The USDA’s final rule regulating domestic hemp production in the United States was published in early 2021 and went into effect on March 22, 2021. This final rule builds on the October 2019 tentative final rule that established the U.S. domestic hemp production program.
“With the publication of this final rule, USDA completes a complete and transparent regulatory process that began with a hemp listening session in March 2019,” said Greg Ibach, Undersecretary of State for USDA Marketing and Regulatory Programs. “USDA staff has used the information you provided over three comment periods and from your experience during one growing season to develop regulations that are in line with the intentions of Congress while maintaining a fair, consistent, science-based process for States, tribes and individual producers enable. USDA staff will continue to conduct training and public relations to help the industry meet the requirements. ”
Here are six key provisions of the final rule:
1. Time of sampling
The new definitive rule extends the sampling window to 30 days prior to harvest.
2. Sampling method
In public comment periods, the hemp industry stakeholders called for samples to be taken from a larger part of the facility or the entire facility. It was also asked to sample a smaller number of plants. As a result, the last rule allows states and tribes to take a merit-based approach to sampling in their plans. Hemp plans for states or tribes must be submitted to the USDA for approval. The plan may take into account government seed certification programs, a history of compliance by growers, and other factors determined by the state or tribe.
3. Negligent Injury
Farmers must dispose of plants that exceed the allowable THC levels for hemp. However, if the facility tests at or below the negligent threshold of 1.0%, the farmer has not committed a negligent breach. The last rule doubled the negligence threshold of 0.5% and limits the maximum number of negligent violations a manufacturer can receive in one growing season to one.
4. Disposal and remediation of non-compliant plants
The final rule provides alternative disposal methods for non-compliant facilities that do not require a reverse distributor or Drug Enforcement Administration (DEA) law enforcement agency, and expands the disposal and remediation measures available to manufacturers. The Agricultural Marketing Service (AMS) will provide educational resources on acceptable remediation techniques.
5. Tests with DEA registered laboratories
There aren’t enough DEA registered laboratories to rest all of the hemp expected to be grown in 2021. The DEA has agreed to expand enforcement flexibility to allow non-DEA registered laboratories to test hemp until January 1, 2022, and the laboratory is now processing registration applications to get more laboratories DEA registered for hemp testing.
6. Scope of Tribal Regulatory Authority over the territory of the Indian tribe
The preliminary final role did not specifically refer to whether a tribe with an approved USDA hemp plan could exercise the primary regulatory agency for hemp production throughout its territory or only in countries for which it is inherently competent. The final role provides that a tribe can exercise jurisdiction, and therefore regulatory authority, for hemp production across its entire territory, regardless of the scope of its inherent regulatory authority.