Legal Authorities Under the Controlled Substances Act to Combat the Opioid Crisis

Congressional research reportDec 18, 2018

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Legal Authorities Under the Controlled

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R45164

Legal Authorities Under the Controlled Substances Act to Combat the Opioid Crisis

Summary

According to the Centers for Disease Control and Prevention, the annual number of drug

overdose deaths involving prescription opioids (such as hydrocodone, oxycodone, and

methadone) and illicit opioids (such as heroin and nonpharmaceutical fentanyl) has more than

quadrupled since 1999. A November 2017 report issued by the President’s Commission on

Combating Drug Addiction and the Opioid Crisis also observed that “[t]he crisis in opioid

overdose deaths has reached epidemic proportions in the United States ... and currently exceeds

all other drug-related deaths or traffic fatalities.” How the current opioid epidemic happened, and

who may be responsible for fueling it, are complicated questions, though reports suggest that

several parties likely played contributing roles, including pharmaceutical manufacturers and

distributors, doctors, health insurance companies, rogue pharmacies, and drug dealers and addicts.

Many federal departments and agencies are involved in efforts to combat opioid abuse and

addiction, including a law enforcement agency within the U.S. Department of Justice, the Drug

Enforcement Administration (DEA), which is the focus of this report.

The primary federal law governing the manufacture, distribution, and use of prescription and

illicit opioids is the Controlled Substances Act (CSA), a statute that the DEA is principally

responsible for administering and enforcing. The CSA and DEA regulations promulgated

thereunder establish a framework through which the federal government regulates the

manufacture, distribution, importation, exportation, and use of certain substances which have the

potential for abuse or psychological or physical dependence, including opioids. Congress enacted

the CSA in 1970 to facilitate the availability of controlled substances for authorized medical,

scientific, research, and industrial purposes, while also preventing these substances from being

diverted out of legitimate channels for illegal purposes such as drug abuse and drug trafficking

activities. The CSA aims to protect the public’s health and safety from dangers posed by highly

addictive or dangerous controlled substances that are diverted into the illicit market, while also

ensuring that patients have access to pharmaceutical controlled substances for legitimate medical

purposes such as the treatment of pain.

This report describes the current federal legal regime governing opioids and other controlled

substances under the CSA and its implementing regulations, including (1) the classification of

various plants, drugs, and chemicals into one of five schedules based on the substance’s medical

use, potential for abuse, and safety or dependence liability; (2) who must register with the DEA in

order to receive authorization to handle the substances (such as drug manufacturers, wholesale

distributors, doctors, hospitals, pharmacies, and scientific researchers); (3) what obligations

registrants must satisfy in order to maintain a valid registration (such as keeping records of drug

inventories and transactions, submitting reports to the DEA, and providing security measures to

safeguard controlled substances); and (4) the DEA’s administrative, civil, and criminal authorities

for enforcing regulatory compliance with the CSA (such as suspending or revoking a registrant’s

legal authority to handle controlled substances if the DEA Administrator finds that the registrant

has “committed such acts as would render his registration ... inconsistent with the public

interest.”). The report then examines DEA initiatives and actions taken, pursuant to its legal

authorities under the CSA, which specifically target the abuse of opioids. The report concludes by

describing the legislative response to the opioid epidemic, including a summary of the

amendments to the CSA made by legislation enacted by the 115th Congress, the Substance UseDisorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities

Act (P.L. 115-271).

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Legal Authorities Under the Controlled Substances Act to Combat the Opioid Crisis

Contents

Brief Background on the Opioid Epidemic ..................................................................................... 3

Overview of the CSA ...................................................................................................................... 5

Scheduling of Controlled Substances ........................................................................................ 5

Emergency or Temporary Scheduling ................................................................................. 7

Scheduling in Order to Satisfy International Treaty Obligations ........................................ 8

Who Must Register with the DEA?........................................................................................... 8

Exceptions to the Registration Requirement ..................................................................... 10

Regulatory Obligations of Registrants Under the CSA........................................................... 10

Recordkeeping ................................................................................................................... 11

Security Measures .............................................................................................................. 11

Reporting .......................................................................................................................... 12

Quotas ............................................................................................................................... 13

Prescription Requirements ................................................................................................ 13

What Are the Potential Consequences for Violating the CSA? ............................................... 15

State Regulation of Controlled Substances ............................................................................. 17

DEA’s Legal Authorities for Enforcing the CSA .......................................................................... 18

Investigations .......................................................................................................................... 19

Enforcement Actions ............................................................................................................... 20

Letter of Admonition or Informal Hearing ....................................................................... 20

Administrative Proceedings to Deny, Revoke, or Suspend a Registration ....................... 20

Immediate Suspension Orders .......................................................................................... 22

DEA’s Response to the Opioid Abuse Crisis ................................................................................ 24

DEA Actions Against Registrants ........................................................................................... 24

Emergency Scheduling of Illicit Fentanyl ............................................................................... 28

Aggregate Production Quotas for Certain Schedule II Opioids .............................................. 29

Congressional Actions Addressing the Opioid Epidemic .............................................................. 30

Expanding Disposal Options for Unwanted Opioid Medication............................................. 30

Increasing Flexibility With Respect to Medication-Assisted Treatment for Opioid

Addiction.............................................................................................................................. 33

Providing Manufacturers and Distributors Certain ARCOS Data........................................... 35

Adding Considerations for DEA Opioid Quotas ..................................................................... 36

Strengthening Requirements to Detect and Report Suspicious Orders ................................... 36

Other Legislative Proposals That the 116th Congress Could Consider to Amend the CSA........... 37

Contacts

Author Contact Information .......................................................................................................... 39

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Legal Authorities Under the Controlled Substances Act to Combat the Opioid Crisis

he alarming rise in drug overdose deaths involving opioids over the past two decades1

has prompted the federal government to examine the causes of the public health crisis,

identify possible solutions to counteract the problem, and take actions to address the

crisis.2 The primary federal law governing the manufacture, distribution, and use of

prescription and illicit opioids is the Controlled Substances Act (CSA or the act),3 which

is administered and enforced by the Drug Enforcement Administration (DEA) in the U.S.

Department of Justice.4 The CSA provides the legal regime through which the federal government

(1) regulates and facilitates the lawful production, possession, and distribution5 of controlled

substances, including opioids; (2) prevents diversion6 of these substances from legitimate

purposes; and (3) penalizes unauthorized activities involving controlled substances.7

T

The regulatory framework under the CSA relies primarily on a registration system: the act

requires persons who handle controlled substances (such as drug manufacturers, wholesale

distributors, exporters, importers, health care professionals, hospitals, pharmacies, and scientific

researchers) to register with the DEA and comply with the terms and conditions of the

registration.8 Through this registration mechanism, the CSA creates a “closed system” of

distribution9 in which distribution may lawfully occur among registered handlers of controlled

substances, referred to under the act as “registrants.”10 To monitor the amount of particularly

1 Centers for Disease Control and Prevention, Overdose Deaths Involving Opioids, Cocaine, and Psychostimulants—

United States, 2015–2016, 67 MORBIDITY AND MORTALITY WEEKLY REPORT No. 12 (Mar. 30, 2018),

https://www.cdc.gov/mmwr/volumes/67/wr/pdfs/mm6712-H.pdf.

2 See, e.g., THE PRESIDENT’S COMMISSION ON COMBATING DRUG ADDICTION AND THE OPIOID CRISIS: FINAL REPORT

(2017); see also The Drug Enforcement Administration’s Role in Combating the Opioid Epidemic: Hearing Before the

H. Comm. on Energy & Commerce, Subcomm. on Oversight and Investigations, 115th Cong. (2018); Combating the

Opioid Crisis: Prevention and Public Health Solutions: Hearing Before the H. Comm. on Energy & Commerce,

Subcomm. on Health, 115th Cong. (2018); The Opioid Crisis: An Examination of How We Got Here and How We Move

Forward: Hearing Before the S. Comm. on Health, Educ., Labor & Pensions, 115th Cong. (2018); Oversight of the

Ensuring Patient Access and Effective Drug Enforcement Act: Hearing Before the S. Judiciary Comm., 115th Cong.

(2017); The Federal Response to the Opioid Crisis: Hearing Before the S. Comm. on Health, Educ., Labor & Pensions,

115th Cong. (2017).

3 Congress enacted the CSA as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91513, 84 Stat. 1236 (codified as amended at 21 U.S.C. §§ 801-904 (2012)).

4 While the CSA directs the Attorney General to enforce its provisions, the CSA also permits him to delegate such

responsibilities to any other officer or employee of the Department of Justice. 21 U.S.C. § 871(a). Pursuant to 28

C.F.R. § 0.100(b), the Attorney General has assigned much of the authority to implement and enforce the CSA to the

DEA Administrator. Accordingly, the term “DEA Administrator” will be used instead of the term “Attorney General”

with respect to any references in the CSA to the Attorney General for the remainder of this report.

5 The CSA broadly defines “distribution” to include virtually every transfer of possession. 21 U.S.C. § 802(11) (“The

term ‘distribute’ means to deliver (other than by administering or dispensing) a controlled substance or a listed

chemical.”).

6 The DEA has explained that the term “diversion,” used in the context of the CSA, refers to “the redirection of

controlled substances which may have lawful uses into illicit channels.” Drug Enf’t Admin., Controlled Substances

Quotas, 83 Fed. Reg. 32,784 (July 16, 2018).

7 This report focuses only on federal regulation of controlled substances under the Controlled Substances Act and does

not discuss other federal laws that may apply to controlled substance medications, such as the Federal Food, Drug, and

Cosmetic Act, P.L. 75-717, 52 Stat. 1057 (1938) (chiefly enforced by the U.S. Food and Drug Administration), or any

state laws pertaining to medical practices and public health and safety.

8 21 U.S.C. § 822. In addition, the CSA grants the DEA Administrator broad authority to issue rules and regulations

“relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances.... ” Id.

§ 821.

9 Drug Enf’t Admin., Electronic Prescriptions for Controlled Substances, 75 Fed. Reg. 16,236, 16,237 (Mar. 31, 2010).

10 According to 21 C.F.R. § 1300.02(b), the term “registrant” means “any person who is registered [with the DEA]

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dangerous drugs that enters this distribution system,11 the CSA requires the DEA to establish a

quota system that restricts the total amount of certain controlled substances that may be annually

produced or manufactured.12

In order to minimize theft and diversion and to help the DEA monitor the flow of controlled

substances in the United States,13 the CSA and its implementing regulations subject registrants to

strict requirements regarding recordkeeping, maintaining the security of their controlled

substance inventories, and reporting certain information to the DEA.14 The “closed system” of

distribution, along with registrant compliance with the CSA’s regulatory requirements, helps to

ensure that a particular controlled substance is always accounted for by a DEA-registered entity,15

from its creation until it is dispensed16 to a patient17 or is destroyed.18 Note that patients are not

required to register with the DEA19 because the controlled substances in their possession “are no

longer part of the closed system of distribution and are no longer subject to DEA’s system of

corresponding accountability.”20

A registrant’s failure to meet its obligations under the CSA can result in a controlled substance

being diverted from legitimate channels. For example, “[d]istributors that blindly sell

pharmaceutical controlled substances to rogue pharmacies, and practitioners21 who issue

prescriptions without a legitimate medical purpose are diverting.”22 Such diversion can contribute

to drug abuse and addiction,23 which, in turn, increase the number of overdose deaths and

pursuant to [21 U.S.C. §§ 823 or 958].”

11 Improving Management of the Controlled Substances Quota Process, Hearing Before the S. Caucus on Int’l

Narcotics Control, 114th Cong. 2 (2015) (statement of Joseph T. Rannazzisi, DEA).

12 21 U.S.C. § 826(a).

13 Improving Predictability and Transparency in DEA and FDA Regulation: Hearing Before the H. Comm. on Energy

& Commerce, Subcomm. on Health, 113th Congress 1 (2014) (statement of Joseph T. Rannazzisi, DEA).

14 See, e.g., 21 C.F.R. § 1304.11(a) (“Each inventory shall contain a complete and accurate record of all controlled

substances on hand on the date the inventory is taken.... ”); id. § 1301.71(a) (“All applicants and registrants shall

provide effective controls to guard against theft and diversion of controlled substances.”); 21 U.S.C. § 832 (“Each

registrant shall—design and operate a system to identify suspicious orders for the registrant … and upon discovering a

suspicious order or series of orders, notify the Administrator of the Drug Enforcement Administration….”).

15 Improving Predictability and Transparency in DEA and FDA Regulation: Hearing Before the H. Comm. on Energy

& Commerce, Subcomm. on Health, 113th Congress 1 (2014) (statement of Joseph T. Rannazzisi, DEA).

16 The CSA defines “dispense” to mean “to deliver a controlled substance to an ultimate user or research subject by, or

pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and

the packaging, labeling or compounding necessary to prepare the substance for such delivery.” 21 U.S.C. § 802 (10).

17 The CSA refers to an individual patient as an “ultimate user,” meaning “a person who has lawfully obtained, and

who possesses, a controlled substance for his own use or for the use of a member of his household or for an animal

owned by him or by a member of his household.” Id. § 802(27).

18 Drug Enf’t Admin., Definition and Registration of Reverse Distributors, 70 Fed. Reg. 22,591 (May 2, 2005).

19 21 U.S.C. § 822(c)(3).

20 DEA, Definition and Registration of Reverse Distributors, 68 Fed. Reg. 41,222, 41,226 (proposed July 11, 2003).

21 The CSA defines the term “practitioner” to mean “a physician, dentist, veterinarian, scientific investigator,

pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction

in which he practices or does research, to distribute, dispense, conduct research with respect to, administer, or use in

teaching or chemical analysis, a controlled substance in the course of professional practice or research.” 21 U.S.C. §

802(21).

22 Improving Predictability and Transparency in DEA and FDA Regulation: Hearing Before the H. Comm. on Energy

& Commerce, Subcomm. on Health, 113th Congress 2 (2014) (statement of Joseph T. Rannazzisi, DEA).

23 Id.

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emergency room visits, two defining features of the current opioid epidemic.24 In addition, some

users who abuse prescription opioids may also start using cheaper and potentially easier to obtain

illicit opioids such as heroin, which provide similar euphoric effects.25

The CSA provides civil and criminal penalties for any unlawful26 manufacture, distribution,

importation, exportation, or possession of controlled substances.27 Such violations may include

(1) “regulatory” offenses committed by registrants who do not adhere to their responsibilities

under the CSA, thereby increasing the risk of diversion, and (2) illicit trafficking or possession

crimes that occur outside the “closed system” of authorized controlled substance distribution that

primarily involve nonregistrants.28

This report first provides a brief overview of the opioid epidemic and then describes in greater

detail the current federal legal regime governing opioids and other controlled substances under

the CSA and its implementing regulations. After that, the report examines DEA actions taken that

are specifically targeted at addressing opioid abuse and describes recently enacted laws amending

the CSA that impact the opioid regulatory system, including the Substance Use-Disorder

Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (P.L.

115-271), enacted by the 115th Congress. The report concludes by discussing other legislative

options that the 116th Congress could consider to amend the CSA further to address the opioid

epidemic.

Brief Background on the Opioid Epidemic29

The Centers for Disease Control and Prevention (CDC) has declared that the nation “is in the

midst of an opioid overdose epidemic,” citing statistics that show the number of overdose deaths

involving opioids (including prescription opioids and illegal opioids such as heroin and

24 America’s Addiction to Opioids: Heroin and Prescription Drug Abuse, Hearing Before the S. Caucus on Int’l

Narcotics Control, 113th Cong. 3-4 (2014) (statement of Dr. Nora D. Volkow, Director, Nat’l Inst. on Drug Abuse); see

also Masters Pharm., Inc. v. DEA, 861 F.3d 206, 211 (D.C. Cir. 2017)(“Breakthroughs in the development of

prescription opioid painkillers have vastly increased their popularity. But that popularity has taken a toll. Opioids are

heavily addictive and often lethal in high doses.”).

25 Id. at 4, 8; see also Nat’l Inst. on Drug Abuse, Prescription Opioid Use is a Risk Factor for Heroin Use,

https://www.drugabuse.gov/publications/research-reports/relationship-between-prescription-drug-heroin-abuse/

prescription-opioid-use-risk-factor-heroin-use (last visited Apr. 3, 2018).

26 “Unlawful” in this context means any actions involving controlled substances that are not authorized under the CSA.

See Drug Enf’t Admin., Electronic Prescriptions for Controlled Substances, 75 Fed. Reg. 16,236, 16,237 (Mar. 31,

2010) (“The Controlled Substances Act is unique among criminal laws in that it stipulates acts pertaining to controlled

substances that are permissible. That is, if the CSA does not explicitly permit an action pertaining to a controlled

substance, then by its lack of explicit permissibility the act is prohibited.”).

27 21 U.S.C. §§ 841-865.

28 This report is focused primarily on the CSA’s noncriminal regulatory provisions pertaining to activities permitted by

the CSA. For a listing of the CSA’s criminal provisions regarding unauthorized trafficking, possession, or other

prohibited activities involving controlled substances, see CRS Report RL30722, Drug Offenses: Maximum Fines and

Terms of Imprisonment for Violation of the Federal Controlled Substances Act and Related Laws, by (name redacted)

.

