The National Organization for the Reform of Marijuana Laws (Norml) v. Drug Enforcement Administration, U. S. Department of Justice

ROBB, Bеfore WRIGHT and Circuit GESELL,* Judges, and District Judge. Opinion the court filed J. SKELLY WRIGHT, Judge. Circuit Dissenting opinion by ROBB, filed Circuit Judge.

* Columbia, sitting by Of the United States District Court for designation pursu- the District of 292(a) ant to 28 U.S.C. WRIGHT, I. Judge: THE Circuit CONTROLLED SUBSTANCES J. SKELLY ACT yet another present represents case Congress In 1970 enacted ongoing controversy between Controlled in the phase Act, comprehensive Substances- statute Organization National petitioner to rationalize designed federal control of Marijuana (NORML) Laws Reform drugs.3 dangerous The Act contains five Drug Enforcement Administra- respondent substances, categories desig controlled (DEA), agency Depart- an within tion through I as Schedules V4 nated has been seek- of Justice.1 NORML ment dangers and defined in terms of benefits of change appli- in the controls ing effect a 21 drugs.5 812(b)(l)-(5). U.S.C. § The under the Controlled to marihuana cable imposed mechanisms manufac 1970, 21 et Act of U.S.C. 801 § Substances ture, acquisition, and distribution of sub (CSA Act). Respondent or DEA seq. (1970) vary listed under Act according stances citing by those United resisted efforts has the schedule in which the drug is cont treaty obligations under drafting In Congress ained.6 CSA opened for Drugs, Narcotic Convention on 7I, marihuana in placed the classi 30,1961,18 1407,30 U.S.T. signature March provides fication for most severe 6298, (Single No. 520 151 T.I.A.S. U.N.T.S. penalties. controls and Convention).2 per- A overview of the brief necessary to laws is portions Recognizing those results tinent of continu- background meaningful might discussion of the ing a research cast doubt on the wis- litigation. of initial assignments,8 of this dom classification controversy originally 202(c), 812(c); Bu involved the 7. See § 21 U.S.C. The 21 § C.F.R. Dangerous Drugs purposes For of Narcotics 1308.11. of the CSA § is reau marihuana agency (BNDD), predecessor of DEA. Fol a defined follows: Department rеorganization lowing a within the parts The term “marihuana” means all Justice, against the L., the case was continued plant grow- Cannabis sativa whether respondent. not; thereof; See National Or ing DEA Director or the seeds the resin ex- Marijuana ganization any part for Reform Laws plant; tracted from such 67, U.S.App.D.C. (NORML) Ingersoll, every manufacture, 162 69 compound, salt, v. deriva- 654, n.1, (1974). tive, mixture, preparation n.1 plant, 497 F.2d 656 or of such resin. seeds or Such term does not include States ratified the Conven- 2. The United plant, produc- the mature stalks of such fiber in 1967. For discussion of events stalks, oil ed from such or cake made from ratification, surrounding that see Cohrssen & plant, any compound, the manufacture, of such other seeds Hoover, Danger- International Control salt, derivative, mixture, or 81, Drugs, J. Int’l L. & Econ. 84-87 ous 9 preparation (except of such mature stalks (1974). fiber, oil, therefrom), cake, resin extracted or plant the sterilized seed which is 69, Ingersoll, supra 1, NORML v. note at See incapable germination. Hoover, 656; supra F.2d at Cohrssen & 497 802(15). 21 § U.S.C. definition was carried 2, at note Marijuana 1937, forward from the Tax Act of 533, 7(a), (b), (c), ch. 50 Stat. § 551. See sub- 4. The Act’s initial schedules of controlled Walton, 305, U.S.App.D.C. v. United States 168 202(c), 21 U.S.C. § stances contained 307, 201, (1975). 514 F.2d 203 subject 812(c). listings are These amend- § 502(a)(6), 872(a)(6), Congress 21 U.S.C. § § 201, 811, pursuant 21 § U.S.C. § ment expressly Attorney authorized the General to have, fact, been on several occa- amended special projects “studies or undertake op to devel (1976). 1308.11 sions. Cf. 21 C.F.R. § necessary carry information out his [re scheduling] functions under section 69, 811 of this Ingersoll, supra note at NORML v. See addition, CSA, title.” In 656; Vodra, § U.S.C. Sub 497 F.2d at Controlled note, presidential established Enforcement, § Commis Act, Drug Vol. No. stances Drug siоn on Marihuana and Abuse and direct 1975). (Spring at 36-39 study ed the conduct a Commission mari 822-829, 841-846; generally reports containing 21 U.S.C. huana submit §§ 6. See recom Hoover, 90; supra legislative at note Vo- Cohrssen & dra, mendations and administrative (this Ingersoll, supra chart of 2-7 author’s action. See also NORML v. note 69-70, reproduced U.S.App.D.C. as an control mechanisms 497 F.2d opinion). appendix to this 656-657. procedure Congress by created binding the Attor- “shall mendations be scheduling changes in could be effected. ney General as to such scientific and medi- the,Act, 201(a) Pursuant to Section matters, Secretary cal and if the recom- 811(a), “may, U.S.C. General § drug that a or other mends substance not rule,” schedule, add a substance to a by controlled, the Attorney General shall schedules, it between or decontrol transfer not control the or other substance.”11 from the A removal schedules.9 re- promulgated rule10 under this classification Act, 201(d) of the U.S.C. must made on the section record after 811(d), exception contains a limited hearing, in accordance with opportunity procedures detailed referral in Section rulemaking procedures prescribed (d) 201(b)-(c). provides: Subsection Act, the Administrative Procedure 5 U.S.C. required If control United 201(a) subch. II fur- ch. obligations under States international rescheduling provides proceedings ther treaties, conventions, protocols or in ef by initiated the may Attorney General the effective date part, fect on of this motion, request his own at the on of the Attorney the General shall issue an or Health, Secretary of Education and Wel- controlling drug such der under the or, fare, case, present petition as the on he deems aрpropriate schedule most any party. interested carry obligations, out such without re present At the heart of the controversy is gard findings required to the by sub statutory requirement the the Attor- section[12] (a) section of this or section ney General share his decisionmaking func- title[13] 812(b) of this re without tion under the Act with Secretary the gard procedures prescribed to the by Specifically, 201(b), HEW. (a) (b) subsections of this section. 811(b), provides prior U.S.C. § to com- mencement of produced reclassification The issue that has rulemaking the gulf widest proceedings Attorney the parties General between the must “re- is the effect of subsec- quest from the Secretary (d) a scientific and tion on the decisionmaking procedures evaluation, and his triggered by recommenda- petition NORML’s to decontrol tions, as to whether drug such or other or reschedule Respondent marihuana. ar- substance should be so controlled or where, here, re- gues that as United States moved as a controlled substance.” treaty obligations require any measure of prepared by evaluation Secretary substance, must control over a 201(d) re- address scientific and medical factors the Attorney lieves General of his duty to 201(c), enumerated in Section 21 U.S.C. petition refer the to the Secretary of HEW. 811(c); these factors relate to the § effects Petitioner takes the position that subsection drug of the and its potential. abuse (d) Pursu- does not obviate the statutory referral 201(b), ant to Section the Secretary’s recom- requirement, merely but authorizes the At- 201(a)(1), 811(a)(1), pro- 9. Section 21 U.S.C. “rescheduling” § 10. “Reclassification” will may vides that General add a any change hereinafter be used to indicate to a substance schedule or transfer it between legal status of a substance under the Act— if he schedules e., to, from, i. addition deletion or transfer (A) drug between finds that such or the schedules. other substance abuse, potential has a (B) respect drug Moreover, makes with to such or both DEA and HEW have inter- findings prescribed by other substance 201(b) preted exceeding to bar DEA from § (b) subsection of section 812 of this title for level of control recommended HEW. See the schedule in which such is to be Vodra, supra note at 34. placed[.] 201(a)(2), 811(a)(2), Pursuant § U.S.C. supra. 12. See note 9 if he “decontrol” substance he finds that requirements placement it “does not meet for inclu- 13. The criteria for in the various 812(b). sion in schedule.” are enumerated in 21 schedules U.S.C. § braces Secretary’s substances, certain Schedule I to override torney General heroin, rec- to the extent those the abuse liability of which is not recommendations United conflict with States by substantial therapeutic ommendations offset advant commitments. ages.18 CSA,19 In contrast Single Con- ON CONVENTION THE SINGLE II. prescribes vention different controls for DRUGS NARCOTIC parts plant, cannabis various existing trea- simplify Article 1: in order defined In H ma- administrative and international ties (b) flowering means the or “Cannabis” Nations members the United chinery, fruiting tops plant (ex- of the cannabis single conven- codification of undertook cluding seeds when not and.leaves international narcotics control.14 accompanied tops) from drafts, preliminary three after extracted, has not been resin whatever Drugs was Convention Narcotic Single they may designated. name The United signature. opened plant” (c) plant “Cannabis means any in 1967- Convеntion ratified genus cannabis. prior to enactment the Con- years three (d) “Cannabis resin” means sepa- Act. Substances trolled resin, whether purified, rated crude or CSA, es Like plant. obtained from classifications “sched several tablishes and “cannabis resin” are listed “Cannabis” substances, varying to which re ules” Single IV in I and of the Schedules Conven- attach.15 I of the Schedule gimes control subject tion and thus are to the controls contains substances con Single Convention applicable to each those classifications. relatively high abuse carry to sidered drugs20 I As Schedule cannabis and canna- category in are her liability; included this carry following resin bis restrictions:21 leaf, methadone, opium, coca and coc oin, Single to Parties Convention are re- II III contain those and Schedules aine.16 production, distribution, to limit quired and regarded susceptible to as less substances drugs of the Single possession IV of the to authorized medi- Finally, Schedule abuse.17 purposes.22 IV—em and scientific CSA Schedule cal Parties must Convention —unlike contain; they history of the Convention and braces III Schedule For 14. treaties, separately they predecessor preparations see Hoo Cohrssen & listed its are because 81-87; Lande, 2, ver, liability supra drugs they Inter at The note no abuse and con- reprinted System, Drug by readily in Na applicable Control national recovered tain ‍‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​‌‌​​‌‌‌​​‌​‌​​‌‌‌​​‌​​‌‌‌‌‍cannot be Id, Drug 53, 94-95, 62-63, on Marihuana and Commission tional Abuse, means. at 96-97. America; Report, Drug inUse Second Ill, Perspective, Vol. at 11-35 in Problem Hoover, 95; supra 2, & 18. See Cohrssen note at Lande, (1973); Nar The Convention on Lande, Drug System, The International Control 1961, Org. Drugs, Int’l cotic 21, 14, supra notе at 97. summary of the control 2 contains 15. Article 19. For CSA’s definition “marihuana” see applicable The provisions to each schedule. supra. note are list- in each schedule contained substances treaty. appendix to ed in l(j) “drug” “any 20. Article defines fl 94; * * * Hoover, supra & note at See Cohrssen 16. in Schedules I II the substances Lande, Drug System, International Control The supra note 2, (| generally Art. 21. See Schedule I regime is described in Hoo- Cohrssen & Drugs in II also Schedule are contained ver, drugs at 95-96. II note drugs widely than in medicine are used more many controls, subject of the same but are to Lande, The Interna- in Schedule I. contained carry retail fewer restrictions on trade and no System, supra Drug Control tional requirement. prescription Id. medical only preparations III contains 62-63. Ordinarily, preparations drugs. are narcotic (c). Art. H (I II) or that em- in the same Schedule listed subject persons engaged control all license and to direct supervision and con trol Party.[29] or distribution24 of of the manufacture23 prepare must estimates drugs and detailed As a result the treaty’s definition of drug requirements25 speci- of national “cannabis,” the controls applicable to can- may returns.26 Parties fied statistical nabis and cannabis apply resin to the leaves drugs “except permit possession un- and seeds plant cannabis when they authority.”27 Finally, the legal der accompany the “flowering fruiting tops” parties penal certain impose directs of the plant. However, when separated sanctions.28 tops from the the leaves and seeds do not resin Cannabis cannabis and other fall within the definition of “cannabis” or listed in Schedule IV invoke ad- “cannabis resin” and subject are not to the restrictions, 2,15: ditional set forth in Art. applicable controls I Schedule or IV sub- (a) Party adopt any special A shall stances.30 Art. 3 is the provision If opinion measures control which applies po separated leaves: necessary having regard partic- shall Parties adopt such measures as dangerous properties of a ularly drug so may necessary be prevent the misuse included; and of, in, and illicit traffic the leaves of the shall, Party (b) opinion A if in its plant. prevailing country conditions in its render The only provision arguably relevant appropriate protect- it the most means of cannabis seeds is 2,18, Art. which provides: welfare, ing public prohib- health and manufacture, production, export Parties shall use their best endeav of, in, import possession trade ors to apply or use substances which do not fall drug except Convention, amounts but which may may be used necessary illicit manufacture of drugs, such only, including supervision scientific research measures clinical practicable.[31] trials therewith be conducted under or ly, Art. 29. and serious shall offences be liable to adequate punishment particularly by impris- 24. Art. penalties deprivation other onment or liberty. 25. Art. 19. In specified addition to the controls for 26. Art. 20. substances, IV I and Articles 28 and special 23 enumerate relating measures to con- applies This Art. 33. limitation whether the trol of cannabis and cannabis resin. These drugs personal for or for are held distribution provide country Articles that if a' allows culti- Lande, consumption. See The International plant production vation of the cannabis for System, Drug Control at 59. cannabis or cаnnabis resin —and the United purposes so for research States does must —it 36(1) provides: 28. Art. agency establish a national cannabis to control limitations, Subject to its constitutional agency must cultivation. license cul- Party adopt shall such measures as will each tivators, designate areas in which cultivation is cultivation, production, manufac- ensure that and, permitted, harvesting, posses- after take extraction, possession, ture, preparation, of- crop. sion of the distribution, sale, offering pur- fering, for sale, delivery any terms whatsoev- on chase convenience, 30. For the sake of leaves and transit, er, dispatch brokerage, dispatch, in accompanying flowering seeds not or fruit- importation exportation transport, and ing tops “separated" be will referred contrary provisions drugs to the of this Con- leaves and seeds. vention, any other which in action provided Party may contrary 31. Under the definition opinion be Art. of such to the Convention, l(n), pun- appears provisions shall the term of this be “manufacture” to en- H compass when intentional- offences committed “cultivation.” ishable A. The two ceedings Dangerous the substance V. On delegee Reg. 18097 late United sole specified stances Section III. On reclassification accept the Director Single Convention. authority over other May HISTORY referral controlled 201(d), 21 U.S.C. § September to remove marihuana first (1972). He Drugs interested from Schedule court petition the Bureau of or, Attorney OF of marihuana (BNDD) to initiate alternatively, treaty 201(a)-(c). petitioner rulemaking procedures case. treaty, without THE LITIGATION 1972 the stated that parties32 petitioned for scheduling of sub- He General,33 obligations under 811(d), gave him filing. 37 Fed. concluded that Narcotics and I to Schedule NORML and from control Id. at 18098. Director, would vio- decontrol transfer refused regard pro- that, Id. at separately addressed of the marihuana separated into denying Justice any latitude ^[*] In the first treaty executive arise ceive 660.34 In two delineating the areas of “cannabis s(c in view of 72, 497 F.2d at treaty obligations, and herein re- expert proceeding phases: issue. leaves from the terms “cannabis” could on consider discretion should sfc if addition, remand, consider how phase, the resin,” some latitude were Hf testimony limited consider whether [to reschedule] petition The second plant. ^[*] rescheduling on remand treaty’s the court Id. at on court Department agency interest phase be exercised. exclusion of the merits suggested consistent pertinent indicated 497 F.2d there divided should found, leaves would this be is review with petition filed NORML at 661 n.17. In connection with this Id. 15, 1974, and, January on this court phase” the court commented on the “second for considera- and remanded court reversed argument that under Director’s Organization National the merits. 201(d) scheduling of was mat- marihuana (NORML) v. Laws Marijuana for Reform his entrusted to sole discretion as dele- ter 67, 497 F.2d 654 U.S.App.D.C. Ingersoll, 162 gee of General: inveighed opinion court’s (1974). The gives pause. This is a matter that us rejection of outright agency’s an against respondent saying seems to even except narrowly petition, filing of though require does more situations: circumscribed provides, than V he can procedural de- there no case In this say-so on his own without reason comply with a clear-cut fect or failure I. on schedule We doubt that insist What accounted law. requirement Congress. was the intent action his conclusion respondent’s 73-74, Id. at 497 F.2d 660-661.35 petition sought action that the the merits proceedings The remand. B. on treaty with commitment. inconsistent * * * 26, published notice determination June 1974 DEA kind of On That Register announcing in an action in the Federal that been reflected should Society agency rescheduling Study separated Health and consider for the Institute 32. plant, Ad- the court Public Health Association. leaves of concluded and American Findings seeking, Judge’s petition Fact and as Law should be construed ministrative Law, alternatively, and Recommended Deci- At more limited forms of relief. Conclusions 73, 659, sion, Appendix at petitioner’s C 1. 660. 497 F.2d at CSA, 501(a) 21 U.S.C. The added: court 871(a), to General authorizes exper- on which the matter one any this “delegate functions under sub- of his exclusive, respondent and it would tise of employee De- chapter officer to appropriate for the court to have seem partment Justice.” views of sources in the State benefit of the organiza- Department petition the international Although to reschedule NORML’s ** * specifically request involved. tions did not “marihuana” 742 hearing set forth in prepared 201(a)-(c). was to hold a to

