The June 26 draft shows that the Department is reopening a fine schedule adopted just one year ago — and replacing first-offense Category 4 and 5 fines with corrective-action plans. Its regulatory-impact analysis says the change has no implementation cost.
South Dakota’s Department of Health filed 38 proposed amendments to Administrative Rules Article 44:90 on August 21, 2026. The package reaches from 44:90:01:01 through 44:90:12:11 and is scheduled for a September 23 public hearing, an October 3 written-comment deadline, and Interim Rules Review Committee consideration on October 14.¹ The Department describes the filing as updating and clarifying Article 44:90 to align with current medical-cannabis industry standards, improve consistency, and modernize administrative processes.¹ The June 26, 2026 draft text and August 19, 2026 Form 14 regulatory-impact analysis provide the actual proposed language and the Department’s stated economic analysis. Thirty-eight is the headline. 12:11 is the evidence. 12:03 is the mechanism. Form 14 is the agency’s explanation.²
Thirty-eight is a large number. It is also not unprecedented.
Article 44:90 was created in 2021 and has been amended through adopted South Dakota Register filings in 2021, twice in 2022, 2023, 2024, and 2025.³ The largest post-creation package identified in the Department’s hearing record is the June 2022 package, which opened 47 discrete sections.⁴ The 2026 package is therefore smaller than that 2022 package, but larger than the 26-section notice published in 2025.⁵
The useful question is not whether South Dakota has ever opened this many medical-cannabis rules at once. It has. The useful questions are what the Department is changing now, which provisions survive review, which provisions get reverted, and whether the administrative record explains those changes in the market that exists today.
Section 44:90:12:11 is no longer a hypothetical. The June 26 draft reopens last year’s fine schedule. Categories 1 through 3 keep the same dollars. Category 4 and Category 5 change on the first offense only. A first Category 4 is no longer $1,000. A first Category 5 is no longer $500. Both become “Corrective Action Plan to be submitted and approved.” A second or subsequent Category 4 stays $1,000. A second or subsequent Category 5 stays $500. The five-year lookback stays.⁶
That is a second pass at the enforcement system adopted in 52 SDR 10, effective August 4, 2025. It is not the creation of a new fine table.
How to Read a “38”
For purposes of this comparison, the 38 proposed amendments are counted by the separately identified rule sections in the Department’s filing. One line can be a comma. Another can be a dollar table. The 2021 package created the article; every later package has been an amendment set. Comparing 2026 to 2021 as if they were the same kind of event is a mistake. Don’t make it.
The adopted history, as the Legislature’s own source lines still print it, is:
48 SDR 40, effective October 5, 2021 — original article.⁷ 49 SDR 9, effective August 8, 2022.⁸ 49 SDR 47, effective November 22, 2022.⁹ 50 SDR 62, effective November 27, 2023.¹⁰ 51 SDR 24, effective September 9, 2024.¹¹ 52 SDR 10, effective August 4, 2025.¹²
That is six adopted drops in five years. The article has not been frozen. It has been on a roughly annual cycle, with a second 2022 drop and a 2024 drop that was legislatively directed rather than staff-initiated.
The Form 14 identifies the same general scope reflected in the draft: one new definition and amendments extending through Article 44:90:12, including 12:11.¹³
What Prior Notices Actually Opened
June 21, 2022. The Department’s hearing minutes list 47 discrete sections: 44:90:01:01; 02:01 through 02:03, 02:05, 02:06, 02:08; 03:07; 04:13, 04:16, 04:19 through 04:24; 06:03, 06:05 through 06:07; 08:03; 09:01, 09:03 through 09:12; 11:01 through 11:13; and 12:07 through 12:08.¹⁴ That package was adopted as 49 SDR 9. It was not a failed draft that returned every year.
The same minutes show why the published notice matters. Commenters asked for changes to 44:90:03:16, 44:90:07:08, and 44:90:13:02. The Department said those provisions were not in the notice and therefore could not be amended at that hearing.¹⁵ The history is not only evidence that South Dakota has opened dozens of sections at once. It is evidence that the Department itself has treated the notice as defining the permissible scope of amendments.
