7 key provisions of USDA's hemp final rule now in effect

The USDA's final rule regulating the domestic production of hemp was published at the beginning of 2021 and went into effect March 22. This final rule builds on the October 2019 interim final rule (IFR) that established the U.S. Domestic Hemp Production Program.

"With the publication of this final rule, USDA brings to a close a full and transparent rulemaking process that started with a hemp listening session in March 2019," said USDA Marketing and Regulatory Programs Deputy Undersecretary Mae Wu. USDA used feedback from three comment periods and a growing season to develop regulations that meet congressional intent while providing a fair, consistent, science-based process for states, tribes, and individual producers.

1. Timing of sample collection

Sampling agents now have a 30-day window to collect samples for THC compliance testing. During the comment period, stakeholders requested greater flexibility during the sample collection phase because many hemp fields in their state are harvested at the same time. The extended sampling window allows for greater scheduling flexibility during harvest time.

2. Sampling method

Under the IFR, States and Tribes were required to include protocols for the sampling and testing every lot of hemp and every producer in their jurisdiction. The final rule allows states and tribes to adopt a performance-based approach to sampling in their plans if desired. Performance-based sampling allows States and Tribes to create sampling and testing protocols that work best for their State or Tribe rather than testing every producer annually. The plan may consider state seed certification programs, history of producer compliance, and other factors determined by the state or tribe. The performance-based protocols must still meet certain thresholds to be included as a part of an approved State or Tribal plan.

3. Negligent violation

Farmers have to remediate or dispose of plants that exceed the acceptable hemp 0.3% total THC level. However, if the field of hemp tests at or below the negligent threshold of 1.0%, the farmer will not have committed a negligent violation. The final rule doubled the negligence threshold and limits the maximum number of negligent violations that a producer can receive in a growing season to one. Increasing the negligent threshold helps to give farmers more peace of mind when dealing with some of the unknowns surrounding this new crop.

4. Disposal and remediation of noncompliant plants

The final rule allows for alternative disposal methods for noncompliant plants that do not require using a Drug Enforcement Administration (DEA) reverse distributor or law enforcement presence at a destruction. These disposal methods include tilling under the soil or composting. The final rule also included two new remediation options to give farmers some additional methods to salvage non-compliant hemp crops. Farmers can now create a biomass blend of non-compliant hemp and have it retested for compliance or completely remove the floral material and destroy it while keeping the rest of the plant for sale. The Agriculture Marketing Service (AMS) provided educational resources on acceptable disposal and remediation techniques concurrently with the final rule. These guidelines are available on their website.

5. Testing at DEA-registered laboratories and others

There aren't enough DEA-registered labs to test all the hemp that is expected to be grown in 2021. The DEA has agreed to agreed suspend the requirement that all hemp be tested for compliance in a DEA-registered laboratory until December 31, 2022.

6. Extent of Tribal Regulatory Authority over the territory of the tribe

The IFR did not specifically address whether a tribe with an approved USDA hemp plan could exercise primary regulatory authority over the production of hemp across all its territory or only on lands over which it has inherent jurisdiction.

The final rule provides that a tribe may exercise jurisdiction and therefore regulatory authority over the production of hemp throughout its territory regardless of the extent of its inherent regulatory authority.

7. University research

The IFR did not include provisions for researchers studying hemp. The final rule includes provisions for state and tribal plans to create special performance-based protocols for researchers. Since research hemp cannot enter the stream of commerce, the performance-based protocols can allow for greater flexibility for researchers wishing to breed new types of hemp that would thrive in different regional conditions.