Part 1: US Department of Agriculture Publishes Interim Final Rule on Domestic Hemp Production

Part I

On Thursday, October 31, 2019, the United States Department of Agriculture (USDA), Agriculture Marketing Service (AMS) published an interim final rule (Rule) on domestic hemp production in the Federal Register. The Rule will remain effective through November 1, 2021, until the final rule is published, after a sixty-day public comment period and final USDA review.  This three-part article will provide a brief review of the Rule’s requirements.

The Rule outlines the requirements for the production of hemp in the United States and its territories and sets out the criteria the USDA will use to approve plans submitted by States and Indian Tribes for the domestic production of hemp.  The Rule also establishes a federal plan for producers in States or territories of Indian Tribes that do not have their own USDA-approved plan.

The Agriculture Improvement Act of 2018 (2018 Farm Bill) which authorized the production of hemp, required the USDA to promulgate regulations and guidelines to establish and administer a program for the production of hemp in the United States and its territories.[i]  Under the 2018 Farm Bill, any State or Indian Tribe that seeks primary regulatory authority over the production of hemp in its jurisdiction must submit to the USDA for approval its plan for monitoring and regulating the production of hemp.  Any State or Indian Tribe that does not have an approved plan or does not wish to be the primary regulatory authority in its jurisdiction will be regulated directly by the USDA.

The Rule defines “hemp” as the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.  THC is the primary intoxicating component of cannabis.

In our next article, we will discuss some of the specific sections of the regulation.

[i] However, the 2018 Farm Bill explicitly preserved the authority of the Food and Drug Administration (FDA) to regulate hemp products under the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act.