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The Committee that acted for the National Conference of Commissioners on Uniform State Laws in preparing Amendments to the Uniform Controlled Substances Act (1990) Article 4 - Offenses and Penalities and Article 5 - Civil Forfeiture was as follows:
RAYMOND P. PEPE, 13th Floor, 240 North Third Street, Harrisburg, PA 17101, Chair
BRYCE A. BAGGETT, Suite E, 5817 N.W. Grand Boulevard, Oklahoma City,
OK 73118
MARION W. BENFIELD, JR., Wake Forest University, School of Law, P.O. Box 7206,
Winston-Salem, NC 27109
WILLIAM R. BREETZ, JR., 22nd Floor, CityPlace I, 185 Asylum Steet, Hartford,
CT 06103
PHILLIP CARROLL, 120 East Fourth Street, Little Rock, AR 72201
JACK DAVIES, Court of Appeals, Judicial Building, 25 Constitution Avenue, St. Paul,
MN 55155
SIDNEY S. EAGLES, JR., Court of Appeals, P.O. Box 888, Raleigh, NC 27602
ROBINSON O. EVERETT, P.O. Box 586, 301 West Main Street, Durham, NC 27702
DAVID A. GIBSON, P.O. Box 1767, 10 Park Place, Brattleboro, VT 05302
ALVIN J. MEIKLEJOHN, JR., Suite 1600, 1625 Broadway, Denver, CO 80202
KEVIN L. COLE, University of San Diego, School of Law, 5998 Alcala Park, San Diego,
CA 92110, Reporter
RICHARD C. HITE, 200 West Douglas Avenue, Suite 630, Wichita, KS 67202,
President
K. KING BURNETT, P.O. Box 910, 115 Broad Street, Salisbury, MD 21803,
Chair, Division A
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road,
Norman, OK 73019, Executive Director
WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104,
Executive Director Emeritus
CURTIS R. REITZ, University of Pennsylvania, School of Law, 3400 Chestnut Steet,
Philadelphia, PA 19104, Chair
ROBERT H. HENRY, U.S. Court of Appeals, Room 3409, 200 N.W. Fourth Street,
Oklahoma City, OK 73102
DONALD JOE WILLIS, Suites 1600-1950, Pacwest Center, 1211 S.W. 5th Avenue,
Portland, OR 97204
JOHN J. BYRNE, American Bankers Association
F. A. GOSSETT, III, American Bar Association, Judicial Administration Division,
National Conference of Special Court Judges
CHARLES J. JACOBUS, American College of Real Estate Lawyers
JAMES L. KNOLL, American Bar Association, Section of Tort and Insurance Practice
TERRANCE G. REED, American Bar Association
DAVID B. SMITH, National Association of Criminal Defense Lawyers
MARY STARK-HOOD, National Association of Realtors
EDWARD E. STERLING, American Bar Association, Section of Real Property, Probate
and Trust Law
The Committee that acted for the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Controlled Substances Act (1990) was as follows:
DAVID A. GIBSON, P.O. Box 1767, 10 Park Place, Brattleboro, VT 05302, Chair
RICHARD L. BRAUN, Campbell University, School of Law, P.O. Box 158,
Buies Creek, NC 27506
JAY E. BURINGRUD, Legislative Council, State Capitol, 600 East Boulevard Avenue,
Bismarck, ND 58505, Drafting Liaison and National Conference Reporter
JOHN C. DEACON, P.O. Box 1700, Jonesboro, AR 72403
ROBINSON O. EVERETT, P.O. Box 586, 301 West Main Street, Durham, NC 27702
ALBERTO FERRER, Inter American University, School of Law, P.O. Box 8513,
San Juan, PR 00910
PATRICK C. GUILLOT, Suite 900, 8080 North Central Expressway, Dallas, TX 75206
REID C. PIXLER, Office of U.S. Attorney, Suite 4000, 230 North First Avenue, Phoenix,
AZ 85025
JAMES A. YATES, Office of Counsel to Speaker, Room 932, Legislative Office
Building, Albany, NY 12248
LAWRENCE J. BUGGE, P.O. Box 1497, 1 South Pinckney Street, Madison, WI 53701,
President
CURTIS R. REITZ, University of Pennsylvania, School of Law, 3400 Chestnut Street,
Philadelphia, PA 19104, Chair, Division A
JOHN W. THOMAS, 2nd Floor, 6 Calendar Court, P.O. Box 6216, Columbia, SC 29206,
Chair
CHARLES M. CROOK, 2 Dexter Avenue, Montgomery, AL 36104
GARY R. GEORGE, Room 40 South, State Capitol, Madison, WI 53702
ROBERT T. ANGAROLA, Hyman, Phelps & McNamara
TIMOTHY E. CLARKE, American Bar Association
HARRY S. HARBIN, U.S. Department of Justice
DAVID E. JORANSON, National Association of State Controlled Substances Authorities
WILLIAM L. MARCUS, National Association of State Controlled Substances
Authorities
STEPHEN E. STONE, Drug Enforcement Administration of U.S. Department of Justice
BONNIE B. WILFORD, American Medical Association
American Civil Liberties Union
Criminal Justice Policy Foundation
National Association of Attorneys General
National Association of Criminal Defense Lawyers
National District Attorneys Association
§ 101. Definitions
§ 201. Authority to Control
§ 202. Nomenclature
§ 203. Schedule I Tests
§ 204. Schedule I
§ 205. Schedule II Tests
§ 206. Schedule II
§ 207. Schedule III Tests
§ 208. Schedule III
§ 209. Schedule IV Tests
§ 210. Schedule IV
§ 211. Schedule V Tests
§ 212. Schedule V
§ 213. Publishing of Schedules
§ 214. Controlled Substance Analog Treated as Schedule I Substance
§ 301. Rules
§ 302. Registration Requirements
§ 303. Registration
§ 304. Suspension or Revocation of Registration
§ 305. Order to Show Cause
§ 306. Records of Registrants
§ 307. Order Forms
§ 308. Prescriptions
§ 309. Diversion and Prevention Control
§ 401. Prohibited Acts A; Penalties
§ 402. Prohibited Acts B; Penalties
§ 403. Prohibited Acts C; Penalties
§ 404. Counterfeit Substances Prohibited; Penalty
§ 405. Imitation Controlled Substances Prohibited; Penalty
§ 406. Possession as Prohibited Act; Penalties
§ 407. Conspiracy; Penalty
§ 408. Solicitation; [Attempt;] Penalty
§ 409. Distribution to Individual Under Age 18; Distribution Near Schools or Colleges;
Penalties
§ 410. Employment or Use of Individual Under 18 Years of Age in Drug Operations;
Penalties
§ 411. Continuing Criminal Enterprise; Penalty
§ 412. Money Laundering and Illegal Investment; Penalty
§ 413. Second or Subsequent Offenses; Penalties
§ 414. Conditional Discharge for Possession as First Offense
[§ 415. Treatment Option for Violation of [Act]]
§ 416. Assessment for Education and Treatment; Appropriation of Moneys
§ 417. Penalties Under Other Laws
§ 418. Bar to Prosecution
§ 419. Criminal Forfeiture
§ 501. Definitions
§ 502. Agencies Responsible for Forfeitures
§ 503. Conduct that Subjects Property to Forfeiture
§ 504. Property Subject to Forfeiture
§ 505. Interests Exempt from Forfeiture
[§ 506. Attorney's Fees]
§ 507. Seizure of Property for Forfeiture
§ 508. Custody and Release of Seized Property
§ 509. Liens
§ 510. Substitution of Property
§ 511. Release of Property Upon Preliminary Hearing
§ 512. Administrative Procedures
§ 513. Administrative Exemption or Substitution of Property
§ 514. Demand for Judicial Proceedings
§ 515. Summary Forfeiture
§ 516. Judicial Procedures
§ 517. Requirements for Proceedings In Rem
§ 518. Requirements for Proceedings In Personam
§ 519. Time for Commencement of Proceedings; Remedies
§ 520. Excessive Forfeitures
§ 521. Burdens of Proof; Admissible Evidence
§ 522. Disposition of Forfeited Property
§ 523. Evading Forfeiture
§ 524. Restriction on Actions; Remedies
§ 525. Statute of Limitations
[§ 601. Powers of Enforcement Personnel]
§ 602. Administrative Inspections and Warrants
§ 603. Injunctions
§ 604. Cooperative Arrangements and Confidentiality
§ 605. Pleadings; Presumptions; Liabilities
§ 606. Judicial Review
§ 607. Education and Research
§ 701. Prospective Application
§ 702. Pending Proceedings
§ 703. Continuation of Rules; Application to Existing Relationships
§ 704. Continuing Criminal Enterprise; Civil Action
§ 705. Statute of Limitations
§ 706. Uniformity of Application and Construction
§ 707. Short Title
§ 708. Severability Clause
§ 709. Repeals
§ 710. Effective Date
The Uniform Controlled Substances Act (1990) is designed to supplant the Uniform Controlled Substances Act adopted by the National Conference of Commissioners on Uniform State Laws in 1970. The 1970 Uniform Act was designed to complement the federal Controlled Substances Act, which was enacted in 1970. Since 1970, several changes have been made to the federal act, particularly in 1984, 1986, and 1988.
