DEA Fine Tunes Power of Attorney and DEA-222 Requirements

The Drug Enforcement Administration’s (“DEA’s”) final rule issued September 30, 2019, implemented the single sheet format for DEA Forms 222 (“DEA-222s”) and allowed a two-year transition from the triplicate form to the single sheet.  New Single-Sheet Format for U.S. Official Order Form for Schedule I and II Controlled Substances (DEA Form 222), 84 Fed. Reg. 51,368 (Sept. 30, 2019).  However, the final rule failed to amend several regulatory provisions that has created ambiguities.  DEA has issued a final rule/technical amendment correcting those provisions that the 2019 final rule did not amend.  Ordering Schedule I and II Controlled Substances Using DEA Form 222; Technical Amendments, 91 Fed. Reg. 13,498 (Mar. 20, 2026).  The final rule/technical amendment clarifies who can execute or revoke a Power of Attorney authorizing who may sign DEA-222s ordering schedule I and II substances, and relatedly who can sign the DEA-222s themselves.  The final rule/technical amendment also removes the now obsolete provision transitioning from triplicate DEA-222s to single sheet DEA-222s.

Registrants “may authorize one or more individuals . . . to issue orders for Schedule I and II controlled substances on the registrant’s behalf by executing a power of attorney for each such individual.”  21 C.F.R. § 1305.05(a).  The 2019 final rule amended 21 C.F.R. § 1305.05(d)(1) to require that a Power of Attorney be executed by “[t]he registrant, if an individual; a partner of the registrant, if a partnership; or an officer of the registrant, if a corporation, corporate division, association, trust or other entity.”  Previously, a person who signed the most recent application for a DEA registration could execute or revoke a Power of Attorney.

DEA noted after receiving numerous comments regarding the Power of Attorney that due to “the significance of Form 222 signature authority, and the potential for diversion when that authority is abused, the DEA deems it appropriate to require an officer, a partner, or the registrant him- or herself to sign POAs under 21 C.F.R. § 1305.05.”  84 Fed. Reg. at 51,368.  In implementing the 2019 final rule DEA failed to modify two related provisions of 21 C.F.R. § 1305.05: 21 C.F.R. § 1305.05(c) providing format and language for a DEA-222 Power of Attorney and the notice of revocation, and 21 C.F.R. § 1305.05(e) explaining who must revoke a Power of Attorney.  The final rule/technical amendment replaces the language in those provisions to mirror the language of 21 C.F.R. § 1305.05(d)(1) specifically identifying who may execute a Power of Attorney to order schedule I and II controlled substances.  A person who signed the most recent application for registration is not authorized to execute or revoke a Power of Attorney to sign DEA-222s.

The final rule/technical amendment similarly amends 21 C.F.R. § 1305.12(d) requiring that a DEA-222 must also be signed by the registrant, if an individual; a partner of the registrant, if a partnership; or an officer of the registrant, if a corporation, corporate division, association, trust or other entity or a person granted Power of Attorney.  Prior language referred to 21 C.F.R. § 1305.05 that also included a provision allowing a person who signed the last application for registration to sign a DEA-222.

Lastly, DEA promulgated the 2019 final rule when registrants were still using triplicate DEA-222s.  DEA provided registrants with a two-year transition period allowing them to continue using triplicate DEA-222s before switching to single sheet DEA-222s.  DEA stopped accepting triplicate DEA-222s on October 30, 2021.  The final rule/technical amendment removed 21 C.F.R. § 1305.20 because it is obsolete.

The final rule/technical amendment is effective immediately.