ORDER REGARDING STANDING, SCOPE, AND PREHEARING PROCEDURES
At page 11
APA Standing Consideration Three: Whether the Request Exceeds the Scope of the NPRM. Consideration Three presents an additional limitation. As discussed, supra, the Agency is authorized to act within the parameters set forth by Congress. In Olsen v. DEA, 776 F.2d 267, 267 (11th Cir. 1985), the court upheld a participation denial by members of the Ethiopian Zion Coptic Church (the Church) in pursuit the Church’s efforts to acquire a religious exemption for its members to use marijuana. The Church petitioned for rescheduling under 21 U.S.C. § 811, and the court held that an effort to seek a religious exemption fell outside the (scheduling) scope of § 811. Id. Thus, a requestor who seeks participation to acquire relief that is outside the scope of rescheduling (e.g., descheduling, decriminalization, etc.) can properly be denied on that basis alone.
What this means is that the exception found in 21 C.F.R. § 1307.31 for religious use of peyote is not the result of scheduling, 21 U.S.C. § 811. It is based on 21 U.S.C. § 822(d).
Authority: 21 U.S.C. 821, 822(d), 871(b), unless otherwise noted. Source: 36 FR 7801, Apr. 24, 1971, unless otherwise noted. Redesignated at 38 FR 26609, Sept. 24, 1973.