United States v. Nasir

2013 U.S. Dist. LEXIS 138622 (E.D. Ky. Sept. 25, 2013)


The Congressional Review Act (CRA), 'requires congressional review of agency regulations by directing agencies to submit the rule before it takes effect to the Comptroller General and each house of Congress.' The rules at issue here only require notice. The Controlled Substances Act (CSA) classifies into five 'schedules' those drugs and other substances that have a 'potential for abuse.' Schedule I substances are subject to the most severe penalties because they are believed to present the most serious threat to public safety. The DEA controls a substance with a potential for abuse by making 'the findings prescribed by [21 U.S.C. § 812(b)] for the schedule in which [the] drug is to be placed[.]' 21 U.S.C. § 811(a)(1). The DEA must gather 'the necessary data' and request a scientific and medical evaluation and recommendation as to whether the drug should be controlled from the Secretary of the U.S. Department of Health and Human Services. 21 U.S.C. § 811(b). The Secretary's recommendations are binding on the DEA with respect to scientific and medical matters. The DEA must also consider the eight factors listed in § 811(c), and comply with the notice and hearing provisions of the Administrative Procedure Act (APA). The Dangerous Drug Diversion Control Act of 1984, amended the CSA to add the temporary scheduling provision found at 21 U.S.C. § 811(h) in order to make the process more responsive to the emerging 'designer' drug market by providing a temporary scheduling provision. To temporarily schedule a drug the DEA must find that it is necessary 'to avoid an imminent hazard to the public safety.' To temporarily schedule a drug the DEA must find that, it is necessary 'to avoid an imminent hazard to the public safety.' 21 U.S.C. § 811(h)(1). Instead of the eight factors required for permanent scheduling §811(h)(3) only requires the DEA to consider three factors before reaching an 'imminent hazard' determination, specifically: (1) the drug's 'history and current pattern of abuse;' (2) '[t]he scope, duration, and significance of abuse;' and (3) '[w]hat, if any, risk there is to the public health.' The DEA also considers 'actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.' Instead of APA notice-and-hearing provisions, the Attorney General need provide only a 30-day notice of the proposed scheduling in the Federal Register.' The DEA scheduled JWH-018 under this emergency scheduling authority. On March 1, 2011, the DEA published a Final Order temporarily placing five synthetic cannabinoids in Schedule I on an emergency basis for a period of one year. The DEA invoked an exception to the procedural requirements of the Congressional Review Act (CRA) in order to avoid any delay. See 5 U.S.C. § 808(2). On February 29, 2012, DEA published an order extending the temporary scheduling of JWH-018 to August 29, 2012, or until the final rulemaking proceedings were complete. President Barack Obama signed the Synthetic Drug Abuse Prevention Act of 2012 which bans several specific synthetic cannabinoids (including JWH-018) and an entire class of 'cannabimimetic agents' as Schedule I substances, thereby obviating the need for the DEA to publish a Final Rule. The indictment covers activity involving JWH- 018 analogs during the time span of fall, 2011 to October 2012 during the time period that JWH-018 was included on Schedule I through the temporary scheduling authority described above.