[Federal Register: October 10, 2003 (Volume 68, Number 197)]
[Rules and Regulations]
[Page 58587-58600]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10oc03-6]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
21 CFR Part 1301
[Docket No. DEA-232F]
RIN 1117-AA70
Controlled Substances Registration and Reregistration Application
Fees
AGENCY: Drug Enforcement Administration (DEA), Justice.
ACTION: Final rule.
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SUMMARY: This final rule establishes the fee schedule for DEA
registration and reregistration fees relating to the registration and
control of the manufacture, distribution and the dispensing of
controlled substances. DEA is required to adequately recover necessary
costs associated with the Diversion Control Program (DCP) as mandated
by the Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act of 1993.
EFFECTIVE DATE: December 1, 2003. The new fee schedule will be in
effect for all new applications postmarked on or after December 1, 2003
and for all renewal applications postmarked on or after December 1,
2003.
FOR FURTHER INFORMATION CONTACT: Patricia M. Good, Chief, Liaison and
Policy Section, Office of Diversion Control, Drug Enforcement
Administration, Washington, DC 20537; Telephone (202) 307-7297.
[[Page 58588]]
Supplementary Information:
I. Introduction and Statutory Authority
The Drug Enforcement Administration (DEA) published a notice of
proposed rulemaking in the Federal Register on February 18, 2003 (68 FR
7728) to adjust the registration and reregistration fees for controlled
substances handlers. DEA's authority to collect registration fees
derives from three statutory provisions.
DEA is authorized by 21 U.S.C. 821 to collect ``reasonable fees
relating to the registration and control of the manufacture,
distribution and dispensing of controlled substances and to the
registration and control of regulated persons and of regulated
transactions.'' Secondly, 21 U.S.C. 958(f) permits DEA to collect
``reasonable fees relating to the registration of importers and
exporters of controlled substances or List I chemicals.''
Thirdly and importantly, the Departments of Commerce, Justice, and
State, the Judiciary, and Related Agencies Appropriations Act of 1993
(Pub. L. 102-395) requires that DEA collect fees to ensure the recovery
of the full costs of operating the Diversion Control Program (DCP).
Section 111(b)(3) of the act, codified at 21 U.S.C. 886a(3), requires
that ``fees charged by the Drug Enforcement Administration under its
Diversion Control Program shall be set at a level that ensures the
recovery of the full costs of operating the various aspects of that
program.'' Section 111(b)(1) of the act also requires that ``there
shall be deposited as offsetting receipts into that account all fees
collected by the Drug Enforcement Administration, in excess of
$15,000,000, for the operation of its Diversion Control Program.''
Following an adjustment in registration fees in 1993, the American
Medical Association (AMA) and others filed a complaint in the United
States District Court for the District of Columbia objecting to the new
fees. After the district court issued its final order granting the
government's motion for summary judgment and disposing of all claims,
the AMA appealed. In the ensuing case, AMA v. Reno, the United States
Court of Appeals for the District of Columbia Circuit found DEA's
rulemaking to be inadequate and remanded, without vacating, the rule to
DEA, requiring the agency to provide an opportunity for meaningful
notice and comment on the fee-funded components of the Diversion
Control Program (DCP). In doing so, however, the court also confirmed
the boundaries of the DCP that DEA can fund by registration fees (AMA
v. Reno, 57 F.3d 1129, 1135 (D.C. Cir. 1995)). More specifically, the
court found that the current statutory scheme requires DEA to set
registration fees to recover the full costs of the DCP, while requiring
DEA to charge ``reasonable'' fees relating to the registration and
control of the manufacture, distribution and dispensing of controlled
substances and the registration and control of regulated persons and of
regulated transactions.
DEA responded to the remand requirement through a notice in the
Federal Register on December 30, 1996 (61 FR 68624), describing the
fee-funded components and activities of the DCP with an explanation of
how each satisfies the statutory requirements for fee-funding. A final
rule was subsequently published on August 9, 2002 (67 FR 51988).
DEA, therefore, is bound by the above-referenced statutory
requirements in setting fees that recover the full cost of the
Diversion Control Program and its activities. DEA has developed its
rulemaking according to these legislative mandates.
II. Comments Received
Following publication of the Notice of Proposed Rulemaking on
February 18, 2003, DEA received 36 comments to the notice, objecting to
the fee schedule contained in the proposed rule. Twenty-seven comments
were received from physicians (5 comments) and veterinary (22
comments); two comments were received from pharmacists, and seven
comments were received from national or state associations representing
different registrant groups. Late comments were also sent by another
national group after the close of the comment period. Its comments were
already raised by other commenters and, therefore, are addressed
accordingly in this final rule.
Most commenters objected to the proposed increase in registration
and reregistration fees, most noting that the increase was ``too much''
despite the ten-year period since fees were last adjusted; one
commenter wrote that he had no problem with the proposed fee increase
for practitioners from $70 to $131. One commenter also raised concern
that the proposed fees were based on estimated budgets for Fiscal Years
2004-2006 and that, because the fee schedule would extend only to
Fiscal Year 2006, DEA could raise the fees again at that time. Several
commenters inaccurately characterized the proposed registration fee as
either a ``tax'' or as a ``user fee.''
Four commenters expressed concern about the programmatic and
operational costs of the DCP that necessitated the proposed increase in
fees. Commenters specifically addressed why the DCP budget authority
has doubled since Fiscal Year 1994 and what activities, including what
new initiatives, would be supported through registration fees.
Three commenters expressed concern about the potential effect of
the proposed increase in fees on small businesses, particularly in the
current economy.
Three comments were received regarding individual registrations.
One commenter wrote that the ability of residents and hospital- and
clinic-based physicians to use their employer's registration number
instead of being required by DEA to maintain individual registrations
causes confusion with pharmacies. Another commenter argued that
veterinarians unfairly support a disproportionate share of DCP costs
because veterinary clinics as free-standing hospitals must purchase
separate DEA registrations unlike physicians and other practitioners
affiliated with human hospitals that may work under the hospital's
registration under certain circumstances. Comments also noted that a
fee increase would encourage practices, especially large practices, to
forego licensure of all practitioners in the practice. Similarly, two
commenters requested that registration fees be calculated based on the
volume of controlled substances used, as usage differs by type of
registrant.
Four commenters expressed concern that Internet pharmaceutical
companies selling veterinary products at discounted prices are
undermining veterinarian revenue. Other areas addressed by commenters
included eliminating the mandatory annual $15 million transfer to the
U.S. Treasury; finding alternative sources for funding the Diversion
Control Program such as fines to violators of controlled substances
laws, fines to insurance companies and health care providers that use
DEA registrations for identification purposes, ``taxes'' on Internet
pharmacies, fees to large drug companies that ``have billions of
dollars,'' and Congressional appropriations; and the provision of
additional time beyond the 30 days following publication of the final
rule for the new fees to go into effect.
Each of the points raised by commenters is addressed below.
III. Objections to Fee Increase
All but one of the commenters objected to the increase in
registration and reregistration fees, many characterizing them as
``arbitrary'' and
[[Page 58589]]
``exorbitant.'' Multiple commenters noted that physicians and other
practitioners have been experiencing declining reimbursements and
increasing operating costs, malpractice insurance costs, and costs of
complying with other Federal and State requirements combined with high
medical school debt. Several commenters suggested that the fee be
raised 1.6 percent consistent with the 2003 increase in Medicare
reimbursements; others suggested a 3-4 percent annual increase or a
flat $5-10 increase. One commenter questioned how the fee increase
compares with the rate of inflation. One commenter alleged that DEA was
``arbitrarily'' raising fees, and several others commented that DEA had
not provided adequate justification for the fee increase.
As described above, DEA's authority to charge registration fees to
support the Diversion Control Program derives from three statutory
provisions. DEA is authorized by 21 U.S.C. 821 to collect reasonable
fees relating to the registration and control of the manufacture,
distribution and dispensing of controlled substances. Secondly, 21
U.S.C. 958(f) permits DEA to collect reasonable fees relating to the
registration of importers and exporters of controlled substances.
Thirdly, the 1993 Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act established the Drug
Diversion Control Fee Account (DDCFA) and specifically mandated that
fees ``shall be set at a level that ensures the recovery of the full
costs of operating the various aspects of that program.'' 21 U.S.C.
886a(3). Congress, in using the mandatory term ``shall'' as opposed to
the discretionary ``may,'' unambiguously required DEA to increase its
then-existing registration fees resulting in registrants fully funding
DCP expenses. DEA, therefore, lacks discretion in this matter and must
fund its DCP totally from registration fees (that is, not from fines,
Congressional appropriations or other potential sources). Assuming for
the sake of argument that there is some doubt as to whether Congress
intended DEA to entirely fund the DCP from registration fees due to its
use of the phrase ``various aspects'' of the DCP as opposed to
something like ``all aspects,'' the House Conference Report notes that
the act's language ``requires the Drug Enforcement Administration to
set fees to recover the full cost of their Diversion Control Program.''
