It’s been just over three months since March 22, when the final updates to the 2019 interim final ruling (IFR) of the U.S. Domestic Hemp Production Program went into effect across the country. In light of a significant increase in hemp growers and farmers nationwide — largely set in motion by the Farm Bill of 2018 — it has been the aim of the USDA to develop “regulations that meet congressional intent while providing a fair, consistent, science-based process for states, tribes, and individual producers,” according to Undersecretary Mae Wu.
The explosion of hemp producers within the United States is likely due to numerous new partnership opportunities within the agricultural and industrial sectors, as well as within burgeoning markets like the multi-billion dollar CBD and sports medicine industries. Even emerging markets like the terpenes space, where the best terpene companies source hemp to create strain-specific formulations, provide increasingly profitable opportunities for both large and independent growers.
So how has the USDA’s final ruling on domestic hemp production affected farmers and growers across the country since it went into effect in March? In this post, we examine four key takeaways from the ruling as well as their effects, which are currently accepted as beneficial by both regulators and producers.
Increased Flexibility Around Sampling Methods, Collection & Deadlines
Perhaps the most widely-lauded change from the final IFR ruling is the extension of hemp testing windows from 15 days to 30 days before harvest. This allows much more time for regulators to enter the fields and collect samples. Contrary to speculation by some conservative lawmakers, sampling has not been changed to a whole plant approach, and will still require extracts primarily from flowering sites as stems and leaves typically contain lower concentrations of psychoactive compounds than floral material.
As written, the final rule decreases the risk of so-called “hot crops” while simultaneously allowing greater sampling scheduling flexibility for both growers and regulators.
A temporary pause in laboratory registration policy
In light of the rapid increase in hemp farms over the last year, the U.S. Drug Enforcement Agency (DEA) has agreed to the suspension of the requirement that all hemp be tested at DEA-registered laboratories until December 31st, 2022. This is due to the simple fact that there is no longer a sufficient number of DEA-registered laboratories to handle the volume of hemp expected to be grown this year.
Both states and tribal leaders have also been authorized with the ability to implement performance-based sampling protocols for their respective states or tribes, rather than the required annual testing for every producer under their jurisdiction specified in the original IFR. Given the methods meet specific federally-established standards, some states and tribes have opted to make use of seed certification programs, history of compliance logs and other protocols that complement existing state or tribal law.
Changes in Negligence Violation Policy
In order to give growers and farmers more flexibility, the final revision to the IFR has doubled the negligence threshold for hemp fields. While farmers still have to dispose of plants that exceed the 0.3% threshold for psychoactive compounds, they will not have committed a negligence violation if the field tests at or below 1%. This increase in leniency has helped to protect inexperienced farmers, as the original IFR’s violation limit has been maintained at one per growing season.
The final ruling has also introduced new disposal and remediation methods for noncompliant plants in order to give farmers more crop salvaging options. None of these alternatives require dealing with DEA reverse distributors or having local law enforcement present during destruction or remediation, freeing up regulator resources as more farms are established across the country.
Since the final rule went into effect in March, some farmers have taken to composting and tilling under the soil to dispose of noncompliant plants. As a means of salvaging as much as possible, others have tried creating biomass blends that they then resubmit for testing, or disposing of flowering material entirely before making use of stems, seeds and leaves.
Review & Delineation of Tribal Regulatory Authority
An issue of significant concern since the congressional approval of the 2018 Farm Bill — particularly among tribal leaders — has been the territorial regulatory authority around tribal hemp production. Until the final ruling this year, the issue of whether a tribe with a USDA-approved hemp plan could exercise regulatory authority across its entire territory or only on areas of land wherein it has tribal jurisdiction was largely decided on a case-by-case basis.
As of March, tribes have been allowed regulatory authority over hemp production across the entirety of their respective territories regardless of the bounds of their inherent jurisdiction. This clarification has put to rest one of the most contentious (albeit one of the least publicized) gray areas of U.S. legal cannabis policy since the legalization of industrial hemp, and has been welcomed by both tribal leaders and regulators as long overdue.