One Step Toward Clarity: USDA Issues Interim Final Rule Establishing Hemp Production Program

Ropes & Gray LLP

Ropes & Gray LLP

On October 31, 2019, the U.S. Department of Agriculture (“USDA”) published an interim final rule (“IFR”) establishing a domestic hemp production program consistent with provisions of the Agriculture Improvement Act of 2018 (“2018 Farm Bill”) related to hemp production. The IFR (i) outlines the provisions a state or Indian tribe, if they wish to have primary authority over the production of hemp in that state or tribal territory, must include in hemp production plans submitted to the USDA for approval (hereinafter “State/Tribal Plans”), and (ii) establishes a federally administered plan for hemp producers in states or tribal territories that do not have their own USDA-approved plan (hereinafter “USDA Plan”).

The IFR is a significant regulatory development not just for hemp producers, but also for other stakeholders in the hemp-derived products industry, including manufacturers and marketers of cannabidiol (CBD) and other hemp-derived products. Although the USDA’s IFR does not affect the regulatory authority of the U.S. Food and Drug Administration (“FDA”) or resolve the ongoing FDA regulatory uncertainty relating to CBD-containing products (see prior Ropes & Gray Podcast and Alert), the IFR nonetheless provides important clarity regarding the pathway for legally produced hemp products. Entities that grow or process hemp or that manufacture or market products with hemp-derived ingredients should review the provisions of the IFR carefully and ensure compliance with the IFR requirements, especially those relating to product testing.

The 2018 Farm Bill

As explained in a prior Ropes & Gray Alert, the 2018 Farm Bill exempted hemp (including hemp derivatives) with a THC concentration of 0.3% or less from the definition of marijuana, which is a Schedule I controlled substance under the Controlled Substances Act (“CSA”). This shifted primary regulation of hemp from the federal Drug Enforcement Administration (“DEA”) to the USDA. The 2018 Farm Bill legalized the possession, processing, distribution, purchase, and sale of hemp. However, the production of hemp remained unlawful until the USDA established a regulatory framework to license and oversee its production—although there was a limited exception for states that had been licensing hemp production under the 2014 Farm Bill’s pilot program. The 2018 Farm Bill tasked USDA with setting minimum standards for the approval of State and Tribal hemp production Plans and with establishing regulations for federal licensure of hemp producers in states without approved production plans.

Justification for an Immediately Effective “Interim” Final Rule

Under the usual rulemaking procedures of the Administrative Procedure Act, a proposed rule must be subject to notice and comment before it may be finalized and take effect. However, the APA provides that notice and comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that it would be “impracticable, unnecessary, or contrary to the public interest” to do so. The USDA determined that requiring notice and comment prior to publication of a final rule in this case met the exception based on Congress’ repeated and clear interest in the expeditious implementation of a regulatory program for domestic hemp production and the need to provide guidance prior to the 2020 growing season to other regulatory entities, the banking industry, law enforcement, and individuals and companies engaged in the production, harvesting, transportation, storage, and processing of hemp. Therefore, the agency published the rule as an IFR, effective immediately upon publication. The USDA has solicited public comments on the IFR through December 30, 2019. The IFR will technically expire on November 1, 2021, by which time the USDA intends to replace it with a final rule that addresses any public comments it receives.

Key Provisions of the IFR

State/Tribal Plans. If a state or Indian tribe wishes to have primary regulatory authority over the production of hemp within its borders, the state or tribe may submit for approval by the USDA a plan concerning monitoring and regulation of such hemp production that meets the IFR’s minimum requirements. Once a State/Tribal Plan is received, the USDA has 60 days to review and either approve of the plan or disapprove the plan and provide written notification of the basis for the disapproval.

USDA Plan. In states or tribal territories without a USDA-approved State/Tribal Plan, hemp producers may apply for a license directly from the USDA and be subject to the requirements of the USDA Plan. However, if a State/Tribal Plan is pending approval, the USDA will place any applications to produce hemp in that territory on hold until the agency makes a determination on the State/Tribal Plan.

Common Requirements of Both State/Tribal Plans and the USDA Plan. The substantive requirements of both the USDA Plan and the minimum requirements of State/Tribal Plans address the same core areas, including:

  • Reporting of land information, including a legal description of the land, geospatial location, crop acreage, and licensing information associated with the site where hemp is produced.
  • Sampling of hemp plants at least 15 days prior to the anticipated harvest by law enforcement or other designated persons.
  • Testing of samples by a DEA-registered laboratory using post-decarboxylation or a similarly reliable analytical method to determine whether the samples contain THC content at a level that exceeds the acceptable 0.3% THC level on a dry weight basis (accounting for the measurement of uncertainty). Samples with test results above 0.3% THC may still be considered hemp, so long as 0.3% THC falls somewhere within the laboratory-determined measurement of uncertainty.
  • Disposal of hemp plants that exceed the acceptable THC level in a manner consistent with the Controlled Substances Act and DEA regulations (e.g., collection and destruction by a DEA-registered reverse distributor or an authorized law enforcement official).
  • Compliance and enforcement procedures to ensure hemp is being produced in accordance with the IFR, including periodic audits or inspections of hemp producers, procedures to identify and attempt to correct certain negligent violations, and reporting of violations with a culpable mental state greater than negligence to the U.S. Attorney General (among others).
  • Submission of criminal history reports for all “key participants” of the hemp-producing entity, where “key participants” means “[a] sole proprietor, a partner in partnership, or a person with executive managerial control in a corporation” and “a person with executive managerial control includes persons such as a chief executive officer, chief operating officer and chief financial officer.”

Effect on Interstate Transportation. The 2018 Farm Bill and the IFR explicitly preserve the right of states and Indian tribes to regulate (or even outright ban) the production of hemp more stringently than the federal standards. However, the 2018 Farm Bill prevents a state or Indian tribe from prohibiting the interstate transportation of lawfully produced hemp or hemp products. Prior to publication of the IFR, the USDA interpreted this provision to only protect the interstate transportation of hemp produced pursuant to pilot programs under the 2014 Farm Bill. And in at least one highly publicized incident, state law enforcement officials in Idaho (where hemp production is not permitted) seized a hemp shipment passing through the state from a Colorado producer. Now that the IFR is effective, so long as hemp or hemp products are produced according to either a state, Indian tribe, or USDA plan, no State or Indian Tribe can prohibit interstate transportation of hemp lawfully produced consistent with the requirements of the IFR. The IFR’s implementation of a pathway for legally produced hemp under the 2018 Farm Bill should provide needed clarity on this issue.

Key Takeaways

Hemp producers, entities that manufacture or market hemp-containing products (and are therefore dependent on a supply of legally produced hemp), and investors in either of the foregoing should pay close attention to the implementation of the IFR in the coming months. Prior to the publication of the IFR, 10 State Plans and 10 Tribal Plans had already been submitted to the USDA for consideration. The USDA has stated that it intends to begin reviewing these State/Tribal Plan applications in November 2019 and that it will not accept any individual producer applications under the USDA Plan until December 2019. For those hemp producers located in states or tribal territories that have not yet submitted plans to USDA for approval, they may contact their State department of agriculture or tribal government to see if the state or Indian tribe intends to submit a plan. Additionally, as the USDA approves State/Tribal Plans, interested stakeholders should evaluate the extent to which these plans are more stringent than the USDA Plan.

The USDA will be accepting comments on the IFR through December 30, 2019. Ropes & Gray will continue to monitor this area for further developments.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ropes & Gray LLP | Attorney Advertising

Written by:

Ropes & Gray LLP

Ropes & Gray LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.