The latest from Cape Law Firm –
Hemp producers got a bit of welcome news this week with USDA’s release of its Final Rule for domestic hemp production. The interim final rule in effect for the 2020 growing season highlighted a number of challenges for the new crop, prompting USDA to re-open public comment on the rule. Some of the key updates include:
- Expanding the window for crop sampling from 15 days up to 30 days before harvest.
- Increasing the safe harbor for negligent production of “hot” hemp from 0.5% up to 1.0% THC.
- More flexible options for disposal of “hot” hemp, including common farming practices such as plowing under, mulching, burning, or shredding the crop with a mower.
- Providing options to remediate “hot” hemp by disposing of flower material and keeping the remaining biomass, or by blending the entire plant with other biomass materials.
- Sampling for total THC was clarified in several respects, and allows the development of “performance-based” sampling designed to achieve the desired results.
While many comments urged an increase in allowable THC content above 0.3%, the USDA doesn’t have the authority to change THC levels because it was written into law by Congress. Thus, modifying the THC levels for hemp will literally take an Act of Congress.
The Final Rule is full of commentary and analysis from USDA which we will be exploring in future newsletters.
USDA’s Rule revisions for PVP protection of asexually reproduced plants
Last summer the USDA completed the regulatory revisions needed to start protecting new varieties of asexaully reproduced plants (i.e., by cuttings, grafting, tissue culture) under the Plant Variety Protection Act (for example, berries, tree fruits, etc.). The 2018 Farm Bill added asexually reproduced plants for protection under the PVPA and the new regulations now open up protection for these new varieties.
- The regulations have added the term “propagating material” so that it is encompassed within the protections previously directed to seed.
- The requirement for depositing propagating material as a condition to issuance of a PVP certificate is delayed until January 2023 to address challenges for making a viable deposit with some asexaully reproduced plants.
- USDA also confirmed that the deposits of propagating material are not publicly available until PVP protection expires. After expiration, the material is freely available to the public.