Late 2022. A smaller package: extension of the one-year deadline to become operational, agent-badge requirements, alternate transport for testing-facility samples, non-odorized flammable gas in extraction, and petition qualifications for debilitating conditions.¹⁶ The Interim Rules Review Committee reverted 44:90:13:02 and declared the rest complete.¹⁷ IRRC can revert an individual rule to an earlier step without rejecting the entire package.¹⁸
November 2023. A mid-size package after 2023 session work: definitions, allowable amounts, scale certification, additives and terpenes, sales only at a certified dispensary, “final form” before retail sale, removal of the pre-roll testing exemption, expiration dates, Metrc plant-tag language, an inflation adjustment to the certificate fee, and repeal of the condition-petition process.¹⁹ IRRC reverted 44:90:09:07.01 and 44:90:07:10. The rest became 50 SDR 62.²⁰ A package can survive while individual provisions do not. That is the lesson that travels into 2026. This packet amends 09:07.01 again.²¹
2024. Narrow. Senate Bill 43 directed the Department to raise the establishment registration fee to nine thousand dollars and to use chapter 1-26 to get that text on file by September 30, 2024.²² That is 51 SDR 24. It is not evidence that DOH always proposes 38 sections. It is evidence that the Legislature sometimes writes the homework and starts the clock.
June 17, 2025. The public notice listed 26 discrete sections, including 44:90:12:09 through 12:12.²³ The stated reasons included cleanup, expiration dates, destruction and retesting language, and “establish the imposition and payment of fines” under SDCL 34-20G-72(6).²⁴ Written comments closed June 27, 2025. Program Administrator Whitney Brunner told the Medical Marijuana Oversight Committee in August 2025 that IRRC had approved the package in July and that the Department had spent a year taking industry and CIASD input.²⁵ The adopted text is 52 SDR 10, effective August 4, 2025.
The 2025 package created the current five-category fine schedule in 44:90:12:11, implementing the Department’s rulemaking authority under SDCL 34-20G-72(6).²⁶ The architecture is 12:09 (serious-violation factors), 12:10 (which violations fall into Categories 1 through 5, and that fines may be assessed in addition to or in lieu of suspension, revocation, or other chapter 34-20G penalties), 12:11 (dollar amounts and prior-offense treatment), and 12:12 (payment).²⁷ Current law, until this packet is adopted, sets Category 1 at $5,000 / $7,000 / $10,000; Category 2 at $3,000 / $4,000 / $5,000; Category 3 at $1,500 / $2,500; Category 4 at $1,000; Category 5 at $500; and a five-year lookback.²⁸ SDCL 34-20G-72(6) directs procedures for fines not exceeding $10,000 per inspection for establishments found to have multiple or serious violations.²⁹
What the June 26 Draft Does to That Architecture
Proposed 44:90:12:11 leaves Categories 1 through 3 untouched. It splits Categories 4 and 5. First offense: corrective-action plan, submitted and approved. Second or subsequent: the old dollar amounts. Five-year lookback unchanged.³⁰
Proposed 44:90:12:03 is the mechanism. The Department may order the establishment to submit a corrective-action plan for review and approval. The establishment shall comply with the approved plan. The Department may inspect, review records, or otherwise verify implementation. Failure to submit, implement, or comply “may result in a monetary penalty or other enforcement action authorized under this article or SDCL chapter 34-20G.”³¹ The section does not expressly state whether a corrective-action plan operates as the exclusive response to a first Category 4 or 5 violation or whether a monetary penalty can also be imposed in connection with the same violation. The Department should explain when a corrective-action plan operates alone and when a monetary penalty may be imposed in addition to it.
August–October 2026. Thirty-eight proposed amendments. Hearing September 23. Written comments October 3. IRRC October 14.³² The Register notice described the package in general terms. The draft and the Form 14 now supply the text.