29 For more information about the opioid epidemic, see CRS Report R44987, The Opioid Epidemic and Federal Efforts

to Address It: Frequently Asked Questions, by (name redacted) and (name redacted)

; CRS Report R45279, Buprenorphine

and the Opioid Crisis: A Primer for Congress, by (name redacted) ; CRS In Focus IF11041, The Opioid Epidemic

and the U.S. Labor Market, by (name redacted) and (name redacted)

; CRS In Focus IF10219, Opioid Treatment

Programs and Related Federal Regulations, by (name redacted) ; CRS Legal Sidebar LSB10226, State and Local

Governments Pursue Judicial Solutions to the Opioid Epidemic, by (name redacted) ; and CRS Report R45218, The

Opioid Epidemic and the Food and Drug Administration: Legal Authorities and Recent Agency Action, by (name redact

ed)

.

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nonpharmaceutical fentanyl) has more than quadrupled since 1999, and on average 115

Americans now die each day from an opioid overdose.30 Former Attorney General Jeff Sessions

referred to the opioid epidemic as “the deadliest drug crisis in American history,”31 and President

Trump in October 2017 directed the Secretary of Health and Human Services to declare the crisis

a national public health emergency.32

The CSA defines the term “opioid” to mean “any drug or other substance having an addictionforming or addiction-sustaining liability similar to morphine or being capable of conversion into a

drug having such addiction-forming or addiction-sustaining liability.”33 Opioids can include

prescription pain relief drugs34 such as hydrocodone, oxycodone, codeine, morphine, and

fentanyl,35 as well as illegal drugs such as heroin and nonpharmaceutical (illicitly produced)

fentanyl.36 While doctors may prescribe U.S. Food and Drug Administration (FDA)-approved

opioids to patients to alleviate their pain, particularly following surgery or injury or for serious

health conditions such as cancer, some individuals may choose to abuse opioids for nonmedical

reasons (such as to experience feelings of relaxation or to get “high”) or by taking them in a

higher dosage or through different means than prescribed by their doctor (such as by snorting or

injecting the substance into a vein).37 The CDC has estimated that more than 40% of all opioid

overdose deaths in the United States in 2016 involved an FDA-approved prescription opioid.38

How the opioid epidemic occurred, and who is responsible for fueling it, are complicated

questions, though reports have suggested that many parties are likely involved to some extent,

including pharmaceutical manufacturers39 and distributors,40 doctors,41 health insurance

30 Centers for Disease Control and Prevention, Opioid Overdose: Understanding the Epidemic, https://www.cdc.gov/

drugoverdose/epidemic/index.html (last visited Apr. 3, 2018).

31 Press Release, U.S. Dep’t of Just., Off. of Pub. Aff., Department of Justice Awards Nearly $59 Million to Combat

Opioid Epidemic, Fund Drug Courts (Sept. 22, 2017), https://www.justice.gov/opa/pr/department-justice-awardsnearly-59-million-combat-opioid-epidemic-fund-drug-courts.

32 U.S. DEP’T OF HEALTH & HUM. SRVS., DETERMINATION THAT A PUBLIC HEALTH EMERGENCY EXISTS (Oct. 2017),

https://www.hhs.gov/sites/default/files/opioid%20PHE%20Declaration-no-sig.pdf; see also Brianna Ehley, Trump

Administration Extending Opioid Emergency Declaration, POLITICO (Jan. 19, 2018, 8:14 PM),

https://www.politico.com/story/2018/01/19/trump-opioids-emergency-declaration-extension-300590. For information

about what the declaration of a public health emergency does to provide the Secretary of Health and Human Services

with additional authorities and resources to address the emergency, see U.S. Dep’t of Health & Hum. Srvs., Public

Health Emergency Declaration, https://www.phe.gov/Preparedness/legal/Pages/phedeclaration.aspx (last visited Apr.

11, 2018).

33 21 U.S.C. § 802(18).

34 Prescription drugs are medications that may be marketed in the United States only after the U.S. Food and Drug

Administration has approved their safety and effectiveness. For more information on this topic, see CRS Report

R41983, How FDA Approves Drugs and Regulates Their Safety and Effectiveness, by (name redacted) and (name

redacted)

.

35 NAT’L INST. ON DRUG ABUSE, DRUG FACTS: PRESCRIPTION OPIOIDS 1 (Jan. 2018),

https://d14rmgtrwzf5a.cloudfront.net/sites/default/files/drugfacts-prescriptionopioids.pdf.

36 Nat’l Inst. on Drug Abuse, Opioids, https://www.drugabuse.gov/drugs-abuse/opioids (last visited Apr. 11, 2018).

37

NAT’L INST. ON DRUG ABUSE, DRUG FACTS: PRESCRIPTION OPIOIDS 1-2 (Jan. 2018).

38 Centers for Disease Control and Prevention, Opioid Overdose: Prescription Opioid Overdose Data,

https://www.cdc.gov/drugoverdose/data/overdose.html (last visited Apr. 3, 2018).

39 Alana Semuels, Are Pharmaceutical Companies to Blame for the Opioid Epidemic?, THE ATLANTIC (June 2, 2017),

https://www.theatlantic.com/business/archive/2017/06/lawsuit-pharmaceutical-companies-opioids/529020/.

40 David Meyer & Geoffrey Smith, DEA Whistleblower Blasts Drug Distributors, Congress Over Opioid “Collusion,”

FORTUNE (Oct. 16, 2017), http://fortune.com/2017/10/16/rannazzisi-dea-drug-distributors-opioids/.

41 Mandy Oaklander, How Doctors Are Fueling the Opioid Epidemic, TIME (Feb. 17, 2017), http://time.com/4675325/

doctors-opioid-epidemic/.

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companies,42 rogue pharmacies,43 and drug dealers and addicts.44 The National Institute on Drug

Abuse has described the origins of the opioid overdose crisis as follows:

In the late 1990s, pharmaceutical companies reassured the medical community that patients

would not become addicted to prescription opioid pain relievers, and healthcare providers

began to prescribe them at greater rates. This subsequently led to widespread diversion and

misuse of these medications before it became clear that these medications could indeed be

highly addictive.45

The President’s Commission on Combating Drug Addiction and the Opioid Crisis46 also cited

excessive prescribing of opioids since 1999 as a significant contributor to the proliferation of

opioids.47 The commission identified several other factors that have influenced the current opioid

crisis, including large scale production and distribution of addictive opioids, widespread

availability of illicit heroin and fentanyl, unethical physician prescribing practices and rogue

pharmacies that fill those illegitimate prescriptions, and a lack of education for medical

professionals and patients in prescribing and using opioids, respectively.48

Overview of the CSA

This section provides a general overview of the CSA’s closed system of distribution that regulates

opioids and other types of controlled substances, including the schedules in which the substances

are placed and the regulatory requirements and obligations that registrants must satisfy, such as

(1) registering with the DEA, (2) keeping accurate and complete records of controlled substance

inventories and transactions, (3) implementing security measures to safeguard controlled

substances from theft or diversion, (4) reporting certain information to the DEA (including

suspicious controlled substance orders), (5) meeting production quotas, and (6) prescribing

controlled substances only for legitimate medical purposes.

Scheduling of Controlled Substances

The CSA places various plants, drugs, and chemicals (such as narcotics, stimulants, depressants,

hallucinogens, and anabolic steroids) into one of five schedules based on the substance’s medical

42 Katie Thomas & Charles Ornstein, Amid Opioid Crisis, Insurers Restrict Pricey, Less Addictive Painkillers, N.Y.

TIMES (Sept. 17, 2017), https://www.nytimes.com/2017/09/17/health/opioid-painkillers-insurance-companies.html.

43 Press Release, Drug Enf’t Admin. Pub. Aff., DEA Large-scale Operation Targets 26 Pharmacies in Three States in

Attack Against Illicit Opioid Abuse and Trafficking (Nov. 9, 2017), https://www.dea.gov/divisions/hq/2017/

hq120517.shtml.

44 Nathaniel Popper, Opioid Dealers Embrace the Dark Web to Send Deadly Drugs by Mail, N.Y. TIMES (June 10,

2017), https://www.nytimes.com/2017/06/10/business/dealbook/opioid-dark-web-drug-overdose.html.

45 Nat’l Inst. on Drug Abuse, Opioid Overdose Crisis, https://www.drugabuse.gov/drugs-abuse/opioids/opioidoverdose-crisis (last visited Apr. 3, 2018); see also Fentanyl: The Next Wave of the Opioid Crisis: Hearing Before the

H. Comm. on Energy & Commerce, Subcomm. on Oversight and Investigations, 115th Cong. 5 (2017) (statement of Dr.

Wilson Compton, Deputy Dir., Nat’l Inst. on Drug Abuse).

46 Established by Exec. Order No. 13,784, 82 Fed. Reg. 16,283 (Apr. 3, 2017).

47 THE PRESIDENT’S COMMISSION ON COMBATING DRUG ADDICTION AND THE OPIOID CRISIS: FINAL REPORT 19-23

(2017), https://www.whitehouse.gov/ondcp/presidents-commission/; see also Substance Abuse & Mental Health Srvs.

Admin., Prescription Drug Misuse and Abuse, https://www.samhsa.gov/topics/prescription-drug-misuse-abuse (last

visited Apr. 4, 2018) (“The problem of prescription drug abuse and overdose is complex, involving insufficient

oversight to curb inappropriate prescribing, insurance and pharmacy benefit policies, and a belief by many people that

prescription drugs are not dangerous.”).

48 Id.

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use, potential for abuse, and safety or dependence liability.49 Opioids are types of narcotic drugs.50

To restrict access to chemicals used in the illicit manufacture of certain controlled substances, the

CSA also regulates specified “listed chemicals.”51 Furthermore, the CSA regulates controlled

substance “analogues,” which are substances that are not controlled but have chemical structures

substantially similar to those of controlled substances found in Schedule I or II.52

The order of the five schedules in which controlled substances are categorized reflects substances

that are progressively less dangerous and addictive.53 Schedule I contains substances, such as the

hallucinogen lysergic acid diethylamide (LSD) and the illicit opioid heroin, that have “a high

potential for abuse” with “no currently accepted medical use in treatment in the United States”

and that cannot safely be dispensed under a prescription.54 Schedule I substances may be used

only for bona fide, federal government-approved research studies.55 In contrast, schedules II, III,

IV, and V include substances that have recognized medical uses, such as prescription opioids like

oxycodone, codeine, and morphine, and may be manufactured, distributed, prescribed, dispensed,

and possessed in accordance with the CSA.56

The CSA provides an administrative mechanism for substances to be controlled (added to a

schedule);57 decontrolled (removed from the scheduling framework altogether); and rescheduled

or transferred from one schedule to another.58 Federal rulemaking proceedings to add, delete, or

change the schedule of a drug or substance may be initiated by the DEA, the U.S. Department of

Health and Human Services (HHS), or by petition by any interested person.59 The DEA

Administrator must request from HHS a scientific and medical evaluation and recommendation as

to whether the drug or substance should be controlled or removed from control.60 The DEA

Administrator then must evaluate all of the relevant data and make a final determination as to

whether the drug or substance should be controlled or removed entirely from control.61

In making such determination, the DEA Administrator is required to consider statutory factors

such as the drug’s actual or relative potential for abuse; scientific evidence of its pharmacological

49 21 U.S.C. § 812(b).

50 21 C.F.R. § 1300.01 (definition of “narcotic drug”).

51 21 U.S.C. §§ 830; 802 (33-35). Listed chemicals are divided into two categories: List I and List II. While both

categories of chemicals can be used to manufacture controlled substances illicitly, List I chemicals are more

strenuously regulated under the CSA than List II chemicals because List I chemicals are “important to the manufacture

of the controlled substances.” Id. § 802(34).

52 Id. § 802(32)(A) and (B).

53 When Congress enacted the CSA in 1970, it established “initial schedules” of controlled substances, id. § 812(c), but

specified that the schedules “shall be updated” periodically, id. § 812(a). The current list of controlled substances

within their designated schedules may be found in 21 C.F.R. § 1308.11-15.

54 21 U.S.C. § 812(b).

55 Id. § 823(f).

56 Id. § 812(b).

57

The CSA defines the term “control” to mean “to add a drug or other substance, or immediate precursor, to a schedule

under [§ 812 of the act], whether by transfer from another schedule or otherwise.” Id. § 802(5).

58 Id. § 811 specifies the administrative scheduling procedures.

59 Id. § 811(a).

60 Id. § 811(b). The medical and scientific evaluations are binding on the DEA with respect to such matters and form a

part of the scheduling decision. The recommendation on the initial scheduling of a substance is binding only to the

extent that if HHS recommends that the drug or substance not be controlled, the DEA may not add it to its schedules.

Id.

61 Id.

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effect; the current state of scientific knowledge regarding the drug or substance; the risk to the

public health from the drug; and whether the substance is an immediate precursor62 of a substance

already controlled under the act.63 After the DEA Administrator makes this determination, he

must make specific findings concerning the drug or substance that dictate the schedule in which

the drug or substance will be placed.64

For example, in 2009, the DEA requested from HHS an evaluation and recommendation

concerning whether to reschedule hydrocodone combination products (HCPs) such as Vicodin®

from Schedule III to Schedule II.65 After evaluating the scientific and medical evidence showing,

among other things, significant diversion of HCPs and the health and safety risks created by

people who abuse HCPs, HHS then recommended to DEA that HCPs should be reclassified to the

more restrictive Schedule II,66 In 2014, DEA published a final rule that administratively

reschedules HCPs from Schedule III to Schedule II, thereby subjecting anyone who

manufactures, distributes, or dispenses HCPs to the more stringent regulatory requirements (and

administrative, civil, and criminal sanctions) that are applicable to Schedule II controlled

substances.67

Congress may also change the scheduling status of a drug or substance at any time through

enactment of legislation. For example, Congress passed the Synthetic Drug Abuse Prevention Act

of 201268 that permanently added two synthetic cathinones (central nervous system stimulants) to

Schedule I of the CSA, along with cannabimimetic substances (commonly referred to as synthetic

marijuana).69

Emergency or Temporary Scheduling

The CSA authorizes the DEA Administrator to place a drug or substance that is not currently

controlled, on a temporary basis, into Schedule I when he finds such scheduling “necessary to

avoid an imminent hazard to the public safety.”70 The DEA Administrator may not issue a

temporary scheduling order until 30 days after he notifies both the public and the HHS Secretary

of his intent to issue the temporary scheduling order and of his justification for issuing the order.71

Furthermore, the DEA Administrator must consider the HHS Secretary’s comments regarding the

62 The CSA defines an “immediate precursor” to mean a substance that (1) the DEA Administrator has determined to

be and has “designated as being the principal compound used, or produced primarily for use, in the manufacture of a

controlled substance;” (2) “is an immediate chemical intermediary used or likely to be used in the manufacture of such

controlled substance;” and (3) is necessary to control “to prevent, curtail, or limit the manufacture of such controlled

substance.” 21 U.S.C. § 802 (definition of “immediate precursor”).

63 See id. § 811(c)(1)-(8) (complete listing of factors the DEA Administrator must consider when determining control

or removal of substances from schedules).

64 See id. § 812(b) (“[A] drug or other substance may not be placed in any schedule unless the findings required for

such schedule are made with respect to such drug or other substance.”).

65 Drug Enf’t Admin., Schedules of Controlled Substances: Rescheduling of Hydrocodone Combination Products From

Schedule III to Schedule II, 79 Fed. Reg. 49,661, 49,662 (Aug. 22, 2014).

66 Id. at 49.663.

67 Id. at 49,680.

68 P.L. 112-144, 126 Stat. 1130 (2012).

69 For more information on this law and this topic generally, see CRS Report R42066, Synthetic Drugs: Overview and

Issues for Congress, by (name redacted) and (name redacted)

.

70 21 U.S.C. § 811(h)(1).

71 Id.

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temporary order.72 A drug or substance may be temporarily scheduled for two years and possibly

longer—up to an additional year—if formal scheduling procedures have been initiated.73 As

discussed below in the report, DEA has exercised its emergency scheduling authority eight times

to control seventeen substances structurally related to the opioid fentanyl by placing them

temporarily in Schedule I.74

Scheduling in Order to Satisfy International Treaty Obligations

Treaty obligations may require the DEA Administrator to control or reschedule a substance if

existing controls under federal law are less stringent than those required by a treaty. 75 The United

States is a party to three United Nations drug control treaties that impose certain international

obligations relating to the manufacture, distribution, use, and possession of controlled substances,

including the Single Convention on Narcotic Drugs of 1961,76 which was designed to establish

effective control over international and domestic traffic in narcotics, coca leaf, cocaine, and

marijuana.77 The United States is also party to the Convention on Psychotropic Substances of

1971,78 which was designed to establish similar control over stimulants, depressants, and

hallucinogens. Finally, the United States is a party to the 1988 Convention against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances,79 which requires parties, among other things, to

control precursor chemicals used in the illicit manufacture of drugs and to take measures to

combat money laundering crimes related to drug trafficking.

