The USDA Announces Final Rule on U.S. Hemp Production

The U.S. Department of Agriculture released its Final Rule on Hemp Production on January 16th, 2021. Read the final rule here.

We are excited to see improvements in comparison to the Interim Final Rule, but as will always be the case, there is more work to be done to improve hemp industry guidelines for everyone. 

Stakeholders’ comments were taken into account to make several positive changes, including: 

• The testing window has been increased from 15 days to 30 days. This will give Tribes and state departments of agriculture two additional weeks to get lab results to growers.  
• Tribes and Ag Departments may use testing methods that vary from the USDA guidance as long as those procedures meet the standards in the final rule.  (Labs may use Liquid Chromatography, but will still need to report the THC-A levels.)
• Allows for remediation of crops that test above 0.3% THC to hopefully limit the destruction of crops.  
• Creates a 1% threshold for negligent violations. This means if a crop is less than 1% THC, the grower is not considered culpable. But states and Tribes may decide how they wish to handle repeat violations.   
• States and Tribes will have the freedom to develop their own sampling plan regarding how many plants per crop must be sampled.  
• Centers of research and higher education institutions will be able to sample crops using their own unique plan. They must be confident that 95% of their plants are below the 0.3% THC threshold.  

Here are some policies that didn’t change. These are policies that many stakeholders opposed.

• State testing of crops will require a sample to be taken from the top 5-8 inches of a flowering stem or cola.  Many stakeholders requested that sampling be relevant to the final product, like homogenized or using the full weight of the plant.  
• Labs will still have to register with the DEA, and meet the requirements set out by the DEA. However, labs have until Dec 31, 2022 to comply with those guidelines. 
• The new guidelines do not establish a standard measurement of uncertainty, so that can still vary from lab to lab.  

There is a lot of information to digest in this 300 page document, but for the most part, states will have some freedom to change their plans as they see fit. The USDA maintains it’s right to audit state plans, but overall we don’t think USDA will have too much regulating to do on the federal level. 

While we still have much work to do, bringing hemp to mainstream America is becoming more of a reality each day!