USDA Releases Interim Rules Regarding Industrial Hemp

Last Tuesday, the United States Department of Agriculture (USDA) released interim rules regarding how hemp can be grown, harvested, tested, processed, transported and sold. They also established the US Domestic Hemp Production Program which will oversee the regulation. This is something that farmers have desperately calling for as each state has differing and complex laws that initially came out of the Agricultural Improvement Act of 2018 that legalized hemp nationally.

The federal guidelines specifies that a State or Tribal hemp plan must be approved by the USDA. The plans will be reviewed on a first come, first serve basis and will be approved or rejected within a 60-day timeframe. It also establishes the USDA’s federal plan will be the law of the land unless a state, territory, or tribal land chooses to submit their own hemp plan. If a state, territory or tribal land does move forward with their own plan it must include reporting to the USDA, as well as, protocols for correcting negligent violations by hemp producers.

Image courtesy of Tweedle Farms

The federal guidelines should help lower the costs for farmers, both operational and compliance. It also opens up the door for USDA loan programs, disaster assistance, and crop insurance. Previous to this ruling, these programs were not available to the hemp farming community as banks and insurance companies avoided them due to the close relation of marijuana. This ruling will put hemp farmers on equal footing as other commodities which should lead to the burgeoning industry further expanding.

The ruling also contained clarification on what happens if industrial hemp is grown with too high of a concentration of THC. “…measurement of uncertainty: of plus or minus 0.06% on a dry weight basis; but to be considered hemp and not federally illegal cannabis, the 0.3% of THC must fall within that distribution.” Labs that test the hemp plants must be now registered with the Drug Enforcement Administration, and plants that exceed the allowed threshold must be physically destroyed by a DEA agent. A hemp farmer does not commit a negligent violation if he/she produces plants that do not have more than 0.5% THC on a dry weight basis. However, if over 0.5% THC that counts as a violation. If a farmer has three violations in a five year period, the grower will be prevented from growing in the future.

Additionally, the introduction of a couple of key clauses and phrases were initially puzzling to many farmers. Firstly, the idea of a “measurement of uncertainty.” This phrase is perhaps based explained in the following excerpt. Essentially, a measurement of uncertainty just provides a margin of error for lab testing.

The application of the measurement of uncertainty to the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis produces a distribution, or range. If 0.3% or less is within the distribution or range, then the sample will be considered to be hemp for the purpose of compliance with the requirements of State, Tribal, or USDA hemp plans.

For example, if a laboratory reports a result as 0.35% with a measurement of uncertainty of +/- 0.06, the distribution or range is 0.29% to 0.41%. Because 0.3% is within that distribution or range, the sample, and the lot it represents, is considered hemp for the purpose of compliance with the requirements of State, Tribal, or USDA hemp plans.

Draft of FR Establishment of a Domestic Hemp Production Program

The second perplexing portion of the proclamation comes in the phrase “delta-9 tetrahydrocannabinol”. Many farmers have long been confused on how their crops will be viewed in the eyes of the law when it comes to their THC concentration. There have been many a debate on whether or not Total THC levels should/are being used or whether or not delta-9 tetrahydrocannabinol, or delta-9 THC, is the correct measurement. The USDA does not exactly provide clarity on this matter and it remains largely open for debate.

While there are some great things this bill opens up for hemp farming, there are a handful of things that were not addressed:

  • Does not address CBD at all. As specified in the Farm Bill language, this will remain under the jurisdiction of the Food & Drug Administration (FDA)
  • Lack of established federal seed certification program
  • Lack of wiggle room on testing
  • Federal Banking Guidance was not detailed out
Official USDA Announcement Video

Finally, it is important to note that the testing and sampling are being provided as ‘guidance’ which may provide leeway for states in the 2020 growing season. They could continue to operate under the 2014 farm bill provisions until these guidelines are officially enforced or a specific state, territory or tribal land creates and passes legislation for their own hemp plan per USDA requirements.

– Hemp Crate Co

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