What the Form 14 Says — and What It Does Not
The regulatory-impact analysis is dated August 19, 2026. It checks “not a major rule,” on the ground that the package “consists primarily of amendments to clarify existing rules and to match current program procedures.” Need: an October 2025 industry stakeholder meeting plus an internal review. Alternatives: “No alternative exists.” Direct benefit: increased compliance from clarification. Cost savings: the Category 4 and 5 first-offense change “saves businesses from paying a fine for the first offense in these categories.” Implementation cost, indirect cost, and opportunity cost: “N/A — There is no cost associated with these rule changes.” Sources consulted: “Department of Health staff.” Small businesses: cultivators, manufacturers, testing facilities, and dispensaries; estimated number checked at 100–499; unique impact: none, because “Medical cannabis businesses are already complying”; new recordkeeping or reporting: No.³³
That form is now part of the comment. SDCL 1-26-4.11 requires the agency to identify, among other things, whether the rule is a major rule; need; legal basis; alternatives; direct benefits; cost savings; compliance costs; indirect costs; opportunity cost; impact on small businesses; the estimated number and type of small businesses; reporting and recordkeeping requirements; sources; and assumptions and uncertainty.³⁴ “Small business” for this purpose is a nongovernmental entity employing 25 or fewer full-time employees.³⁵ SDCL 1-26-4 requires that analysis to accompany the proposed rule through the permanent-rule process.³⁶
Here is what the Legislature requires. Here is what the agency checked. Here is where the agency’s own answers create questions.
How did the Department determine that the new corrective-action-plan mechanism in proposed 12:03 has no implementation, compliance, administrative, or opportunity cost?
The Form 14’s 100–499 estimate should be reconciled with the Department’s August 27 public establishment list showing 108 licensed establishments, and the Department should explain what universe of small businesses the Form 14 is actually counting.³⁷ One entity can hold more than one license. The Form 14 could be counting a different universe than the public list. The file should say which.
“No alternative exists” is not an alternatives analysis. “Department of Health staff” is not an outside source list. Item 8 identifies a savings from eliminating first-offense Category 4 and 5 fines. Item 9 says there is no cost associated with the rule changes. That leaves an obvious question: what analysis did the Department perform regarding the time and compliance burden associated with proposed 12:03’s submission, approval, implementation, and verification process? The form fills the boxes. It does not show the work.
What Usually Happens to These Packages
The history points toward adoption, usually with individual provisions capable of being reverted. South Dakota’s Interim Rules Review Committee can declare the process complete, revert a proposed rule to an earlier step, or move to suspend.³⁸ The medical-cannabis file shows the middle tool. Known reverts are 44:90:13:02 (2022) and 44:90:07:10 and 44:90:09:07.01 (2023).³⁹ The 2025 fine package was approved. I found no comparable Article 44:90 package in the sources reviewed that was rejected in full and then recycled the following year.
A letter that says “they have never done this” will be answered with 2022 minutes and the 2025 notice. A letter that attaches page 54 of the June 26 draft and items 8 and 9 of the Form 14 matches the file. Do not retract the earlier comment because the RIA answered some of the questions first raised. Use the RIA. Acknowledge what the Department says. Then ask it to substantiate the conclusions it put in Form 14.
Why the Packages Keep Coming
SDCL 34-20G-72 is an affirmative statutory command to promulgate rules pursuant to chapter 1-26.⁴⁰ The Legislature has kept adding assignments — most clearly SB 43 on fines, probation, and the fee. Inspection reports keep citing the same chapters: inventory-tracking training, cameras, certificates of analysis, batch size, manifests, daily inventory.⁴¹ Staff then return with cleanup, “shall” language, and enforcement text. The history shows regulatory accretion, not a new statutory program.
The 2026 difference is the backdrop, not the habit. Federal authorities placed specified state-licensed medical marijuana products and certain FDA-approved marijuana drugs in Schedule III in April 2026.⁴² Patient cards are at 19,821. Licensed establishments are at 108. Home-cultivation licenses are at 715 for FY2026.⁴³ Prior large packages arrived while the licensed-establishment count was building or near its peak. This one arrives during a period of contraction in that count, with last summer’s fine schedule already live and now being rewritten at the bottom two categories. That is timing. It is not a claim that the 38 lines caused the contraction.
What Staff Should Put in One Chart
Rulemaking | Scale | Adopted result | What the record shows 2021 | Original Article 44:90 | 48 SDR 40 | Creation of the medical-cannabis regulatory article June 2022 | 47 sections | 49 SDR 9 | Largest post-creation amendment package identified Late 2022 | Smaller package | 49 SDR 47 | Individual provisions amended; 44:90:13:02 later reverted 2023 | Mid-size | 50 SDR 62 | 44:90:07:10 and 44:90:09:07.01 reverted; remainder completed 2024 | Narrow | 51 SDR 24 | $9,000 establishment registration fee pursuant to legislative direction 2025 | 26 listed sections | 52 SDR 10 | Enforcement/fine architecture adopted, including 12:09–12:12 2026 | 38 sections | Pending | Draft dated June 26; RIA dated Aug. 19; first Cat. 4/5 become CAP; hearing Sept. 23; comments Oct. 3; IRRC Oct. 14
The 2022 Record Shows Why the Notice Matters
Don’t object to “38.” Object to individual provisions. The Department’s Register notice described the package generally. The June 26 draft is what tells the public what is actually being reopened.
