On May 21, 2024, the United States Department of Justice through the DEA issued a notice of proposed rulemaking (NPRM) proposing to transfer "marijuana" from Schedule I of the Controlled Substances Act to Schedule III. Schedules of Controlled Substances: Rescheduling of Marijuana, 89 Fed. Reg. 44597, 44597 (2024).
In an order dated August 29, 2024 (General Notice of Hearing or GNoH), the DEA Administrator determined that in-person hearing proceedings are appropriate and fixed a December 2, 2024 commencement date at the DEA Hearing Facility.
On October 29, 2024, the DEA Administrator released a list of twenty-five “participants” (Designated Participants or DPs). However, the Hon. John J. Mulrooney, II, Chief Administrative Law Judge, issued a Preliminary Order on October 31, stating that the DP list failed to specify whether the “participants” support or oppose the NPRM or how the “participants” satisfy the “interested person” definition set forth in the regulations. 21 C.F.R. §§ 1300.01(b), 1308.44(a)-(b).
Accordingly, the Judge held that the December 2 hearing would move forward but solely for re-calendaring the substantive hearing to January-February and that no testimony or other evidence will be received at that time. The DPs are to be ready to advise the Court on the availability of counsel and witnesses.
The Judge also required all DPs to file with the DEA Office of Administrative Law Judges by November 21, 2024, "a brief notice which will include the following information/document(s): (1) the name, address, phone number, and general nature/principal mission of the DP’s practice, profession, or business; (2) a notice of appearance for the counsel(s) of record that will be representing the DP at the hearing; (3) the date that a request for hearing and/or participation was properly filed by the DP with the DEA; (4) why/how the DP would be sufficiently 'adversely affected or aggrieved' by the proposed scheduling action to qualify as an 'interested person' under the regulations; (5) whether the DP supports or opposes the rescheduling action the DEA seeks in its NPRM; and (6) any known conflicts of interest with DEA or DOJ leadership or personnel that may require disclosure."
INCBA will continue to keep members updated on these historic actions.
