How States are Responding to the USDA Final Interim Rule and the Current Federal Law

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December/30/2019

The USDA has released the Interim Final Rules (IFR). The rule’s provisions are based on the Agricultural Improvement Act of 2018, also referred to as the 2018 Farm Bill. The U.S states and Indian tribes apply both the IFR and 2018 Farm Bill equally. 

The USDA published the Interim Final Rules on October 31, 2019. The rules were implemented immediately, and already, the booming hemp industry is experiencing some of the effects of the regulations. 

The IFR requires the state to develop its production plans by adopting IFR or the USDA’s program. However, some states have chosen to delay this decision. 

States which were producing hemp under the 2014 Farm Bill were allowed to continue with production for one year by the new 2018 Farm Bill after the USDA released its production program. Therefore, the states can continue with their existing hemp programs through the 2020 planting season. 

Due to the U.S state’s concern over the IFR, some states feel that it would be advantageous to implement the IFR as soon as possible. 

Therefore, it is essential to evaluate IFR along with the 2014 and 2018 Farm Bill by conducting a poll of how some states previously approached hemp production and how they are currently responding to the IFR. 

The 2014 Farm Bill – Pilot Programs for Research Purposes

Under the 2014 Farm Bill, the U.S. states’ department of agriculture and universities were authorized to produce hemp. The hemp was to be cultivated under a pilot program and was to be used for agricultural or academic research. However, the law did not clarify the meaning of hemp production or for “purposes of research.” Thus, delegating the responsibility to the states. 

Soon after, many states developed self-styled hemp pilot programs, and its production increased steadily. In 2016, the IFR reported that growers in the U.S. harvested approximately 9,649 acres of hemp, which has continued to rise because, in 2018, they collected 77,844 acres. 

In August 2016, the USDA, the DEA, and the Food and Drug Administration issued a joint statement and said that besides the agricultural department and universities other people who are licensed and registered could produce hemp under a pilot program which can be sold within and among states having pilot programs, but not commercially. 

According to a respected advocacy organization, Vote Hemp, in 2019, U.S. states licensed 527,869 acres of hemp cultivation, which is a 460% increase from 2018. It was estimated that 142,500 acres of hemp would be harvested in 2019. 

 The 2018 Farm Bill, the IFR, and Increasing Hemp Production 

The 2018 Farm Bill became effective last year in December; however, since the USDA had to interstates the transportation of hemp and derived hemp products. It also permits states to develop their production program or adopt the USD’s plan in the IFR. 

However, several concerns are noted in the 2018 Farm Bill, and these include collecting of samples within 15 days of anticipated harvested by USDA-approved agents for testing, THC concentration must be below 0.3, only DEA-registered labs are authorized to test the THC content, and hemp containing anything above 0.5% THC concentration is termed as “negligent violation,” and it is a crime. 

 January 29, 2020, is the deadline for submitting the public comment for the IFR. The USDA has until November 1, 2021, to revise the comments and finalize and issue the final regulations. However, the interim Final Rules are still fully active. 

The states operating under the 2014 Farm Bill have until October 31, 2020, whereby they can apply the laws and regulations during the 2020 planting season. 

Some of the states that will still operate under the existing hemp pilot program during the 2020 growing season include Colorado, Tennessee, South Carolina, while Kentucky and Florida will work under the 2018 Farm Bill once the USDA approves their programs. 

It is difficult to determine which strategy is preferable, and most certainly, the success of a program depends on each state’s circumstances. Consistent requirements on all the U.S states may be beneficial. 

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