This is not a substitute for legal advice. Editor’s note: Since publishing this article, the final hemp rule has gone into effect with no revisions from what is discussed in the article.
On January 15, 2021, USDA’s Agricultural Marketing Service (AMS) published the final hemp rule for Hemp Domestic Production. The final rule will make changes related to sampling for testing, including expanding the days before harvest and how the testing must take place; testing done by a non-Drug Enforcement Agency (DEA) registered lab till December 31, 2022; changes to what will be considered a negligent violation; changes to requirements related to the destruction of a hot crop; and allowances to remediate a crop testing over the 0.3 percent THC threshold.
Although this final rule was scheduled to go into effect on March 22, 2021, it is currently on under review by the Biden administration. We will not know what will happen to the final rule until the review is completed.
In 2019, USDA AMS published the interim final Hemp Rule (interim rule) to begin implementing the U.S. domestic hemp production program under the 2018 Farm Bill. Looking at the final rule, several things remain consistent with the interim rule. The final rule leaves the requirement to measure total THC, which is the measurement of both THC and THCA.
The acceptable level of THC will remain at 0.3 percent. Comments had pointed out that allowing up to 1 percent of THC would still be safe, but such a change would require Congressional action. In the last Congress, Senator Rand Paul introduced legislation to increase the THC levels to 1 percent but was not passed. Senator Paul has not reintroduced this legislation with the start of the new Congress.
The final rule will change the sampling window before harvest from 15 days to 30 days. Commenters had pointed out the confusion that the 15-day window would create and the issues it may cause for growers. AMS agreed to provide additional flexibility by allowing the extra 15 days before harvest to test a crop.
AMS is also changing where samples must be collected from approximately “five to eight inches in length from the main stem (which includes the leaves and flowers), ‘’terminal bud’’ (which occurs at the end of a stem), or ‘’central cola’’ (a cut stem that could develop into a bud) of the flowering top of the plant” (Final Hemp Rule, §990.3(ii) and §990.24(b)). AMS moved away from the interim rule’s requirements to take samples from the top ⅓ of the plant.
AMS will also allow states and tribes to develop a performance-based method of testing to allow for more flexibility. The performance-based method must ensure a confidence level of 95 percent that the hemp will not test beyond the 0.3 percent THC level. States or tribal governments can use the performance-based method with a seed certification process or process identifying varieties with consistently compliant hemp plants in that state or tribal territory. The performance-based method will also be acceptable for hemp grown for research purposes and a producer who has consistently produced compliant hemp over a long period of time.
The interim rule required samples to be tested in a DEA-registered laboratory to determine the THC level. AMS suspended this requirement for the 2020 growing season. The final rule will not require samples to be tested in a DEA-registered laboratory until December 31, 2022. As of January 2020, there were only 44 DEA-registered laboratories in 22 different states. This delay in requiring a DEA-registered laboratory is intended to allow more laboratories to register and ease growers’ concerns of potential delays.
What is considered a negligent violation also increases under the final rule. Under the interim rule, a crop testing at 0.5 percent or higher would be considered a negligent violation. The final rule will increase this to 1 percent THC. As long the grower uses reasonable farming practices but grows hemp testing over 0.3 percent, but below 1 percent, it will not be a negligent violation unless the concentration of THC is over 1 percent. A grower with three negligent violations in a five-year period will be ineligible from growing hemp starting with the third negligent violation date. If a grower has multiple fields testing above 1 percent THC, this will only be considered one violation for that year.
The final rule is less strict about destroying a crop testing over 0.3 percent THC. Under the interim final rule, the destruction of marijuana required to destroy the hemp could only be carried out by the DEA or another authorized entity. Under the final rule, growers will use a list of approved methods to destroy hemp testing over 0.3 percent THC, found providing hemp growers, states, and tribal governments greater flexibility to destroy hemp.
The final rule provides the opportunity to remediate a hemp crop testing over 0.3 percent THC to make the crop compliant. Remediation under the final rule can be accomplished by removing and destroying flower material while retaining stalk, stems, leaf material, and seeds. Remediation can also happen by shredding the entire plant into a biomass-like material, then re-testing the shredded biomass material for compliance. AMS agreed with commenters on the interim rule of the need for remediation to be included; AMS remediation guidelines may be found.
This final rule, one of many rules issued in the last days of the Trump administration, is currently being reviewed by the new Biden administration. As of writing this, the rule is delayed 60 days from going into effect. Maryland and other states will be updating state plans to conform to the final regulation once it goes into effect.
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