Missouri cannabis regulators file emergency and proposed rules

Today, Missouri’s regulating body for marijuana, the Division of Cannabis Regulation, finalized and posted emergency rules which will regulate the governance of marijuana companies and consumers in Missouri for the majority of 2023, simultaneously, the Department of Health and Senior Services submitted proposed rules to the Missouri Secretary of State.

Emergency rules are effective February 3, 2023 and are set to expire on August 1, 2023. Any emergency rule is subject to judicial review.
Emergency rules are not renewable, nor may an agency adopt consecutive emergency rules having substantially the same effect; however, the agency may adopt an identical proposed rule under normal rulemaking procedures. An emergency rule is filed with the Joint Committee on Administrative Rules and the Administrative Rules Division, Office of the Secretary of State on the same day. It may become effective as early as ten (10) business days after filing or any time after that as indicated in the emergency statement and the history of the rule.

The proposed rules process differs slightly, proposed rules will be published in the Missouri Register. The rule does not become effective until all of the statutorily prescribed steps have been taken.

An agency writes a rule, based on authority from specific statutes in the Missouri Revised Statutes. Once the rule is written by the agency, the remaining required paperwork is compiled. The agency is then ready to file the rulemaking.
If an agency is part of the Executive Branch they must prefile with the governor’s office to get a letter of approval prior to filing.
The next step to create a rule is to file a proposed rule with the Small Business Regulatory Fairness Board, if applicable, the Joint Committee on Administrative Rules (JCAR), and Administrative Rules of the Office of the Secretary of State by email on the same day.
According to the Missouri Register publication schedule, Administrative Rules publishes the proposed rule thirty to forty-five (30–45) days later in the Missouri Register. Whether the rulemaking is published at the first or the middle of each month in the Register is determined by the filing date of the rulemaking.
Following publication, there must be a public comment and/or public hearing period that extends a minimum of thirty (30) days after the date of publication of the proposed rulemaking in the Missouri Register. The agency must act on the rulemaking within ninety (90) days following the close of public comment, or the agency may withdraw the rulemaking at anytime.
Once the public comment and/or public hearing period is closed, information from the comments and/or public hearing is compiled by the agency and the agency writes the final order of rulemaking for the proposed rulemaking.
A copy of the final order of rulemaking for the proposed rulemaking is next filed by the agency only with the Joint Committee on Administrative Rules at the Capitol and the Small Business Regulatory Fairness Board, if applicable by email.
The final order of rulemaking is retained by the Joint Committee on Administrative Rules for a thirty- (30-) day review period. Once the thirty- (30-) day review period is completed, the agency may then, and only then, file the final order of rulemaking packet they received back from JCAR with Administrative Rules by email for publication in the Missouri Register. However, the agency must file the order prior to ninety (90) days after the end of the comment period or the rulemaking will become void.
At the end of each month, the rules that are published as final orders of rulemaking in the Missouri Register are prepared in final form for publication in the update to the Code of State Regulations by Administrative Rules.
These rules become effective thirty (30) days after the publication date of the update to the Code of State Regulations. An agency,
at their discretion, may choose a later date. Exceptions to these effective dates are set by statute.

While the proposed rules will be open to public comment, and changes may be made, operators will operate under the requirements of the emergency rules until August.

Once the comment period concludes for the proposed rules, the Department will prepare a final order of rulemaking that includes summaries of all the comments received, the Department’s response to each comment, and any changes made to the proposed rule as a result of the comments. Within 90 days from the date for filing public comment, or within 90 days after hearing if a hearing is held, but after the proposed rules have been sent to the Joint Committee on Administrative Rules for 30 day review period, the final order of rulemaking is filed with the Secretary of State. The new rules and changes become effective 30 days after being published in the Code of State Regulations.

Below are PDF copies of the emergency rules and draft rules in full.

Greenway will post an analysis of differences between the emergency and proposed rules and steps to prepare for emergency rule implementation next week.