By definition, a synthetic drug is the same as its natural  
occurring twin.  Delta-9-THC is only one substance, not two.  In  
1986, Health and Human Services (HHS) recognized that synthetic  
delta-9-THC is the same as its naturally occurring twin.  The DEA  
must accept this scientific and medical findings of HHS.  
	The DEA is trying to do something with delta-9-THC that it  
doesn't do with any other drug, placing the synthetic drug in a  
different schedule than its naturally occurring twin.  The DEA is  
not authorized to make such distinctions.  The DEA must defer to  
HHS for scientific and medical findings.  
	Neither can the DEA rely on FDA marketing approval of   
Marinol, synthetic dronabinol "in sesame oil and encapsulated in  
soft gelatin capsules," as a reason for keeping all other forms  
of delta-9-THC in Schedule I.  Sesame oil and gelatin capsules  
are simply foods, which are not subject to control under the CSA.   
It is delta-9-THC which is in Schedule II, not just the FDA  
approved product Marinol.  
	In 1986, when marijuana became the source of an accepted and  
useful medication, delta-9-THC, it should have been transferred  
into the same schedule of the CSA, Schedule II, as the other  
plants, coca and opium, which are the sources of the accepted and  
useful medications cocaine and morphine.  
	The Administrator's decision that synthetic delta-9-THC in  
sesame oil and encapsulated in soft gelatin capsules, but not  
delta-9-THC itself, has been rescheduled, and that delta-9-THC is  
not obtained from marijuana, is beyond the scope of the DEA's  
	This Court must review the DEA's decision to schedule delta- 
9-THC simultaneously in two different schedules in light of the  
guidelines set forth by the Supreme Court in Chevron U.S.A., Inc.  
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104  
S.Ct. 2778, 81 L.Ed.2d 694 (1984).  In Chevron, the Court  
explained that a reviewing court must employ a two-step analysis  
that focuses initially on the intentions of Congress:  
First, always, is the question whether Congress had directly  
spoken to the precise question at issue.  If the intent of  
Congress is clear, that is the end of the matter; for the court,  
as well as the agency, must give effect to the unambiguously  
expressed intent of Congress.  
Id. at 842-43, 104 S.Ct. at 2781 (emphasis supplied).  In the  
absence of congressional intent, however, the court must proceed  
to a second inquiry:  
If ... the court determines Congress has not directly addressed  
the precise question at issue, the court does not simply impose  
its own construction on the statute, as would be necessary in the  
absence of an administrative interpretation.  Rather, if the  
statute is silent or ambiguous with respect to the specific  
issue, the question for the court is whether the agency's answer  
is based on a permissible construction of the statute.  
Id. at 843, 104 S.Ct. at 2781-82 (footnote omitted; emphasis  
	In enacting the CSA, "Members of the House repeatedly stated  
that the Department of Justice should make judgments based on law  
enforcement considerations, while HEW should have the final say  
with respect to medical and scientific determinations."  NORML v.  
DEA, 559 F.2d at 746.  The Department of Justice "may not  
schedule a substance under the CSA without first obtaining the  
recommendation of the FDA, through its parent agency, HHS, 21  
U.S.C.  811(b), and providing an 'opportunity for a hearing  
pursuant to rulemaking procedures prescribed by [the  
Administrative Procedures Act].' 21 U.S.C.  811(a)."  Grinspoon  
v. DEA, 828 F.2d 881, 890 (1st Cir. 1987).  "This request is  
filed with the Commissioner of FDA, who has the responsibility  
for coordination of activities within [HHS]."  NORML v. DEA, 559  
F.2d at 749 n.59.  
	As this Court stated in 1977:  
	Our interpretation of Section 201(d) ensures proper  
allocation of decisionmaking responsibility between the Attorney  
General and the Secretary of HEW, in accordance with their  
respective spheres of expertise.  Section 201(d) directs the  
Attorney General, as an initial matter, to make a legal judgment  
as to controls necessitated by international commitments.  He  
then establishes a minimum schedule or level of control below  
which placement of the substance may not fall.  Determination of  
a minimum schedule ensures that the Secretary's recommendation,  
which ordinarily would be binding as to medical and scientific  
findings, does not cause a substance to be scheduled in violation  
of treaty obligations.  However, once that minimum schedule is  
established by the Attorney General, the decision whether to  
impose controls more restrictive than required by treaty  
implicates the same medical and scientific considerations as do  
scheduling decisions regarding those few substances not  
controlled by treaty.  The Secretary of HEW is manifestly more  
competent to make these nonlegal evaluations and recommendations.  
NORML v. DEA, 559 F.2d at 747.  
