USDA Will Use IFR Shortcut to Implement New Hemp Program

May 31, 2019 Washington, D.C.,

By: Jessica Wasserman, Partner

USDA has moved up the implementation schedule for hemp farmers to increase hemp acreage under the new hemp provisions in the 2018 Farm Bill.

When the 2018 Farm Bill was signed into law on December 20, several states immediately submitted state hemp plans expecting that USDA would review the plans in 60 days as set out in the new law. The expectation of the states and the hemp industry was that the new rules allowing for increased hemp production would be implemented within a matter of a few months.

As it turned out, the USDA interpreted the 2018 Farm Bill to mean that the state plans could be reviewed and approved only after USDA conducted full blown notice and comment rule making, which typically takes 18 months. The states were told not to submit their plans and to wait until USDA completed its regulatory process.

In other words, the new Farm Bill rules would not be in place until around the end of 2020 at the earliest! The reaction to this slow roll of regulatory action has been loud and clear that the US hemp industry wants quicker action from USDA.

In a critical development USDA recently revealed that they will short cut the typical rule making process to have the hemp program in place by the 2020 growing season. The latest unified regulatory agenda states that USDA intends to issue an interim final rule (IFR) in August 2019 – see here -allowing implementation before notice and comment rulemaking.

An IFR is a rule issued without notice-and-comment that can be made effective upon publication. The issuing agency can then modify the rule based on comments received after the rule’s issuance. Absent Congressional authority to issue an IFR, an agency that wishes to do so must find “good cause” – meaning that adherence to the notice-and-comment rulemaking procedures otherwise mandated under the Administrative Procedure Act would be impracticable, unnecessary, or contrary to the public interest.

Absent a challenge, USDA will issue a regulation in the fall of 2019. This will open the opportunity for states to submit their plans to USDA for 60 day review. Once the IFR is published, hemp growers can move forward under the USDA rule until the state plans are in place.

We are on our way!

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USDA Will Use IFR Shortcut to Implement New Hemp Program

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