With the passage of the 2018 Farm Bill, the USDA ended several decades of regulations and restrictions on hemp that had been in place under the Controlled Substances Act. This bill, in effect, legalized the commercial production of hemp at a federal level and opened the doors for large scale operations on a scale that has never been seen. This is definitely progress for anyone conducting hemp and cannabis business but the pace in which the industry has grown over the last few years has often left regulators playing catch up and those affected by new rules confused and frustrated as things change or are left ambiguous and undefined.
The Farm Bill was the first step towards large scale legalization of commercial hemp by the US Federal Government but, as many states had already legalized hemp and cannabis growing on some level, confusion and changing regulations were inevitable. The terms of the Farm Bill in relation to hemp are pretty clearly defined. The confusion comes from how the Feds are going to enforce and actually put into place a system to regulate farmers, producers, and others who are already active with hemp cultivation or production.
Before looking at the specifics of these new regulations established by the USDA, a recent development has occurred in late February 2020 which effects the overall regulation of the items laid out by the Farm Bill. The USDA has acknowledged the limitations resulting from the bill being so new to an already somewhat established industry and is delaying the enforcement of its Interim Final Rule on the Domestic Hemp Production Program until October 31, 2021 or until a better ruling can be created and published, whichever comes first.
This delay is mainly due to the difficulties that came about with the THC testing of hemp crops at specific laboratories that were licensed with the DEA. Both state governments and hemp farmers had filed complaints to explain that there were simply not enough of these licensed facilities to keep up with the demand for testing in a quickly growing market. This testing was required to meet one of the main regulations of the Farm Bill stating that, “the term ‘hemp’ means the plant species of Cannabis sativa L. and any part of that plant, including seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, slats, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3percent on a dry weight basis.”
This is a key regulation to know of as anything higher than the 0.3% THC threshold is still considered “marijuana” by the Feds and subject to the regulations of a schedule I controlled substance and subject to all the rules and regulations enforced by the DEA as such. With many hemp farmers and producers doing all they can to meet the new regulations and get their businesses in compliance, this delay of the Interim Final Rule is much needed breathing room to get a better system in place for all parties involved.
Summary of USDA Hemp
In addition to the main definition of what actually defines industrial hemp, there are plenty of other rules and regulations laid out in the new Farm Bill. Note that these regulations have been established without a definite system in place for regulation and there may be some changes coming over the next year or so to better define the bill. Aside from the delay on testing as mentioned above, the USDA also delayed the rule requiring farmers to dispose of non-compliant plants by using law enforcement or DEA-registered collectors and will allow hemp growers to dispose of these plants on-farm. Sampling and testing requirements can be changed by the USDA but other elements of the bill can only be changed by Congress.
Here is a look at other rules established by the USDA concerning hemp:
- The first step towards becoming a compliant producer of hemp (for farmers, growers, etc.) is to become licensed under a state or tribal hemp program. State and tribal governments must submit a domestic production program for the USDA to review and approve. A federal plan is set to be established for states that do not have a USDA approved plan in place. Farmers cannot grow hemp in states that have not legalized hemp production. States and tribal governments must provide procedures in their hemp production plans including how to track where hemp is grown, THC testing, disposal of hot (non-compliant) plants, how to handle violations, requirements for inspection, and procedures to share information.
- Anyone with a felony related to a controlled substance on their record in the last 10 years will not qualify for a license to grow hemp. All key participants in a business entity applying for a hemp production license must complete a criminal history report but this felony rule does not apply to field workers or others involved in the operation who do not have direct or indirect financial interest.
- Land information must be submitted to the proper state, tribal, or federal regulatory agency and farmers who are approved for a hemp license must also report their hemp crop acreage. More information about proper reporting to the Farm Service Agency can be found here.
- States cannot prohibit interstate transport or shipment of hemp as long as it is produced under the state regulations from the state in which it was grown.
- Under the current Interim Final Rule, a sample of all hemp grown must be collected within 15 days prior to the date of anticipated harvest. A USDA approved agent or other law enforcement agent must collect these samples. These samples must be from the flower of the hemp plant. Here are the sampling guidelines as well as the testing for THC guidelines as laid out by USDA. Note the section above on recent developments to delaying this Interim Final Rule as there have been many complaints and confusion with the testing and sampling in regard to compliance.
- As it stands in the current IFR, testing of samples must be completed by a DEA registered laboratory. A licensed producer may request a retest of the sample if they believe any errors have occurred. A measurement of uncertainty is factored into the test results to allow for slight fluctuations above the 0.3% THC limit. This allows farmers to have results of up to 0.5% without being in violation of the regulations. They still must destroy the crop if it falls above 0.3% THC content, however.
- Producers who receive more than three negligent violations in a five year period will be no longer allowed to grow hemp or participate in the program.
- In order to import hemp seeds from Canada, they need to be accompanied by either a phytosanitary certification from the Canadian national plant protection organization or a Federal Seed Analysis Certificate. For importation from other countries if the seeds are accompanied by a phytosanitary certificate from that country’s national plant protection Organization.
Even with the delay of the Interim Final Rule, striving towards compliance should be of high importance for any hemp farmer or producer. By inching toward the regulations laid out by the USDA, even in their confusions and uncertainty, those involved in the industry can set themselves up for future success once the letter of the law is more thoroughly written, understood, and properly regulated. Below are some links to better explain some sections of the above regulations. While some of the testing and sampling requirements may change slightly with the October 31, 2021 deadline for finalization of the IFR, much will remain the same or close to it.