	Although the FDA has approved a New Drug Application (NDA)  
for Marinol, synthetic delta-9-THC in sesame oil and encapsulated  
in soft gelatin capsules, this does not qualify as a  
recommendation to the DEA for purposes of scheduling.  FDA has  
never recommended that delta-9-THC remain in Schedule I while  
Marinol is in Schedule II, nor has it said that synthetic delta- 
9-THC is better than delta-9-THC itself.  [App., p. 15]  
	This is not the first time the DEA has tried to follow  
verbatim text of FDA marketing approval for a New Drug  
Application (NDA) in making a scheduling determination.  As this  
Court stated in 1991:  
The First Circuit in Grinspoon v. Drug Enforcement  
Administration, 828 F.2d 881, 891-92 (1st Cir. 1987), upon which  
petitioners rely, had held that earlier criteria the  
Administrator had employed to define "currently accepted medical  
use" were contrary to the statute because they were a carbon copy  
of those used by the FDA in licensing new drugs.  The present  
criteria, it is argued, duplicate a number of those original  
criteria.  But the criteria challenged in Grinspoon included  
several elements, such as the availability of patent information  
or FDA-required labeling, which were necessary only to market the  
drug in interstate commerce.  These criteria are clearly relevant  
to the FDA's mission, but not the DEA's, see Grinspoon, 828 F.2d  
at 887.  The First Circuit never suggested the DEA Administrator  
was foreclosed from incorporating and relying on those standards  
employed by the FDA that are relevant to the pharmaceutical  
qualities of the drug.  The court merely held that while FDA  
approval is sufficient to establish the existence of an accepted  
medical use, the converse in not true -- that absent FDA  
approval, commonly accepted medical use cannot be proven.  Id. at  
890.  Nor can we conceive of a reason the Administrator should be  
barred from employing notions developed by a sister agency  
insofar as those notions serve the missions of both agencies.  
ACT v. DEA, 930 F.2d at 939-40.    
	In 1987, the First Circuit said,   
[W]e find no necessary linkage between failure to obtain FDA  
interstate marketing approval and a determination that the  
substance in question is unsafe and has no medical use.  Indeed,  
the FDCA does not even mention the term 'medical use.'  In short,  
it is plainly possible that a substance may fail to obtain  
interstate marketing approval even if it has an accepted medical  
Grinspoon, 828 F.2d at  887.  "Thus, it is possible that a  
substance may have both an accepted medical use and safety for  
use under medical supervision, even though no one has deemed it  
necessary to seek approval for interstate marketing."  Id.  
	A synthetic drug is the same as its naturally occurring  
twin, by definition.  Under this Court's order of June 4, 1982,  
in NORML v. DEA, No. 79-1660, the Department of Health and Human  
Services (DHHS) was required to submit reports on the status of  
its recommendations for the scheduling of THC and marijuana  
plants.  In reference to the DEA's rescheduling order of May 13,  
1986 (51 Fed. Reg. 17,476) the DHHS stated that, "Dronabinol is  
structurally the same as THC."  [App., p. 8]  
	The Administrator says that marijuana is not the source of  
an accepted and useful medication, but there is considerable  
evidence to the contrary.  In his final order on NORML's  
petition, the Administrator adopted in their entirety the  
findings of the former Administrator.  57 Fed. Reg. at 10,507.   
The former Administrator, in his final order on NORML's petition,   
stated, "There is no difference in the pharmacological effect  
between the THC isolated from cannabis and the synthetically  
produced THC which is now marketed in the United States."  54  
Fed. Reg. at 53,774.  As this Court noted in 1991, "The First  
Circuit never suggested the DEA Administrator was foreclosed from  
incorporating and relying on those standards employed by the FDA  
that are relevant to the pharmaceutical qualities of the drug."   
ACT v. DEA, 930 F.2d at 939.  The former Administrator, in  
agreement with HHS, recognized that the pharmaceutical qualities  
of synthetic delta-9-THC are the same as those of delta-9-THC  
	In his final order on NORML's petition, the Administrator  
stated, "There are scientific studies showing pure THC (Delta-9- 
Tetrahydrocannabinol), one of the many chemicals found in  
marijuana, has some effect in controlling nausea and vomiting.   
Pure THC is pharmaceutically made in clean capsule form, called  
Marinol, and is available for use by the medical community.  More  
information on Marinol can be found in the 'Physicians' Desk  
Reference,' available in most libraries."  57 Fed. Reg. at  
10,500.  The 1993 Physician's Desk Reference describes Marinol as  
follows: "Dronabinol, commonly known as delta-9-THC, is one of  
the major active substances in marijuana."  Id. at p. 2076.  