This Uniform Act was drafted to maintain uniformity between the laws of the several States and those of the federal government. It has been designed to complement the federal law and provide an interlocking trellis of federal and state law to enable government at all levels to control more effectively the drug abuse problem.
The drug abuse problem has reached epidemic proportions. It encompasses almost every nationality, race, and economic level. It has moved from urban areas into suburban and rural communities, and has manifested itself in every State in the Union.
Much of this major increase in drug use and abuse is attributable to the increased mobility of our citizens and their affluence. Drugs clandestinely manufactured or illegally diverted from legitimate channels in one part of a State are easily transported for sale to another part of that State or even to another State. Nowhere is this mobility manifested with greater impact than in the legitimate pharmaceutical industry. The lines of distribution of the products of this major national industry cross in and out of a State innumerable times during the manufacturing or distribution processes. To assure the continued free movement of controlled substances between States, while at the same time securing such States against drug diversion from legitimate sources, it becomes critical to approach not only the control of illicit and legitimate traffic in these substances at the national and international levels, but also to approach this problem at the state and local level on a uniform basis.
A main objective of this Uniform Act is to continue a coordinated and codified system of drug control initiated with the federal act and the 1970 Uniform Act.
The Act sets out the prohibited activities in detail, but does not prescribe specific fines or sentences, this being left to the discretion of the individual States. It further provides law enforcement tools to improve investigative efforts and provides for education and training programs relating to the drug abuse problem.
The Uniform Act updates and improves existing state laws and ensures legislative and administrative flexibility to enable the States to cope with both present and future drug problems. Because of the emphasis on controlling drug use, members of the medical profession may hesitate to prescribe narcotic drugs where use of such drugs is warranted. This Act addresses this concern. Legitimate use of controlled substances is essential for public health and safety, and the availability of these substances must be assured. At the same time, the illegitimate manufacture, distribution, and possession of controlled substances must be curtailed and eliminated. It is recognized that law enforcement may not be the ultimate solution to the drug abuse problem. It is hoped that present research efforts will be continued and vigorously expanded, particularly as they relate to the development of rehabilitation, treatment, and educational programs for addicts, drug dependent persons, and potential drug abusers.
As originally approved in 1970, the Uniform Controlled Substances Act (UCSA) authorized the seizure and forfeiture of controlled substances manufactured, distributed, dispensed or acquired in violation of the Act; raw materials, equipment and containers used in manufacturing, compounding, processing or delivering controlled substances in violation of the Act; conveyances, including aircraft, vehicles and vessels, used to transport property used in violation of the Act; and books, records and research materials used in violation of the Act.
Although asset forfeiture was originally intended to be included within the 1990 version of UCSA, because the members of the National Conference of Commissioners on Uniform State Laws were unable to arrive at agreement concerning the most appropriate manner in which to revise these provisions of the 1970 Act, the 1990 Uniform Act was approved without asset forfeiture provisions. Instead, the National Conference appointed a separate Drafting Committee charged solely with the responsibility of reviewing forfeiture issues. Based upon the recommendations of the new Drafting Committee, the National Conference amended the UCSA in 1994 to reauthorize asset forfeiture as a remedy for violations of the Uniform Act.
The 1994 amendments to the UCSA provide for either civil or criminal forfeiture, and permit civil forfeitures to proceed either in rem or in personam. Both types of forfeiture proceedings derive from long-standing in rem civil forfeiture concepts. Civil forfeiture originated based upon the rationale that, when a thing is used in violation of the law, forfeiture of the thing as an instrument of wrongdoing is appropriate because the thing itself is guilty. Although this fiction seems quaint today, significant social policies, similar to those that justify other civil remedies, continue to support the forfeiture remedy. Allowing merger of this civil remedy with a criminal prosecution in an appropriate case achieves efficiencies and avoids double jeopardy problems that might arise if separate civil forfeiture and criminal prosecution were pursued based on the same activity.
The State has an obvious interest in removing contraband from circulation. Moreover, persons who engage in unlawful conduct, such as drug crimes, have no legitimate claim to the proceeds they derive from such activities, and the State has an interest in depriving such persons of the fruits of their wrongdoing. Further, individuals who engage in drug commerce impose costs on the rest of society for which they may justly be held accountable - law enforcement expenses, harm to users, and collateral violence generated by these activities. Civil and criminal forfeiture allows the State to pursue these legitimate interests.
Perhaps because civil forfeiture has ancient roots, and developed in some ways independently of the rest of our civil system, aspects of civil forfeiture have required adjustment to comport with contemporary notions of justice. For example, the innocence of the owner of property historically did not preclude forfeiture of the property; the theory was that the property itself had done wrong, and the innocence of the owner was not thought to affect that question. However, recent forfeiture statutes have incorporated defenses for owners who are innocent respecting their property's misuse. Such owners could be protected without creation of formal legal protection; one could simply rely upon prosecutorial discretion to protect innocent owners. But the wide-spread acceptance of such statutory defenses illustrates the acceptance of the more general proposition that citizens ought not to be subject to the unconstrained power of government officials, no matter how appropriately most of those officials would discharge their responsibilities. Given the extent to which commercial interests can be implicated by modern forfeitures, statutory protection of the interests of innocent owners is required because in typical commercial transactions, due diligence cannot be satisfied by reliance upon expectations regarding prosecutorial discretion.
The UCSA includes statutory defenses which prevent the forfeiture of the interests of innocent owners. In determining eligibility for the innocent owner defense, the Act rejects the approach of allowing the forfeiture of assets whose owners were merely negligent respecting how their property would be used. Instead, the Act subjects an owner's interest to forfeiture only when the owner was willfully blind respecting how their property would be used. See Section 505. This standard is not only compelled by notions of fairness, but also poses fewer risks to legitimate commerce than is posed by a lower standard.
More generally, the UCSA attempts to set forth in statutory form all important aspects of reasonable and consistent forfeiture practice rather than relying on prosecutorial discretion to achieve similar results. Many of these provisions are lacking from current statutory schemes, although in most jurisdictions prosecutors often have recognized the importance of these concerns through informal accommodations. Such provisions of the Act are intended to prevent forfeiture from becoming unduly disruptive of ordinary commercial activities.
Thus, for example, though the UCSA generally follows the traditional approach of requiring owners to bear the burden of proving that their interests in property are exempt from forfeiture once the State establishes that someone's interest in the property is forfeitable, a special rule is followed respecting certain interest holders who are especially likely to be innocent. Such interest holders need incur the expense of establishing their innocence only if the State has reason to believe the interest holder is not innocent and so notifies the interest holder. To facilitate the operation of commercial markets, certain of these interests may be repurchased without risk to the buyer so long as the purchase occurs before the State provide notice. See Section 505(f)-(i). When the State's seizure of property for possible forfeiture interferes with an innocent secured party's desire to foreclose on the property, these amendments provide a mechanism to permit the secured party to protect its interests without sacrificing the State's interest in forfeiture. See Sections 510 and 511.
When an owner must prove innocence, the UCSA creates a process of administrative forfeiture that often will permit the owner to establish relevant rights without suffering the expense and uncertainty of litigation. See Sections 512 and 513. The UCSA does not include the problematic "relation-back doctrine," under which the State's interest in property is deemed to have been created as of the wrongdoing that causes forfeiture. Instead, innocent owners' interests are protected just as fully against forfeiture as they are protected from ordinary judgment creditors of the wrongdoer. See Section 522. Moreover, once the State has seized property, the Uniform Act requires that the State proceed diligently with forfeiture proceedings. Innocent owners thus need not suffer the restraint of their property indefinitely, and the simple fact that the State has proceeded against property will interfere with marketability no longer than necessary. See Section 519; see also Section 505(n) (knowledge that State seized property for forfeiture does not deprive purchaser of innocent-owner defense if property had been released).
These 1994 amendments also reform other aspects of forfeiture law the primary impact of which reaches beyond the commercial context. For example, some significant forfeiture statutes, including federal forfeiture statutes, place an exceedingly light burden of proof on the government; owners must prove their innocence once the government establishes probable cause that the property was used illegally, a showing that can be based on evidence, like hearsay, that would be inadmissible in an ordinary civil trial. The UCSA requires the State to satisfy the ordinary civil burden of proof - a preponderance of evidence admissible under the ordinary rules of evidence. See Section 521. The Act dispenses with the requirement that the owner post a bond to resist the State's effort to forfeit it. See Sections 517 and 518. Unlike some proposals, the Act permits a party to demand trial by jury. See Section 517. The Act specifies how the State can place potential purchasers of property on notice of a forfeiture claim without taking physical possession of property, and requires the State to proceed in this way with respect to real property in the usual case. See Sections 507(c) and 509.
Traditionally, courts had no power to take account of whether a forfeiture should be limited because the value of the property involved was excessive in light of its owner's wrongdoing. After Austin v. United States, 113 S. Ct. 2801 (1993), the Eighth Amendment may preclude that approach. Even before the Court's opinion, the National Conference had concluded that courts should be empowered to limit grossly disproportionate forfeitures. See Section 520.
