USDA's Hemp Production Program Advances

On January 29, 2020, the comment period closed for the United States Department of Agriculture (USDA) interim final rule, published on October 31, 2019, to establish the Domestic Hemp Production Program. The comment period, which the USDA extended by 30 days, received over 4,000 comments from interested parties, including states, tribal governments, and hemp industry participants. Public comments questioned various facets of the rule, most notably the requirement that every hemp plot be sampled 15 days prior to the anticipated harvest, the creation of a "negligence threshold" for products that contain 0.5% delta-9 tetrahydrocannabinol (THC) or higher, and unclear guidelines for the destruction of non-compliant plants.1

Throughout the public comment period, the USDA approved hemp production plans on a rolling basis. States and tribal governments that did not receive approval were asked to amend their applications. Due to complexities and time constraints, some states, such as Wisconsin, Kentucky, and Minnesota, are expected to revise their hemp production plans but operate during the 2020 growing season under the pilot program established by authority in the 2014 Farm Bill.

The Domestic Hemp Production Program attempts to balance both the autonomy of the states and tribal governments with the necessity to create a federal framework for the regulation of hemp production. The interim final rule requires states and tribal governments to submit a hemp production plan for USDA approval, establishes sampling and testing protocols, legal protection for interstate commerce of hemp, licensing protocols, and eligibility rules for federal programs, such as loan and crop insurance programs. Additional analysis about the Interim Final Rule can be found here and the 2018 Farm Bill here.

USDA's table below2 summarizes the submission and approval status of state and tribal hemp production plans as of January 28, 2020. Thirteen tribal governments and states have approved plans.

Tribes Plan Status Cheyenne and Arapaho Tribe Under Review Colorado River Indian Tribes Approved Plan (pdf) Flandreau Santee Sioux Approved Plan (pdf) Fort Belknap Indian Community Approved Plan (pdf) Iowa Tribe of Kansas and Nebraska Approved Plan (pdf) La Jolla Band of Luiseno Indians Approved Plan (pdf) Navajo Nation San Juan River farm Pending Resubmission Oglala Sioux Tribe Under Review Otoe-Missouria Tribe Under Review Pawnee Nation of Oklahoma Under Review Prairie Band...