The United States Department of Agriculture (USDA) published its final rule regulating hemp production on January 15. The final rule includes some alterations to the interim final rule (IFR), which many in the hemp industry are celebrating.
The final rule includes requirements regarding licensing, recordkeeping, testing, disposal of noncompliant plants, and others. Three of the ways this rule differs from the IFR include an expanded harvest window, an increased standard of negligence, and additional options for disposing of or remediating hot hemp.
“The transition from prohibition to a legal and regulated system takes time, and USDA’s final rule is a historic step forward for hemp in the U.S.,” said Shawn Hauser in a press release. Hauser is a partner and chair of the Hemp and Cannabinoids Department at Vincente Sederberg LLP.
Under the final rule, hemp farmers will have more time to harvest their crop after THC testing. The final rule expanded the harvest window from 15 days to 30 days. This expanded window allows farmers more flexibility to cope with problems that may arise with weather, equipment, testing, or other challenges.
The legal THC limit for a hemp crop remains 0.3%, but the USDA increased the negligence limit from 0.5% to 1%. This means that if a crop tests above 0.3% but less than 1% the grower will not be liable for committing a negligent violation.
This change allows growers a greater margin for error. It is expected to prevent more growers from receiving violations that could lead to criminal drug charges.
The USDA’s final rule also ensures growers can only get one negligent violation per calendar year. This can help protect farmers who grow in more than one location from receiving multiple violations in one year and inadvertently triggering a five-year ban.
Under the final rule, hemp flowers that test above the 0.3% THC concentration must still be destroyed. However, growers can keep and sell other parts of the plant, which can help them minimize financial loss.
Also, farmers can destroy the non-compliant plants themselves by either burning them or plowing them under the soil. The IFR originally required the plants to be destroyed off-site by someone who is authorized to handle Schedule 1 substances, a regulation that was modified February 2020. The regulation included in the final rule matches the 2020 modification.
These three changes between the IFR and the final rule were based on public comments that followed the publication of the IFR in October 2019 and the lessons learned during the 2020 growing season, according to a USDA press release. The USDA reportedly received about 5,900 comments during this period.
“With the publication of this final rule, the 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.
“The expanded harvest window, alternative disposal/remediation authorizations, and increase of the standard of negligence to 1% will be critical to building a successful hemp industry, and they indicate the USDA gave meaningful consideration to stakeholder’s comments,” Hauser said.
The final rule is set to take effect on March 22 for states not operating under the 2014 Farm Bill production rules. The 2014 Farm Bill is set to sunset on Dec. 31, 2021. Hemp production programs still operating under these rules reportedly must comply with the final rule after the 2014 Farm Bill expires.