Several US hemp farmers have spoken to CBD-Intel expressing concern over the crop-testing provisions set out in the US Department of Agriculture (USDA)’s interim final rule on hemp production.
Their misgivings center on the requirement that a Drug Enforcement Agency (DEA)-certified lab must test a farmer’s plants for tetrahydrocannabinol (THC) levels within 15 days of harvest.
With so many farmers having plants ready for harvest within a period of a few weeks and a limited number of DEA-certified labs available to perform testing, farmers are worried about whether the labs will be able to handle the volume and return results within the 15-day window. They also fear that, if test results can take as long as a week to be reported back, it will force a very rushed harvest.
While the 15-day window is an area where the USDA can exercise discretion when forming the final rule, it will be in effect until the final rule is enacted–which could be nearly two years away.
Bruce Summers, administrator of the USDA’s Agricultural Marketing Service, said, “That’s an issue we are actively working on right now. We expect that we may have more information shortly on that issue.”
After the passage of the 2018 US Farm Bill, which expressly permits the cultivation of hemp plants containing no more than 0.3% THC, the USDA was tasked with establishing regulations for hemp production.
The department implemented the interim rule on October 31, 2019. This policy will be in effect for no more than two years, during which time the USDA will work to establish a final rule.
“Our goal is to operate this program for the first crop year in 2020, take the lessons learned, and finalize the rule as fast as we can after that. By what we’ve already promised, it will be less than two years from now since the clock started ticking on October 31,” Summers said.
The USDA’s open comment period on the rule was supposed to end on December 30, 2019. However, with over 4600 comments received, that was extended to January 26, 2020.
There will be another formal comment period after the 2020 growing season and the USDA might incorporate some suggestions into the final rule. Some provisions of the interim rule, such as testing and sampling procedures, may be revised. Other requirements, such as the 0.3% THC limit, are included in the 2018 Farm Bill and therefore can be amended only by Congress.
The interim final rule in its current form will be in place for at least one growing season. “We will not be able to make any changes to the interim final rule before the final rule,” Summers clarified.
To date, the USDA formally approved eight states and 10 tribes for the 2020 growing season and will be required to meet the interim final rule’s requirements. Starting on November 1, 2020, however, all hemp-growing programs in the US will be required to abide by the interim final rule.
A number of senators, including Mark Warner and Tim Kaine of Virginia and Ron Wyden and Jeff Merkley of Oregon, have asked the USDA to allow 30 days for testing hemp, rather than the present 15 days. They also suggest sampling the top eight inches of the crop rather than flowers only, no decarboxylation in testing, independent testing in USDA-approved labs rather than DEA-registered labs, and maximum flexibility for states when it comes to implementing hemp production plans.
A major farm lobby has asked for more. The American Farm Bureau Federation (AFBF) recently voted in favor of a policy proposal that would support a 45-day harvest period. The AFBF’s national convention also called for “hot” crops (those found to have more than 0.3% THC) to be used for textiles, fuel, or livestock bedding instead of being destroyed, expanding THC testing to any accredited laboratory, and exemption of hemp grown for non-human consumption from THC testing entirely.
“As USDA finalizes the regulations relating to hemp, our delegates have called for slight revisions there that we think will improve the program,” AFBF vice president Scott VanderWal said.
So where does this leave farmers?
The USDA will continue to listen to public comments regarding the interim final rule. While it might revise some of the sampling and testing requirements, hemp producers in those states and tribes that have opted into the USDA program must abide by the procedures set forth in the interim rule until the final rule is implemented, which may not be until November 1, 2021.
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