21 C.F.R. § 1308.21

Application for exclusion of a nonnarcotic substance

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(a) Any person seeking to have any nonnarcotic drug that may, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301), be lawfully sold over the counter without a prescription, excluded from any schedule, pursuant to section 201(g)(1) of the Act (21 U.S.C. 811(g)(1)), may apply to the Drug and Chemical Evaluation Section, Diversion Control Division, Drug Enforcement Administration. See the Table of DEA Mailing Addresses in § 1321.01 of this chapter for the current mailing address.

(b) An application for an exclusion under this section shall contain the following information:

(1) The name and address of the applicant;

(2) The name of the substance for which exclusion is sought; and

(3) The complete quantitative composition of the substance.

(c) Within a reasonable period of time after the receipt of an application for an exclusion under this section, the Administrator shall notify the applicant of his acceptance or nonacceptance of his application, and if not accepted, the reason therefore. The Administrator need not accept an application for filing if any of the requirements prescribed in paragraph (b) of this section is lacking or is not set forth as to be readily understood. If the applicant desires, he may amend the application to meet the requirements of paragraph (b) of this section. If the application is accepted for filing, the Administrator shall issue and publish in the Federal Register his order on the application, which shall include a reference to the legal authority under which the order is issued and the findings of fact and conclusions of law upon which the order is based. This order shall specify the date on which it shall take effect. The Administrator shall permit any interested person to file written comments on or objections to the order within 60 days of the date of publication of his order in the Federal Register. If any such comments or objections raise significant issues regarding any finding of fact or conclusion of law upon which the order is based, the Administrator shall immediately suspend the effectiveness of the order until he may reconsider the application in light of the comments and objections filed. Thereafter, the Administrator shall reinstate, revoke, or amend his original order as he determines appropriate.

(d) The Administrator may at any time revoke any exclusion granted pursuant to section 201(g) of the Act (21 U.S.C. 811(g)) by following the procedures set forth in paragraph (c) of this section for handling an application for an exclusion which has been accepted for filing.

[38 FR 8254, Mar. 30, 1973, as amended at 70 FR 74657, Dec. 16, 2005; 75 FR 10678, Mar. 9, 2010; 81 FR 97021, Dec. 30, 2016]

Notes of Decisions

Cited in 3 cases, 1977–1991 · leading case: United States v. Gerald Caperell, 938 F.2d 975 (9th Cir. 1991).

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United States v. Gerald Caperell, 938 F.2d 975 (9th Cir. 1991). · cites it 2× “We also reject Caperell’s argument that his sixth amendment right to be informed of the nature and the cause of the accusation against him was violated because the indictment did not allege that he was required to comply with the application procedures provided in 21 C.”

State v. Green, 793 P.2d 912 (Utah Ct. App. 1990). · cites it 2× “[4] 21 C.F.R. § 1308.21 (1981); 44 Fed.Reg. 71822 (1979).”

The Nat'l Org. for the Reform of Marijuana Laws (Norml) v. Drug Enf't Admin., U. S. Dep't of Just., 559 F.2d 735 (D.C. Cir. 1977). “21 C.F.R. § 1308.21 (a) (1976). We think it not inappropriate for NORML to apply first for rescheduling under the CSA.”

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