H.R. Conf. Rep. No. 918, 102nd Cong., 2d Sess. 44 (1992).
Congress also mandated fulfillment of the requirements of the
Appropriations Act ``(n)otwithstanding (a)ny (o)ther (p)rovision of
(l)aw,'' thus making its provisions supersede all other provisions of
law that would otherwise prevent or impede DEA's recovery of the full
costs of the DCP through registration fees. H.R. 5678, 102nd Cong., 2d
Sess. 111 (1992).
Accordingly, while DEA recognizes the economic pressures facing
practitioners such as declining Medicaid reimbursements and increasing
operating, equipment, and insurance costs, the current statutory scheme
requires DEA to set registration fees to recover the full costs of the
DCP, while limiting DEA to charge ``reasonable'' fees relating to the
registration and control of the manufacture, distribution and
dispensing of controlled substances. DEA does not have the discretion
to partially fund the DCP or to find alternative sources of funding for
the program. Rather it is mandated by law to fund the DCP fully through
registration fees.
DEA has not adjusted the registration and reregistration fees since
March 22, 1993 when it published a final rule in the Federal Register,
establishing registration fees for controlled substances registrants
(58 FR 15272). (This fee schedule then went into effect for all
registration applications postmarked on April 21, 1993 or later and all
renewal applications with an expiration date of May 21, 1993 or later).
Following publication of the final rule, the American Medical
Association (AMA) and others filed a complaint in the United States
District Court for the District of Columbia objecting to the new fees.
The district court issued its final order granting the government's
motion for summary judgment and disposing of all claims. Following an
appeal by the AMA, the United States Court of Appeals for the District
of Columbia Circuit found DEA's rulemaking to be inadequate and
remanded, without vacating, the rule to DEA, requiring the agency to
provide an opportunity for meaningful notice and comment on the fee-
funded components of the Diversion Control Program. DEA responded to
the remand requirement through a final rule published in the Federal
Register on December 30, 1996 (61 FR 68624). DEA then published its
Final Rule on the Drug Diversion Control Fee Account and Diversion
Control Program funding, responding to comments and clarifying the
activities to be funded as part of the DCP, on August 9, 2002 through
publication in the Federal Register (67 FR 51988).
Over the period of ten years the costs of operating the Diversion
Control Program (DCP) have increased, necessitating a review of fees
and an increase in those fees that support the program as mandated by
statute. Such increase in operating costs, detailed below, include a
greater number of diversion investigators, increased investigation
costs, additional diversion control efforts such as controlling
diversion of licit controlled substances on the Internet, inflation,
and increases in salaries and compensation for employees. In setting
the fees, DEA is mandated to recover the ``full costs'' (emphasis
added) of the DCP and does not have the discretion to adjust the fees
according to Medicare reimbursements or inflation as suggested by some
commenters. DEA is also mandated to charge ``reasonable'' fees. Because
the fees do not represent a significant financial burden on registrants
(see discussion below regarding the impact on small businesses), DEA
has determined that the fees contained in this final rule are
reasonable. The individual effect on registrants is minimal,
representing from 0.21% to as little as 0.01% of average annual sales
(or income) for those registrants qualifying as small businesses. For
registrants that are large businesses with higher sales, the impact of
the fee is even less.
IV. Fees as a Tax or User Fee
Several commenters inaccurately characterized the registration fee
as a tax or user fee. One commenter expressed that the DCP is a program
from which the general public benefits and from which physicians do not
derive a benefit despite paying a fee. User fees are charges that may
be assessed only when a fee-funded service provides special benefits to
an identifiable recipient beyond those that accrue to the general
public, pursuant to the Independent Offices Appropriations Act (IOAA)
(OMB Circular A-25, July 15, 1993). Examples of such services include
activities that: Enable the beneficiary to obtain more immediate or
substantial gains or values than those that accrue to the general
public (e.g., receiving a patent, insurance, or guarantee provision, or
a license to carry on a specific activity or business); provide
business stability or contributes to public confidence in the business
activity of the beneficiary (e.g., insuring deposits in commercial
banks); or that are performed at the request of or for the convenience
of the recipient, and are beyond the services regularly received by
other members of the same industry or group or by the general public
(e.g., receiving a passport, visa, airman's
[[Page 58590]]
certificate, or a Custom's inspection after regular duty hours).
However, the IOAA applies ``only when there is no independent
statutory source for the charging of a fee or where a fee statute fails
to define fee-setting criteria'' AMA v. Reno, 857 F. Supp. at 84
(D.D.C. 1994). Accordingly, the controlled substances registration fees
that are the subject of this rulemaking do not constitute user fees
because other statutory authority (as described above) set specific
criteria and funding guidelines. Moreover, in the 1993 Appropriations
Act, Congress mandated fulfillment of the requirements of the Act
``(n)otwithstanding (a)ny (o)ther (p)rovision of (l)aw,'' thus making
its provisions supersede all other provisions of law that would
otherwise prevent or impede DEA's recovery of the full costs of the DCP
through registration fees. H.R. 5678, 102nd Cong., 2d Sess. 111 (1992).
However, with that said, registrants who pay the fees do receive
special benefits not conveyed on the general public. Specifically by
registering with the DEA, registrants are able to handle controlled
substances, an immediate ``gain or value'' not provided to the general
public. Because of the closed system of drug distribution and the
diversion control activities of the DCP, there are some tangential
public benefits as well, much in the same way that the system of
driver's licenses (by which individual drivers receive a specific
benefit not conveyed on the public at large) increases the general
safety on public roads thus also conveying an ancillary public benefit.
Because Congress specified in the 1993 Appropriations Act (with
collection and spending criteria established by prior law (21 U.S.C.
821 and 958(f)), that ``(f)ees charged by the Drug Enforcement
Administration under its Diversion Control Program shall be set at a
level that ensures the recovery of the full costs of operating the
various aspects of that program'' and funds from the Drug Diversion
Control Fee Account (DDCFA) to fund the DCP will be raised ``in
accordance with estimates made in the budget request of the Attorney
General'' (21 U.S.C. 886a(3) and (4)), the registration fees charged by
DEA pursuant to this act are not user fees subject to the IOAA because
the Appropriations Act and related statutory authorities constitute
independent statutory sources for charging the fee and define fee-
setting criteria, i.e., to cover the full costs of the DCP. AMA v.
Reno, 857 F. Supp. 80 (D.D.C. 1994).
Thus, the appropriate test for fee-funding DCP activities is not
whether they convey a special benefit to registrants but whether the
fees are ``reasonable'' and ``relat(e) to the registration and control
of the manufacture, distribution, and dispensing of controlled
substances'' or relate to the registration of importers and exporters,
and are set ``at a level that ensures the recovery of the full costs of
operating the various aspects of (the Diversion Control) program.'' 21
U.S.C. 821, 958(f) and 886a(3). DEA has concluded that the fees meet
both of these criteria.
V. Diversion Control Programmatic and Operational Costs
Several commenters wrote that DEA had not provided adequate
justification for the fee raise with some requesting detailed
descriptions of the costs and expenditures made by the DCP. Commenters
questioned the programmatic and operational costs of the DCP and raised
concern about the rising costs of DCP activities over the past ten
years that necessitated the fee increase.
This section describes fee-fundable activities that constitute the
DCP, the budget justification for the fee increase, and how the fees
were calculated and addresses related comments regarding the operation
of the DCP.
A. Fee-Fundable Activities
DEA's mission with respect to licit controlled pharmaceuticals is
to prevent, detect and eliminate the diversion of controlled
pharmaceuticals from legitimate channels to illegal use, while at the
same time ensuring their availability for legitimate medical and
scientific purposes. To facilitate these goals, Congress, through the
Controlled Substances Act, established a closed system of controlled
substance distribution encompassing manufacturers, distributors,
pharmacies and practitioners; that is, within this closed system a
controlled substance can be traced from the time it is manufactured to
the time it is dispensed to the ultimate user. This system has proven
effective in reducing the diversion of these substances from legitimate
channels to the illicit market. Components of this closed system
include scheduling of all controlled substances, registration of all
controlled substance handlers, recordkeeping for accountability,
security, and manufacturing quotas, all under the oversight of the DCP.
(The DCP also possesses similar chemical control responsibilities
pursuant to the Chemical Diversion and Trafficking Act (CDTA) and
subsequent legislation. The chemical diversion control program and/or
its registration and reregistration fees are outside the domain of this
rulemaking and therefore are not affected by this rulemaking.)
