Following the passage of the 2018 Farm Bill, which nationally legalized hemp production and interstate transportation, the U.S. Department of Agriculture on Wednesday released its interim final rules for regulating the burgeoning industry.
“This interim rule will help expand production and sales of domestic hemp, benefiting both U.S. producers and consumers,” the rules read.
In large part, said Brian Koontz, the industrial hemp program manager with the Colorado Department of Agriculture, the major boon for hemp producers will come as a result of more regulatory consistency moving forward.
However, for the 113 registered hemp growers in Boulder County, who are already licensed to grow outdoors on 2,400 acres and indoors in nearly 500,000 square feet, the new rules represent a major change to their operations. Particularly challenging is the new limit for THC, the psychoactive chemical in hemp, of 0.3% per plant.
“It’s hard to write a business plan when everything’s changing like this,” said Chris Anderson, owner of Knotweed Farms. “We’re going to transition to an entirely new product to make sure we are compliant.”
While each state will be able to develop its own set of regulations, the new rules from the USDA set forth a framework with which each state’s plan must conform.
Along with creating a licensing program, which would require a federal background check, state plans will need to contain a process by which the state records the land used for hemp production, including a legal description of the land and a geospatial location. Licensed producers also must report their hemp crop acreage to the USDA Farm Service Association.
State plans also must incorporate procedures for sampling and testing hemp to ensure the plants do not exceed the acceptable THC levels of 0.3% on a dry weight basis.
Sampling procedures outlined in the new rules require a federal, state or local law enforcement agency collect samples from each operation within 15 days before the anticipated harvest and deliver a representative sample of the hemp for testing to a laboratory registered with the U.S. Drug Enforcement Agency.
This would be a major change for hemp growers in Colorado, as the Colorado Department of Agriculture, according to Koontz, currently only tests roughly 25% of the hemp samples it receives and not with DEA-registered labs.
Should any hemp be found to have a concentration of THC higher than 0.3%, the new rules stipulate the material must be collected for destruction by a person authorized to handle marijuana under the Controlled Substances Act — such as a DEA-registered reverse distributor or a federal, state or local law enforcement officer. The material would then be disposed of in accordance with the Controlled Substances Act and DEA regulations.
In addition, state regulatory plans must include requirements to conduct annual inspections of a random sample of hemp producers to verify hemp is not being produced in violation of the rules.
Growers that violate the rules are not subject to criminal action by local, state or federal government authorities, but each state must create a corrective action plan that includes a reasonable time frame in which producers will correct violations.
Producers operating under a corrective action plan also must periodically report to the state government for no less than two years following the violation.
A producer who violates the rules three times in a five-year period will be ineligible to produce hemp for five years from the date of the third violation.
Should a hemp farmers’ products be found to have THC levels between 0.3% and 0.5% the new rules would not consider producers to be in violation, but they would still need to dispose of the plants.
According to Anderson, the owner of Knotweed Farms, this is the particularly frustrating aspect of the new rules since ensuring a crop does not exceed 0.3% THC is extremely difficult.
“No plant variety could meet such strict tests unless you don’t take the seed to full maturity,” he said. “The genetics just aren’t there yet, so a lot of this falls onto the farmer and the only way I can determine the concentration of THC is to pay someone to come test my plants each month, which is expensive.”
Even the USDA said it can not yet properly regulate seeds.
“USDA will not include a seed certification program in this rule because the same seeds grown in different geographical locations and growing conditions can react differently,” the new rules state. “For example, the same seed used in one state to produce hemp plants with THC concentrations less than 0.3%, can produce hemp plants with 10 THC concentrations of more than 0.3% when planted in a different state”
While the Colorado Department of Agriculture allows farmers to avoid disciplinary action if their crop has 0.3% to 1% THC, and can work with farmers so they don’t have to destroy their crops, that will have to change under the new rules.
The state department is trying to iron out these kinks, working with various state, local and tribal agencies, as well as industry leaders in testing, research, processing, finance and economics to establish a statewide initiative known as the Colorado Hemp Advancement and Management Plan. Koontz, the industrial hemp program manager with the Colorado Department of Agriculture, said the plan won’t be ready until December.
“Our teams are in the process of analyzing this detailed new rule and will leverage its directives in support of our state’s industrial hemp farmers,” said Kate Greenberg, the Colorado commissioner of agriculture. “Colorado is a national leader within the developing hemp industry and we look forward to maintaining that leadership.”
Those interested in submitting written comments about the interim final rules can do so for the next 60 days via the Federal eRulemaking portal at regulations.gov.