Bill description: SB 1345 would legalize industrial hemp in Idaho, with a license.
Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?
Under current law, Idaho farmers are not allowed to grow hemp, even though it has many productive uses. Hemp can be used to manufacture clothing, building materials, garden mulch, insulation, food, paper and much more. In addition, hemp can be used as part of a crop rotation, thus recharging the soil and aiding farmers. While farmers in other states have begun growing hemp, farmers in Idaho are prohibited from doing so. SB 1345 would require the Idaho State Department of Agriculture to submit a plan to “allow for the production, processing, and research of industrial hemp in Idaho” by June 15, 2020.
Under current state law, Idaho State Police officers have arrested individuals who transport hemp products on highways through the state. This happens because hemp is classified as marijuana under current statutes, and anyone who has marijuana, or hemp, in their possession can be charged with a felony or misdemeanor. SB 1345 would allow individuals and businesses to transport hemp through the state if they obtain a license, as outlined in federal code.
Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?
SB 1345 frequently refers to three sections of federal law. The first is the 2014 farm bill, which is also referred to as the Agricultural Act of 2014. Some provisions of this act expired in 2018, while others still remain in effect. This act is 357 pages long.
The second reference is to the 2018 farm bill, also referred to as the Agricultural Improvement Act of 2018. This act is 1,006 pages long.
The third reference is to 7 CFR 990.1, a set of regulations covering the Domestic Hemp Production Program. This section of code is roughly 43 pages.
All in all, this bill references 1,406 pages of federal law or regulations. The major problem with these references is that this bill directly links licensing requirements to decisions made by the federal government.
Under SB 1345, the United States Department of Agriculture (USDA) would be responsible for issuing licenses to transport hemp, and would thus be responsible for determining who is and who is not qualified to transport hemp through this state. That is a responsibility that the Idaho Legislature should have.
Furthermore, a reading of the federal code suggests that the USDA would not be able to issue licenses for Idahoans to transport hemp, except for a limited period of time. SB 1345 clearly establishes that the only way to transport hemp through Idaho is to have “a license under the provision of the 2014 farm bill, the 2018 farm bill, or 7 CFR 990.1 et seq.” Of these three documents listed, only one actually establishes a licensing procedure, in 7 CFR 990 (the Domestic Hemp Production Program).
The regulations for this program specifically say that, after a state passes a law regarding hemp (like SB 1345), the USDA will not, for 30 days, accept an application from anyone in that state who seeks a license to produce hemp. The stated reason for the delay is that it would “allow States and Tribal governments to submit their plans first. This is to prevent USDA from reviewing and issuing USDA licenses to producers when there is a likelihood that there will soon be a State or Tribal plan in place and producers will obtain their licenses from the State or Tribe.”
This section of federal regulations also specifically states, “[o]nce USDA approves a draft hemp production plan from a State or Tribe, it will deny any license applications” coming from that state.
The problem with this timeline can best be expressed through an example. Let’s say SB 1345 passes both the Senate and House and is signed by Gov. Brad Little at the very end of the session, on or around March 31, 2019. SB 1345 states that “this act shall be in full force and effect on and after its passage and approval,” so it becomes effective immediately.
The USDA, however, will not issue any licenses for the first 30 days — until April 30. The USDA will also stop issuing licenses after Idaho submits (and the USDA accepts) its state plan, which would be on or before June 15, 2020.
That means, as currently written, SB 1345 would only allow licenses to be issued for just a couple of months (two months, at the most). After the state plan is approved, the USDA will not issue any more licenses.
Thus, in order to continue licensing producers of hemp (for the purpose of transporting hemp across the state), Idaho would have to include in its state plan that the state will start issuing licenses after June 15, and describe its qualifications for licensure. Since the Idaho State Department of Agriculture is responsible for submitting this state plan to the USDA, it would also have to establish all the licensure requirements. That duty should fall to the Legislature, and not to a state department.
Does it create, expand, or enlarge any agency, board, program, function, or activity of government? Conversely, does it eliminate or curtail the size or scope of government?
SB 1345 allows the Idaho State Department of Agriculture to develop Idaho’s Industrial State Hemp Plan, to submit to the USDA. Thus, this state department is given authority to form the state’s regulations on hemp and, as expressed above, to create associated licensure requirements.
SB 1345 allows the Idaho State Police (and other peace officers) to inspect shipments of industrial hemp and “randomly select, reasonably sized samples,” to be retained for further testing. And it allows peace officers to detain shipments “as long as reasonably necessary to effectuate inspection, sampling, and weighing.”
Does it directly or indirectly create or increase penalties for victimless crimes or non-restorative penalties for non- violent crimes? Conversely, does it eliminate or decrease penalties for victimless crimes or non-restorative penalties for non-violent crimes?
SB 1345 makes it unlawful to transport hemp through Idaho without a license, and attaches fines and fees for doing so. A first violation would be a misdemeanor and carry a $150 fine, a second violation would be a misdemeanor and have a fine of $300, and a third violation would be a misdemeanor with a fine of $1,000 and up to 6 months in jail. Additionally, any hemp transported without a license would be considered contraband.
Does it increase government spending (for objectionable purposes) or debt? Conversely, does it decrease government spending or debt?
The fiscal note for SB 1345 estimates that it would cost $150,000 to develop Idaho’s Industrial Hemp State Plan. It also assumes that, at least at the start, it will cost $115 to send each hemp sample to an out-of-state, approved lab. It is possible that this cost will be passed onto transporters as an inspection fee. Such an action is not allowed anywhere in this bill, but it could be added to the state plan, as could myriad other fees and expenses.
Analyst’s Note: If SB 1345 is passed into law, it would not retroactively be applied to any past cases of transporting hemp across the state.