The plain language of the 1993 Appropriations Act requires DEA to
set and collect registration fees to cover the full costs of operating
the DCP. In its 1993 final rule publication setting new registration
fees, DEA examined all activities that relate to the registration and
control of the manufacture, distribution and dispensing of controlled
substances and to the registration (and control) of importers and
exporters. DEA determined that ``activities contained in the
[diversion] program which give rise to the fees consist of diversion
investigators, analysts, technicians, and clerical personnel salaries
and expenses; and travel, rent, utilities, supplies, equipment and
services associated with these positions for the registration and
control of the manufacture, distribution and dispensing of controlled
substances'' (58 FR 15273). DEA determined that it would not fee-fund
costs associated with chemical control efforts (see below), clandestine
laboratory efforts, overseas staff (specifically diversion
investigators assigned to foreign posts), DEA's Office of Chief Counsel
or executive direction (58 FR 15273). DEA concluded that these
activities were excluded from the Attorney General's budget delineation
for the category of ``Diversion Control'' and thus not included in the
determination of the fees. Id.
At the time this initial rule was published on March 22, 1993, 21
U.S.C. 821 did not extend to chemical control activities (``regulated
transactions''). Accordingly, there were no registration or fee
requirements for handlers of List I chemicals, and chemical control
activities were not included among those to be supported by controlled
substances fees. Congress amended 21 U.S.C. 821 on December 17, 1993 to
require reasonable fees relating to ``the registration and control of
regulated persons and of regulated transactions.'' Domestic Chemical
Diversion Control Act of 1993, 3(a), Pub. L. 103-200, 107 Stat. 2333.
Despite this amendment, to date DEA's chemical control activities have
continued to be supported by appropriated funds and not by the
controlled substances fees through the Drug Diversion Control Fee
Account (DDCFA). Again, DEA's chemical control activities are not the
subject of this rulemaking.
In its December 1996 Federal Register notice, DEA further excluded
from fee-funding those activities that incidentally support the DCP but
are funded
[[Page 58591]]
elsewhere in the DEA Salaries Budget (and thus not fee-funded).
Specific examples listed in the notice include ``support provided by
the Attorneys in DEA's office of Chief Counsel Diversion Regulatory
Section; certain laboratory service support; DEA Automated Data
Processing Systems support (except the Automation of Reports and
Consolidated Orders System (ARCOS) and the Controlled Substances Act
(CSA) database); Office of Training staff; DEA Management and
Administrative Support; Office of Congressional and Public Affairs;
Intelligence Support and Diversion Investigators assigned overseas''
(61 FR 68631).
In its August 2002 Final Rule published in the Federal Register,
DEA reviewed the history and statutory authority of fee-fundable
activities in detail and further described what activities would be
fee-funded via the DDCFA. These activities include: Scheduling,
registration, investigation, inspection, data collection and analysis,
training, establishing production quotas, cooperative efforts with
state, local and other federal agencies, cooperative efforts with the
regulated industry, international activities relating to the
registration and control of the manufacture, distribution and
dispensing of controlled substances, and attendant management,
personnel, administrative and clerical oversight for the DCP because
they too relate to the fee-funding criteria of 21 U.S.C. 821 and
958(f). Fee-fundable activities also include travel, rent, utilities,
supplies, equipment and services associated with the above-listed
activities (67 FR 51988).
Certain international activities also are supported through fee
funds because they relate to the registration and control of the lawful
manufacture, distribution and dispensing of controlled substances.
Controlled substances lawfully imported or exported relate to Section
821 requirements because imported substances are subsequently
distributed to other DEA registrants, and exported substances are
initially manufactured and/or distributed domestically prior to export.
As explained in the December 30, 1996 Federal Register notice, the
Controlled Substances Act's closed system of controls over
manufacturing, distribution and dispensing was not established and is
not administered within the isolation of our domestic borders. Rather,
the controls are part of a global system of national and international
laws designed to establish an interrelated, worldwide structure of
control over the manufacture, distribution, dispensing, import and
export of controlled substances, so that controls or lack of controls
in one country do not undermine controls in another. Congress found and
declared that illegal importation, along with illegal manufacture,
distribution, possession and improper use of controlled substances, has
a detrimental effect on the health and welfare of the American people,
recognizing that ``(a) major portion of the traffic in controlled
substances flows through interstate and foreign commerce.'' 21 U.S.C.
801(2) and (3).
The international drug control treaties to which the United States
is a signatory require that each party establish a program of controls
relating to the registration and control of the manufacture,
distribution, dispensing, import and export of controlled substances.
The specific language of the Controlled Substances Act and its
implementing regulations recognize the obligations of the United States
under the international conventions. See 21 U.S.C. 801, 801a,
811(d)(1), 823(a) and 958(a), and 21 CFR 1307.02.
The Controlled Substances Act expressly recognized that the United
States is a party to the Single Convention on Narcotic Drugs of 1961
and other conventions ``designed to establish effective control over
international and domestic traffic in controlled substances.'' 21
U.S.C. 801(7). Likewise, Congress recognized that the abuse of
psychotropic substances has become ``a phenomenon common to many
countries'' that ``is not confined to national borders,'' making it
``essential that the United States cooperate with other nations in
establishing effective controls over international traffic in such
substances.'' (21 U.S.C. 801a(1)). Congress further recognized that the
United States joined with other countries in executing the Convention
on Psychotropic Substances, ``which is designed to establish suitable
controls over the manufacture, distribution, transfer, and use of
certain psychotropic substances.'' (21 U.S.C. 801a(2)). Congress
acknowledged that before the Senate could ratify the convention, the
Controlled Substances Act required amending to bring it into compliance
with the requirements of the convention. Congress thus recognized that
the conventions are an integral part of the United States' programs
regarding the registration and control of the manufacture,
distribution, and dispensing of controlled substances. By implementing
and ratifying the international treaties, Congress recognized that a
strong domestic program relating to the registration and control of the
manufacture, distribution, dispensing, import or export of controlled
substances depends on establishing and maintaining strong controls
within other individual nations.
Thus, DEA is obligated to conduct, as part of its Diversion Control
Program, certain international activities relating to the lawful
manufacture, distribution, dispensing, import and export of controlled
substances. DEA fee-funds most international diversion control
activities that it had historically conducted since 1971, considering
each related to 21 U.S.C. 821 and 958(f) criteria. Among those
international activities that are excluded from DDCFA funding are
international chemical control activities.
Additional detail on specific international activities supported
through fee-funds as part of the DCP is contained in the August 9, 2002
Federal Register notice (67 FR 51988).
While diversion control and registration activities are conducted
by DEA's Office of Diversion Control, other DEA elements undertake
activities in support of the DCP in addition to supporting nonfee-
fundable activities. As such, these other elements expend fee-funds to
support those fee-fundable DCP activities. For example, the Office of
Administration provides office space, makes appropriate office
renovations and supplies the security guard force to the diversion
groups. The Office of Administration pays rent and other expenses with
fee funds. The Office of Resource Management expends fee funds for
payroll and employment benefits for the DCP workforce. The Office of
Training trains the DCP workforce and spends fee funds on training in
support of fee-fundable activities, for example seminars for industry
on controlled substances (but not on staff; see below).
Not included among fee-fundable diversion control activities are
several elements of DEA operations that, though not part of the DCP,
incidentally support the activities of the DCP. To date these
activities have been funded through Congressional appropriations rather
than through fee funds. Examples of such elements include two sections
within the Office of Chief Counsel that (a) litigate administrative
actions related to DEA registrants and (b) provide legal support on
regulatory policy matters; staff salaries and related staff expenses
within a section of the Office of Training that is specifically
dedicated to the DCP (note, certain eligible training activities are
fee-funded as noted above); a portion of the Office of Forensic
Sciences Special Testing Laboratory that supports authentic
[[Page 58592]]
sample analyses for licit drugs; and a portion of the budget for DEA's
agency-wide computer network, ``Firebird'', related to the work of the
DCP. As was discussed more fully in previous rulemakings regarding the
use of controlled substances fee funds, while these elements
incidentally support diversion control efforts, because their overall
function is not primarily devoted to diversion control, they have been
included elsewhere in the DEA budget and not as part of fee-fundable
activities. In the absence of specific guidance in the 1993
Appropriations Act as to which activities were encompassed within the
DCP and thus fee-fundable, DEA has followed the plain language of the
act and used the budget categories that had historically been included
in the DCP budget request of the Attorney General. As described in
DEA's 1996 Federal Register notice, for the purposes of budget
formulation and appropriation, DEA historically has identified only
those resources (with their overhead costs) that were specifically
devoted to diversion control efforts as part of the DCP in its annual
budget submission to Congress. Other resources which support a broad
range of DEA activities, including diversion control, therefore have
been included in the budget formulation and appropriation process and
not funded through fee funds (61 FR 68631). At this time these
activities will continue to be funded through appropriated funds as DEA
considers how to better comply with the applicable laws in the future.
