STATE OF WISCONSIN
CONTROLLED SUBSTANCES BOARD
IN THE MATTER OF RULE-MAKING : PROPOSED ORDER OF THE
PROCEEDINGS BEFORE THE : CONTROLLED SUBSTANCES BOARD
CONTROLLED SUBSTANCES BOARD : ADOPTING RULES
: (CLEARINGHOUSE RULE )
PROPOSED ORDER
An order of the Controlled Substances Board to create CSB 2.99, relating to scheduling Mesocarb.
Analysis prepared by the Department of Safety and Professional Services.
ANALYSIS
Statutes interpreted: s. 961.14, Stats. Explanation of agency authority:
Section 961.11 (1), Stats. provides that “[t]he controlled substances board shall administer this subchapter and may add substances to or delete or reschedule all substances listed in the schedules in ss. 961.14, 961.16, 961.18, 961.20 and 961.22 pursuant to the rule-making procedures of ch. 227.” Section 961.11(4), Stats. provides that “[i]f a substance is designated, rescheduled or deleted as a controlled substance under federal law and notice thereof is given to the controlled substances board, the board by affirmative action shall similarly treat the substance under this chapter after the expiration of 30 days from the date of publication in the federal register of a final order designating the substance as a controlled substance or rescheduling or deleting the substance or from the date of issuance of an order of temporary scheduling under 21 USC 811 (h), unless within that 30−day period, the board or an interested party objects to the treatment of the substance. If no objection is made, the board shall promulgate, without making the determinations or findings required by subs. (1), (1m), (1r) and (2) or s. 961.13, 961.15, 961.17, 961.19 or 961.21, a final rule, for which notice of proposed rulemaking is omitted, designating, rescheduling, temporarily scheduling or deleting the substance. If an objection is made the board shall publish notice of receipt of the objection and the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the board shall make a determination with respect to the treatment of the substance as provided in subs. (1), (1m), (1r) and (2) and shall publish its decision, which shall be final unless altered by statute. Upon publication of an objection to the treatment by the board, action by the board under this chapter is stayed until the board promulgates a rule under sub. (2).” Related statute or rule: s. 961.14, Stats. Summary of, and comparison with, existing or proposed federal regulation:
On November 22, 2022, the Department of Justice, Drug Enforcement Administration published its interim final rule in the Federal Register listing Mesocarb into schedule I of the federal Controlled Substances Act. The scheduling action is effective December 22, 2022.
Plain language analysis:
This rule schedules Mesocarb as a schedule I controlled substance.
The Controlled Substances Board will promulgate a final rule, without making the determinations or findings required by ss. 961.11(1), (1m), (1r) and (2) or s. 961.19 and omitting the notice of proposed rulemaking, listing Mesocarb as a schedule I controlled substance. Pursuant to s. 961.11(4), Stats., the Controlled Substances Board by affirmative action similarly treats Mesocarb under chapter 961, Stats. by creating the following: CSB 2.99 Addition of Mesocarb to schedule I. Section 961.14 (7) (s), Stats., is created to read: 961.14 (7) (s) N-phenyl-N’–(3-(1-phenylpropan-2-yl)-1,2,3-oxadiazol-3-ium-5-yl)carbamimidate, commonly known as Mesocarb.
The Affirmative Action order, dated February 24, 2023, took effect on March 6, 2023, when it was published in the Administrative Register and expires upon promulgation of a final rule.
Summary of public comments received on statement of scope and a description of how and to what extent those comments and feedback were taken into account in drafting the proposed rule: N/A
Comparison with rules in adjacent states:
Illinois: Illinois has not listed Mesocarb as a schedule I controlled substance [720 Illinois Compiled Statutes 570/204].
Iowa: Iowa has not listed Mesocarb as a schedule I controlled substance [Iowa Code 124.204].
Michigan: Michigan has not listed Mesocarb as a schedule I controlled substance [Michigan Compiled Laws s. 333.7212]. Minnesota: Minnesota has not listed Mesocarb as a schedule I controlled substance [Minnesota Statutes 152.02 (2)].
Summary of factual data and analytical methodologies:
The methodology was to schedule Mesocarb to conform with the federal Controlled Substances Act.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact analysis:
The rule schedules Mesocarb as a Schedule I controlled substance which will not have any effect on small business.
Fiscal Estimate:
