Marijuana rescheduling briefs close Nov. 5. What happens next at DEA?

Status as of 7:20 a.m. CT, Nov. 5, 2026. This story explains the process. It doesn't predict the outcome or the timing.

By Monsaur Othman

Under DEA's hearing rules, the next step is the administrative law judge's report with a recommended decision. Parties then get 20 days to file exceptions. At least 25 days after serving the report, the judge certifies the record, and a final order follows in the Federal Register. That order generally takes effect 30 days later. No date is set.

Key facts (as of Nov. 5) - Today: optional reply briefs on a GAO report are due. The judge said the case's stay ends when briefing closes, Marijuana Moment and The Marijuana Herald reported. - Next: the judge's report and recommended decision. DEA's rules set no deadline for it (21 CFR 1316.65). - Then: 20 days for exceptions, and certification of the record no sooner than 25 days after the report is served. - Final order: published in the Federal Register, usually effective at least 30 days later (21 CFR 1316.67). - Court review: a petition within 30 days after notice of the decision (21 U.S.C. 877). - Already in effect: since April 28, FDA-approved marijuana drugs and marijuana under a state medical license have been in Schedule III (91 FR 22714).

This is federal policy news for adults 21 and older. It isn't legal advice. Check the linked primary records before relying on any date.

What is due on Nov. 5?

Optional reply briefs about a single piece of evidence. On Oct. 22, Chief Administrative Law Judge Derek C. Julius admitted a Sept. 23 GAO report on drug scheduling into the record. He refused to reopen the hearing for more testimony or discovery. He invited briefs of up to 10 pages on how much weight the report deserves, due Oct. 29, with replies due Nov. 5. He called any further briefing "disfavored" and said the stay on the case ends when this briefing closes. That's according to Marijuana Moment and The Marijuana Herald. We couldn't open the order on DEA's site, which blocks automated reads.

Several parties filed briefs on Oct. 29, The Marijuana Herald reported. The Government asked the judge to give the GAO report "no weight." Opposing parties, including the National Drug & Alcohol Screening Association, DUID Victim Voices and Dr. Kenneth Finn, asked the judge to recommend rejecting the proposal and to call for a new HHS evaluation. Smart Approaches to Marijuana filed jointly with Idaho, Indiana and Nebraska, and the Tennessee Bureau of Investigation filed separately. We haven't seen the filings themselves.

Why does rescheduling need a hearing at all?

The Controlled Substances Act requires it. Under 21 U.S.C. 811(a), scheduling rules are made "on the record after opportunity for a hearing" under the Administrative Procedure Act. That's formal rulemaking, which works more like a trial than a typical comment-and-final-rule process.

The April 28 notice of hearing (91 FR 22777) restarted the hearing on DEA's May 2024 proposal to move marijuana to Schedule III. The hearing ran from June 29 to July 15, 2026. The notice cites Executive Order 14370, which directs the Attorney General to finish the rulemaking "in the most expeditious manner in accordance with Federal law." The notice says DEA expects the judge to move quickly. It sets the hearing under DEA's rules at 21 CFR 1316.41 through 1316.68, which govern every step below.

What does the judge do next?

He writes a report. Under 21 CFR 1316.65(a), once the time for the parties' proposed findings has passed, the judge prepares a report "as soon as practicable." It contains:

• recommended rulings on the parties' proposed findings of fact and conclusions of law,
• his own recommended findings and conclusions, with reasons, and
• a recommended decision.

The rule sets no deadline for the report. The judge hasn't announced a date, according to the two outlets above. A recommended decision is just that. It doesn't change marijuana's schedule.

How long do the parties get to respond?

Twenty days. Under 21 CFR 1316.66, each party may file exceptions to the report within 20 days after it is served, citing the transcript and exhibits. The judge can allow extra time for responses to another party's exceptions. Each party gets only one filing, either exceptions or a response.

No sooner than 25 days after serving the report, the judge certifies the full record to the decision-maker (21 CFR 1316.65(c)). The record includes the transcript, exhibits, the parties' proposed findings, the report and any exceptions.

When would a final rule take effect?

Not on the day it's signed. Under 21 CFR 1316.67, after the record is certified, a final order is published in the Federal Register "as soon as practicable." It sets out the final rule and the findings behind it. The order must take effect at least 30 days after publication. The one exception is an earlier date backed by a stated finding that the public interest requires it.

The final call belongs to the Attorney General under the act, and DEA's rules route it through the Administrator. The April 2026 actions were issued as Attorney General orders. The judge's recommendation doesn't bind the final order.

Can a final rule be challenged in court?

Yes. Under 21 U.S.C. 877, anyone "aggrieved" by a final decision may petition the U.S. Court of Appeals for the D.C. Circuit, or the circuit where they have their principal place of business, within 30 days after notice of the decision. The court treats DEA's findings of fact as conclusive if they're supported by substantial evidence.

What has already changed, and what hasn't?

Since April 28, 2026, a final rule (91 FR 22714) has placed FDA-approved marijuana drug products and marijuana covered by a state medical marijuana license in Schedule III. Our Oct. 19 story explains that rule. All other marijuana, including adult-use, is still Schedule I until a final order in this hearing says otherwise. For where Congress stands on hemp and cannabis after the election, see our Nov. 4 status story.

What we're watching: the judge's report and the date it's served, which starts the 20-day exceptions clock. We'll update this page when the report is issued.

Last updated: Nov. 5, 2026

Photo: Tony Webster, via Wikimedia Commons, CC BY 2.0 (cropped). The Robert F. Kennedy Department of Justice Building in Washington, June 2014. File photo; illustration only.

Drafted with AI assistance from primary sources. Written and edited by The Highline Report newsroom under Monsaur Othman's editorial standards.

Sources

• Federal Register, 91 FR 22777, notice of hearing (April 28, 2026)
• Federal Register, 91 FR 22714, final rule (April 28, 2026)
• eCFR, 21 CFR part 1316, subpart D
• U.S. Code, 21 U.S.C. 811 and 21 U.S.C. 877
• GAO, GAO-26-108623, Drug Scheduling
• Marijuana Moment, Oct. 22 order coverage
• The Marijuana Herald, Oct. 22 order coverage and Oct. 29 briefs coverage