B. Budget Justification for Fee Increase
Several commenters questioned the justification for the budget
increase necessitating the raise in registration and reregistration
fees. Since the fees were last raised in 1993, costs of operating the
Diversion Control Program (DCP) have increased. As described above,
fee-fundable activities of the DCP include: scheduling, registration,
investigation, inspection, data collection and analysis, training,
establishing production quotas, cooperative efforts with state, local
and other federal agencies, cooperative efforts with the regulated
industry, certain international activities relating to the registration
and control of the manufacture, distribution and dispensing of
controlled substances, and attendant management, personnel,
administrative and clerical oversight for the DCP. Fee-fundable
activities also include travel, rent, utilities, supplies, equipment
and services associated with the above-listed activities.
The costs of the DCP have increased due to both the rising costs of
``doing business'' over the past ten years as well as the
implementation of a number of new initiatives and programs. One
commenter raised concern that the increase in fees seemed to cover the
increased costs of operating the DCP with less emphasis on new programs
and activities. As summarized below, the increased costs of operating
the DCP to date as well as the anticipated costs through Fiscal Year
2006 have included/include a number of new initiatives including: the
creation of Tactical Diversion Squads in Fiscal Year 1997, responding
to OxyContin[reg] diversion, responding to Internet-based diversion,
development of a system to permit electronic transmission of controlled
substances prescriptions, development of controlled substances
electronic order forms, upgrades to the Automation of Reports and
Consolidated Orders System (ARCOS), significant improvements to
registration customer/forms service, and increases in the number of
diversion investigators.
In Fiscal Year 1994 the Budget Authority for the DCP was $57.1
million. The Budget Authority for Fiscal Year 2004, based on the
President's Budget, is $ 118.6 million. The growth in the DCP has been
driven by a number of factors some of which have been reflected in the
DEA budget submissions such as the creation of Tactical Diversion
Squads in Fiscal Year 1997. Other areas of DCP expansion include the
costs of responding to the diversion of OxyContin[reg] which involved
opening 247 cases between October 1999 and March 2002, including 159
cases in Fiscal Year 2001 alone--a 270 percent increase from Fiscal
Year 2000. These cases, for example, have led to 328 arrests.
DEA also has expended increased time and resources in responding to
the diversion of licit controlled substances over the Internet, a
concern of several commenters. DEA has opened a number of cases leading
to arrests and convictions for illegal diversion over the Internet. In
total the number of diversion arrests more than doubled in the five
year period of Fiscal Year 1995 (444 arrests) to Fiscal Year 2000 (941
arrests). In Fiscal Year 2001 DEA made 871 diversion arrests. In Fiscal
Year 2002 DEA made 714 arrests, and in the first six months of Fiscal
Year 2003, DEA made 364 arrests.
The additional investigative and programmatic responsibilities to
support investigations have required additional diversion
investigators, headquarters staff and increased financial resources to
support these staff and their efforts to prevent the diversion of licit
controlled substances. Over the past ten years the costs of supporting
personnel and the costs of simply ``doing business'' have increased as
a result of inflation and general rises in costs. These increases
affect staff salaries, benefits, as well as the cost of program-related
travel, rent, utilities, supplies, equipment and services associated
with diversion control activities. The increasing costs of personnel,
activities and general operations-- including new initiatives--are
shown in the following table that outlines the budget authority for
each year from Fiscal Year 1994 to Fiscal Year 2006 (estimated). Note
these figures do not include the required $15 million transfer to the
U.S. Treasury.
------------------------------------------------------------------------
Budget
Fiscal year authority
(millions)
------------------------------------------------------------------------
FY94....................................................... $57.1
FY95....................................................... 58.4
FY96....................................................... 62.2
FY97....................................................... 67.8
FY98....................................................... 73.2
FY99....................................................... 76.7
FY00....................................................... 80.3
FY01....................................................... 83.5
FY02....................................................... 86.2
FY03....................................................... 89
FY04....................................................... 118.6
FY05 (est.)................................................ 139.4
FY06 (est.)................................................ 147
------------------------------------------------------------------------
C. Use of Estimated Budget Authorities
For Fiscal Years 2005 and 2006 the above budget authority estimates
were derived using the President's Budget for Fiscal Year 2004. One
commenter expressed concern that DEA was using estimated budget figures
in its calculations for the Fiscal Year 2004-2006 period. Use of
estimated budgets for future years is a common practice in budgeting to
forecast future expenditures and plan future budgets. Because the
President's Budget Request for the upcoming fiscal year is typically
submitted to Congress in the spring of the prior year with approval
following that, if DEA were to wait and use ``actual'',
Congressionally-enacted budgets on which to base the fee schedule as
suggested by the commenter, significant delays would result in
calculating the fees, resulting in potential shortfalls to the fee
account which, by statute, must support all activities of the DCP.
Importantly too, adjusting the registration and especially the
reregistration fees each year would cause significant confusion among
registrants as to the correct amount to pay, particularly as the
adjustment often would be effective immediately in order to comply with
the statute that fees support the ``full costs'' of the DCP. The
[[Page 58593]]
process also would result in increased fee calculation, fee collection,
and related operating costs for the DCP which would translate to higher
registration fees.
D. Calculation of Current Fee
The President's Fiscal Year 2004 budget was calculated using the
Fiscal Year 2003 budget as a base and adjusting for inflation, salary
increases and programmatic increases or enhancements. The Fiscal Year
2004 budget of $118,561,000 for the DCP was submitted by the President
to Congress on February 3, 2003. The Fiscal Year 2004 budget authority
of $118,561,000 (that does not include the $15 million transfer to the
U.S. Treasury) accounts for increases in program costs due to
inflation, increases in federal staff salaries, and additional funds to
undertake a number of new initiatives to prevent, detect and eliminate
the diversion of controlled substances while ensuring an adequate
supply for legitimate medical and scientific purposes. Additional funds
would support diversion investigation (93 positions), OxyContin[reg]
diversion control, and implementation of a system to detect Internet
sites that may divert controlled substances and investigation of those
sites, as warranted. Because the registration fees have not been raised
since 1993, in recent years the DCP has not been operating with the
ideal staffing level of diversion investigators due to budget
constraints. The additional funds for OxyContin[reg] and improved
Internet diversion control will permit DEA to conduct additional and
more complex investigations into the diversion of pharmaceutical
controlled substances. Additional funds also would support forty
positions and the development of systems to permit the electronic
transmission of controlled substances orders and controlled substances
prescriptions. These electronic alternatives will provide a similar or
higher degree of security/integrity than current paper-based systems
and will help DEA to meet its legal mandates under the Government
Paperwork Elimination Act. Several commenters highly praised the
electronic systems and the increased efficiencies afforded to industry.
By increasing reliance on technological resources, the electronic
systems also will help to control DCP costs in the future; two
commenters raised the issue of streamlining DCP operations and
controlling costs through greater reliance on technological resources.
The total cost of program enhancements for Fiscal Year 2004 is
$27,062,000. Including the mandatory transfer to Treasury of $15
million, the total amount required to be recovered for Fiscal Year 2004
is $133,561,000.
To calculate the anticipated President's Budget Request for Fiscal
Year 2005, DEA used a baseline of the Fiscal Year 2004 President's
Budget of $118,561,000 (described above) and adjusted the baseline
figure for increases in program costs due to inflation (including such
items as postage rate increases, increases in cost of employee health
benefits, increases in GSA rent, etc.), and costs of federal staff pay
increases. The anticipated President's Budget Request for Fiscal Year
2005 is $139,364,000. This figure, revised since the Notice of Proposed
Rulemaking in February 2003 because of new guidance on inflationary
figures and updated capital asset planning and budgetary information,
includes costs to support systems to permit the electronic transmission
of controlled substances prescriptions and electronic orders of
Schedule I and II controlled substances (systems highly desired and
praised by industry, including commenters to the proposed rule), the
support and operation of DEA's Internet investigations, a major upgrade
to the Automation of Reports and Consolidated Orders System (ARCOS),
significant improvements to registration customer/forms service, and 39
additional positions related to these activities. Other funds accounted
for include liaison, policy, regulatory, and analytical activities of
the Diversion Control Program. Including the mandatory transfer to
Treasury of $15 million, the total amount required to be recovered for
Fiscal Year 2005 is $154,364,000.