Who Must Register with the DEA?

The CSA requires any person who seeks to manufacture, distribute, dispense, or conduct research

involving any controlled substance (such as drug manufacturers, wholesale distributors,

physicians, hospitals, pharmacies, and scientific researchers) to obtain a registration from the

72 Id. § 811(h)(4).

73 Id. § 811(h)(2).

74 Drug Enf’t Admin., Schedules of Controlled Substances: Temporary Placement of Fentanyl-Related Substances in

Schedule I, 83 Fed. Reg. 5,188, 5,189 (Feb. 6, 2018).

75 The procedures for scheduling actions to meet obligations under international treaties are found at id. § 811(d).

76 Single Convention on Narcotic Drugs, Mar. 30, 1961, 18 U.S.T. 1407.

77 For example, in response to petitions from the public to transfer marijuana from Schedule I of the CSA to Schedule

II, the DEA explained how the United States obligations under the international drug control treaties constrain the

agency’s choice of schedules with respect to marijuana:

The DEA Administrator is obligated under [21 U.S.C.] section 811(d) to control marijuana in the

schedule that he deems most appropriate to carry out the U.S. obligations under the Single

Convention. It has been established in prior marijuana rescheduling proceedings that placement of

marijuana in either schedule I or schedule II of the CSA is ‘‘necessary as well as sufficient to

satisfy our international obligations’’ under the Single Convention. NORML v. DEA, 559 F.2d

735, 751 (D.C. Cir. 1977). As the United States Court of Appeals for the DC Circuit has stated,

‘‘several requirements imposed by the Single Convention would not be met if cannabis and

cannabis resin were placed in CSA schedule III, IV, or V.’’ Id. Therefore, in accordance with

section 811(d)(1), DEA must place marijuana in either schedule I or schedule II.

Drug Enf’t Admin., Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53,687, 53,689

(Aug. 12, 2016).

78 Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543.

79 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Dec. 20, 1988, S. TREATY DOC.

No. 101-4 (1989).

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DEA,80 unless they are exempt.81 Registrations specify the extent to which the DEA has

authorized registrants to manufacture, possess, distribute, or dispense controlled substances.82 The

DEA currently regulates more than 1.73 million registrants.83 The CSA authorizes the DEA

Administrator to charge reasonable fees relating to the registration and control of the

manufacturing, distribution, and dispensing of controlled substances under the act.84

The CSA directs the DEA Administrator to register an applicant if the Administrator determines

that, among other things, it would be consistent with the “public interest” to do so.85 The CSA

provides several criteria that the DEA Administrator must consider in assessing whether

registering an applicant is consistent with the “public interest.” The criteria differ depending on

the substance involved and whether the applicant is a manufacturer, distributor, or practitioner,

but include general factors such as those relating to public health and safety and compliance with

state and local laws.86 Manufacturers and distributors of controlled substances must obtain a

registration from the DEA annually, and those who dispense controlled substances must obtain

registrations that may not be issued for less than one year or more than three years.87 The

registration of an individual terminates when the person dies, ceases legal existence, or

discontinues business or professional practice.88 A registration cannot be transferred to someone

else unless the Administrator provides his express, written consent for such a transfer to occur.89

In some instances, applicants must apply for several separate registrations in order to comply with

the CSA. For example, separate registrations are generally required for each principal place of

business or professional practice where controlled substances are manufactured, distributed,

80 21 U.S.C. § 822(a).

81 Id. § 822(c) (agents of registrants, common carriers, and patients who lawfully possess controlled substances); 21

C.F.R. §§ 1301.23-1301.24 (certain military personnel, and law enforcement officials). These exemptions are discussed

in further detail in the next section.

82 21 U.S.C. § 822(b).

83

U.S. Dep’t of Just., FY 2019 Budget and Performance Summary – Drug Enforcement Administration (DEA) 2,

https://www.justice.gov/jmd/page/file/1033151/download (last visited Mar. 22, 2018).

84 21 U.S.C. § 821; see also 21 C.F.R. § 1301.13(e)(1) (chart detailing specific types of registrations and respective

fees). The DEA is required to set these fees at a level that ensures the recovery of the full cost of conducting its

controlled substance and chemical diversion control activities. 21 U.S.C. § 886a(1)(C).

85 Id. § 823(a). With respect to manufacturers of controlled substances in schedules I or II, the statute also requires the

DEA Administrator to determine whether such registration is consistent with “United States obligations under

international treaties, conventions, or protocols in effect on” May 1, 1971. Id.

86 Id. §§ 823(a)-(f).

87 Id. § 822(a). Registrants can seek to renew their registrations by submitting a renewal application to the DEA. U.S.

DEP’T OF JUST., DEA, RENEWAL APPLICATION FOR REGISTRATION UNDER CONTROLLED SUBSTANCES ACT OF 1970,

https://apps.deadiversion.usdoj.gov/webforms/jsp/regapps/common/renewalAppLogin.jsp (last visited Mar. 21, 2018).

In the renewal process, registrants must report any criminal activity they have engaged in and any other changes to their

professional or legal status that could impact their ability to handle controlled substances. U.S. DEP’T OF JUST., DEA

FORM 224A, RENEWAL APPLICATION FOR REGISTRATION, § 4, https://www.reginfo.gov/public/do/DownloadDocument?

objectID=9770701 (last visited Mar. 21, 2018). For example, a registrant must notify the DEA of any criminal

convictions against the registrant in connection with controlled substances and any suspension, revocation, restriction,

or denial of the registrant’s state license or registration relating to controlled substances. Id. See also U.S. GOV’T

ACCOUNTABILITY OFF., GAO-16-310, DEA SHOULD TAKE ADDITIONAL ACTIONS TO REDUCE RISKS IN MONITORING THE

CONTINUED ELIGIBILITY OF ITS REGISTRANTS 22 (2016) (“If the registrant does not self-report any liabilities and there

are no changes to the information contained in the registrant’s record (such as changes to the registrant’s name, address,

or state license number), then the renewal is automatically approved without further checks against state licensure

websites.”).

88 21 C.F.R. § 1301.52(a).

89 Id. § 1301.52(b).

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imported, exported, or dispensed.90 For example, a physician who is regularly engaged in

dispensing controlled substances at one location must register to dispense controlled substances at

other locations if he chooses to dispense controlled substances at these other locations.91

Exceptions to the Registration Requirement

The CSA allows for exceptions and also exempts certain individuals from some or all of its

regulatory requirements. For example, individuals exempted from registration requirements

include, among others, officers or employees of the DEA, officers of the U.S. Customs Service,

offers or employees of the FDA, and any other federal officers who are authorized to possess,

import, or export controlled substances in the course of their official duties.92 Officers or

employees of any state, or political subdivision of a state, who are engaged in enforcement of

state or local laws relating to controlled substances, are also exempt from registering with the

DEA.93 A person who has lawfully obtained, and who possesses, a controlled substance for his

own legitimate medical use (a patient) is also not required to register.94

In addition, only those actually engaged in activities relating to manufacturing, distributing, and

dispensing controlled substances are required to obtain registration, but related or affiliated

persons who are not engaged in such activities are not required to register. For example, a

stockholder or parent corporation of a corporation that manufactures controlled substances is not

required to obtain registration, nor are employees of a registered manufacturer, distributor, or

dispenser.95

The DEA Administrator may, by regulation, waive the registration requirement for certain

manufacturers, distributors, or dispensers, if he finds it consistent with the public health and

safety.96

Regulatory Obligations of Registrants Under the CSA

The CSA imposes specific obligations on registrants in an effort to reduce the potential diversion

of controlled substances out of legitimate distribution channels.97 In particular, the CSA imposes

legal duties relating to (1) recordkeeping by registrants, (2) measures ensuring the secure storage

of controlled substances handled by registrants, (3) reporting certain information to the DEA, (4)

90 21 U.S.C. § 822(e)(1); 21 C.F.R. § 1301.12.

91 See United States v. Clinical Leasing Serv., Inc., 925 F.2d 120, 122 (5 th Cir. 1991) (explaining that the “plain

language” of 21 C.F.R. § 1301.12 requires that “a physician must be separately registered at each physical location in

which he administers controlled substances as a regular part of his professional practice.”).

92 21 C.F.R. § 1301.24(a)(1).

93 Id. § 1301.24(a)(2). For additional registration exceptions, see id. §§ 1301.22-1301.23.

94 21 U.S.C. § 822(c).

95 21 C.F.R. § 1301.11(a); 21 U.S.C. § 822(c).

96 21 U.S.C. § 822(d). For example, in November 2014, the DEA published a rule that waived the requirement of

registration for certain individuals who directly administer a particular diagnostic pharmaceutical that contains a

radioactive component. Drug Enf’t Admin., Exemption From Registration for Persons Authorized Under U.S. Nuclear

Regulatory Commission or Agreement State Medical Use Licenses or Permits and Administering the Drug Product

DaTscan™, 79 Fed. Reg. 70,085 (Nov. 25, 2014). The DEA later removed this exemption after it had administratively

removed the radioactive component from the schedules of controlled substances. Drug Enf’t Admin., Removal of

Exemption From Registration for Persons Authorized Under U.S. Nuclear Regulatory Commission or Agreement, 81

Fed. Reg. 9,763 (Feb. 26, 2016).

97 Responding to the Prescription Drug Abuse Epidemic: Hearing Before the S. Caucus on Int’l Narcotics Control,

112th Cong. 4-5 (2012) (statement of Joseph T. Rannazzisi, DEA).

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prescribing and dispensing controlled substance medications by registered doctors and

pharmacists, and (5) the quantity of controlled substance that may be produced by manufacturers.

Recordkeeping

All registrants are required by the CSA to maintain complete and accurate inventories and records

of all regulated transactions involving controlled substances and listed chemicals.98 For example,

a registrant must make a complete and accurate record of each substance manufactured, received,

sold, delivered, or otherwise disposed of by the registrant.99 Furthermore, inventories must be

available for inspection by the DEA for at least two years.100 The CSA declares that it is unlawful

for any person to “refuse or negligently fail to make, keep, or furnish any record, report,

notification, declaration, order or order form, statement, invoice, or information required” by the

CSA.101 It is also unlawful for any person knowingly or intentionally “to furnish false or

fraudulent material information in, or omit any material information from, any application, report,

record, or other document required to be made, kept, or filed” under the CSA.102

In certain circumstances, the CSA recordkeeping provisions do not apply. For example, the

provisions do not apply to the prescribing or administering of a controlled substance listed in

Schedules II-V by practitioners acting in the lawful course of their professional practice unless

such substance is prescribed or administered in the course of maintenance or detoxification

treatment of an individual.103 As discussed below, this has implications for the drugs typically

used in the treatment of opioid addiction, two of which are controlled substances, while the other

is not.

Security Measures

For the purposes of ensuring the secure storage and distribution of controlled substances and

listed chemicals, all applicants for DEA registration and registrants must generally “provide

effective controls and procedures to guard against theft and diversion of controlled substances.”104

DEA regulations also detail specific security requirements for different types of applicants and

registrants. For example, nonpractitioners (i.e., manufacturers, distributors, and narcotic treatment

programs) are required to store Schedule I and II substances in electronically monitored safes,

steel cabinets, or vaults that meet or exceed certain specifications.105 Licensed practitioners must

store controlled substances in a “securely locked, substantially constructed cabinet”106 and must

notify the DEA of the theft or significant loss of any controlled substances within one business

98 21 U.S.C. § 827(a).

99 Id. § 827(a)(3); 21 C.F.R. § 1304.21(a).

100 21 U.S.C. § 827(b)(3); 21 C.F.R. § 1304.04(a).

101 21 U.S.C. § 842(a)(5).

102 Id. § 843(a)(4).

103 Id. §§ 827(c)(1)(A), 827(c)(1)(B). Thus, the prescribing or administering of methadone for the treatment of narcotic

addiction must be in conformity with the CSA’s recordkeeping provisions.

104 21 C.F.R. § 1301.71 (general security requirements and standards for measuring compliance); see also 21 U.S.C. §

823 (requiring the DEA Administrator, when determining whether a registration is consistent with the public interest, to

consider if the applicant or registrant has in place “effective controls against diversion.”).

105 See 21 C.F.R. §§ 1301.72(a)(1)(i)-(iii) (specifications required for safes and steel cabinets storing Schedule I and II

drugs or substances); see also id. §§ 1301.72(a)(2) and 1301.72(a)(3)(i)-(vi) (specifications required for vaults storing

Schedule I and II drugs or substances).

106 See id. § 1301.75 (physical security controls for practitioners).

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day of discovering such loss or theft.107 Furthermore, all practitioners are prohibited from hiring

employees who have been convicted of a drug-related felony or who have had a DEA registration

denied or revoked.108 DEA regulations recommend that nonpractitioners carefully screen

individuals before hiring them as employees, to ensure that job applicants do not have convictions

for crimes or have not engaged in unauthorized use of controlled substances.109

Reporting

The CSA requires manufacturers, distributors, and pharmacies to report periodically to the DEA

every sale, delivery, disposal, or dispensing of any controlled substance.110 Registered pharmacies

that are authorized to dispense controlled substances by means of the internet must also report to

the DEA Administrator the type and total quantity of each controlled substance that the pharmacy

has dispensed each month via the internet.111 In addition, the CSA requires manufacturers,

distributors, and dispensers of controlled substances (1) to design and operate a system (that is

compliant with applicable federal and state privacy laws) that will alert the registrant of

suspicious orders of controlled substances, and (2) upon discovering a suspicious order or series

of orders, to inform the DEA Administrator and the Special Agent in Charge of the DEA Field

Division Office.112 The CSA defines “suspicious orders” as those that may include, but are not

limited to, orders of unusual size, orders deviating substantially from a normal pattern, and orders

of unusual frequency.113

Manufacturers and distributors of Schedule I and II drugs must file reports114 with the DEA

through the Automated Reports and Consolidated Orders System (ARCOS),115 which is an

automated drug reporting system that allows the agency to “monitor[] the flow of DEA controlled

substances from their point of manufacture through commercial distribution channels to point of

sale or distribution at the dispensing/retail level.... ”116 Certain narcotics listed in Schedules III

and IV are also covered by the ARCOS reporting requirements.117 According to the DEA, U.S.

attorneys and DEA investigators may use ARCOS controlled substances transaction information

“to strengthen criminal cases in the courts.”118

107 Id. § 1301.76(b).

108 Id. § 1301.76(a).

109 Id. § 1301.90.

110 21 U.S.C. § 827(d).

111 Id. § 827(d)(2). However, pharmacies are exempt from such reporting requirement if they do not exceed in a given

month either of two thresholds: (1) 100 or more prescriptions dispensed, or (2) 5,000 or more dosage units of all

controlled substances combined. Id.

112 Id. § 832, as added by P.L. 115-271, § 3292(b).

113 21 U.S.C. § 802(57), as added by P.L. 115-271, § 3292(a).

114 21 C.F.R. §§ 1304.31 and 1304.32.

115 Id. § 1304.33.

116 Drug Enf’t Admin., Automation of Reports and Consolidated Orders System (ARCOS),

https://www.deadiversion.usdoj.gov/arcos/index.html (last visited Apr. 4, 2018).

117 21 C.F.R. § 1304.33(d).

118 Drug Enf’t Admin., Automation of Reports and Consolidated Orders System (ARCOS),

https://www.deadiversion.usdoj.gov/arcos/index.html (last visited Apr. 4, 2018).

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Quotas

The CSA includes a production quota system that requires the DEA to establish the total amount

of each basic class of Schedule I and II controlled substances and certain listed chemicals119 that

may be manufactured in a given calendar year, in order “to provide for the estimated medical,

scientific, research, and industrial needs of the United States, for lawful export requirements, and

for the establishment and maintenance of reserve stocks.”120 The DEA establishes this quota,

referred to as the aggregate production quota (APQ), for approximately 200 Schedule I and II

controlled substances.121 The DEA assigns individual production quotas to controlled substance

manufacturers that prevent the APQ from being exceeded.122 The CSA allows a registrant to apply

for an increase in his individual manufacturing quota if it is necessary “to meet his estimated

disposal, inventory, and other requirements during the remainder of that year.”123

By regulation, the DEA Administrator must consider the following factors in making his APQ

determinations: (1) the total disposal of the controlled substance during the current year and two

preceding years; (2) trends in the national rate of new disposal of the controlled substance; (3)

total inventories (actual or estimated) of “the class and all substances manufactured from the class

[of controlled substances listed in Schedule I or II];” (4) projected demand for a particular

controlled substance; (5) the extent of any diversion of the controlled substance in the class; (6)

relevant information obtained from the Department of Health and Human Services and from the

states; and (7) other relevant factors affecting the use of controlled substances including changes

in the currently accepted medical use of a controlled substance, the economic and physical

availability of the raw materials necessary to produce a controlled substance, and recent

unforeseen emergencies (i.e., natural disasters).124

A registrant may not manufacture a Schedule I or II controlled substance or a specified listed

chemical that is (1) not expressly authorized by his registration and by the individual quota

assigned to him by the DEA, or (2) in excess of that quota.125

Prescription Requirements

The CSA provides specific requirements that practitioners and pharmacists must observe when

prescribing and dispensing controlled substances in Schedules II-V to patients for legitimate

medical purposes.126 As noted, controlled substances classified as Schedule I drugs are deemed to

have no accepted medical purpose in the United States, and thus they may only be used for

research,127 and may not be prescribed or dispensed to patients.128 DEA regulations hold both the

119 These listed chemicals are ephedrine, pseudoephedrine, and phenylpropanolamine, which are ingredients commonly

found in over-the-counter cold medicines that may be used in the production of methamphetamine and amphetamine.

