On Thursday, the United States Department of Agriculture announced delays in the of enforcement of various requirements under the interim final rule, or IFR, that established the United States’ Domestic Hemp Production Program.
Under the new guidance, the USDA will delay enforcement of the requirement for labs to be registered by the DEA as well as the requirement that producers use a Drug Enforcement Administration-registered reverse distributor or law enforcement agency to dispose of non-compliant “hot” crops under certain circumstances.
While these delays won’t last forever, this is a major win for the U.S. hemp industry. Enforcement will be delayed starting this crop year and until October 31st, 2021, or when the final rule is published – whichever comes first.
“Because currently there isn’t sufficient capacity in the United States for the testing and disposal of non-compliant hemp plants, USDA has worked hard to enable flexibility in the requirements in the Interim Final Rule for those issues,” said USDA Under Secretary for Marketing and Regulatory Programs Greg Ibach.
Hemp Laboratory Testing Requirements
Thanks to this relaxation of enforcement, lab testing for the purposes of determining compliance under the U.S. Domestic Hemp Production Program can be conducted by labs that are not yet registered with DEA. The laboratories must still meet all the other requirements in the IFR.
Specifically, laboratories must adhere to the standards of performance as outlined within the IFR, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods.
It goes without saying, that all labs will have to make arrangements to be compliant with registration requirements before this period of delayed enforcement expires. DEA will evaluate all applications using the criteria required by the Controlled Substances Act.
“Hot” Crop Hemp Disposal Rules
If a cannabis plant has 0.3% THC or higher on a dry weight basis, that’s marijuana – which is still covered by the Controlled Substances Act. If it has less, that’s hemp. The difficult part for farmers is that mother nature doesn’t always follow this arbitrary threshold, making non-compliant plants a major liability.
Based on feedback from states and tribes, and in consultation with DEA, USDA has identified additional options for the disposal of “hot” hemp plants, rather than requiring that cultivators use a DEA-registered reverse distributor or law enforcement agency for disposal.
Some of these new options include, but are not limited to, plowing under non-compliant plants or composting into “green manure” for use on the same land. The new methods are intended to allow producers to apply common on-farm practices for the destruction of non-compliant plants.
Essentially, and hemp crops that test greater than 0.3% THC can now be disposed of on-site. That said, the state, tribe or the state’s department of agriculture will be responsible for establishing protocols and procedures to ensure non-compliant hemp is appropriately destroyed or remediated in compliance with applicable state, tribal and federal law.
“One of the top considerations in making these changes was the desire to provide additional options that minimize, to the extent possible, the resource impact to state and local law enforcement in handling hemp that is out of compliance,” said Under Secretary Ibach.
“We look forward to partnering with producers, states, tribes and other stakeholders to deliver regulations that work for everyone,” said Under Secretary Ibach.
Since the 2018 Farm Bill was signed, the hemp industry has come a long way. This is yet another positive step forward.
The USDA believes that this delay in enforcement will give time for more labs to receive DEA certification, and for the various law enforcement agencies and regulatory bodies to beef up their infrastructure accordingly.
While the DEA certification of labs may seem like an unnecessary hurdle, we think of it as a sign of the hemp industry’s newfound legitimacy and a way of weeding out labs that intend to fudge cannabinoid content statistics the same way some in the state-regulated marijuana industries have.
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