agency Petitioner’s necessary regulatory controls at Appendix determine C 31-34. Single satisfy the 39 Fed. to Convention. appeal order, from ALJ On Parker’s response (1974). In to this no- Reg. 23072 Administrator,38 Acting DEA’s Henry S. the American Public

tice NORML denied Dogin, petition NORML’s re- requested “phase one” Health Association scheduling respects.” “in Fed.Reg. all 40 They specifically on issue. hearing (1975). Turning first hearing inquiry include an as asked that of United treaty commitments, issue sеparated to whether leaves and/or seeds of he held that cannabis and resin cannabis plant the marihuana could removed II, could be rescheduled CSA Schedule I. CSA separated cannabis leaves could be resched- through January January IV,39 From uled CSA Schedule III or synthetic hearing tetrahydrocannabinol (or THC) 1975 a was held before Administra- and seeds Judge (ALJ) Parker. germination tive Law NORML incapable ‍‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​‌‌​​‌‌‌​​‌​‌​​‌‌‌​​‌​​‌‌‌‌‍need not be con- witnesses, trolled, called two Mr. Lawrence Hoover capable but seeds germination Fort, qualified and Dr. Joel both of whom Id. at 44167- could not be decontrolled. imposed by experts obligations on the 44168. He failed specify the schedule Single Respondent Convention. called satisfy chemists, Philip two Mr. Porto Dr. respect Carl- with capable seeds of germina- Turner, Counsel, ton as well as DEA’s Chief hold, however, tion.40 He did that neither Miller, qualified Mr. Donald who as an ex- incapable cannabis seeds germination nor treaty issue.36 pert parties in- synthetic THC were at issue proceed- in the troduced numerous exhibits. Id. at ing. May 21,

