A Justice Department Administrative Law Judge (ALJ) ruled yesterday that because the Drug Enforcement Administration (DEA) erred in its presentation of the witness list for its December 2 hearing on rescheduling marijuana from a Schedule I to a Schedule III controlled substance, witness statements and testimony will likely not be heard until January or February 2025 at the earliest. If the ruling stands, it would effectively punt the final decision on marijuana rescheduling to the next administration.
In its August 29, 2024 Federal Register notice, DEA determined that an in-person hearing on its proposed rescheduling rule (NPRM) was warranted. The August 29 notice further directed that any “interested person” who wished to testify at the hearing submit a filing to the DEA stating their interest in the proceeding, the objections or issues they intended to raise, and their position on the NPRM. DEA Administrator Anne Millgram submitted a list of 25 witnesses for the hearing to the ALJ on Monday, which included several pro- and anti-marijuana advocacy groups, law enforcement associations, the National Drug and Alcohol Screening Association, National Transportation Safety Board, and Nebraska Attorney General Mike Hilgers. However, Millgram failed to include information as to whether the participants support or oppose DEA’s proposed rule on rescheduling or how the participants satisfy the interested person definition set forth in the August 29 notice. In yesterday’s ruling, the ALJ ordered that while DEA may proceed with a preliminary hearing on December 2 as previously planned, “[n]o testimony or other evidence will be received at this preliminary hearing” and the designated witnesses are to “come prepared with January-February 2025 availability dates.” The ALJ further ordered that dates for the hearing on the merits of DEA’s NPRM “will be fixed in a prehearing ruling, which will be issued after the preliminary hearing where the parties have been afforded the opportunity to supply logistical and availability input.”