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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 National Law Review, Volume IX, Number 303

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About this Author

Hilary T. Jacobs Environmental Litigation Attorney Beveridge & Diamond Washington, DC
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 Maryland’s Environmental Law Clinic to...

202-789-6086
Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.

212-702-5415
Christopher D. Strunk Environmental Litigation Attorney Beveridge & Diamond San Francisco, CA
Of Counsel

Christopher D. Strunk has more than 20 years of experience litigating complex environmental and toxic tort disputes.  

He focuses on the defense of large, multi-party environmental matters, including mass tort and products liability litigation involving alleged toxic injury arising from asbestos, lead, mold, solvents, and other contaminants. He has represented microchip and technology companies, chemical and petrochemical companies, heavy equipment manufacturers, and the pesticide and fertilizer industry. Over the past five years, he has also developed a significant industrial hemp...

415-262-4016
Kathryn E. Szmuszkovicz Litigation Attorney Beveridge & Diamond Washington, DC
Managing Principal

Kathryn E. Szmuszkovicz litigates and provides strategic regulatory counsel.

Kathy litigates on behalf of individual companies, groups of companies and trade associations in federal and state courts across the country. She also provides alternative dispute resolution (ADR), compliance, strategic planning, and commercial services focused on the regulatory aspects of her clients’ businesses. Kathy’s practice focuses on clients who manufacture, sell, and use products regulated by EPA, USDA, FDA, DOI, DOC, and analogous state agencies under the environmental, health, and safety laws...

202-789-6037