Drug Enf’t Admin., CMEA (Combat Methamphetamine Epidemic Act) Questions & Answers,

https://www.deadiversion.usdoj.gov/meth/q_a_cmea.htm (last visited Apr. 10, 2018).

120 21 U.S.C. § 826(a)(1).

121 Improving Management of the Controlled Substances Quota Process, Hearing Before the S. Caucus on Int’l

Narcotics Control, 114th Cong. 3 (2015) (statement of Joseph T. Rannazzisi, DEA).

122 21 U.S.C. § 826(b).

123 See id. § 826(e).

124 21 C.F.R. §§ 1303.11(b)(1)-(7).

125 21 U.S.C. §§ 842(b).

126 Id. § 829.

127 Id. § 823(f).

128 Id. § 812(b)(1).

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prescribing practitioner and the pharmacist who fills the prescription responsible for ensuring that

the controlled substance is properly prescribed and dispensed.129 A DEA manual prepared for

pharmacists to help them understand their obligations under the CSA explains that

A pharmacist is required to exercise sound professional judgment when making a

determination about the legitimacy of a controlled substance prescription. Such a

determination is made before the prescription is dispensed. The law does not require a

pharmacist to dispense a prescription of doubtful, questionable, or suspicious origin. To

the contrary, the pharmacist who deliberately ignores a questionable prescription when

there is reason to believe it was not issued for a legitimate medical purpose may be

prosecuted along with the issuing practitioner, for knowingly and intentionally distributing

controlled substances.130

Practitioners

Under the CSA, only licensed medical practitioners are authorized to prescribe controlled

substances listed in Schedules II-V to patients.131 A prescription for a controlled substance must

be “issued for a legitimate medical purpose by an individual practitioner acting in the usual

course of his professional practice.”132 A pharmacist may not dispense to a patient a Schedule II

controlled substance without a written prescription133 from a practitioner, except in certain cases

where the practitioner administers the controlled substance directly to the patient.134 However, in

the case of an “emergency situation,”135 a practitioner may orally authorize a pharmacist to fill a

prescription for a Schedule II controlled substance.136 Controlled substances in Schedules III-V

may be dispensed by a pharmacy pursuant to either a written or oral prescription, including a

facsimile of a written prescription.137 These substances may also be administered or dispensed

directly by the practitioner in the course of his professional practice without a prescription.138

Practitioners are permitted to sign and transmit electronic prescriptions for controlled substances,

129 21 C.F.R. § 1306.04(a) (“The responsibility for the proper prescribing and dispensing of controlled substances is

upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the

prescription.”).

130 DRUG ENF’T ADMIN., PHARMACIST’S MANUAL 30 (2010). See also Drug Enf’t Admin., A Pharmacist’s Guide to

Prescription Fraud, https://www.deadiversion.usdoj.gov/pubs/brochures/pharmguide.htm (last visited Dec. 12, 2018)

(“The dispensing pharmacist must maintain constant vigilance against forged or altered prescriptions. The law holds the

pharmacist responsible for knowingly dispensing a prescription that was not issued in the usual course of professional

treatment.”).

131 See 21 C.F.R. § 1306.03 (persons entitled to issue prescriptions).

132 Id. § 1306.04(a)(1); United States v. Moore, 423 U.S. 122, 124 (1975) (holding that “registered physicians can be

prosecuted” under 21 U.S.C. § 841 “when their activities fall outside the usual course of professional practice.”).

133 21 U.S.C. § 829(a); see also 21 C.F.R. § 1306.05 (manner of issuance of prescriptions for Schedule II controlled

substances).

134 21 U.S.C. § 829(a); see also 21 C.F.R. § 1306.11(b) (authorizing individual practitioners to administer or dispense

controlled substances directly to patients without prescription).

135 21 C.F.R. § 290.10 defines an “emergency situation” as a situation in which the prescribing practitioner finds that

(1) “immediate administration of the controlled substance is necessary” to treat the patient properly, (2) “no appropriate

alternative treatment is available,” including the use of a drug that is not a Schedule II controlled substance, and (3) “it

is not reasonably possible for the prescribing practitioner to provide a written prescription to be presented to the person

dispensing the substance, prior to the dispensing.”

136 21 U.S.C. § 829(a); 21 C.F.R. § 1306.11(d).

137 21 U.S.C. § 829(b). If the prescription is made orally, the pharmacist must promptly reduce to writing all of the

information required to be in a prescription under 21 C.F.R. § 1306.05, except for the signature of the practitioner. Id. §

1306.21(a).

138 21 U.S.C. § 829(b); 21 C.F.R. § 1306.21(b).

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assuming that the electronic prescription complies with detailed requirements set forth in the

applicable federal regulations.139

Pharmacists

Pharmacists may partially fill a prescription for Schedule II substances under certain

circumstances, such as pursuant to a request by the patient or the practitioner who wrote the

prescription.140 Pharmacists are prohibited from refilling prescriptions for Schedule II

substances.141 A pharmacist may fill or refill prescriptions for controlled substances in Schedules

III and IV, however, up to five times within six months after the date on which the prescription

was issued, unless the prescribing practitioner authorizes a renewal of the prescription.142 A

pharmacy may process electronic prescriptions for controlled substances if the pharmacy uses a

computer application that complies with several requirements specified in the applicable federal

regulations.143 A controlled substance that is a prescription drug may not be delivered, distributed,

or dispensed by means of the internet without a “valid prescription,”144 which the CSA defines as

a prescription that is issued for a legitimate medical purpose in the usual course of professional

practice by a practitioner who has conducted at least one medical evaluation of the patient in the

physical presence of the practitioner.145

What Are the Potential Consequences for Violating the CSA?

The CSA contains a variety of criminal sanctions for illicit possession, manufacture, and

distribution of controlled substances that occurs outside the closed system of distribution.146 For

example, the CSA outlaws “simple possession” of a controlled substance147 (referring to a person

knowingly or intentionally possessing a controlled substance) “unless such substance was

obtained directly, or pursuant to” a valid prescription issued by a medical practitioner, “or except

as otherwise authorized by” the CSA.148 The CSA also prohibits any person from knowingly or

139 Drug Enf’t Admin., Electronic Prescriptions for Controlled Substances, 75 Fed. Reg. 16,235, 16,307 (Mar. 31,

2010).

140 21 U.S.C. § 829(f).

141 Id. § 829(a) (“No prescription for a controlled substance in schedule II may be refilled.”).

142 Id. 829(b); 21 C.F.R. § 1306.22(a).

143 21 C.F.R. § 1311.205. The requirements include providing the pharmacy with the ability to sign digitally and

archive the controlled substance prescriptions and allowing the pharmacy to limit employee access for annotating,

altering, or deleting controlled substance prescription information. Id.

144 21 U.S.C. § 829(e).

145 Id.

146 Many of these criminal penalties appear in 21 U.S.C. § 841, which provides that “[e]xcept as authorized by” the

CSA, “it shall be unlawful for any person knowingly or intentionally” to commit the unlawful acts specified in §

841(a).

147

Generally speaking, the CSA’s simple possession statute is used to prosecute those found in possession of quantities

of controlled substances that are consistent with “personal use” amounts and when the evidence suggests that the

possession is for the purpose of personal use, rather than for resale or distribution. See United States v. Mack, 343 F.3d

929, 934 (8th Cir. 2003) (“We frequently rely on drug quantity as evidence of defendants’ intended purpose for

disposition of their drugs, i.e. personal use or sale.”).

148 21 U.S.C. § 844(a). With the exception of simple possession of flunitrazepam (commonly used as a “date rape”

drug), a first-time simple possession offense is a federal misdemeanor punishable by a maximum term of imprisonment

of 1 year. (Simple possession of flunitrazepam is punishable by a term of imprisonment of up to 3 years). Anyone who

commits a federal simple possession offense after a single prior conviction under federal or state drug laws is subject to

a mandatory minimum sentence of 15 days and up to 2 years in prison; those who have multiple prior drug offense

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intentionally acquiring or obtaining possession of a controlled substance by misrepresentation,

fraud, forgery, deception, or subterfuge.149 It is unlawful for any person knowingly or

intentionally to “traffic” in controlled substances; illegal drug trafficking150 generally refers to

distributing or dispensing, or to possessing with intent to distribute or dispense, a controlled

substance, unless the particular activity is authorized by law.151 The CSA’s criminal penalties for

trafficking in controlled substances vary depending on whether the individual is a first-time

offender or a repeat offender, the type of substance involved, and the quantity of the type of

substance involved.152 For example, a federal drug trafficking offense committed by a first-time

offender involving a Schedule II substance such as codeine is punishable by a term of

imprisonment of up to 20 years and a fine of up to $1,000,000.153 For a second offense, the fine

increases to $2,000,000 and the maximum imprisonment term increases to 30 years.154

The focus of this report, however, is on the CSA penalty provisions specifically applicable to

persons registered with the DEA. The CSA sets forth certain “regulatory” offenses involving

listed chemicals,155 failure to comply with CSA requirements and obligations that registrants must

satisfy as a condition of registration,156 and other prohibited acts by registrants who manufacture,

distribute and dispense controlled substances.157

For example, a registrant authorized to distribute or dispense any controlled substance is

prohibited from distributing, dispensing, or manufacturing controlled substances in a manner that

is not authorized by his particular registration.158 As noted above, registrants may not refuse or

negligently fail to maintain accurate records of controlled substances, and may not refuse to

convictions face a mandatory minimum sentence of 90 days and up to 3 years in prison. Id.

149 Id. § 843(a)(3). A violation of this may result in a term of imprisonment of not more than four years or a fine of up

to $250,000, or both; second offenses involving this section increase the maximum imprisonment term to eight years.

Id. § 843(d)(1).

150 The CSA and its implementing regulations do not define the term “traffic” or “trafficking,” though the CSA does

expressly use the term “drug traffickers” in one provision, 21 U.S.C. § 862, and the term “traffic” in three other

sections, id. §§ 801, 801a, 873. The U.S. Sentencing Guidelines, which greatly influence the sentences that federal

judges impose on those convicted of federal crimes, defines a “drug trafficking offense” as “an offense under federal,

state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell a

controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance)

with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 2L1.2, Application Notes (2). For more

information about the Sentencing Guidelines, see CRS Report R41696, How the Federal Sentencing Guidelines Work:

An Overview, by (name redacted)

.

151 21 U.S.C. § 841(a)(1).

152 For a listing of the CSA’s criminal provisions regarding unauthorized trafficking, possession, or other prohibited

activities involving controlled substances, see CRS Report RL30722, Drug Offenses: Maximum Fines and Terms of

Imprisonment for Violation of the Federal Controlled Substances Act and Related Laws, by (name redacted)

.

153 21 U.S.C. § 841(b)(1)(C). These penalties apply only if no death or serious bodily injury results from the use of such

unlawfully trafficked substance. If such health consequences occur, however, the authorized penalty is a mandatory

minimum sentence of 20 years and up to life in prison. Id.

154

Id. If death or serious bodily injury results from the use of such substance that has been trafficked by a repeat

offender, the authorized penalty is a mandatory minimum sentence of life in prison. Id.

155 Id. § 841(c); (e)-(f).

156 Id. §§ 842, 843.

157 Id. § 843.

158 Id. § 842(a)(2). As noted above, registrations specify the extent to which the DEA has authorized registrants to

manufacture, possess, distribute, or dispense controlled substances. Thus, for example, a pharmacist is authorized to

dispense controlled substances to individuals only pursuant to a valid prescription issued by a DEA-licensed

practitioner and may not dispense such substances without that prescription.

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furnish such records when required to do so by law enforcement officials159 (such as the

requirement that registrants report to the DEA any “suspicious orders of controlled

substances).”160 It is unlawful for registrants to prohibit law enforcement officials from entering

their premises for inspections authorized by the CSA.161 Similarly, practitioners and pharmacists

may not dispense or distribute a controlled substance drug in violation of the CSA’s statutory

prescription requirements.162

The CSA also proscribes certain acts committed by a registrant related to the manufacture and

distribution of controlled substances and listed chemicals. Registrants may not knowingly or

intentionally (1) distribute Schedule I and II substances without a valid order form;163 (2) use an

invalid registration number during the course of handling or acquiring controlled substances;164

(3) furnish false or fraudulent material information in a record or report required by the act;165 or

(4) present false or fraudulent identification when receiving a listed chemical.166 Registrants who

violate the aforementioned provisions may be subject to injunctive or declarative actions filed by

the Attorney General in federal district court in addition to the general penalties described in the

next paragraph.167 Manufacturers may also not produce Schedule I or II controlled substances or

specified listed chemicals that are not expressly authorized by their registration or in excess of the

individual production quotas assigned to them by the DEA.168

Registrants who fail to adhere to the CSA’s regulatory requirements or who engage in certain

prohibited acts may face administrative consequences, civil and criminal fines, and even the

possibility of imprisonment.169 The CSA provides that violations of its regulatory requirements

generally do not constitute a crime and that “imposition of a civil penalty ... shall not give rise to

any disability or legal disadvantage based on conviction for a criminal offense,”170 unless the

violation was committed knowingly, in which case the CSA authorizes imprisonment of up to one

or two years.171

State Regulation of Controlled Substances

In addition to federal oversight of controlled substances and registrants who handle them,

Congress has permitted state governments to regulate the use of controlled substances under their

own state controlled substances acts.172 The U.S. Supreme Court has stated that the CSA

159 Id. § 842(a)(5).

160 Id. § 832, as added by P.L. 115-271, § 3292(b).

161 21 U.S.C. § 842(a)(6).

162 Id. § 842(a)(1).

163 Id. § 843(a)(1).

164 Id. § 843(a)(2).

165 Id. § 843(a)(4)(A).

166 Id. § 843(a)(4)(B).

167 Id. § 843(f).

168 Id. §§ 842(b).

169 Id. § 842(c) (providing penalties for committing prohibited acts set forth in id. § 842(a)); Id. § 843(d) (penalties for

committing prohibited acts set forth in id. § 843(a)).

170 Id. § 842(c)(3).

171 Id. § 842(c)(2).

172 Id. § 903 (“No provision of this title shall be construed as indicating an intent on the part of the Congress to occupy

the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same

subject matter which would otherwise be within the authority of the State.... ”).

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“manifests no intent to regulate the practice of medicine generally” and has observed that its

“structure and operation ... presume and rely upon a functioning medical profession regulated

under the States’ police powers”173 that may be used “to protect the health, safety and welfare of

their citizens.”174 For example, all states have prescription drug monitoring programs (PDMPs)

that maintain statewide electronic databases of prescription controlled substances dispensed to

patients within their jurisdictions; such information may be used by those working in law

enforcement, professional licensing bodies, and health care to identify patterns of prescribing,

dispensing, or receiving controlled substances that could indicate abuse or diversion.175 States

may also subject certain controlled substance medications to stricter regulation than the CSA

requires. For example, the states of Oregon176 and Mississippi177 have passed laws that require

anyone to obtain a prescription for drugs containing pseudoephedrine (a nasal decongestant

commonly found in over-the-counter cold, allergy, and sinus medications), which is an important

ingredient in producing illicit methamphetamine,178 whereas the substance is regulated as a listed

chemical under the CSA that does not require a prescription to dispense.179

The operation of several provisions of the CSA depends on state laws and state regulatory bodies.

For example, if a physician wants to obtain a DEA registration to dispense controlled substance

medications, he must first be “authorized to dispense ... controlled substances under the laws of

the State in which he practices.”180 In addition, the DEA Administrator must be satisfied that

issuing the applicant a registration would be “[]consistent with the public interest,” a

determination that requires the DEA Administrator to consider several statutory factors, including

the “recommendation of the appropriate State licensing board or professional disciplinary

authority”; the applicant’s previous convictions for federal or state controlled substances

offenses; and the applicant’s “[c]ompliance with applicable State, Federal, or local laws relating

to controlled substances.”181 Despite the latitude that Congress has given to states to regulate

controlled substances, however, the CSA nevertheless generally preempts, or overrides, state laws

regarding controlled substances when “there is a positive conflict between” a CSA provision and

“that State law so that the two cannot consistently stand together.”182

DEA’s Legal Authorities for Enforcing the CSA

The DEA’s Office of Diversion Control is responsible for preventing, detecting, and investigating

violations of the CSA involving controlled pharmaceuticals183 while also “ensuring an adequate

173 Gonzales v. Oregon, 546 U.S. 243, 270 (2006).

174 Gonzales v. Raich, 545 U.S. 1, 66 (2005) (O’Connor, J., dissenting).

175 For more information about PDMPs, see CRS Report R42593, Prescription Drug Monitoring Programs, by (name re

dacted), (name redacted), and (name redacted) .

