As the U.S. Department of Agriculture (USDA) pushes ahead to finalize regulations for hemp, a key federal watchdog agency released an assessment of the department’s rulemaking process and seemed to agree that it’s in the public’s interest to expedite implementation.
The non-partisan Government Accountability Office (GAO) released its assessment last week, reviewing the various procedures that USDA followed to publish an interim final rule on hemp following the crop’s federal legalization under the 2018 Farm Bill.
USDA posted the rule in the Federal Register on October 31 and opened it up for a public comment period that will end on December 31. Since then, hundreds of people have weighed in, including two senators who wrote a letter to USDA outlining five recommended changes to the proposed regulations that they said would bolster the hemp industry.
GAO didn’t raise any issues with how USDA approached rulemaking and appeared to accept the department’s four-point justification for waiving a requirement for a 60-day delay in the effective date that applies to major rules unless there’s “good cause that delay is impracticable, unnecessary, or contrary to the public interest.”
The effective date for USDA’s hemp rules was October 31, 2019, the date of publication, and continues until November 1, 2021.
“Here, although USDA did not specifically mention the [Congressional Review Act’s] 60-day delay in effective date requirement, the agency found good cause to waive notice-and-comment procedures and incorporated a brief statement of reasons,” GAO wrote.
The agency listed the four justifications USDA offered: 1) it was Congress’s intent to implement regulations “as expeditiously as practicable” under the legislation, 2) the final rule “provides critical guidance to numerous stakeholders,” 3) USDA had done its due diligence in collecting comments through listening sessions and a webinar and 4) there is “public interest in expediting the ability of the nation’s farmers to enter the new agricultural market presented by hemp.”
Department of Agriculture, Agricultural Marketing Service: Establishment of a Domestic Hemp Production Program, B-331557 https://t.co/h3i8xBe3eX
— U.S. GAO (Legal) (@usgaolegal) November 25, 2019
While GAO didn’t explicitly state that those reasons justified the waiver, it didn’t dispute them either and generally seemed to assess that USDA followed proper protocol when it issued the interim final rule.
Instead, the agency mostly described the actions and justifications of USDA when it comes to its hemp regulatory plan and also noted costs associated with the program.
“The interim final rule establishes new regulations governing the production of hemp,” GAO summarized. “This rule outlines provisions for USDA to approve plans submitted by states and Indian tribes for the domestic production of hemp. It also establishes a federal plan for producers in states or territories of Indian tribes that do not have their own USDA-approved plan.”
GAO also explained that the domestic hemp program “includes provisions for maintaining information on the land where hemp is produced, testing the levels of delta-9 tetrahydrocannabinol, disposing of plants not meeting necessary requirements, licensing requirements, and ensuring compliance with the new compliance.”
While GAO didn’t have much commentary on USDA’s plan, it did have a lot to say about the Drug Enforcement Administration (DEA) cannabis eradication program around this time last year. The watchdog scolded DEA for failing to adequately collect documents from state and local law enforcement partners that received funds through the federal program.
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