The Final Rule: The USDA’s Establishment of a Domestic Hemp Production Program

On January 19, 2021, the United States Department of Agriculture (USDA) put forth a final rule to concretely establish a domestic hemp production program. This final rule becomes effective on March 22, 2021, and puts forth structured rules, regulations, and guidelines regarding the production of hemp nationwide. The USDA’s final rule is a provisional response to the Agriculture Improvement Act of 2018 (the 2018 Farm Bill), which permitted states and tribal nations to participate in hemp production programs and removed hemp from the Controlled Substances Act’s (CSA) definition of marijuana. Until the issuance of this final ruling, the USDA had previously only released an interim final rule, which was open to public comments and suggested revisions. Below, we break down the distinguishing and notable provisions the USDA incorporated into this new framework.

Negligence Standard Increase From 0.5 to 1.0 Percent

In the interim final rule, the negligence threshold for acceptable tetrahydrocannabinol (THC) levels was 0.5 percent, but the final rule has raised this threshold to 1.0 percent. A negligence threshold refers to the room for error that farmers have with regards to their plant’s THC content. Hemp that exceeds the acceptable hemp THC level of 0.3 percent but that remains under 1.0 percent will therefore not be considered a negligent violation, but it must be properly disposed of. If the hemp does exceed 1.0 percent, the USDA will provide a notice of violation, along with a corrective action plan, to the hemp grower. Additionally, this rule limits the maximum amount of violations that a hemp grower can receive per year to one. 

Alternative and Flexible Disposal of Non-Compliant Hemp Plants

The USDA’s final rule permits several alternative disposal methods for non-compliant hemp plants. The list of compliant disposal procedures and guidance will be provided in a separate document, but may include burial, burning, plowing under, composting, tilling, disking, and more. While the disposal requirements remain the same as stated in the interim final rule, the final rule clarified that “remediation” is an option to remove non-compliant plants. Remediation can involve retaining stalk, stems, seeds, and leaf material, or even shredding the entire plant and retesting the shredded material. 

Harvest Window Expanded

Originally, the USDA’s interim final rule provided a 15-day window to collect hemp samples before harvesting. The final rule, however, thankfully extended this window to 30 days, giving more time to collect samples. 

Testing for Total THC Required

The final rule retains the requirement to test for total THC instead of only delta-9 THC. Total THC content refers to the combination of both THC and tetrahydrocannabinolic acid (THC-A) content on a dry-weight basis, after decarboxylation.

Plant Sampling Methods

The USDA’s final rule allows states and tribes to utilize a performance-based approach in the sampling process. This was a widely-voiced request from stakeholders asking for samples to be taken from a smaller number of hemp plants, or from either a greater part of the plant or the entire plant, as this will hopefully reduce the number of crops that test “hot.” The official performance-based plan must be submitted to the USDA for approval. 

DEA Registration for Testing Laboratories 

Due to an insufficient number of laboratories registered with the Drug Enforcement Administration (DEA), the USDA and the DEA have agreed to allow non-DEA registered labs to test hemp through January of 2022. The DEA-registered lab requirement remains in the final rule, but has simply been delayed to accommodate the anticipated amount of hemp that will need testing this year. 

Tribal Regulatory Authority Jurisdiction

In the final rule, the USDA states that a tribe is permitted to exercise authority over hemp production in its territory, despite the extent of its inherent regulatory authority limitations. This was not addressed in the interim final rule but is a new, welcomed addition.

While the USDA’s final rule regarding hemp production is still fresh, it is important to begin to digest and understand the implications behind these rulings. Hemp lawyer Chelsie Spencer offers substantial knowledge and expertise surrounding hemp legislation and regulations, as she remains extremely active in the hemp and cannabis community. With years of experience in cannabis law, hemp and CBD law, business and corporate law, copyright law, and trademark law, Chelsie provides a unique perspective to a range of clients. Contact Ritter Spencer Cheng for more information, or give us a call at 214.295.5070.