On 1975 ALJ Parker issued his outlining the After latitude within which report. Appendix Petitioner’s C. He parts held various plant marihuana could that, Convention, rescheduled, consistent the Acting Administrator “cannabis” “cannabis proceeded to determine how to resin”-—as his exercise defined be rescheduled' discretion to reschedule. He examined —could II, leaves could April letter of 1975 from Dr. Theodore V, be rescheduled CSA Schedule and Cooper, Assistant Secretary for “synthetic cannabis seeds and letter, cannabis”37 Health. The which was introduced rejected could be decontrolled. He respon- argument Parker, at before oral ALJ states interpretation 201(d) dent’s of Section currently that there “is accepted no phase held that in the second of the re- use of marihuana in the United States” and scheduling proceeding agency should approved there “is no Ap- New Drug hearing procedures follow referral and plication” for marihuana on file with the (footnote omitted). Id. at pursuant 497 F.2d Administrator to 28 C.F.R. 0.132(d) See (1976). infra. 0.100 §§ & qualifications 36. The witnesses’ are discussed publication Register in the Federal erro- pp. length Findings 5-6 of the ALJ’s neously placement states in CSA Sched- Law, Fact and Conclusions of and Recom- satisfy treaty requirements III will ules or IV Decision, reproduced petitioner’s mended relating capable germi- to “leaves which are Fed.Reg. Appendix C. See also Fed.Reg. Sept. nation.” 44168. On Register published the 1975 Federal a correc- tion, changing the reference to “leaves which reviewing decision, Acting 37. In the ALJ’s the “ entirely tops from detached the and seeds.” of DEA Administrator found that ‘artificial Id. judge cannabis’ does not exist and what the synthetic tetrahydrocannabinol.” intended is that, Fed.Reg. imply although 40 40. He did Schedule V the- oretically sufficient, practical prob- would be Attorney required 38. The functions vested in the lems of law enforcement Gener- more strin- delegated 44167; gent al the CSA been to have DEA’s controls. Id. at see note 84 infra. ing urges order. Petitioner Administrator’s of HEW.41 Administration Drug Food letter, Acting the Adminis- to and remand the case court reverse on this the Relying could not marihuana proceedings include referral concluded further trator for —to I. He stat- CSA Schedule from rescheduling removed to petition the Secre- the I “is the schedule that Sсhedule ed 201(b)-(c) to Section pursuant of HEW tary currently a ac- drugs without for reserved agrees NORML with ALJ of the CSA. use in treatment the cepted to scheduling conclusions as the Parker’s 44167. Because the Id. at States.” United open by Single Convention, the left options Cooper established Dr. letter out except to extent he ruled re- use, “no matter has no medical marihuana scheduling cannabis and cannabis resin be- scientific or medical evi- of the weight low CSA Schedule II.43 adduce, might petitioners dence Respondent proffers argu alternative mari- could not remove Attorney General Acting defense Administra ments in I.” Id. from Schedule huana deny to decision NORML’s reschedul tor’s controversy over finally to Turning thereby perpetuate place ing petition and 201(d), the of Section interpretation I. of marihuana in CSA Re ment stated: Acting Administrator alleges first virtue of spondent Sec unnecessary to decide whether Sec- It is 201(d) hearing proce the referral and tion General 201(d) requires 201(a)-(c) apply do not dures of HEW on a substance the views of seek subject by treaty drugs to international treaty. international in an included Accordingly, decision whether control. he has done so of marihuana the instance is reschedule marihuana entrusted reply. a received he has Administrator, Acting delegee At at 44165.42 Id. General, only question and the torney open lawsuit. present C. is whether his decision review not is based on substantial filed with reschedule 1975 NORML On October the Act- 21 U.S.C. 877.44 for review of evidence. petition court Fed.Reg. implications Drug letter, reproduced the lack of New at 40 fully Application are discussed more in note 65 (1975), in full: reads infra. APRIL N. JENSON. JERRY also concluded thаt DEA satisfied the 42. He Administrator, Drug Deputy Enforce- suggestion agency seek the court’s Administration, Justice, Department organizations ment international in- views “the NW., Washington, D.C. 20537. 1 Street Ingersoll, v. volved.” NORML your request, we JENSON: At concluding, DEAR MR. so he F.2d at 661. In relied giving following prepared statement dealing Nations documents on several United aspects uses of Cannabis position on the medical marihua- our with medical and social 44164, 44166, (marihuana). Fed.Reg. L. sativa na See use. currently accepted no medical use None of these documents addresses the There parts degree There is United States. to which various the cannabis in the of marihuana conformity Drug Application plant approved for rescheduled in New Can- could be no tetrahydrocan- (marihuana) Convention. L. nabis sativa nabinol, principle in marihuana. active Applica- Investigational Drug Although New NORML concedes that There are therapeu- possible regimes applicable to the lower schedules to determine on file tions satisfy of the potential the demands effects of the toxic tic uses and Convention, petitioner’s argues br. at substance. to reschedule these two your that DEA authorized information a included We have and, through below Schedule II materials report these stu- copy most recent rulemaking powers, impose agency’s addi- regarding policy copy the FDA dies and a with United tional controls commensurate marihuana. studies with clinical treaty obligations. yours, Sincerely COOPER, M.D., THEODORE Respondent question in af- answers this Secretary Assistant firmative, noting particular Cooper’s Dr. Health. currently ac- that marihuana lacks statement respondent Alternatively, suggests intеrpretation that 201(d). the of Section We note Acting the Administrator satisfied referral at the that Acting outset the Administrator hearing requirements basing by and his re- declined to decide the issue.45 on the scheduling decision letter from Dr. 201(d) provides Section that if control of Finally, although conceding in Cooper. its required by a is substance United States argument filing and at oral of brief obligations, treaty “the Attorney General synthetic to reschedule petition THC would an shall issue order controlling drug such DEA,” “require by respon- consideration under the schedule he deems appropri- most 18, respondent br. at contends dent’s carry ate to out obligations,” without synthetic reclassification of THC is not an regard the referral and proce- proceeding. hearing in this issue dures prescribed by 201(a)-(c) Section IV. SCHEDULING DECISIONS regard without to the Section 202 criteria UNDER SECTION 201 ordinarily governing scheduling decisions. party Each relies on the language and Statutory of his- A. construction tory 201(d). (d) of subsection to support its con- struction of provision. the However, al- agree parties We with the the Single though report the of the House Committee some degree Convention leaves of latitude Foreign Interstate Commerce does within which to reschedule the various make specific reference to 201(d), of the parts plant marihuana under the the statements essentially We our defer discussion of the track the lan- pre- CSA. degree provision of guage cise latitude and turn first to guid- offer little question confronting the crucial the court: statutory interpretation.46 ance for Never- cepted allegedly prerequisite ment), require the bill does not that the At- use— placement through II in CSA Schedules tornеy V. General seek an evaluation and rec- Respondent’s 6-11, br. 14-15. by Secretary Health, ommendation the of Ed- ucation, Welfare, pursue proce- or the strongly 45. The Administrator intimated prescribed by dures for the but bill he 201(d) completely displaces in his view § may drug include the or other substance un- hearing procedures referral the der of the five schedules of the bill which 201(a)-(c). Fed.Reg. See 40 § at 44167. How- appropriate carry he most considers out ever, 201(b)-(c) because he found that § under obligations of the United States under the represented Cooper’s adequate input Dr. letter instrument, may international and he do so HEW, Administrator conclud- making specific findings without other- necessary ques- ed that it was not to reach the required drug wise for inclusion of a or other Id. tion. at 44165. substance in that schedule. The reference to treaties, conventions, protocols or report 46. The in effect House contains two unilluminat- First, upon 201(d). ing enactment of briefly allusions the bill is after intended to § discussing requirements 201(a)-(c), refer to the Convention § on Narcotic report Drugs, predecessor notes: and to those con- protocols or ventions toas which exception the United 201(a)-(c) An [to resched- obligation. States still an uling procedures] This is made in the case of trea- any obligations ty obligations would include drug the United United States. If a might required States that arise after pursuant enactment of to be controlled to an by treaty, convention, changes bill reason of protocol international or schedules of bill, in effect on the drug enactment of international specified organs conformity will be controlled in the convention under the authority provisions agreement or other international obli- convention gations. as to the United effect States on the date R.Rep.No.91-1444, Sess., Cong., pt. H. 91st 2d enactment the bill. I, Cong. Cong. & Id. at U.S.Code & U.S.Code Admin.News Admin.News pp. report p. Later the states: (d), bill, provision Under subsection where control of a The Senate S. lacked a binding or other substance United recommendations HEW and did required by obligations counterpart 201(d). reason not contain to § Conse- convention, treaty, proto- quently, report an international the Senate Committee on Judiciary, S.Rep.No.91-613, which is col in effect the effective date Cong., 91st 1st e., (i. part B (1969), of the bill the date of its helpful. enact- Sess. is even less