Moreover, many jurisdictions have earmarked forfeited property for law enforcement uses. The UCSA requires that money realized from forfeitures be deposited in general operating funds subject to ordinary appropriation requirements. It is unrealistic to believe that law enforcement needs, and their priority as against other compelling needs, will be closely correlated with the value of property that is forfeited within the relevant jurisdiction in any particular budget period. On the other hand, earmarking funds risks skewing enforcement and prosecutorial priorities. See Section 522. Finally, Section 506 provides States with three optional provisions to deal with the special difficulties that arise when the State forfeits fees that have been paid to attorneys for representation in criminal matters.
The UCSA provides greater guidance than most current federal or state laws respecting how an owner who becomes aware that its property will be improperly used can act to protect its interest. See Section 505(b)(2) and (k). The Act also permits an owner to obtain a prompt judicial examination of whether probable cause exists so as to permit the State to hold property during the pendency of forfeiture proceedings. Even if probable cause does exist, the owner is permitted to obtain use of property in many cases through posting a bond in its fair-market value. See Sections 510 and 511. As to uncontested forfeitures, the administrative process permits the State to prosecute a forfeiture action without the delay inherent in invoking formal judicial proceedings. See Sections 512 and 513.
Finally, the Uniform Act provides that if a State is not substantially justified in seizing property, filing a forfeiture lien, or commencing forfeiture proceedings, the court may award costs and reasonable attorney's fees to the property owner. The Act also authorizes a property owner to maintain a civil action against the State to recover damages resulting from the negligent management of property seized for forfeiture and later released to the property owner. See Section 524.
Additional information respecting these 1994 amendments appears in commentary to Section 419 and Article 5 of the Act. A review of these materials will show that effective law enforcement techniques need not disrupt legitimate commercial activity nor violate widely shared notions of fundamental fairness.
SECTION 101. DEFINITIONS. As used in this [Act]:
(1) "Administer," unless the context otherwise requires, means to apply a controlled substance, whether by injection, inhalation, ingestion, or any other means, directly to the body of a patient or research subject by:
(i) a practitioner or, in the practitioner's presence, by the practitioner's authorized agent; or
(ii) the patient or research subject at the direction and in the presence of the practitioner.
(2) "Controlled substance" means a drug, substance, or immediate precursor included in Schedules I through V of [Article] 2.
(3) (i) "Controlled substance analog" means a substance the chemical structure of which is substantially similar to the chemical structure of a controlled substance listed in or added to Schedule I or II and:
(A) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or II; or
(B) with respect to a particular individual, which the individual represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance included in Schedule I or II; but
(ii) the term does not include:
(A) a controlled substance;
(B) a substance for which there is an approved new drug application;
(C) a substance with respect to which an exemption is in effect for investigational use by a particular person under Section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355] to the extent conduct with respect to the substance is permitted by the exemption; or
(D) any substance to the extent not intended for human consumption before an exemption takes effect with respect to the substance.
(4) "Deliver," unless the context otherwise requires, means to transfer a substance, actually or constructively, from one person to another, whether or not there is an agency relationship.
(5) "Dispense" means to deliver a controlled substance to an ultimate user, patient, or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.
(6) "Dispenser" means a practitioner who dispenses.
(7) "Distribute" means to deliver other than by administering or dispensing a controlled substance.
(8) "Distributor" means a person who distributes.
(9) "Drug" means (i) a substance recognized as a drug in the official United States Pharmacopoeia, National Formulary, or the official Homeopathic Pharmacopoeia of the United States, or a supplement to any of them; (ii) a substance intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in individuals or animals; (iii) a substance, other than food, intended to affect the structure or a function of the body of individuals or animals; and (iv) a substance intended for use as a component of an article specified in this paragraph. The term does not include a device or its components, parts, or accessories.
(10) "Drug Enforcement Administration" means the Drug Enforcement Administration of the United States Department of Justice, or its successor agency.
(11) "Immediate precursor" means a substance:
(i) that the [appropriate person or agency] has found to be and by rule has designated to be the principal compound used, or produced primarily for use, in the manufacture of a controlled substance;
(ii) that is an immediate chemical intermediary used or likely to be used in the manufacture of the controlled substance; and
(iii) the control of which is necessary to prevent, curtail, or limit the manufacture of the controlled substance.
(12) "Isomer" means an optical isomer, but in Sections 101(15)(v), 204(1)(xii) and (xxxiv), 206(1)(iv), and 401(b)(2)(ii) the term includes a geometric isomer; in Sections 204(i)(viii) and (xlii), and 210(a)(3) the term includes a positional isomer; and in Sections 204(1)(xxxv) and (3), and 208(a)(1) the term includes a positional or geometric isomer.
(13) "Manufacture" means to produce, prepare, propagate, compound, convert, or process a controlled substance, directly or indirectly, by extraction from substances of natural origin, chemical synthesis, or a combination of extraction and chemical synthesis, and includes packaging or repackaging of the substance or labeling or relabeling of its container. The term does not include the preparation, compounding, packaging, repackaging, labeling, or relabeling of a controlled substance:
(i) by a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of the practitioner's professional practice; or
(ii) by a practitioner, or by the practitioner's authorized agent under the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.
(14) "Marijuana" means all parts of the plant Cannabis, whether growing or not; its seeds; the resin extracted from any part of the plant; and every compound, salt, derivative, mixture, or preparation of the plant, or its seeds or resin. The term does not include the mature stalks of the plant; fiber produced from the stalks; oil or cake made from the seeds of the plant; any other compound, salt, derivative, mixture, or preparation of the mature stalks, except resin extracted therefrom; fiber, oil, or cake; or the sterilized seed of the plant which is incapable of germination.
(15) "Narcotic drug" means any of the following, however manufactured:
(i) opium, opium derivative, and any derivative of either, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation, but not isoquinoline alkaloids of opium;
(ii) synthetic opiate and any derivative of synthetic opiate, including any isomers, esters, ethers, salts, and salts of isomers, esters, and ethers of them that are theoretically possible within the specific chemical designation;
(iii) poppy straw and concentrate of poppy straw;
(iv) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
(v) cocaine, or any salt, isomer, or salt of isomer of cocaine;
(vi) cocaine base;
(vii) ecgonine, or any derivative, salt, isomer, or salt of isomer of ecgonine; and
(viii) compound, mixture, or preparation containing any quantity of a substance listed in this paragraph.
(16) "Opiate" means a substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. The term includes opium, opium derivatives, and synthetic opiates. The term does not include, unless specifically scheduled as a controlled substance pursuant to Section 201, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). The term includes the racemic and levorotatory forms of dextromethorphan.
(17) "Opium poppy" means the plant of the species Papaver somniferum L., except its seeds.
(18) "Person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government or governmental subdivision or agency, or any other legal or commercial entity.
(19) "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
(20) "Practitioner" means a physician, dentist, veterinarian, scientific investigator, pharmacist, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by this State, to distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of professional practice or research.
(21) "Production," unless the context otherwise requires, includes the manufacturing of a controlled substance and the planting, cultivating, growing, or harvesting of a plant from which a controlled substance is derived.
(22) "State" means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States.
(23) "Ultimate user" means an individual who lawfully possesses a controlled substance for the individual's own use or for the use of a member of the individual's household or for administering to an animal owned by the individual or by a member of the individual's household.
Several provisions of the Uniform Controlled Substances Act (1990) are derived from the wording of the federal Controlled Substances Act. In most instances, deviations from the wording of the federal act are intended to improve readability, with no change in substance. This Act does not include a definition for such terms as "addict," "drug dependent person," or "habitual user." If a State chooses to use such a definition, the State should assure that the definition cannot be construed to include a patient using a controlled substance pursuant to the lawful order of a practitioner. In paragraph (2) "included" is used to refer to substances controlled on adoption of the Act (those substances "listed" in Sections 204, 206, 208, 210, and 212) and to substances controlled under Section 601 and administrative action. The definition of "controlled substance analog" is derived from the definition contained in the federal act, as added by the Anti-Drug Abuse Act of 1986, §§ 1201-1204 (the "Controlled Substance Analogue Enforcement Act of 1986"). "Deliver" and "delivery" apply to any substance so as to include imitation controlled substances. The definition of "drug" is derived from the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321(g)(1). The definition of "isomer" is taken from the federal Controlled Substances Act, 21 U.S.C. 802(14). "Isomer" was added to the federal act in 1984, and amended in 1986 and is further revised to reflect the use of the term in Sections 101(15)(v), 204(a)(1)(xxxiv), 208(a)(1), 210(a)(3), and 401(a)(1)(ii)(B). The definition of marijuana applies to all subtypes or species of Cannabis, regardless of the gross botanical characteristics of individual species, e.g., Cannabis sativa L., Cannabis americanus, Cannabis indica, and Cannabis ruderalis.
SECTION 201. AUTHORITY TO CONTROL.
