A Summary of States’ Comments About the Federal Hemp Rules

The USDA comment period on the hemp IFR (interim final rule) is up and the department received more than 3,000 comments from farmers, companies, hemp industry associations, and state agriculture departments. We picked the common concerns that characterized the comments submitted.

  1. The Interim Final Rule requires annual THC sampling of all hemp crop locations

Most of the states recommend for the sampling to be random, and risk-based to reduce administrative burdens, instead of comprehensively testing all sites. For instance, Kentucky has identified several seeds that test below 0.3% and others whose THC fluctuates. They believe that the latter should be tested more than the former.

  1. The THC testing to be done 15 days before harvesting

The 15 days before harvesting the crop is too short a timeframe to have completed all the required testing. This is because the labs have limited capacity since all farms want their plants to be tested and the laboratory turnaround time may not meet the tight timelines imposed by law. If THC testing is delayed, it could result in crop losses since there is a possibility of the THC levels increasing. Most of the states recommend that the days be extended to 30.

  1. All testing laboratories to be DEA-certified

The requirement that all testing labs be DEA-registered is burdensome and will most likely create delays because the DEA-registered labs are few. For instance, in New Mexico, there are no DEA-registered labs, so under the IFR, farmers have to take samples out of state for testing.

  1. The samples to be picked from bud material in the top third of the plant

The states complain that the sampling procedure is vague, and different methods will produce inconsistent results. The Department of Agriculture in Kentucky suggests that the samples be taken from the top eight inches of the plant, including stems and branches. However, North Carolina suggests whole-plant sampling. It is unlikely for the whole plant to test hot if sampling is done in this way.

  1. The IFR establishes that presumption of negligence exists if hemp contains more than 0.5% THC, and criminal penalties are imposed for repeat violations.

Most of the agriculture departments in the U.S. complain that terming a crop negligent for testing above 0.5% is too low a threshold, and the consequence is too harsh since there are many variables affecting THC levels in the plant. The departments suggest that 1.0% would be an ideal assessment for negligence.

  1. IFR requires hot hemp crops (more than 0.5% THC) to be destroyed by DEA-approved reverse distributors.

The states say that this requirement could turn to be burdensome and expensive for the farmers. They believe that the USDA could allow for more flexibility by allowing the states to dispose off the hot crops. Several states permit their farmers to recover seed and fiber from the harvest to reduce their losses. Employees from the USDA should supervise crop disposal rather than the DEA.

  1. The IFR measurement of THC should be calculated as THC plus THC acid (THCA)

Most of the states concur with the USDA that the total THC should be measured. However, the farmers complained that THCA measurement is not a statutory requirement, and its use will give a high reading making the cultivation of hemp for CBD more challenging.

  1. States should adopt their plans by October 2020. However, some states are requesting the deadline to be extended because it is during the harvesting season.

Several states such as Kentucky and North Carolina indicated that they would be operating under their pilot program in 2020 while hoping that the USDA will amend the Interim Final Rules in response to some of their comments. They want the implementation date to be extended beyond 2020, or at least until this year’s crop has been harvested.

The USDA will review and assess the submitted comments before drafting the final rule. Experts believe that hemp industry players like No Borders Inc. (OTC: NBDR) hope that the federal authorities think hard and long about the concerns of stakeholders so that the final rules aren’t so stringent that they stifle such a promising industry.

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