```

[Federal Register Volume 78, Number 204 (Tuesday, October 22, 2013)]
[Proposed Rules]
[Pages 62500-62506]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24600]

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DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1308

[Docket No. DEA-374]

Schedules of Controlled Substances: Placement of Perampanel into 
Schedule III

AGENCY: Drug Enforcement Administration, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Drug Enforcement Administration (DEA) proposes to place 
the substance perampanel [2-(2-oxo-1-phenyl-5-pyridin-2-yl-1,2-
dihydropyridin-3-yl) benzonitrile hydrate], including its salts, 
isomers, and salts of isomers, into Schedule III of the Controlled 
Substances Act (CSA). This proposed action is based on a recommendation 
from the Assistant Secretary for Health of the Department of Health and 
Human Services (HHS) and on an evaluation of all other relevant data by 
the DEA. If finalized, this action would impose the regulatory controls 
and administrative, civil, and criminal sanctions of Schedule III 
controlled substances on persons who handle (manufacture, distribute, 
dispense, import, export, engage in research, conduct instructional 
activities, and possess) or propose to handle perampanel.

DATES: Interested persons may file written comments on this proposal in 
accordance with 21 CFR 1308.43(g). Comments must be submitted 
electronically or postmarked on or before November 21, 2013. Commenters 
should be aware that the electronic Federal Docket Management System 
will not accept comments after midnight Eastern Time on the last day of 
the comment period.
    Interested persons, defined as those ``adversely affected or 
aggrieved by any rule or proposed rule issuable pursuant to section 201 
of the Act (21 U.S.C. 811),'' 21 CFR 1300.01, may file a request for 
hearing or waiver of participation pursuant to 21 CFR 1308.44 and in 
accordance with 21 CFR 1316.45 and 1316.47. Requests for hearing, 
notices of appearance, and waivers of an opportunity for a hearing or 
to participate in a hearing must be received on or before November 21, 
2013.

ADDRESSES: To ensure proper handling of comments, please reference 
``Docket No. DEA-374'' on all electronic and written correspondence. 
The DEA encourages that all comments be submitted through the Federal 
eRulemaking Portal, which provides the ability to type short comments 
directly into the comment field on the Web page or attach a file for 
lengthier comments. Go to  http://www.regulations.gov and follow the 
on-line instructions at that site for submitting comments. An 
electronic copy of this document and supplemental information to this 
proposed rule are also available at http://www.regulations.gov for easy 
reference. Paper comments that duplicate electronic submissions are not 
necessary. All comments submitted to http://www.regulations.gov will be 
posted for public review and are part of the official docket record. 
Should you, however, wish to submit written comments, in lieu of 
electronic comments, they should be sent via regular or express mail 
to: Drug Enforcement Administration, Attention: DEA Federal Register 
Representative/ODW, 8701 Morrissette Drive, Springfield, Virginia 
22152. All requests for hearing and waivers of participation must be 
sent to: Drug Enforcement Administration, Attention: Hearing Clerk/LJ, 
8701 Morrissette Drive, Springfield, Virginia 22152.

FOR FURTHER INFORMATION CONTACT: Ruth A. Carter, Chief, Policy 
Evaluation and Analysis Section, Office of Diversion Control, Drug 
Enforcement Administration; Mailing Address: 8701 Morrissette Drive, 
Springfield, Virginia 22152; Telephone: (202) 598-6812.

SUPPLEMENTARY INFORMATION: 

Posting of Public Comments

    Please note that comments received in response to this docket are 
considered part of the public record and will be made available for 
public inspection and posted at http://www.regulations.gov. Such 
information includes personal identifying information (such as your 
name, address, etc.) voluntarily submitted by the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be made public, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
place all the personal identifying information you do not want made 
publicly available in the first paragraph of your comment and identify 
what information you want redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be made publicly available, you 
must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the 
first paragraph of your comment. You must also prominently identify 
confidential business information to be redacted within the comment. If 
a comment has so much confidential business information that it cannot 
be effectively redacted, all or part of that comment may not be made 
publicly available.
    Comments containing personally identifying information or 
confidential business information identified as directed above will be 
made publicly available in redacted form. The Freedom of Information 
Act (FOIA) applies to all comments received. If you wish to personally 
inspect the comments and materials received or the supporting 
documentation the DEA used in preparing the proposed action, these 
materials will be available for public inspection by appointment. To 
arrange

[[Page 62501]]

a viewing, please see the FOR FURTHER INFORMATION CONTACT paragraph, 
above.