(a) The [appropriate person or agency] shall administer this [Act] and may add substances to or delete or reschedule substances listed in Section 204, 206, 208, 210, or 212 pursuant to the [insert appropriate state administrative procedures code section].
(b) In making a determination regarding a substance, the [appropriate person or agency] shall consider the following:
(1) the actual or relative potential for abuse;
(2) the scientific evidence of its pharmacological effect, if known;
(3) the state of current scientific knowledge regarding the substance;
(4) the history and current pattern of abuse;
(5) the scope, duration, and significance of abuse;
(6) the risk to the public health;
(7) the potential of the substance to produce psychic or physiological dependence liability; and
(8) whether the substance is an immediate precursor of a controlled substance.
(c) The [appropriate person or agency] may consider findings of the federal Food and Drug Administration or the Drug Enforcement Administration as prima facie evidence relating to one or more of the determinative factors.
(d) After considering the factors enumerated in subsection (b), the [appropriate person or agency] shall make findings with respect to them and adopt and publish a rule controlling the substance upon finding the substance has a potential for abuse.
(e) The [appropriate person or agency], without regard to the findings required by subsection (d) or Sections 203, 205, 207, 209, and 211 or the procedures prescribed by subsections (a) through (d), may add an immediate precursor to the same schedule in which the controlled substance of which it is an immediate precursor is placed or to any other schedule. If the [appropriate person or agency] designates a substance as an immediate precursor, substances that are precursors of the controlled precursor are not subject to control solely because they are precursors of the controlled precursor.
(f) If a substance is designated, rescheduled, or deleted as a controlled substance under federal law, the [appropriate person or agency] shall similarly treat the substance under this [Act] after the expiration of 30 days from the date of publication in the Federal Register of a final order designating the substance as a controlled substance or rescheduling or deleting the substance or from the date of issuance of an order of temporary scheduling under Section 508 of the federal Dangerous Drug Diversion Control Act of 1984 [21 U.S.C. 811(h)], unless within the 30-day period, the [appropriate person or agency] or an interested party objects to the treatment of the substance. If no objection is made, the [appropriate person or agency] shall adopt and publish, without making the determinations or findings required by subsections (a) through (d) or Section 203, 205, 207, 209, or 211, a final rule treating the substance. If an objection is made, the [appropriate person or agency] shall make a determination with respect to the treatment of the substance as provided by subsections (a) through (d). Upon receipt of an objection to the treatment by the [appropriate person or agency], the [appropriate person or agency] shall publish notice of the receipt of the objection, and action by the [appropriate person or agency] under this [Act] is stayed until the [appropriate person or agency] adopts a rule as provided by subsection (d).
(g) The [appropriate person or agency], by rule and without regard to the requirements of subsections (a) through (c), may schedule a substance in Schedule I, whether or not the substance is substantially similar to a controlled substance included in Schedule I or II, if the [appropriate person or agency] finds that scheduling of the substance on an emergency basis is necessary to avoid an imminent hazard to the public safety and the substance is not in any other schedule or no exemption or approval is in effect for the substance under Section 505 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 355]. Upon receipt of notice under Section 214, the [appropriate person or agency] shall initiate scheduling of the controlled substance analog on an emergency basis pursuant to this subsection. The scheduling of a substance under this subsection expires one year after the adoption of the scheduling rule. With respect to the finding of an imminent hazard to the public safety, the [appropriate person or agency] shall consider whether the substance has been scheduled on a temporary basis under federal law or factors set forth in subsections (b)(4), (5), and (6), and may also consider clandestine importation, manufacture, or distribution, and, if available, information concerning the other factors set forth in subsection (b). A rule may not be adopted under this subsection until the [appropriate person or agency] initiates a rulemaking proceeding under subsections (a) through (d) with respect to the substance. A rule adopted under this subsection lapses upon the conclusion of the rulemaking proceeding initiated under subsections (a) through (d) with respect to the substance.
(h) Authority of the [appropriate person or agency] to control under this section does not extend to distilled spirits, wine, malt beverages, or tobacco.
The Act vests the authority to administer its provisions in the appropriate person or agency within the State. The "appropriate" person or agency should have expertise in law enforcement, pharmacology, and chemistry. The appropriate person or agency may be one or more persons, or one or more agencies, or a combination. The enacting State should designate that person or agency that has the means to implement, enforce, and regulate the provisions of the Act. For example, authority could be vested in the Office of the Attorney General, a Department of Health, a Division of Public Safety, or such other agency within the State responsible for regulating and enforcing the drug laws. An alternative might be a division of authority whereby one agency might be responsible for controlling drugs under this article, another agency might be designated to regulate the legitimate industry under Article 3, and still another agency might be charged with enforcement. In any event, the ultimate authority for determining the appropriate person or agency is vested in the enacting State.
This section sets out the factors to be considered for the control and classification of drugs into five schedules. This classification achieves one of the main objectives of the Act, which is to create a coordinated, codified system of drug control and regulation. The Act follows the federal Controlled Substances Act and lists all of the controlled substances in five schedules that are identical with the federal law. Throughout the Act "listed" is used to refer to the controlled substances listed in the Act, while "included" is used to refer to substances controlled under authority of the Act but not necessarily "listed" in the Act. The Act is not intended to prevent a State from adding or removing substances from the schedules, or from reclassifying substances from one schedule to another, provided the procedures specified in this section are followed.
The overall intent of this section is to create reasonable flexibility within the Act so that, as new substances are discovered or found to have an abuse potential, they can speedily be brought under control without constant resort to the legislature. This flexibility allows the laws to keep in step with new trends in drug abuse and new scientific information. States should consider establishing a Scientific Advisory Committee consisting of leading medical and pharmaceutical professionals to advise the appropriate person or agency on control of substances.
Subsection (a) allows federal findings with respect to the substance to be the evidence of consideration of the relevant factors enumerated in subsection (a).
Subsection (d) provides a process of action without resorting to normal administrative procedure. The subsection provides that a rule is required to be adopted and published to similarly control a substance without objection and that the decision of the administering agency is final with respect to administrative action but is subject to judicial review as provided by Section 606. The procedure also applies to federal, temporary scheduling of a controlled substance. States that would have a delegation of legislative authority problem may want to replace subsection (d) with a sentence to this effect: "If a substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the [appropriate person or agency], the [appropriate person or agency] shall initiate proceedings to control the substance under this [Act] pursuant to the procedures of [insert appropriate state administrative procedures code section]." Changes to the schedules should be published so as to afford notice, and this is encouraged by the requirement in subsections (b) and (d) that the agency is to cause the rules to be published.
Subsection (e) is intended to allow emergency scheduling and is based on similar temporary scheduling authority in the federal act, added in 1984 and contained in 21 U.S.C. 811(h). The reference to the scheduling on a temporary basis under federal law is intended to allow use of scheduling under the equivalent federal provision, 21 U.S.C. 811(h), as a factor in lieu of the three referenced factors in subsection (a). Although the emergency rulemaking procedure may be initiated without regard to a regular rulemaking proceeding, the initiation of a regular rulemaking proceeding is a condition precedent to the adoption of an emergency rule. States may want to consider whether to allow a hearing under subsection (e) upon the request of an interested party, similar to that provided by subsection (d).
SECTION 202. NOMENCLATURE. The controlled substances listed in or added to the schedules in Sections 204, 206, 208, 210, and 212 are listed or added by any official, common, usual, chemical, or trade name used.
SECTION 203. SCHEDULE I TESTS.
(a) The [appropriate person or agency] shall add a substance to Schedule I upon finding that the substance:
(1) has high potential for abuse;
(2) has no currently accepted medical use in treatment in the United States; and
(3) lacks accepted safety for use under medical supervision.
(b) The [appropriate person or agency] may add a substance to Schedule I without making the findings required by subsection (a) if the substance is controlled under Schedule I of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.
With extreme reluctance the requirements for placing substances in the various schedules are being retained in substantially the form contained in the 1970 Uniform Act and the federal Controlled Substances Act. The primary reason for the retention is that requirements for scheduling particular substances should parallel one another at the state and federal levels. The primary reason for the reluctance to retain the requirements is the fact that substances have been placed on schedules without complying fully with the criteria ordinarily governing scheduling decisions. See Grinspoon v. Drug Enforcement Administration, 828 F.2d 881 (1st Cir. 1987); and National Organization for the Reform of Marijuana Laws (NORML) v. Drug Enforcement Administration, 559 F.2d 735 (D.C. Cir. 1977). Subsection (b) allows placement of a substance on the schedule without the necessity of the findings required by subsection (a), if it is placed by a federal agency on the corresponding federal schedule pursuant to an international agreement. See 21 U.S.C. 811(d). As enacted in 1970 the federal act contained such a provision, 21 U.S.C. 811(d)(1), which was expanded in 1978 with respect to application of the Convention on Psychotropic Substances, 21 U.S.C. 811(d)(2).