176 Or. Rev. Stat. Ann. § 475.973 (2018) (scheduling pseudoephedrine as a Schedule III substance under Oregon law).

177 Miss. Code Ann. § 41-29-117(d) (2017) (scheduling pseudoephedrine as a Schedule III substance under Mississippi

law).

178 Drug Enf’t Admin., Implementation of the Methamphetamine Production Prevention Act of 2008, 76 Fed. Reg.

74,696 (Dec. 1, 2011).

179 21 U.S.C. § 830.

180 Id. § 823(f).

181 Id.

182 Id. § 903.

183 Id. §§ 878(a), 880.

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and uninterrupted supply for legitimate medical, commercial, and scientific needs.”184 The Office

of Diversion Control also manages the regulation of registrants, promulgates regulations

concerning the handling of controlled substances, and establishes controlled substance production

quotas.185 The Assistant Attorney General for the DOJ’s Criminal Division conducts, handles, or

supervises all criminal and civil litigation to enforce the CSA.186 Several federal courts have held

that the CSA does not contain an express or implied cause of action provision under which private

parties or state,187 local, or tribal governments may sue registrants for noncompliance with their

CSA obligations,188 noting instead that the CSA expressly authorizes only the Attorney General

and the U.S. Department of Justice to enforce federal controlled substances laws.189

Investigations

The DEA can conduct a variety of investigations to monitor and ensure registrant compliance

with the CSA and its implementing regulations.190 As mentioned earlier, registrants may not

prevent law enforcement officials from entering their premises for any inspections authorized by

the CSA.191 The three types of investigations that the DEA may undertake can be classified as

regulatory, complaint, and criminal.192 Regulatory investigations can include scheduled

inspections of registrants, usually every two, three, or five years, although such inspections

generally are directed at manufacturers, wholesale distributors, and importers/exporters rather

than physicians and pharmacies (who receive such oversight from state regulators).193 The DEA

184 Drug Enf’t Admin., DEA Programs: Diversion Control / Prescription Drug Abuse, https://www.dea.gov/ops/

diversion.shtml (last visited Mar. 26, 2018).

185 U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-471, MORE DEA INFORMATION ABOUT REGISTRANTS’ CONTROLLED

SUBSTANCES ROLES COULD IMPROVE THEIR UNDERSTANDING AND HELP ENSURE ACCESS 10 (2015).

186 28 C.F.R. § 0.55(c).

187 The CSA does, however, include a limited provision authorizing a state to bring a civil action in federal court on

behalf of its residents to enforce CSA provisions relating to internet pharmacies and unlawful dispensing of controlled

substances by means of the internet. 21 U.S.C. § 882(c).

188 See, e.g., McKesson Corp. v. Hembree, No. 17-CV-323-TCK-FHM, 2018 WL 340042, at *5 (N.D. Okla. Jan. 9,

2018) (“The CSA does not provide a private right of action. Instead, it delegates the power of enforcement of federal

drug policy to the federal government.”) (citations omitted); Smith v. Hickenlooper, 164 F. Supp. 3d 1286, 1292 (D.

Colo. 2016), aff’d sub nom. Safe Streets All. v. Hickenlooper, 859 F.3d 865 (10th Cir. 2017) (“[T]here is nothing in the

CSA which expressly permits private enforcement of the Act’s provisions. I also find ... that the CSA implicitly

precludes private enforcement, and that Plaintiffs may not, by invoking the court’s equitable powers, circumvent

Congress’s exclusion of private enforcement.”) (quotations and citations omitted); Shmatko v. Arizona CVS Stores

LLC, No. CV-14-01076-PHX-DGC, 2014 WL 3809092, at *2 (D. Ariz. Aug. 1, 2014) (“Federal law unequivocally

holds ... that the ... CSA do[es] not create private rights of action that can give rise to a federal question.”); Schneller ex

rel. Schneller v. Crozer Chester Med. Ctr., 387 F. App’x 289, 293 (3d Cir. 2010) (“The Comprehensive Drug Abuse

Prevention and Control Act is a statute enforceable only by the Attorney General and, by delegation, the Department of

Justice.”); Bowling v. Haas, No. CIV.A. 3:07-032-KKC, 2010 WL 3825467, at *3 (E.D. Ky. Sept. 23, 2010)

([“[C]ourts have uniformly held that the right to enforce the provisions of the CSA ... is possessed exclusively by the

Attorney General ... and that no right of action, either expressed or implied, exists in favor of a private litigant.”); Ringo

v. Lombardi, No. 09-4095-CV-C-NKL, 2010 WL 3310240, at *2 (W.D. Mo. Aug. 19, 2010) (“Consideration of the

text of the CSA in its entirety indicates that Congress did not expressly provide a private right of action and did not

intend to imply a private right of action.”).

189 21 U.S.C. §§ 871(a), (b); 883.

190 Id. § 822(f); 21 C.F.R. § 1301.31.

191 21 U.S.C. § 842(a)(6).

192 See U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-471, MORE DEA INFORMATION ABOUT REGISTRANTS’ CONTROLLED

SUBSTANCES ROLES COULD IMPROVE THEIR UNDERSTANDING AND HELP ENSURE ACCESS 11-12 (2015).

193 Id.

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may initiate complaint investigations after it has received a tip about potential diversion by the

registrant or if the DEA has identified any unusual drug transactions involving the registrant.194

Finally, the DEA may conduct criminal investigations regarding potential criminal activities

involving diversion of controlled substances.195 Criminal investigations can be directed at either

registrants or nonregistrants, such as an individual suspected of stealing drugs from a pharmacy

or one who is trafficking in unlawfully obtained controlled substances.196 Following an

investigation of a registrant that reveals violations of the CSA and its implementing regulations,

the DEA can take certain enforcement actions, as discussed in the following section.

Enforcement Actions

The DEA has discretion197 to initiate enforcement actions to seek a variety of administrative,

civil, and criminal penalties against a registrant who is not in compliance with the CSA,

depending on the severity of the offense and taking into consideration factors such as whether the

registrant has previously violated a CSA regulatory requirement.198 This section focuses on the

administrative actions that the DEA may take against a registrant or an applicant for registration.

Letter of Admonition or Informal Hearing

A noncompliant registrant could face several types of corrective actions. For example, the DEA

can issue a warning letter referred to as a Letter of Admonition (LOA) to a registrant suspected of

conduct inconsistent with his obligations under the CSA and its implementing regulations.199 The

DEA can also hold an Informal Hearing (IH) concerning the registrant; either administrative

action “provide[s] registrants an opportunity to recognize and acknowledge their infractions, and

immediately correct them.”200

Administrative Proceedings to Deny, Revoke, or Suspend a Registration

The DEA Administrator has the authority to deny, revoke, or suspend registrations under certain

circumstances.201 However, before the DEA Administrator can take such an action, the agency

must generally provide the applicant or registrant with notice and an opportunity to demonstrate

why the registration should not be denied, revoked, or suspended.202 This notice is referred to as

194 Id. at 12.

195 Id.

196 Id.

197 See Improving Predictability and Transparency in DEA and FDA Regulation: Hearing Before the H. Comm. on

Energy & Commerce, Subcomm. on Health, 113th Congress 6 (2014) (statement of Joseph T. Rannazzisi, DEA) (“The

decision to take administrative, civil, and/or criminal action against a DEA registrant rests with the DEA and the

prosecuting U.S. Attorneys.”).

198 U.S. GOV’T ACCOUNTABILITY OFF., GAO-15-471, MORE DEA INFORMATION ABOUT REGISTRANTS’ CONTROLLED

SUBSTANCES ROLES COULD IMPROVE THEIR UNDERSTANDING AND HELP ENSURE ACCESS 12-13 (2015)

199 Improving Predictability and Transparency in DEA and FDA Regulation: Hearing Before the H. Comm. on Energy

& Commerce, Subcomm. on Health, 113th Congress 6 (2014) (statement of Joseph T. Rannazzisi, DEA).

200 Id.

201 21 U.S.C. § 824(a).

202 Id. § 824(c). 21 U.S.C. § 824(a) states in pertinent part: “A registration pursuant to section 823 of this title to

manufacture, distribute, or dispense a controlled substance or a list I chemical may be suspended or revoked by the

[Administrator] upon a finding that the registrant—

(1) has materially falsified any application filed pursuant to or required by this subchapter or subchapter II of this

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an Order to Show Cause or OTSC.203 Such an order provides the basis for the proposed denial,

revocation, or suspension (including an identification of the laws or regulations that the applicant

or registrant is alleged to have violated)204 and also notifies the applicant or registrant of the

opportunity to submit to the DEA a corrective action plan (CAP).205 The OTSC instructs the

applicant or registrant to appear at a hearing before a DEA Administrative Law Judge (ALJ) that

must be conducted in accordance with the Administrative Procedure Act (APA).206 If the

registrant submits a CAP, the DEA Administrator is required to determine “whether denial,

revocation, or suspension proceedings should be discontinued.”207

After examining the evidence and arguments submitted by the parties, the ALJ is required to

submit a report to the DEA Administrator that explains his recommended ruling, findings of fact,

conclusions of law, and decision regarding the proposed denial, revocation, or suspension.208 “As

soon as practicable after” receiving the ALJ’s record and report,209 the DEA Administrator is

required to publish in the Federal Register a final order in the proceeding that adopts, modifies,

or rejects the ALJ’s recommended decision.210 The CSA also provides that if the DEA

Administrator suspends or revokes an existing registration, all controlled substances owned or

possessed by the registrant may “be placed under seal ... until the time for taking an appeal has

elapsed or until all appeals have been concluded.... ”211 Once a revocation order becomes final

chapter;

(2) has been convicted of a felony under this subchapter or subchapter II of this chapter or any other law of the

United States, or of any State, relating to any substance defined in this subchapter as a controlled substance or a

list I chemical;

(3) has had his State license or registration suspended, revoked, or denied by competent State authority and is no

longer authorized by State law to engage in the manufacturing, distribution, or dispensing of controlled substances

or list I chemicals or has had the suspension, revocation, or denial recommended by competent State authority;

(4) has committed such acts as would render his registration under section 823 of this title inconsistent with the

public interest as determined under such section; or

(5) has been excluded (or directed to be excluded) from participation in a program pursuant to section 1320a—

7(a) of [the Social Security Act, which excludes certain individuals and entities from participation in Medicare and

State healthcare programs].... ”

203 Id. § 824(c)(1).

204 Id. § 824(c)(2)(A); 21 C.F.R. § 1301.37(c).

205 21 U.S.C. § 824(c)(2)(C). Generally, a CAP is a document that describes corrective actions that the registrant or

applicant has taken or proposes to take to address any CSA compliance issues identified by the DEA in the OTSC.

Oversight of the Ensuring Patient Access and Effective Drug Enforcement Act: Hearing Before the S. Judiciary Comm.,

115th Cong. 7-8 (2017) (statement of Demetra Ashley, DEA).

206 21 U.S.C. § 824(c)(4) (requiring that the proceedings be conducted in accordance with “subchapter II of chapter 5 of

title 5, United States Code”). The standard of proof used in these administrative proceedings is “preponderance of the

evidence.” See, e.g., Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980) (“The use of the

‘preponderance of evidence’ standard is the traditional standard in civil and administrative proceedings. It is the one

contemplated by the APA, 5 U. S. C. § 556 (d).”); Collins Sec. Corp. v. SEC, 562 F.2d 820, 823 (D.C. Cir. 1977) (“The

traditional standard of proof in a civil or administrative proceeding is the preponderance standard.... ”).

207

21 U.S.C. § 824(c)(3).

208 21 C.F.R. § 1316.65.

209 Id. § 1316.67.

210 John J. Mulrooney, II & Andrew J. Hull, Drug Diversion Administrative Revocation and Application Hearings for

Medical and Pharmacy Practitioners: A Primer for Navigating Murky, Drug-Infested Waters, 78 ALB. L. REV. 327,

394 (2014/2015). In issuing this final order, the DEA Administrator should consider the ALJ’s recommended decision

and factual findings, see Morall v. DEA, 412 F.3d 165, 179 (D.C. Cir. 2005) (explaining that although the “DEA is the

ultimate fact finder, the agency’s decision is vulnerable when it does not take the ALJ’s findings into consideration.”).

211 21 U.S.C. § 824(f).

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(meaning all judicial appeals have been exhausted), these controlled substances “shall be forfeited

to the United States” and “[a]ll right, title, and interest in such controlled substances ... shall vest

in the United States.... ”212

Immediate Suspension Orders

Simultaneously with the institution of administrative proceedings to revoke or suspend a

registration (or at any time after the DEA Administrator issues an OTSC notifying the registrant

that the DEA is taking action to revoke or suspend a registration),213 the DEA Administrator may

exercise emergency power to suspend immediately any existing registration for a limited time

period in order to avoid “an imminent danger to the public health or safety.”214 This agency action

is often referred to as an “immediate suspension order” (ISO), and does not require the DEA to

provide the registrant with prior notice or a formal hearing.215 The CSA specifies that the

suspension “shall continue in effect until the conclusion of [the] proceedings [to revoke or

suspend the registration on a final basis], including judicial review thereof, unless sooner

withdrawn by the Attorney General or dissolved by a court of competent jurisdiction.”216

Prior to the enactment into law of the Ensuring Patient Access and Effective Drug Enforcement

Act (EPAEDEA) of 2016,217 the CSA did not expressly define the phrase “imminent danger to the

public health or safety,” and, as a result, courts held that the DEA Administrator possessed

“significant discretion” to determine when the continued registration of a registrant constituted

such a threat.218 As an example of the latitude that courts afforded the DEA Administrator’s

212 Id. See also 21 C.F.R. § 1301.36(f) (“[U]pon service of the order of the Administrator revoking or suspending

registration, the registrant shall, as instructed by the Administrator: (1) Deliver all controlled substances in his/her

possession to the nearest office of the Administration or to authorized agents of the Administration; or (2) Place all

controlled substances in his/her possession under seal ... ”).

213 Id. § 1301.36(e).

214 21 U.S.C. § 824(d)(1).

215 Id. § 824(d).

216 Id. § 824(d)(1).

217 Ensuring Patient Access and Effective Drug Enforcement Act of 2016, P.L. 114-145, 130 Stat. 353 (codified at 21

U.S.C. §§ 823, 824).

218 In re Burka, 684 F. Supp. 1300, 1305 (E.D. Pa. 1988) (stating that “Congress has granted the DEA Administrator

significant discretion in making the preliminary determination of whether a registration should be temporarily

suspended.... ”); see also Holiday CVS, LLC v. Holder, 839 F. Supp. 2d 145, 164 (D.D.C. 2012), vacated as moot, 493

F. App’x 108 (D.C. Cir. 2012) (noting that “the CSA vests the Administrator with the authority to” determine whether

imminent danger exists); Cardinal Health, Inc. v. Holder, 846 F. Supp. 2d 203, 225 (D.D.C. 2012) (“Far from providing

‘precise guidelines’ that restrict the meaning of ‘imminent danger,’ the Act vests the Administrator with discretion to

make such a determination. In addition, the statute contemplates that an ISO will be issued in emergency

circumstances, prior to an administrative hearing or the development of a formal evidentiary record. Thus, given the

degree of discretion vested with the Administrator as well as the summary and urgent nature of an ISO, the Court’s

review ‘must be correspondingly relaxed.’”) (citation omitted). However, in at least two cases prior to enactment of the

2016 EPAEDEA, courts did reject DEA’s ISO determination that the alleged violations met the “imminent danger”

standard. See, e.g., Bates Drug Stores v. Holder, Case No. CV–11–0167–EFS, 2011 WL 1750066 *3 (E.D. Wash.

2011) (“[T]he Court has serious doubts that the alleged violations ... pose an imminent danger to public health and

safety. There is nothing in the record indicating that any Bates patient has been harmed or injured by the alleged

violations. Nor is there any evidence that any controlled substance was dispensed to an improper individual, for an

improper purpose, or in an improper dosage.... On this record, the Court finds that serious questions exist as to whether

the Suspension Order supports a finding that Bates’ practices posed an imminent danger to the public health and

safety.”); see also Norman Bridge Drug Co. v. Banner, 529 F.2d 822, 826, 829 (5 th Cir. 1976) (holding that the lower

court’s decision that there was no imminent danger to the public health and safety was not clearly erroneous due to,

among other things, the DEA being aware of the facts alleged to justify issuance of the ISO for seven months prior to

issuing the order).

