The U.S. Department of Agriculture (USDA) published a final rule today, building off the interim final rule it issued in October 2019 and incorporating both public comments and the agency’s takeaways from the 2020 growing season. In general, the final rule makes modest adjustments to the interim final rule in order to make it less onerous for producers to grow hemp while imposing stricter requirements on how crop must be tested.
Most importantly, the final rule recognizes that growers may accidentally produce crop that contains more than 0.3 percent THC and raises the limit for negligently doing so from 0.5 percent to 1 percent, but requires that producers test for total THC levels in crop, rather than for delta-9 THC levels. Testing for total THC levels makes it more likely a crop could exceed the legal limit for THC in hemp.
Additionally, the final rule requires all crop to be tested in Drug Enforcement Administration (DEA)-registered laboratories beginning in January 2022 — after DEA has had time to register more laboratories. The change may create a rush among industry participants to find labs that are registered or are on track to obtain registrations.
Here’s a rundown of the changes:
- Testing for total THC: As noted above, USDA will require that producers test for total THC levels in crop, rather than for delta-9 THC levels. Delta-9 THC is the molecule responsible for THC’s psychoactive effects; it is derived from a precursor THC molecule via either time or heat. USDA received but did not incorporate criticism during notice and comment because testing for total THC makes it more likely crop could exceed the legal limit for THC in hemp, even though total THC levels are less precise in measuring crop’s psychoactive properties.
- Negligent violation: Previously, USDA imposed penalties on growers whose plants exceeded 0.5 THC content. In other words, the agency allowed a 0.2 margin for error. The final rule raises the negligence threshold from .5 percent to 1 percent and limits the maximum number of negligent violations that a producer can receive in a growing season (calendar year) to one.
- Disposal and remediation of non-compliant plants: The final rule provides options for disposing non-compliant plants without using a DEA reverse distributor or law enforcement and expands the disposal and remediation measures available to producers. This eases the burden on producers.
- Testing using DEA-registered laboratories: As noted above, USDA will require all crop to be tested at a DEA-registered laboratory. However, there are an insufficient number of DEA-registered laboratories to test all the anticipated hemp that will be produced in 2020 and possibly 2021. Accordingly, DEA has agreed to extend the enforcement flexibility allowing non-DEA registered labs to test hemp until January 1, 2022 and is processing lab registration applications quickly to get more labs testing hemp DEA-registered.
- Timing of sample collection: The final rule lengthens the window for collecting samples from 15 days to 30 days.
- Sampling method: During notice and comment, USDA received requests for permission to take samples from a larger portion of the hemp plant, or the entire plant. They also requested sampling from a smaller number of plants. The USDA revised the final rule to allow states and tribes to adopt a performance-based approach to sampling in their plans. The plan must be submitted to USDA for approval. It may take into consideration state seed certification programs, history of producer compliance and other factors determined by the State or Tribe.
- Extent of Tribal Regulatory Authority over the Territory of the Indian Tribe: The final rule clarifies that a tribe may exercise jurisdiction and therefore regulatory authority over the production of hemp throughout its territory regardless of the extent of its inherent regulatory authority.