SECTION 204. SCHEDULE I. Unless specifically excepted by state or federal law or state or federal regulation or more specifically included in another schedule, the following controlled substances are listed in Schedule I:
(1) any of the following synthetic opiates, including any isomers, esters, ethers, salts, and salts of isomers, esters, and ethers of them that are theoretically possible within the specific chemical designation:
(i) acetyl-alpha-methylfentanyl (N-[1-(1-methyl-2-phenethyl)-4-piperidinyl]-N-phenylacetamide);
(ii) acetylmethadol;
(iii) allylprodine;
(iv) alphacetylmethadol (except levo-alphacetylmethadol, also known as levo-alpha-acetylmethadol, levomethadyl acetate or LAAM);
(v) alphameprodine;
(vi) alphamethadol;
(vii) alpha-methylfentanyl (N-[1-(alpha-methyl-beta-phenyl)ethyl-4-piperidyl] propionanilide; 1-(1-methyl-2-phenylethyl)-4-(N-propanilido) piperidine);
(viii) alpha-methylthiofentanyl (N-[1-methyl-2-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);
(ix) benzethidine;
(x) betacetylmethadol;
(xi) beta-hydroxyfentanyl (N-[1-(2-hydroxy-2-phenethyl)-4-piperidinyl]-N-phenylpropanamide);
(xii) beta-hydroxy-3-methylfentanyl (other name: N-[1-(2-hydroxy-2-phenethyl)-3-methyl-4-piperidinyl]-N-phenylpropanamide);
(xiii) betameprodine;
(xiv) betamethadol;
(xv) betaprodine;
(xvi) clonitazene;
(xvii) dextromoramide;
(xviii) diampromide;
(xix) diethylthiambutene;
(xx) difenoxin;
(xxi) dimenoxadol;
(xxii) dimepheptanol;
(xxiii) dimethylthiambutene;
(xxiv) dioxaphetyl butyrate;
(xxv) dipipanone;
(xxvi) ethylmethylthiambutene;
(xxvii) etonitazene;
(xxviii) etoxeridine;
(xxix) furethidine;
(xxx) hydroxypethidine;
(xxxi) ketobemidone;
(xxxii) levomoramide;
(xxxiii) levophenacylmorphan;
(xxxiv) 3-methylfentanyl (N-[3-methyl-1-(2-phenylethyl)-4-piperidyl]-N-phenylpropanamide);
(xxxv) 3-methylthiofentanyl (N-[3-methyl-1-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide);
(xxxvi) morpheridine;
(xxxvii) MPPP (1-methyl-4-phenyl-4-propionoxypiperidine);
(xxxviii) noracymethadol;
(xxxix) norlevorphanol;
(xl) normethadone;
(xli) norpipanone;
(xlii) para-fluorofentanyl (N-(4-fluorophenyl)-N-[1-(2-phenethyl)-4-piperidinyl]-propanamide);
(xliii) PEPAP(1-(-2-phenethyl)-4-phenyl-4-acetoxypiperidine);
(xliv) phenadoxone;
(xlv) phenampromide;
(xlvi) phenomorphan;
(xlvii) phenoperidine;
(xlviii) piritramide;
(xlix) proheptazine;
(l) properidine;
(li) propiram;
(lii) racemoramide;
(liii) thiofentanyl (N-phenyl-N-[1-(2-thienyl)ethyl-4-piperidinyl]-propanamide);
(liv) tilidine; and
(lv) trimeperidine.
(2) any of the following opium derivatives, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:
(i) acetorphine;
(ii) acetyldihydrocodeine;
(iii) benzylmorphine;
(iv) codeine methylbromide;
(v) codeine-N-Oxide;
(vi) cyprenorphine;
(vii) desomorphine;
(viii) dihydromorphine;
(ix) drotebanol;
(x) etorphine, except hydrochloride salt;
(xi) heroin;
(xii) hydromorphinol;
(xiii) methyldesorphine;
(xiv) methyldihydromorphine;
(xv) morphine methylbromide;
(xvi) morphine methylsulfonate;
(xvii) morphine-N-oxide;
(xviii) myrophine;
(xix) nicocodeine;
(xx) nicomorphine;
(xxi) normorphine;
(xxii) pholcodine; and
(xxiii) thebacon.
(3) material, compound, mixture, or preparation containing any quantity of the following hallucinogenic substances, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:
(i) alpha-ethyltryptamine (AET);
(ii) 4-bromo-2,5-dimethoxy-amphetamine (other names: 4-bromo-2,5-dimethoxy-alpha-methylphenethylamine; 4-bromo-2,5-DMA);
(iii) 2,5-dimethoxyamphetamine (other names: 2,5-dimethoxy-alpha-methylphenethylamine; 2,5-DMA);
(iv) 2,5-dimethoxy-4-ethylamphet-amine (other name: DOET);
(v) 4-methoxyamphetamine (other names: 4-methoxy-alpha-methylphenethylamine; paramethoxyamphetamine, PMA);
(vi) 5-methoxy-3,4-methylenedioxy amphetamine;
(vii) 4-methyl-2,5-dimethoxy-amphetamine (other names: 4-methyl-2,5-dimethoxy-alpha-methylphenethylamine; DOM; and STP);
(viii) 3,4-methylenedioxy amphetamine;
(ix) 3,4-methylenedioxymethamphetamine (MDMA);
(x) methylenedioxy-N-ethylamphetamine (also known as N-ethyl-alpha-methyl-3,4 (methylenedioxy) phenethylamine, N-ethyl MDA, MDE, MDEA);
(xi) N-hydroxy-3,4-methylenedioxy amphetamine (also known as N-hydroxy-alpha-methyl-3,4(methylenedioxy) phenethylamine, and N-hydroxy MDA);
(xii) 3,4,5-trimethoxy amphetamine;
(xiii) bufotenine (other names: 3-(beta-Dimethylaminoethyl)-5-hydroxyindole; 3-(2-dimethylaminoethyl)-5-indolol; N, N-dimethylserotonin; 5-hydroxy-N,N-dimethyltryptamine; mappine);
(xiv) diethyltryptamine (other names: N,N-Diethyltryptamine; DET);
(xv) dimethyltryptamine (other names: DMT);
(xvi) ibogaine (other names: (7-Ethyl-6,6B,7,8,9,10,12,13-octahydro-2-methoxy-6,9-methano-5H-pyrido [1', 2':1,2] azepino [5,4-b] indole; tabernanthe iboga);
(xvii) lysergic acid diethylamide;
(xviii) marijuana;
(xix) mescaline;
(xx) parahexyl (other names: 3-Hexyl-1-hydroxy-7,8,9,10-tetrahydro-6,6,9-trimethyl-6H-dibenzo[b,d]pyran; synhexyl);
(xxi) peyote (all parts of the plant classified botanically as Lophophora williamsii Lemaire, whether growing or not, its seeds, any extract from any part of the plant, and every compound, salts, derivative, mixture, or preparation of the plant, or its seeds or extracts);
(xxii) N-ethyl-3-piperidyl benzilate;
(xxiii) N-methyl-3-piperidyl benzilate;
(xxiv) psilocybin;
(xxv) psilocyn;
(xxvi) tetrahydrocannabinols; synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following:
(A) 1 - cis or trans tetrahydrocannabinol, and their isomers;
(B) 6 - cis or trans tetrahydrocannabinol, and their isomers; and
(C) 3,4 - cis or trans tetrahydrocannabinol, and its isomers (since nomenclature of these substances is not internationally standardized, compounds of these structures, regardless of numerical desynatime of atomic positions covered);
(xxvii) ethylamine analog of phencyclidine (other names: N-ethyl-1-phenylcyclohexylamine; (1-phenylcyclohexyl)ethylamine, N-(1-phenylcyclohexl)ethylamine; cyclohexamine; PCE);
(xxviii) pyrrolidine analog of phencyclidine (other names: 1-(1-phenylcyclohexyl)-pyrrolidine; PCPy; PHP);
(xxix) thiophene analog of phencyclidine (other names: 1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienylanalog of phencyclidine; TPCP; TCP); and
(xxx) TCPy.
(4) material, compound, mixture, or preparation containing any quantity of the following substances having a depressant effect on the central nervous system, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:
(i) mecloqualone; and
(ii) methaqualone.
(5) material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers, and salts of isomers:
(i) aminorex;
(ii) cathinone (other names: 2-amino-1-phenyl-1-propanone; alpha-aminopropiophenone; 2-aminopropiophenone; and morephedrone);
(iii) fenethylline;
(iv) methcathinone (some other names: 2-(methylamino)-propiophenone; 2-(methylamino)-1-phenylpropan-1-one; alpha-N-methylaminopropiophenone; monoethylpropion; ephedrone; N-methylcathinone; methylcathinone; AL-464; AL-422; AL-463; and UR 1432), its salts, optical isomers and salts of optical isomers;
(v) N-ethylamphetamine;
(vi) (±) Cis-4-methylaminorex ((±) cis-4,5-dihydro-4-methyl-5-phenyl-2-oxazolamine); and
(vii) N,N-dimethylamphetamine (also known as N,N-alpha-trimethyl-benzeneethanamine; N-N-alpha-trimethylphenethylamine).