	Synthetic delta-9-THC is an exact duplicate of its naturally  
occurring twin, delta-9-THC.  "Following the isolation and  
characterization of delta-9-THC as the major active component of  
marijuana by Mechoulam and colleagues, a technique for producing  
synthetic material was developed."  Plasse, T.; Gorter, R.;  
Krasnow, S.; Lane, M.; Shepard, K.; Wadleigh, R. Recent Clinical  
Experience With Dronabinol.  Pharmacology Biochemistry &  
Behavior, Vol. 40, pp. 695-700; 1991 (Gaoni, Y.; Mechoulam, R.  
The isolation and structure of 1-tetrahydrocannabinol and other  
neutral cannabinoids from hashish. J. Am. Chem. Soc. 93:217-224;  
1971)  (Petrzilka, T.; Haefliger, W.; Sikemeier, C. Synthesis of  
hashish components. Part 4. Helv. Chim. Acta 52:1102-1134; 1969).  
	In a letter dated July 13, 1993, the FDA states that, "A  
synthetic drug ... is identical in all respects to the product  
isolated from a plant source.  Such a product can be marketed  
under the same name....  A synthetic drug would be in the same  
schedule as its naturally occurring twin."  Letter from the FDA,  
July 13, 1993 [App., p. 16].  
	Clearly, delta-9-THC itself was approved for medical use by  
the FDA when it approved Marinol.  "[T]he [DEA] does not have the  
authority to impose Schedule I controls on a drug which has been  
approved by the [FDA] for medical use."  Grinspoon, 828 F.2d at  
890 (citing, 1984 U.S. Code Cong. & Admin. News 540, 543).  
	When the Economic and Social Council of the United Nations  
moved delta-9-THC from Schedule I to Schedule II of the  
Convention on Psychotropic Substances, it made no distinction  
between synthetic delta-9-THC and delta-9-THC itself.  
	In 1986, then Administrator John C. Lawn improperly took  
upon himself the authority to define synthetic delta-9-THC and  
delta-9-THC itself as two separate substances under the CSA.  
	In the course of rescheduling synthetic dronabinol to  
Schedule II of the CSA, the original proposal submitted by the  
DEA defined it as "the principle psychoactive substance in  
Cannabis sativa L., marijuana," 50 Fed. Reg. 42,185 (October 18,  
1985) (proposed rule), but this definition was changed to "the  
synthetic equivalent of the isomer of delta-9- 
tetrahydrocannabinol (THC) which is the principle psychoactive  
substance in Cannabis sativa L., marijuana" in the final rule, 51  
Fed. Reg. 17,476 (May 13, 1986) (final rule).  Whether this  
change was accidental or intentional is hard to discern, but it  
clearly exceeded the Administrator's authority.  
	Although it is true that "[a]ppellate courts have neither  
the expertise nor the resources to evaluate complex scientific  
claims," this is not a complex scientific claim.  Grinspoon, 828  
F.2d at 896 (citing, Thompson Medical Co. v. FTC, 791 F.2d 189,  
196 (D.C. Cir. 1986)).  A synthetic drug must be the same as the  
naturally occurring twin before it can receive FDA marketing  
approval for distribution in interstate commerce.  As a matter of  
law, delta-9-THC itself was rescheduled to Schedule II of the CSA  
at the same time as synthetic delta-9-THC, and this Court should  
so find.  
	As this Court noted in 1991, "As is apparent, one salient  
concept distinguishing the two schedules is whether a drug has  
'no currently accepted medical use in treatment in the United  
States.'"  ACT v. DEA, 930 F.2d at 938.  "However, placement in  
Schedule I does not appear to flow inevitably from lack of  
currently accepted medical use."  NORML v. DEA, 559 F.2d at 748.   
"The legislative history of the CSA indicates that medical use is  
but one factor to be considered, and by no means the most  
important one."  Id.  
	Moreover, DEA's own scheduling practices support the  
conclusion that substances lacking medical usefulness need not  
always be placed in Schedule I.  At the hearing before ALJ Parker  
DEA's Chief Counsel, Donald Miller, testified that several  
substances listed in CSA Schedule II, including poppy straw, have  
no currently accepted medical use.  Tr. at 473-474, 488.  He  
further acknowledged that marihuana could be rescheduled to  
Schedule II without a currently accepted medical use.  Tr. at  
487-488.  Neither party offered any contrary evidence.    
	The explanation given by the Administrator for the placement  
of coca and opium poppy plants in Schedule II is that coca and  
opium poppy plants have been "recognized as the source for a  
variety of accepted and useful medications."  Petition, Exhibit  
A.  According to this explanation, marijuana should be  
transferred to Schedule II, because it has now become the source  
of an accepted and useful medication, after its initial placement  
in Schedule I of the CSA in 1970.  