The anticipated President's Budget Request for Fiscal Year 2006 of
$147,028,000 was calculated using the same method. This figure also has
been revised since the proposed rule based on updated budget figures
and reflecting changes in inflationary growth guidance from the
Department of Justice. DEA used the anticipated budget request for
Fiscal Year 2005 and adjusted that figure for inflationary growth and
increases in federal staff salaries, rent and other overhead costs.
Including the mandatory transfer to Treasury of $15 million, the total
amount anticipated to be required to be recovered for Fiscal Year 2006
is $162,028,000.
In calculating inflationary growth, DEA used inflation figures of
1.5 percent for Fiscal Year 2004, 1.5 percent for Fiscal Year 2005 and
1.6 percent for Fiscal Year 2006 and salary increase assumptions of 4.1
percent for Fiscal Year 2004 and 3.4 percent for both Fiscal Year 2005
and Fiscal Year 2006, based on the Fiscal Year 2005 Department of
Justice Modular Cost Standards and the President's Economic
Assumptions, respectively.
To calculate the fee schedule for Fiscal Year 2004-2006, DEA used
the total amount necessary to collect for the Fiscal Year 2004-2006
period of $449,953,000 and, based on specific statistical calculations,
then calculated the fee for each registrant category. To comply with
the law that DEA recover the full costs of the DCP, DEA then developed
the specific fee levels for each registrant category.
To calculate the fee for each registrant category, DEA first
estimated the number of paying registrants for the Fiscal Year 2004-
2006 period and then used this figure combined with the full amount
required to be collected for this period to set the new fee rate. To
calculate the number of paying registrants, DEA used logarithmic
regression analysis to project the yearly registrant figures based on
historical registrant data for the period of Fiscal Year 1994 through
Fiscal Year 2001.
DEA then estimated the number of registrants for each registrant
category since different registrant categories pay different fees.
Because there were insufficient data for some activities to perform
regression analysis, DEA used the percentage for each category using
data from the corresponding cycle years in the past.
Finally, based on the analyses conducted, DEA developed the fees
for each registrant category consistent with its current fee structure.
In doing so, DEA opted to set the fee level for a three-year period
(Fiscal Years 2004-2006) to avoid the heavy burden on registrants and
the additional administrative expenses to DEA that resetting the fee
each year would impose. Accordingly, the fee schedule (see below)
developed reflects the total amount necessary to be collected for the
full three-year period (Fiscal Years 2004-2006) divided by projected
registrants and accounting for projected registrant growth by category
for each fiscal year. Because different categories of registrants pay
different amounts, DEA weighted the number of registrants in each
category to ensure the appropriate reflection in the fee schedule.
Because the registrant fees reflect the total amount necessary to be
collected for the Fiscal Year 2004-2006 period, there is the
possibility that DEA may accumulate additional funds beyond those
necessary for actual program operations in the initial year (Fiscal
Year 2004), but in the final year of the period (Fiscal Year 2006) fee
collections are anticipated to fall short
[[Page 58594]]
of the amount necessary to cover expenditures in that year, so DEA will
then draw down the previously collected surplus. The alternatives to
this approach would be to reset the fee each year or to set a different
fee for each fiscal year; both of these options would cause unnecessary
confusion and would impose greater administrative burdens on DEA and
registrants.
Because of the updated and slightly reduced budget figures for
Fiscal Year 2005 and Fiscal Year 2006, it was necessary for DEA to
recalculate the fee levels for each category of registrant. As a
result, the resulting fee schedule reflects minor changes to the fee
levels as indicated below. For most registrants, this change represents
a reduction in fee from that included in the Notice of Proposed
Rulemaking.
------------------------------------------------------------------------
Registrant class Annual cost
------------------------------------------------------------------------
Manufacturers.............................................. $1,625
Distributors, Importers/Exporters.......................... 813
Dispensers/Practitioners**................................. 130
Researchers, Narcotic Treatment Programs................... 130
------------------------------------------------------------------------
** The three-year registration and reregistration fee for dispensers
(including practitioners, hospitals/clinics, and retail pharmacies)
and teaching institutions is $390.
This rulemaking supplants the fee structure proposed in the Notice
of Proposed Rulemaking published in the Federal Register on February
18, 2003.
E. Other DCP Operational Issues
Several commenters questioned the efficiency of DCP operations as
related to the rising cost of operating the program, with some raising
the issue of streamlining DCP operations through enhanced use of
technology, computer upgrades, and improved business practices to
negate the need for a fee increase. The mission of the DCP is to
prevent the diversion of licit controlled substances which is done in
the most efficient and streamlined manner possible. This mission
requires the outlay of funds to support diversion investigations and
monitoring of the closed system that was created by the Controlled
Substances Act to ensure that registrants maintain controls over their
activities with controlled substances to prevent and detect their
diversion.
DEA works diligently to achieve administrative efficiencies in all
of its programs, including the Diversion Control Program. Through a
scheduled, periodic review process, virtually all aspects of the DCP
are inspected to detect any waste, fraud or abuse. All expenditures
charged to the DDCFA also are reviewed and approved by an independent
unit charged with this task. Moreover, each of DEA's annual budget
requests to Congress, which contains all components of each DEA
program, including the DCP, is available for public review. Each budget
request is examined and approved by both the Department of Justice and
the Office of Management and Budget. DEA will continue to review
expenditures through Fiscal Year 2006 and will adjust the fee schedule
as necessary again at that time as a result of budget reviews. In
February 2003 DEA also established a separate unit, the Diversion Fee
Account Validation Unit, to review, approve, and audit fee-funded
expenditures.
DEA has undertaken several initiatives to streamline aspects of the
DCP both for the DEA and for registrants. For example, DEA is currently
developing a system to permit the electronic transmission of controlled
substances prescriptions which will significantly increase the
efficiency by which prescriptions are transmitted from prescriber to
pharmacy. This system, however, will not reduce the review requirements
of DEA employees that monitor the prescription process for controlled
substances. DEA also is developing a system to permit the electronic
transmission of controlled substances orders which, again, will
increase efficiencies for industry. DEA is also pursuing upgrades to
the Automation of Reports and Consolidated Orders System (ARCOS) and
other technological improvements to its information management systems
to increase internal efficiencies. In general, consistent with the
performance objectives and goals outlined in its Strategic Plan, DEA is
constantly monitoring its operations for areas that can be improved
through better use of technology and streamlining of business
practices.
One commenter also questioned the exclusion of specific goals and
performance standards in the notice of proposed rulemaking. Specific
performance goals are included in DEA's Strategic Plan and are
therefore not duplicated in rulemaking notices. Moreover, in terms of
performance measures, as mandated by the Government Performance and
Results Act (GPRA) and the President's Management Agenda, DEA, like all
other agencies and components, is required to provide a budget summary
that incorporates performance information on a quarterly basis. That
is, DEA already integrates budget and performance in order to evaluate
the effectiveness of programs relative to long-term, measurable outcome
goals.
More specifically, in response to GPRA and the President's
Management Agenda, the DCP has restructured its budgetary reporting on
the Drug Diversion Control Fee Account (DDCFA) to include performance
measures that are consistent with DEA's Strategic Plan and reflect the
effectiveness of programmatic activities funded by registrant fees.
Among the objectives included in the DEA Strategic Plan is continued
support to the registrant population through improved technology,
including E-commerce and customer support, while maintaining
cooperation, support, and assistance from the regulated industry. These
efforts, funded through registration fees, will provide immediate
benefits to the registrant population such as streamlined processing
and improved access to information. They also will reduce the paperwork
burden on small businesses; reduce forged or stolen prescriptions;
improve authenticity verification of the prescribing or ordering party
and reduce processing time; increase overall security; and improve
DEA's data quality, agency efficiency and responsiveness in carrying
out its mission.
VI. Effects on Small Businesses
As part of its notice of proposed rulemaking published on February
18, 2003, DEA noted that the rulemaking does not constitute a major
rule as defined by section 804 of the Small Business Regulatory
Enforcement Fairness Act of 1996. While the actual fee collections as
part of the registration fee process (independent of this rulemaking)
result in an annual effect on the economy of $100,000,000 or more, the
net effect of the fee changes captured in this rulemaking on the
economy will be less than $100,000,000 and will not result in a major
increase in costs or prices or cause significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets. Moreover, the
individual effect on small business registrants is minimal ranging from
$130 to $1,625 per year with the majority of affected registrants
paying an annual fee of $130 (or $390 for three years). In categories
of registrants qualifying as small businesses (see below), the fee
represents less than 0.21% of average annual sales (or income) based on
U.S. Census and Bureau of Labor Statistics data (latest available data
from 1997). A breakdown of the effect of the fees on
[[Page 58595]]
these categories of registrants is provided below.