What a Comment Should Do With This File
Confirm in one sentence that Categories 1 through 3 dollars in proposed 44:90:12:11 are unchanged.
State how a first-offense Category 4 or 5 corrective-action plan is approved, timed, and verified under proposed 44:90:12:03, and when a monetary penalty may be imposed in addition to it.
Reconcile Form 14 item 13(b) with the August 27 public list, and explain what universe of small businesses the 100–499 box is counting.
Identify which proposed lines other than 12:11 and 12:03 the Department treats as costless “clarification,” and which change a duty.
Identify the October 2025 stakeholder meeting materials, if any, that are in the rulemaking file.
Explain how the Department determined that the new corrective-action-plan mechanism has no implementation, compliance, administrative, or opportunity cost.
Quote Form 14 item 8 next to item 9.
SDCL 34-20B-27 is a different proceeding. The Article 44:90 rulemaking does not itself constitute the SDCL 34-20B-27 rescheduling determination.⁴⁴ Treating the 38 amendments as if they were that determination, or as if federal Schedule III had already rewritten chapter 34-20B, is a mistake. Don’t make it.
The program voters passed is still SDCL chapter 34-20G.⁴⁵ Many of the operating requirements, cameras, testing requirements, and enforcement mechanisms are implemented through Article 44:90. Pierre has opened that article before. It will open it again. The question is not whether South Dakota has ever opened 38 medical-cannabis rules at once. The record shows it has opened even more. The question is what the Department is changing inside those 38 sections — including a first-offense shift from a specified monetary fine to a corrective-action plan at the bottom of the fine schedule — and whether the administrative record explains why those changes are necessary in the market South Dakota has today.
Footnotes
¹ S.D. Legislative Research Council, South Dakota Register, Vol. 53 (Aug. 31, 2026) (Department of Health filing dated Aug. 21, 2026; 38 proposed amendments to S.D. Admin. R. art. 44:90, spanning 44:90:01:01 to 44:90:12:11; hearing Sept. 23, 2026; written comments Oct. 3, 2026; Interim Rules Review Committee Oct. 14, 2026), https://mylrc.sdlegislature.gov/api/Documents/Register/307532.pdf?Year=2026.
² S.D. Dep’t of Health, Proposed Amendments to S.D. Admin. R. art. 44:90 (draft dated June 26, 2026); S.D. Dep’t of Health, Form 14 Regulatory Impact Analysis (signed Aug. 19, 2026).
³ See source lines collected at S.D. Admin. R. art. 44:90, https://sdlegislature.gov/Rules/Administrative/44:90; S.D. Admin. R. 44:90:03:17 (51 SDR 24).
⁴ S.D. Dep’t of Health, Minutes of Public Hearing (June 21, 2022) (47 discrete sections enumerated), https://rules.sd.gov/Uploads/701_AgencyHearingMin.pdf.
⁵ S.D. Dep’t of Health, Notice of Public Hearing to Adopt Rules (hearing June 17, 2025; 26 listed sections of art. 44:90), https://rules.sd.gov/Uploads/882_PublicNotice.pdf.
⁶ S.D. Dep’t of Health, Proposed Amendments, supra note 2, at 54 (proposed 44:90:12:11).
⁷ 48 SDR 40 (effective Oct. 5, 2021).
⁸ 49 SDR 9 (effective Aug. 8, 2022).
⁹ 49 SDR 47 (effective Nov. 22, 2022).
¹⁰ 50 SDR 62 (effective Nov. 27, 2023).
¹¹ 51 SDR 24 (effective Sept. 9, 2024); see S.D. Admin. R. 44:90:03:17.
¹² 52 SDR 10 (effective Aug. 4, 2025).
¹³ S.D. Dep’t of Health, Form 14, supra note 2, item 1.
¹⁴ S.D. Dep’t of Health, supra note 4.
¹⁵ Id. (agency response that provisions not included in the published notice could not be amended at that hearing).
