Hemp Industries Ass'n v. Drug Enforcement Administration

dissenting:

I am not persuaded that this case presents a live controversy any longer. After notice and comment, the DEA has promulgated a regulation construing Schedule I of the Controlled Substances Act, 21 U.S.C. § 812 (c), Schedule I(c)(17), as including both natural and synthetic THC. See 68 Fed.Reg. 14,114 (March 21, 2003). Plaintiffs concede that, so long as this regulation remains in force, the agency’s interpretive rule makes no difference. The new regulation has thus “eradicated the effects” of the interpretive rule and mooted the controversy surrounding it. County of Los Angeles v. Davis, 440 U.S. 625, 631 , 99 S.Ct. 1379 , 59 L.Ed.2d 642 (1979).

My colleagues reach the contrary conclusion because “[e]ven if the new rule were found to be improper in the new appeal, plaintiffs would still face the possibility that the DEA might attempt to enforce the putative interpretive rule at issue here.” Majority op. at 1085, n. 3. This chain of reasoning relies on far too many subjunctives, “possibilities” and “mights” for a live controversy. We must review a legislative regulation with great deference to the agency’s institutional competence and expertise. See Chevron U.S.A. Inc.…

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge KOZINSKI.

OPINION

INTRODUCTION

Petitioners challenge the validity of the rule issued by the respondent that bans the sale of consumable products containing hemp oil, cake, or seed. They contend that the rule is a legislative rule that is subject to the notice and comment procedure required by the Administrative Procedures Act (APA). Respondent contends that the rule is an interpretive rule, 1 and need not undergo such procedures. We hold that because the rule would force plaintiffs either to risk sanction or to fore-go the theretofore legal activity of selling products containing trace amounts of naturally occurring THC, it is a legislative rule, and should have been subjected to notice and comment procedures.

I. JURISDICTION

As a threshold matter, we must ask whether we have jurisdiction to hear this case under the administrative appeal provision of the Controlled Substances Act, 21 U.S.C. § 877 (“CSA”). This section provides that:

The rule under challenge was published on October 9, 2001. 66 Fed.Reg. 51530. Petitioners filed a timely petition for review *1085 on October 19. The question of whether we have jurisdiction…