USDA loosened regulatory requirements for hemp in a new rule issued Friday, giving producers more time to harvest their crops after testing for THC levels and not requiring they use laboratories registered with the Drug Enforcement Administration until the end of 2022.

The department’s Agricultural Marketing Service also raised the threshold for determining when a producer has been “negligent” from 0.5% THC to 1% THC and increased the area of the plant that can be tested. That change should result in fewer samples coming back "hot," or above the acceptable THC level that would require the plant's destruction. Hemp with a THC level above 0.3% is considered marijuana, but depending on "measurement uncertainty" in testing, the acceptable level can be higher.

Eric Steenstra, president of VoteHemp, was still reading through the rule Friday but said it "looks pretty darn good" and praised USDA for listening to the industry.

"They addressed almost every single one of our comments," he said. 

Greg Ibach, USDA's undersecretary for marketing and regulatory programs, said in a release the department took information “provided through three comment periods and from your experiences over a growing season to develop regulations that meet congressional intent while providing a fair, consistent, science-based process for states, tribes and individual producers.”

The rule will be published in the Federal Register Tuesday, Jan. 19, making its effective date March 20, but that date might not hold. Larry Farnsworth, spokesperson for the National Industrial Hemp Council, said, “We anticipate, as is customary of new administrations, that this rule will be one of many that will be frozen on the first day of the Biden Administration.”

Still, Farnsworth said, “We’re pleased USDA has finally released their long-awaited rule on U.S. domestic hemp production and glad they listened to the concerns of the industry regarding sampling and testing. 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.”

Steenstra was less concerned about the new administration's treatment of the rule, saying even if frozen, it likely would be cleared for implementation quickly. His group and others plan to continue pushing Congress to allow hemp to contain 1% THC.

The 2018 farm bill legalized hemp for production, spurring a boom in interest but also leading to numerous questions about how USDA should regulate the new crop. USDA issued an interim final rule in 2019 requiring states and tribes to submit their regulatory plans for approval, but many were not able to meet an Oct. 31 deadline both because of the COVID pandemic and because of concerns about some of the rule’s more stringent provisions.

One of those was a requirement that plants be tested for THC within 15 days of harvest, which growers said was impractical. The new rule increases that window to 30 days.

“AMS received comments regarding the challenges presented by the 15-day harvest requirement, including the logistical challenges to state and tribal agencies charged with overseeing the collection of samples in this short timeframe, the logistical challenges to producers in harvesting hemp crops in this short timeframe, and testing challenges faced by laboratories in having to conduct compliance analyses in this short timeframe," the rule says.

“AMS believes allowing the additional time will provide flexibility for dealing with unforeseen weather events and other agricultural factors, and better accommodate complicated harvest processes,” the rule says. “AMS also believes this will reduce strain on testing resources and ensure test results can be returned to growers on a timely basis.”

Regarding the increase of the negligence threshold, AMS said it “recognizes that hemp producers may take the necessary steps and precautions to produce hemp, such as using certified seed, using other seed that has reliably grown compliant plants in other parts of the country, or engaging in other best practices, yet still produce plants that exceed the acceptable hemp THC level.”

“AMS believes raising the negligent violation threshold from 0.5 percent to 1.0 percent in the final rule provides a greater buffer and reduces farmers’ exposure to risk of violation accrual and license suspension,” the rule says.

AMS retained the requirement that hemp be tested for THC levels at DEA-registered laboratories, but delayed the effective date for the requirement until the end of 2022.

AMS said since the interim final rile (IFR) was published, “numerous laboratories have applied for registration and DEA is working diligently to process these requests.” The delay should provide enough time for more testing facilities to obtain DEA registration, AMS said.

The agency also has added flexibility for farmers to minimize crop loss through “remediation” of noncompliant plants — “either disposing of flower materials and salvaging the remainder of the plant or blending the entire plant into biomass plant material. Through both forms of remediation, the farmer may be able to minimize losses and, in some case, produce a return on investment.”

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Requirements for disposal of plants exceeding the THC threshold had also been a source of concern for producers. Under the final rule, “producers do not need to use a DEA-registered reverse distributor or law enforcement to dispose of noncompliant plants.” AMS has specified allowable disposable techniques on its website.

The rule also addresses which parts of the plant should be tested to determine THC levels. AMS said “many commenters” on the IFR advocated for whole-plant sampling, but “AMS is of the opinion that since THC is concentrated in the flower material of the plant, the flower material is more appropriate to test than the entire plant.”

AMS modified the sampling requirement “to state that the sample shall be approximately five to eight inches from the ‘main stem’ (that includes the leaves and flowers), ‘terminal bud’ (that occurs at the end of a stem), or ‘central cola’ (cut stem that could develop into a bud) of the flowering top of the plant.”

Testing more of the plant will provide "a more accurate and fair reading" of the THC level and make it less likely that plants would have to be destroyed because they exceed the acceptable THC level, Steenstra said.

In addition, AMS will allow states and tribes to develop "performance-based sampling requirements" for sampling plants for THC testing. 

"If the objective or intended result can be achieved by setting a readily measurable standard that is enforceable, the proposed requirement should merely specify the objective or result to be obtained rather than prescribe to the licensee how the objective or result is to be attained," AMS said.

Performance-based sampling "differs significantly from a prescriptive action in which licensees are provided detailed direction on how those results are to be obtained," AMS said. "Highly prescriptive rules and requirements should be avoided absent good cause to the contrary."

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