The Drug Enforcement Administration (DEA) did not argue against reopening the cannabis rescheduling hearing record to include a new report on its scheduling policies, but the agency opposed a motion to hold additional briefing that would further delay the process.
The DEA filed its response on Oct. 9 to the motion by three anti-rescheduling parties that participated in the 11-day hearing to debate the merits of a proposed rule to loosen federal restrictions on cannabis by reclassifying the plant from Schedule I to III under the Controlled Substances Act (CSA).
The hearing concluded July 15, with the participating parties filing their post-hearing briefs and DEA Chief Administrative Law Judge Derek C. Julius releasing more than 2,500 pages of transcripts in late August. Julius was expected to make his nonbinding recommendation on the appropriate schedule for cannabis with DEA Administrator Terry Cole as the final act to close out the hearing process.
But the anti-rescheduling three parties filed a motion with Julius in late September, requesting he hold off on the recommendation after the nonpartisan U.S. Government Accountability Office (GAO) released a report finding the DEA’s drug scheduling policies have “gaps.” They asked the judge to include the report in the hearing’s record and to allow briefing on it.
Julius granted the parties – DUID Victim Voices, Kenneth Finn, M.D., and the National Drug and Alcohol Association (NDASA) – a stay in the rescheduling proceedings on Sept. 29, ordering the DEA to respond to the motion. The DEA is the lone proponent of the proposed Schedule III rule in the hearing process, carrying the burden of proving that cannabis has currently accepted medical use (CAMU) in the U.S. and therefore can no longer be listed under Schedule I.
While the DEA deferred to the judge “as to whether the GAO report should be late admitted into evidence, the government asserts that any briefing on the GAO report – a document that has no bearing on the ultimate issue of whether marijuana should be transferred to Schedule III – is unnecessary,” according to the agency’s response, which Marijuana Moment first reported.
In other words, the DEA asked Julius to move forward with his recommendation and certification of the record, with or without the GAO report, and to avoid further delay via additional briefing.
The three anti-rescheduling parties argued in their motion that the GAO report contains evidence that they could not develop during the hearing that would have backed their position that cannabis should remain listed in Schedule I.
The report, titled “Drug Scheduling: While DEA Decisions Have Aligned with Recent HHS Recommendations, Both Need Comprehensive Policies,” found that:
“DEA does not have policies that identify roles, responsibilities and procedures related to scheduling. [The U.S. Food and Drug Administration] does not have policies or procedures specifying how its staff are to conduct evaluations or develop recommendations. Developing such policies and procedures could help ensure operational consistency, especially if key personnel with longstanding subject matter expertise depart.”
The GAO report recommended that the DEA administrator should develop policies and procedures that identify DEA’s roles, responsibilities and procedures for evaluating and scheduling substances.
But the DEA argued in its Oct. 9 response that the report merely recommends that the DEA and FDA “fill gaps” in their written policies surrounding the process of rescheduling.
“This recommendation is immaterial to the actual scientific processes and analysis these agencies used,” the DEA’s legal counsel wrote. “More importantly, the GAO makes no critical finding as to the actual scientific processes and analyses used by FDA and DEA in scheduling controlled substances and makes no recommendations as to other scientific processes and analyses that FDA and DEA should use in determining what schedule to place a substance. Moreover, the GAO report does not ever opine on FDA’s ultimate conclusion that marijuana should be transferred to Schedule III.”
Throughout the rescheduling hearing, anti-rescheduling parties argued that the FDA’s 10-month scientific and medical evaluation conducted in 2023 was flawed, in part leaning on DEA pharmacologist Luli Akinfiresoye’s testimony that the Department of Justice’s May 2024 notice of proposed rulemaking “had gaps in the data.” Akinfiresoye said that the DEA never conducted an eight-factor analysis to determine the plant’s appropriate control status under the CSA that was independent of the FDA’s eight-factor analysis.
Following the FDA’s 2023 evaluation, the U.S. Department of Health and Human Services (HHS), which umbrellas the FDA, made its formal recommendation to the DOJ.
According to the DEA, the September 2026 GAO report sought answers to three scheduling processes:
- The circumstances under which DEA is required to “request and consider HHS scientific and medical evaluations and scheduling recommendations;”
- The extent to which DEA sought HHS evaluations and recommendations over the last six years; and
- Whether DEA and FDA have “policies and procedures related to evaluating and scheduling substances.”
The GAO report found that the DEA has sought and considered HHS scientific and medical evaluations on 95 substances, which is every time the DEA has been required to do so, and that at no time in the last six years has the DEA failed to request or consider HHS recommendations for these 95 substances, according to the DEA.
“As to the third question, GAO recommended that DEA and HHS create written policies to ‘fill gaps’ in their current written procedures because those gaps ‘may pose a risk to the consistency of DEA’s and FDA’s future operations in the event of staff turnover or any other disruption that could lead to a loss of institutional knowledge,’” the DEA’s legal counsel wrote. “Importantly, GAO made no critical findings regarding the government’s methodology for scheduling reviews, including its procedure for weighing any of the statutory eight factors or performing a CAMU determination. The GAO report’s only ‘process’ recommendation pertains to the written memorialization of the analysis process used by the government, not the analysis itself.”
The DEA further argued that the GAO report is “clear on its face,” meaning there’s no justification to provide the anti-rescheduling parties additional briefing to address the report or further debate it.
The DEA also argued that the report’s recommendation to memorialize the government’s scheduling procedures does not constitute new evidence relating to whether cannabis should be rescheduled.
“The GAO report itself is new; however, the information contained within is not,” the DEA’s legal counsel wrote. “Notably, the [anti-rescheduling parties] do not cite anything in the GAO report that points toward DEA and FDA’s rescheduling process not being in accordance with the law. Rather, [their] argument depends solely on the gaps in the memorialization of [the] rescheduling process, not any flaws in the rescheduling process itself. Such distinction does not constitute new evidence to warrant additional briefing and further delay of this process.”
It’s now up to Julius to determine whether to allow additional briefing.
In his Sept. 29 order to grant a stay in the proceedings, the judge wrote that he found merit in the anti-rescheduling parties’ argument that, if the hearing record were to be extended to include the GAO report, “a stay would be warranted to await briefing on it.”