	In the final order under review in this case, the  
Administrator stated that, "Since I am not accepting your  
petition on the grounds that dronabinol is a wholly synthetic  
substance, not obtained from marijuana, it is unnecessary for me  
to consider the broader question of whether the rescheduling of  
marijuana would be appropriate if accepted medications were  
indeed obtained from that source."  Final Order, October 23,  
	Again, the standard of review is that of Chevron, 467 U.S.  
837.  It is apparent from reading the CSA that Congress intended  
to include coca and opium poppy plants in Schedule II because  
useful medications were being derived from these plant sources  
when the CSA was created in 1970.  The apparent distinction that  
Congress made between marijuana and coca and opium poppy plants  
when the schedules were created in 1970 was that coca and opium  
poppy plants were the sources of useful and accepted medications,  
while marijuana was not.  The Administrator has provided his  
interpretation of the statute by stating "Congress was very much  
aware that these plant materials [coca and opium poppy] have  
historically been recognized as the source for a variety of  
accepted and useful medications."  Petition, Exhibit A.  
	The Administrator's interpretation reinforces what is  
apparent from the face of the statute, that plants which are the  
source of accepted and useful medications cannot be placed in a  
schedule higher than Schedule II.  For example, peyote, a plant  
which contains the Schedule I drug mescaline, is also in Schedule  
I, while opium poppy, a plant which contains the Schedule II drug  
morphine, is in Schedule II.  
	To quote the Administrator, "Those who insist marijuana has  
medical uses would serve society better by promoting or  
sponsoring more legitimate scientific research, rather than  
throwing their time, money and rhetoric into lobbying, public  
relations campaigns and perennial litigation."  57 Fed. Reg. at  
10,503.  Since marijuana belongs in Schedule II of the CSA, the  
DEA should not even be involved in the debate on marijuana's  
medical use.  Congress intended the FDA to handle this debate.   
Scientific research will be promoted by treating marijuana  
exactly the same as coca and opium poppy plants, the DEA will be  
removed from the debate on marijuana's medical use, clearing the  
way for the FDA to take over, and needless perennial litigation  
will cease.  
	Since accessibility for research purposes is exactly the  
same under either Schedule I or Schedule II, there is no reason  
for the DEA not to move marijuana into Schedule II, since DEA's  
only legitimate concern under the CSA is drug diversion.   
"Congress was particularly concerned with the diversion of drugs  
from legitimate channels to illegitimate channels."  United  
States v. Moore, 423 U.S. 122, 135 (1972).  
	Another question presented is whether the Administrator  
followed proper procedure in refusing to accept the petition by  
denying the petition on its merits.  Pursuant to 21 C.F.R.   
	Within a reasonable period of time after the receipt of a  
petition, the Administrator shall notify the petitioner of his  
acceptance or nonacceptance of the petition, and if not accepted,  
the reason therefor.  The Administrator need not accept a  
petition for filing if any of the requirements prescribed in  
paragraph (b) of this section is lacking or is not set forth so  
as to be readily understood.  If the petitioner desires, he may  
amend the petition to meet the requirements of paragraph (b) of  
this section.  If accepted for filing, a petition may be denied  
by the Administrator within a reasonable period of time  
thereafter if he finds the grounds upon which the petitioner  
relies are not sufficient to justify the initiation of  
The Administrator's streamlined procedure in this case appears to  
be in conflict with DEA regulations.  This Court dealt with a  
similar procedural question in 1974:   
[T]he rejection of a filing is a "peremptory" response "which  
classically is used not to dispose of a matter on the merits but  
rather as a technique for calling on the filing party to put its  
papers in proper form and order.  Its use is not limited to  
defects of form.  It may be used by an agency where the filing is  
so patently a nullity as a matter of substantive law, that  
administrative efficiency and justice are furthered by obviating  
any docket at the threshold rather than opening a futile docket."   
146 U.S.App.D.C. at 299, 450 F.2d at 1346.  
NORML v. Ingersoll, 497 F.2d at 659 n.10.  My petition was not  
such a patent nullity, as matter of law, to justify either  
refusal to accept the petition for filing, or denial of the  
petition on its merits.  I was denied the opportunity to present  
additional evidence to support my petition, and I am objecting to  
this streamlined approach.  
  	Based on the foregoing, I respectfully request this Court to  
rule that: (1) as a matter of law, delta-9-THC itself is in  
Schedule II of the CSA; (2) as a matter of law, marijuana is in  
Schedule II of the CSA; and (3) such other or further relief be  
granted as this Court may deem necessary under the circumstances.  
						Respectfully submitted,  
						Carl Eric Olsen, pro se  
						Post Office Box 4091  
						Des Moines, Iowa 50333  
August 4, 1993