Based on an evaluation of U.S. Census data, a certain percentage of
manufacturers, hospitals/clinics, and pharmacies, narcotic treatment
programs and all practitioners that are registrants with the DEA are
likely to be small, as defined by the Small Business Administration.
All distributors, importers and exporters are likely to be large. All
exporters are likely to be large as they usually are also distributors
or manufacturers, and only large manufacturers are likely to be
involved in exporting. Researchers, teaching institutions, and
analytical labs are assumed to be associated with large institutions or
government entities and therefore not qualifying as small businesses.
Manufacturers fall into one of two industry classifications:
pharmaceutical preparation or medicinal and botanical manufacturing.
Based on DEA data on registered manufacturers, DEA estimates that 381
of the 460 manufacturers registered with DEA qualify as small
businesses (Small Business Administration definition of less than 750
employees). For manufacturers in the small business category of 20-49
employees, the fee of $1,625 represents less than 0.02% of the average
annual sales of $9.7 million (U.S. Census figures).
There are 61,463 pharmacies registered with the DEA and eligible to
handle controlled substances. According to the National Association of
Chain Drug Stores (NACDS) and census data on mail order prescription
firms, there were 35,428 chain pharmacies, mass merchant pharmacies,
supermarket pharmacies, and mail order pharmacies in 2001 (latest data
available). It is assumed that the remaining 26,035 DEA registrants are
independent pharmacies and that these independent pharmacies are small
businesses. The chain drug stores, mass merchant pharmacies,
supermarket pharmacies, and mail order pharmacies are assumed to be
large establishments. For pharmacies in the $250,000-$499,000 category
of annual sales, a fee of $130 per year represents 0.05% of average
annual sales. In this category, the mean value of annual sales is
$429,853 according to the U.S. Census data of which the annual
registration fee represents 0.03%.
There are 14,796 hospitals registered with DEA to handle controlled
substances. U.S. Census data indicate there are 6,590 hospitals; thus
the remaining 8,206 registrants are assumed to be clinics. Census data
also indicate there are 4,434 large hospitals; therefore, assuming all
hospitals are registered with the DEA, DEA estimates there are 2,156
small hospitals. There are 3,260 clinics that can be defined as large.
Thus, assuming that all large clinics are registered with DEA, DEA
assumes that the remaining 4,946 clinics that are DEA registrants are
small. For hospitals in the small business category of $1 million-$2.5
million in annual revenue, the annual fee of $130 represents less than
0.01% of average annual revenues. For clinics and narcotic treatment
programs with annual revenues of less than $100,000 the annual fee of
$130 represents 0.13% of annual revenue. Or for entities with the mean
annual revenue of $61,909 in this group, the fee represents 0.21% of
annual revenue. There are 1,166 narcotic treatment programs registered
with the DEA.
Finally, there are 1,038,000 practitioners registered with the DEA
to handle controlled substances--the largest registrant category.
Because practitioners may hold multiple registrations and because
practitioners register for three-year cycles, this figure may double
count some practitioners and, accordingly, represents a high estimate.
The majority of registered practitioners are physicians, followed by
dentists and veterinarians. As of May 2003, there are 736,449 physician
registrants, 164,630 dentist registrants, 51,101 veterinarian
registrants, 44,800 nurse practitioner registrants, and 24,077
physician assistant registrants. Other practitioner registrants include
optometrists, nursing homes, animal shelters, ambulances, naturopaths,
euthanasia technicians, certain pharmacists in the state of Washington,
certain veterinarian technicians in the state of California, and
doctors of oriental medicine.
For the three largest groups of registrants in this category, data
from the Bureau of Labor Statistics (2001 survey data) indicate the
average annual salary of physicians to be $110,020, of dentists to be
$110,790 and of veterinarians to be $69,150. For practitioners with
average annual salaries of less than $100,000 the annual fee of $130
represents 0.13% of annual revenue. Of the mean annual salary of
practitioners in this category ($63,688 per U.S. Census data), the fee
represents 0.20%. For physicians and dentists which account for 87% of
practitioner registrants, the fee represents 0.12% of annual average
salary.
In summary, while the changes in fee structure will affect a
substantial number of individual entities that qualify as small
businesses, the impact will be minimal when evaluated as a percentage
of average annual sales, revenue or income. Consequently, this rule
does not create a significant adverse effect on a substantial number of
small entities. In addition, the rule is not a discretionary action but
rather responds to a statutory mandate to fully fund the costs of the
Diversion Control Program through registrant fees.
VII. Registration Fee
A. Effective Date of New Fee Structure
Based on the methodology described in section V-D of this
rulemaking and current calculations, to recover the full costs of the
DCP as required by law, DEA plans to incrementally raise the fees in
accordance the fee structure summarized in Section V. This fee
structure replaces the fee structure proposed in the February 18, 2003
Notice of Proposed Rulemaking.
This fee schedule will go into effect on December 1, 2003. To be as
clear as possible about the effective date and to ease processing, this
effective date represents the first day of the month following the
mandatory 30 days after the publication of the final rule in the
Federal Register. The new fee schedule will be in effect for all new
registration applications postmarked on or after December 1, 2003 and
all reregistration applications postmarked on or after December 1,
2003. Registration or reregistration applications postmarked on or
after this date must, therefore, include the new fee payment.
Because DEA is required by statute to recover through fees the
``full costs'' of the DCP, DEA will continue to monitor the costs and
expenditures of the DCP and will revise the fee structure as necessary.
DEA does not expect to revise the fee structure again until Fiscal Year
2006 (to be effective Fiscal Year 2007); however, DEA cannot anticipate
events or other catalysts that may necessitate major diversion control
initiatives by the DEA in future years.
B. Individual Registrations
Several comments were received relating to the use of individual
registrations for practitioners as opposed to clinics or medical
facilities. One pharmacist commenter objected to the ability of
residents and hospital- and clinic-based physicians to use their
employer's registration number instead of being required by DEA to
maintain individual registrations. The commenter noted that use of an
employer's number leads to confusion among pharmacists when the
computer, cross-checking the number against the practitioner's name,
indicates that they do not match. The commenter argued that the ability
to use employer's registration numbers is
[[Page 58596]]
unfair to those who must pay individual registration fees and suggested
that before registration fees are increased that DEA require all
prescribers of controlled substances to be individually registered. Two
commenters noted that it is expensive to license multiple practitioners
in a practice and that a fee increase would encourage practitioners to
forego licensure of all practitioners especially in large practices.
One also noted that it would be beneficial if practitioners could work
under an umbrella license for the whole clinic.
The Controlled Substances Act requires that every person who
manufactures, distributes or dispenses any controlled substance or who
proposes to engage in the manufacture, distribution or dispensing of
any controlled substance obtain an annual registration. 21 U.S.C.
822(a)(1) and 822(a)(2). However, the Controlled Substances Act also
provides for certain exceptions, including ``an agent or employee of
any registered manufacturer, distributor, or dispenser of any
controlled substance or list I chemical if such agent or employee is
acting in the usual course of his business or employment.'' 21 U.S.C.
822(c)(1).
More specifically, ``an individual practitioner who is an agent or
employee of another practitioner (other than a mid-level practitioner)
registered to dispense controlled substances'' may be exempted from
securing his or her own registration but may ``when acting in the
normal course of business or employment, administer or dispense (other
than by issuance of prescription) controlled substances if and to the
extent that such individual practitioner is authorized or permitted to
do so by the jurisdiction in which he or she practices, under the
registration of the employer or principal practitioner in lieu of being
registered him/herself.'' 21 CFR 1301.22. That is, within a group
practice, for example, one DEA-registered physician may take the
responsibility for ordering a stock of controlled substances from which
other physicians in the practice could dispense. However, only the DEA-
registered physician would be authorized to issue prescriptions for
controlled substances. That is, prescriptions written under a
particular DEA number may only be written by the physician possessing
that registration number.
Additionally, an individual practitioner who is an agent or
employee of a hospital or other institution also may administer,
dispense, or prescribe controlled substances under the registration of
the hospital or other institution which is registered in lieu of being
registered him/herself (much like a pharmacist operates under the
pharmacy's DEA registration). However, such registration is permissible
only if: (1) Such dispensing, administering or prescribing is done in
the usual course of his/her professional practice; (2) Such individual
practitioner is authorized or permitted to do so by the jurisdiction in
which he/she is practicing; (3) The hospital or other institution by
which he/she is employed has verified that the individual practitioner
is so permitted to dispense, administer, or prescribe drugs within the
jurisdiction; (4) Such individual practitioner is acting only within
the scope of his/her employment in the hospital or institution; (5) The
hospital or other institution authorizes the individual practitioner to
administer, dispense or prescribe under the hospital registration and
designates a specific internal code number for each individual
practitioner so authorized; and (6) A current list of internal codes
and the corresponding individual practitioners is kept by the hospital
or other institution and is made available at all times to other
registrants and law enforcement agencies upon request for the purpose
of verifying the authority of the prescribing individual practitioner
(21 CFR 1301.22). Other registrants would include pharmacies wishing to
verify the identity and authority of individual practitioners to
prescribe controlled substances. Note, state laws differ with regard to
clinic registration and the use of ``umbrella'' registration numbers
for employees of such clinics.
