Prehearing Ruling Establishes Marijuana Rescheduling Hearing Ground Rules

Administrative Law Judge (“ALJ”) John Mulrooney conducted a prehearing conference hearing on Monday, December 2nd, to kick off the public hearing on the Department of Justice’s (“DOJ’s”) notice of proposed rulemaking (“NPRM”) to reschedule marijuana.  The NPRM seeks to reschedule marijuana from schedule I of the federal Controlled Substances Act (“CSA”) to schedule III.  The DEA Administrator issued a General Notice of Hearing fixing December 2nd as the commencement date for the hearing.

The purpose of the public hearing “is to receive factual evidence and expert opinion testimony” on whether marijuana should be rescheduled to schedule III.  Prehearing Ruling (Dec. 4, 2024), at 1.  Last week’s prehearing conference set the parameters for the hearing on the merits, scheduled to begin January 21, 2025.  Judge Mulrooney’s prehearing ruling establishes the schedule for the parties’ presentations and established hearing guidelines.  Parties will have ninety minutes to present the testimony of their witness.  Counsel may present a two minute opening statement about their witness and the proposed exhibits that will be sponsored through the witness.  The prehearing ruling encourages parties “to consider whether there is merit in consolidation with other participants that have similar (or complimentary) litigation objectives, witnesses, and/or areas of interest.  Id. at 2.  Consolidated parties are allowed to present testimony of up to two witnesses during the hearing, a presentation up to 120 minutes.  Id.

At the conclusion of a party’s presentation, counsel or the designated representative for the party may present either a ten minute closing argument or submit a brief of up to twenty-five pages within five business days of their witness’ presentation.  Id.  Witness cross-examination will be limited to matters covered on direct examination, but if a party submits an affidavit or letter into evidence from a witness who also testifies in person, cross-examination as to matters referenced in the document may be permitted even if the witness does not refer to them during their direct testimony.  Cross-examination will be limited to twenty minutes for each party on the opposing side.  Id. at 3.

The parties have noticed their intentions to offer into evidence documents they identified in their prehearing statements and must serve each other with a copy of the documents noticed in their prehearing statements no later than January 3, 2025.  Parties are required to lay a foundation “for recognition as an expert” and for every proposed exhibit as a condition precedent for inclusion in the record.  Id.  A limited number of affidavits may be received into the record subject to the evidentiary weight adjustment specified in the regulations.  Id. at 3-4.

The court consulted the parties as to availability of their representatives and witnesses.  A party scheduled to present a witness must be physically present in the courtroom even if the witness appears via video teleconference.  A representative seeking to cross-examine an opposing witness must also be physically present.  Id. at 5.  The hearing on the merits commences January 21st with proceedings each Tuesday-Thursday, except for the week of February 10th, through March 6th.