Schedule I reflects the substances controlled under Schedule I of the federal act, as published in 21 CFR 1308.11 (April 1, 1987), and updated through the February 22, 1988, issue of the Federal Register. States that would not have a delegation of legislative authority problem may want to replace the specific listing of substances with an adoption of the federal schedules by reference, with any deletions or additions determined appropriate by the state administrator, or to delete this section and rely on the state administrator to schedule a substance.
Although peyote is listed as a Schedule I controlled substance in this Act and under Schedule I of the federal act, a separate federal regulation (21 CFR 1307.31 (April 1, 1989)) exempts the nondrug use of peyote in bona fide religious ceremonies of the Native American Church. In light of Employment Division v. Smith, 494 U.S. 872, 108 L.Ed. 2d 876, 110 S.Ct. 1595 (1990), States should consider including in Schedule I an exception similar to that found in 21 CFR 1307.31.
SECTION 205. SCHEDULE II TESTS.
(a) The [appropriate person or agency] shall add a substance to Schedule II upon finding that:
(1) the substance has high potential for abuse;
(2) the substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and
(3) the abuse of the substance may lead to severe psychological or physical dependence.
(b) The [appropriate person or agency] may add a substance to Schedule II without making the findings required by subsection (a) if the substance is controlled under Schedule II of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.
Subsection (b) allows placement of a substance on the schedule without the necessity of the findings required by subsection (a), if it is placed by a federal agency on the corresponding federal schedule pursuant to an international agreement. See 21 U.S.C. 811(d). As enacted in 1970 the federal act contained such a provision, 21 U.S.C. 811(d)(1), which was expanded in 1978 with respect to application to the Convention on Psychotropic Substances, 21 U.S.C. 811(d)(2).
SECTION 206. SCHEDULE II. Unless specifically excepted by state or federal law or state or federal regulation or more specifically included in another schedule, the following controlled substances are listed in Schedule II:
(1) any of the following substances, however manufactured:
(i) Opium and opium derivative, and any salt, compound, derivative, or preparation of opium or opium derivative, excluding apomorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, butorphanol, nalmefene, naloxone, and naltrexone, but including:
(A) raw opium;
(B) opium extracts;
(C) opium fluid;
(D) powdered opium;
(E) granulated opium;
(F) tincture of opium;
(G) codeine;
(H) ethylmorphine;
(I) etorphine hydrochloride;
(J) hydrocodone;
(K) hydromorphone;
(L) metopon;
(M) morphine;
(N) oxycodone;
(O) oxymorphone; and
(P) thebaine;
(ii) A salt, compound, derivative, or preparation that is chemically equivalent or identical with any of the substances listed in subparagraph (i), but not isoquinoline alkaloids of opium;
(iii) Opium poppy and poppy straw;
(iv) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, including cocaine and ecgonine and their salts, isomers, derivatives, and salts of isomers and derivatives, and any salt, compound, derivative, or preparation that is chemically equivalent or identical with any of the substances listed in this subparagraph, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine; and
(v) Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid, or powder form which contains the phenanthrene alkaloids of the opium poppy);
(2) any of the following synthetic opiates, including any isomers, esters, ethers, salts, and salts of isomers, esters, and ethers of them that are theoretically possible within the specific chemical designation, dextiorphan and levopropoxyphene excepted:
(i) alfentanil;
(ii) alphaprodine;
(iii) anileridine;
(iv) bezitramide;
(v) carfentanal;
(vi) bulk dextropropoxyphene (non-dosage forms);
(vii) dihydrocodeine;
(viii) diphenoxylate;
(ix) fentanyl;
(x) isomethadone;
(xi) levo-alphacetylmethadol;
(xii) levomethorphan;
(xiii) levorphanol;
(xiv) metazocine;
(xv) methadone;
(xvi) methadone - Intermediate, 4-cyano-2-dimethylamino-4,4-diphenyl butane;
(xvii) moramide - Intermediate, 2-methyl-3-morpholino-1,1-diphenylpropane-carboxylic acid;
(xviii) pethidine (meperidine);
(xix) pethidine - Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine;
(xx) pethidine - Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate;
(xxi) pethidine - Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;
(xxii) phenazocine;
(xxiii) piminodine;
(xxiv) racemethorphan;
(xxv) racemorphan; and
(xxvi) sufentanil;
(3) material, compound, mixture, or preparation containing any quantity of the following substances, their salts, isomers, or salts of isomers, having a stimulant effect on the central nervous system:
(i) amphetamine;
(ii) methamphetamine;
(iii) phenmetrazine; and
(iv) methylphenidate;
(4) material, compound, mixture, or preparation containing any quantity of the following substances having a depressant effect on the central nervous system, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:
(i) amobarbital;
(ii) glutethimide;
(iii) pentobarbital;
(iv) phencyclidine; and
(v) secobarbital;
(5) (i) dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a federal Food and Drug Administration approved drug product ((other names for dronabinol: (6aR-trans)-6a,7,8,10a-tetrahydro-6,6,9-trimethyl-3-pentyl-6H-dibenzo [b,d]pyran-1-o1; (-)-delta-9-(trans)-tetrahydrocannabinol));
(ii) nabilone ((another name for nabilone: (±)-trans-3-(1,1-dimethylheptyl)-6,6a,7,8,10,10a-hexahydro-1-hydroxy-6,6-dimethyl-9Hdibenzo[ b,d]pyran-9-one)); and
(6) material, compound, mixture, or preparation containing any quantity of the following substances:
(i) Immediate precursor to amphetamine and methamphetamine: phenylacetone (other names: phenyl-2-propanone; P2P; benzyl methyl ketone; methyl benzyl ketone);
(ii) Immediate precursors to phencyclidine (PCP):
(A) 1-phenylcyclohexylamine; and
(B) 1-piperidinocyclohexanecarbonitrile (PCC).
Schedule II reflects the substances controlled under Schedule II of the federal act, as published in 21 CFR 1308.12 (April 1, 1987), and updated through the April 15, 1987, issue of the Federal Register. States that would not have a delegation of legislative authority problem may want to replace the specific listing of substances with an adoption of the federal schedules by reference, with any deletions or additions determined appropriate by the state administrator, or to delete this section and rely on the state administrator to schedule a substance.
SECTION 207. SCHEDULE III TESTS.
(a) The [appropriate person or agency] shall add a substance to Schedule III upon finding that:
(1) the substance has a potential for abuse less than the substances included in Schedules I and II;
(2) the substance has currently accepted medical use in treatment in the United States; and
(3) abuse of the substance may lead to moderate or low physical dependence or high psychological dependence.
(b) The [appropriate person or agency] may add a substance to Schedule III without making the findings required by subsection (a) if the substance is controlled under Schedule III of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.
Subsection (b) allows placement of a substance on the schedule without the necessity of the findings required by subsection (a), if it is placed by a federal agency on the corresponding federal schedule pursuant to an international agreement. See 21 U.S.C. 811(d). As enacted in 1970 the federal act contained such a provision, 21 U.S.C. 811(d)(1), which was expanded in 1978 with respect to application to the Convention on Psychotropic Substances, 21 U.S.C. 811(d)(2).
SECTION 208. SCHEDULE III.
(a) Unless specifically excepted by state or federal law or regulation or more specifically included in another schedule, the following controlled substances are listed in Schedule III:
(1) a material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:
(i) a compound, mixture, or preparation in dosage unit form containing any stimulant substance included in Schedule II and which was listed as an excepted compound on August 25, 1971, pursuant to the federal Controlled Substances Act, and any other drug of the quantitative composition shown in that list for those drugs or which is the same except for containing a lesser quantity of controlled substances;
(ii) benzphetamine;
(iii) chlorphentermine;
(iv) clortermine; and
(v) phendimetrazine;
(2) a material, compound, mixture, or preparation containing any quantity of the following substances having a depressant effect on the central nervous system:
(i) a compound, mixture, or preparation containing any of the following drugs or their salts and one or more other active medicinal ingredients not included in any schedule:
(A) amobarbital;
(B) secobarbital; and
(C) pentobarbital;
(ii) any of the following drugs, or their salts, in suppository dosage form, approved by the federal Food and Drug Administration for marketing only as a suppository:
(A) amobarbital;
(B) secobarbital; and
(C) pentobarbital;
(iii) a substance containing any quantity of a derivative of barbituric acid or any salt of a derivative of barbituric acid;
(iv) chlorhexadol;
(v) glutethimide;
(vi) lysergic acid;
(vii) lysergic acid amide;
(viii) methyprylon;
(ix) sulfondiethylmethane;
(x) sulfonethylmethane;
(xi) sulfonmethane; and
(xii) tiletamine and zolazepam or any of their salts (other names for a tiletamine-zolazepam combination product: Telazol; other names for tiletamine: 2-(ethylamino)-2-(2-thienyl)-cyclohexanone; other names for zolazepam: 4-(2-fluorophenyl)-6,8-dihydro-1,3,8-trimethylpyrazolo-[3,4-e][1,4]-diazepin-7(1H)-one; flupyrazapon);
(3) nalorphine; and
(4) a material, compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:
(i) not more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;
(ii) not more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
(iii) not more than 300 milligrams of dihydrocodeinone (hydrocodone) per 100 milliliters or not more than 15 milligrams per dosage unit, with a fourfold or greater quantity of an isoquinoline alkaloid of opium;
(iv) not more than 300 milligrams of dihydrocodeinone (hydrocodone) per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
(v) not more than 1.8 grams of dihydrocodeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
(vi) not more than 300 milligrams of ethylmorphine per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
(vii) not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;
(viii) not more than 50 milligrams of morphine per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts; and
(ix) anabolic steroids. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any quantity of the following substances, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:
(A) anabolic steroids.
