In December of 2018, the 2018 Farm Bill legalized the production of hemp in the U.S. Since then, U.S. hemp farmers have long awaited clarification and regulatory guidance on hemp production.
On October 29th, 2019, the United States Department of Agriculture (USDA) released the Interim Final Hemp Rule. The rule is 161 pages and consists of requirements for the USDA to approve domestic hemp production plans submitted by Indian Tribes and by states. The plan also outlines a federal plan for farmers in states or Indian Tribe territories that are without an USDA-approved plan. There are eight main provisions made in the USDA Rule.
Key Provisions of USDA Rule
1. Federal Preemption
This is a reconfirmation of what was proposed in the 2018 Farm Bill, the federal bill trumps state laws regarding interstate transport. States and Indian Tribe Territories cannot prohibit movement of hemp through these areas even if they prohibit production of hemp.
2. Seed Certification
A Federal Seed Certification Program will not be implemented. Instead, seed certification and registration will be left to the states to decide. The U.S. has several different regions with variations in climate, soil, topography, etc. and seed selection is therefore, region specific. It has been determined that it is unfeasible to have a national seed standard for this reason.
3. Licensed Hemp Farmers
Instead of having to partner with an institution of higher learning (this was a previous requirement removed by the 2018 Farm Bill), hemp farmers will be able to obtain a license from either the USDA or their state or Tribal licensing authority. Licensed hemp farmers can apply for loans, crop insurance, and products related to risk management that are already available to other farmers.
4. Negligence Standard
The USDA created a plan for farmers whose crops have not met hemp standards due to negligence. In these cases of negligence, farmers cannot be criminally prosecuted.
5. 15-day Testing Window
With this new provision, farmers must send their hemp product to their testing labs 15 days prior to harvest date. The USDA implemented this provision to avoid rising THC levels after 15 days. This is a seemingly tight window for many farmers, often due to lack of staff and/or unregulated timelines for analyzation and harvest of product.
6. Total THC Standard
The USDA is implementing a Total THC standard when testing THC levels from hemp. Total THC standard is defined as THC testing that not only accounts for delta-9 THC, but “potential” delta-9 THC as well. As of right now, hemp classification is still based on just delta-9 THC concentration of 0.3% or lower. However, with this provision, the 0.3% classification will also include concentration of THC that is generated or calculated (depending on testing method) from THC-A, otherwise known as “potential THC”. Given the genetic variations of hemp that are primarily cultivated, this would be an extremely difficult standard to meet.
7. DEA Licensed Labs
A significant amount of hemp farmers have a third party vendor for analyzing/testing their product. Under this rule, all testing labs are required to have a DEA classification license to test hemp, treating it as a class one drug. Unfortunately, a great many of these testing labs do not have a DEA license. This could slow down the industry significantly, as there would be less available labs. Testing would fall upon state, city, and local authorities, making levels of efficiency unclear.
8. Measurement of Uncertainty (MU)
Upon this rule, testing labs must use margin of error and the 0.3% standard (of THC) must be within the range to be valid. The testing labs must also provide this MU. The USDA’s primary goal with this provision is probably to raise acknowledgment that there is a margin of error to even the most accurate testing methods.
The USDA is accepting public comments on the Interim Final Hemp rule within the first 60 days of release. Citizens can submit public comments on the rule at the Interim Final Hemp rule public comments page on regulations.gov.