745 surrounding drafting the Senate amendments: The bill theless, required the the events overarching General, an 201(a)-(d) reveal in Attorney making scheduling de of Section Attorney to the aim limit congressional cisions, to from request the Secretary of scheduling authority make to General’s his scientific and medical HEW evaluation goal the that mili- under Act —a judgments control; need unlike the of the Senate inter- petitioner’s in favor of strongly tates bill, made the House bill his recommenda 201(d). of Section pretation Attorney on the binding tions General.48 decisionmaking division responsibili This of on the extensive debate Senate Following in recognition was fashioned of the ty two the floor, to transfer much of proposals respective expertise. areas of agencies’ scheduling authority to Attorney General’s of the House repeatedly Members stated Secretary narrowly of HEW were def the However, reported Department the of Justice the bill and should eated.47 judgments based Representatives in make on law in the House of enforcement passed considerations, the while philosophy the of defeated HEW should corporated have the by Attorney expertise full Sen- lack consideration the General’s of 47. Even before science controversy ate, provoked (remarks substantial id. at the bill and medicine. See Hruska), 975 of Sen. report 977, 978, (remarks The Senate states: in committee. 1329 of Sen. Dodd). Hughes authority amendment was of defeated the This title vests provi- voting. 18 not Id. enumerated 46 to with at 1335. the substances Thereafter, Attorney Hughes the General. Senator sions introduced a with point controversy a of evi- There has been more modest amendment to increase HEW’s drug professions among scheduling proposed involved in dent role in decisions. He addition, deletion, or not research on whether rescheduling control and of a sub- Department expertise has Attorney Justice be effected stance could Gen- drugs since deci- reschedule schedule or only upon recommendation of the eral tary Secre- knowledge special require and medical sions (or specially of HEW created “Scientific training. Committee”). Advisory Id. at 1642. He difficulty provision This resolved explained: requires the At- in this title which contained provisions of this amendment do [T]he torney the Sec- to seek advice from General changes reported. make radical in the bill as Health, Education, retary and Welfare of transfer, many They urged, do not Advisory Committee on from the Scientific responsibility for such scientific determi- added, should be or not a substance whether Department nations from the of Justice to respect with rеscheduled deleted or Health, Education, Department of provisions of the bill. they require is All that Welfare. making S.Rep.No.91-613, note essentially on decisions scientific and Hughes reported, was Senator After the bill questions, Attorney General act amendments de- Iowa introduced several of of recommendations from those basis Attorney signed schedul- General’s to limit qualified agencies best of the Government Hughes initially responsibilities. ing Senator judgment questions expert make an given proposed almost total re- that HEW be involved. sponsibility such decisions: over Id. at have, Attorney Although does General] [the sponsors again opposed of the bill have, right of research and should development Hughes proposal. (re- See id. at 1642-1646 the areas that are related Hruska). of Dodd & The amend- marks Sens. enforcement, it bet- directly would be lawto margin, narrower 44 to lost 39. Id. ment determining dangerous of ter leave changing in of clas- schedules H.R.Rep.No.91-1444, supra pt. Health, Department up sification 32-33; Cong.Rec. (1970) 33606-33607 116 Education, and Welfare. bill, (reproducing 201 the House H.R. § (1970); Cong.Rec. see 1333 id. at 116 (remarks 18583); Rep. see id. at 33297 Mad- [scheduling] resisting shift the “effort to Springer), 33304, den), (remarks Rep. 33300 power to the Secre- General (remarks Rep. Rogers), (re- Education, Welfare,” Health, tary id. at Carter), (remarks Rep. Rep. marks Hruska), spon- (remarks Sen. the bill’s Boland), (remarks Rep. Brotzman), Hruska, sors, asserted that Dodd and Senators Cohelan). (remarks Rep. interplay adequate between the bill ensured Specifically, Except Department HEW. for cross-references contained there- of Justice and requiring in, 201(a)-(c) passed by provision they At- of H.R.18583 as § insisted that 201(a)-(c) nonbinding tоrney “advice” House identical seek General any objections regarding the met enacted. from HEW er respect to medical and scien created aby deliberate say final and conscientious minor After revi legislative tific determinations.49 exercise of the process. conference,50 the House version of sions in language of 201(d) Section is consist- signed into law as the bill was Con import ent with the clear of the legis- Act’s 1970.51 Act of trolled Substances lative history. provides The section that Attorney shall, General regard without 201(d) against must be read Section referral hearing proce- usual and backdrop of intense with concern estab this dures, an controlling “issue order lishing preserving drug and HEW’s avenue of under the schedule he most deems scheduling appropri- into decisions. input Comments ate to out such congressmen carry obliga- confirm the by various limited [international] * * tions *(Emphasis added.) (d): to purpose of subsection authorize the phrase, underscored disregard which Attorney General to is omitted scheduling the dissent’s discussion section, of this criteria HEW cir- and recommendations that cumscribes the Attorney scheduling lead to General’s would otherwise of a schedul- ing authority: it treaty place in violation enables him to substance of commitm a substance in a Congress ents.52 never intended to allow schedule —without re- Attorney displace gard to medical and General findings— the Secre scientific tary obligations placement whenever international to the extent in that particular a drug especially necessary attach to schedule is to satisfy United — fact view of the the vast majority obligations. of States international Had the listed in the provision CSA are controlled been intended to grant him unlim- Respondent’s by treaty.53 reading scheduling of Sec ited discretion with respect 201(d) would destroy pow- a balance of internationally substances, controlled Representative Springer, spon- 49. one H.R.Rep.No.91-1603, of the Cong., See 91st 2d (conference (1970) sors of report). H.R. remarked: Sess. point Let us make a definite also of the fact Pub.L.No.91-513, (codified responsibilities 84 purely Stat. 1242 enforcement seq.). 21 et placed Department U.S.C. 801 of with Justice while judgments necessary and scientific medical drug they properly 52. Remarks on the control are left where House floor reveal that in- requirements Department qualify, and ternational should lie Health, that is with the but do not Education, displace, hearing proce- the usual and Welfare. referral and qualification Cong.Rec. sponsor, dures. Another One was described Carter, Representative Representative Hastings, echoed these who stated senti- drug required by treaty, where control of a ments: Attorney may Representatives “the General medical and scientific control the sub- community expressed appropriate regarding schedule, stance and list it in also doubts Attorney regard authority findings required without General’s to make fi- drugs Cong.Rec. (1970). Rep- schedule.” 116 nal decisions which should be con- Again, qualifi- resentative Boland this was described trolled. concern taken care a second requires, language requires Attorney cation: “H.R. in the absence of treaty obligations, Secretary international to seek advice of the General Health, Education, Attor- ney drug Secretary follow the and General advicе Welfare con- Health, Education, questions, trol and which makes Welfare on the Secre- scientific tary’s respect matters with medical advice Secretary binding Attorney substance if the scientific issues on the decides it Gen- should not way, short, appropriate Id. at controlled.” In eral. an “if balance drug required pursuant to be between was achieved scientific controlled to an interests] treaty, convention, protocol international of law or and those enforcement. bill, drug effect on the enactment of Id. at Various other comments make will by conformity there be controlled clear that existed in the House a with the consen- agreement obligations.” “[cjonsidering scheduling other international sus that that the of a Id. (remarks Rep. Madden). largely at 33297 is based substance on scientific infor- mation, inappropriate it seems most that law- Indeed, enforcement authorities should have the last Convention controls al- percent word on the content of the schedules.” Id. at nonhallucinogenic most 90 of the 64 (remarks Boland); Rep. see id. at substances enumerated in Schedule I of the (remarks Rep. Rogers). originally CSA as enacted. prescribed procedures an order follow the him issue in obtain- authorized medical and scientific ing “under the schedule evaluation from controlling such Secretary Health, Education, appropriate.” most he deems Appendix Petitioner’s F Welfare.” at 14. 