A separate registration is required for each principal place of
business or professional practice at one general physical location
where controlled substances are manufactured, distributed, imported,
exported, or dispensed by a person (21 U.S.C. 822(e)).
C. Allocation of Fee Based on Usage
Four commenters raised issues related to allocation of the
registration fee according to usage of controlled substances. Three
commenters wrote that, because veterinarians use a limited amount of
controlled substances, they should not be expected to be equal partners
with other practitioners in funding the DCP. Another commenter stated
that, as staff write only 12 controlled substances prescriptions per
year, the fee increase would dramatically increase the cost of each of
these prescriptions per unit.
The Controlled Substances Act mandates that ``every person'' who
manufactures, distributes or dispenses any controlled substance or who
proposes to engage in the manufacture, distribution or dispensing of
any controlled substance obtain an annual registration (21 U.S.C.
822(a)(1) and 822(a)(2)). This statute mandates such registration
irrespective of the extent such persons handle controlled substances.
Accordingly, DEA may not alter the fee structure to account for the
extent to which registrants handle controlled substances.
VIII. Enforcement of Controlled Substances Act
Several commenters expressed concern that Internet pharmaceutical
companies selling veterinary products at discounted prices are
undermining veterinarian revenue, with one commenter alleging that
Internet and catalog pharmacies sell prescription medications directly
to consumers without a prescription from a veterinarian. Three
commenters wrote that it is ``not in my profession['s] best interest to
pay such exuberant fees * * * while the internet companies undercut the
veterinarian.'' Another commenter stated that Internet pharmacies
selling controlled substances to consumers without a prescription
should be fined severely.
The mission of the Diversion Control Program, as outlined above, is
to prevent the diversion of licit controlled substances in conformance
with the Controlled Substances Act. All manufacturers, distributors and
dispensers of controlled substances are required to obtain a
registration with the DEA (21 U.S.C. 822(a)(1) and 822(a)(2)). This
requirement includes Internet-based pharmaceutical companies that
dispense controlled substances. No dispenser, including Internet-based
companies, is permitted to dispense controlled substances without the
prescription of a registered physician or other appropriate
practitioner. DEA investigates and prosecutes violations of the
Controlled Substances Act, including the dispensing of controlled
substances without a legal prescription from an authorized and
registered practitioner.
Four commenters, three from the same institution, objected to the
ability of Internet pharmaceutical companies to sell veterinary
products directly to consumers thus affecting sales directly through
the veterinary clinics. Commenters expressed concern that clients were
purchasing veterinary pharmaceutical supplies through the Internet
companies when veterinarians ``must write prescriptions,'' thus eroding
pharmaceutical sales by veterinarians and undermining the
[[Page 58597]]
veterinarian-client relationship. One commenter also alleged that
Internet pharmacies are selling pharmaceuticals without prescriptions
from authorized practitioners. Three commenters from the same
institution suggested that the DEA tax the Internet drug companies to
fund the DCP and leave the current controlled substance handlers fees
at the same level.
DEA assures the commenters that any violations of the Controlled
Substances Act, including the unauthorized dispensing of controlled
substances, are subject to prosecution to the fullest extent of the
law. Over the past several years, DEA has undertaken a number of
concerted initiatives to control and prevent the diversion of licit
controlled substances over the Internet, with the number of diversion
arrests more than doubling between Fiscal Year 1995 and Fiscal Year
2000. DEA's diversion control actions do not cover legal commerce
transactions such as the legal dispensing of controlled substances
through Internet sites or the sale of non-controlled substances (such
as other veterinary products) which is outside the purview of the DEA.
DEA also notes that Internet pharmaceutical companies, like other
dispensers of controlled substances, must register with the DEA in
order to handle controlled substances and as such already pay a
registration fee like other registered dispensers.
IX. Miscellaneous Issues
A. Mandatory $15 Million Transfer to U.S. Treasury
One commenter objected to registrant fees supporting the mandatory
transfer of $15 million to the U.S. Treasury, noting that this burden
should not be placed on registrants and requesting that DEA petition
Congress to appropriate the required $15 million, so that all fee funds
are used to support DCP activities.
DEA is required by the Appropriations Act of 1993 to transfer the
first $15 million of fee revenue to the General Fund of the Treasury
each year (21 U.S.C. 886a(1)). Calculation of the fees, therefore, must
account for this mandated transfer. That is, DEA has no discretion in
that matter, and the fees collected by DEA must represent the total
amount necessary to ``fully fund'' the DCP by law plus an additional
$15 million. For the period of Fiscal Year 1993 through Fiscal Year
1998, Congress appropriated an additional $15 million to offset the
transfer requirement (a total infusion to the DDCFA of $90 million).
However, beginning in Fiscal Year 1999, Congress discontinued this
additional appropriation, and the additional $15 million became an
additional net expense to the DCP at that time. Congress has not agreed
to appropriate the additional $15 million towards the mandatory
transfer since that time.
B. Alternative Funding Sources for DCP
Seven commenters raised the issue of finding alternative sources of
funding for the DCP to replace the registration fees, including
congressional funding and collecting fees from other non-registrant
entities (e.g., health insurance companies). As has been detailed
above, DEA's authority to charge registration fees to support the DCP
derives from three statutory provisions. Of these provisions, the
Appropriations Act of 1993 specifically mandates that DEA collect
through fees an amount sufficient to ensure the recovery of the ``full
costs'' (emphasis added) of the DCP (21 U.S.C. 886(a)(3)). That is, DEA
is required by statute to fully fund DCP expenses through registration
fees. For the period of Fiscal Year 1993 through Fiscal Year 1998,
Congress appropriated an additional $15 million to the DDCFA to offset
the annual mandatory $15 million transfer to the U.S. Treasury
described in the previous section. Such appropriations were
discontinued beginning in Fiscal Year 1999, and the DCP remains
entirely funded through registration fees.
C. Clarification of Fee Amount
Certain registrants pay a single fee for a three-year registration
period. Such registrants include dispensers (including practitioners,
hospitals/clinics, and retail pharmacies) and teaching institutions.
Since publication of the February 18, 2003 notice of proposed
rulemaking, DEA has finalized a number of other regulatory actions
which affect the CFR sections amended by this final rule. On June 24,
2003, DEA finalized regulations regarding the use of central fill
pharmacies to fill controlled substances prescriptions on behalf of
retail pharmacies (68 FR 37405). This final rule amended 21 CFR
1301.13(e)(1)(iii) to add ``central fill pharmacy'' as a business
activity under dispensing (effective July 24, 2003). Consequently,
central fill pharmacies are subject to the same fee as all other
dispensers, including pharmacies and teaching institutions. Effective
with this rulemaking, the registration/reregistration fee for
dispensers, including central fill pharmacies, and teaching
institutions is $390 for a three-year period.
Because other categories of registrants secure a registration on an
annual basis, much of the discussion in this rulemaking addressed the
value of annual registration. In such discussions, DEA often referred
to an annual value of $130 which is one-third of $390.
The annual registration and reregistration fee for researchers,
narcotic treatment programs (including compounders), effective with
this rulemaking, is $130. These categories of registrants obtain a
registration and pay the associated fee on an annual basis.
This rulemaking also establishes new annual registration/
reregistration fee amounts for manufacturers of $1,625, for
distributors of $813, for importers of $813, and for exporters of $813.
Reverse distributors are subject to the same annual fee of $813 as
distributors as a result of an interim rule published by DEA on July
11, 2003 defining ``reverse distributor'' and establishing reverse
distributor as a new category of registration. (68 FR 41222). This
interim rule amended 21 CFR 1301.13 by redesignating paragraph
(e)(1)(iii) which contained dispensing activities as paragraph
(e)(1)(iv) and adding a new paragraph (e)(1)(iii) ``reverse
distributors''. In its February 18, 2003 Federal Register notice
proposing new registration and reregistration application fees, DEA
inadvertently included language in the regulatory text regarding fees
to be assessed to reverse distributors (referred to as ``disposers'' in
the proposed rulemaking), although regulations establishing reverse
distributor as a new registration category had not yet been
established. As regulations establishing reverse distributors as a new
category of registration have now been established, the fees included
in this final rule are now accurate and apply as delineated above to
this category of registrants. In its February 18, 2003 proposed rule
DEA also inadvertently assigned an incorrect annual fee of $131 to
disposers. As described above, reverse distributors or disposers, like
other distributors, are subject to an annual fee of $813.