Requests for Hearing, Notice of Appearance at Hearing, or Waiver of 
Participation in Hearing

    Pursuant to the provisions of the CSA (21 U.S.C. 811(a)), this 
action is a formal rulemaking ``on the record after opportunity for a 
hearing.'' Such proceedings are conducted pursuant to the provisions of 
the Administrative Procedure Act (APA) (5 U.S.C. 551-559), 21 CFR 
1308.41-1308.45, and 21 CFR part 1316 subpart D. In accordance with 21 
CFR 1308.44(a)-(c), requests for a hearing, notices of appearance, and 
waivers of an opportunity for a hearing or to participate in a hearing 
may be submitted only by interested persons, defined as those 
``adversely affected or aggrieved by any rule or proposed rule issuable 
pursuant to section 201 of the Act (21 U.S.C. 811).'' 21 CFR 1300.01. 
Such requests or notices must conform to the requirements of 21 CFR 
1308.44(a) or (b) and 1316.47 or 1316.48, as applicable, and include a 
statement of the interest of the person in the proceeding and the 
objections or issues, if any, concerning which the person desires to be 
heard. Any waiver must conform to the requirements of 21 CFR 1308.44(c) 
and 1316.49, including a written statement regarding the interested 
person's position on the matters of fact and law involved in any 
hearing.
    Please note that pursuant to 21 U.S.C. 811(a), the purpose and 
subject matter of a hearing held in relation to this rulemaking is 
restricted to ``(A) find[ing] that such drug or other substance has a 
potential for abuse, and (B) mak[ing] with respect to such drug or 
other substance the findings prescribed by subsection (b) of section 
812 of [Title 21] for the schedule in which such drug is to be placed. 
. . .'' Requests for hearing, notices of appearance at the hearing, and 
waivers of an opportunity for a hearing or to participate in a hearing 
must be submitted to the DEA using the address information provided 
above.

Legal Authority

    The DEA implements and enforces titles II and III of the 
Comprehensive Drug Abuse Prevention and Control Act of 1970 and the 
Controlled Substances Import and Export Act, as amended, and 
collectively referred to as the Controlled Substances Act (CSA) (21 
U.S.C. 801-971). The DEA publishes the implementing regulations for 
these statutes in title 21 of the Code of Federal Regulations (CFR), 
parts 1300 to 1321. The CSA and its implementing regulations are 
designed to prevent, detect, and eliminate the diversion of controlled 
substances and listed chemicals into the illicit market while providing 
for legitimate medical, scientific, research, and industrial needs of 
the United States. Controlled substances have the potential for abuse 
and dependence and are controlled to protect the public health and 
safety.
    Under the CSA, controlled substances are classified into one of 
five schedules based upon their potential for abuse, their currently 
accepted medical use, and the degree of dependence the substance may 
cause. 21 U.S.C. 812. The initial schedules of controlled substances 
established by Congress are found at 21 U.S.C. 812(c), and the current 
list of all scheduled substances is published at 21 CFR part 1308. 
Pursuant to 21 U.S.C. 811(a)(1), the Attorney General may, by rule, 
``add to such a schedule or transfer between such schedules any drug or 
other substance if he (A) finds that such drug or other substance has a 
potential for abuse, and (B) makes with respect to such drug or other 
substance the findings prescribed by [21 U.S.C. 812(b)] for the 
schedule in which such drug is to be placed . . . .'' Pursuant to 28 
CFR 0.100(b), the Attorney General has delegated this scheduling 
authority to the Administrator of the DEA who has further delegated 
this authority to the Deputy Administrator of the DEA under 28 CFR 
0.104.
    The CSA provides that scheduling of any drug or other substance may 
be initiated by the Attorney General (1) on his own motion; (2) at the 
request of the Secretary of the Department of Health and Human Services 
(HHS); or (3) on the petition of any interested party. 21 U.S.C. 
811(a). If finalized, this action would impose the regulatory controls 
and administrative, civil, and criminal sanctions of Schedule III on 
the manufacture, distribution, dispensing, importation, exportation, 
research, instructional activities, and possession of perampanel.

Background

    Perampanel [2-(2-oxo-1-phenyl-5-pyridin-2-yl-1,2-dihydropyridin-3-
yl) benzonitrile hydrate] is a new chemical entity with central nervous 
system (CNS) depressant and hallucinogenic properties. The HHS states 
that on October 22, 2012, the Food and Drug Administration (FDA) 
approved a new drug application for perampanel as an adjunctive therapy 
for the treatment of partial-onset seizures with or without secondarily 
generalized seizures in patients with epilepsy aged 12 years and older. 
Perampanel will initially be marketed in the United States under the 
trade name FYCOMPA[supreg]. Perampanel is a non-competitive AMPA 
([alpha]-amino-3-hydroxy-5-methyl-4-isoxazolepropionic acid)-type 
glutamate receptor antagonist. Perampanel was approved in Europe in May 
2012 and has been marketed there since July 2012.

Proposed Determination to Schedule Perampanel

    Pursuant to 21 U.S.C. 811(a), proceedings to add a drug or 
substance to those controlled under the CSA may be initiated by request 
of the Secretary of the Department of Health and Human Services (HHS). 
