USDA Releases DRAFT Hemp Program Interim Final Rule
Today, the U.S. Department of Agriculture (“USDA”) released a draft version of an interim final rule which, once formally published in the Federal Register, will establish the U.S. Domestic Hemp Production Program. The USDA was directed to develop this Program under the Agricultural Improvement Act of 2018 (which is commonly referred to “2018 Farm Bill”), passed late last year. The USDA released the draft version of the interim final rule as a courtesy to the public—it is anticipated that the interim final rule will be formally published in the Federal Register later this week, at which point it will immediately become effective.
Essentially, the 2018 Farm Bill federally legalized hemp cultivation subject to the USDA’s regulatory authority. At a more technical level, Section 10113 of the 2018 Farm Bill amended the Agricultural Marketing Act of 1946 (the “AMA”) by adding a whole new subtitle—Subtitle G—which are codified as Sections 297A through 297D of the AMA. Section 297B of the AMA requires the Secretary of Agriculture to evaluate and approve or disapprove State or Tribal plans regulating the production of hemp. Section 297C of the AMA requires the Secretary to establish a Federal plan for producers in States and territories of Indian Tribes not covered by plans approved under section 297B.
Today’s draft interim final rule both outlines provisions for the USDA to approve plans submitted by States and Indian Tribes, and also establishes a Federal plan for producers in States or territories of Indian tribes that do not yet have their own USDA-approved plan. Obviously, the Federal plan will be of immediate significance because no state or Tribe has yet submitted a plan, much less received approval.
Unlike more traditional agency rule making procedures, issuance of an interim final rule allows the rule to become effective immediately, while at the same time allowing public comment for later issuance of a final rule. The public comment period will open effective immediately upon publication of the interim final rule, and will remain open for 60 days. The interim rule will be effective for up to two years before being replaced by the final rule.
The draft interim final rule is available at:
https://www.ams.usda.gov/sites/default/files/media/AMS_SC_19_0042_IR.pdf
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Kennyhertz Perry attorney Arthur Chaykin is a former law school professor and head of litigation at Sprint. He is an expert on intellectual property law, and devises creative solutions to protect client’s IP in the hemp and CBD industry, even when certain federal protections are unavailable.
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Kennyhertz Perry attorney Mit Winter is a former partner at an AmLaw 100 law firm. An expert litigator, his skill in anticipating issues before they become serious problems is valuable to all clients, and particularly those in the hemp and CBD industry.
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