By Vince Sliwoski, Managing Partner, Harris Sliwoski
In case you haven’t heard, the Drug Enforcement Administration (DEA) wants to hear from you on marijuana rescheduling. Specifically, DEA invites your comments on its notice of proposed rulemaking (NPRM) to move both marijuana and marijuana extract from schedule I to schedule III of the federal Controlled Substances Act (CSA). The comment submission deadline is July 22, 2024.
How does the comment deadline work?
There are actually two deadlines at play here. All comments must be submitted electronically or postmarked on or before 11:59 ET on July 22, 2024. All hearing requests must be postmarked on or before July 20, 2024. It’s always possible that DEA will extend the deadlines past July 20 and 22, but it seems unlikely at this point. Therefore, you should comply with the July 22 deadline to make it into the administrative record, and the July 20 deadline if you’d also like to request a hearing.
How does one submit a comment?
DOJ encourages submission of comments through the Federal eRulemaking Portal. Here is the link. The interface provides the ability to type short comments directly into the comment field on the web page, or to attach a file for lengthier comments.
I’m busy. Is there a sample comment I can adapt?
Yes, there are a couple of good ones online. Marijuana Policy Project, for example, has a template letter you can edit and submit here. NORML has one here. I’m sure there are others floating around as well.
How many comments has DEA received?
Looks like over 30,000 at the time of this writing. I initially guessed we would see over 100,000 comments. I may have overshot, but I still expect a significant uptick by next Monday.
What if I want to advocate that marijuana be re-scheduled and not de-scheduled?
You can certainly do that! I and many others have always argued that de- and not re-scheduling is the correct policy choice for marijuana. I expect that a significant portion of the comments will advocate for de-scheduling. Others will make arguments on the other end of the policy spectrum: marijuana should remain in schedule I with fentanyl and other dangerous drugs.
Wherever you land on the topic, it’s worth pointing out that DEA advised at page 13 of the NPRM that it “has not yet made a determination as to its views of the appropriate schedule for marijuana.” This is yet another reason the comment opportunity is so compelling.
Anything else to consider in the comments?
Yes. I explained in a prior post that the NPRM contemplates “marijuana-specific controls” at schedule III, although the NPRM itself doesn’t outline what those specific controls may be. It’s unclear (at least to me) whether DOJ and DEA could proceed with rescheduling marijuana prior to these controls being in place. Thus, I believe it’s fair game to comment on what controls should look like, and/or whether we even need them in the first place.
What’s the next step?
Once comments are in, the Administrative Procedure Act requires that rulemaking be conducted on the record after the opportunity for a hearing in front of an administrative law judge. It seems likely that the DEA administrator will grant a request for a hearing in this case, in order to review factual evidence and expert opinion on the NPRM.
Beyond that, you can expect this process to be ongoing at the time of the November elections. Whatever happens in those elections could also affect the outcome. But that is a topic for another day.
Reprinted with the permission of Harris Sliwoski
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