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USDA Issues Much-Needed Guidance to U.S. Hemp Industry via Interim Rule

The United States Department of Agriculture (USDA) has released a draft of its interim final rule establishing the U.S. Domestic Hemp Production Program, in advance of the rule’s Federal Register publication, which is expected on Thursday, October 31. The interim rule provides guidance on a number of issues and uncertainties that have plagued the industry since the passage of the Agriculture Improvement Act of 2018 (commonly known as the 2018 Farm Bill). 

The rule outlines requirements for states and Indian tribes to craft their own hemp production programs and also undertakes the monitoring and regulation of hemp grown in states and territories without a USDA-approved plan. To date, ten states and ten tribes have submitted plans for hemp production to USDA, a number that is anticipated to grow rapidly. USDA previously indicated that it would review these plans once its rule was published, and will begin doing so using its interim rule upon publication in the Federal Register this week. 

Whether operating under a state plan or the federal plan, the rule provides much-needed guidance to growers, processors, manufacturers, and transporters of industrial hemp on issues of sampling and testing. For example, under the rule, crop sampling must be conducted by a federal, state, local or tribal law enforcement agency within fifteen days of the anticipated date of harvest. The samples must be tested for delta-9 tetrahydrocannabinol (THC) by a Drug Enforcement Administration-registered laboratory. Simultaneous with the rule, USDA published separate guidelines for the sampling and testing of hemp for THC content.

The interim rule is expected to remove the “guesswork compliance” that has previously been the industry norm and provide direction to hemp business owners who have long sought to conduct their businesses legally and ethically. Simultaneously, the rule will help weed out any bad actors who may have been using the previous regulatory ambiguity to their advantage.

Comments on the interim rule will be due within sixty days of its publication in the Federal Register. After considering all comments, USDA will publish a final rule within two years of the interim rule’s effective date. In the meantime, the interim final rule will remain in effect. 

© 2020 Beveridge & Diamond PC

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About this Author

Associate

Hilary maintains a general environmental litigation and regulatory practice, working with clients nationwide across industrial sectors.

She joined the Firm following her graduation from the University of Maryland Francis King Carey School of Law (UM Carey Law). 

While at UM Carey Law, Hilary served as a law clerk in the U.S. Environmental Protection Agency's Office of Enforcement and Compliance Assurance, Water Enforcement Division, and served as Articles Editor for the Maryland Law Review. She also worked in the University of...

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Mackenzie Schoonmaker, Environmental Lawyer, Beveridge & Diamond Law Firm
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Mackenzie Schoonmaker focuses her practice on litigation and environmental regulatory matters.  Ms. Schoonmaker’s litigation practice includes representing clients in state and federal courts, as well as in data compensation arbitrations under the federal pesticide statute, FIFRA.  Most recently, Ms. Schoonmaker was part of the Firm’s trial team that secured a defense judgment in the District of Columbia Superior Court after a three week trial on tort claims alleging the client supplied corrosive water to apartment buildings.

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Chris Strunk, Beveridge Diamond, Environmental lawyer
Of Counsel

Chris counsels clients on toxic tort, commercial litigation, and business transactions, with a focus on complex litigation involving the defense of toxic injury product liability and premises liability claims involving asbestos, mold, and airborne and water-borne contaminants and chemicals.

He represents multinational manufacturers of heavy industrial equipment, such as valves, pumps, and automobile engine gaskets and brakes; flooring material manufacturers; pesticide and fertilizer manufacturers and suppliers; and chemical and petrochemical...

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Kathryn E. Szmuszkovicz, Biotechnology Attorney, Beveridge Diamond Law Firm
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Ms. Szmuszkovicz chairs the Pesticides and Biotechnology Section of Beveridge & Diamond, P.C.'s Litigation Practice Group. She litigates and provides alternative dispute resolution, compliance, strategic planning, and commercial services for clients who manufacture, sell, and use products regulated by EPA, USDA, FDA, DOI, DOC, and analogous state agencies under the broad range of environmental, health, and safety laws that these agencies implement. She holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, is named in the 2013 edition of both Best Lawyers...

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