USDA Publishes Final Rule Regulating Hemp Production

The U.S. Department of Agriculture (USDA) has issued the final rule regulating the production of hemp in the United States. The final rule incorporates modifications to regulations established under the interim final rule (IFR) published in October 2019. The modifications are based on public comments following the publication of the IFR and lessons learned during the 2020 growing season. The final rule is available for viewing in the Federal Register and will be effective on March 22, 2021.

“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 Under Secretary 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.”

Key provisions of the final rule include licensing requirements; recordkeeping requirements for maintaining information about the land where hemp is produced; procedures for testing the THC concentration levels for hemp; procedures for disposing of non-compliant plants; compliance provisions; and procedures for handling violations.

Background:

On Oct. 31, 2019, USDA published the IFR that provided specific details on the process and criteria for review of plans USDA receives from states and Indian tribes regarding the production of hemp and established a plan to monitor and regulate the production of hemp in those states or Indian tribes that do not have an approved state or Tribal plan.

The IFR was effective immediately after publication in the Federal Register and provided a 60-day public comment period. On Dec. 17, 2019, USDA extended the comment period until Jan. 29, 2020, to allow stakeholders additional time to provide feedback. USDA re-opened the comment period for 30 days, from Sept. 8 to Oct. 8, 2020 seeking additional comments from all stakeholders, especially those who were subject to the regulatory requirements of the IFR during the 2020 production cycle. In all, USDA received about 5,900 comments.

On Feb. 27, 2020, USDA announced the delay of enforcement of the requirement for labs to be registered by the Drug Enforcement Administration (DEA) and the requirement that producers use a DEA-registered reverse distributor or law enforcement to dispose of non-compliant plants under certain circumstances until Oct. 31, 2021, or the final rule is published, whichever comes first. This delay has been further extended in the final rule to December 2022.

The Agriculture Improvement Act of 2018 (2018 Farm Bill) directed USDA to issue regulations and guidance to implement a program for the commercial production of hemp in the United States. The authority for hemp production provided in the 2014 Farm Bill was extended until January 1, 2022, by the Continuing Appropriations Act, 2021, and Other Extensions Act (Pub. L. 116-260) (2021 Continuing Appropriations Act) allowing states and institutions of higher education to continue to grow or cultivate industrial hemp at certified and registered locations within the state for research and education purposes under the authorities of the 2014 Farm Bill.

More information about the provisions of the final rule is available on the Hemp Production web page on the Agricultural Marketing Service (AMS) website.