201(d) en- interpretation of Section Our in rejecting Thus DEA’s interpretation of decisionmaking allocation proper sures 201(d), we embrace the same inter- Attorney Gener- between responsibility urged by staff counsel to рretation DEA’s HEW, in accordance Secretary and the al agency, Department of Justice.55 parent expertise. respective spheres of their General, 201(d) directs of the hearing B. Satisfaction referral and judg- matter, legal to make a initial as an 201(a)-(c). of Section procedures by interna- necessitated as to controls ment an argument respon As alternative He then a establishes commitments. tional the Acting contends —and Administra dent below schedule or level control minimum whatever the inter proper tor held —that not of the substance placement which 201(d), Cooper’s Dr. pretation Section aof minimum schedule Determination fall. 201(b)-(e) the satisfied Section re letter Secretary’s that the recommenda- ensures Acting that the quirement Administrator binding would be tion, ordinarily petition Secretary to the of HEW refer findings, does not and scientific to medical findings medical and scientific and rec for to be scheduled in viola- substance cause Acting The ommendations. Administrator However, treaty once obligations. assumption his conclusion on premised by is established minimum schedule that placement in that CSA Schedule I is auto General, whether Attorney the decision required if the matically has substance no than more restrictive controls impose currently accepted medical use in the Unit same by treaty implicates required analysis Our compels ed the Act States. as do and scientific considerations medical reject finding. his us to those few scheduling regarding decisions that, clear upon The CSA makes referral by treaty. not controlled General, Attorney the Secretary more com- Secretary manifestly of HEW is required to consider a number of HEW nonlegal evaluations make these petent making different factors his evaluations recommendations. and 201(b)-(c) recommendations. and Section Moreover, insignificant it not we think Secretary that specifies must consider Legal Counsel of the Office of that evidence of “scientific [the substance’s] Justice, in memorandum Department effect, known”; if pharmacological “the 21,1972,54adopted the follow- August dated current scientific knowledge re- state 201(d): The At- of Section ing construction substance”; or other garding torney is directed determine General “what, any, if risk there is public to the satisfy will the nation’s health”; schedule that drug’s “psychic physiologi- Convention; obligation under the dependence liability”; cal “whether is latitude to schedule precursor extent there immediate an of a substance obliga- with treaty already consistent controlled substance under this sub- a substance and tions, obliged chapter”; any scientific or medical fac- Attorney “the General [is] memorandum, to De- note entitled “Petition 55. We too court in NORML v. 73-74, Marihuana, Interpretation Ingersoll, Section 497 F.2d at 1970,” 660-661, expressed “doubts” Substances Act of its the dele- Controlled of the could, Attorney Deputy gee “without prepared General Assistant was reason,” Mary request at the decide not to reschedule marihua- Lawton C. General say Department’s We think it insufficient answer to of BNDD for Justice na. Director opinion procedures did act without legal to be followed Administrator on the sought opinion recently “expert respect he out filed NORML because to the then reason with questions.” Respon- rescheduling. supplied the petition DEA and medical for as to gen- requires response to a br. at 9. The statute more than NORML dent’s memorandum canvassing opinion. request informal for documents. an eral drug’s 202(b) “actual or rela- the structure of relating contemplates tors balancing of medical abuse,” along and usefulness “history potential tive considerations, several other abuse,” including “scope, po- dura- pattern of current tential abuse danger tion, provi- of abuse.” The significance ‍‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​‌‌​​‌‌‌​​‌​‌​​‌‌‌​​‌​​‌‌‌‌‍dependence.57 To treat medical use as the any way qualify the not in Secre- sion does controlling factor in classification decisions If, respon- duty of evaluation.56 tary’s is to render irrelevant the other “findings” contends, determination that dent required by 202(b). legislative accepted medical use ends has no substance history of CSA indicates that medical Congress inquiry, presumably then considered, use is but one factor to be procedur- out in its spelled the most important no means one.58 Its failure to do so indicates guidelines. al finely to HEW a tuned intent to reserve Moreover, an DEA’s scheduling prac- own balancing process involving several support tices conclusion that substances By considerations. shortcut- lacking scientific medical usefulness always need not procedures of Section ting placed the referral Schedule I. At the hearing pre- Counsel, Administrator ALJ Parker DEA’s 201(b)-(c) the before Chief Miller, Donald testified that balancing process contemplated several sub- cluded the II, stances listed in Congress. including CSA Schedule by straw, poppy have no currently accepted 202(b), 21 Admittedly, Section U.S.C. 473-474, medical use. Tr. at 488. He fur- 812(b), sets forth the criteria for which § acknowledgеd ther that marihuana could be of the five sched- in each placement to II rescheduled Schedule without a cur- ules, as the factor established medical use rently accepted medical use. Tr. at 487- in II distinguishes substances Schedule party 488. Neither offered contrary However, place- I. in Schedule from those evidence. to flow appear I does not ment in Schedule currently accepted from lack of a More inevitably importantly, even if lack of 201(c), dispositive use is Like that of Section medical of a medical use. classification I, placement Indeed, report specifically abuse” for in Schedule states: but a the House “potential drugs of actual or relative for abuse less than from the criterion or “Aside abuse, (c) potential for subsection section in schedules I other and II” for * * * placement findings other criteria 201 lists seven in Schedule III. If the determining cumulative, in whether a must be considered really place where would one a specific requirements meets substance specified accepted drug that has no medical use but 202(b) par- in for section inclusion in potential for also has a abuse less than the * * * * * *H.R.Rep.No.91- ticular schedules drugs in Schedules I and II? 1, 1444, 46, 35, supra pt. U.S.Code note Judge way concluded that Newman one to rec- 1970, p. (emphasis Cong. & Admin.News inconsistency “ap- oncile this is to assume that added). (B) plicability finding concerning currently accepted medical use should be made first. If supra. In United States v. 57. See note (and marijuana drug probably has none Maiden, 743, (D.Conn. F.Supp. 748-749 n.4 not, though testimony does indicated some acknowledged Judge 1973), Newman interesting potential uses), рlacement then in cannot, scheduling of 202 in all situa- criteria appropriate I be Schedule whether or not tions, strictly applied: be higher potential for abuse is than for other Act, establishing in 202 of the * * * logical Id. As a drugs proposition, schedules, findings for each of the five three However, this conclusion is not unsound. specify whether the find- not in terms does history present legislative of the CSA and the * * * they ings In fact are cumulative. indicate that medical use case should not be logically read as cumulative in all cannot be regarded as the critical factor. example (B) finding For for situations. requires drug See, I that “The or other g., H.R.Rep.No.91-1444, supra e. note currently accepted no medical 34, substance has 1, Cong. pt. U.S.Code & Admin.News in the United States.” Find- use in treatment (“[a] p. key controlling criterion for * * * specifies ing (B) four schedules for the other poten- a substance is the substance’s currently accepted drug medi- that the has Vodra, abuse”). See also tial for note time, finding (A) re- At the same cal use. at 37. drug “high potential quires has a for marihuana, decision, finding potential in this do not think the medicinal we in conformity with the his evaluation should was established the basis for case then yielded elaborated. is Recent studies have letter addressed Cooper’s Dr. statute. findings legal staff, response contrary:61 HEW’s Fifth of DEA’s member Report Congress, not Annual U.S. Mari- inquiry; the letter was the latter’s Administrator, (1975), Health devotes a chapter huana and by solicited marihuana, therapeutic place aspects of the elaborate hardly take can through contemplated by discovered medical research. Id. machinery Con- referral letter makes cоnclu- ch. at 117-127. Possible uses marihua- one-page gress.59 The glaucoma,62 treatment a basis na include asth- providing statements without sory ma, epilepsy, findings.60 provision It is “needed explanation patients cancer Cooper undergoing when he relief what Dr. means unclear chemotherapy.” promis- Id. at 117. These currently has no ac- that marihuana writes conclusion, legal ing findings were discussed Dr. As a Fort medical use. cepted testimony before ALJ cannot be doubted: Place- his Parker. Tr. at statement his 163-165, Only 169-170. a formal referral self-fulfilling I creates a ment hearing weight will allow due to be Tr. at because the can prophecy, to such given findings.63 Accordingly, purposes, for research Tr. used general recognizing obligation it is our as a and therefore barred agency to ensure that the acts within Cooper’s if Dr. statement court use. But bounds,64 statutory judgment we hold that Dr. Coo- reflect scientific meant to description steps the letter For 60. Because was introduced until a detailed taken Parker, General, argument petitioner oral before ALJ did after HEW referral opportunity probe Vodra, supra mat- into these not have at 34: see evidentiary hearing. at the ters “necessary DEA has Once collected the data,” (by Administrator of DEA authori- Randall, No. v. Crim. ty Attorney General) requests 61. See United from 24, (D.C.Super.Ct., 1976), Nov. re 65923-75 HEW “scientific a and medical evaluation” 2249, Daily Wash.L.Rptr. printed 104 2252 drug in and as to whether recommendations (1976). or should be or other substance controlled request from control. This filed removed is FDA, Randall, Indeed, supra with the Commissioner who has v. in United States 62. responsibility for 61, Superior coordination of activities District of Columbia note HEW. The suffering within Commissioner solicits from a defendant held that Court evaluations and recommendations from a valid defense glaucoma had established (e. g., FDA affected bureaus within Bureau of necessity charge possession of to a Veterinary Medicine), Drugs, acknowledged Bureau for DEA marihuana. Counsel Abuse, Drug Institute of and the National government argument the federal that oral presently Advisory from the Controlled Substances issuing “investigational” marihuana statutory require- Post, is no Washington Committee. There cigarettes See to Randall. from, A8, HEW receive comments or 12, 1976, ment that provide col. Dec. hearing to, parties a interested in preparing its and evaluation recommenda- finding dispute does not that of medi- 63. DEA creating advisory for tions. A reason this not violate the cal Convention, usefulness committee, however, provide is to a forum signatories leeway in which allows whereby per- HEW can hear from interested 160, purposes. 52-53, defining medical Tr. at sons, community, the medical scientific Lande, 472; Drug see International 471— public. Once these are evaluations 14, System, at 42-50. Control received, report submits a Commissioner and recommendations to tary Assistant Secre- cognizant We are deference owed (by Secretary for Health. Assistant any agency construing a decision statute con- Secretary) authority of the then transmits tinually applied interpreting agency— DEA his medical and scientific evalu- back to statutory particularly meaning where the “is regarding ation the substance and his recom- * * * knowledge enhanced technical mendations as to whether should be FPC, Corp. v. Transmission 174 Columbia Gas controlled. 207, 1056, 204, U.S.App.D.C. 530 F.2d 1059 omitted.) (Footnotes 750 A. adequate not an substitute Cannabis and cannabis resin. letter was