On January 22, 2013, the HHS recommended that the DEA add perampanel to 
Schedule III of the CSA and provided the DEA with the scientific and 
medical evaluation document, ``Basis for the Recommendation for Control 
of Perampanel and Its Salts in Schedule III of the Controlled 
Substances Act.'' Following consideration of the eight factors 
determinative of control under the CSA, with findings related to the 
substance's abuse potential, legitimate medical use, and dependence 
liability, the HHS recommended that perampanel be controlled in 
Schedule III of the CSA. In response, the DEA reviewed the scientific 
and medical evaluation and scheduling recommendation provided by the 
HHS, and all other relevant data, and completed an eight factor review 
document pursuant to 21 U.S.C. 811(c). Included below is a brief 
summary of each factor as analyzed by the HHS and the DEA, and as 
considered by the DEA in its proposed scheduling decision. Please note 
that the DEA and HHS analyses are available in their entirety under 
``Supporting and Related Material'' in the public docket for this 
proposed rule, at http://www.regulations.gov, under Docket Number 
``DEA-374.'' Full analysis of, and citations to, the information 
referenced in the summary may also be found in the supporting and 
related material.
    1. The Drug's Actual or Relative Potential for Abuse: Perampanel is 
a new chemical entity that has been marketed in Europe since July 2012. 
According to the HHS, since perampanel has been marketed in Europe only 
since July 2012, there is a lack of information regarding perampanel's 
actual or relative potential for abuse. However, the legislative 
history of the CSA offers the following criterion for assessing a new 
drug or substance's potential for abuse:

The drug or drugs containing such a substance are new drugs so 
related in their action to a drug or drugs already listed as

[[Page 62502]]

having a potential for abuse to make it likely that the drug will 
have the same potentiality for abuse as such drugs, thus making it 
reasonable to assume that there may be significant diversions from 
legitimate channels, significant use contrary to or without medical 
advice, or that it has a substantial capability of creating hazards 
to the health of the user or to the safety of the community.\1\
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    \1\ Comprehensive Drug Abuse Prevention and Control Act of 1970, 
H.R. Rep. No. 91-1444, 91st Cong., Sess. 1 (1970); as reprinted in 
1970 U.S.C.C.A.N. 4566, 4601.

    According to the HHS, perampanel is a non-competitive AMPA-type 
glutamate receptor antagonist, which has been demonstrated by various 
groups. Antagonism of the AMPA receptors has been shown to produce a 
broad-spectrum anti-convulsant activity of focal and generalized 
epilepsy in animal models.
    The HHS states that monkeys self-administered perampanel at rates 
similar to or greater than those for pentobarbital (Schedule II). These 
data indicate that perampanel may have a high psychological dependence 
liability. It was demonstrated in rats that cessation of administration 
of perampanel produced withdrawal symptoms similar to those produced 
after cessation of diazepam (Schedule IV) administration.
    According to the HHS, a clinical study of recreational drug abusers 
(with histories of abuse of sedative hypnotic and psychoactive drugs 
such as ketamine (Schedule III) and alprazolam (Schedule IV)) using 
ketamine (Schedule III), alprazolam (Schedule IV), and perampanel 
produced subjective effects indicative of abuse potential. The 
subjective effects reported were ``euphoria,'' ``high,'' and ``drug-
liking.'' For the measures of ``floating,'' ``spaced out,'' and 
``detached,'' perampanel produced similar responses to those of 
ketamine (Schedule III) and greater responses than those of alprazolam 
(Schedule IV). The study used 8, 24, and 36 mg doses of perampanel, 100 
mg doses of ketamine (Schedule III), 1.5 and 3mg doses of alprazolam 
(Schedule IV), or a placebo. Those that received 24 and 36 mg doses of 
perampanel reported measures of ``sedation,'' ``slowed down,'' 
``confused,'' ``clear crisp vision,'' and ``attention span'' at levels 
similar to or greater than alprazolam (Schedule IV) and greater than 
ketamine (Schedule III). Forty-six percent of the subjects reported 
euphoria-type adverse events (AEs) with the 24 and 36 mg perampanel 
doses, which was higher than the rate reported for 3 mg alprazolam 
(Schedule IV) (13 percent), and lower than that reported for 100 mg 
ketamine (Schedule III) (89 percent). The data from the study indicated 
that perampanel produces behavioral and subjective effects in humans 
similar to or greater than alprazolam (Schedule IV) and similar to 
ketamine (Schedule III).
    According to the HHS, based on results from the clinical study with 
recreational drug users, it is reasonable to assume that perampanel 
will appeal to individuals who prefer to abuse drugs that elicit the 
subjective and behavioral effects of alprazolam (Schedule IV) and 
ketamine (Schedule III). The HHS anticipates that abuse will result in: 
diversions of perampanel from legitimate pharmaceutical distribution 
channels; significant use of perampanel contrary to or without medical 
advice; and a substantial capability to create hazards to the abuser's 
health and to the safety of the community.
