Notable Provisions From the USDA Final Rule for the U.S. Domestic Hemp Production Program

By Michelle Bodian

Jan 19, 2021

Last week, the USDA announced the first federal final agency regulation governing hemp production. The final rule is now available for viewing in the Federal Register and will become effective on March 22, 2021.

The industry may be disappointed with some problematic provisions that remained from the Interim Final Rule (IFR); however, with any new industry emerging from decades-long prohibition, change happens slowly. The final rule does contain many improvements from the IFR.

While it will take time to digest the content and fully appreciate the implications, we want to highlight a few notable provisions.

Notable Provisions from the USDA Final Rule 

DEA Registration for Testing Laboratories Required for All Labs Testing Hemp (Even Unofficial Samples Throughout the Growing Season)

  • This requirement remains in the final rule

  • Given the limited number of DEA-registered labs currently, enforcement of this requirement will continue to be delayed until December 31, 2022

  • AMS acknowledged it received comments in opposition to this requirement, but it retains the requirement that any lab testing hemp for regulatory compliance purposes must be registered with the DEA to conduct chemical analysis of controlled substances per 21 CFR 1301.13

  • DEA registration also applies to any lab testing hemp throughout the growing season to informally monitor THC concentration

  • AMS justifies this requirement by saying: “Registration is necessary because laboratories could potentially handle cannabis that tests above 0.3 percent THC on a dry weight basis, which is, by definition, marijuana and a Schedule 1 controlled substance

Laboratory Accreditation Not Required 

  • AMS will not provide an AMS administered lab approval program or require ISO 17025 accreditation

Testing for Total THC Required

  • AMS will retain the requirement test for “total” THC instead of only “delta-9” THC

Harvest Window Expanded

  • AMS is expanding the post-sampling hemp harvest window from 15 days to 30 days

Performance-based Sampling Permitted

  • USDA will allow States and Indian Tribes to consider performance-based alternatives when developing sampling plans

Where to Take Samples from the Plant

  • AMS retains the requirement that pre-harvest samples be taken from the flower material of hemp plants

  • The final rule clarifies the number of inches of plant material needed for the sample and provides greater detail as to where exactly on the plant to make a cutting

Designated Sampling Agents

  • AMS is retaining the requirement that only designated agents can collect samples

  • A Federal, State, Local, or Tribal law enforcement agency or other Federal, State, or Tribal designated person may collect hemp samples to test THC levels in hemp

Disposal of Non-compliant Plants Still Required, but With More Flexible Options 

  • The disposal requirements remain the same, but “disposal” is clarified and remediation is an option to remove non-compliant plants

  • Some of these new options for disposal include, but are not limited to, plowing under, composting into “green manure” for use on the same land, tilling, disking, burial, or burning

  • Remediation can occur by removing and destroying flower material while retaining stalk, stems, leaf material, and seeds, or by shredding the entire plant into a biomass-like material, then re-testing the shredded biomass material for compliance

Negligence Standard Increased to 1%

  • The negligence threshold increased from 0.5 to 1.0 percent THC

  • The rule clarifies how States and Indian Tribes determine when to suspend or revoke a producer’s license

Read this press release for a statement from VS Hemp & Cannabinoids Department Chair Shawn Hauser.

Please reach out to a member of our hemp team to discuss the USDA Final Rule and stay tuned for further updates.


The content and links provided on this page are for informational purposes only and not for the purpose of providing legal or tax advice. Viewing this page does not establish an attorney-client relationship. You should consult with a qualified legal professional for advice regarding any particular issue or problem. The contents of this page may be considered attorney advertising under certain rules of professional conduct.