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USDA Approves Five New Hemp Programs, Changes Hemp Testing Rules

By Alexander Beadle

Published: Feb 28, 2020   
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The US Department of Agriculture (USDA) has announced the approval of five additional hemp production plans under the US Domestic Hemp Production Program. This brings the total number of approved hemp plans to eighteen – ten tribal, and eight state.

The USDA also announced changes to its hemp testing requirements; the agency is now moving to delay the enforcement of certain requirements included in its Interim Final Rule (IFR) on the Domestic Hemp Production Program.

This includes a requirement that would have mandated hemp testing to be done exclusively through laboratories registered with the Drug Enforcement Administration (DEA), and a further requirement that would have made it compulsory for producers to use a DEA-registered reverse distributor or law enforcement to dispose of ‘hot hemp’ plants that exceeded allowable tetrahydrocannabinol (THC) limits.

Two states and three tribes receive hemp plan approvals

On Thursday, February 20, the USDA announced the news that it had approved a further five hemp production plans.

Two of these approvals went to Washington and Wyoming, while the other three approved plans belong to the Otoe-Missouria Tribe, the Prairie Band Potawatomi Nation, and the Santee Sioux Nation.

As required under the 2018 Farm Bill, states and tribes must submit any hemp production plans to the USDA for their review and approval before industrial hemp production can begin, although the crop is no longer recognized as a federally controlled substance.

“The Agriculture Improvement Act of 2018 [2018 Farm Bill] directed USDA to develop a regulatory oversight program for hemp and include provisions for USDA to approve hemp production plans submitted by states and Indian tribes,” the department wrote in the notice announcing the latest approvals.

“State and tribal plans provide details on practices and procedures that enable hemp producers in their jurisdictions to operate according to their individual plans and in compliance with federal laws.”

USDA drops DEA hemp testing restriction

In the original testing guidelines developed by the USDA for use in the ITF on hemp production, the federal regulator would have required THC testing on hemp crops to be done in laboratories registered with the DEA.

The USDA says the delay in implementing this requirement reflects concerns raised by farmers and states over the relatively small number of DEA registered labs which would be required to serve this demand.

“The interim final rule requires that laboratory testing of hemp for the purpose of determining compliance under the US Domestic Hemp Product Program be conducted by laboratories appropriately registered with the Drug Enforcement Administration,” the USDA explained in a statement.

“Under this [new] guidance, the testing can be conducted by labs that are not yet DEA registered until the final rule is published, or Oct. 31, 2021, whichever comes first,” the agency clarified.

While the USDA recognizes the current lack of DEA registered labs, they expect states to work with their local laboratories to achieve this certification before the delayed regulation comes back into force.

Delay also announced for non-compliant plant disposal procedure

The second requirement to be pushed back would have meant that producers use a DEA-registered reverse distributor or go through law enforcement to dispose of plant material that fails THC testing.

Under US law, only plant material that contains under 0.3 percent by weight THC can be legally classed as hemp – anything more is considered drug-type cannabis and must be destroyed. This non-compliant material is also sometimes commonly referred to as ‘hot hemp’ within cannabis circles.

Now the USDA has released a list of acceptable on-farm practices that successfully render the hot hemp non-retrievable or non-ingestible. These vary from plowing the material under the soil surface – effectively turning the non-compliant plants into ‘green manure’ – to burning the crop in the field.

States and tribes with approved hemp production plans and groups operating under the standard USDA plan are still required to notify the USDA of any non-compliant crops that are grown and must provide monthly disposal records documenting the disposal of that plant material. Additionally, the USDA has said that it will conduct random audits of licensees to ensure that production is happening in accordance with the agency’s rules.

What’s next for American hemp?

The notice announcing the delay of enforcement for these provisions makes it clear that these changes are a direct result of conversations with states, as well as feedback gathered during the last public comment period on the USDA’s interim rules.

“We are delaying enforcement of these requirements based on comment received in response to the IFR and in discussions with states and tribes as they pursue USDA-approval of their plans,” the agency wrote.

“Through these conversations, we have learned that these provisions will serve as a significant hindrance to the growth of a domestic hemp market at this nascent stage. For instance, we now better understand how the limited number of DEA-registered labs will hinder testing and better understand the associated costs with disposing of product that contains over 0.3 percent THC could make entering the hemp market too risky.”

“…we also note that, while we consider these steps necessary at the moment, these policies may no longer be appropriate as we draft the final rule and will serve as a temporary measure to allow a smooth transition into regular enforcement.”

At the recent Industrial Hemp Summit in Virginia, the director of the USDA’s Domestic Hemp Production program, William Richmond, told farmers that the USDA plans to open another public comment period in the fall. This additional comment period will be geared towards gathering industry input and feedback on the running of the 2020 production season. 

Alexander Beadle

Science Writer

Alexander Beadle has been working as a freelance science writer since 2017 and has covered the cannabis industry for Analytical Cannabis since 2018. He has also written for our sister publication, Technology Networks, and the cannabis industry consultant firm Prohibition Partners, among others. Alexander holds a Master's in Materials Chemistry from the University of St. Andrews, where he won a Chemistry Purdie scholarship, and conducted research into zeolite crystal growth mechanisms and the action of single-molecule transistors.


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