Part 2: US Department of Agriculture Publishes Interim Final Rule on Domestic Hemp Production


Part II

This article is the second in a three-part series discussing the United States Department of Agriculture's (USDA) Interim Final Rule on the establishment of a domestic hemp production program recently published in the Federal Register (Rule). Under the Rule, State or Tribal plans to regulate the production of hemp must include certain provisions.  One of those is a process for collecting relevant information concerning the land used for hemp production, including a legal description of the land and geospatial location for each field, greenhouse, or other site where hemp is produced.  This information must be maintained by the State or Tribe for at least three years. Additionally, licensed hemp producers must report their hemp crop acreage to the USDA Farm Service Agency.

State and Tribal plans must also incorporate procedures for sampling and testing hemp to ensure any cannabis grown and harvested does not exceed an acceptable THC level.   Plans must ensure that a representative sample of the hemp production is physically collected and delivered to a Drug Enforcement Agency (DEA)-registered laboratory for testing using approved testing methods. The Rule also requires a Federal, state, local, or Tribal law enforcement agency or other Federal, State or Tribal designated person to collect samples from the flower material from the plant for THC concentration level testing within fifteen days prior to the anticipated harvest of cannabis plants.  Plants that do not meet the "acceptable hemp THC level" (which includes accounting for the measurement of uncertainty in the test) must be disposed of in accordance with the Controlled Substances Act (CSA) and DEA regulations.

Plans must include compliance procedures to ensure hemp production in compliance with the Rule. This includes, at a minimum, annual inspections by random sampling of hemp producers to verify production in accordance with the Rule.  Plans must also include enforcement mechanisms for violations including procedures to identify and correct negligent acts, such as through the use of corrective action plans. If, however, the State or Tribal government determines that a violation was committed with a culpable mental state greater than negligence, the relevant authority must immediately report the producer to the Attorney General of the United States, the USDA, and the chief law enforcement officer of the State or Tribe.

In Part III we will review additional requirements of the Rule.

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