The Interim Final Rule and How It Can Improve

Nov 26, 2019

On October 31, 2019, the USDA finally released their first draft, totaling 161 pages, of the federal regulations regarding the domestic hemp production program. This “Interim Final Rule” (IFR) outlined the requirements of hemp producers and states who wish to submit state hemp plans. This rule highlighted some positive notes, such as the clarification of interstate commerce being completely legal and without interference. However, most of the rules outlined have caused severe backlash from the industry, with farmers frightened about the potential outcome. Luckily, the USDA is accepting comments regarding the IFR until December 31, 2019. This gives the industry an opportunity to speak out and express their opinions, in hopes that the federal department of agriculture will adjust the rule accordingly. Below is a bullet point summary of what the Interim Final Rule discusses, as well as a few of the major concerns circulating throughout the industry.

Summary:

  • Interim rule is effective for 2 years before final rule goes into effect
  • States must submit hemp plan to USDA for approval
    Requirements:
    • Must submit legal land description & geospatial location for each production location
    • Must report hemp crop acreage
    • Must submit contact information of hemp producer (licensee)
    • Must not be convicted of felony related to controlled substances for 10 years
    • Must submit end of the year harvest reporting by December 15 of each year
  • If state does not have a hemp program (but does not prohibit production), hemp growers must register under the federal USDA hemp program
  • Testing:
    • Crop must be tested 15 days before intended harvest
      • if crop passes 15 day window, crop must be retested
    • Random sampling from authorized personnel throughout season
    • Crop must be tested in DEA registered facility
      • specifically testing top few inches of plant (buds)
      • must test <.3% total THC (after decarboxylation) on a dry weight basis
      • “measure of uncertainty” must be established by lab to account for margin of error
      • if “hot”, lab is required to report it // all results must be submitted to USDA
    • If tested above .3% THC, grower must destroy crop (or dispose according to state/s disposal plan)
  • Negligence:
    • Above .5% total THC is considered negligent
    • Not submitting reports is considered negligent
    • Must be given a chance to correct violation
    • Must report to prove program compliance for 2 years after most recent violation
    • 3 violations in 5 years will cause ineligibility to participate for 3 years following last violation
    • Negligent violations are NOT subject to criminal enforcement from state or federal law enforcement
    • If violation is “greater than negligent”, state dept of agriculture must report to chief law enforcement officer of the state.
  • Interstate Commerce:
    • NOTHING PROHIBITS INTESTATE COMMERCE OF HEMP. No state can prohibit transportation of hemp.
  • This bill will set infrastructure for banking, FSA loans, crop insurance, etc.
  • Not mentioned:
    • Importation and exportation of hemp
    • Extracts and finished products
  • Issues:
    • .3% total THC limit post-decarboxylation (.5% THC negligence limit)
      • For cannabinoids or even dual purposes, this limit does not allow the hemp plant to grow to its fullest potential. The cannabinoids, including CBD & THC start to mature during the last few weeks of flowering. If you harvest the plant early to keep THC levels insignificant, CBD levels will also be much lower than if you were to harvest regularly. Also, fair amounts of THC, allows for more effective natural alternatives. The purpose of this threshold is for people to not abuse the substance. With a 1.5% total THC threshold, growers can grow without fear of testing “hot” or producing lower quality crops. This threshold is also low enough in THC that it will still not induce a high. With current genetics, this .3% total THC limit is risky and could easily cause growers a negligent violation 3 times in 2 years, let alone 5 years (the amount of time you can get 3 violations before being ineligible to participate in producing hemp). If these regulations were in place for the 2019 growing season, over 90% of growers would be considered negligent. If the majority of the population is performing a specific way, there is bound to be good reason for it.
    • Testing only flower
      • When hemp biomass is used for extraction, all flowers and leaves are used. If you are required to test just the flower, but still send all of the biomass to be extracted, this does not give the truest representation of the cannabinoid and terpene profiles.
    • 15 day testing window prior to harvest
      • There are too many factors that dictate when it is time to harvest. Harvesting may also be staggered and again plants could reap different amounts of plant compounds, making the prior test results not an accurate representation of the actual plants.
    • Only controlled substance related felons are ineligible for 10 years, but not violent/dangerous felons
      • Most “felonies” related to controlled substances are non-violent cannabis charges and should not make someone ineligible to participate. If their felony was related to cannabis, they should be allowed, especially considering they have experience in a related field. Violent felons on the other hand, were not mentioned at all, yet those are the people who should not be allowed to participate in the program. We need people who will help this industry excel, not lie, cheat and steal from others in the industry or their customers.
    • Testing facility has to be DEA registered
      • There are several companies who have paved the way for the cannabis and hemp industries. Making this a rule will squash companies who have helped set industry standards. Also, not allowing companies that deal with cannabis also deal with hemp would be a disservice to the industry and everyone involved. These labs could potentially be the bridge between legal hemp and not having to destroy “hot” hemp. There is no point to the DEAs involvement in a legal legitimate industry and the US government could save hundreds of thousands of dollars without their interference (especially considering the DEA has been known to create problems for people in the industry including unjust raids & seizures, etc.). Another counterpoint to the DEA registered facilities rule is that as of right now, only 2 labs in the entire country are DEA registered and with the amount of hemp growers looking to get their material tested, this would cause a massive bottleneck clog in the supply chain, as well as inevitably making the majority of farmers wait longer than the 15 day testing window to even receive their results.
    • Destruction of “hot” hemp
      • As mentioned above, disposal of non-compliant hemp is unnecessary, especially when there are professional extraction laboratories who specialize in extracting and separating the plant substances. These labs could charge clients to extract and remediate the hemp if above legal limits. If these labs were located in cannabis friendly states, there would be no interference as long as temporary interstate transportation was granted for the shipper (licensee). Also, labs being required to report hot hemp should not be required to do this if there is a remediation option. At the very least there should be a remediation option and the labs would be required to submit before and after test results to assure compliance.

These rules are created with the intention to help farmers get rooted in a new and prosperous industry. Instead, these drafted rules have shaken the industry to its roots in fear of overinvolvement and overly stringent regulations from the government in a completely legal trade. Give this industry (that could potentially make the US billions of dollars) a fair chance to live up to its potential by editing these rules to encourage involvement from the ground up.

The USDA is accepting comments about the Interim Final Rule through December 31, 2019. The more comments they see regarding the issues that need to be properly addressed, the more likely they will be to adjust the rule to suite the industry’s needs. If you disagree with any parts of this interim rule, please politely and intelligently voice your opinion as to why these aspects are counterproductive. To submit your comment, go to the ERulemaking Portal at https://www.regulations.gov/document?D=AMS-SC-19-0042-0001.

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