On January 15, 2021, the U.S. Department of Agriculture (the “USDA”) issued its final rule regulating the production of industrial hemp under the Agriculture Improvement Act of 2018. The final rule will become effective March 22, 2021. Here are some highlights:

  • Harvest window. Producers now have 30 days, up from 15, after collecting samples to harvest a crop.
  • Sampling Method. States and Indian tribes may now implement “performance-based” sampling and are required to submit their “performance-based” plans to the USDA for approval to ensure that, at a confidence level of 95%, no more than 1% of the plants in a lot will exceed the “acceptable hemp THC level.” Hemp that is produced for research is not subject to the same sampling requirements so long as the producer adopts and follows an alternative sampling method that has the potential to ensure that the plant will not test above the acceptable THC level.
  • Location of Samples. The final rule provides greater flexibility for producers by modifying the sampling requirements to approximately five to eight inches from the “main stem” (that includes the leaves and flowers), “terminal bud” (that occurs at the end of a stem), or “central cola” (cut stem that could develop into a bud) of the flowering top of the plant.
  • Disposal and Remediation of Hot Hemp. Producers no longer need to use a DEA-registered reverse distributor or duly authorized law enforcement officer to dispose of non-compliant plants, commonly referred to as “hot” hemp. The final rule incorporates additional disposal methods including plowing under non-compliant plants, composting into “green manure” for use on the same land, tilling, disking, burial, or burning the crop. Producers may dispose of the plants using one or more of the means explained by the Agricultural Marketing Service of the USDA.
  • Negligent Violations. The final rule increases the negligence threshold from 0.5% to 1% THC and clarifies how states and tribes must determine when to suspend or revoke a producer’s license. Producers do not commit a negligent violation if they produce plants that exceed the “acceptable hemp THC level” and use “reasonable efforts” to grow hemp, and the plant does not have a THC concentration of more than 1% on a dry weight basis. Producers are limited to no more than one violation per calendar year.
  • State and tribal plans. A USDA-approved state or tribal plan will remain in effect, unless approval is revoked by USDA, or unless the state or tribe makes substantive revisions to its plan or its laws that alter the way the plan meets the requirements of the final rule. Further, states and tribes might be required to amend plans that the USDA approved prior to the Final Rule if the plan does not comport with the Final Rule.
  • Applicability of 2014 Farm Bill. State programs that continued under the 2014 Farm Bill will expire on January 1, 2022.

The USDA maintains jurisdiction over hemp farming activities only. Other federal agencies such as the DEA and FDA, and individual states continue to make rules and pass laws concerning the processing and extraction of hemp, and the treatment of hemp products. If you have questions about the Final Rule or any other issue concerning hemp, please contact Dan Garfield at 720-722-0048.