STATE OF WISCONSIN
CONTROLLED SUBSTANCES BOARD
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IN THE MATTER OF RULE-MAKING : PROPOSED ORDER OF THE
PROCEEDINGS BEFORE THE : CONTROLLED SUBSTANCES BOARD
CONTROLLED SUBSTANCES BOARD : ADOPTING RULES
: (CLEARINGHOUSE RULE )
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PROPOSED ORDER
An order of the Controlled Substances Board to create CSB 2.005, relating to scheduling nine fentanyl-related substances.
Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Statutes interpreted: s. 961.14, 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. 961.14, Stats. Summary of, and comparison with, existing or proposed federal regulation:
On December 7, 2023, the Department of Justice, Drug Enforcement Administration published its temporary amendment and scheduling order in the Federal Register adding the nine fentanyl-related substances listed above to schedule I of the federal Controlled Substances Act. The scheduling action was effective December 7, 2023.
Plain language analysis:
The objective of the proposed rule is to schedule the following nine fentanyl-related substances as a schedule I controlled substance under s. 961.11 (4), Stats: — Meta-fluorofentanyl
— Meta-fluoroisobutyryl fentanyl
— Para-methoxyfuranyl fentanyl
— 3-furanyl fentanyl
— 2’,5’-dimethoxyfentanyl
— Isovaleryl fentanyl
— Ortho-fluorofuranyl fentanyl
— Alpha’-methyl butyryl fentanyl
— Para-methylcyclopropyl fentanyl
The Controlled Substances Board will promulgate a final rule, without making the determinations or findings required by ss. 961.11(1), (1m), (1r) and (2) or s. 961.13 and omitting the notice of proposed rulemaking, listing the above nine fentanyl-related substances as a schedule I controlled substance. Pursuant to s. 961.11(4), Stats., the Controlled Substances Board by affirmative action similarly treats the above nine fentanyl-related substances under chapter 961, Stats. by creating the following: 961.14 (2) (nd) 3m. Alpha’-methyl butyryl fentanyl (2-methyl-N-(1-phenethylpiperidin-4-yl)-N-phenylbutanamide);
10m. 2’,5’-dimethoxyfentanyl (N-(1-(2,5-dimethoxyphenethyl)piperidin-4-yl)-N-phenylpropionamide);
11m. 3-furanyl fentanyl (N-(1-phenethylpiperidin-4-yl)-N-phenylfuran-3-carboxamide);
12e. Isovaleryl fentanyl (3-methyl-N-(1-phenethylpiperidin-4-yl)-N-phenylbutanamide);
12m. Meta-fluorofentanyl (N-(3-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)propionamide);
12s. Meta-fluoroisobutyryl fentanyl (N-(3-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)isobutyramide);
16n. Ortho-fluorofuranyl fentanyl (N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)furan-2-carboxamide);
17g. Para-methoxyfuranyl fentanyl (N-(4-methoxyphenyl)-N-(1-phenethylpiperidin-4-yl)furan-2-carboxamide);
17r. Para-methylcyclopropyl fentanyl (N-(4-methylphenyl)-N-(1-phenethylpiperidin-4-yl)cyclopropanecarboxamide);
The Affirmative Action order, dated January 24, 2024, took effect on February 5, 2024, upon publication in the Administrative Register and expires upon promulgation of a final rule.
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
