UNITED STATES DEPARTMENT OF JUSTICE
Drug Enforcement Administration
In the Matter of
Schedules of Controlled Substances: DEA Docket No. 1362
Proposed Rescheduling of Marijuana Hearing Docket No. 24-44
PRELIMINARY ORDER
I am the Administrative Law Judge (ALJ) designated by the Administrator of the Drug
Enforcement Administration (DEA or Agency) to hear this case.
On May 21, 2024, the United States Department of Justice (DOJ) through the DEA
issued a notice of proposed rulemaking (NPRM) proposing to transfer marijuana from Schedule I
of the Controlled Substances Act (CSA) 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. Schedules of Controlled Substances: Rescheduling of Marijuana, 89 Fed.
Reg. 70148, 70148-49 (2024).
The NPRM directed, inter alia, that “[a]ll requests for a hearing and waivers, together
with a written statement of position on the matters of fact and law asserted in the hearing, must
be filed with DEA.” 89 Fed. Reg. at 44598. The General Notice of Hearing acknowledged the
regulatory requirement that under the DEA regulations, an “interested person” is “any person
adversely affected or aggrieved by any rule or proposed rule issuable under 21 U.S.C. § 811.”
89 Fed. Reg. at 70149. The GNoH instructed any person seeking to participate in the
rescheduling hearing to submit a filing:
(1) Stat[ing] with particularity with interest of the person in the proceeding;
(2) Stat[ing] with particularity the objections or issues concerning which the
person desires to be heard; and
(3) Stat[ing] briefly the position of the person regarding the objections or issues.
Id.
On October 29, 2024, two letters from the DEA Administrator were hand-carried to the
DEA Office of Administrative Law Judges. Attachments 1, 2. One letter (the Participant Letter
or PL)1 designated a list of twenty-five “participants” (Designated Participants or DPs), and the
other, by its terms, directed the utilization of livestreaming throughout the hearing proceedings
(the Livestream Letter or LSL).2 The PL and LSL have been attached to this order as the record
has no indication as to whether either or both documents were served on the Designated
Participants or any of those who sought to be DPs.
Although the Participant Letter designated a list of enumerated entities and individuals as
DPs, there is no indication in the four corners of the document as to 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). Indeed, the PL contains
only a list of persons and organizations accompanied by one or more email addresses, without
the benefit of notices of appearance, addresses, or even phone numbers. While the NPRM
directed that the Office of Administrative Law Judges be served with a courtesy copy of any
hearing request filing(s),3 the GNoH contained no such requirement. Thus, this tribunal is not in
possession of documentation related to whether/how the Designated Participants would be
“adversely affected or aggrieved” by the proposed regulation change in the NPRM,4 or any other
particularly helpful information. The regulatory language regarding the requirement that only
“interested person[s]” may request (and by implication be designated with) hearing participant
status is not permissive in nature. 21 C.F.R. § 1308.44. Equally directive is the language in the
regulations that requires that an “interested person” demonstrate that he/she/it would be
“adversely affected or aggrieved” by the proposed scheduling action. 21 C.F.R. § 1300.01(b).
In granting the Attorney General (and by delegation the DEA Administrator5) authority to
schedule or reschedule any substance, Congress required that such an action “shall be made on
the record after [an] opportunity for a hearing pursuant to the rulemaking procedures prescribed
by the [Administrative Procedure Act (APA)].” 21 U.S.C. § 811(a). Under the APA, “the
1
Attachment 1.
2
Attachment 2.
3
89 Fed. Reg. at 44598.
4
Indeed, the Agency has furnished this tribunal with no correspondence from itself or the Designated Participants
that was generated in response to the GNoH.
5
28 C.F.R. § 0.100.
2
proponent of a[n] . . . order has the burden of proof.”6 5 U.S.C. § 556(d); see also 21 C.F.R. §
1316.56 (“[a]t any hearing, the proponent for the issuance, amendment, or repeal of any rule
shall have the burden of proof.”). Thus, just as the Agency carries the burden of proof to prevail
on its proposed rulemaking, those among the Designated Participants seeking active participation
in this hearing must establish that they have made timely application and are eligible as an
“interested person.” To the extent that any of this has been done or adjudicated, it is not
transparent in the present record. The record currently contains no hearing requests, notices of
appearance, or correspondence between the Agency and the Designated Participants or those
who sought that status. As the record currently stands, although the Agency has fixed a
December 2, 2024 hearing date, there is no way to discern from the present record which DPs
support or oppose the NPRM. To effectively preside over this hearing, additional information
must be furnished to the tribunal forthwith.