    2. Scientific Evidence of the Drug's Pharmacological Effects, If 
Known: Perampanel is a non-competitive antagonist of the AMPA glutamate 
receptor. According to the HHS, perampanel is also a direct and 
indirect antagonist of the NMDA receptor. The HHS states that 
perampanel is pharmacologically similar to ketamine (Schedule III), a 
NMDA receptor antagonist and a recreational drug known for its 
euphorigenic, dissociative, and hallucinogenic properties. Binding 
studies revealed that perampanel did not inhibit binding at any 
receptor site by more than 50 percent.
    According to the HHS, based on electrophysiological assays 
performed on ion channels of GABAA receptors, perampanel 
would be expected to cause sedation, muscle relaxation, impairment of 
motor coordination and memory, development of dependency, and 
occurrence of benzodiazepine-like withdrawal symptoms after 
discontinuation.
    The DEA further adds that perampanel has inhibited AMPA-induced 
increases in [Ca\2+\]i in rat cortical neurons in a 
concentration-dependent manner, with an IC50 of 93 nM. 
Perampanel (300 nM) inhibited AMPA receptor-mediated excitatory 
postsynaptic field potentials (f-EPSPs) in rat hippocampal slices by 50 
percent. Perampanel inhibited AMPA receptor-mediated f-EPSPs in a dose-
dependent manner, with 10 [mu][Mgr] causing complete inhibition; the 
IC50 was 230 nM.
    According to the HHS, animal studies indicate that perampanel is a 
depressant. The Irwin test is an observational procedure that assesses 
and scores the effects of drugs on rodents' behavior and physiology. 
Perampanel (5 mg/kg), administered orally by gavage, decreased 
alertness, touch response, body position, limb tone, grip strength, 
body tone, spontaneous activity, and abdominal tone, and caused 
staggering and inhibition of palpebral opening (eyelid) in male rats.
    The HHS reported on two human abuse potential studies that were 
performed in healthy, adult, recreational poly-drug users. In the first 
study, eight doses of perampanel (8, 12, 16, 20, 24, 28, 32, and 36 mg) 
were administered to the subjects. It was determined that 36 mg was the 
maximum tolerated dose (MTD). The most commonly reported AEs were 
psychiatric, in particular euphoria, which occurred at a rate of 22.6 
percent in the higher dose group which received 24, 28, 32, and 36 mg 
doses of perampanel.
    In the second human abuse potential study, perampanel produced 
subjective responses similar to or greater than those produced by 
alprazolam (Schedule IV) and ketamine (Schedule III). Perampanel (8, 
24, and 36 mg), ketamine (Schedule III) (100 mg), alprazolam (Schedule 
IV) (1.5 and 3 mg), and placebo were administered to 34 subjects who 
were current recreational poly-drug users with histories of CNS 
depressant and psychedelic drug use. The effects of perampanel (24 and 
36 mg) on the drug-liking Visual Analogue Scale (VAS) were higher than 
that of alprazolam (Schedule IV) (1.5 and 3 mg) and similar to ketamine 
(Schedule III) (100 mg). For the Addiction Research Center Inventory 
Morphine-Benzedrine Group (ARCI MBG) (euphoria) measure, the responses 
produced by perampanel (24 and 36 mg) were comparable to those produced 
by alprazolam (Schedule IV) (3 mg) and ketamine (Schedule III) (100 
mg), indicating that perampanel produces euphoria comparable to that 
produced by alprazolam (Schedule IV) and ketamine (Schedule III). The 
rates reported for euphoria AEs were 37 percent for the 8 mg dose and 
46 percent for the 24 and 36 mg doses of perampanel. The rates reported 
for euphoria AEs for 3 mg alprazolam (Schedule IV) and 100 mg ketamine 
(Schedule III), were 13 percent and 89 percent, respectively.
    For the measure of feeling ``high'' on a VAS, perampanel (24 and 36 
mg) produced responses that were comparable to those for ketamine 
(Schedule III) (100 mg) and alprazolam (Schedule IV) (1.5 and 3 mg). 
Perampanel (36 mg) was long-acting for the sedation and ``high'' 
effects. They lasted at least 22 hours. It was demonstrated that 
perampanel caused

[[Page 62503]]

NMDA-antagonist specific effects, such as ``floating,'' ``spaced out,'' 
``detached,'' and ``feeling happy,'' that were similar to those of 
ketamine (Schedule III) and greater than those of alprazolam (Schedule 
IV) (1.5 and 3 mg). The duration of these effects was longer for 
perampanel (24 and 36 mg) than for ketamine (Schedule III) (100 mg): 24 
to 48 hours compared to 3 hours, respectively. The measures of 
``sedation,'' ``confused,'' ``slowed down,'' ``attention span,'' and 
``clear crisp vision'' following doses of 24 and 36 mg perampanel were 
similar to, or greater than, alprazolam (Schedule IV), and greater than 
ketamine (Schedule III). The duration of effects of higher doses of 
perampanel on the majority of measures was longer than for 3 mg 
alprazolam (Schedule IV) and 100 mg ketamine (Schedule III).
