[Federal Register Volume 63, Number 242 (Thursday, December 17, 1998)]
[Notices]
[Pages 69674-69675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33357]
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DEPARTMENT OF JUSTICE
Drug Enforcement Administration
[Docket No 98-26]
Church of the Living Tree; Denial of Application
On April 7, 1998, the Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement Administration (DEA) issued an
Order to Show Cause to Church of the Living Tree (Respondent) of
Leggett, California, notifying it of an opportunity to show cause as to
why DEA should not deny its application for registration as a
manufacturer (non-human consumption) of marijuana, under 21 U.S.C.
823(a), for reason that it is not authorized by the State of California
to manufacture marijuana.
By letter dated April 14, 1998, Respondent filed a request for a
hearing on the issues raised by the Order to Show Cause and the matter
was docketed before Administrative Law Judge Mary Ellen Bittner. In its
request for a hearing, Respondent indicated that it intends to rent
space to medical marijuana patients to cultivate marijuana for their
own use and that ``[a]fter the patients have harvested their plants and
removed the medical portions, the remaining stalk material will be a
legal commodity which we will use for making paper.''
On April 24, 1998, Judge Bittner issued an Order for Prehearing
Statements. In lieu of filing a prehearing statement, the Government
filed a Motion for Summary Disposition on May 21, 1998. On June 18,
1998, Respondent filed its response to the Government's motion. On July
31, 1998, Judge Bittner issued her Opinion and Recommended Decision,
granting the Government's Motion for Summary Disposition and
recommending that Respondent's application for registration as a
manufacturer of marijuana for non-human consumption be denied. Neither
party filed exceptions to Judge Bittner's Opinion and Recommended
Decision and on August 31, 1998, Judge Bittner transmitted the record
of these proceedings to the then-Acting Deputy Administrator. The
Deputy Administrator has considered the record in its entirety, and
pursuant to 21 CFR 1316.67, hereby issues his final order based upon
findings of fact and conclusions of law as hereinafter set forth.
The Government included with its Motion for Summary Disposition a
copy of Respondent's application dated January 21, 1997, for
registration as a manufacturer of marijuana for non-human consumption
and its attachments which indicated that Respondent intended to
cultivate hemp for use in making paper. Also accompanying the motion
was a letter from Respondent dated January 20, 1998, to among others, a
DEA investigator in San Francisco, California. This letter outlined
Respondent's proposal to rent space to medical marijuana patients who
would grow marijuana on Respondent's property for their own use
pursuant to California's Compassionate Use Act and then Respondent
would use the mature stalks of the plant to manufacture paper.
In its motion, the Government argued that California does not
permit the cultivation of marijuana for non-human consumption, citing
California Health and Safety Code Sec. 11358 which provides that,
``every person who plants, cultivates, harvests, dries or processes
marijuana shall be punished by imprisonment in state prison.'' The
Government contends that there is no provision under California law,
including the Compassionate Use Act (California Health and Safety Code
Sec. 11362.5, which allows for the cultivation of marijuana for medical
use in limited circumstances), which permits the cultivation of
marijuana for non-human consumption. The Government pointed out that
while 21 U.S.C. 823(a) does not include an express requirement of state
authorization, DEA has previously held that it ``would be pointless to
grant a Federal registration when Respondent lacked state authority.''
Michael Schumacher, 60 FR 13,171 (1995). Also, 21 CFR 1307.02 provides
that DEA will not authorize ``any person to do any act which such
person is not authorized or permitted to do under * * * the law of the
State in which he/she desires to do such act. * * *''
The Government further argued that California's Compassionate Use
Act does not provide Respondent with the required state authorization.
Respondent proposes to rent space to medical marijuana patients who
will grow marijuana on Respondent's property for their own medical use
and Respondent would then use the mature stalks of the plants, which
pursuant to 21 U.S.C. 802(16) are not considered a controlled
substance. But the Government argued that ``if Respondent's
registration is granted, as requested in Respondent's application, the
registered location would only be authorized to manufacture marijuana
for non-human consumption and any activity related to the manufacture
of marijuana for human consumption would be outside of Respondent's
authorization from DEA and in violation of Federal law.''
The Government argued that since Respondent is not authorized by
California to grow marijuana for non-human consumption and because
state authorization is a necessary prerequisite to DEA registration,
there is no question of fact presented which would necessitate an
evidentiary hearing. Therefore, the Government requested that
Respondent's application be denied without a hearing.
In its response to the Government's motion, Respondent noted that
the basis for the Government's motion that ``this matter be summarily
dismissed rests upon the assumption that we are applying for
Registration to cultivate cannabis for non-human consumption, and that
is not allowed under California law.'' Respondent argued that:
[a]fter five years of applying for Registration to cultivate
industrial fiber hemp for research * * * it is clear that we are now
taking a whole new tack. Following the only legal course available
to us to cultivate cannabis within the State of California, we are
now applying for registration as a Bulk Manufacturer of Medical
Marijuana for California patients who qualify under the
Compassionate Use Act of 1996. This purpose is decidedly ``for Human
Consumption'', and fully complies with California law. This
intention is quite clearly and unequivocally expressed in our letter
of January 20, 1998.
