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USDA Publishes Final Rule for U.S. Domestic Hemp Production Program

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USDA Publishes Final Rule for U.S. Domestic Hemp Production Program

By Steven Hoffman

The U.S. Department of Agriculture (USDA) on January 15 announced the Final Rule regulating the production of hemp in the United States. According to the USDA, the Final Rule for the U.S. Hemp Production Program incorporates modifications to regulations established under the Interim Final Rule (IFR) published in October 2019. USDA said the modifications are based on public comments following the publication of the IFR and lessons learned during the 2020 growing season. The Final Rule is available for viewing in the Federal Register and will be effective on March 22, 2021.

According to USDA, key provisions of the Final Rule include licensing requirements; recordkeeping requirements for maintaining information about the land where hemp is produced; procedures for testing the THC concentration levels for hemp; procedures for disposing of non-compliant plants; compliance provisions; and procedures for handling violations.

“With the publication of this Final Rule, USDA brings to a close a full and transparent rule-making process that started with a hemp listening session in March 2019,” said USDA Marketing and Regulatory Programs Under Secretary Greg Ibach. “USDA staff have taken the information you have provided through three comment periods and from your experiences over a growing season to develop regulations that meet Congressional intent while providing a fair, consistent, science-based process for states, tribes and individual producers. USDA staff will continue to conduct education and outreach to help industry achieve compliance with the requirements,” he said.

USDA Received Nearly 6,000 Comments on Hemp Rule
According to the U.S. Hemp Roundtable, USDA received more than 5,900 comments urging the agency to improve the rule to protect hemp farmers from economic loss. Comments were submitted by various individuals and groups, including states and members of Congress, industry and agricultural organizations, private citizens, the scientific community, and various other individuals involved in the growing, processing, transporting, and marketing of hemp.

While it is still reviewing the 301-page document, the U.S. Hemp Roundtable said in a statement, “What’s clear is that the Final Rule is a significant improvement over the Interim Final Rule, particularly when it comes to providing more flexibility for farmers to avoid destruction of their crops due to unintended THC spikes. However, the rule is not perfect, as the USDA did not fulfill some of the industry’s key requests.

“We are very pleased by the responsiveness of USDA to many of our key concerns, and are hopeful that the Biden Administration will address some of the issues that remain unresolved by the USDA’s Final Rule,” Jonathan Miller, U.S. Hemp Roundtable’s General Counsel, told Let’s Talk Hemp. “Our initial meetings with the Biden USDA transition team have demonstrated that the new administration and incoming USDA Secretary-Designate Tom Vilsack want to be very supportive of the hemp industry.”

“Ultimately, given the hemp industry’s operational and practical concerns with the prior IFR, the Final Rule does positively address some of those concerns while retaining several practical impediments, as well. This means that the industry must press onward with their respective state authorities, as well as with the incoming Biden administration and incoming Secretary of Agriculture Vilsack, in further addressing the lingering issues that may continue to impede the hemp industry’s growth and development,” wrote attorneys Garrett Graff, Ashley Simpson and Darren Kaplan of the Hoban Law Group.

Asa Waldstein, founder of the Supplement Advisory Group and Chair of the American Herbal Products Association’s Cannabis Committee, expressed to NutraIngredients USA that the DEA registered lab requirement in USDA’s Final Rule is “puzzling.” He believes that using an ISO 17025 accredited lab should suffice. “Although there are some positive aspects, this rule does not go far enough to protect farmers and support the growth of the hemp industry,” he said.

The U.S. Hemp Roundtable summarized some of the changes it has identified, to date, from USDA’s previous IFR to the Final Rule:

  • The Final Rule still insists that only DEA-certified laboratories test material, but it delays enforcement of this provision until December 31, 2022.
  • The negligence standard has been increased from 0.5% THC to 1.0% THC, a helpful development to protect farmers’ economic interests.
  • The sampling window has been extended from 15 to 30 days of anticipated harvest, a welcome relief to help avoid bottlenecking in testing procedures.
  • Instead of rigid requirements for sampling being mandated from the federal level, the Final Rule establishes “performance-based” sampling requirements, giving states the flexibility to achieve performance objectives, such as a reliability of 95%.
  • The Final Rule continues to require pre-harvest samples to be taken from the flower material – not the whole plant as many requested — but it provides some relief by requiring the samples to be taken from 5 to 8 inches from the main stem, terminal bud, or central cola of the flowering top.
  • The USDA retains its requirement for testing total THC, instead of limiting the testing to delta-9 THC as requested by some in the industry.
  • The more flexible disposal options that the USDA proposed last year – including on-farm or at-production disposal flexibility – have been made permanent.

The Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill, directed USDA to issue regulations and guidance to implement a program for the commercial production of hemp in the U.S. The authority for hemp production provided in the 2014 Farm Bill was extended until Jan. 1, 2022, by the Continuing Appropriations Act, 2021, and Other Extensions Act (Pub. L. 116-260) (2021 Continuing Appropriations Act) allowing states and institutions of higher education to continue to grow or cultivate industrial hemp at certified and registered locations within the state for research and education purposes under the authorities of the 2014 Farm Bill.

More information about the provisions of the Final Rule is available on the Hemp Production web page on the Agricultural Marketing Service (AMS) website.

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Steven Hoffman is Managing Director of Compass Natural, providing brand marketing, PR, social media, and strategic business development services to natural, organic, sustainable and hemp/CBD products businesses. Compass Natural serves in PR and programming for NoCo Hemp Expo and  Southern Hemp Expo, and Hoffman serves as Editor of the weekly Let’s Talk Hemp Newsletter, published by We are for Better Alternatives. Contact steve@compassnaturalmarketing.com.

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