per’s enumerated procedures “can defines be remanded case must 201(a)-(c).65 The the fruiting tops nabis” as flowering consistent proceedings further plant, including the cannabis leaves when requirements. statutory those detached, 1, 111(b), Art. and “cannabis any resin has been extracted

resin” as 1(d). These plant. Art. from the U REQUIRED BY THE CONTROLS V. IV of “drugs” listed in I and Schedules are CONVENTION SINGLE subject and are to se therefore of the sched- manufacturing, discussion distri turn now vere restrictions We Single Con- open by bution, trade.66 Never uling options left and international theless, parties agree and the vention. (1976); cil, circumventing procedures, see Resources Defense usurped Natural Coun those DEA Train, 312, 326, U.S.App.D.C. 166 powers Inc. v. the hardship reserved to HEW and worked a Clark, (1974); Bamberger petitioner. 706 v. 510 F.2d Whatever the 70, 73, U.S.App.D.C. conclusion, F.2d 488 Administrator’s we cannot counte- agen derogation statutory But the doctrine of deference to nance actions of a man- cy rulings unquestionably limits, has date. regarding proprie decisions administrative agency ty of footing. action stand on a different letter, Citing Cooper’s respondent Dr. fur- vigilant must Courts to ensure that argues placement ther in Schedule I is procedures agency’s underlying standards approved because there is “no mandated New law; “Reviewing in accord with the courts Drug Application" for marihuana. This refer- obliged are not to stand aside and rubber- procedure persons ence is to who stamp their affirmance of administrative deci ship wish to interstate commerce they sions deem inconsistent with a statu Secretary apply approval of HEW for tory congression mandate оr that frustrate the (NDA) Drug Application under the Fed- New policy underlying al a statute.” NLRB v. Food, Act, Drug, and eral Cosmetic U.S.C. Brown, 278, 291, 980, 988, 380 U.S. 85 S.Ct. seq. (1970). See 21 § 301 et U.S.C. (1965); Wheatley Adler, see L.Ed.2d 839 U.S.App.D.C. v. argues Respondent procedure estab- 177, 180, (1968) 407 F.2d accepted lishes whether a substance has “an (en banc). explained As this court in its en use,” safety for and concludes that “[Resche- decision banc in International Brhd. of Elec. duling impossible of marihuana would be NLRB, U.S.App.D.C. Wkrs. v. 299- Act a re- Substances] without [Controlled aff’d, (1973), 487 F.2d 1170-1171 sub Health, Secretary appraisal from the Educa- Light nom. Florida Power & v.Co. Internation tion, Respondent’s Welfare.” br. Wkrs., 790, Brhd. of al Elec. 417 U.S. 94 S.Ct. 2737, (1974) (quoting 41 477 L.Ed.2d SEC v. interrelationship between Acts the two Chenery 215, Corp., 194, 332 U.S. 67 S.Ct. generally far from clear. See American Phar 1575, (1947) (Jackson, J., 91 L.Ed. 1995 dissent Weinberger, F.Supp. Ass’n v. maceutical ing)): aff’d, D.C.1974), (D. sub nom. American Mathews, v. Pharmaceutical Ass’n 174 U.S. experience weight “[A]dministrative is of in 202, App.D.C. (1976). 530 F.2d 1054 Neverthe judicial only point review to this is a —it less, “Congress it be doubted that cannot in persuasive agen- reason for deference to [an complementary create two tended to institu cy] discretionary in powers the exercise of its production marketing tional checks on the under and within the law. It cannot be in- drugs.” Respondent pro of new Id. at 830. support voked to action outside of the law. suppose Congress vides no reason to intended is, not, And what action and what is within necessarily NDA institutional the check by courts, the law must be determined when precede the CSA check. Even if NORML were review, authorized to no matter how much marihuana, approval to obtain of an NDA for agency’s deference is due Surely finding. fact apply have to to DEA then to reschedule agency an administrative is not a law 1308.21(a) (1976). drug. Cf. 21 C.F.R. unto itself ***.’’*** inappropriate it not We think apply for NORML rescheduling first under the CSA. prevent order unfair and uninformed petitions to reschedule substances decisions CSA, specific accompanying supra. the Act 66. See establishes text notes 21-28 agency By procedures must follow. * * interpretation held67 that cannabis and *The official Administrator Single Convention, Commentary resin could rescheduled to CSA the cannabis the Single Single Drugs, II consistent with Con- Convention on Narcotic Schedule (“Commentary”), prepared by the Secre- vention.68 Nations, tary-General United states regimes of the control Comparison requirement imposed by these Single Convention reveals the CSA the party good is that act in provisions faith primary consensus. rationality of this determining any special in whether meas- in between difference are regard needed IV ures Schedule is that II in those Schedule I and Schedule drugs. Appendix Petitioner’s E at 65. only, research used for may be former correctly that under this held ALJ Parker prescribed may the latter whereas could decline to United standard Nothing 488.69 Tr. at physicians. licensed resin to re- and cannabis cannabis restrict can- requires Single Convention in and could reschedule purposes search to re- limited resin be cannabis nabis II.70 re- Neither drugs to CSA Schedule treaty provides 2, In Art. search. Administrator con- nor spondent applicable guidelines open-ended several this conclusion. cannabis tests such as drugs IV must a nation example, resin. For parties agree that, further without in, of, and use trade production limit imposition of additional restrictions on low- pur- research IV substance schedules, II er CSA Schedule is necessary condi- opiniоn prevailing its in “if poses well as satisfy sufficient to our interna- ap- it the most country render its in tions obligations. 30, 35; tional Petitioner’s br. at public protecting means propriate * * respondent’s at br. 12. As detailed in ALJ *Art. and welfare health Findings, petitioner’s Parker’s Appendix C vein, 2, 5(a) pro- Art. In a similar K 5(b).K 22-24, requirements several imposed by special “adopt any must a nation vides Single Convention would not be met if opinion which in measures cannabis and placed cannabis resin were particularly regard to necessary having III, IV CSA Schedule or V.71 drug so included NORML of a con- properties dangerous Star, Washington A7, Fed.Reg. col. Dec. 67. 40 44167-44168 Randall, v. See United States (characterizing drug marihuana as “a noted, 68. The also Administrator id. at demonstrably effects”). with no harmful In- State, Department that the in a letter deed, in National Commission on Marihuana published Register, earlier in the Federal Abuse, Drug Report, Drug Second Use in Fed.Reg. (1974), position 23072-23075 took the I, Perspective, America: Problem Vol. at 235 that, pursuant Convention, canna- (1973), the Commission recommended that tops bis placed and cannabis resin must be necessary steps “the United States take 1 or CSA Schedule II. remove cannabis from the Drugs (1961), on Narcotic since this does 69. Section specifies 21 U.S.C. § condi- pose the same public social and health tions under which substances in CSA Sched- problems opiates associated with the and coca II, III, may prescribed. ules and IV be Sched- products.” leaf drugs may dispensed ule V pre- be without a scription. requires import example, Art. For 1A export permits would not be obtained and supra. indi- New studies have See placed in were CSA Sched- if the substances dangers are that the of marihuana use cated through V. Controlled Substances III See ules report great A as once believed. recent not Act, seq. Export Import 21 U.S.C. 951 et § and alia, representing, panel inter of a federal HEW, addition, quota recording (1970). and the DEA, Department, the State and the through requirements 21 of the of Articles 19 House, concluded that marihuana use White only by. Single be satisfied Convention cost,” sug- “relatively low social entails I or placing in CSA Schedule II. the substances gested that be considered. decriminalization See 21 U.S.C. 1; Tr. at 422—424. Post, Al, Washington Dec. col. If, 201(d). however, as NORML point; suggests, this it Section argues cedes Attorney the General must delegee of consider wheth- Attorney General could by er a substance controlled can be treaty in a less place restrictive placed in a less restrictive CSA schedule provided exercised schedule he his rulemak- provided requirements additional im- ing authority impose to additional restric- through rulemaking posed process, then satisfy Single to tions Convention.72 br, Congress would not have him to authorized Petitioner’s at 35-41. ALJ Parker re- place the substance in the schedule he argument, jected expressing some res- appropriate carry deems most to our out as to the Attorney ervations whether Gen- obligations. If treaty 201(d) is to had the to authority promulgate eral such all, any meaning at must be read to Petitioner’s Appendix rules. C at 25-26. placement authorize canna- Respondent agrees Parker, with ALJ add- II, bis resin in Schedule despite CSA ing “[pjetitioner’s request, that DEA specially imposed that a fact combination of a new create schedule for marihuana, beyond might controls meet scope ‍‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​‌‌​​‌‌‌​​‌​‌​​‌‌‌​​‌​​‌‌‌‌‍authority requirements of DEA’s Act.” Respondent’s Single Congress surely br. at 12. The Convention. did not sidestepped Administrator intend require issue to the Attorney General concluding by that a lack of currently hybrid to of a ac- consider creation schedule cepted medical use mandates that party peti- marihua- each time an interested files a remain in na CSA I. Schedule Fed.Reg. by tion to reschedule substance controlled (1975). treaty. not court need decide whether This (when B. Cannabis leaves unaccompanied Attorney rulemaking authori General’s tops). hybrid classifica permits creation of ty case, of this In the circumstances tion. that ALJ was NORML contends Parker 201(d) him plainly authorizes to de finding that under the correct suggested by rules promulgate cline may cannabis leaves be resched- ignores the language NORML V. petitioner. Respondent de- uled CSA Schedule section, Attorney directs the Administrator’s conclusion fends controlling to issue order a sub an may be General that cannabis leaves rescheduled he “under the schedule deems most III or IV but not to stance carry United in Fed.Reg. out” appropriate V. See Even obligations. under a nar ternational earlier, Art. As noted contains H (d), the reading of subsection row separated reference to canna- treaty’s treaty requirements satisfy General —to —is provision leaves. That states that bis “[t]he establish a minimum schedule directed adopt may Parties shall measures as question which the substance below of, necessary to the misuse prevent be of this mini placed. Establishment not in, illicit traffic the leaves of the cannabis legal judgment on a schedule is based mum respondent’s plant.” Petitioner’s еx- to the controls mandated pert agreed witnesses both Convention, justified and need country leaves to the discretion each findings. and scientific necessary pre- measures determination of special rulemak- request illicit traffic.73 Petitioner’s vent misuse and Tr. language purpose 48, 127, 415, 445, undercuts the ing ALJ Parker conclud- primary hybrid Commentary benefit of this classifica- 73. The defines “illicit traffic” penalty tion would be the reduced scheme that this contrary context as “trade in the leaves to applies imposed to violations of controls legal provisions domestic intended to combat through misuse, in CSA Schedules III foreign V. their or governing to laws such See 21 U.S.C. 841-843. Appendix §§ trade.” Petitioner’s E at 315. misuse.[76] and illicit traffic The which the “any measures United ed conditionsunder which when, consump non-medical objectively, viewed adopted States might permitted might tion be also de good effort to prevent to faith amounted of, pend on the outcome of the studies in, and illicit traffic ‘misuse * * * this writing being time of are plant’ the cannabis leaves concerning carried out the effects of the satisfy obligations our under would use of the leaves. Appendix Petitioner’s C at Convention.” added that a The Administrator 28. Appendix Moreover, E at Petitioner’s to effort would have be “our faith good history treaty provision in ques- Fed.Reg. effort.” best given indicates that countries much are major between substances difference leeway determining “misuse of” in what is placed IV and those in CSA Schedule placed in” leaves and in “illicit traffic and V is under Section in Schedule fashioning preventing methods of these two may be dispensed the former U.S.C. evils.77 by prescription. The Conven- only require nоt that cannabis leaVes tion does background of the rele Given only fact, dispensed by prescription.74 In be we treaty provisions, conclude that the vant Commentary treaty provides: would Single Convention allow the United place separated to marihuana leaves prohibit Parties are not bound to V. The Acting in CSA Schedule Adminis consumption the leaves for non-medi with this conclusion as an agreed trator purposes,[75] only to take cal but the nec however, principle; he legal abstract broad essary prevent measures to their misuse. that, inquiry any and held in ened the might obligation pre This involve an to event, he would not exercise his discretion consumption very potent vent marihuana to transfer leaves leaves, quantities or of excessive of them. V. Specifically, I to Schedule he may be It assumed that Parties would in stated: permitted by case not be paragraph 3 * * * authorize the uncontrolled Administrator to use of the If the in the question this Any leaves. authorized faced consumption were discussion, he academic of an have to framework governed by be regu V controls that Schedule might agree required as to prevent lations would be 30, 2(b)(i) requires prescrip- provision vague Art. “medical the Conven- !i do under the supply dispensation drugs prevent obligation for the or to the illicit tions tion. The However, may treaty sepa- carried out individuals.” traffic the leaves government limiting in the leaves to not listed in the trade cannabis leaves are rated Generally speak- shops traders. l(j), licensed therefore, pursuant Art. fl II I or many adopted ing are such measures drugs. not defined are consumption prevent exсessive countries illegal trade alcohol of alcohol (c) parties requires the to limit Art. H sufficient. distribution, possession, production, and use of Lande, System, Drug Control The International purposes. Sep- drugs and scientific to medical 129; supra see id. at 52-53. note “drugs” and are not therefore are arated leaves subject to this restriction. 77. The third draft of the sepa- included rated cannabis leaves within the describes measures One commentator definition of delegate “cannabis.” prevent party might adopt spear- misuse of from India that a opposition traffic in the leaves: headed illicit provision. to this prevent India required cannabis leaves preparation misuse measures used in beverage prohibition “bhang” which, of a might sale of called include the like beer leaves, country, in purposes. very potent of the sale excessive is consumed for nonmedical 44-45, 196; quantities to the sale to one individual Tr. at Fed.Reg. see 39 age. (1974); persons These are below a certain National Commission on Mari- might examples parties Abuse, Drug what huana a few technically separated Accordingly, so limit this court could leaves cannabis leaves.78 capable germination) of (and seeds as to to uphold Acting must decide whether the language bones meet the bare the trea- decision as exercise Administrator’s an ty. within the latitude allowed his discretion

