More than two years after President Donald Trump signed the 2018 Farm Bill into law, the US Department of Agriculture has released its final rule for the regulation of hemp.
The 2018 Farm Bill legalized cannabis plants containing .3% THC or less, also known as hemp. By then, hemp crops had sprouted across the US, as the 2014 Farm Bill allowed state departments of agriculture and institutions of higher education to grow hemp for research purposes under a pilot program.
When the Department published its interim final rule for the U.S. Domestic Hemp Production Program in October 2019, hemp advocates, regulators, and other industry stakeholders submitted comments to the USDA calling for changes. Nearly 6,000 comments came in.
USDA Marketing and Regulatory Programs Under Secretary Greg Ibach said, in a statement announcing the final rules, that the Department has listened.
“With the publication of this final rule, USDA brings to a close a full and transparent rule-making process that started with a hemp listening session in March 2019,” he said, adding that “USDA staff have taken the information you have provided through three comment periods and from your experiences over a growing season” in order to craft the regulations.
But while the final rule, set to go into effect in March, addresses some of the concerns raised during public comment, others remain.
Zach Gihorski, associate director for public policy for the National Association of State Departments of Agriculture (NASDA), told Cannabis Wire that the final rule “represents a great start in terms of providing a workable regulatory framework that supports the hemp industry” and that NASDA “was happy to see the increased negligence threshold, the expanded testing window, and the inclusion of options for remediation.”
However, Gihorski continued, “there is still work to be done” and NASDA “will continue to work diligently in supporting the growth and development of hemp.”
Larry Farnsworth, a spokesperson for the National Industrial Hemp Council (NIHC), told Cannabis Wire that he’s “glad” the USDA “listened to the concerns of the industry regarding sampling and testing,” but that he anticipates the rule will be frozen when President-elect Joe Biden takes office.
“We look forward to working through these issues with the incoming Biden Administration and have all of this year to get it right before the 2014 authorities sunset.”
In October, Trump signed a spending bill that included language granting states extra time to operate under the 2014 Farm Bill, while transitioning to the requirements of the 2018 Farm Bill. This came after NASDA and NIHC together pushed the USDA and lawmakers for an extension, and after Senator Chuck Schumer and other groups, lawmakers, and regulators also voiced their concerns about both the interim final rule and the deadline to comply. Now, they have until January 2022.
One big concern that remains in the final rule is a requirement that hemp sampling labs be DEA-approved. Though, the final rule does not enforce this requirement until the end of December 2022.
Bryan Hurlburt, the Commissioner of the Connecticut Department of Agriculture and vice chair of a NASDA committee looking at hemp, told Cannabis Wire in January 2020 that this requirement is a “hurdle,” as such labs are “actually quite difficult to come by.”
At NASDA’s Winter Policy Conference last February, as Cannabis Wire reported, USDA Under Secretary Ibach told attendees that because of an “agreement,” the USDA would “provide some relief from the laboratory certification process” for the 2020 crop year, but that the Drug Enforcement Administration would still expect states to work with their laboratories to “try to achieve certification” during the 2021 crop cycle.” Now, as the final rule makes clear, there has been an extension, but not an elimination, of this requirement.
Another concern is around so-called “hot hemp,” or hemp that contains too much THC when tested. The interim final rule put the threshold for negligence at .5%, but the final rule raised it to 1%. One area that the final rule did not nudge on is in its requirement that tests look at the total THC content of a sample, not just delta-9 THC, which is a more specific measure. The final rule did, though, extend the window during which hemp product samples must be tested from 15 to 30 days.
The final rule also allows for disposal on-site, which is less restrictive than the interim final rule. This was another area that Ibach indicated USDA might budge during the February conference. He said, “We’re going to provide more options and greater flexibility for states that are working with producers, that need to provide more options for disposal or more commonly accepted ways to destroy that crop on the farm.”
