USDA publishes final hemp rule

WASHINGTON — The U.S. Department of Agriculture published a rule Jan. 15 that provides hemp production regulations.

The rule incorporates modifications based on public comments and lessons learned during the 2020 growing season. It is effective March 22.

“This is the closest the industry has ever been to farmer-friendly regulations that maintain the integrity of the hemp market,” said Justin Swanson, president of Midwest Hemp Council. “This is really the first manifestation of the federal government acknowledging the realities and nuances of hemp farming.”

The Midwest Hemp Council shared five farmer-friendly highlights of the USDA’s final rule.

1. Post-sampling harvest window.

Problem: A short 15-day harvest window does not take into account the practicable realities of farming hemp of all varieties.

Final rule solution: Expands the post-sampling harvest window to 30 calendar days after sampling. Hemp farmers may commence harvest before receiving the results, but crops may not be released into the stream of commerce or further processed until test results are received.

2. Laboratory accreditation.

Problem: A requirement that laboratories be Drug Enforcement Administration-registered to conduct chemical analysis of controlled substances in accordance with 21 CFR 130113 greatly reduces the options for farmers to get their crop tested and unnecessarily creates a bottleneck in the hemp industry.

Final rule solution: Delays the requirement that laboratories testing hemp for compliance purposes must be appropriately registered with the DEA until Dec. 31, 2022. DEA certification requirement extends to a laboratory testing hemp throughout the growing season to informally monitor the tetrahydrocannabinol concentration of crop.

3. Negligence threshold.

Problem: Exposing farmers to criminal sanctions for unintentionally growing a crop above the 0.5% total THC unduly burdens farmers and the industry.

Final rule solution: Specifies that hemp producers do not commit a negligent violation if they produce plants that exceed the acceptable THC level and they use reasonable efforts to grow hemp and the plant does not have a THC concentration of more than 1% of total THC on a dry weight basis. Clarifies that a hemp producer shall not be subject to more than one negligent violation per calendar year.

4. Sampling for compliance testing.

Problem: A sampling size that is limited to only the top third of the hemp plant is not a true representative sample, as the top of the hemp plant contains the highest concentrations of cannabinoids and farmers sell the entire plant.

Final rule solution: Allows states to design a performance based sampling method that ensures, at a confidence level of 95%, no more than 1% of plants in each lot will test above the acceptable hemp THC level. Species sample sizes for compliance testing must be 5 to 8 inches from the main stem, terminal bud or central cola of the flowering top of the plant.

5. Disposal and remediation of non-compliant crop.

Problem: Overly burdensome disposal requirements and a prohibition on remedial actions for farmers.

Final rule solution: Allows disposal of non-compliant crop through common agricultural practices such as plowing under, mulching, composting and deep burial. Allows remediation of non-compliant crop up to 1% total THC by either destroying the flower material or blending the entire plant into biomass material.

Learn more at www.ams.usda.gov/rules-regulations/hemp.

For more resources, visit www.midwesthempcouncil.com and www.oisc.purdue.edu/hemp.