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USDA Releases Final Rules on Hemp, Effective From March 22

By Alexander Beadle

Published: Jan 19, 2021   
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The US Department of Agriculture (USDA) has published its long-awaited final rule on regulating the production of hemp across the United States, almost two years after first appealing for industry feedback.

In a win for hemp farmers, the final rule widens the margin of error for THC levels in hemp plants before a cultivator is declared criminally negligent. It also doubles the amount of time farmers will have to complete their harvesting after gathering samples.

However, several high-profile sticking points have remained in the final rule, including some guidelines on sampling and a requirement that all hemp testing laboratories register with the US Drug Enforcement Administration (DEA).

Rule officially published in the Federal Register on Tuesday

Conversations regarding changes to USDA rules began as early as March 2019, in the wake of the 2018 Farm Bill, which legalized hemp cultivation nationwide. In October the same year, the USDA released an “Interim Final Rule” to govern hemp cultivation with immediate effect. And in September of 2020, the administration opened its third and final comment period to solicit feedback from stakeholders in the sector.

“With the publication of this final rule, USDA brings to a close a full and transparent rule-making process that started with a hemp listening session in March 2019,” USDA Marketing and Regulatory Programs Under Secretary Greg Ibach said in a statement.

“USDA staff have taken the information you have provided through three comment periods and from your experiences over a growing season to develop regulations that meet Congressional intent while providing a fair, consistent, science-based process for states, tribes and individual producers.”

In total, the USDA received around 5,900 comments on the Interim Final Rule, which the Administration has used to consider changes made in this final rule. While not every issue raised resulted in a rule change, the new regulation contains many important points of note, including:

  1. “Hot hemp plants” with total THC levels above 0.3 percent are still prohibited, but the limit before a producer is considered to have committed a negligence violation is now raised from 0.5 percent to 1 percent.
  2. Farmers will now have a 30-day window after sampling to complete their harvest, doubling the previous 15-day allowance contained in the IFR.
  3. All hemp testing laboratories will be required to register with the DEA, but the relevant clause in the final rule extends a previous temporary suspension of enforcement until December 31, 2022.
  4. Farmers will now be able to remediate non-compliant hemp material in order to reduce losses, by either disposing of flower materials and salvaging the rest of the plant or blending the entire plant into biomass material.
  5. A temporary decision to allow on-site disposal of non-compliant plants has been made permanent.

Other notable inclusions and omissions

Along with the decision to require DEA registration for labs, one of the other areas of concern with the IRF was its sampling requirements. Unfortunately for some in the industry, only minimal changes are being made in this area for the final rule.

Despite suggestions from multiple farmers and industry members to allow for the testing of homogenized samples or samples from a variety of areas in the plant, the rule states that the Agricultural Marketing Service (AMS) of the USDA “is of the opinion that since THC is concentrated in the flower material of the plant, the flower material is more appropriate to test than the entire plant.”

As a result, the final rule specifies that samples shall be approximately five to eight inches from the “main stem” (including the leaves and flowers), “terminal bud,” or “central cola” (a cut stem that could develop into a bud) of the flowering top of the plant. However, the rule also allows for approved states and tribes to take a “performance-based approach” to their own sampling in regional plans which would be submitted to the USDA for approval.

One area that was left vague in the original IFR was the power that tribal regulatory authorities would have over hemp production. Specifically, it was unclear whether a tribe with a USDA-approved hemp plan would have primary regulatory authority over the production of hemp on all of its territory, or only in lands over which it has inherent jurisdiction. This meant that if a hemp operation occurs inside a tribe’s territory but was not operated by members of the tribe, it was unclear who had the primary authority.

To address this uncertainty, the new final rule now includes a provision that explicitly states that “may exercise jurisdiction and therefore primary regulatory authority over all production of hemp in its Territory regardless of the extent of its inherent regulatory authority.”

Reaction from the hemp industry

Despite the inclusion of some more disappointing provisions, such as the DEA registration requirement, the response from the hemp industry towards the new rule has been broadly well-received.

“It’s a very positive step forward to have better clarity on hemp cultivation, testing and compliance,” Miles Wright, CEO of Avient Biosciences, told Hemp Industry Daily.

“Perhaps like all regulations, there are things to like and of course disappointments. It’s important to keep in mind that the word ‘final’ isn’t really applicable to hemp regulation – it’s simply the next iterative step in our journey with this plant.”

With Agriculture Secretary-designate Tom Vilsack lined up to take a place in the new Biden administration, hopes are high that the next Presidential term will also be a productive one for the hemp industry. Vilsack previously served as President Obama’s agriculture secretary and played a part in implementing the 2014 hemp pilot program.

“It does seem to be clear that [the final rule] is a definite improvement over the interim final rule but that it is not perfect. It does not go as far as some of the key things we requested,” commented Jonathan Miller, general counsel for the US Hemp Roundtable, to Marijuana Moment.

“We’re pleased with the movement in the right direction, and we’re going to look forward to working with the Biden administration and [Agriculture Secretary-designate Tom Vilsack] to try to make this even better.”


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