Accordingly, it is herein ORDERED that any Designated Participant listed in the
Participant Letter who seeks active participation in these hearing proceedings shall, no later than
2:00 P.M. Eastern Time (ET) on November 12, 2024, file with this tribunal 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;7 (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.8
It is further ORDERED that the Government, shall, no later than 2:00 P.M. ET on
November 12, 2024, file with this tribunal a notice of appearance for its counsel(s) of record
6
The APA definition of “order” includes “the whole or part of a final disposition . . . .” 5 U.S.C. § 551(6)
(emphasis supplied).
7
21 C.F.R. §§ 1300.01(b), 1308.44(a)-(b).
8
In this regard, the PL identifies the International Association of Chiefs of Police (IACP) as a Designated
Participant. My spouse is currently an administrative employee of that organization who has no management
responsibilities. She has had no role in any IACP discussions regarding the issues to be adjudicated in these
proceedings. That my spouse is an IACP employee will not affect my consideration of any evidence presented by or
against IACP, nor will it influence in any way the ultimate recommendation that I make in this case to the DEA
Administrator.
3
who will be appearing in these proceedings, as well as any known conflicts of interest that may
require disclosure.
It is further ORDERED, that pursuant to the Administrator’s General Notice of Hearing,
preliminary hearing proceedings will commence at 9:30 ET on December 2, 2024 at the DEA
Hearing Facility, North Courtroom, 700 Army Navy Drive, Arlington, Virginia, 22202. No
testimony or other evidence will be received at this preliminary hearing, but those Designated
Participants who will participate will come prepared with January-February 2025 availability
dates regarding their counsel and any witness9 such DP will seek to present at the hearing on the
merits. Dates for the hearing on the merits and other deadlines will be fixed in a prehearing
ruling,10 which will be issued after the preliminary hearing where the parties have been afforded
the opportunity to supply logistical and availability input.11
It is further ORDERED that all proceedings will be governed by the provisions of 21
C.F.R. §§ 1316.41-1316.68.12 Your attention is specifically directed to 21 C.F.R. § 1316.45,
which provides, inter alia, that “[d]ocuments shall be dated and deemed filed upon receipt by the
Hearing Clerk.” Documents (other than proposed exhibits13) will be filed electronically or by
hardcopy. Only one method of document filing may be utilized.
Electronic Filing: The preferred method of filing correspondence in these proceedings is
as a PDF attachment via email to the DEA Judicial Mailbox ([email protected]). The
forwarding email on all electronically filed correspondence must indicate that it was
simultaneously served on the Government and all DPs via email. The DPs must ensure that all
9
Given the potential number of anticipated participants, each participant, other than the Government (the burdened
party in these proceedings), can generally expect to present the testimony of no more than one witness, with the
opportunity to file written briefs at the conclusion of the hearing.
10
21 C.F.R. § 1316.55.
11
The courtrooms at the DEA Hearing Facility are spacious and modern, but not unlimited. Accordingly, in view of
the potentially high number of hearing participants, it is anticipated that admission to the preliminary hearing will be
limited to representatives (no more than two, preferably one) and credentialled media as designated by the Agency.
See Attachment 2 at 1. The Administrator’s directive in the LSL regarding livestreaming will afford those
physically outside the courtroom an opportunity to observe the proceedings. Id. Naturally, witnesses will be
admitted to the courtroom to testify at the merits hearings at times where their testimony is scheduled. No cell
phone use by anyone will be permitted in the courtroom at any hearing conducted in this matter. The highest level
of decorum will be maintained at all times during all hearings, and court attire is required for anyone participating in
any capacity. All representative appearances will be live (not virtual) throughout, and all representatives must plan
to arrive sufficiently early to allow security processing through the DEA Visitor Center, which is collocated with the
DEA Hearing Facility at 700 Army Navy Drive, Arlington, Virginia, 22202.
12
Additional helpful information regarding DEA administrative proceedings may be found at the OALJ website,
https://www.dea.gov/administrative-law-judges.
13
The prehearing ruling issued after the preliminary hearing will supply direction on the manner in which exhibits
may be filed with the tribunal.
4
documents filed with the DEA Judicial Mailbox are simultaneously served on the Government
Mailbox at ([email protected]) and all other DPs. Any request(s) to modify
email addresses of a party or counsel must be made on notice to this tribunal and all other
parties. The email receipt date reflected by the DEA Judicial Mailbox server shall conclusively
control all issues related to the date of service of all filed correspondence, provided however, that
correspondence received after 5:00 p.m., local Washington, D.C. time, will be deemed to have
been received on the following business day.
Hardcopy: Alternatively, correspondence may be filed in hardcopy form. Hardcopy
filings must be served in triplicate and addressed to my attention at: The DEA Office of
Administrative Law Judges, 8701 Morrissette Drive, Springfield, Virginia 22152. Because
the DEA Hearing Facility is not physically collocated with the DEA mailing address, hardcopy
filings must be posted sufficiently in advance of the due date to assure timely receipt by this
office.