(b) The [appropriate person or agency] may exempt by rule a compound, mixture, or preparation containing a stimulant or depressant substance listed in subsections (a)(1) and (2) from the application of all or part of this [Act], if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system and the admixtures are in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances having a stimulant or depressant effect on the central nervous system.
Schedule III reflects the substances controlled under Schedule III of the federal act, as published in 21 CFR 1308.13 (April 1, 1987). States that would not have a delegation of legislative authority problem may want to replace the specific listing of substances with an adoption of the federal schedules by reference, with any deletions or additions determined appropriate by the State administrator, or to delete this section and rely on the state administrator to schedule a substance.
SECTION 209. SCHEDULE IV TESTS.
(a) The [appropriate person or agency] shall add a substance to Schedule IV upon finding that:
(1) the substance has a low potential for abuse relative to substances included in Schedule III;
(2) the substance has currently accepted medical use in treatment in the United States; and
(3) abuse of the substance may lead to limited physical dependence or psychological dependence relative to substances included in Schedule III.
(b) The [appropriate person or agency] may add a substance to Schedule IV without making the findings required by subsection (a) if the substance is controlled under Schedule IV of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.
Subsection (b) allows placement of a substance on the schedule without the necessity of the findings required by subsection (a), if it is placed by a federal agency on the corresponding federal schedule pursuant to an international agreement. See 21 U.S.C. 811(d). As enacted in 1970, the federal act contained such a provision, 21 U.S.C. 811(d)(1), which was expanded in 1978 with respect to application to the Convention on Psychotropic Substances, 21 U.S.C. 811(d)(2).
SECTION 210. SCHEDULE IV.
(a) Unless specifically excepted by state or federal law or state or federal regulation or more specifically included in another schedule, the following controlled substances are listed in Schedule IV:
(1) a material, compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:
(i) not more than 1 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit;
(ii) dextropropoxyphene (dosage forms); and
(iii) dextropropoxyphene (alpha-(+)-4-dimethylamino-1,2-diphenyl-3-methyl-2-propionoxybutane);
(2) a material, compound, mixture, or preparation containing any quantity of the following substances having a depressant effect on the central nervous system, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:
(i) alprazolam;
(ii) barbital;
(iii) bromazepam;
(iv) camazepam;
(v) chloral betaine;
(vi) chloral hydrate;
(vii) chlordiazepoxide;
(viii) clobazam;
(ix) clonazepam;
(x) clorazepate;
(xi) clotiazepam;
(xii) cloxazolam;
(xiii) delorazepam;
(xiv) diazepam;
(xv) estazolam;
(xvi) ethchlorvynol;
(xvii) ethinamate;
(xviii) ethyl loflazepate;
(xix) fludiazepam;
(xx) flunitrazepam;
(xxi) flurazepam;
(xxii) halazepam;
(xxiii) haloxazolam;
(xxiv) ketazolam;
(xxv) loprazolam;
(xxvi) lorazepam;
(xxvii) lormetazepam;
(xxviii) mebutamate;
(xxix) medazepam;
(xxx) meprobamate;
(xxxi) methohexital;
(xxxii) methylphenobarbital (mephobarbital);
(xxxiii) midazolam;
(xxxiv) nimetazepam;
(xxxv) nitrazepam;
(xxxvi) nordiazepam;
(xxxvii) oxazepam;
(xxxviii) oxazolam;
(xxxix) paraldehyde;
(xl) petrichloral;
(xli) phenobarbital;
(xlii) pinazepam;
(xliii) prazepam;
(xliv) quazepam;
(xlv) temazepam;
(xlvi) tetrazepam;
(xlvii) triazolam; and
(xlviii) zolpidem;
(3) a material, compound, mixture, or preparation containing any quantity of the following substance, including any salts, isomers, and salts of isomers of it that are theoretically possible: fenfluramine;
(4) a material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers, and salts of isomers:
(i) cathine ((+)-norseudoephedrine);
(ii) diethylpropion;
(iii) fencamfamin;
(iv) fenproporex;
(v) mazindol;
(vi) mefenorex;
(vii) pemoline (including organometallic complexes and chelates thereof);
(viii) phentermine;
(ix) pipradrol; and
(x) SPA ((-)-1-dimethylamino-1,2-diphenylethane);
(5) a material, compound, mixture, or preparation containing any quantity of the following substance, including its salts: pentazocine.
(b) The [appropriate person or agency] may exempt by rule any compound, mixture, or preparation containing a depressant substance listed in subsection (a)(2) from the application of all or part of this [Act], if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a depressant effect on the central nervous system and the admixtures are in combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances having a depressant effect on the central nervous system.
Schedule IV reflects the substances controlled under Schedule IV of the federal act, as published in 21 CFR 1308.14 (April 1, 1987). States that would not have a delegation of legislative authority problem may want to replace the specific listing of substances with an adoption of the federal schedules by reference, with any deletions or additions determined appropriate by the state administrator, or to delete this section and rely on the state administrator to schedule a substance.
SECTION 211. SCHEDULE V TESTS.
(a) The [appropriate person or agency] shall add a substance to Schedule V upon finding that:
(1) the substance has a low potential for abuse relative to substances included in Schedule IV;
(2) the substance has currently accepted medical use in treatment in the United States; and
(3) abuse of the substance may lead to limited physical dependence or psychological dependence relative to the substances included in Schedule IV.
(b) The [appropriate person or agency] may add a substance to Schedule V without being required to make the findings required by subsection (a) if the substance is controlled under Schedule V of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.
Subsection (b) allows placement of a substance on the schedule without the necessity of the findings required by subsection (a), if it is placed by a federal agency on the corresponding federal schedule pursuant to an international agreement. See 21 U.S.C. 811(d). As enacted in 1970 the federal act contained such a provision, 21 U.S.C. 811(d)(1), which was expanded in 1978 with respect to application to the Convention on Psychotropic Substances, 21 U.S.C. 811(d)(2).
SECTION 212. SCHEDULE V. Unless specifically excepted by state or federal law or state or federal regulation or more specifically included in another schedule, the following controlled substances are listed in Schedule V:
(1) a material, compound, mixture, or preparation containing any of the following narcotic drug and its salts: buprenorphine;
(2) a compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below, which also contains one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation, valuable medicinal qualities other than those possessed by the narcotic drug alone:
(i) not more than 200 milligrams of codeine per 100 milliliters or per 100 grams;
(ii) not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100 grams;
(iii) not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100 grams;
(iv) not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit;
(v) not more than 100 milligrams of opium per 100 milliliters or per 100 grams; and
(vi) not more than 0.5 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit; and
(3) a material, compound, mixture, or preparation containing any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers, and salts of isomers:
(i) pyrovalerone.
Schedule V reflects the substances controlled under Schedule V of the federal act, as published in 21 CFR 1308.15 (April 1, 1987) and updated through the April 4, 1988, issue of the Federal Register. States that would not have a delegation of legislative authority problem may want to replace the specific listing of substances with an adoption of the federal schedules by reference, with any deletions or additions determined appropriate by the state administrator, or to delete this section and rely on the state administrator to schedule a substance.
SECTION 213. PUBLISHING OF SCHEDULES. The [appropriate person or agency] shall publish updated schedules annually. Failure to publish updated schedules is not a defense in any administrative or judicial proceeding under this [Act].
The administrative agency should distribute updated schedules to all registrants under the Act.
SECTION 214. CONTROLLED SUBSTANCE ANALOG TREATED AS SCHEDULE I SUBSTANCE. A controlled substance analog, to the extent intended for human consumption, must be treated, for the purposes of this [Act], as a substance included in Schedule I. Within [ ] days after the initiation of prosecution with respect to a controlled substance analog by indictment or information, the [prosecuting attorney] shall notify the [appropriate person or agency] of information relevant to emergency scheduling as provided for in Section 201(g). After final determination that the controlled substance analog should not be scheduled, no prosecution relating to that substance as a controlled substance analog may be commenced or continued.
This section is based on Section 203 of the federal Controlled Substances Act, 21 U.S.C. 813, as added by the Anti-Drug Abuse Act of 1986, §§ 1201-1204 (the "Controlled Substance Analogue Enforcement Act of 1986"). Because a controlled substance analog, as defined by Section 101, is an unscheduled substance, the section provides for procedures to be initiated to schedule the analog as well as to prevent further prosecution if the analog is found to be not appropriate for scheduling as a controlled substance.