    According to the HHS, in clinical trials that were conducted to 
study the effect of perampanel on certain chronic diseases, e.g., 
epilepsy, Parkinson's disease, migraines, multiple sclerosis (MS), and 
peripheral neuropathy, perampanel caused CNS depressant effects 
including somnolence/sedation, dizziness, ataxia, confusion, amnesia 
and memory impairment, euphoria, depression, and suicidality. The AEs 
that are related to NMDA receptor antagonists were also associated with 
perampanel. These included psychotic disorder/psychosis, 
hallucinations, dissociation, delusional behavior, delirium, paranoia, 
euphoria, agitation, amnesia, confusion, and catatonia.
    3. The State of Current Scientific Knowledge Regarding the Drug or 
Other Substance: Perampanel (2-(2-oxo-1-phenyl-5-pyridin-2-yl-1,2-
dihydropyridin-3-yl)benzonitrile hydrate (4:3) is a white-to-yellowish 
powder. The molecular formula is 
C23H15N3O  3/4H2O. 
It is freely soluble in N-methylpyrrolidone, sparingly soluble in 
acetonitrile and acetone, slightly soluble in methanol, ethanol, and 
ethyl acetate, very slightly soluble in 1-octanol and diethyl ether, 
and practically insoluble in heptanes and water.
    Perampanel is rapidly and almost completely absorbed, slowly 
metabolized, and slowly eliminated after oral administration. In 
humans, the median Tmax ranged from 0.5-2.5 hours under 
fasted conditions; the Tmax increased by 2-3 hours under fed 
conditions. Tmax is the amount of time for a substance to 
reach maximal plasma concentrations after administration. According to 
the HHS, the mean half-life of perampanel (1 mg) in the fasted state 
was 84.5 and 129.5 hours for men and women, respectively. The steady 
state is reached in about 2-3 weeks. Perampanel is slowly metabolized 
and the metabolites are eliminated rapidly via urine or feces. Three 
metabolites of perampanel have been identified as HU1, HU2, and HU3. 
HU1 and HU2 are oxygen glucuronide conjugates and HU3 is a dihydrodiol 
analog. Oxidative metabolism is mediated by CYP3A4 and/or CYP3A5.
    4. Its History and Current Pattern of Abuse: An assessment of the 
history and current pattern of perampanel abuse is not available 
because it has only been marketed in Europe since July 2012. As stated 
in HHS's review, the results of a human abuse potential study indicate 
that perampanel has an abuse potential comparable to or greater than 
the abuse potential of alprazolam (Schedule IV) and similar to that of 
ketamine (Schedule III). In addition, higher doses of perampanel 
produced a high rate of euphoria-type AEs (up to 46 percent). The HHS 
asserts that the positive subjective effects reported from 
supratherapeutic doses of perampanel administration are predictive of 
its potential to be abused. Alprazolam (Schedule IV) and ketamine 
(Schedule III) have histories of diversion and abuse. Based on 
perampanel's subjective AE profile and its similarity to ketamine 
(Schedule III) and alprazolam (Schedule IV), it is reasonable to assume 
that perampanel will produce an abuse pattern that will have features 
of both ketamine (Schedule III) and alprazolam (Schedule IV) abuse.
    5. The Scope, Duration, and Significance of Abuse: According to the 
HHS review, the scope, duration, and significance of abuse of 
perampanel are unknown because it has only been marketed in Europe 
since July 2012. However, the scope, duration, and significance of 
abuse of perampanel can be predicted from the data obtained in pre-
market clinical studies such as abuse potential studies and other 
clinical studies. In its analysis, the HHS concluded that:

[I]f perampanel were marketed in the United States, the scope and 
significance of abuse of perampanel would be similar to or greater 
than alprazolam [Schedule IV] and similar to or greater than 
ketamine [Schedule III]. If perampanel were marketed as a non-
controlled antiepileptic drug, it is reasonable to assume that 
perampanel would be abused to an even greater extent than it would 
be when controlled in Schedule III of the CSA. This is because 
individuals who abuse such drugs, namely ketamine, would likely 
prefer to use a drug that is non-controlled, or in a lower level of 
control, rather than drugs that act similarly and are controlled in 
[Schedule III], or more restrictive schedules of the CSA.

