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USDA gives hemp farmers breathing room on THC, testing, but retains DEA requirement

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5 Mins. Read

Hemp producers will now have more freedom under the new policies regarding acceptable THC levels before they are declared criminally negligent. The margin of error for federally mandated THC levels has increased from 0.5% to 1%.

Hemp farmers and testing agents can also get a longer time frame to harvest crops just after testing, with the ` raised from 15 days to 30 days just after the testing is done. The amendments have been made to consider unpredictable variables like testing, weather conditions, agricultural methods and equipment delays.

There are still several issues that the USDA didn't seem to budge on, such as sampling specifications and the requirement for laboratories to enrol in the U.S. Drug Enforcement Agency.

Federal farming rule makers from the U.S. Department of Agriculture launched final hemp production policies on Friday during the Trump Administration’s last week. 

The final guideline in line with public feedback from farmers and sector members regarding temporary hemp rules launched last 2019 starts to apply on March 22.

The enacted 2014 Farm Bill that states production rules will end on October 31, 2021, though 50% of the states are still running the hemp production programs until this date. After which, all state and tribal hemp production programs should follow the USDA’s final hemp production policies.

Sampling Specifications

Apart from expanding the harvest time frame from 15 to 30 days just after sampling, the USDA revised sampling specifications a bit.

Within the final rule, USDA retains its sampling requirement since THC is concentrated around the plant’s flower material. As recommended by many farmers and industry members, it is more appropriate to test the top of the plant compared to its other parts to get the homogenised whole-plant samples.

The requirement was revised slightly by having the sample be taken from about 5 to 8 inches coming from the “main stem,” “terminal bud,” or “central cola,” comprising the leaves as well as the flowers of the top flowering part of the plants.

The rule states that this modification is in line with the sampling methods in numerous states which created hemp programs according to the 2014 Farm Bill authority.

The final rule permits states and tribes to embrace a “performance-based approach to sampling” on their programs. USDA is maintaining the requirement that only specified agents could acquire samples.

Testing and Negligence

The agriculture regulators highlighted that they couldn’t raise the legal THC limit over 0.3% as it is a modification that should be left to Congress.

Despite this, the agency has changed how it will regulate negligence charges for farmers whose crops that test to more than 0.3% THC content.

Producers still have to get rid of plants beyond the 0.3% authorised limit. However, when the plant tests at or more than the limit, producers won't be held criminally liable for a “negligent violation,” the first time that it occurs. The act could result in criminal drug charges if done again.

The final rule raises the negligence limit from 0.5% to 1% and offers producers the right to 1 negligent violation during the calendar year’s growing season. 

This means hemp farmers can focus more on what’s most important!

DEA Laboratory Requirement

Hemp should still be screened for THC level in the DEA-certified laboratory since the facilities can potentially manage cannabis which tests more than 0.3% THC in a dry weight basis, that's my description, marijuana and a Schedule 1 controlled substance.

Then again, USDA officials realized that they don't have enough DEA-certified laboratories all over the country for states to comply instantly, thus enforcement won't start to apply till December 31, 2022.

Although the call to use DEA-certified labs will certainly frustrate a lot of producers, the USDA reported on its rule that since late 2018, several laboratories have requested to sign up and DEA is working hard to process all these requests.

Disposal Changes

Farmers notched an incomplete success on disposal and remediation processes for “hot hemp.”

The USDA states that hemp flowers that contain more than 0.3% THC must be eliminated. However, the rule right now permits farmers to hold and then sell other sections of the plant.

The rule states that Hemp producers must have the chance to remediate non-compliant crops to reduce financial risk from the loss of investment on their hemp harvest.

That is why this final rule permits removal activities, either getting rid of flower materials and salvaging the other parts of the plant or mixing the whole plant into biomass plant products.

On the other hand, the final rule doesn't permit manufacturing procedures to extract THC from ‘hot’ hemp, making it legal, as a few people had wished.

Farmers such as Texas Agriculture Commissioner Sid Miller had already asked the government to give more choices for non-compliant hemp crops. According to Miller at the Texas Marijuana Policy Conference, it’ isn't just right to eradicate the entire crop when you can find solutions to fix that concern.

The original rule called for authorities or a person authorised to deal with Schedule 1 substances to eradicate the plants off-site. The final version stands to the changes the agency first did in February, permitting farmers to or plough the non-compliant plants on their farms.

The USDA states the modification mainly made to reduce costs for law enforcement. As what the agency said, "We’re confident that any disposal methods make the crop unusable and so isn't at risk for getting into any channel of business.”

USDA Provides Compliance Assistance

The U.S. Department of Agriculture released the rules to grant producers enough time to get ready for the 2021 season, right after given authorisation from the White House Office of Management and Budget and other departments influenced by the changes.

USDA Marketing and Regulatory Programs Under Secretary Greg Ibach said that through the publication of this final rule, USDA has concluded a complete and transparent rule-making process which began with a hemp hearing session last March 2019.

USDA personnel took the details that the people provided on the three comment periods and the growing season’s experiences to create rules that satisfy Congressional purpose while offering a reasonable, consistent, science-based method for states, tribes well as individual producers.

Ibach also said that the USDA would provide the hemp sector with education and outreach to help them attain compliance with the requirements.

Early responses from business advocates showed satisfaction that USDA paid attention to public feedback and modified particular hemp production rules; however, the incoming Biden Administration will examine the final regulations.

Larry Farnsworth, a spokesperson for the National Industrial Hemp Council, said that they'd be expecting, as always in the case of new administrations that this rule would be among the many concerns that will be frozen on the very first day of the Biden Administration.

“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”, he added.