SECTION 301. RULES. The [appropriate person or agency] may adopt rules and charge reasonable fees relating to the registration and control of the manufacture, distribution, and dispensing of controlled substances in this State.
This section permits a State to cover the costs of actual registration and control by charging reasonable fees. However, the section does not permit a State to charge exorbitant fees as a means of fully implementing the regulatory provisions of the Act and thereby avoiding the need for additional state appropriations.
SECTION 302. REGISTRATION REQUIREMENTS.
(a) A person who manufactures, distributes, or dispenses a controlled substance within this State or who proposes to engage in the manufacture, distribution, or dispensing of a controlled substance within this State, shall obtain annually a registration issued by the [appropriate person or agency] in accordance with rules adopted by the [appropriate person or agency].
(b) A person registered by the [appropriate person or agency] under this [Act] to manufacture, distribute, dispense, or conduct research with controlled substances may possess, manufacture, distribute, dispense, or conduct research with those substances to the extent authorized by the registration and in conformity with this [article].
(c) The following persons need not register and may lawfully possess controlled substances under this [Act]:
(1) an agent or employee of a registered manufacturer, distributor, or dispenser of a controlled substance if the agent or employee is acting in the usual course of business or employment;
(2) a common or contract carrier or warehouseman, or an employee thereof, whose possession of any controlled substance is in the usual course of business or employment; and
(3) an ultimate user or a person in possession of a controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a substance included in Schedule V.
(d) The [appropriate person or agency] by rule may waive the requirement for registration of certain manufacturers, distributors, or dispensers upon finding it consistent with the public health and safety.
(e) A separate registration is required for each principal place of business or professional practice where the applicant manufactures, distributes, or dispenses controlled substances.
(f) The [appropriate person or agency] may inspect the establishment of a registrant or applicant for registration in accordance with rules adopted by the [appropriate person or agency].
This section requires any person who engages in, or intends to engage in, manufacturing, distributing, or dispensing of controlled substances to be registered by the State. Practitioners who administer, as that term is defined in Section 101(1), or who prescribe, will be required to register; however, under subsequent sections they may be exempt from the record-keeping requirements. By registering every individual dealing with controlled substances, the State will know who is responsible for a substance and who is dealing in these substances. The registration requirements imposed by this section are designed to eliminate many sources of diversion, both actual and potential.
Common and contract carriers, warehousemen, ultimate users, and agents of registrants are specifically exempted from the registration requirements since to require otherwise would be extremely burdensome and afford little increase in protection against diversion.
Annual registration is called for so that a licensee can be screened and the registration lists purified should the need arise. In addition, the annual registration requirement will be a form of check on persons authorized to deal in controlled substances.
SECTION 303. REGISTRATION.
(a) The [appropriate person or agency] shall register an applicant to manufacture or distribute substances included in Schedules I through V unless the [appropriate person or agency] determines that the issuance of the registration would be inconsistent with the public interest. In determining the public interest, the [appropriate person or agency] shall consider the following factors:
(1) maintenance of effective controls against diversion of controlled substances into other than legitimate medical, scientific, research, or industrial channels;
(2) compliance with state and local law;
(3) promotion of technical advances in the art of manufacturing controlled substances and the development of new substances;
(4) convictions of the applicant under laws of another country or federal or state laws relating to a controlled substance;
(5) past experience of the applicant in the manufacture or distribution of controlled substances, and the existence in the applicant's establishment of effective controls against diversion of controlled substances into other than legitimate medical, scientific, research, or industrial channels;
(6) furnishing by the applicant of false or fraudulent material in an application filed under this [Act];
(7) suspension or revocation of the applicant's federal registration or the applicant's registration of another State to manufacture, distribute, or dispense controlled substances as authorized by federal law; and
(8) any other factors relevant to and consistent with the public health and safety.
(b) Registration under subsection (a) entitles a registrant to manufacture or distribute a substance included in Schedule I or II only if it is specified in the registration.
(c) A practitioner must be registered with the [appropriate person or agency] before dispensing a controlled substance or conducting research with respect to a controlled substance included in Schedules II through V. The [appropriate person or agency] need not require separate registration under this [article] for a practitioner engaging in research with nonnarcotic substances included in Schedules II through V if the registrant is already registered under this [article] in another capacity. A practitioner registered under federal law to conduct research with a substance included in Schedule I may conduct research with the substance in this State upon furnishing the [appropriate person or agency] evidence of the federal registration.
(d) A manufacturer or distributor registered under the federal Controlled Substances Act [21 U.S.C. 801 et seq.] may submit a copy of the federal application as an application for registration as a manufacturer or distributor under this section. The [appropriate person or agency] may require a manufacturer or distributor to submit information in addition to the application for registration under the federal act.
This section sets out the factors under which a state authority registers persons to engage in the various activities concerning controlled substances. These factors are similar to those which must be considered in registering an applicant under the federal act.
Practitioners are to be registered to dispense substances in Schedules II through V, comprising all substances with recognized medical uses, if they are authorized to dispense under the laws of the State. If those practitioners wish to conduct research in nonnarcotic substances in Schedules II through V, the state authority may require, or not require, a separate registration. This permissive language will be beneficial to those States that wish to keep close tabs on all those individuals who conduct research within their borders. Practitioners who are registered under federal law to conduct research with respect to Schedule I substances are permitted to conduct that research in a State solely upon notification to the appropriate state authority of a valid federal registration.
Under subsection (d), a manufacturer or distributor registered under federal law may be registered under this Act, upon submitting the information contained in the application for federal registration and any additional information required by the State. The applicant would still be subject to the determination under subsection (a).
SECTION 304. SUSPENSION OR REVOCATION OF REGISTRATION.
(a) The [appropriate person or agency] may suspend or revoke a registration under Section 303 to manufacture, distribute, or dispense a controlled substance upon finding that the registrant has:
(1) furnished false or fraudulent material information in an application filed under this [Act];
(2) been convicted of a felony under a state or federal law relating to a controlled substance;
(3) had the registrant's federal registration suspended or revoked and is no longer authorized by federal law to manufacture, distribute, or dispense controlled substances; or
(4) committed an act that would render registration under Section 303 inconsistent with the public interest as determined under that section.
(b) The [appropriate person or agency] may limit revocation or suspension of a registration to the particular controlled substance with respect to which grounds for revocation or suspension exist.
(c) If a registration is suspended or revoked, the [appropriate person or agency] may place under seal all controlled substances owned or possessed by the registrant at the time of suspension or the effective date of the revocation order. No disposition may be made of substances under seal until the time for taking an appeal has elapsed or until all appeals have been concluded unless a court, upon application, orders the sale of perishable substances and the deposit of the proceeds of the sale with the court. When a revocation order becomes final, the court may order the controlled substances forfeited to the State.
(d) The [appropriate person or agency] may seize or place under seal any controlled substance owned or possessed by a registrant whose registration has expired or who has ceased to practice or do business in the manner permitted by the registration. The controlled substance must be held for the benefit of the registrant or the registrant's successor in interest. The [appropriate person or agency] shall notify a registrant, or the registrant's successor in interest, whose controlled substance is seized or placed under seal, of the procedures to be followed to secure the return of the controlled substance and the conditions under which it will be returned. The [appropriate person or agency] may not dispose of a controlled substance seized or placed under seal under this subsection until the expiration of 180 days after the controlled substance was seized or placed under seal. Costs incurred by the [appropriate person or agency] in seizing, placing under seal, maintaining custody, and disposing of any controlled substance under this subsection may be recovered from the registrant, any proceeds obtained from the disposition of the controlled substance, or from both. The [appropriate person or agency] shall pay to the registrant or the registrant's successor in interest any balance of the proceeds of any disposition remaining after the costs have been recovered.
(e) The [appropriate person or agency] shall promptly notify the Drug Enforcement Administration of all orders restricting, suspending, or revoking registration and of all forfeitures of controlled substances.
Subsection (a) sets out the criteria upon which a registration can be revoked or suspended during the year in which that particular registration is in force. In denial of registration renewal situations for manufactures or distributors, the criteria in this subsection should not be used. Instead, the state authority should apply the broader criteria set out in Section 303(a) relating to initial registration.
Subsection (b) allows the state authority to limit the revocation or suspension of a registration to a particular substance rather than revoking or suspending the whole registration. This will be especially effective where a manufacturer committed a criminal violation, but certain mitigating circumstances militate against removing full registration. Instead, the right to manufacture a particular substance could be suspended or revoked. This would put the manufacturer out of the business of manufacturing the substance but would not totally remove the manufacturer's livelihood.
Subsection (c) relates to forfeitures of controlled substances where the registrant's registration has been revoked. This subsection is permissive rather than mandatory. Thus, if the registration of a sole medical practitioner or a community pharmacy in a small town were revoked, the state authority could allow the former registrant to sell those substances to a new owner-registrant so that the inhabitants of the particular town would not have to go without needed pharmaceutical supplies.
Subsection (d) authorizes seizure or placement under seal of controlled substances owned or possessed by a registrant whose registration has expired or who has otherwise ceased to practice or do business. This authorization is based on the similar authorization granted in 1984 to the United States Attorney General under 2