containing these chemicals,
(a) Name of the prescribing PART 1306—PRESCRIPTIONS and uses or attempts to use the Postal
practitioner. Service or any private or commercial
(b) Prescribing practitioner’s Federal ■ 5. The authority citation for part 1306 carrier must file monthly reports of each
and State registration numbers, with the continues to read as follows: such transaction as specified in
expiration dates of these registrations. § 1310.05 of this part.
(c) Verification that the prescribing Authority: 21 U.S.C. 821, 829, 871(b)
practitioner possesses the appropriate unless otherwise noted. Dated: December 22, 2004.
registration to prescribe this controlled William J. Walker,
substance. ■ 6. Section 1306.05 is amended by Deputy Assistant Administrator, Office of
(d) Patient’s name and address. revising paragraph (a) to read as follows: Diversion Control.
(e) Patient’s insurance provider, if § 1306.05 Manner of issuance of [FR Doc. 05–56 Filed 1–3–05; 8:45 am]
available. prescriptions. BILLING CODE 4410–09–P
■ 4. Section 1304.33 is amended by
revising paragraph (c) and the (a) All prescriptions for controlled
introductory text of paragraph (d)(1) to substances shall be dated as of, and DEPARTMENT OF JUSTICE
read as follows: signed on, the day when issued and
shall bear the full name and address of Drug Enforcement Administration
§ 1304.33 Reports to ARCOS. the patient, the drug name, strength,
* * * * * dosage form, quantity prescribed, 21 CFR Part 1310
(c) Persons reporting. For controlled directions for use and the name, address
substances in Schedules I, II, narcotic and registration number of the [Docket No. DEA–137f2]
controlled substances in Schedule III, practitioner. Where a prescription is for
and gamma-hydroxybutyric acid drug gamma-hydroxybutyric acid, the RIN 1117–AA31
product controlled substances in practitioner shall note on the face of the
Schedule III, each person who is prescription the medical need of the Exemption of Chemical Mixtures;
registered to manufacture in bulk or patient for the prescription. A Correction
dosage form, or to package, repackage, practitioner may sign a prescription in
AGENCY: Drug Enforcement
label or relabel, and each person who is the same manner as he would sign a
Administration (DEA), Justice.
registered to distribute, including each check or legal document (e.g., J.H. Smith
or John H. Smith). Where an oral order ACTION: Final rule with request for
person who is registered to reverse
distribute, shall report acquisition/ is not permitted, prescriptions shall be comment; correction.
distribution transactions. In addition to written with ink or indelible pencil or
SUMMARY: This document corrects the
reporting acquisition/distribution typewriter and shall be manually signed
Final Rule with request for comment
transactions, each person who is by the practitioner. The prescriptions
‘‘Exemption of Chemical Mixtures’’
registered to manufacture controlled may be prepared by the secretary or
[Docket No. DEA–137f2, RIN 1117–
substances in bulk or dosage form shall agent for the signature of a practitioner,
AA31] which DEA published in the
report manufacturing transactions on but the prescribing practitioner is
Federal Register on Wednesday,
controlled substances in Schedules I responsible in case the prescription
December 15, 2004 (69 FR 74957). The
and II, each narcotic controlled does not conform in all essential
Final Rule concerned the exemption of
substance listed in Schedules III, IV, respects to the law and regulations. A
certain chemical mixtures containing
and V, gamma-hydroxybutyric acid drug corresponding liability rests upon the
listed chemicals from the provisions of
product controlled substances in pharmacist, including a pharmacist
the Controlled Substances Act.
Schedule III, and on each psychotropic employed by a central fill pharmacy,
who fills a prescription not prepared in DATES: This correction is effective
controlled substance listed in Schedules
the form prescribed by DEA regulations. January 14, 2005.
III and IV as identified in paragraph (d)
of this section. * * * * * FOR FURTHER INFORMATION CONTACT:
(d) Substances covered. (1) Christine A. Sannerud, Ph.D., Chief,
Manufacturing and acquisition/ PART 1310—RECORDS AND Drug and Chemical Evaluation Section,
distribution transaction reports shall REPORTS OF LISTED CHEMICALS Office of Diversion Control, Drug
include data on each controlled AND CERTAIN MACHINES Enforcement Administration,
substance listed in Schedules I and II, Washington, DC 20537, Telephone (202)
on each narcotic controlled substance ■ 7. The authority citation for part 1310 307–7183
listed in Schedule III (but not on any is revised to read as follows: SUPPLEMENTARY INFORMATION:

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