On January 15, 2021, the U.S. Department of Agriculture (USDA) announced the publication of its hemp production Final Rule in the Federal Register. The Final Rule will go into effect on March 22, 2021. The Final Rule largely builds upon the Interim Final Rule which was in effect for the 2020 hemp growing season. It also takes into account feedback from three public comment periods. Below are six key takeaways from the Final Rule:
- Expanding The Timeframe For Harvest Post-Sampling
Under the Interim Final Rule, hemp was to be harvested within 15 calendar days of sampling. This short time period was viewed as unworkable by the industry. USDA took heed of the many comments requesting a broader window for harvest and expanded the time period to 30 calendar days.
- Sampling
During the comment period, industry pushed for pre-harvest samples to be taken from the whole plant. However USDA kept the requirement that pre-harvest sampling come from the plant's flowers. The Final Rule does provide some clarification regarding cutting procedures which is seen as an improvement from the Interim Final Rule. According to USDA, the current cutting protocols are an effort to strike a balance between the need to collect sufficiently large portions of the plant's flower to obtain an accurate assessment and the need to avoid cutting too large a portion to transport, dry and test.
- THC Testing
USDA's Final Rule maintains the total THC limit - - which is the sum of the delta-9-THC and THC-acid content. The measurement of THC content has been a hot button issue for industry because the adopted testing method tends to increase the THC concentration in the sample. The final rule may also negatively impact hemp biodiversity because few hemp genetic strains comply with the total THC cap under the current testing method.
- Negligence Threshold Increased
Under the Interim Final Rule, the threshold for a "negligent" violation was 0.5%. That meant that if a plant tested 0.5% above the THC level threshold, the crop would be considered a violation and subject to disposal. Hemp producers were concerned that they would be forced to dispose of large portions of their crops due to the low threshold. USDA took these concerns into account and raised the negligence threshold to 1%, which provides growers with some breathing room. With that being said, the Final Rule strictly limits the number of negligent violations a grower may receive in a growing season to one.
- Laboratory Registration With DEA
The Final Rule keeps the requirement that all hemp testing laboratories be registered with the DEA. Many in the industry are disappointed that USDA chose to keep this requirement because (1) there is a shortage of DEA-registered labs and (2) it keeps DEA involved in a crop which has been decriminalized. USDA acknowledged that the shortage of labs would create a bottleneck in hemp testing and has worked with DEA to delay enforcement of this requirement until January 1, 2022. As for DEA's continued involvement in hemp, until marijuana is descheduled, it is unlikely that the industry will be free of DEA's oversight because "hot hemp" is a Schedule I substance.
- Disposal of Hot Hemp
The Final Rule provides alternative disposal methods that do not require the use of a DEA-registered reverse distributor or law enforcement. These methods include on-farm disposal options which were previously unavailable.
Many in the industry are hopeful that new leadership at USDA will be open to further feedback on the Final Rule and that the Biden administration will continue to support the development and growth of the hemp industry.
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