Petition to Initiate Proceedings for Rulemaking

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July 4, 2022
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Anne Milgram, Administrator,
Drug Enforcement Administration,
8701 Morrissette Drive,
Springfield, VA 22152
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Dear Madam: The undersigned, John Paul Schuessler, hereby petitions the Administrator to

initiate proceedings for the amendment of a rule pursuant to section 201 of the Controlled

Substances Act (CSA).

Attached hereto and constituting this petition are the following:

(A) The proposed rule in the form proposed by the petitioner:

The petitioner proposes that the marijuana plant currently scheduled under Schedule I be

removed and placed in Schedule II and additionally that analysis be done to consider if Schedule

III or lower satisfies international obligations and is also determined by medical and scientific

evidence to be an appropriate schedule for marijuana under 21 U.S.C. § 812.

This amendment would remove “marihuana” as currently listed at 21 C.F.R. § 1308.11(d)(23)

and place it under 21 C.F.R. § 1308.12, § 1308.13, § 1308.14, or § 1308.15.

(B) A statement of the grounds which the petitioner relies for the issuance of the

rule:

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According to CSA provisions, “a drug or other substance may not be placed in any schedule

unless the findings required for such schedule are made with respect to such drug or other

substance.” (Emphasis added) 21 U.S.C. 812(b).

There is an exception to 21 U.S.C. § 812(b) found in 21 U.S.C. § 811(d) which says “If control is

required by United States obligations under international treaties, conventions, or protocols in

effect on October 27, 1970, the Attorney General shall issue an order controlling such drug

under the schedule he deems most appropriate to carry out such obligations, without regard

to the findings required by subsection (a) of this section or section 812(b) of this title and

without regard to the procedures prescribed by subsections (a) and (b) of this section.”

(Emphasis added) 21 U.S.C. § 811(d)(1).

This directs the Attorney General to issue an order controlling the drug under the schedule he

deems most appropriate to carry out such obligations. This exception does not give the

Attorney General unlimited power to pick any schedule without further reason. It merely

creates a minimum level of control to avoid a scenario where the findings from the Secretary of

Health and Human Services, which are normally binding in this regard, say to schedule a drug or

substance lower than international obligations allow. Any latitude in scheduling after treaty

considerations is still subject to the same medical and scientific considerations under 21 U.S.C.

§ 812 as other substances. For example, if hypothetical substance X must be placed in Schedule

V based on international obligations, the decision of whether to go further with restriction and

control and choose Schedule I through IV would still require the findings for each schedule as

mentioned in 21 U.S.C. § 812(b).

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Marijuana has been admitted by the government as satisfying international requirements if it is

controlled under Schedule I or II. Federal Register Vol. 40, No.187, September 25, 1975 p.

44167. That was long before the recent change and removal of marijuana from Schedule IV of

the Single Convention. That change could mean Schedule III or lower may possibly satisfy

international obligations and should be examined.

At the very least, it has long been acknowledged that controlling marijuana under Schedule II

will not violate international obligations.

Rather than establish the existence of the requirements for any specific schedule, petitioner

would like to establish the lack of a required finding needed for placement in Schedule I.

As stated, according to CSA provisions, “a drug or other substance may not be placed in any

schedule unless the findings required for such schedule are made with respect to such drug or

other substance.” (Emphasis added) 21 U.S.C. § 812(b).

For Schedule I, the second required finding is “(B) The drug or other substance has no currently

accepted medical use in treatment in the United States.” 21 U.S.C. § 812(b)(1)

DEA seems to rely heavily on decisions made decades ago related to the decision of whether

marijuana has currently accepted medical use in treatment in the United States. In 2016, the

DEA denied a 2011 petition to initiate rulemaking based on its five-part test. Federal Register

Vol. 81, No. 156, August 12, 2016 p. 53688. This five-part test fails to adhere to the ordinary

meaning of the statutory language of 21 U.S.C. § 812. See A. Scalia & B. Garner, Reading Law:

The Interpretation of Legal Texts § 6 at 172 (2012) (“The ordinary-meaning rule is the most

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fundamental semantic rule of interpretation.”). Further, the placement of marijuana in

Schedule I violates principles of federalism and state sovereignty. Congress did not intend to

displace state sovereignty and occupy the field of medicine with the CSA. 21 U.S.C. § 903.

When the five-part test was first used in 1992, it was four years before the first state, California,

legalized marijuana for medical use in 1996. Federal Register Vol. 57, No. 59, March 26, 1992 p.

10499. DEA did not consider state sovereignty in 1992 as there were zero states with any

medical marijuana laws and that is a glaring issue in the present application of the five-part test

with a supermajority of states authorizing medical marijuana.

The average American citizen would not extrapolate the government’s five-part test under the

ordinary meaning of “no currently accepted medical use in treatment in the United States.” The

average American would look at the landscape in America of state laws on medical marijuana

and see that there is some “currently accepted medical use in treatment in the United States.”

If Congress intended the requirement of 21 U.S.C. § 812(b)(1)(B) to be something other than its

ordinary meaning than it presumably would have indicated that. Instead, for over two decades

the five-part test has been used to deny petitions for rescheduling marijuana.

Currently, a total of 37 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin

Islands regulate cannabis for medical use by qualified individuals with 19 states, Washington,

D.C., and Guam also allowing recreational use. These are programs created under state statutes

and state constitutions. The decisions about treatment with marijuana are made and influenced

by practicing licensed doctors, pharmacists, and other medical professionals. Doctors

recommend marijuana for a variety of medical conditions with overlap between many of the

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qualifying conditions in various states. State boards of pharmacy and medicine approve and

oversee the programs. The state laws are being passed both by state legislatures and voter

initiatives. No reasonable person could look at the landscape in the United States in 2022 and

say there is “no accepted medical use in treatment within the United States.” In addition to the

state level, the federal government has allowed CBD and THC pharmaceuticals, both derived

from the plant and synthetic, as well as investigational new drug applications. Also, Congress

has since 2014 continued to pass legislation preventing the DOJ from prosecuting those in

compliance with state medical marijuana. In doing this, Congress decided to allow and accept

current state medical marijuana.

Any amount of accepted medical use in treatment in the United States is more than “no

currently accepted medical use” and would therefore disqualify a drug or substance from being

Schedule I. In this case, there is accepted medical use for treatment in the United States as the

average reasonable person would understand using ordinary English.

Transferring marijuana, or any substance, out of Schedule I is something Congress foresaw as a

real possibility.

It is past time to reschedule marijuana and an important question is whether the recent action

removing marijuana from part of the Single Convention and relaxing the international stance

towards marijuana means that Schedule II is not the only lower schedule possible for marijuana

in the United States.

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In summary, this petition asks for:

An abandonment of the current five-part test under § 812 and a change in the DEA’s

interpretation of the CSA to align with the plain meaning of 21 U.S.C. § 812(b)(1)(B) resulting in

the rescheduling of marijuana to Schedule II or lower.

All notices to be sent regarding this petition should be addressed to:

Respectfully yours,
⁠

John Paul Schuessler