On October 31, 2019, the U.S. Department of Agriculture (USDA) published an interim final rule (IFR) that details how hemp farmers do business until 2021. The IFR is based on the Agricultural Improvement Act of 2018 (commonly referred to as the 2018 Farm Bill); the Farm Bill provides various requirements that need to be incorporated into the IFR. That means that anything in the IFR that needs to be changed requires that the United States Congress to pass a law.
The IFR allowed for a comment period (ending January 29, 2019), and the USDA received more than 4,500 ideas for improvement. The commenters had three primary concerns:
- The Drug Enforcement Administration (DEA) doesn’t have enough labs registered to require testing at those facilities
- The 15-day-of-harvest time frame is almost impossible to meet because sampling is mandatory for many plants.
- It is hard to achieve the permitted total tetrahydrocannabinol (THC) threshold (0.3%)
While some of the provisions of the IFR are “set in stone,” others have a good chance of being re-litigated. On February 6, 2020, Bruce Summers, the Agricultural Marketing Service (AMS) Administrator, discussed which IFR provisions the USDA is willing to re-visit. Summers said, “there is room for discretion in the final rule,” which was a reference to the 15-day-of harvest time frame sampling procedures. Those procedures are not directly referenced by the 2018 Farm Bill, so there is some “wiggle room” there.
Summers also said that the USDA is currently examining the issue of having a shortage of DEA-approved labs, but the news is less positive for increasing the THC threshold. According to Summers, the THC threshold is defined in the Farm Bill and would require legislation in order to deviate from the Farm Bill.
After this growing season, the USDA will once again accept comments from farmers in an effort to improve the final IFR.