Hemp production final rule set by USDA

After almost two years of accepting comments on the 2014 hemp pilot program and 2018 Farm Bill directive to regulate hemp production in the U.S., the Department of Agriculture announced its final rule on Jan. 15.

The rule officially took effect March 21, and while we don’t know the full implications of what it will all mean for the future of hemp, four key areas are emphasized.

Some autonomy allowed

The USDA and Drug Enforcement Administration have been asked to loosen their grip on hemp production, sampling and testing, and give some autonomy back to states and tribes. Many states have already taken the initiative to figure out what reporting and testing methods work best for them and their producers, and have also developed best practices and processes that could channel national mandates.

Groups like the Industrial Hemp Association of Washington were formed to offer advocacy, innovation, research and information about hemp production, working closely with land grant universities to provide educated comment and documented data throughout the process. The final rule reflects the work of these and other agencies.

The final rule extended the sampling and testing period for THC levels in hemp from 15 days before harvest to 30 days, and approved performance-based testing. The rule states that the USDA sees the benefit in allowing states and tribes “the flexibility to develop sampling plans based on data they gather during an extended period of time.”

This means that agencies and growers on the ground can influence state or tribal regulations on hemp production. These plans must still be submitted to and approved by the USDA, but the rule acknowledges the burden involved in gathering, sampling and testing industrial hemp and seeks to lighten it to a certain extent.

There is also a distinction made between hemp grown for fiber and grain uses and hemp grown for cannabinoid production. The wording indicates that further legislation will be coming regarding the regulation of cannabinoid products and hemp grown for this purpose.

Testing procedure

The rules show that there still aren’t enough DEA-licensed labs to test the amount of hemp being grown in the country. In February 2020, the USDA announced a delay in enforcing the requirement that testing labs be registered with the DEA.

With the final rule, that deadline has been extended to December 2022, as the DEA continues to process lab licenses. This also speaks to providing flexibility within state and tribal regulatory processes, as they continue to support the labs that have been with them from the start.

One thing the ruling didn’t change was what parts of the plant should be “sampled” for testing purposes, which sparked significant comments. The original rule specified sampling the bud only to assure to a confidence level of 95% that no more than 0.5% of the plant exceeded the acceptable hemp THC level of 0.03%.

Public comment suggested that, due to logistical and financial concerns, it would be detrimental to production to only focus on the buds. Input suggested more of the plant should be allowed for sampling – stalk, leaf and bud – particularly with cannabinoid crops.

While maintaining the flexibility of performance-based approaches allowed to the states and tribes, the USDA decided to stick with bud sampling as the most effective and efficient way of gathering THC data.

Still, the tolerance level was raised to no more than 1% and considered the testing capacities of the labs in their final decision. People watching this issue can most likely expect more comprehensive sampling regulations in the future, especially regarding cannabinoid production.

Disposal of non-compliant plants

Another reality acknowledged by the USDA was the limitation of federal and local police enforcement and involvement in the disposal of hemp crops that test over THC limits. Currently, producers can dispose of non-compliant plants using common on-site farm practices, like “plowing under, composting into ‘green manure’ for use on the same land, tilling, disking, burial, or burning.”

This process still must be thoroughly documented and reported to the state or tribal regulating agency. But this aspect of the final rule removes a burden for law enforcement, as well as the farmer.

Tribal authority

Finally, the ruling granted primary authority to tribes to regulate hemp production on tribal lands, regardless if the hemp is grown by the tribe or others. Tribes report directly to the USDA and develop their own performance-based procedures rather than going through the states – unless they choose to.

At press time, Washington’s and Idaho’s official hemp websites haven’t been updated with the new rule, but a virtual hemp symposium conference hosted by the Oregon State University Global Hemp Innovation Center occurred in February to explore “what the industry has accomplished to-date and what lies ahead.”

To learn more For more information and updates about hemp production rules, visit www.ams.usda.gov/rules-regulations/hemp.