The Hemp Final Rule–published on January 19, 2021–superseded the Interim Final Rule that established The Domestic Hemp Production Program that was mandated as part of the 2018 Farm Bill. The Final Rule covers the regulations the USDA will follow when it approves the hemp production plans submitted by States and Indian tribes and establishes a Federal plan for growers in states that do not submit their own hemp production plans.
The Final Rule includes directives for:
- 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.
Additionally, the authority for hemp production provided in the 2014 Farm Bill was extended until January 1, 2022 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.
Key differences between the Interim Final Rule (abbreviated IFR) and Final Rule include:
- Negligent violations threshold – producers must dispose of plants that exceed the acceptable hemp THC level. The final rule raises the negligence threshold from .5 percent to 1 percent and limits the maximum number of negligent violations that a producer can receive in a growing season (calendar year) to one.
- Disposal and remediation of non-compliant plants – the final rule allows for alternative on-site disposal methods for non-compliant plants that do not require using a DEA reverse distributor or law enforcement and expands the disposal and remediation measures available to producers. The new measures available include:
- Plowing under (Green manure)
- Bush Mowing/Chopping
- Deep Burial (fields are trenched and biomass is buried beneath soil to a depth of at least 12 inches)
- Burning (not a compliant method under the organic regulations).
- Testing using DEA-registered laboratories – there are an insufficient number of DEA-registered laboratories to test all the anticipated hemp that will be produced in 2020 and possibly 2021. DEA has agreed to extend the enforcement flexibility allowing non-DEA registered labs to test hemp until January 1, 2022. The DEA is processing lab registration applications quickly to get more labs testing hemp DEA-registered.
- All laboratories engaged in the testing of hemp through this interim period are subject to the same compliance requirements of the Interim Final Rule. Specifically, labs must adhere to the standards of performance as outlined within the IFR, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods. All labs will have to make arrangements to be compliant with registration requirements before this period of delayed enforcement expires. The DEA will evaluate all applications using the criteria required by the Controlled Substances Act (21 U.S.C. § 823(f)).
- Timing of sample collection – the IFR stated a 15-day window to collect samples before harvest. The Final Rule extends this requirement to 30 days before harvest.
- Sampling method – stakeholders requested that samples may be taken from a greater part of the plant or the entire plant. They also requested sampling from a smaller number of plants. The Final Rule allow states and tribes to adopt a performance-based approach to sampling in their plans. The plan must be submitted to USDA for approval. It may take into consideration state seed certification programs, history of producer compliance and other factors determined by the State or Tribe. Sampling Facts:
- In 2020, there were 6,166 acres planted to hemp under the various state and Indian tribe programs approved under the 2018 Farm Bill. Seven hundred and thirty of those acres were subject to disposal/destruction following sampling under the rules of those plans.
- Extent of Tribal Regulatory Authority over the Territory of the Indian Tribe – the IFR did not specifically address whether a tribe with an approved USDA plan could exercise primary regulatory authority over the production of hemp across all its territory or only lands over which it has inherent jurisdiction. The final rule provides that a tribe may exercise jurisdiction and therefore regulatory authority over the production of hemp throughout its territory regardless of the extent of its inherent regulatory authority. This is significant in cases where certain Indian Tribes have decided not to allow hemp production inside their territory.