On Tuesday, Oct. 29, the U.S. Department of Agriculture (USDA) released draft rules for hemp manufacturing and said it will soon begin accepting state regulatory plans for the newly legal crop.
The interim final rule on hemp was formally published in the Federal Register on Thursday, Oct. 31, with a 60-day public comment period to follow. Once the rules are finalized, USDA will begin to evaluate states’ and tribes’ submitted regulations plans, and any jurisdictions that do not send proposals will fall under the department’s general guidelines for producing the crop, which was federally legalized under the 2014 Farm Bill.
The regulations cover the requirements for where hemp can be grown, THC testing standards, the disposal process for crops that don’t meet federal standards and licensing protocols.
“At USDA, we are always excited when there are new economic opportunities for our farmers, and we hope the ability to grow hemp will pave the way for new products and markets,” USDA Secretary Sonny Perdue said in a press release.
“We have had teams operating with all hands-on-deck to develop a regulatory framework that meets Congressional intent while seeking to provide a fair, consistent, and science-based process for states, tribes, and individual producers who want to participate in this program,” he added.
After the regulations are finalized, USDA said it will make a determination about state or tribal plan applications within 60 days 4f their submission. Jurisdictions that submit applications to process hemp under USDA’s guidelines rather than their own local rules will be reviewed within 30 days of their submission.
The interim rule will sunset in two years, after which point USDA will issue final regulations.
USDA is simultaneously issuing separate guidelines for sampling and testing procedures for hemp. Samples, which have to be collected about two weeks prior to a crop’s anticipated harvest date, must be tested at Drug Enforcement Administration (DEA)-registered laboratories.
Hemp is defined under the farm bill as having 0.3 percent THC on a dry weight basis. USDA clarified that testing protocol will involve an analysis of the total THC content, including THCA, which can be converted into the traditional psychoactive compound upon decarboxylation.
The plan also establishes “an acceptable hemp THC level” that accounts for uncertainty in the cultivation process.
If the THC content is found to be unacceptable, however, it must be destroyed by someone authorized under the Controlled Substances Act to handle marijuana, such as a DEA registrant. A USDA official confirmed on a press call Thursday that hemp that falls outside of the acceptable THC level will not be covered by federal crop insurance.
Another provision of concern for advocates is the implementation of a 10-year ban on participation in the hemp industry by individuals with prior felony drug convictions. USDA said that ban will only apply to “key participants” such as chief executives who have a direct financial interest in the business. That means personnel such as maintenance workers will be exempt from the ban, which is in line with the narrow interpretation that advocates pushed for.
The draft document does not address the rules around whether smokable hemp flowers may be sold, which is likely because such products would fall under separate jurisdiction of the Food and Drug Administration (FDA). That absence of rules doesn’t necessarily indicate that USDA is permitting smokable hemp but the lack of clarity on the issue for now leaves room for interpretation at the state level.
Once the regulations are finalized, hemp farmers will be eligible for a series of federal agriculture programs, including crop insurance. Previously, USDA said farmers could only gain coverage under the 2014 version of the farm bill.
The department also clarified the rules on importing and exporting hemp seeds and plants this month—however, the interim rule states that it “does not affect the exportation of hemp” and notes that USDA will work with partners on an exportation plan if there’s sufficient interest. USDA also said in August that it would accept intellectual property applications for seed-propagated hemp.
Meanwhile, lawmakers are still pushing FDA to issue rules for CBD products, which most hemp businesses are using the crop for at this point. The agency said its rulemaking process is complicated by the fact that CBD exists as an FDA-approved drug and hasn’t been previously added to the food supply.