    6. What, if Any, Risk There Is to the Public Health: According to 
HHS, perampanel likely poses a risk to public health similar to or 
greater than that of alprazolam (Schedule IV) and similar to that of 
ketamine (Schedule III). The HHS asserts that the ability of a drug to 
have an abuse potential is an indication of the public health risk 
associated with the drug. As summarized in Factor 2, supratherapeutic 
doses of perampanel (24 and 36 mg) produced euphoria-type AEs in 46 
percent of subjects, which was greater than the rate of euphoria AEs in 
subjects given 3 mg alprazolam (Schedule IV) (13 percent) and less than 
that produced by 100 mg ketamine (Schedule III) (89 percent).
    Clinical studies have demonstrated that perampanel does affect 
psychomotor performance. In a study of healthy volunteers, single and 
multiple doses of 8 and 12 mg perampanel dose-dependently impaired 
psychomotor performance. In the same study, healthy volunteers were 
given alcohol until their alcohol blood level reached 80-100 mg/100 ml, 
in addition to perampanel. The effects of perampanel on complex tasks, 
such as driving ability, were additive or supra-additive to the 
impairment effects of alcohol.
    According to the HHS, the risk of perampanel to the public health 
was demonstrated by the AEs of aggression, anger, hostility, suicidal 
ideation and attempts, and homicidal ideation and threats associated 
with perampanel during the clinical trials. The FYCOMPA[supreg] drug 
label includes a boxed warning alerting prescribers and ultimate users 
to these public health risks. Approximately 50 subjects from the 
clinical trials, without previous relevant psychiatric histories, 
developed psychotic disorders, such as paranoia, delusion, delirium, 
schizophrenia, and catatonia while taking perampanel. This indicates 
that perampanel may cause users to display unpredictable or aggressive 
behavior towards themselves or others. Based on the AEs of perampanel 
summarized above, the HHS determined that the public health risks of 
perampanel are likely to be similar to other CNS drugs, such as 
ketamine (Schedule III).
    7. Its Psychic or Physiological Dependence Liability: According to 
the HHS, low (up to 14.7 mg/kg) and high doses (up to 43.5 mg/kg) of 
oral perampanel were administered to rats for 4 weeks, followed by a 1-
week withdrawal period. During the withdrawal period, the rats 
displayed withdrawal symptoms indicative of dependence, such as hyper-
reactivity and muscle rigidity, along with reduced food consumption.
    According to the HHS, the physical dependence of perampanel in 
humans

[[Page 62504]]

has not been fully evaluated, because in Phase 3 clinical trials, 
symptoms of withdrawal were collected in only a small fraction of 
patients. Reported withdrawal symptoms included fatigue/lethargy/
asthenia, irritability, anxiety/nervousness, worsening of mood/
tearfulness, mood swings, sleep disorders, weight changes, changes in 
appetite, muscle pain/stiffness, diarrhea/nausea/vomiting, rhinorrhea, 
lacrimation, headache, dizziness, hallucinations, panic, and craving/
drug seeking. The HHS asserts that the limited results demonstrate that 
discontinuation of perampanel administration causes signs and symptoms 
of withdrawal.
    8. Whether the Substance Is an Immediate Precursor of a Substance 
Already Controlled Under the CSA: Perampanel is not an immediate 
precursor of a substance already controlled under the CSA.
    Conclusion: Based on consideration of the scientific and medical 
evaluation conducted by the HHS and its recommendation, and after 
considering its own eight-factor analysis, the DEA has determined that 
these facts and all relevant data constitute substantial evidence of 
potential for abuse of perampanel. As such, the DEA hereby proposes to 
schedule perampanel as a controlled substance under the CSA.

Proposed Determination of Appropriate Schedule

    The CSA outlines the findings required to place a drug or other 
substance in any particular schedule (I, II, III, IV or V). 21 U.S.C. 
812(b). After consideration of the analysis and recommendation by the 
Assistant Secretary for Health of the HHS, and review of all available 
data, the Deputy Administrator of the DEA, pursuant to 21 U.S.C. 
812(b)(3), finds that:
    1. Perampanel has a potential for abuse less than the drugs or 
other substances in Schedules I and II;
    2. Perampanel has a currently accepted medical use in treatment in 
the United States. Perampanel was approved for marketing by the FDA as 
an adjunctive treatment of partial-onset seizures with or without 
secondarily generalized seizures in patients with epilepsy aged 12 
years and older; and
    3. Abuse of perampanel may lead to moderate or low physical 
dependence or high psychological dependence.
    Based on these findings, the Deputy Administrator of the DEA 
concludes that perampanel [2-(2-oxo-1-phenyl-5-pyridin-2-yl-1,2-
dihydropyridin-3-yl) benzonitrile hydrate], including its salts, 
isomers, and salts of isomers, warrants control in Schedule III of the 
CSA. 21 U.S.C. 812(b)(3).

