CR 22-033 Rule Text

STATE OF WISCONSIN

CONTROLLED SUBSTANCES BOARD

------------------------------------------------------------------------------------------------------------

IN THE MATTER OF RULE-MAKING   :   ORDER OF THE

PROCEEDINGS BEFORE THE     :   CONTROLLED SUBSTANCES

CONTROLLED SUBSTANCES BOARD   :   BOARD

            :   ADOPTING RULES

          : (CLEARINGHOUSE RULE 22-033)

------------------------------------------------------------------------------------------------------------

ORDER

An order of the Controlled Substances Board to create CSB 2.83 relating to scheduling ten (10) fentanyl related substances.

Analysis prepared by the Department of Safety and Professional Services.

------------------------------------------------------------------------------------------------------------

ANALYSIS

Statutes interpreted: s. 961.16, Stats.

Statutory authority: s. 961.11 (1) and (4), Stats.

Explanation of agency authority:

Section 961.11 (1), Stats. provides that “[t]he controlled substances board shall administer this subchapter and may add substances to or delete or reschedule all substances listed in the schedules in ss. 961.14, 961.16, 961.18, 961.20 and 961.22 pursuant to the rule-making procedures of ch. 227.”

Section 961.11(4), Stats. provides that “[i]f a substance is designated, rescheduled or deleted as a controlled substance under federal law and notice thereof is given to the controlled substances board, the board by affirmative action shall similarly treat the substance under this chapter after the expiration of 30 days from the date of publication in the federal register of a final order designating the substance as a controlled substance or rescheduling or deleting the substance or from the date of issuance of an order of temporary scheduling under 21 USC 811 (h), unless within that 30−day period, the board or an interested party objects to the treatment of the substance. If no objection is made, the board shall promulgate, without making the determinations or findings required by subs. (1), (1m), (1r) and (2) or s. 961.13, 961.15, 961.17, 961.19 or 961.21, a final rule, for which notice of proposed rulemaking is omitted, designating, rescheduling, temporarily scheduling or deleting the substance. If an objection is made the board shall publish notice of receipt of the objection and the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the board shall make a determination with respect to the treatment of the substance as provided in subs. (1), (1m), (1r) and (2) and shall publish its decision, which shall be final unless altered by statute. Upon publication of an objection to the treatment by the board, action by the board under this chapter is stayed until the board promulgates a rule under sub. (2).”

Related statute or rule: s. 961.16, Stats.

Plain language analysis:

The objective of the rule is to schedule ten (10) Fentanyl related substances as a schedule I controlled substances.

The Controlled Substances Board did not receive an objection to similarly treating the ten (10) Fentanyl-related substances listed in schedule I under ch. 961, Stats. within 30 days of the date of publication in the federal register of the final order designating the ten (10) Fentanyl-related substances listed below as controlled substances.

Pursuant to s. 961.11 (4), Stats., the Controlled Substances Board took affirmative action to similarly treat the ten (10) Fentanyl-related substances listed below under ch. 961, Stats. by creating the following:

CSB 2.83 Addition of ten (10) Fentanyl-related substances to schedule I. Section 961.14 (2) (nd) 21., 22., 23., 24., 25., 26., 27., 28., 29., and 30., Stats., is created to read:

961.14 (2) (nd)

21.

N-(1-(2-fluorophenethyl)piperidin-4-yl)-N-(2-fluorophenyl)propionamide (2'-fluoro ortho-fluorofentanyl; 2'-fluoro 2-fluorofentanyl);

22.

N-(1-(4-methylphenethyl)piperidin-4-yl)-N-phenylacetamide (4'-methyl acetyl fentanyl);

23.

N-(1-phenethylpiperidin-4-yl)-N,3-diphenylpropanamide (β'-phenyl fentanyl; beta'-Phenyl fentanyl; 3-phenylpropanoyl fentanyl);

24.

N-phenyl-N-(1-(2-phenylpropyl)piperidin-4-yl)propionamide (β-methyl fentanyl);

25.

N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)butyramide (ortho-fluorobutyryl fentanyl; 2-fluorobutyryl fentanyl);

26.

N-(2-methylphenyl)-N-(1-phenethylpiperidin-4-yl)acetamide (ortho-methyl acetylfentanyl; 2-methyl acetylfentanyl);

27.

2-methoxy-N-(2-methylphenyl)-N-(1-phenethylpiperidin-4-yl)acetamide (ortho-methyl methoxyacetylfentanyl; 2-methyl methoxyacetyl fentanyl);

28.

N-(4-methylphenyl)-N-(1-phenethylpiperidin-4-yl)propionamide (para-methylfentanyl; 4-methylfentanyl);

29.

N-(1-phenethylpiperidin-4-yl)-N-phenylbenzamide (phenyl fentanyl; benzoyl fentanyl); and

30.

N-(1-phenethylpiperidin-4-yl)-N-phenylthiophene-2-carboxamide (thiofuranyl fentanyl; 2-thiofuranyl fentanyl; thiophene fentanyl).

The Affirmative Action order, dated July 9, 2021, took effect on July 19, 2021 to allow for publication in the Administrative Register and expires upon promulgation of a final rule.

Summary of, and comparison with, existing or proposed federal regulation:

On April 27, 2021, the Department of Justice, Drug Enforcement Administration published its final rule in the Federal Register placing ten Fentanyl-related substances into schedule I of the federal Controlled Substances Act. The scheduling action is effective immediately.

Summary of public comments received on statement of scope and a description of how and to what extent those comments and feedback were taken into account in drafting the proposed rule: N/A

Comparison with rules in adjacent states:

Illinois: Illinois has not scheduled the 10 fentanyl related substances listed above as controlled substances.