States can continue operating hemp programs under 2014 Farm Bill

A continuing resolution signed last week by President Donald Trump allows states to continue to operate hemp programs under authorizations provided by the 2014 Farm Bill.

Without the continuing resolution, states needed to transition soon to rules for domestic hemp production adopted by the U.S. Department of Agriculture (USDA), which faced heat over various components of its interim final rule published in 2019.

USDA’s “initial foray into regulating the growth and processing of hemp has caused much heartache for U.S. hemp farmers, in that it does not provide the kind of flexibility on issues like THC testing, hot hemp disposal and plant sampling that farmers need in order to successfully profit from their hemp crops,” the U.S. Hemp Roundtable said in a recent legislative update. “That’s why nearly two dozen state hemp programs have chosen to continue to operate under the authorizations provided by the 2014 Farm Bill, which are more flexible than the IFR.”

The continuing resolution includes an extension of the 2014 Farm Bill protections to Sept. 30, 2021, the U.S. Hemp Roundtable said.

"Before the Continuing Appropriations Act, 2021 and Other Extensions Act became law, states and tribes operating under the 2014 pilot program authority were allowed to do so only until October 31, 2020," a USDA spokesperson said in an email. "After that date, states administering a hemp production program were to have a USDA-approved hemp production plan or, if a state did not have a USDA-approved plan, growers in that state could apply for a USDA hemp production license unless prohibited by applicable state law. USDA is still reviewing the provisions of this recently enacted law to determine its implications for the U.S. Domestic Hemp Production Program."

Jared Polis, the governor of Colorado, which has been farming hemp for several years, was pleased with the recent development.

“We worked closely with our federal delegation to ensure this provision to extend the 2014 Farm Bill and the hemp act was included in this continuing resolution,” Polis said in a statement. “Colorado is a national leader in the hemp industry and I’m glad to see this bill be signed into law as it gives our farmers and ranchers from the Eastern Plains, to the Western Slope, the San Luis Valley and everywhere in between more support, and gives Colorado more time to work with the USDA on our state’s hemp framework. This is a great step forward and we will continue working to grow the industry in Colorado.”

Under the terms of the 2014 Farm Bill, the hemp sector in Colorado has thrived, according to a Sept. 18 letter to Sen. Cory Gardner (R-Colorado) from several industry lawyers and other stakeholders.

“However, this new robust sector of the industry will face numerous detrimental and crippling constraints upon full implementation of the 2018 Farm Bill and the USDA IFR, as currently drafted,” the letter warned. "As you are aware, stakeholders throughout Colorado (and nationwide), including both government and industry, continue to voice their numerous concerns related to several untenable standards contained in the USDA IFR." 

The letter was signed by representatives of Buscher Law LLC, Colorado Hemp Industries Association, Hemp Industries Association, Hoban Law Group P.C., Functional Remedies LLC, National Cannabis Industry Association and Vicente Sederberg LLP.

After the 2014 Farm Bill was signed into law, farmers started growing hemp under pilot programs. But following passage of the 2018 Farm Bill, which removed hemp from the Controlled Substances Act (CSA), states faced a deadline of Oct. 31, 2020, to submit final plans to USDA for approval as the pilot program was expiring, according to the National Industrial Hemp Council (NIHC).

“The global pandemic has presented obstacles for state departments of agriculture to finalize plans and submit them to the USDA for approval,” NIHC said in a Sept. 30 news release, commenting on the continuing resolution after it was passed by the Senate.

USDA in September reopened the comment period to its interim final rule governing domestic hemp production. It granted the public an opportunity to comment through Oct. 8.

The rule outlined provisions for USDA to approve plans submitted by states and Indian tribes for the domestic production of hemp, and it established a federal plan for producers in states or territories of Indian tribes that do not have their own USDA-approved plan.

To date, USDA has approved hemp production plans submitted by several tribal governments and states, including: Delaware, Florida, Georgia, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Jersey, Ohio, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Washington, West Virginia and Wyoming. USDA is reviewing plans submitted by several other tribal governments and states, including Arizona, Connecticut, Kentucky and Michigan, among others, according to a USDA webpage.

Over the summer, Sen. Chuck Schumer (D-New York) called on USDA to delay until 2022 its final rule on domestic hemp production and allow hemp growers and producers across the U.S. to continue to operate under the 2014 Farm Bill pilot program regulations until that time.

USDA's interim rule would "negatively" impact more than 700 farmers across New York, Allan Gandelman, president of New York Cannabis Growers and Processors Association, said in a news release issued Aug. 7 by Schumer's office. 

"The costs and bureaucracy of implementing the new rules as written create unnecessary financial burdens on farmers and our state agencies," Gandelman added. "The existing hemp pilot program has been sufficient in making sure farmers are compliant with all testing and public safety protocols."