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imminent danger finding, a federal district court permitted the DEA to rely on pharmacy

controlled substances sales data from 2008 to support an ISO issued in early 2012.219

The EPAEDEA amended the CSA to provide, for the first time, a statutory definition of the

phrase “imminent danger to the public health or safety,” which limits the DEA Administrator’s

discretion to issue an ISO and creates new evidentiary requirements that he must satisfy before

issuing such an order.220 Under the EPAEDEA, the DEA’s authority to issue an ISO depends on

the agency’s ability to prove two things: (1) “an immediate threat that death, serious bodily harm,

or abuse of a controlled substance will occur” due to the failure of the registrant to comply with

the CSA’s requirements, including those obligating the registrant “to maintain effective controls

against diversion,”221 and (2) the probability that such a threat will occur without an immediate

suspension of a registration, which the statute requires to be a “substantial likelihood.”222 Some

have suggested that the legislative changes made by the EPAEDEA considerably weaken the

power of the DEA to issue an ISO against a distributor or manufacturer,223 although others have

argued that the addition of a statutory definition of “imminent danger to the public health or

safety” was necessary in order to prevent “a completely subjective determination made solely by

the DEA” that “summarily eliminate[s] the registrant’s ability to handle controlled substances

before any due process hearing.”224

In response to the ISO, a registrant could seek immediate judicial review of the ISO in federal

court,225 arguing that the DEA acted arbitrarily and capriciously226 in violation of the APA.227

However, a registrant faces a difficult burden in convincing a court to enjoin the DEA’s

enforcement of the ISO pending resolution of the revocation or suspension proceedings.228 In

219 Holiday CVS, 839 F. Supp. 2d at 164 (stating that “the DEA could reasonably rely on sales trends from past years to

show a pattern of inadequate anti-diversion efforts, which ultimately culminated in the need for immediate suspension

in February 2012.”).

220 P.L. 114-145, 130 Stat. 354 (codified at 21 U.S.C. § 824(d)(2)).

221 21 U.S.C. § 824(d)(2).

222 Id.

223 See John J. Mulrooney, II & Katherine E. Legal, Current Navigation Points in Drug Diversion Law: Hidden Rocks

in Shallow, Murky, Drug-Infested Waters, 101 MARQ. L. REV. 333, 347 (Winter 2017) (“If it had been the intent of

Congress to completely eliminate the DEA’s ability to ever impose an immediate suspension on distributors or

manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal.”); see also Scott

Higham & Lenny Bernstein, The Drug Industry’s Triumph Over the DEA, WASH. POST, Oct. 15, 2017, at A01 (“In

April 2016, at the height of the deadliest drug epidemic in U.S. history, Congress effectively stripped the Drug

Enforcement Administration of its most potent weapon against large drug companies suspected of spilling prescription

narcotics onto the nation’s streets.”).

224 Oversight of the Ensuring Patient Access and Effective Drug Enforcement Act: Hearing Before the S. Judiciary

Comm., 115th Cong. 6 (2017) (statement of John M. Gray, Healthcare Distribution Alliance). According to a supporter

of the EPAEDEA, such an immediate prohibition on the legal right of the registrant to handle controlled substances as a

result of an ISO could “limit access to needed medications by legitimate patients.” Id.

225 21 U.S.C. § 877 provides that “any person aggrieved by a final decision of the Attorney General may obtain review

of the decision in the United States Court of Appeals for the District of Columbia or for the circuit in which his

principal place of business is located upon petition filed with the court and delivered to the Attorney General within

thirty days after notice of the decision.”

226 See Holiday CVS, 839 F. Supp. 2d at 158 (“As courts in this Circuit and elsewhere have recognized, the arbitrary

and capricious standard of review applies to APA claims challenging the issuance of an ISO under 21 U.S.C. §

824(d).”).

227 5 U.S.C. § 706(2).

228 Id. (“The reviewing court shall—hold unlawful and set aside agency action, findings, and conclusions found to be—

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ... [or] unsupported by substantial

evidence.... ”).

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order to obtain such preliminary injunctive relief,229 a registrant “must establish that he is likely to

succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in his favor, and that an injunction is in the public

interest.”230 The CSA provides that a reviewing court must use a “substantial evidence” standard

in considering the DEA’s findings of facts with respect to an ISO,231 though a court applies the

APA’s arbitrary and capricious standard of review when considering the DEA’s reason for

deciding to adopt, modify, or reject the ALJ’s recommendation concerning an ISO.232 A federal

appellate court has explained its review of the DEA’s issuance of an ISO under the APA as

follows: “To uphold DEA’s decision, ... we must satisfy ourselves that the agency examined the

relevant data and articulated a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.”233

A registrant served with an ISO could also request “an expedited administrative hearing”234

before an ALJ on the merits of the revocation or suspension at a time before that indicated in the

OTSC.235 DEA regulations specify that the DEA Administrator “shall” grant the request for an

earlier hearing and “fix a date for such hearing as early as reasonably possible.”236

DEA’s Response to the Opioid Abuse Crisis

This section describes selected DEA actions intended to help alleviate the opioid crisis.

DEA Actions Against Registrants

As discussed earlier in this report, the CSA provides the DEA with a variety of criminal, civil, and

administrative tools to hold manufacturers, distributors, pharmacies, and physicians accountable

for actions that violate the CSA’s regulatory requirements. The DEA has used these authorities in

229 A preliminary injunction is “’an extraordinary and drastic remedy, one that should not be granted unless the movant,

by a clear showing, carries the burden of persuasion.’” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per

curiam)(citation omitted).

230 See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

231 21 U.S.C. § 877 (“Findings of fact by the Attorney General, if supported by substantial evidence, shall be

conclusive.”). According to the Supreme Court, substantial evidence “means evidence which is substantial, that is,

affording a substantial basis of fact from which the fact in issue can be reasonably inferred. Substantial evidence is

more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established.” NLRB v.

Columbian Enameling & Stamping Co., 306 U.S. 292, 299-300 (1939) (citations omitted); see also Brainard v. Sec’y

of Health & Hum. Servs., 889 F.2d 679, 681 (6th Cir. 1989) (“Substantial evidence is more than a scintilla of evidence

but less than a preponderance.... ”).

232 See Morall v. DEA, 412 F.3d 165, 177 (D.C. Cir. 2005) (“Although 21 U.S.C. § 877 does not specify a standard for

reviewing the agency’s reasoning as distinguished from its factfinding, the APA provides the appropriate default

standard: A court must set aside agency action it finds to be arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.... An agency [decision is] arbitrary and capricious if the agency ... entirely failed to

consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency

expertise,”) (internal quotations and citations omitted); see also MacKay v. DEA, 664 F.3d 808, 817 (10th Cir. 2011)

(“Under the Administrative Procedure Act, we may set aside the Deputy Administrator’s decision only if it is arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law ... [or] unsupported by substantial

evidence.... ”) (internal quotations and citations omitted).

233 Morall, 412 F.3d at 177 (internal quotations and citations omitted).

234 See, e.g, Novelty Distribs. v. Leonhart, 562 F. Supp. 2d 20, 23 (D.D.C. 2008).

235 21 C.F.R. § 1301.36(h).

236 Id.

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connection with the opioid crisis. For example, in February and March 2018, the DEA “surged its

enforcement and administrative resources” to target prescribers and pharmacies suspected of

diverting large amounts of opioid drugs, resulting in 147 revoked registrations and 28 arrests.237

In addition, in July 2017, CVS Pharmacy Inc. agreed to a $5 million settlement payment as well

as an administrative compliance plan with the DEA, to resolve the federal government’s

allegations that nine of its pharmacies in the Eastern District of California had failed to keep and

maintain accurate records of its controlled substances, in violation of the CSA’s recordkeeping

requirements.238 In early 2016, CVS also paid $8 million to the United States to settle allegations

that certain CVS pharmacies in Maryland had dispensed controlled substances, including the

opioids oxycodone, fentanyl, and hydrocodone, in violation of the CSA by failing to comply with

their duty to ensure that the prescriptions were issued for legitimate medical purposes.239 In 2013,

Walgreens agreed to pay $80 million in civil penalties to resolve DEA administrative actions and

civil penalty investigations concerning “an unprecedented number of record-keeping and

dispensing violations” occurring at six Walgreens pharmacies and a Walgreens drug distribution

center in Florida that allegedly resulted in oxycodone and other prescription opioids to be

diverted.240 As part of this settlement, Walgreens agreed to several terms and conditions,

including ending its practice of “compensat[ing] its pharmacists based on the volume of

prescriptions filled.”241

The DEA has also focused its attention on wholesale distributors of prescription opioids, which

ship the drugs from drug manufacturers to pharmacies, and their compliance with the CSA’s

recordkeeping and reporting requirements.242 Several DEA investigations into these wholesale

distributers resulted in civil penalty settlements. In January 2017, one of the largest U.S. drug

distributors, McKesson Corporation, agreed to pay a $150 million civil payment to resolve DEA

allegations that it had, in violation of CSA regulatory requirements, “failed to design and

implement an effective system to detect and report ‘suspicious orders’ for controlled substances

distributed to its independent and small chain pharmacy customers.”243 The federal government

alleged that “[f]rom 2008 until 2013, McKesson supplied various U.S. pharmacies an increasing

amount of oxycodone and hydrocodone pills, frequently misused products that are part of the

237 Press Release, U.S. Dep’t of Just., Off. of Pub. Aff., DEA Surge in Drug Diversion Investigations Leads to 28

Arrests and 147 Revoked Registrations (Apr. 2, 2018), https://www.justice.gov/opa/pr/dea-surge-drug-diversioninvestigations-leads-28-arrests-and-147-revoked-registrations.

238 Press Release, U.S. Dep’t of Just., U.S. Att’y Off., Dist. of Md., CVS Pharmacy Inc. Pays $5M to Settle Alleged

Violations of the Controlled Substance Act (July 11, 2017), https://www.justice.gov/usao-edca/pr/cvs-pharmacy-incpays-5m-settle-alleged-violations-controlled-substance-act.

239 Press Release, U.S. Dep’t of Just., U.S. Att’y Off., Dist. of Md., United States Reaches $8 Million Settlement

Agreement with CVS for Unlawful Distribution of Controlled Substances (Feb. 12, 2016), https://www.justice.gov/

usao-md/pr/united-states-reaches-8-million-settlement-agreement-cvs-unlawful-distribution-controlled.

240 Press Release, U.S. Dep’t of Just., U.S. Att’y Off., S.D. of Fla, Walgreens Agrees To Pay A Record Settlement Of

$80 Million For Civil Penalties Under The Controlled Substances Act (June 11, 2013), https://www.justice.gov/usaosdfl/pr/walgreens-agrees-pay-record-settlement-80-million-civil-penalties-under-controlled.

241 Id.

242 See Lenny Bernstein et al., How Drugs Intended for Patients Ended Up in the Hands of Illegal Users: “No One Was

Doing Their Job,” WASH. POST, Oct. 22, 2016, http://wapo.st/2etAUdQ?tid=ss_mail&utm_term=.e09794f54343 (“The

Drug Enforcement Administration targeted these middlemen for a simple reason. If the agency could force the

companies to police their own drug shipments, it could keep millions of pills out of the hands of abusers and dealers.

That would be much more effective than fighting ‘diversion’ of legal painkillers at each drugstore and pain clinic.”).

243 Press Release, U.S. Dep’t of Just., Off. of Pub. Aff., McKesson Agrees to Pay Record $150 Million Settlement for

Failure to Report Suspicious Orders of Pharmaceutical Drugs (Jan. 17, 2017), https://www.justice.gov/opa/pr/

mckesson-agrees-pay-record-150-million-settlement-failure-report-suspicious-orders.

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current opioid epidemic.”244 In addition to the monetary penalty, the settlement requires

McKesson to (1) suspend for several years sales of controlled substances from a number of its

distribution centers, (2) agree to certain “enhanced compliance obligations” that include periodic

auditing and staffing and organization improvements; and (3) accept the oversight of an

independent monitor to assess the company’s adherence with the compliance terms.245

Another major pharmaceutical drug distributor, Cardinal Health, Inc., agreed in December 2016

to pay $44 million to the federal government to settle allegations that it had failed to notify the

DEA when it filled unusually large and frequent orders for controlled substances requested by

pharmacies located in Maryland, Florida, and New York, and that it had failed to maintain

effective controls against diversion.246 The settlement agreement between Cardinal Health and the

federal government included an admission by the company that “from January 1, 2009 to May 14,

2012, it failed to report suspicious orders to the DEA as required by the CSA.”247

In 2014, the DEA took an administrative action to revoke the registration of Masters

Pharmaceuticals, Inc. (Masters), a bulk supplier of prescription medications to many U.S.

pharmacies, after concluding that the company had not satisfied its legal obligation to monitor

and report to the DEA suspicious orders for controlled substances.248 Masters had previously

entered into a settlement agreement with the DEA in 2009 in which Masters agreed to pay

$500,000 and implement a compliance system to detect suspicious orders of controlled

substances and prevent the substances from being diverted into illegal channels.249 However, in

the years following the settlement, the DEA grew to suspect that Masters’s employees were not

detecting and reporting to the DEA suspicious orders of oxycodone products.250 In 2013, the DEA

issued an Order to Show Cause why Masters’s registration should not be revoked, in light of

allegations that Masters had ignored its duty to report suspicious orders after its computer system

had flagged controlled substance orders that were unusual in size, frequency, or pattern.251 The

DEA Administrator concluded that Masters’s repeated violations of the suspicious orders

reporting requirement warranted revocation of its registration to distribute controlled

substances.252 Masters challenged the DEA’s revocation decision in federal court, arguing among

other things that the DEA’s factual conclusions were not supported by the record.253 In June 2017,

the U.S. Court of Appeals for the D.C. Circuit denied Masters’s petition for review, seeking to

overturn the DEA’s final order, after the court found “no prejudicial error in DEA’s decision.”254

In addition to these actions against distributors, the DEA has also investigated opioid

manufacturers for their failure to report suspicious orders of controlled substances that occurred

downstream in the drug supply chain. In July 2017, the DEA confirmed it had reached a $35

244 Id.

245 Id.

246 Press Release, U.S. Dep’t of Just., U.S. Att’y Off., Dist. of Md., Cardinal Health Agrees to $44 Million Settlement

for Alleged Violations of Controlled Substances Act (Dec. 23, 2016), https://www.justice.gov/usao-md/pr/cardinalhealth-agrees-44-million-settlement-alleged-violations-controlled-substances-act.

247

Id.

248 Masters Pharm., Inc. v. DEA, 861 F.3d 206, 211 (D.C. Cir. 2017).

249 Id. at 213.

250 Id. at 214.

251 Id.

252 Id. at 215

253 Id.

254 Id. at 212.

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million civil penalty settlement with Mallinckrodt LLC, a drug manufacturer that is one of the

largest makers of the highly addictive generic pain reliever oxycodone.255 This settlement

resolved allegations that the company committed several violations of the CSA from 2008 until

2011 by supplying to drug distributors that, in turn, supplied pharmacies and pain clinics, “an

increasingly excessive quantity of oxycodone pills without notifying DEA of these suspicious

orders.”256 The DEA described this settlement as “groundbreaking” in part because it is the first

time the DEA has been able to hold a drug manufacturer responsible for detecting and reporting

suspicious orders relating to downstream sales between its distributor customers and the

distributors’ customers (pharmacies).257 This settlement agreement also apparently contains the

first public statement of the DEA’s position258 that “controlled substance manufacturers need to

go beyond ‘know your customer’ to use otherwise available company data to ‘know your

customer’s customer’ to protect these potentially dangerous pharmaceuticals from getting into the

wrong hands.”259 Under the settlement, Mallinckrodt agreed to analyze data it collects involving

“chargebacks,” which are reimbursements the company offers to their drug distributor customers

based on the distributor’s discounted sale of its drugs to pharmacies and pain clinics, in order to

monitor and report to the DEA any suspicious orders of oxycodone placed by the distributor’s

customers.260 Commentators have argued that the legal basis of the DEA imposing an obligation

on a drug manufacturer to “know your customer’s customer,” and its ability to hold the company

“responsible for what happens to its drugs once the distributors send them to their customers,”261

may be uncertain.262 Moreover, one observer has characterized the DEA’s action as “creat[ing] ...

a new requirement by announcing it in a press release” and has argued instead that such a change

needs to be made in accordance with notice and comment rulemaking requirements under the

255 Press Release, U.S. Dep’t of Just., Off. of Pub. Aff., Mallinckrodt Agrees to Pay Record $35 Million Settlement for

Failure to Report Suspicious Orders of Pharmaceutical Drugs and for Recordkeeping Violations (July 11, 2017),

https://www.justice.gov/opa/pr/mallinckrodt-agrees-pay-record-35-million-settlement-failure-report-suspicious-orders.

[hereinafter Mallinckrodt Settlement].

256 Id.

257 Id.

258 See John A. Gilbert, DEA Announces “Groundbreaking” Guidance that is Inconsistent with the Settlement they are

Announcing – Time at Last for Rulemaking? (July 20, 2017), http://www.fdalawblog.net/2017/07/dea-announcesgroundbreaking-guidance-that-is-inconsistent-with-the-settlement-they-are-announcing-t/ (last accessed Apr. 12, 2018)

(“[W]e could find no prior public statement from DEA that a manufacturer must report such third party transactions as

suspicious under 21 C.F.R. § 1301.74(b).”).

