Changes In USDA’s Final Hemp Rules (Released January 15, 2021)
Friday morning, the USDA issued the Final Rule establishing a hemp production program as required by the 2018 Farm Bill. The Final Rule contains several key changes compared to the Interim Final Rule (IFR) from October 2019. Many of these changes are in direct response to the public comments we submitted and the comments of thousands of others.
Hemp growers now have 30 days to harvest their hemp after samples are collected.
Under the IFR, producers had to harvest their crops within 15 days of the date when samples were collected to determine whether the crop had a complaint delta-9 THC concentration. In our original comments, we expressed concern over this 15-day limit because we believed it was simply too short a time frame. Specifically, we noted that “this time limit is unrealistic and incredibly onerous. Harvesting hemp requires substantial manual labor and even with around-the-clock work, most farmers would not meet this deadline.”
In consideration of these issues, the Final Rule extends the harvest window to 30 days after sample collection rather than 15. This will give farmers a more realistic window within which to complete their harvest and reduce the number of unnecessary re-tests of harvested crops.
Producers are no longer required to immediately dispose of or destroy non-compliant hemp and may remediate instead.
The IFR required hemp producers whose pre-harvest samples tested over the federal THC concentration threshold to dispose of their crops according to DEA and Controlled Substance Act regulations. In our comments, we proposed that rather than destruction, hemp producers should be allowed to remediate their crops either by removing the THC or by diverting them to the fiber market.
In the Final Rule, the USDA notes that “AMS [Agricultural Marketing Service] believes it important and necessary that hemp growers be provided the opportunity to remediate THC from non-compliant crops in order to stave off financial risk associated with the loss of investment in their hemp crop.” The Final Rule permits producers to remediate non-compliant hemp by either
Removing and destroying flower material only, but retaining the rest of the plant (the stalk, stems, leaf material, and seeds); or
Shredding the entire plant into biomass and re-testing the remediated material.
The threshold for negligent violations is raised to 1.0% THC concentration, up from 0.5%.
Under the original USDA hemp rules, producers commit a negligent violation if their crops test over 0.5% THC. One of the biggest concerns in our comments was that this would result in far too many negligent violations despite farmers’ best and reasonable efforts to stay within the threshold. In response to these concerns, the Final Rule raises the threshold for negligent violations to 1.0%.
Other Important Changes
Some of the other important changes in the Final Rule include
A definition for “Total THC” to put the post-decarboxylation testing requirements better into context;
Additions to the definition for “Lot” to include “farms, tracts, fields, and subfields” as those terms are used elsewhere in federal regulations;
Allowing state or Tribal plans to choose to adopt “performance-based” sampling methods that consider the consistent compliance of the producer, among some other requirements. (§ 990.3(a)(2)(iii)); and
Delaying DEA registration for labs until December 31, 2022.
Overall, these changes in the Final Rule are a big win for the industry. We’d like to commend the USDA for actively engaging with commenters and taking public feedback into consideration.