In late September, the chief administrative law judge (ALJ) at the Drug Enforcement Administration (DEA), Derek C. Julius, paused the pending rulemaking proceedings to reschedule all marijuana to Schedule III. The stay order delays the issuance of the ALJ’s recommendation to the agency while he considers whether to admit and receive briefing on a new U.S. Government Accountability Office (GAO) report concerning federal drug scheduling policies.
Importantly, this rescheduling rulemaking is distinct from the April 2026 final rule that rescheduled to Schedule III any Food and Drug Administration (FDA)-approved marijuana drug products and marijuana subject to a state medical marijuana license. That partial rescheduling rule — which we covered here — did not resolve the separate question of whether all marijuana should move from Schedule I to Schedule III.
Background
Prior to the current proceedings, DEA issued a May 2024 notice of proposed rulemaking (NPRM), which proposed transferring marijuana from Schedule I to Schedule III of the Controlled Substances Act (CSA). DEA held hearings pursuant to this NPRM, but the hearings stalled in early 2025 amid various procedural challenges — as we covered here.
Then, in December 2025, President Trump issued Executive Order 14370, which directed the Department of Justice to “take all necessary steps to complete the rulemaking process related to rescheduling marijuana to Schedule III of the CSA in the most expeditious manner in accordance with Federal law.” In April 2026, DEA issued a new notice of hearing to consider the broader Schedule III proposal.
The merits hearings on the broader rescheduling NPRM, which are documented in transcripts, took place between June 29 and July 15, 2026. Generally, the purpose of these hearings is to inform the chief ALJ’s ultimate recommendation to the agency regarding how to proceed with respect to the NPRM.
The Stay Order
On September 29, 2026, Chief ALJ Julius paused the pending NPRM proceedings. The stay followed a September 28 motion by DUID Victim Voices, Kenneth Finn, M.D., and the National Drug and Alcohol Association seeking leave to file supplemental briefing, admission of a new GAO report into the record, and a stay of proceedings.
The moving parties asked the tribunal to hold its recommended decision and certification of the record until briefing on the GAO report is complete. Chief ALJ Julius found merit in the argument that, if the record were extended to include the GAO report, a stay would be warranted while the tribunal awaited briefing on it. He therefore ordered that the case be stayed pending resolution of the motion.
The government must respond to the motion by October 13, 2026. Other interested parties to the proceeding may, but are not required to, file responses by the same date.
How the GAO Report Could Matter
In relevant part, the GAO report identified certain gaps in FDA and DEA policy around rescheduling that opponents of the NPRM argue are relevant to the current proceeding. GAO found that DEA lacks policies identifying roles, responsibilities, and procedures related to drug scheduling. GAO also found that FDA lacks policies or procedures specifying how staff should conduct evaluations or develop scheduling recommendations. GAO recommended that DEA and FDA develop such policies and that FDA and the National Institutes of Health (NIH) update an outdated memorandum of understanding regarding drug scheduling recommendations.
What Comes Next
The next key date is October 13, 2026, when the government’s response and any optional responses from other interested parties to the proceeding are due. Then, Chief ALJ Julius will decide whether to admit the GAO report, whether to allow supplemental briefing, and when to lift the stay. The ultimate recommendation on the broader rescheduling will remain on hold until the motion is resolved. Our team will continue tracking these developments.
Our Cannabis Practice provides advice on issues related to applicable federal and state law. Cannabis remains a controlled substance under federal law.