norml23 - Page 58

 I-3. As indicated above, HEW only considered the criteria for Schedules
 I and [I, concluding that marijuana could appropriately be placed in
 either Schedule, but on balance Schedule I was preferable. 4.4 Fed. Reg.
 at 35127 Cols. 1-2. HEW therefore recommended that marijuana materials
 be retained in Schedule [, and DEA adopted this recommendation in the
 final order. 4.4 Fed. Reg. at :36124 Co[. 2. The problem, however, is
 that HEW improperly limited its reschedu[ing consideration to Schedules
 1 and 11. The reasons given by HEW for recommending marUuana's
 retention in Schedule I misinterpret and misapply the criteria for
 scheduling in Section 202(b) of the CSA. HEW stated, 44 Fed. Reg.- at
 36127 Cols. 1-2:
 On the basis of the scientific and medk:ai
 information available to us with respect to the
 factors listed in section 20t (c), and in light of
 the scheduling criteria set forth in section
 202(b), we have concluded that the substances we
 have reviewed could be placed either in Schedule I
 or Schedule IL We recommend that the substances be
 continued in Schedule [, however, for three
 reasons.
 HEW's first reason for recommending Schedule I over Schedule II
 involves the "medical use" criteria in Section 202(b). For a Schedule i
 substance, the required finding is that: "The drug or other substance
 has no currently accepted medical use in treatment in the United
 States." Section 202(b)(1)(B). For a Schedule I[ substance, the
 required finding is that: "The drug or other substance has a current
 accepted medical use in treatment in the United '.States or a currently
 accepted medical use with severe restrictions." Section 202(b)(2)(B).
 Although HEW did not refer to them, the comparable findings for
 placement in Schedules II[-V are identical: "The drug or other
 substances has a currently accepted medical use in treatment in the
 United States. n Section 202(b)(3)(8), (4)(B), (5)([3).
 HEW made the following findings, 44 Fed. Reg. at 36127 Col 2:
 The substances in question dearly fit the
 second criterion for Schedule [: they have no
 currently accepted medical use in treatment in the
 United States. Conceivable, the current
 investigational use of some of the substances could