Kentucky Agriculture Commissioner Quarles Praises New USDA Hemp Rule

Will submit new state plan to USDA for 2022 growing season

KENTUCKY: Kentucky Agriculture Commissioner Dr. Ryan Quarles applauded the U.S. Department of Agriculture’s (USDA) announcement that it will implement the final rule on hemp production developed under the Trump Administration.

“The final rule on hemp production is much improved over the interim final rule previously issued by USDA,” Commissioner Quarles said. “The improvements were the results of work conducted by the Kentucky Department of Agriculture and other state agencies to provide feedback to the USDA. I am grateful for all of the work done by the previous administration, including that of former Under Secretary of Agriculture Greg Ibach and his team, to have an open line of communication with state leaders.”

The 2018 Farm Bill defined hemp as the plant cannabis sativa with not more than 0.3 percent tetrahydrocannabinol (THC) measured on a dry weight basis and directed USDA to develop a regulatory framework for states to manage hemp programs. The final rule comes after state agencies, industry groups, and hemp growers across the nation provided feedback to USDA on the interim final rule. The final rule for hemp production was released Jan. 19, but the new Biden Administration paused implementation for a temporary review. With the review complete, the final rule will take effect March 22.

Commissioner Quarles sent two rounds of comments to the USDA about the interim final rule, highlighting potential sticking points with Kentucky’s current hemp program. USDA adjusted the rule to address nearly every concern raised by the Commissioner.

As noted in the Commissioner’s comments submitted in October 2020, one of the major concerns about the previous rule was that it would have eliminated a key feature of Kentucky’s hemp program, the ability of growers to remediate elevated THC content through a post-harvest retest. The post-harvest retest gives growers an opportunity to realize a financial return on their harvests by giving them a second chance to achieve a compliant THC test result. Under the final rule, remediation and a post-harvest retest is allowed.

Other successful policy changes included:

  • On-farm disposal of non-compliant hemp material;
  • New rules which standardize and simplify sampling procedures for the part of the plant to be tested for compliance; and
  • An increase in the “negligent” level of THC in the plant.

With these positive developments, Commissioner Quarles plans to submit a revised state plan to USDA for the 2022 growing season.

“I am encouraged by the progress USDA has made and have confidence in our ability to move into the federal framework as envisioned by the 2018 Farm Bill,” Commissioner Quarles said. “Additional challenges remain for the nation’s hemp industry, especially in light of the continued lack of action by the Food and Drug Administration. If this industry is to be successful, we need FDA to deliver clarity on hemp-derived cannabidiol products and their guidance cannot come soon enough.”

USDA Publishes Final Rule For The Domestic Production Of Hemp

DISTRICT OF COLUMBIA:  The U.S. Department of Agriculture (USDA) today announced 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.