It is further ORDERED that any request for a continuance or for an extension of time to
file a document must be made by written motion sufficiently in advance of scheduled deadline(s)
to be considered and ruled upon.
Digitally signed by
Dated: October 31, 2024
JOHN JOHN MULROONEY
MULROONEY Date: 2024.10.31
15:24:33 -04'00'
__________________________
JOHN J. MULROONEY, II
Chief Administrative Law Judge
5
CERTIFICATE OF SERVICE
This is to certify that the undersigned, on October 31, 2024, caused a copy of the
foregoing to be delivered to the following recipients: (1) James Schwartz, Esq., Counsel for the
Government, via email at [email protected]; (2) the DEA Government Mailbox, via
email at [email protected]; (3) Shane Pennington for Village Farms
International, via email at [email protected]; (4) Aaron Smith for National
Cannabis Industry Association, via email at [email protected] and
[email protected]; (5) Chad Kollas for American Academy of Hospice and
Palliative Medicine, via email at [email protected]; (6) John Jones for Cannabis Bioscience
International Holdings, via email at [email protected]; (7) Robert Head for Hemp for Victory, via
email at [email protected]; (8) Erin Gorman Kirk for the State of Connecticut, via
email at [email protected]; (9) Ellen Brown for Massachusetts Cannabis Advisory Board, via
email at [email protected]; (10) Shanetha Lewis for Veterans Initiative 22, via email
at [email protected]; (11) Jason Castro for The Doc App. Dba, My Florida Green,
via email at [email protected]; (12) Katy Green for The Commonwealth Project,
via email at [email protected]; (13) Ari Kirshenbaum for Saint Michael’s College, via
email at [email protected]; (14) Jo McGuire for National Drug and
Alcohol Screening Association, via email at [email protected]; (15) Patrick Philbin for
Smart Approaches to Marijuana, via email at [email protected]; (16) Roneet Lev for
International Academy on the Science and Impact of Cannabis, via email at
[email protected]; (17) David Evans for Cannabis Industry Victims Educating Litigators,
via email at [email protected]; (18) Kenneth Finn, via email at [email protected]; (19)
Jennifer Homendy for National Transportation Safety Board, via email at
[email protected] and [email protected]; (20) Phillip Drum, via email at
[email protected]; (21) Attorney General Mike Hilgers for the State of Nebraska, via
email at [email protected]; (22) International Association of Chiefs of Police, via
email at [email protected]; (23) Drug Enforcement Association of Federal Narcotics Agents,
via email at [email protected]; (24) Natalie P. Hartenbaum for American College
of Occupational and Environmental Medicine, via email at [email protected] and
[email protected]; (25) Sue Thau for Community Anti-Drug Coalitions of America, via email at
[email protected]; (26) Tennessee Bureau of Investigation, via email at [email protected];
and (27) National Sheriff’s Association, via email at [email protected] and
[email protected].
QUINN Digitally signed
by QUINN FOX
FOX Date: 2024.10.31
15:20:05 -04'00'
_____________________________
Quinn Fox
Staff Assistant to the Chief Judge
Office of Administrative Law Judges
6
Attachment 1
Attachment 2
US. Department of Justice
0mg Enforcement Administration
Of]ice of the Administrator Springfreld, VA 22152
October 28, 2024
Hon. John J. Mulrooney, II
Chief Administrative Law Judge
Office of Administrative Law Judges
8701 Morrissette Drive
Springfield, VA 22152
Dear Chief Judge Mulrooney,
On May 21, 2024, the Department of Justice published a notice of proposed rulemaking
(NPRM) to transfer marijuana from schedule I of the Controlled Substances Act (CSA) to
schedule III of the CSA. See Schedules ofControlled Substances: Rescheduling o(Mariiuana,
89 FR 44597 (May 21, 2024). Upon review of the requests for hearing on the NPRM, I
authorized a hearing to be conducted in accordance with the Administrative Procedure Act
(APA), the CSA, and the Drug Enforcement Administration (DEA) regulations. See Schedules
o(Controlled Substances: Rescheduling o(Mariiuana, 89 FR 70148 (Aug. 29, 2024).
On October 28, 2024, I designated an Administrative Law Judge (ALJ} to preside over
the hearing. Given the public interest in this matter and DEA's commitment to conducting a
transparent proceeding, I am exercising my inherent authority under 21 CFR 1307 .03 to waive
21 CFR 1316.52 to the extent necessary to direct that the hearing be livestreamed. I am also
exercising my authority to allow the in-person attendance of a limited number of credentialed
media, as determined by DEA's Office of Public Affairs.
Anne Milgram
Administrator