259 Mallinckrodt Settlement, supra note 255. An investigation by the Washington Post reveals that, prior to the

settlement agreement, “the DEA had provided conflicting guidance to Mallinckrodt about its responsibilities to report

suspicious orders” from its customer’s customers. Lenny Bernstein & Scott Higham, The Government’s Struggle to

Hold Opioid Manufacturers Accountable, WASH. POST, Apr. 2, 2017, https://www.washingtonpost.com/graphics/

investigations/dea-mallinckrodt/. For example, a DEA supervisor in St. Louis had informed the company in 2010 “that

it had a responsibility to keep close tabs on its customers, the distributors, as well as the distributor’s customers, the

pharmacies and doctors.” Id. Yet a DEA investigator in New York had informed Mallinckrodt that “no one in her

region, including her supervisor, had heard anything about ‘know your customer’s customer[’]” and noted that “the

regulations do not reflect such a requirement.” Id.

260 Mallinckrodt Settlement, supra note 255.

261 Bernstein & Higham, supra note 259.

262 See, e.g., Brian T. O’Connor & Andrew O’Connor, DOJ Settlement Looks to Set New Benchmarks for Suspicious

Order Monitoring (July 14, 2017), https://www.ropesgray.com/en/newsroom/alerts/2017/07/DOJ-Settlement-Looks-toSet-New-Benchmarks-for-Suspicious-Order-Monitoring (last accessed Apr. 12, 2018) (“The legal basis for those

“requirements” remains uncertain at best, and DOJ’s statements leave open many questions about how far

manufacturers must go to comply with DEA rules.”).

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APA.263 As of the date of this report, the DEA’s position that manufacturers “need to go beyond

‘know your customer’” practices has not been challenged in court.

Emergency Scheduling of Illicit Fentanyl

Fentanyl is a powerful synthetic opioid264 analgesic that mimics the effects of morphine and

heroin, but is 50 to 100 times more potent.265 Pharmaceutically produced fentanyl is a Schedule II

prescription drug that may be used by patients to manage severe pain after surgery, for example,

and can be administered via injection, in lozenges, or transdermal patch.266

Most fentanyl overdoses do not involve prescription fentanyl, but rather nonpharmaceutical

fentanyl that is illicitly produced in clandestine laboratories located abroad, in particular in

Mexico and China.267 A recent investigation by a Senate subcommittee revealed that “many

Americans are purchasing fentanyl and other illicit opioids online and having them shipped here

through the international mail system.”268 Such illicit fentanyl can be mixed with other opioids

such as heroin to increase its effects, and can be sold as a powder or as tablets that are “intended

to mimic the appearance of prescription opioid medications such as oxycodone or

hydrocodone.269 According to the 2018 National Drug Threat Assessment published in October

2018 by the DEA, fentanyl “is a major contributor to the continuing epidemic of drug overdose

deaths” in the United States and “[s]ynthetic opioids are now involved in more deaths than any

other illicit drug.”270 In July 2018, then-Attorney General Sessions announced the formation of

“Operation Synthetic Opioid Surge,” an initiative in which the Justice Department will be

focusing its prosecutorial priorities on “every readily provable case involving the distribution of

fentanyl, fentanyl analogues, and other synthetic opioids, regardless of drug quantity,” within 10

areas of the nation that are experiencing some of the highest drug overdose death rates.271

However, making the problem more difficult for the federal government in stopping illicit

fentanyl traffickers are “[o]verseas chemical manufacturers, aided by illicit domestic distributors,

[who] currently attempt to evade regulatory controls by creating structural variants of fentanyl

that are not directly listed under” the CSA.272 The DEA has stated that fentanyl-related compound

263 Gilbert, supra note 258.

264 For more information about synthetic drugs generally, see CRS Report R42066, Synthetic Drugs: Overview and

Issues for Congress, by (name redacted) and (name redacted)

.

265 NAT’L INST. ON DRUG ABUSE, DRUG FACTS: FENTANYL 1 (June 2016), https://d14rmgtrwzf5a.cloudfront.net/sites/

default/files/fentanyldf_06032016_final.pdf.

266 Id.

267 Drug Enf’t Admin., FAQ’s – Fentanyl and Fentanyl-Related Substances, https://www.dea.gov/druginfo/fentanylfaq.shtml (last visited Apr. 5, 2018).

268 STAFF OF S. COMM. ON HOMELAND SECURITY & GOV’T AFF., PERMANENT SUBCOMM. ON INVESTIGATIONS, 115TH

CONG., COMBATTING THE OPIOID CRISIS: EXPLOITING VULNERABILITIES IN INTERNATIONAL MAIL 2 (2018).

269 Fentanyl: The Next Wave of the Opioid Crisis: Hearing Before the H. Comm. on Energy & Commerce, Subcomm.

on Oversight and Investigations, 115th Cong. 1 (2017) (statement of Kemp Chester, Acting Dir. of Nat’l Drug Control

Pol’y).

270 DRUG ENF’T ADMIN., 2018 NATIONAL DRUG THREAT ASSESSMENT 27 (Oct. 2018).

271 Press Release, U.S. Dep’t of Just., Off. of Pub. Aff., Attorney General Jeff Sessions Announces the Formation of

Operation Synthetic Opioid Surge (S.O.S.) (July 12, 2018), https://www.justice.gov/opa/pr/attorney-general-jeffsessions-announces-formation-operation-synthetic-opioid-surge-sos.

272 Press Release, U.S. Dep’t of Just., Off. of Pub. Aff., Department of Justice Announces Significant Tool in

Prosecuting Opioid Traffickers in Emergency Scheduling of All Fentanyls (Nov. 9, 2017), https://www.justice.gov/opa/

pr/department-justice-announces-significant-tool-prosecuting-opioid-traffickers-emergency.

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“[m]anufacturers and distributors will continue to stay one step ahead of any state or federal drugspecific banning or control action by introducing and repackaging new products that are not listed

as such in any of the controlled substance schedules.”273 Since 2015, DEA has exercised its

emergency scheduling authority eight times to control 17 substances structurally related to

fentanyl by placing them temporarily in Schedule I.274 In February 2018, the DEA issued a

broader temporary scheduling order that attempts to schedule all fentanyl-related substances that

are not otherwise controlled in any schedule, by creating a definition of a new class of substances

that is structurally related to fentanyl by virtue of one or more specified modifications to the

substance’s formulation.275 It remains to be seen whether the DEA’s attempt to schedule

proactively an entire class of illicit fentanyl substances simultaneously, including substances that

have not yet been introduced into the U.S. market by drug traffickers, will be subject to a legal

challenge276 under the APA, claiming the DEA’s action to be inconsistent with its emergency

scheduling authority under the CSA.277

Aggregate Production Quotas for Certain Schedule II Opioids

As discussed previously in this report, the DEA limits the quantity of Schedule I and II controlled

substances (referred to as aggregate production quotas, or APQs) that may be produced in a given

calendar year. According to the Acting Assistant Administrator of the DEA’s Diversion Control

Division, “since 2014, DEA has observed a decline in prescriptions written for certain Schedule II

opioids,” including oxycodone, hydrocodone, fentanyl, and morphine.278 In November 2017, the

DEA responded to the decreased demand for these drugs when it released the 2018 APQs,279

which reduce by nearly 20% (compared to the 2017 levels) the amount of prescription opioids

that can be manufactured in 2018.280 According to a DEA spokesperson, this decrease in APQs

“can be attributed to combined local, state, and federal activities and interventions, including

creating new partnerships, enforcing current regulations, and dissemination of provider education

and guidance documents.... ”281 Several organizations representing hospitals, anesthesiologists,

and pharmacists have raised their concerns to the DEA that the new APQs could exacerbate the

problem they are experiencing with “critical shortages” of injectable opioid medications,

273 Fentanyl: The Next Wave of the Opioid Crisis: Hearing Before the H. Comm. on Energy & Commerce, Subcomm.

on Oversight and Investigations, 115th Cong. 3 (2017) (statement of Louis Milione, DEA).

274 Drug Enf’t Admin., Schedules of Controlled Substances: Temporary Placement of Fentanyl-Related Substances in

Schedule I, 83 Fed. Reg. 5,188, 5,189 (Feb. 6, 2018).

275 Id. at 5189.

276 See John A. Gilbert & Larry K. Houck, DEA Proposes a New Strategy to Ban Illicit Fentanyl-Related Substances

(Jan. 19, 2018), http://www.fdalawblog.net/2018/01/dea-proposes-a-new-strategy-to-ban-illicit-fentanyl-relatedsubstances/ (last visited Apr. 12, 2018) (questioning whether DEA’s attempt to temporarily schedule fentanyl-related

products by broadly defining a class of products based on a definition of their potential formulation “can withstand the

expected challenges from defense attorneys related to whether this type of scheduling is consistent with the CSA.”).

277 5 U.S.C. § 706 (“The reviewing court court shall – (2) hold unlawful and set aside agency action ... found to be –

(A) ... not in accordance with law”).

278 Oversight of the Ensuring Patient Access and Effective Drug Enforcement Act: Hearing Before the S. Judiciary

Comm., 115th Cong. 4 (2017) (statement of Demetra Ashley, DEA).

279 Drug Enf’t Admin., Final Adjusted Aggregate Production Quotas for Schedule I and II Controlled Substances and

Assessment of Annual Needs for the List I Chemicals Ephedrine, Pseudoephedrine, and Phenylpropanolamine for

2017, 82 Fed. Reg. 51,293 (Nov. 3, 2017).

280 Oversight of the Ensuring Patient Access and Effective Drug Enforcement Act: Hearing Before the S. Judiciary

Comm., 115th Cong. 4 (2017) (statement of Demetra Ashley, DEA).

281 Id.

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including morphine, fentanyl, and hydromorphone, which are used to treat the pain needs of

patients undergoing interventional procedures (such as colonoscopy or cardiac catheterization)

and surgeries.282 These organizations suggest that the DEA “temporarily reallocate or revise APQ

to allow other manufacturers to supply product until the shortages resolve,” and also note that

their request is “specific to these injectable medications and does not extend to other dosage

forms or opioid products.”283

In August 2018, the DEA released proposed APQs for 2019 that would require further reductions

in the quantity of Schedule II opioids that may be manufactured in the United States in 2019.284

The proposed 2019 APQ for Schedule I and II controlled substances “decreases manufacturing

quotas for the most six frequently misused opioids for 2019 by an average ten percent as

compared to the 2018 amount,” including oxycodone, hydrocodone, oxymorphone,

hydromorphone, morphine, and fentanyl.285

Congressional Actions Addressing the Opioid

Epidemic

Existing legal authorities supplied DEA with the tools for the agency’s efforts to combat opioid

abuse as described in the previous section. In recent years, Congress has also taken action to

address perceived deficiencies in the federal regulatory regime governing opioids. To date, the

most comprehensive legislative response to the overprescribing and abuse of opioids is the

Substance Use–Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients

and Communities Act (P.L. 115-271) (the SUPPORT for Patients and Communities Act, or the

SUPPORT Act) that President Trump signed into law on October 24, 2018. Title III, subtitle B of

the SUPPORT Act contains provisions that amend the CSA in various ways to address the opioid

epidemic, as described in the following sections.286

Expanding Disposal Options for Unwanted Opioid Medication

Young adults and teenagers who seek to abuse prescription opioids may find access to expired or

unwanted controlled substance medication from their parents’ medicine cabinets287 or even the

trash.288 One approach to addressing the prescription opioid abuse problem is to reduce the

282 Letter from Am. Hosp. Ass’n, et al., to Robert W. Patterson, Acting Admin., DEA (Feb. 27, 2018),

https://www.aha.org/system/files/2018-02/180227-joint-letter-to-dea-re-apq-for-iv-opioids.pdf.

283 Id. at 2.

284 Drug Enf’t Admin., Proposed Aggregate Production Quotas for Schedule I and II Controlled Substances and

Assessment of Annual Needs for the List I Chemicals Ephedrine, Pseudoephedrine, and Phenylpropanolamine for

2019, 83 Fed. Reg. 42,164 (Aug. 20, 2018).

285 Press Release, U.S. Dep’t of Just., Off. of Pub. Aff., Justice Department, DEA Propose Significant Opioid

Manufacturing Reduction in 2019 (Aug. 16, 2018), https://www.justice.gov/opa/pr/justice-department-dea-proposesignificant-opioid-manufacturing-reduction-2019.

286 For a more thorough discussion and analysis of these changes and of other provisions of the SUPPORT Act, see

CRS Report R45405, The SUPPORT for Patients and Communities Act (P.L. 115-271): Food and Drug Administration

and Controlled Substance Provisions, coordinated by (name redacted) ; and CRS Report R45423, Public Health and

Other Related Provisions in P.L 115-271, the SUPPORT for Patients and Communities Act, coordinated by (name reda

cted) and (name redacted)

.

287 See 155 CONG. REC. E386 (daily ed. Feb. 25, 2009) (extension of remarks of Rep. Jay Inslee) (“Family medicine

cabinets all across America have turned into the drug dealers of today.”).

288 Partnership for Drug-Free Kids, Safeguard Against Medicine Abuse: Securing and Disposing Medications,

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availability of such drugs by having patients properly dispose of their unwanted opioid

medications that have accumulated in their homes.289 For example, patients may want to get rid of

their expired or unused drugs by returning them to pharmacies or giving them to their prescribing

physicians. Yet, when Congress originally drafted the CSA, “it did not account for circumstances

in which controlled substances were lawfully dispensed to and possessed by an ultimate user but

not fully used.”290 To make it easier and more convenient for patients to dispose of unwanted

controlled substances, including opioid medications, Congress enacted the Secure and

Responsible Drug Disposal Act of 2010 (Disposal Act).291 The Disposal Act amended the CSA to

allow a patient to deliver controlled substances to an entity that is authorized by federal law to

dispose of them, provided that such disposal occurs in accordance with regulations issued by the

Attorney General to prevent diversion of controlled substances.292 These implementing

regulations, issued by the DEA in September 2014, substantially expand the options and

opportunities available to patients for safe and secure disposal of their unwanted prescription

opioid and other controlled substance medication.293

The DEA regulations governing secure disposal of controlled substances allow three primary

options for patient disposal of controlled substances. The first option is for federal, state, tribal, or

local law enforcement agencies to conduct periodic drug “take-back” events to collect controlled

substances from unwanted users; private entities or community groups may also partner with law

enforcement to hold community take-back events.294 Second, DEA-registered manufacturers,

distributors, narcotic treatment programs, hospitals/clinics with an on-site pharmacy, or retail

pharmacies that wish to become collectors of unwanted controlled substances for disposal

purposes must seek authorization from DEA to do so.295 Authorized collectors may then conduct

“mail-back” programs that utilize the mail system for convenient transfer of the unwanted

controlled substances, although the physical packages in which the drugs are shipped must

comply with certain requirements (for example, tamper-resistance and tracking numbers) that

DEA has specified.296 The third option permits law enforcement agencies or authorized collectors

to manage, maintain, and empty secure collection receptacles at their DEA registered location.297

A long-term care facility may also dispose of controlled substances on behalf of its residents (or

former residents) by using on-site collection receptacles that are installed, managed, and

maintained by authorized retail pharmacies or hospitals/clinics with an on-site pharmacy.298

Finally, the regulations provide requirements that collectors must follow regarding methods of

https://drugfree.org/article/safeguard-against-medicine-abuse-securing-and-disposing-medications/ (last visited Apr. 4,

2018).

289 Press Release, Drug Enf’t Admin. Pub. Aff., Drug Enforcement Administration Collects Record Number of Unused

Pills as Part of its 14th Prescription Drug Take Back Day (Nov. 7, 2017), https://www.dea.gov/divisions/hq/2017/

hq110717.shtml.

290 Drug Enf’t Admin., Disposal of Controlled Substances, 77 Fed. Reg. 75,784, 75,786 (proposed Dec. 21, 2012).

291 P.L. 111-273, 124 Stat. 2858 (codified at 21 U.S.C. § 822).

292 Id.

293 Drug Enf’t Admin., Disposal of Controlled Substances, 79 Fed. Reg. 53,520 (Sept. 9, 2014).

294 Id. at 53,568, adding 21 C.F.R. § 1317.65(a).

295 Id. at 53,567, adding 21 C.F.R. § 1317.40(a).

296 Id. at 53,568, adding 21 C.F.R. § 1317.70(a). Mail-back programs may also be administered by federal, state, tribal,

or local law enforcement.

297 Id., adding 21 C.F.R. § 1317.75(a).

298 Id. at 53,569, adding 21 C.F.R. § 1317.75(d)(2)(iii) and 21 C.F.R. § 1317.80.

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destroying controlled substances and destruction procedures, in order to render the collected

controlled substances “non-retrievable.”299

Congress also enacted prescription drug disposal and take-back provisions as part of the

Comprehensive Addiction and Recovery Act (CARA) of 2016.300 Section 201 of CARA

authorizes the creation of a grant program at the Department of Justice addressing the problems

of opioid addiction and abuse, through which the Attorney General may award grants to states,

units of local governments, and Indian tribes to fund their activities relating to opioid abuse,

including “[d]eveloping, implementing, or expanding a prescription drug take-back program.”301

Section 203 of CARA requires the Attorney General, in coordination with the DEA Administrator,

the Secretary of Health and Human Services, and the Director of the Office of National Drug

Control Policy, to coordinate with “covered entities” to expand or make available disposal sites

for unwanted prescription drugs.302 The law defines “covered entities” to include state, local, or

tribal law enforcement agencies, drug manufacturers and distributors, retail pharmacies, narcotic

treatment programs, hospitals or clinics with an onsite pharmacy, and long-term care facilities.303

Congress included two chapters relating to drug disposal in the SUPPORT for Patients and

Communities Act that was enacted in October 2018. The first chapter addresses the difficulties

faced by home hospice employees regarding disposal of pharmaceutical controlled substances.