Requirements for Handling Perampanel

    If this rule is finalized as proposed, perampanel would be subject 
to the CSA's Schedule III regulatory controls and administrative, 
civil, and criminal sanctions applicable to the manufacture, 
distribution, dispensing, importing, exporting, research, and conduct 
of instructional activities, including the following:
    Registration. Any person who handles (manufactures, distributes, 
dispenses, imports, exports, engages in research, or conducts 
instructional activities) perampanel, or who desires to handle 
perampanel, would be required to be registered with the DEA to conduct 
such activities, pursuant to 21 U.S.C. 822, 823, 957, and 958, and in 
accordance with 21 CFR parts 1301 and 1312. Any person who handles 
perampanel, and is not registered with the DEA, must be registered with 
the DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, 
and 958, and in accordance with 21 CFR parts 1301 and 1312. Any person 
who handles perampanel, and is not registered with the DEA, would need 
to be registered with the DEA to conduct such activities by the 
effective date of the final rule.
    Security. Perampanel would be subject to Schedule III-V security 
requirements and would need to be handled and stored in accordance with 
21 CFR 1301.71-1301.93, pursuant to 21 U.S.C. 823, 821, 871(b).
    Labeling and Packaging. All labels and labeling for commercial 
containers of perampanel distributed on or after finalization of this 
rule would need to be in accordance with 21 CFR 1302.03-1302.07, 
pursuant to 21 U.S.C. 825, 958(e).
    Inventory. Every DEA registrant who possesses any quantity of 
perampanel on the effective date of the final rule would be required to 
take an inventory of all stocks of perampanel on hand as of the 
effective date of the rule, pursuant to 21 U.S.C. 827, 958(e) and in 
accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (d).
    Any person who becomes registered with the DEA after the effective 
date of the final rule would be required to take an initial inventory 
of all stocks of controlled substances (including perampanel) on hand 
at the time of registration pursuant to 21 U.S.C. 827, 958(e), and in 
accordance with 21 CFR 1304.03, 1304.04, and 1304.11(a) and (b). After 
the initial inventory, every DEA registrant would be required to take a 
biennial inventory of all controlled substances (including perampanel) 
on hand, on a biennial basis, pursuant to 21 U.S.C. 827, 958(e) and in 
accordance with 21 CFR 1304.03, 1304.04, and 1304.11.
    Records. All DEA registrants would be required to maintain records 
of perampanel pursuant to 21 U.S.C. 827, 958(e) and in accordance with 
21 CFR parts 1304 and 1312.
    Prescriptions. All prescriptions for perampanel or prescriptions 
for products containing perampanel would be required to be issued 
pursuant to 21 U.S.C. 829 and in accordance with 21 CFR part 1306.
    Importation and Exportation. All importation and exportation of 
perampanel would need to be done in accordance with 21 CFR part 1312, 
pursuant to 21 U.S.C. 952, 953, 957, and 958.
    Liability. Any activity with perampanel not authorized by, or in 
violation of, the CSA, occurring on or after finalization of this 
proposed rule, would be unlawful, and may subject the person to 
administrative, civil, and/or criminal sanctions.

Regulatory Analyses

Executive Orders 12866 and 13563

    In accordance with 21 U.S.C. 811(a), this proposed scheduling 
action is subject to formal rulemaking procedures performed ``on the 
record after opportunity for a hearing,'' which are conducted pursuant 
to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the 
procedures and criteria for scheduling a drug or other substance. Such 
actions are exempt from review by the Office of Management and Budget 
(OMB) pursuant to Section 3(d)(1) of Executive Order 12866 and the 
principles reaffirmed in Executive Order 13563.

Executive Order 12988

    This proposed regulation meets the applicable standards set forth 
in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice 
Reform to eliminate drafting errors and ambiguity, minimize litigation, 
provide a clear legal standard for affected conduct, and promote 
simplification and burden reduction.

Executive Order 13132

    This proposed rulemaking does not have federalism implications 
warranting the application of Executive Order 13132. The proposed rule 
does not have substantial direct effects on the States, on the 
relationship between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government.

[[Page 62505]]

Executive Order 13175

    This proposed rule does not have tribal implications warranting the 
application of Executive Order 13175. It does not have substantial 
direct effects on one or more Indian tribes, on the relationship 
between the Federal Government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
Government and Indian tribes.

Regulatory Flexibility Act

    The Deputy Administrator, in accordance with the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601-612), has reviewed this proposed 
rule and by approving it certifies that it will not have a significant 
economic impact on a substantial number of small entities. The purpose 
of this proposed rule is to place perampanel, including its salts, 
isomers, and salts of isomers, into Schedule III of the CSA. No less 
restrictive measures (i.e., non-control) enable the DEA to meet its 
statutory obligations under the CSA. In preparing this certification, 
the DEA has assessed economic impact by size category and has 
considered costs with respect to the various DEA registrant business 
activity classes.
