The DEA Marijuana Rescheduling comment period is over. What’s next?
With the comment period over, it's not clear how quickly the DEA will move to publish a final rescheduling rule, or if it may hold an administrative hearing.
Monday marks the last date on which the U.S. Drug Enforcement Administration was accepting comments from members of the public on a marijuana rescheduling proposal, which would move cannabis to Schedule III from Schedule I, and as of mid-day, the agency had already received just under 37,000 submissions from interested parties.
But what exactly happens next in the process is about as clear as mud, because the DEA has wide discretion in how fast or how slowly it will move in coming weeks and months, said attorney Shane Pennington, who has made a close study of the rescheduling procedure.
Pennington said it’s been frustrating watching as misinformation swirls online and on social media platforms over how rescheduling may play out because he said too many stakeholders are pushing uninformed theories that suit what they want to see happen.
“It’s so exhausting, all of the misinformation that’s out there,” Pennington said. “People have rose-colored glasses on because they really hope it’ll get done quickly… There are a lot of things that could get thrown in the mix that could make (the rescheduling process move) faster or slower.”
The next move by the DEA, Pennington said, is to sift through all of the comments in order to discern if any of them raise “significant” legal or factual questions that must be addressed. The DEA will also almost certainly find it necessary to issue some level of response to certain comments, depending on their legal thrust, Pennington said.
After that, the DEA could move forward with publishing a final rule in the federal register, but before that the agency will need to decide whether or not to hold an administrative hearing about the rule.
“Really, at any point, before there’s a final rule, they could issue a notice that they’re going to have a hearing. They also might not. No one knows, outside of the government,” he said. “Until we get a final rule, we won’t know if they’re going to have a hearing.”
If that happens, it could stretch out the timeline even more, Pennington warned.
“It’s not possible to give concrete timelines. It is feasible for this to get done before the election. I don’t think it’s feasible if they grant a hearing,” he said. “Generally, hearings take a while, If they’re going to grant one here, I’m sure there would be a big fight, and it would probably push it out past the election. Even apart from that, there’s no guarantee … even if there isn’t a hearing, that it’ll get done before the election, for a number of reasons.”
Once a final rule is published in the federal register, Pennington said, that’ll kick off a 30-day period for opponents to file suit against the move, prior to the rescheduling going fully into effect.
That 30-day period, and the possible outcome of litigation from cannabis reform opponents such as Smart Approaches to Marijuana, could perhaps be the biggest key to whether rescheduling will succeed or not, Pennington suggested.
Once SAM or some other rescheduling foe does file a legal action to block DEA from moving marijuana to Schedule III, they will also likely request an order from the court halting the effective date of the final rule. In deciding on that motion, “the first thing a court will consider is the likelihood of success on the merits,” Pennington said.
“So you’ll have this big showdown, right then, which is extremely important. Because if you get the effective date of the final stayed, it’ll be stayed through the life of the litigation, which could be years,” Pennington said. “That is a real big, big deal.”
“Whoever wins that will also tell you what the court thinks of the merits of the case. It doesn’t decide it, but it tells you if the court thinks there’s a likelihood of success on the merits,” he added.
If those hurdles are all overcome and DEA is still primed to move marijuana to Schedule III, then the final rule will go into effect 30 days after being published in the federal register, at which point the 280E provision of the federal tax code would be nullified for all those in the marijuana trade, Pennington said.
On the misinformation front, Pennington warned against trusting rescheduling enthusiasts online who have been espousing theories that the DEA will be able to digest tens of thousands of public comments in very short order using artificial intelligence or some other technology, or that the DEA will be able to get the rescheduling process finished within a few more weeks.
Neither of those assertions is realistic, he said.
“The work that has to be done is not simple,” Pennington said. “I’m not saying it’s going to take two and a half years. I’m not taking a position on how long it’s going to take. What I am saying is that people who think it is simple and that it’s going to get done instantly because there are AI tools that would make those 30,000 comments look like 10, that is short-sighted. If it does get done quickly, it won’t be because of that.”
First of all, Pennington said, the DEA could wind up with well over 40,000 written comments to read and absorb, given that there’s likely to be a last-minute rush of comments submitted Monday night, including his own, simply because many stakeholders are taking as much time as possible to perfect their submissions.
Rather, Pennington said he believes the DEA will be reviewing all of the comments “the old-fashioned way:” by reading them. That, he said, will take time.
“Right now, I’m working on a 85-page comment myself that’s going to be filed very late in the game. I’m sure others are. And mine, I can assure you, is not a cut-and-paste of anything,” he said.
Then there’s a complex legal question of “standing” at both the administrative hearing level and possibly in any court actions attempting to block rescheduling, another issue that has been oversimplified by many pro-cannabis folks on social media.
“If you don’t have a really sharp, experienced lawyer looking at this, and you just have some dude with an axe to grind on Twitter telling you how standing is going to work, I would take that with a major grain of salt,” Pennington warned. “Questions like these are not little lay-ups. This is the sort of stuff that people make their legal careers off of.”
All of this also doesn’t take into account what could happen if former President Donald Trump wins the election in November, given that Trump hasn’t taken any real position on rescheduling or cannabis reform overall other than a handful of vague statements about leaving such questions to the states. It’s quite feasible that Trump could simply decide to cancel the entire rescheduling move if it’s not completed by the time he takes office in January, or enact a wildly different policy.
The bottom line is there are still many unknowns about how the rescheduling process will play out, Pennington said, and its completion is far from certain.