Under the Disposal Act of 2010, a member of a hospice patient’s household may dispose of an

unused controlled substance medication after the patient dies,304 but a home hospice employee

cannot do so unless authorized by law (such as state law).305 Chapter 3 of subtitle B, title III of the

SUPPORT Act, referred to as the “Safe Disposal of Unused Medication Act,” amends the CSA to

allow an employee of a “qualified hospice program”306 to dispose of a controlled substance after

(1) the death of a person receiving hospice care, (2) the expiration of the controlled substance, or

(3) a modification in the plan of care of the hospice patient if the employee is the physician of the

person receiving hospice care and has a DEA registration.307 This chapter also requires the

Comptroller General of the United States, head of the Government Accountability Office (GAO),

to study and report to Congress, not later than 18 months after the SUPPORT Act’s enactment on

October 24, 2018, on the federal requirements applicable to the management and disposal of

controlled substances in the home, as well as the challenges encountered by select qualified

hospice programs regarding the disposal of controlled substances.308

Chapter 6 of subtitle B, title III of the SUPPORT Act, referred to as the “Access to Increased

Drug Disposal Act of 2018,” addresses the relatively low number of pharmacies and other DEA299 Id., adding 21 C.F.R. § 1317.90 and 21 C.F.R. § 1317.95. The regulations define “non-retrievable” to mean a

controlled substance that has been permanently and irreversibly altered such that it is “unavailable and unusable for all

practical purposes.” Id. at 53,560, adding 21 C.F.R. § 1300.05.

300 P.L. 114-198, 130 Stat. 695, 712, 717 (codified at 34 U.S.C. § 10701, 21 U.S.C. § 822a).

301 34 U.S.C. § 10701(a)(9).

302 21 U.S.C. § 822a(b).

303 Id. § 822a(a).

304 Id. § 822(g)(4).

305 Drug Enf’t Admin., Disposal of Controlled Substances, 79 Fed. Reg. 53,520, 53,546 (Sept. 9, 2014).

306 The SUPPORT Act defines a “qualified hospice program” as a hospice program that has written policies and

procedures for disposal of the controlled substance after the patient's death that are in place when the controlled

substance is first ordered and that documents the disposal in the patient's clinical record after disposal is completed. 21

U.S.C. § 822(g)(5)(B)(iii), as added by P.L. 115-271, § 3222(a).

307 21 U.S.C. § 822(g)(5)(A).

308 P.L. 115-271, § 3223.

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registered entities eligible to collect unused prescription drugs for disposal who have voluntarily

sought DEA authorization to become registered collectors.309 This chapter does not directly

amend the CSA but instead provides the Attorney General (acting through the Assistant Attorney

General for the Office of Justice Programs) with authority to make grants to states in an effort to

increase participation rates of eligible collectors as authorized collectors.310 A state seeking a

grant award under this chapter must submit an application that (1) designates a single state

agency responsible for complying with the conditions of the grant, (2) describes a plan to increase

the participation of eligible collectors as authorized collectors, and (3) explains how the state will

select eligible collectors to be served under the grant.311 The Attorney General is required to

award these grants to five states, and at least three of these states must be “in the lowest quartile

of States based on the participation rate of eligible collectors as authorized collectors, as

determined by the Attorney General.”312

Increasing Flexibility With Respect to Medication-Assisted

Treatment for Opioid Addiction

Certain prescription drugs may be used to treat opioid abuse and facilitate recovery from

addiction; this type of practice is commonly referred to as “medication-assisted treatment” or

MAT.313 Currently, the main prescription drugs used in MAT are methadone, buprenorphine,

which are controlled substances under the CSA, and naltrexone, which is not scheduled under the

CSA. The CSA requires any practitioner wanting to administer and dispense methadone (a

Schedule II substance) for the purpose of maintenance treatment314 or detoxification treatment315

to obtain annually a separate DEA registration for that purpose,316 referred to as a “Narcotic

Treatment Program” or NTP registration. (NTPs are also regulated by the Substance Abuse and

Mental Health Services Administration (SAMHSA) in the Department of Health and Human

Services, as well as by state methadone authorities).317 However, a practitioner may apply for and

receive a waiver from this separate registration requirement (commonly known as a “DATA

waiver”) if the controlled substance to be used for addiction treatment outside of a NTP is a

309 U.S. GOV’T ACCOUNTABILITY OFF., GAO-18-25, PREVENTING DRUG ABUSE: LOW PARTICIPATION BY PHARMACIES

AND OTHER ENTITIES AS VOLUNTARY COLLECTORS OF UNUSED PRESCRIPTION DRUGS 7, 13-16 (2017) (finding that

approximately 3% of eligible entities have volunteered to act as authorized collectors, a low rate of participation that

could be attributed to the costs associated with purchasing, installing, and managing the disposal bins and some

confusion over how to comply with the DEA regulations governing these activities).

310 P.L. 115-271, § 3253.

311 Id. § 3254.

312 Id. § 3256.

313 For more information, see CRS In Focus IF10219, Opioid Treatment Programs and Related Federal Regulations,

by (name redacted) .

314 21 U.S.C. §§ 802(29) (“The term ‘maintenance treatment’ means the dispensing, for a period in excess of twentyone days, of a narcotic drug in the treatment of an individual for dependence upon heroin or other morphine-like

drugs.”).

315 Id. §§ 802(30) (“The term ‘detoxification treatment’ means the dispensing, for a period not in excess of one hundred

and eighty days, of a narcotic drug in decreasing doses to an individual in order to alleviate adverse physiological or

psychological effects incident to withdrawal from the continuous or sustained use of a narcotic drug and as a method of

bringing the individual to a narcotic drug-free state within such period.”).

316 Id. § 823(g)(1).

317 DRUG ENF’T ADMIN., 1 NARCOTIC TREATMENT PROGRAMS: BEST PRACTICE GUIDELINES (2000),

https://www.deadiversion.usdoj.gov/pubs/manuals/narcotic/narcotic.pdf.

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Schedule III, IV, or V substance, such as buprenorphine (a Schedule III drug).318 If a medical

professional wishes to prescribe the third type of drug used in MAT, naltrexone, he need not be

registered with the DEA to do so because naltrexone is not a controlled substance under the CSA.

One section of CARA amended the CSA to expand temporarily the types of practitioners who

may, without being separately registered with the DEA as a NTP, dispense buprenorphine or other

narcotic drug in Schedule III, IV, or V, for treating opioid dependence outside of a NTP. Prior to

CARA, only “qualified physicians”319 were permitted to dispense such narcotics for these

purposes; CARA temporarily (until October 1, 2021) expands the categories of practitioners to

include a qualifying nurse practitioner or physician assistant.320 The DEA issued a final rule,

effective January 22, 2018, that implemented the changes made to the CSA by CARA.321 Note

that CARA did not make any changes to who may dispense methadone.

Congress included several provisions relating to MAT in the SUPPORT Act. Chapter 1 of subtitle

B, title III of the SUPPORT Act322 amends the CSA by removing the time limit imposed by

CARA during which nurse practitioners and physician assistants may dispense controlled

substances for maintenance and detoxification treatment under a DATA waiver, effectively

making CARA’s temporary authority permanent.323 This chapter also allows clinical nurse

specialists, certified registered nurse anesthetists, and certified nurse midwives to obtain DATA

waivers until October 1, 2023.324

In addition, the SUPPORT Act addresses issues relating to controlled substances that require a

physician to administer them to a patient by injection or implantation in a medical office. For

example, buprenorphine is a schedule III controlled substance prescribed for treatment of opioid

use disorders that may require administration via injection or implantation.325 However, under the

CSA prior to its amendment by the SUPPORT Act, a pharmacist was prohibited from dispensing

a controlled substance to anyone other than the ultimate user; as such, the pharmacist could not

give a particular controlled substance prescribed for a patient directly to that patient’s

physician.326 The SUPPORT Act amends the CSA by allowing a pharmacy, under specified

conditions, to deliver a controlled substance to a practitioner, pursuant to a prescription, to be

administered by the practitioner to the patient by injection or implantation for the purpose of

maintenance or detoxification treatment.327 The physician must administer the controlled

318 21 U.S.C. § 823(g)(2), 21 C.F.R. § 1301.28.

319 21 U.S.C. § 823(g)(2)(G)(ii) (listing the specific statutory requirements for a physician to be considered a

“qualified” one for purposes of dispensing narcotic drugs for maintenance or detoxification treatment).

320 Id. § 823(g)(2)(G)(iii)(II), (iv).

321 Drug Enf’t Admin., Implementation of the Provision of the Comprehensive Addiction and Recovery Act of 2016

Relating to the Dispensing of Narcotic Drugs for Opioid Use Disorder, 83 Fed. Reg. 3,071 (Jan. 23, 2018) (codified at

21 C.F.R. § 1301.28).

322 P.L. 115-271, §§ 3201-3204.

323 Id. § 3201(b).

324 Id. § 3201(c).

325 For more information, see CRS Report R45279, Buprenorphine and the Opioid Crisis: A Primer for Congress, by

(name redacted) .

326 The CSA defines an “ultimate user” as a person who has lawfully obtained, and who possesses, a controlled

substance for his own use or for the use of a member of his household or for an animal owned by him or by a member

of his household. 21 U.S.C. § 802(27). The CSA also defines “dispense” to mean “to deliver a controlled substance to

an ultimate user ... by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a

controlled substance.” Id. § 802(10).

327 P.L. 115-271, § 3204(a), adding new Section 309A to the CSA (codified at 21 U.S.C. § 829a).

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substance to the patient within 14 days after the physician has received the controlled

substance.328 The Attorney General, in coordination with the Secretary of Health and Human

Services, may reduce the number of days within which the physician must administer the

controlled substance if such reduction will reduce risk of diversion or protect public health;

however, the Attorney General cannot make a modification that is less than seven days.329 The

SUPPORT Act requires the GAO to study and submit a report to Congress on access to and

potential diversion of controlled substances administered by injection or implantation not later

than two years after the Act’s enactment.330

Providing Manufacturers and Distributors Certain ARCOS Data

As discussed previously in this report, manufacturers and distributors of Schedule I and II drugs

must report their controlled substances transactions to the DEA through the Automated Reports

and Consolidated Orders System (ARCOS).331 Chapter 7 of subtitle B, title III of the SUPPORT

Act,332 referred to as the “Using Data to Prevent Opioid Diversion Act of 2018,” is intended “to

provide drug manufacturers and distributors with access to anonymized information through

ARCOS to help drug manufacturers and distributors identify, report, and stop suspicious orders of

opioids and reduce diversion rates.”333 This chapter amends the CSA to require the DEA

Administrator to make certain data available to registered manufacturers and distributors through

the ARCOS system on a quarterly basis; it covers the total number of registrants that distribute

controlled substances to a pharmacy or practitioner registrant and the total quantity and type of

opioids distributed to each pharmacy and practitioner registrant.334 These provisions impose an

affirmative obligation on manufacturers and distributors to review this ARCOS information335

and establish new civil and criminal penalties for failure to do so.336 Furthermore, these

provisions provide that the DEA Administrator may consider a failure of a manufacturer or

distributor to review this information in determining whether to initiate administrative actions

against the registrant for noncompliance with CSA requirements.337

The legislation also requires the Attorney General to submit to Congress within one year of

enactment of the act a report that provides information about how the Attorney General is using

data in ARCOS to identify and stop suspicious activity.338

328 Id.

329 Id.

330 P.L. 115-271, § 3204(b).

331

21 C.F.R. §§ 1304.31 and 1304.32.

332 P.L. 115-271, §§ 3271-3274.

333 Id. § 3272(a).

334 Id. § 3273(a)(2), adding new 21 U.S.C. § 827(f)(1).

335 21 U.S.C. § 827(f)(3)(A).

336 P.L. 115-271, § 3273(c), amending 21 U.S.C. § 842.

337 21 U.S.C. § 827(f)(3)(B).

338 P.L. 115-271, § 3274.

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Adding Considerations for DEA Opioid Quotas

Chapter 8 of subtitle B, title III of the SUPPORT Act,339 referred to as the “Opioid Quota Reform

Act,” amends the CSA340 by adding statutory considerations for the DEA in establishing annual

production quotas (APQ) for schedule I and II controlled substances.341 In establishing the annual

medical, scientific, and research need for a controlled substance, the DEA Administrator may, if

he determines it will help to address “overproduction, shortages, or diversion of a controlled

substance, establish an aggregate or individual production quota,” or a procurement quota that he

has set by regulation, “in terms of pharmaceutical dosage forms prepared from or containing the

controlled substance.”342 In addition, in establishing annual quotas for the production of fentanyl,

oxycodone, hydrocodone, oxymorphone, or hydromorphone, the SUPPORT Act requires the DEA

Administrator to estimate the amount of diversion of these particular controlled substances that

occurs in the United States and then make appropriate reductions from the quota the DEA

Administrator would have otherwise established had such diversion not been considered.343

Strengthening Requirements to Detect and Report Suspicious

Orders

Prior to being amended by the SUPPORT Act, the statutory text of the CSA did not require

registrants to design and operate a system to disclose to them any suspicious orders of controlled

substances and to report such orders to the DEA; rather, such requirements appeared in DEA

regulations.344 The CSA’s definitions section also lacked a definition of the term “suspicious

order.” Chapter 9 of subtitle B, title III of the SUPPORT Act,345 referred to as the “Preventing

Drug Diversion Act of 2018,” adds a statutory definition of “suspicious order” to the CSA that

essentially adopts the language of the existing regulatory definition.346 These provisions also add

a new section to the CSA entitled “Suspicious Orders,” which requires a DEA registrant to take

essentially the same actions as those required under the DEA regulation: (1) to design and operate

a system (that is compliant with applicable federal and state privacy laws) that will alert the

registrant of suspicious orders of controlled substances, and (2) upon discovering a suspicious

order or series of orders, to inform the DEA Administrator and the Special Agent in Charge of the

DEA Field Division Office.347 The SUPPORT Act provisions also require the DEA Administrator,

within a year of the act’s enactment, to establish a centralized database for storing suspicious

339 P.L. 115-271, §§ 3281-3282.

340 21 U.S.C. § 826.

341 In making his APQ determinations, the DEA Administrator is also required to consider several factors provided by

regulation, 21 C.F.R. §§ 1303.11(b)(1)-(7), as described earlier in this report under the “Quotas” section.

342 P.L. 115-271, § 3282(a), adding new 21 U.S.C. § 826(a)(2).

343 Id., adding new 21 U.S.C. § 826(i)(1).

344 21 C.F.R. §1301.74(b).

345 P.L. 115-271, §§ 3291-3292.

346 P.L. 115-271, § 3292(a), adding new 21 U.S.C. § 802(57).

347 P.L. 115-271, § 3292(b), adding new 21 U.S.C. § 832. However, there are a few differences between the statutory

requirements concerning suspicious orders under the new CSA suspicious orders section and the regulatory

requirements under 21 C.F.R. §1301.74(b). For example, the new statutory provision directs the registrant to notify the

DEA Administrator in addition to the DEA Field Division Office about suspicious orders (the regulations specify only

the latter as the point of contact) and requires the registrant to ensure that the system used to identify suspicious orders

complies with federal and state privacy laws (the applicable regulations do not reference privacy laws). Compare P.L.

115-271, § 3292 (adding 21 U.S.C. § 832) with 21 C.F.R. § 1301.74(b).

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orders reports; if a registrant submits a suspicious order to this database, the registrant is

considered to have complied with the notification requirement mentioned above.348 The DEA

Administrator must share information regarding suspicious orders for prescription controlled

substances in a state with an entity designated by the governor or chief executive officer of that

state.349

The SUPPORT Act also establishes a maximum criminal fine of $500,000 for registered

manufacturers or distributors of opioids who intentionally fail to report suspicious orders for

opioids.350

Other Legislative Proposals That the 116th Congress

Could Consider to Amend the CSA

The 116th Congress may consider legislation to amend the CSA beyond the changes made by the

SUPPORT Act. These potential additional amendments to the CSA may resemble opioid

legislation introduced, but not enacted to date, in the 115th Congress. Legislative proposals

introduced in the 115th Congress include the following:

Changes to the DEA’s Authority to Deny, Revoke, or Suspend a

Registration, and to Issue Immediate Suspension Orders. The DEA Opioid

Enforcement Restoration Act of 2017 (H.R. 4095) would repeal the Ensuring

Patient Access and Effective Drug Enforcement Act of 2016 (EPAEDEA) (P.L.

114-145), discussed above in the section describing the DEA’s authority to issue

“immediate suspension orders,” and would

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