In her Opinion and Recommended Decision, Judge Bittner found that
pursuant to 21 CFR 1301.16(a), ``[a]n application may be amended or
withdrawn with permission of the Administrator at any time where good
cause is shown by the applicant or where the amendment or withdrawal is
in the public interest.'' (emphasis added). Judge Bittner found that
since there is no evidence that Respondent received permission to amend
its application, the application before her is for registration as a
manufacturer of marijuana for non-human consumption.
Judge Bittner agreed with the Government that state authorization
to manufacture marijuana is required
[[Page 69675]]
before DEA can issue Respondent a registration, and since California
law does not allow the cultivation of marijuana for non-human
consumption, DEA cannot grant Respondent's application. Therefore,
Judge Bittner found that summary disposition is proper. It is well-
suited that when no question of fact is involved, or when the material
facts are agreed upon, a plenary, adversary administrative proceeding
involving evidence and cross-examination of witnesses is not required.
Philip E. Kirk, M.D., 48 FR 32,887 (1983), aff'd sub nom. Kirk v.
Mullen, 749 F.2d 297 (6th Cir. 1984); see also NLRB v. International
Association of Bridge, Structural and Ornamental Ironworkers, AFL-CIO,
549 F.2d 634 (9th Cir. 1977); United States v. Consolidated Mines &
Smelting Co., 44 F.2d 432 (9th Cir. 1971). As a result, Judge Bittner
granted the Government's Motion for Summary Disposition and recommended
that Respondent's application for registration to manufacture marijuana
for non-human consumption be denied.
The Deputy Administrator agrees with Judge Bittner that if
Respondent's application is for registration to manufacture marijuana
for non-human consumption, then it would have to be denied because
California does not allow the cultivation of marijuana for non-human
consumption. However, the Deputy Administrator disagrees with Judge
Bittner that the application that is the subject of these proceedings
is seeking registration as a manufacturer of marijuana for non-human
consumption. Judge Bittner found that pursuant to 21 CFR 1301.16(a),
Respondent needed permission to amend its application if it is seeking
registration for other than non-human consumption. Judge Bittner
concluded that since there was no evidence that Respondent received
permission to amend its application, the pending application is for
registration to manufacture marijuana for non-human consumption.
The Deputy Administrator finds that 21 CFR 1301.16(a) also provides
that ``[a]n application may be amended or withdrawn without permission
of the Administrator at any time before the date on which the applicant
receives an order to show cause. * * *'' Respondent's January 20, 1998
letter to the DEA investigator in San Francisco advised DEA that
Respondent was seeking registration to allow it to rent space to
medical marijuana patients to cultivate marijuana for their own use and
then Respondent would use the mature stalks to make paper. The Order to
Show Cause proposing to deny Respondent's application was not issued
until April 7, 1998. While Respondent's January 20, 1998 letter did not
specifically state that it was amending its application, that was
clearly Respondent's intent. Therefore, since Respondent sent this
letter to DEA prior to the April 7, 1998 issuance of the Order to Show
Cause, Respondent did not need permission to amend its application for
registration.
Nonetheless, the Deputy Administrator finds that Respondent's
application for registration must be denied. Respondent currently
proposes to rent space on its property to medical marijuana patients
who would be the ones manufacturing the marijuana. The medical
marijuana patients would agree that after harvesting the marijuana,
they would leave the mature stalk, which is not considered a controlled
substance, for Respondent to process into paper. However, 21 U.S.C.
822(a) states that ``[e]very person who manufactures or distributes any
controlled substance * * *, or who proposes to engage in the
manufacture or distribution of any controlled substance * * *, shall
obtain annually a registration. * * *'' In addition, 21 U.S.C. 823(a)
provides for the registration of applicants to manufacture Schedule I
and II controlled substances. Under its current proposal, it is clear
that Respondent will be renting space on its property to others, but it
will not be the one manufacturing marijuana. Therefore, the Deputy
Administrator concludes that since Respondent will not be manufacturing
marijuana nor is it proposing to manufacture marijuana, its application
to be a manufacturer of marijuana must be denied.
Accordingly, the Deputy Administrator of the Drug Enforcement
Administration, pursuant to the authority vested in him by 21 U.S.C.
823 and 824 and 28 CFR 0.100(b) and 0.104, hereby orders that the
application dated January 21, 1997, submitted by the Church of the
Living Tree, for registration as a manufacturer of marijuana, be, and
it hereby is, denied. This order is effective January 16, 1999.
Dated: December 8, 1998.
Donnie R. Marshall,
Deputy Administrator.
[FR Doc. 98-33357 Filed 12-16-98; 8:45 am]
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