USDA Issues Interim Final Rule for Hemp Production

On October 31, the United States Department of Agriculture (USDA) published for public comment an interim final rule (“the rule”) to establish the rules and regulations to produce hemp. This action was mandated by the Agriculture Improvement Act of 2018 (Farm Bill). The rule outlines provisions for USDA to approve plans submitted by states and Indian tribes for the domestic production of hemp, including USDA approval for states that opt out of establishing production rules.

The rule defines the term “hemp” to mean the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof. It also states, that since USDA regulates the importation of all seeds, hemp seeds can be imported into the U.S. under standard phytosanitary regulatory requirements for seed. USDA did not include a requirement for the use of AOSCA Certified seed. The rule states that “the technology necessary to determine seed planting results in different locations is not advanced enough at this time to make a seed-certification scheme feasible. Additionally, we do not have accurate data at this time on the origin of most hemp seed planted in the U.S.”

The balance of the 161-page regulation focused on THC inspections, sampling and testing, and any actions required in those instances if the plant tests over 0.3-percent THC. It specifies that planting locations must be registered under state programs, although not necessarily made available to the general public.

The comment period ends December 31, with the final rule reported out within two years. However, the interim rule will be effective after the comment period ends and until the final rule is adopted. This will allow state plans to be submitted for approval in time for hemp production after January 1, 2020, if the state plans are submitted and approved by USDA expeditiously.