January 13, 2021
USDA “is in the final stages of rulemaking” for the domestic production of hemp, an agency spokesperson said Tuesday.
A final rule would supplant an interim final rule (IFR) adopted in 2019 that drew myriad concerns from the hemp industry and other stakeholders.
The IFR outlined provisions for USDA to approve plans submitted by states and Indian tribes for domestic hemp production. It also established a federal plan for producers in states or territories of Indian tribes that do not have their own USDA-approved plan.
“It is USDA’s intention to have the [final] rule in effect to accommodate the 2021 planting season,” an agency spokesperson told Natural Products Insider in an emailed statement.
On Nov. 30, USDA sent a final rule to the White House’s Office of Management and Budget (OMB) for its review. OMB records suggest regulatory review was concluded Jan. 12.
“It is my understanding that the rule has, after months, made it through the OMB-led inter agency review, and is in line at the Federal Register for publication in the next several days," Jessica Wasserman, an attorney in the nation's capital with experience in politics, lobbying and regulatory advocacy, said in an email.
In September, USDA reopened the comment period to the IFR, which, according to industry stakeholders, had ample room for improvement. Among the concerns expressed, as highlighted by the American Herbal Products Association (AHPA) in written comments to USDA:
The requirement to test hemp for THC content within 15 days prior to harvest provides insufficient time to reliably complete THC compliance testing and harvest activities.
Analytical laboratories should not be required to be DEA-registered to perform THC compliance testing.
Law enforcement should not perform sampling of hemp plant material for pre-harvest testing.
The provision regarding interstate transportation of hemp should specify the controlling THC test result to avoid legal disputes.
Acceptable disposal of noncompliant plant material should include other methods besides crop destruction.
Setting the negligence threshold at 0.5% THC does not provide sufficient protection for hemp producers.
In an interview last week, Geoff Whaling of the National Hemp Association said he anticipated the final rule would be published in the coming days before the inauguration of President-elect Joe Biden.
While industry doesn’t know precisely what’s in the final rule, Whaling said he believed USDA has “listened” to feedback from stakeholders regarding the IFR.
Wasserman noted members of Congress from both parties wrote to USDA on issues related to the IFR.
“I’m optimistic that they [USDA officials] have added some flexibility into the program implementation," said Wasserman, a partner with WassermanRowe, a trade law and consulting firm, in a brief interview Wednesday.
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