The USDA has just released a draft version of the interim final rule for the establishment of a domestic hemp production program. We haven’t gotten all the way through it yet, but here are some key take-aways:
The draft interim rule is not effective yet, and will not be effective until it is published in the federal register. After it is published, it will be effective for two years. The rule provides that a State or Indian Tribe wants to have primary regulatory authority over the production of hemp within their jurisdiction, they may submit a regulatory plan for USDA approval, and those regulatory plans may be stricter than the default USDA regulations. We already know that the Oregon Department of Agriculture has been preparing their draft regulatory plan and would expect that it will be submitted for approval as soon as the USDA’s interim final rule is published in the federal register.
Sampling and testing for delta-9 THC: 15-day pre-harvest testing mandated. Laboratory must be DEA-registered. Samples must be tested using post-decarboxylation or other similarly reliable methods, and total THC concentration reported must account for conversion of THCA into THC. Plants that have a greater than 0.3% post-decarboxylation THC content must be destroyed: “Because of this requirement, producers whose cannabis crop is not hemp will likely lose most of the economic value of their investment.”
However, no test is valid unless it also provides the measurement of uncertainty, expressed as a +/- percentage, and if 0.3% is within that range, then the sample will be considered to be hemp for purposes of compliance with the requirements of State, Tribal, or USDA hemp plans:
For example, if a laboratory reports a result as 0.35% with a measurement of uncertainty of +/- 0.06, the distribution or range is 0.29% to 0.41%. Because 0.3% is within that distribution or range, the sample, and the lot it represents, is considered hemp for the purpose of compliance with the requirements of State, Tribal, or USDA hemp plans. However, if the measurement of uncertainty for that sample was 0.02%, the distribution or range is 0.33% to 0.37%. Because 0.3% or less is not within that distribution or range, the sample is not considered hemp for the purpose of plan compliance, and the lot it represents will be subject to disposal.
Disposal of non-compliant plants – any non-compliant plants must be collected for destruction by a person authorized under the Controlled Substances Act to handle marijuana, such as a DEA-registered reverse distributor, or a duly authorized Federal, State, or local law enforcement officer.
The rules provide that State and Tribal plans will have a category of “negligence-based” violations, whereby a farmer could be penalized for growing plants that test higher than 0.5% THC (concentrations of less than 0.5% but greater than 0.3% will not be considered negligent, although the plants will still have to be destroyed). A producer who negligently violates a State or Tribal plan three times in a five-year period will be ineligible to produce hemp for a period of five years from the date of the third violation; however, negligent violations are not subject to criminal enforcement.
Anyone who has been convicted of a felony related to a controlled substance under State or Federal law before, on, or after the enactment of the 2018 Farm Bill will be prohibited from producing hemp for ten years following the date of conviction.
We will continue to keep you updated as we digest this long-anticipated rule.