However, treaty. marihuana in the illicit traf- the leaves, fic is a mixture crushed flow-

ers, twigs, and THC can marihua be extracted relevance of the Whatever Thus, from the leaves to make hash oil. country,79 we find in this mixtures na to which put the misuse the leaves can be premature acted Acting Administrator the appears the form in which marihuana According making his determination. ly in illicitly, make obvious that V Schedule 201(a)- set out procedures controls, permit over-the-counter CSA, Acting Administrator (c) of the “medical purpose” sales for a would fall rescheduling referred the first have should contemplated of the far short restrictions binding HEW for its scientific petition purposes of the Convention and recommenda evaluations the intent of the Comprehensive have Those recommendations tions. Drug Abuse Prevention and Control Act Acting Adminis limits of upper set of 1970. The issue to reschedule. discretion trator’s Fed.Reg. (1975); see id. at litigated 44168. at a fully have been then could point rulemaking hearing.80 At DEA Acting Administrator’s determina- The Administra Acting proceedings V controls are inad- in the position in a far better composition of the usual would have been because tor equate not, country strictly in this informed determination.81 an “marihuana” to make judgment degree regarding a determination speaking, Acting Administrator’s conformity with made in of the was not by the terms this case mandated 201(a)-(c). We owe no deference Indeed, treaty itself makes treaty. separated exercise discretion.82 invalid statutorily cannabis and between distinction potent rejected argument ALJ Parker later alone when other more the leaves Administrator, Acting stating adopted mixed with them which at the substances are present impossible that it except time seems to be laboratory. in a fact that the obvious overlooks quoted Acting Administrator above precise distinction makes that, although finding added statement and claims should be dis- which the Government by the ‘found’ administrative law was “not appear regarded. the leaves in a mix When judge, ‘found’ Administra- [it is] cannabis, they tops are “canna- Fed.Reg. 44166 tor.” subject regimen to the control bis” and are When and IV of the Convention. Schedules I course, Unless, Secretary were to rec- alone, they subject they appear separated placed leaves be ommend amount of obfuscation controls. No those IV, V, III, or in which case DEA * * * that fact. can cloud over prevented scheduling would be the leaves Appendix C at Petitioner’s tops in Schedule I with cannabis or II. only possible for the rationale testimony Although some is contained in conclusion Administrator’s strayed inquiry, main from the focus of see Tr. State, Department of to DEA from letter published 158-160, 165, hearing held before ALJ Register, Fed.Reg. in the Federal limited to the issue of this Parker was coun- (1974): obligations treaty. try’s under the ALJ’s Find- Law, ings of Fact and Conclusions of and Rec- flowering mixing practice [T]he Decision, petitioner’s Appendix ommended C at (sometimes fruiting tops, re- cannabis resin 7-8. hashish), or a concentrated can- ferred to as leaves, seems extract with nabis supra. determining 82. See note 64 problem present a serious applied can be level of control whether one

755 unaccompanied (when plants seeds duce cannabis to be free Cannabis from con- C. Respondent’s trol.” br. at 14. Neither the by tops). Acting opinion Administrator’s nor respon- the tops detached seeds Cannabis specifies precise dent’s brief of degree treaty’s defini- within the not included are necessary satisfy control the treaty.84 the controls None of “cannabis.” of tion treaty specificаlly to refers in the outlined persuaded We are not that the Act relevant only arguably seeds. cannabis ing Administrator erred in concluding that 2, 18, provides: which is Art. provision Art. 8 creates an duty affirmative H shall use their best The Parties endeav- establish some measure of control over can to substances which do not apply ors to capable germination. nabis seeds of In ac Convention, but fall this which under knowledging discretion of each nation in the illicit may be used manufacture of to determine those by substances embraced supervision measures of drugs, as practicability Art. 8 and the of various H may practicable. be supervision, measures of the Commentary assigns specific open-end purpose Commentary provision this states First, provision. edness of the the drafters vagueness wording of the of that “[t]he treaty could not foresee which sub practically 8 leaves it to the dis- paragraph in the stances would future be used in illicit Party of each to decide what cretion of “It drugs: manufacture narcotic is this control apply pro- it should substances impossibility to foresee substances what paragraph, in this measures vided require might application which of con to take.” Petition- practicable it would be adoption trol measures led to the of E at 71. Appendix er’s very vague provision.” this broad Peti Second, E at 71. Appendix tioner’s ALJ contends —and Parker NORML Single that recognizes Convention measures treaty allows decontrol of agreed —that country may in one be practicable impracti published opinion In his seeds. cannabis another, cable in where the substance is position Administrator took the Acting id.; legitimate purposes, used industrial incapable of not germination seeds are that thus the confers broad discretion to treaty,83 that seeds capa- covered but adopt measures supervision may “such of are covered germination of ble practicable.” (1975). Fed.Reg. 44167 40 decontrolled. Acting Administrator’s conclusion that under Art. agrees Respondent K8 the United States cannot decontrol violation of would be “[i]t capable seeds pro- germination which can of seeds to allow Convention Moreover, Acting Apparently, the definition of marihuana con- Administrator would CSA, greater 802(15), require 21 measures than those U.S.C. § tained in imposed listed in CSA Schedule specifically excludes “the sterilized seed of that, in his decision “in the frame- incapable V. He notes plant which is such [marihuana] discussion, might an academic he Consequently, work of germination.” those seeds are agree CSA, V controls could technical- there is no not controlled need (and them, ly separated capable Acting leaves seeds and the so limit decontrol Administrator correctly incapable germi- germination) as to the bare lan- meet bones “[s]eeds held * * * treaty.” pro- Fed.Reg. guage nation are not an issue ceeding.” Fed.Reg. (1975). Presumably, outside the framework mistakenly require great- reads the Admin- Petitioner he would discussion an academic holding However, specifically that “cannabis istrator’s decision he noted er controls. (including germination) capable those imposed seeds” rigid “the controls br. were not at issue. Petitioner’s at 47. they accompany the on seeds when Clearly, capable germination (which seeds apply separated tops seeds which are do not CSA) put were are controlled capable germination.” Id. at 44165. There- issue, Administrator did not fore, contemplated place- appears to have he hold otherwise. III or IV. in either CSA Schedule ment hearing referral and requirements purposes of the discre- with the Sec- consistent 201(a)-(c). Art. 8. It cannot be aspects of tionary capable germination seeds doubted and will continue to be currently used Synthetic tetrahydrocannabinol (THC) D. of cannabis ma- illicit manufacture used in or “artificial cannabis.” terials; hence, problem foreseeability of no petitioner does involved. Nor contend

