January 29, 2020 marked the end of the USDA’s comment period allowing stakeholders to address concerns regarding the U.S. Domestic Hemp Production Program interim final rule. In total, 4,685 comments were submitted primarily focused on the 0.3% THC limit, the destruction of crop tested above this level, and sampling & testing protocols.
Many state departments and advocacy groups implored the federal government to raise the THC limit from 0.3% to 1% in an effort to ease the liability risk on farmers. Doing so would follow suit with countries such as Australia and Switzerland who have chosen this higher threshold. In a teleconference last week however, Bruce Summers, the official spearheading hemp regulations, advised that the 0.3% THC limit is out of his hands and can only be modified by an act of Congress. The USDA may consider pathways for remediating crops grown above this threshold in the future.
In addition, concerns were raised over the federal requirement for testing laboratories to be registered by the Drug Enforcement Agency (DEA). With only 47 DEA-registered laboratories currently known to offer hemp testing services, a bottleneck is to be expected during the upcoming harvest season for the 16,000+ licensed hemp farmers.
While the 2018 Farm Bill provided the USDA with regulatory authority over hemp cultivation, it also gave states and indian tribes the option to submit plans showing regulatory equivalency to the USDA. If approved, these states and territories would maintain jurisdiction over the enforcement of their cultivation plan.
Thus far, 13 plans have been approved by the USDA including 6 states (Delaware, Louisiana, Nebraska, New Jersey, Ohio, and Texas) and 7 territories. An additional 14 states have opted to continue operating under the 2014 Farm Bill pilot program this season, awaiting potential amendments to the interim final rule before submitting a plan by the November 1st compliance deadline. California is currently in the process of drafting a plan for USDA review but has not submitted their application as of yet. Until then, compliance with existing California state regulations is required.
Towards the end of the 2020 season, the USDA intends to open another comment period to receive direct feedback from growers and other stakeholders. Through trial-and-error, the USDA hopes to finalize federal regulations within 2 years of the interim final rule.
2/27/2020 EDIT: At the National Association of State Departments of Agriculture (NASDA) meeting yesterday, the USDA and DEA announced a mutual agreement to remove the requirement for hemp testing laboratories to be DEA registered for the 2020 season. However, as advised by Greg Ibach, undersecretary for the USDA, “DEA will still expect states to work with their laboratories to try to achieve certification for the 2021 crop year.” Additional changes to the interim final rule may be released in the near future.