    Perampanel is a new molecular entity, approved by the FDA on 
October 22, 2012. It was approved in Europe in May 2012, and has been 
marketed in Europe since July 2012. According to publicly available 
information reviewed by the DEA, perampanel is currently anticipated to 
enjoy patent protection for at least a decade before generic 
equivalents may be manufactured and marketed. Accordingly, the number 
of currently identifiable manufacturers, importers, and distributors 
for perampanel is extremely small. The publicly available materials 
also specify the readily identifiable persons subject to direct 
regulation by this proposed rule. Based on guidelines utilized by the 
Small Business Administration, the perampanel manufacturer/distributor/
importer was determined not to be a small entity. Once generic 
equivalents are developed and approved for manufacturing and marketing, 
there may be additional manufacturers, importers, and distributors of 
perampanel, but whether they may qualify as small entities cannot be 
determined at this time.
    There are approximately 1.5 million controlled substance 
registrants, approximately 381,559 of which are estimated to be 
businesses. The DEA estimates that 371,588 (97 percent) of the affected 
businesses are considered ``small entities'' in accordance with the RFA 
and Small Business Administration (SBA) standards. 5 U.S.C. 601(6) and 
15 U.S.C. 632. However, due to the wide variety of unidentifiable and 
unquantifiable variables that could potentially influence the 
dispensing rates of new chemical entities, the DEA is unable to 
determine the number of small entities that might dispense (including 
administer and prescribe) perampanel (e.g., pharmacies and 
prescribers).
    Despite the fact that the number of small businesses potentially 
impacted by this proposed rule could not be determined at this time, 
the DEA concludes that they would not experience a significant economic 
impact as a result of this rule. Currently, 98 percent of DEA 
registrants (most of which are small businesses) are authorized to 
handle Schedule III controlled substances. Even if we assume that all 
of the DEA registrants were to dispense perampanel, (e.g., 
practitioners prescribe, administer, or dispense the substance, and 
pharmacies dispense the prescriptions), the costs that they would incur 
as a result of perampanel scheduling would be minimal. Registrants that 
dispense (but not prescribe) would incur nominal additional security, 
inventory, recordkeeping, and labeling costs, as they have already 
established and implemented the required systems and processes to 
handle Schedule III controlled substances. For example, pharmacies and 
institutional practitioners may disperse Schedule II through V 
controlled substances throughout their stock of non-controlled 
substances in such a manner as to obstruct theft or diversion of the 
controlled substances. The inclusion of one additional substance to 
this system would result in little or no additional burden to such 
practitioners. In addition, because DEA-registered dispensers must 
label all Schedule II-V controlled substances dispensed, the 
requirement to label all controlled substances containing perampanel 
would not impose a significant economic burden upon DEA-registered 
dispensers (as the infrastructure and materials for doing so would 
already be in place). Accordingly, compliance would not require 
significant manpower, capital investments, or recordkeeping burdens.
    Registrants who only prescribe perampanel by oral or written 
prescription would not incur any additional security, inventory, 
recordkeeping, or labeling costs as a result of this rule as they would 
not physically handle perampanel.
    Because of these facts, this proposed rule will not result in 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995 
(2 U.S.C. 1501 et seq.), on the basis of information contained in the 
``Regulatory Flexibility Act'' section above, the DEA has determined 
and certifies pursuant to UMRA that this action would not result in any 
federal mandate that may result ``in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted for inflation) in any one year. . . .'' 
Therefore, neither a Small Government Agency Plan nor any other action 
is required under provisions of UMRA of 1995.

Paperwork Reduction Act of 1995

    This action does not impose a new collection of information 
requirement under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521). This action would not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

List of Subjects in 21 CFR Part 1308

    Administrative practice and procedure, Drug traffic control, 
Reporting and recordkeeping requirements.

    For the reasons set out above, 21 CFR part 1308 is proposed to be 
amended as follows:

PART 1308--SCHEDULES OF CONTROLLED SUBSTANCES

0
1. The authority citation for 21 CFR part 1308 continues to read as 
follows:

    Authority:  21 U.S.C. 811, 812, 871(b), unless otherwise noted.

0
2. Amend Sec.  1308.13 by redesignating paragraphs (c)(11) through 
(c)(14) as paragraphs (c)(12) through (c)(15) and adding new paragraph 
(c)(11) to read as follows:

Sec.  1308.13  Schedule III.

* * * * *
    (c) * * *
    (11) Perampanel, and its salts, isomers, and salts of isomers 2261
* * * * *

[[Page 62506]]

    Dated: October 9, 2013.
Thomas M. Harrigan,
Deputy Administrator.
[FR Doc. 2013-24600 Filed 10-21-13; 8:45 am]
BILLING CODE P
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