The USDA’s final rule regulating the domestic production of hemp in the U.S. was published at the beginning of 2021 and went into effect March 22, 2021.
This final rule builds on the October 2019 interim final rule that established the U.S. Domestic Hemp Production Program.
“With the publication of this final rule, 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 Undersecretary Greg Ibach. “USDA staff have taken the information you have provided through three comment periods and from your experiences over a growing season to develop regulations that meet Congressional intent while providing a fair, consistent, science-based process for states, tribes, and individual producers. USDA staff will continue to conduct education and outreach to help industry achieve compliance with the requirements.”
Here are six key provisions of the final rule:
1. TIMING OF SAMPLE COLLECTION
The new final rule extends the sample collection window to 30 days before harvest.
2. SAMPLING METHOD
In public comment periods, hemp industry stakeholders requested that samples be taken from a greater part of the plant, or the entire plant. It was also requested that a smaller number of plants be sampled. As a result, the final rule allows states and tribes to adopt a performance-based approach to sampling in their plans. State or tribe hemp plans must be submitted to USDA for approval. The plan may consider state seed certification programs, history of producer compliance, and other factors determined by the state or tribe.
3. NEGLIGENT VIOLATION
Farmers have to dispose of plants that exceed the acceptable hemp THC level. However, if the plant tests at or below the negligent threshold of 1.0%, the farmer will not have committed a negligent violation. The final rule doubled the negligence threshold from 0.5% and limits the maximum number of negligent violations that a producer can receive in a growing season to one.
4. DISPOSAL AND REMEDIATION OF NON-COMPLIANT PLANTS
The final rule allows for alternative disposal methods for non-compliant plants that do not require using a Drug Enforcement Administration (DEA) reverse distributor or law enforcement and expands the disposal and remediation measures available to producers. The Agriculture Marketing Service (AMS) will provide educational resources on acceptable remediation techniques.
5. TESTING USING DEA-REGISTERED LABORATORIES
There aren’t enough DEA-registered labs to test all the hemp that is expected to be grown in 2021. The DEA has agreed to extend the enforcement flexibility allowing non-DEA registered labs to test hemp until January 1, 2022, and is processing lab registration applications now to get more labs DEA-registered for hemp testing.
6. EXTENT OF TRIBAL REGULATORY AUTHORITY OVER THE TERRITORY OF THE INDIAN TRIBE
The interim final role did not specifically address whether a tribe with an approved USDA hemp plan could exercise primary regulatory authority over the production of hemp across all its territory or only on lands over which it has inherent jurisdiction. The final role 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.
Source: Successful Farming
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