USDA Issues Final Hemp Rule
The US Department of Agriculture (USDA) issued a final rule on hemp production today. It will be formally published in the Federal Register on January 19, 2021, and become effective on March 22, 2021. You can read it below. Here are some highlights:
- Hemp sampling. The sample shall be approximately five to eight inches from the “main stem” (that includes the leaves and flowers), “terminal bud” (that occurs at the end of a stem), or “central cola” (cut stem that could develop into a bud) of the flowering top of the plant. While not ideal, this is a positive change from the USDA’s interim final rule.
- Harvest window. The harvest window has been extended from 15 days to 30 days. In other words, a sample must be taken within 30 days of the anticipated harvest date. While not ideal, this is a positive change from the USDA’s interim final rule.
- Analytical laboratory registration. Hemp testing labs must be DEA registered. This registration requirement is delayed until December 31, 2022. This is a frustrating provision since the 2018 Farm Bill did not include DEA oversight of hemp.
- Acceptable THC level. The final rule maintains the “total THC” requirement: “The total THC, derived from the sum of the THC and THCA content, shall be determined and reported on a dry weight basis.” I have written and spoken extensively in opposition of this standard and are disappointed to see it be incorporated into the final rule.
- Disposal of non-compliant plants. The final rule retains the USDA’s “on farm disposal flexibilities” that were first offered on February 27, 2020. These include, but are not limited to, “plowing under non-compliant plants, composting into ‘green manure’ for use on the same land, tilling, disking, burial, or burning.” Producers do not need to use a DEA-registered reverse distributor or law enforcement to dispose of non-compliant plants. Producers may dispose of the plants using one or more of the means described in a USDA website you can read by clicking here. The final rule allows remediation activities, either disposing of flower materials and salvaging the remainder of the plant or blending the entire plant into biomass plant material. This is a very positive provision that I am happy to see incorporated into the final rule.
- Negligence threshold. The final rule increases the negligence threshold from 0.5% to 1.0%. This means that hemp producers do not commit a negligent violation if they produce plants that exceed the acceptable hemp THC level and use reasonable efforts to grow hemp and the plant does not have a THC concentration of more than 1.0 percent on a dry weight basis. Although I oppose any “negligence threshold” for licensed hemp producers, I am happy to see that the threshold has doubled.
- State and tribal plans. A USDA approved State or Tribal plan will remain in effect, unless approval is revoked by USDA, or unless the State or Tribe makes substantive revisions to their plan or their laws that alter the way the plan meets the requirements of the final rule. The final rule also states that, “changes to the provisions or procedures under the final rule or to the language in the 2018 Farm Bill may require plan revision and resubmission to USDA for approval. Changes to applicable Federal and State or Tribal statutes may also require plan revision and resubmission to USDA for approval and may lead to plan revocation if the plan is not amended.” We will likely see lots of state activity in 2021 by states that will be amending their plans.
- Federal registration. The 2018 Farm Bill requires USDA to administer a hemp production plan for producers in jurisdictions where hemp production is legal but is not covered by an approved State or Tribal plan. It is good to see that there will be a a federal registration system for hemp producers in jurisdictions with no plans.
- 2014 Farm Bill. All States are eligible to remain or start programs under the 2014 Farm Bill provisions until January 1, 2022. While this will continue to create problems for integrating a national hemp program since there will be multiple statutes and standards governing hemp production in 2021, it is probably a necessary evil.
New guidance materials on sampling, testing, and disposal/remediation are available on the Hemp Program website by clicking here.
January 15, 2021
Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here.