is synthetic equivalents The of mari legitimate purpose seeds have some that the extracts, tetrahydrocannabinols huana by imposition be frustrated of would that (THC),88are contained in Schedule I.89 CSA degree of control.85 In these circum- any treaty his discussion of United stances, Acting we affirm the Administra- obligations correctly ALJ Parker held that 2, finding contemplates that Art. tor’s K2 nor other neither Convention measure of over cannabis some treaty country party to which this is a germination. capable of synthetic seeds requires control THC.90 Peti Appendix Acting C at 14. The

tioner’s agreed synthetic that Administrator THC is Acting Administrator further by treaty, but added not controlled that found, “in the framework of an academic not “in proceed therefore is issue” in this discussion,” that CSA Schedule V controls Fed.Reg. 44167 ing. 40 capable germination seeds over would requirements meet the treaty obligations with re- Con The lack Fed.Reg. (1975), vention. 40 that the THC means synthetic Given spect open-ended 2,18 nature of Art. unlimited latitude within and the retains natiоn attaching limitations drug Con- V to schedule substances,86 Act91; agree finding we that in no placement that trolled Substances synthetic least restrictive the conclusion that domestic schedule leads to way Respondent, violate the letter or how- spirit of the not “in issue.” is THC However, treaty. position, at stage ever, this a somewhat different pro takes ceeding we are synthetic THC is not in issue reject arguing constrained to Administrator’s implication petition no to reschedule because yet has been country Respondent’s necessi filed. br. at 18. mixtures in marihuana on Parker’s Relying finding, petitioner cannabis ALJ controls over more restrictive tate that, although (1975).87 responds not listed in the Fed.Reg. seeds. request hearing, synthetic for a finding, like initial THC Acting Administrator’s leaves, put objection been in issue without through should have was regarding hearing testimony. with the Petitioner’s br. at compliance after until deferred 2, Enforcement, 2, Drug depend part (Spring 85. The extent of control Vol. No. at 26 will 1975). measures, practicality of various a determi- can be made after nation that evidence is re- 89. See 812(c); 21 U.S.C. § 21 C.F.R. § 1308.11. phase rescheduling second ceived in the proceeding. supported These conclusions were testimony hearing. expert Tr. at at the Appendix opinion.- 86. See to this Synthetic THC is controlled Substances, Psychotropic U.N.Doc. E/Conf. supra. 87. See note 84 yet (1961), but this is not in force. 58/6 National Commission on Mari- Tr. at 49. See delta-9-tetrahydrocannabinol The chemical Abuse, Drug supra note at 234- huana and (THC) principal psychoac is believed to be the in cannabis materials. tive substance See Unit Walton, U.S.App. And, incapable germination, ed States v. unlike seeds 202; Fеd.Reg. 514 F.2d at already D.C. synthetic controlled under the THC Cannabis, (1975); Langer, Drugs of Abuse: CSA. VI. CONCLUSION (citing petitioner’s Appendix 15). 50-52 C adds Tr. at 471. Petitioner See case is remanded for further pro- This concur that parties no internation- since ceedings opinion. not inconsistent with this exist, respondent’s see br. at al controls Specifically, Administrator di- rescheduling question synthetic THC rected, 201(a)-(c), pursuant to Section Secretary should be “referred to petition NORML the Secretary refer the a separate category HEW as of cannabis HEW for medical and scientific findings Petitioner’s br. at 51. material.” rescheduling, and recommendations con- requirements with the of the Single sistent that DEA note at the outset We Convention, as interpreted by this court. prejudiced it was contend does not Secretary HEW is directed make was raised synthetic issue THC when separate evaluations and recommendations indeed, hearing; with the accord following cannabis materi- for each of testimony, readily respondent con hearing als, by treaty: authorized the limits within does cedes respon Nor does the substance. apply to and “cannabis resin” “Cannabis” the similarities between argue dent (minimum regime control CSA THC and natural marihuana ma synthetic II). Schedule slight too to warrant consolidat terials reason sole ed consideration. (minimum leaves control re- Cannabis to consideration re opposition DEA’s V). of Schedule gime scheduling THC is failure NORML’s capable germina- seeds 3. Cannabis with appropriate petition filed (minimum regime tion However, under both CSA Section agency. V). see applicable regulations, 201 and 1308,1316, appears peti C.F.R. §§ (no minimum control Synthetic THC any be filed at resсhedule tion to regime). that, in the We therefore conclude time.92 justice and in furtherance of a receipt Secretary’s interest evalua- Following recommendations, contro protracted of this Ad- resolution tions and final either to be allowed should versy, NORML with the comply directed ministrator file a new or to petition earlier amend rulemaking procedures outlined THC be synthetic requesting petition 201(a)-(b). proceeding ensuing rescheduled. So ordered. proceeding with the consolidated should to follow. Appendix materials. natural reschedule Moreover, DEA has regulation, conceded 1308.45(a), in its brief DEA 21 C.F.R. and at § 92. One argument request oral any that a person “desiring hearing hearing requires that “would, course, require rulemaking” request consideration proposed shall file a Respondent’s Thus, DEA.” days br. at publication even if within 30 after of the notice of 1308.45(a) § would otherwise rulemaking. proposed appear render It does not ineffective petition, agency a belated apparently any published pro- has DEA at time a notice application chosen in this case to waive respect synthetic rulemaking posed with bar, if it exists. THC, 1308.45(a) inapplicable. therefore

APPENDIX Vodra,

From Act, Controlled Substances ENFORCEMENT, ‍‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‌‌​‌‌​​‌‌‌​​‌​‌​​‌‌‌​​‌​​‌‌‌‌‍DRUG Vol. No. (Spring 1975).

at 20-21 the Control Mechanisms.of SCHED- REGIS- ULE TRATION Required KEEPING RECORD- MANUFACTUR- Separate ING QUOTAS BUTION PENS- RESTRIC- DISTRI- DIS- forms Order TIONS ING LIMITS use Research IMPORT-EXPORT NON- NARCOTIC Vault SE- CUR- ITY type MANUFAC- PEA DISTRIB- TURER/ UTOR Yes PORTS RE- TO $25,000 CRIMINAL PENALTIES years/ FOR TRAFFICKING (FIRST OFFENSE) NARCOTIC NON- $15,000 years/ Required Separate Order forms fills no re- written; Rx: Vault type $25,000 years/ $15,000 years/ Required Required Required those derived able retriev- retriev- Readily retriev- Readily able Readily able from substances quotas but Some but Some drugs* but Some drugs* limited No No No limited quotas limited quotas by XX drugs* XI IX in/Schedule tion number number tra- regis- DEA DEA regis- DEA regis- tiоn number tra- tra- II Co MD's author- refills Rx: or oral written up Rx: written ization; limited order) up to 5 times 6 months 0TC 6 months (Rx drugs author- or oral ization; times refills to 5 . . export import veil- veil- Sur- Manufac- veil- lance lance lance Sur- Sur- Non- narcotic NO only. Narcotic narcotic Yes Non- turer No Narcotic Narcotic No No Non- narcotic $5,000 $15,000 3 years/ $10,000 l year/ years/ 5 years/ $5,000 $10,000 $15,000 years/ year/ ROBB, Judge, dissenting: Circuit General may control the drugs involved “under the schedule he deems most appro- respectfully I dissent. priate . . . regard without to” any agree I cannot with the majority’s conclu- recommendations from H.E.W. 21 U.S.C. sion that the Controlled Substances Act re- 811(d) (1970) (emphasis added). quires Attorney General to seek advice I think the statute means what it plainly Health, Department from the Education says; but even if it were so ambiguous (H.E.W.) before assigning Welfare require legislative resort marijuana to its appropriate history, to an schedule. history support majori- not gives Attorney The Act General ty’s interpretation. The relevant House scheduling drugs broad discretion in over Report states: required by which control is treaty. Not- (d), Under subsection where control of withstanding majority’s assertion to the or other substance the United contrary, the Act does not limit this discre- is required by reason of obliga- tion when more than one schedule would tions under an international satisfy country’s treaty treaty, commitments. con- vention, provides protocol The Act that “If . . control is re- . the bill quired by obligations require United States does not that the Attorney Gener- treaties”, international then the Attorney al seek an evaluation recommenda- Health, Educa- Secretary of tion, . and Welfare Cong., 91st 2d Sess.

H.R.Rep.No.91-1444, Cong. & Admin.News U.S.Code

pt. added). (1970) (emphasis p. legisla- nor its

Thus, the statute neither majority’s posi- supports the history

tive

tion; required say when control both need not General

by treaty it is Believing H.E.W.

consult I to rewrite statute court

function

must dissent. ELLIOTT, Individually and as B.

Helen of Darlene Estate

Administratrix Elliott, Appellant,

Julie

v. INC., JAMES, t/a

MICHAEL II, Appellee.

Gentlemen ELLIOTT, Individually and as

Helen B. Estate of

Administratrix Elliott, Appellee, Julie

Darlene

v. INC., JAMES, t/a

MICHAEL II, Appellant.

Gentlemen 76-1132, 76-1134.

Nos. Appeals, Court of

United States Circuit. of Columbia

District 18, 1976.

Argued Nov. May 6, 1977.

Decided

Rehearing Denied June

Case Details

Case Name: The National Organization for the Reform of Marijuana Laws (Norml) v. Drug Enforcement Administration, U. S. Department of Justice

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 26, 1977

Citation: 559 F.2d 735

Docket Number: 75-2025

Court Abbreviation: D.C. Cir.