DEA and Other Federal Agencies Versus Congress and the States Regarding Hemp Production
"Federal law prohibits cultivation of cannabis without a permit, and DEA enforces standards governing the security conditions under which the crop must be grown. In other words, a grower needs to get permission from DEA to grow cannabis or faces the possibility of federal charges or property confiscation, regardless of whether the grower has a state-issued permit.67
"Prior to the 2014 farm bill, although many states had established programs under which a farmer may be able to grow industrial hemp under certain circumstances, a grower would still need to obtain a DEA permit and abide by DEA’s strict production controls. This situation resulted in some high-profile cases in which growers applied for a permit but DEA did not approve (or denied) a permit to grow hemp, even in states that authorize cultivation under state laws.
"Even if DEA were to approve a permit, production might be discouraged because of the perceived difficulties of working through DEA licensing requirements and installing the types of structures necessary to obtain a permit. Obtaining a DEA permit required that the applicant demonstrate that an effective security protocol will be in place at the production site, such as security fencing around the planting area, a 24-hour monitoring system, controlled access, and possibly armed guards to prevent public access.68 DEA application requirements also include a nonrefundable fee, FBI background checks, and extensive documentation. It could also be argued that the necessary time-consuming steps involved in obtaining and operating under a DEA permit, the additional management and production costs from installing structures, and other business and regulatory requirements could ultimately limit the operation’s profitability.
"There was also ongoing tension between federal and state authorities over state hemp policies. After North Dakota passed its own state law authorizing industrial hemp production in 1999,69 researchers repeatedly applied for, but did not receive, a DEA permit to cultivate hemp for research purposes in the state.70 Also in 2007, two North Dakota farmers were granted state hemp farming licenses and, in June 2007, filed a lawsuit in U.S. District Court (North Dakota) seeking “a declaratory judgment” that the CSA “does not prohibit their cultivation of industrial hemp pursuant to their state licenses.”71 The case was dismissed in November 2007.72 The case was appealed to the U.S. Court of Appeals (8th Circuit) but was again dismissed in December 2009.73
"As some states began to allow U.S. producers to grow hemp under state law, some growers were foregoing the requirement to obtain a federal permit. For example, in 2009, Montana’s Agriculture Department issued its first state license for an industrial hemp-growing operation in the state, and media reports indicated that the grower did not intend to request a federal permit.74 Such cases posed a challenge to DEA of whether it was willing to override the state’s authority to allow for hemp production in the state.
"There is limited information about DEA’s permit process and on facilities that are licensed to grow hemp, even for research purposes. Previous reports indicate that DEA had issued a permit for an experimental quarter-acre plot at the Hawaii Industrial Hemp Research Program from 1999 to 2003 (now expired).75 Most reports indicate that DEA was reluctant to grant licenses to grow hemp, even for research purposes.76 Some land grant university researchers have been granted licenses to conduct hemp research under certain conditions.77"
Johnson, Renée, "Hemp As An Agricultural Commodity," Congressional Research Service (Washington, DC: Library of Congress, June 28, 2018), pp. 18-20.