Long Awaited USDA Hemp Production Rules Published

Oct 30, 2019 Washington, D.C.,

By: Jessica Wasserman, Partner

There Are Now National Minimum Standards for Hemp Production in the United States

The 2018 Farm Bill directed USDA to establish a national regulatory framework for hemp production in the United States. USDA established the U.S. Domestic Hemp Production Program through an interim final rule which was made available yesterday and will be published in the Federal Register on October 31. This rule outlines provisions for the USDA to approve plans submitted by States and Indian Tribes for the domestic production of hemp. It also establishes a Federal plan for producers in States or territories of Indian tribes that do not have their own USDA-approved plans.

Obtaining a Hemp License

USDA’s information directed to producers includes that to produce hemp, you first need to be licensed or authorized under a State hemp program, a Tribal hemp program, or the USDA hemp program. The program you are licensed under depends on the location of your hemp growing facility.

USDA also lays out clearly on its website the steps to obtaining a hemp license:

The first step is to reach out to your local State department of agriculture or tribal government to see if they have a production plan that has been submitted to or approved by USDA. To find the contact information for your State, please review the Grower Contacts for Hemp Information (pdf)
Status of Submitted Plans – This table summarizes the status of State and Tribal hemp production plans that are pending approval or have been approved.
If your State or Tribe has an approved plan or is in the process of developing a plan, you must apply to and be licensed or authorized under its hemp program.
If your State or Tribe does not have a pending or approved hemp production plan, you may apply for a USDA hemp production license. Applications to obtain a license to produce hemp under the USDA production program may not be submitted until November 30, 2019.
License applications under the USDA hemp production plan will not be acted until November 30, 2019. You cannot receive a hemp production license from a State, Tribe, or USDA, if you have been convicted of a felony related to a controlled substance in the last 10 years.
An FBI criminal history investigation (Identity History Summary) must accompany the USDA Hemp Program application.
- - State Hemp Program Contacts
  - FBI Criminal History Investigation (Identity History Summary)
  - Crop Acreage Reporting (pdf)

Sampling and Testing

The regulation is 161 pages in length and is accompanied by two separate guidance documents covering sampling and testing. Responding to industry requests for predictability and uniformity in testing, the regulation sets minimum standards for basic compliance with the requirement that hemp must be 0.3% or below THC by dry weight and clarifies that testing will take place 15 days before harvest; that delta 9 and decarboxylated THCA will be added together to reach the total THC measure; and that testing will be of the flower and leaves portion of the plant. USDA also provides a required lab report format.

DEA Role

DEA will continue to have a role in the hemp program. The regulation requires that testing be done by a DEA registered lab and that in the disposal of hemp above 0.3% must be accomplished under DEA guidance. All lab results are shared information with USDA, which will share information with DEA.

Industry Flexibility

The rule provides flexibility to the industry by:

Allowing farmers to designate a “lot”, as long as contiguous and not more than one variety. A “lot” is unit for testing and for what disposed if plant tests high. So, if small lot designated and tests high, can be traced to the lot, then only that lot must be disposed of.
Allowing labs to use uncertainty variance when testing for 0.3, as established by each lab.
Allowing safe harbor for negligent as .5% with no criminal record consequence.

The regulations go into effect upon publication with a comment period until the end of this year.

These are complicated new requirements with significant consequences for the hemp industry. Please contact Jessica Wasserman at 202-669-9449 if you have questions or would like assistance in filing comments on this regulation.

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