¹⁶ S.D. Legislative Research Council, Interim Rules Review Committee Minutes (review of late-2022 Department of Health medical-cannabis amendments), https://mylrc.sdlegislature.gov/api/Documents/238461.pdf.
¹⁷ Id. (motion to revert proposed 44:90:13:02).
¹⁸ S.D. Codified Laws §§ 1-26-4.7, 1-26-4.10, https://sdlegislature.gov/Statutes/1-26-4.7.
¹⁹ S.D. Legislative Research Council, Interim Rules Review Committee Minutes (Nov. 27, 2023), https://mylrc.sdlegislature.gov/api/Documents/254388.pdf.
²⁰ Id. (motions reverting 44:90:09:07.01 and 44:90:07:10; review of remaining rules declared complete).
²¹ S.D. Dep’t of Health, Form 14, supra note 2, item 1 (listing 44:90:09:07.01 among amended sections).
²² 2024 S.D. Sess. Laws ch. 138 (S.B. 43); S.D. Codified Laws § 34-20G-72 (as amended).
²³ S.D. Dep’t of Health, supra note 5.
²⁴ Id.; S.D. Codified Laws § 34-20G-72(6).
²⁵ Letter from Whitney Brunner, Med. Cannabis Program Adm’r, S.D. Dep’t of Health, to Med. Marijuana Oversight Comm. (Aug. 2025), https://mylrc.sdlegislature.gov/api/Documents/Attachment/285696.pdf?Year=2025.
²⁶ S.D. Admin. R. 44:90:12:11; S.D. Codified Laws § 34-20G-72(6).
²⁷ S.D. Admin. R. 44:90:12:09 to 44:90:12:12.
²⁸ S.D. Admin. R. 44:90:12:11 (current text prior to the 2026 proposal).
²⁹ S.D. Codified Laws § 34-20G-72(6).
³⁰ S.D. Dep’t of Health, Proposed Amendments, supra note 2, at 54.
³¹ Id. at 52–53 (proposed 44:90:12:03).
³² S.D. Legislative Research Council, supra note 1.
³³ S.D. Dep’t of Health, Form 14, supra note 2, items 2, 4, 6–13.
³⁴ S.D. Codified Laws § 1-26-4.11, https://sdlegislature.gov/Statutes/1-26-4.11.
³⁵ Id.
³⁶ S.D. Codified Laws § 1-26-4.
³⁷ S.D. Dep’t of Health, Medical Cannabis Establishments List (updated Aug. 27, 2026), https://doh.sd.gov/programs/medical-cannabis/med-cannabis-establishments/establishments-list/; S.D. Dep’t of Health, SFY 2023 Medical Cannabis Annual Report 5 (Nov. 29, 2023), https://doh.sd.gov/media/dlenc2n1/sfy-2023-medical-cannabis-annual-report.pdf.
³⁸ S.D. Codified Laws §§ 1-26-4.7, 1-26-4 to 1-26-8, https://sdlegislature.gov/Statutes/1-26-4.7.
³⁹ See supra notes 17, 20.
⁴⁰ S.D. Codified Laws § 34-20G-72, https://sdlegislature.gov/Statutes/34-20G-72.
⁴¹ S.D. Dep’t of Health, SFY 2024 Medical Cannabis Annual Report 10, https://doh.sd.gov/media/4ndgp2h3/fy2024_med-cannabis-annual-report.pdf.
⁴² See C.J. Keene, How Federal Cannabis Scheduling Shakeup Impacts South Dakota Medical Marijuana Policy, SDPB (Aug. 18, 2026), https://www.sdpb.org/politics/2026-08-18/how-federal-cannabis-scheduling-shakeup-impacts-south-dakota-medical-marijuana-policy.
⁴³ S.D. Dep’t of Health, Medical Cannabis Data (updated Sept. 2, 2026), https://doh.sd.gov/programs/medical-cannabis/med-cannabis-data/; Makenzie Huber, South Dakota Sees Surge In Patients Growing Medical Marijuana At Home, Marijuana Moment (Aug. 18, 2026), https://www.marijuanamoment.net/south-dakota-sees-surge-in-patients-growing-medical-marijuana-at-home/.
⁴⁴ S.D. Codified Laws § 34-20B-27, https://sdlegislature.gov/Statutes/34-20B-27.
⁴⁵ S.D. Codified Laws ch. 34-20G, https://sdlegislature.gov/Statutes/34-20G.
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