Regulatory Analyses
Regulatory Flexibility Act
The Deputy Assistant Administrator hereby certifies that this
rulemaking has been drafted in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation, and by
approving it certifies that this regulation will not have a significant
economic impact on a substantial number of small entities. DEA
recognizes that this regulation will have a financial effect on a
substantial number of registrants with the increase in fees; however,
DEA believes that, based on the length of time between fee
[[Page 58598]]
adjustment, the program growth and cost increases, and the overall size
of the increase in fees, the change in fees is not significant, and the
economic impact of the fees on individual registrants is not
significant. The fee represents from 0.21% to as little as 0.01% of
average annual sales (or income) for registrants qualifying as small
businesses. Moreover, the fees have not been changed in ten years, and
DEA is legally mandated to collect fees to cover the full costs of the
Diversion Control Program. The appropriations process was used to
determine the budget on which the fees are based. The increase in fees
after ten years covers both inflation and enhancements to address
additional responsibilities assumed by the Diversion Control Program.
In considering options for collecting the full costs of the
Diversion Control Program as mandated by law (21 U.S.C. 886a(3)), DEA
considered several alternatives to the approach used in this
regulation. One alternative would be to reset the fee each year for
each category of registrant according to the budget authority. Another
alternative would be to set a different fee for each fiscal year.
Commenters suggested both of these approaches. DEA determined that both
of these options would cause unnecessary confusion with fee changes
each year and would impose greater administrative and financial burdens
on DEA and registrants than the approach used in this regulation.
Moreover, resetting the fee each year, for example, would unfairly
affect practitioners differently depending on their registration
renewal year; some practitioners would pay more than others. Using
actual budget authority figures instead of estimated budget authority
figures, as used in this rulemaking, would not give registrants
sufficient notice as to fee changes. Doing so also could result in DEA
not collecting the full costs of the DCP as required by law in a timely
manner. In calculating the fees contained in this rule, DEA used
estimated budget authorities based on expected inflation and program
enhancements as is standard government practice for forecasting future
budgets.
Executive Order 12866
The Deputy Assistant Administrator certifies that this rulemaking
has been drafted in accordance with the principles in Executive Order
12866 Section 1(b). This action has been reviewed by the Office of
Management and Budget.
Executive Order 12988
This regulation meets the applicable standards set forth in
Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice
Reform.
Executive Order 13132
This rulemaking does not preempt or modify any provision of state
law; nor does it impose enforcement responsibilities on any state; nor
does it diminish the power of any state to enforce its own laws.
Accordingly, this rulemaking does not have federalism implications
warranting the application of Executive Order 13132.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate of $100,000,000 or more in any one
year, and will not significantly or uniquely affect small governments.
While it will affect the private sector in excess of $100,000,000 per
year, the effect on individual entities is minimal. The majority of the
affected entities will pay $130 per year (or $390 for a three-year
registration period). Moreover, this rule is promulgated in compliance
with Congressional mandate that the full cost of operating the DCP be
collected through registrant fees as stipulated in the 1993 Departments
of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act (Pub. L. 102-395) and codified in 21 U.S.C. 886a(3).
Detailed estimates and analyses, including specific fee amounts for
individual registrants, are included in the preamble text.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by Section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. The net
effect of the fee changes captured in this rulemaking on the economy
will be less than $100,000,000 and will not result in a major increase
in costs or prices or cause significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets. This rule is not a discretionary action
but rather responds to the Congressional mandate that the full
operating costs of the DCP be collected through registrant fees as
described above. The individual effect on small business registrants is
minimal ranging from $130 to $1,625 per year with the majority of
affected registrants paying an annual fee of $130 (or $390 for three
years). As discussed in detail in the preamble, the fee represents less
than 0.21% of annual sales or income for the smallest categories of
registrants qualifying as small businesses according to Small Business
Administration definitions.
List of Subjects in 21 CFR Part 1301
Administrative practice and procedure, Drug traffic control,
Security measures.
0
For the reasons set out above, 21 CFR part 1301 is amended as follows:
PART 1301--[AMENDED]
0
1. The authority citation for part 1301 continues to read as follows:
Authority: 21 U.S.C. 821, 822, 823, 824, 871(b), 875, 877.
0
2. Section 1301.13 is amended by revising paragraph (e)(1) to read as
follows:
Sec. 1301.13 Application for registration; time for application;
expiration date; registration for independent activities; application
forms, fees, contents and signature; coincident activities.
* * * * *
(e) * * *
(1)
[[Page 58599]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Registration
Business activity Controlled substances DEA application forms Application period Coincident activities
fee ($) (years) allowed
--------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Manufacturing................ Schedules I-V............... New--225.................... 1,625 1 Schedules I-V:May
Renewal--225a............... 1,625 distribute that
substance or class for
which registration was
issued; may not
distribute or dispose
any substance or class
for which not
registered. Schedules II-
V: except a person
registered to dispose of
any controlled substance
may conduct chemical
analysis and preclinical
research (including
quality control
analysis) with
substances listed in
those schedules for
which authorization as a
mfg. Was issued.
(ii) Distributing................ Schedules I-V............... New--225.................... 813 1 .........................
Renewal--225a............... 813
(iii) Reverse distributing....... Schedules I-V............... New--225.................... 813 1 .........................
Renewal 225a................ 813
(iv) Dispensing or instructing Schedules II-V.............. New--224.................... 390 3 May conduct research and
(includes Practitioner, Hospital/ Renewal--224a............... 390 instructional activities
Clinic, Retail Pharmacy, Central with those substances
Fill Pharmacy, Teaching for which registration
Institution). was granted, except that
a mid-level practitioner
may conduct such
research only to the
extent expressly
authorized under state
statute. A pharmacist
may manufacture an
aqueous or oleaginous
solution or solid dosage
form containing a
narcotic controlled
substance in Schedule II-
V in a proportion not
exceeding 20% of the
complete solution,
compound or mixture. A
retail pharmacy may
perform central fill
pharmacy activities.
(v) Research..................... Schedule I.................. New--225.................... 130 1 A researchermay
Renewal--225a............... 130 manufacture or import
the basic class of
substance or substances
for which registration
was issued, provided
that such manufacture or
import is set forth in
the protocol required in
Section 1301.18 and to
distribute such class to
persons registered or
authorized to conduct
research with such class
of substance or
registered or authorized
to conduct chemical
analysis with controlled
substances.
(vi) Research.................... Schedules II-V.............. New--225.................... 130 1 May conduct chemical
Renewal--225a............... 130 analysis with controlled
substances in those
schedules for which
registration was issued;
manufacture such
substances if and to the
extent that such
manufacture is set forth
in a statement filed
with the application for
registration or
reregistration and
provided that the
manufacture is not for
the purposes of dosage
form development; import
such substances for
research purposes;
distribute such
substances to persons
registered or authorized
to conduct chemical
analysis, instructional
activities or research
with such substances,and
to persons exempted from
registration pursuant to
Section 1301.24; and
conduct instructional
activities with
controlled substances.
(vii) Narcotic Treatment Program Narcotic Drugs in Schedules New--363.................... 130 1 .........................
(including compounder). II-V. Renewal 363a................ 130
(viii) Importing................. Schedules I-V............... New--225.................... 813 1 May distribute that
Renewal--225a............... 813 substance or class for
which registration was
issued; may not
distribute any substance
or class for which not
registered.
(ix) Exporting................... Schedules I-V............... New--225.................... 813 1
Renewal--225a............... 813
[[Page 58600]]
(x) Chemical Analysis............ Schedules I-V............... New--225.................... 130 1 May manufacture and
Renewal--225a............... 130 import controlled
substances for
analytical
orinstructional
activities; may
distribute such
substances to persons
registered or authorized
to conduct chemical
analysis, instructional
activities, or research
with such substances and
to persons exempted from
registration pursuant to
section 1301.24; may
export such substances
to persons in other
countries performing
chemical analysis or
enforcing laws related
to controlled substances
or drugs in those
countries; and may
conduct instructional
activities with
controlled substances.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
Dated: October 7, 2003.
Laura M. Nagel,
Deputy Assistant Administrator, Office of Diversion Control.
[FR Doc. 03-25817 Filed 10-9-03; 8:45 am]
BILLING CODE 4410-09-P