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DECISIONS Young’s e-mail address is gyoungnlj.com. invalidating the bush administration’s proposed ban on the industrial use of hemp, the 9th U.S. Circuit Court of Appeals said on June 30 that the rule was not merely interpretive, as the administration asserted, but was legislative in nature and that its adoption had to follow required notice and comment procedures. Hemp Indus. Ass’n v. DEA, No. 01-71662. Since 1937, the federal statute controlling marijuana had excluded the oil and sterilized seed of the hemp plant from the definition of marijuana. As a result, various products were made using industrial hemp. In 2001, the Bush administration published rules to ban the use of hemp in consumable products. Various organizations petitioned for review, arguing that the administration had failed to follow required notice and comment procedures for legislative rules. The Bush administration claimed that the rule was merely interpretive, and was not subject to the requirements. Rejecting the government’s argument and invalidating the rule, the 9th Circuit held that the rule was not merely interpretive because it effectively amended a prior legislative rule. Quoting the 3d Circuit, it said, “An agency is not allowed to change a legislative rule retroactively through the process of disingenuous interpretation of the rule to mean something other than its original meaning.”

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