USDA publishes final rule on industrial hemp production

By Julie Tomascik 

The U.S. Department of Agriculture (USDA) completed its review of the final rule establishing the U.S. Domestic Hemp Production Program.

Two years after the 2018 Farm Bill legalized the cultivation of industrial hemp, the final rule goes into effect today, March 22.

When hemp was removed from the list of controlled substances, interest in the crop grew in Texas and across the country.

“Here in Texas, we’ve been in the hemp business for almost a year, and we’re busy building the Texas ‘hempire.’ We’ve issued over 1,150 producer licenses, permitted over 5,000 acres of hemp in the ground and over 15 million square feet of hemp in greenhouses,” Texas Agriculture Commissioner Sid Miller said. “I still believe hemp offers Texas farmers a great opportunity, and I look forward to continuing to improve our program here in the Lone Star State.”

USDA outlined key provisions in the final rule, including how to handle non-compliant plants, testing and timing of sample collection. The rule takes into account public comments and industry comments, including those submitted by Texas Farm Bureau and the American Farm Bureau Federation.

The final rule gives states and tribes the flexibility to adopt a performance-based approach to sampling in the plan submitted to USDA for approval. Texas’ industrial hemp plan was approved in January 2020.

The THC sampling timeframe prior to harvest was extended to 30 days to ease the burden that hemp farmers faced from the originally proposed 15-day timeframe.

Under the original rule, USDA required testing to be completed by an approved Drug Enforcement Administration (DEA)-registered laboratory using reliable methodology for testing the THC level. But with so few labs available and a growing bottleneck in testing, USDA delayed this requirement.

According to AMS data, there are only 8 DEA labs in Texas.

Since the testing backlog remains, USDA extended the delay in DEA-approved labs through Dec. 31, 2022.

The final rule also sets a higher negligence threshold for producers at 1 percent THC and limits the maximum number of negligent violations a farmer can receive in a growing season to one.

If a farmer receives more than three negligent violations in a five-year period, they will be ineligible to participate in the program for five years.

The final rule also outlines easier guidelines to dispose of hot plants. New approved disposal methods include plowing the crop under, mulching, composting, disking, mowing, burning and buying at a depth of at least 12 inches.

These methods are more economical and preferred by farmers over the stricter requirements of the DEA or another entity authorized to handle marijuana under the Controlled Substances Act to dictate the process for disposal that were outlined in the previous rule.

“The final hemp program rule includes several improvements that Farm Bureau and many Texas farmers requested during the comment periods. The longer window of time between crop testing and harvesting, better sampling methods and a higher threshold for negligent violations are among the beneficial changes,” Brant Wilbourn, Texas Farm Bureau associate director of Commodity and Regulatory Activities, said. “As Texas farmers continue to evaluate their crop options and markets for additional commodities, hemp could be an option, and this final rule helps provide some certainty to farmers.”

USDA staff will continue to conduct education and outreach to help the industry achieve compliance with the requirements.

The final hemp rule was published in the Federal Register.

Texas A&M AgriLife also created a series of short video presentations to address the major issues facing Texas hemp farmers, including the basics of hemp production. Other video topics include key legal issues, as well as crop insurance, budgets for various products and a price outlook and overview.

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