• April 14, 2021

USDA’s New Rules Begin a New Chapter for American Hemp

 USDA’s New Rules Begin a New Chapter for American Hemp

The US Department of Agriculture’s final rule for the cultivation of hemp went into effect March 22 and will govern the industrial hemp industry going forward. Photo by Jean Lotus

A new era in the cultivation of industrial hemp begins today as the US Department of Agriculture’s “final rule” on hemp goes into effect. 

The new rules are an extension of the 2018 Farm Bill which legalized hemp for the first time in 80 years and shifted regulation of the crop from the domain of the Drug Enforcement Agency (or DEA) to the USDA. 

“We’re very pleased with the final rule in terms of substance and process,” Jonathan Miller, general council for the Washington-based US Hemp Roundtable, told The News Station. “The interim final rule came out and we identified a significant number of problems. On nearly every one of our major points, the USDA listened and improved it in the final rule.”

The federal agriculture agency received almost 6,000 stakeholder comments on the interim rule, published in the last days of the Donald Trump administration. 

“This is a great example of government working,” Miller added. 

Most significant in the new rules is a more relaxed standard of “negligence” which allows American farmers to increase the tested level of THC (tetrahydrocannabinol) permitted in industrial hemp to 1% from .5% for two growing seasons. 

The Farm Bill defined hemp as non-intoxicating cannabis sativa plants with a THC level of 0.3% or less. 

But farmers raising hemp for the first time in a generation faced the risk of crops testing “hot” at harvest. Some farmers faced threats of criminal prosecution and had their crops burned — in spots like Iowa and Kentucky and elsewhere — by law enforcement for testing over the mark. 

In a young industry with few certified seed varieties and experimental genetics, some farmers found their crops tested hot because of circumstances beyond their control, including soil acidity, harvest dates and even the weather. 

Regulators were unforgiving, and in some cases state laws had to be changed. The DEA’s definition of intoxicating levels of THC, far from scientifically proven, turned out to be a costly episode for farmers growing hemp for the first time.

Hence, hemp advocates and state departments of agriculture lobbied for more wiggle room in the levels of allowable THC in hemp and won. 

The USDA said the agency can’t change the below-0.3 THC definition of hemp. It was technically written by Congress — though more technically, the rule was flushed out and codified by the anti-substances-of-all-sorts agency, the DEA — so it must be changed by Congress. 

Many, including Democratic Sen. Jeff Merkley of Oregon, called the 0.3% THC limit “arbitrary.” They say the initial, congressionally mandated (and DEA approved) rule is holding back the fledgling, if multi-billion dollar, hemp industry. 

In February, the National Association of State Departments of Agriculture (NASDA) voted to approve a push to expand the threshold to 1%.

The new final rule also expanded the time for testing from 15 days after harvest to 30 days, which reduces the potential of “long lines at labs,” said Hemp Roundtable’s Miller.

But the USDA rule still requires that the DEA certify all testing laboratories, a requirement hemp advocates believe is too restrictive. 

The DEA doesn’t need to be involved in any way

Jonathan Miller of Roundtable

The DEA gave hemp a parting shot in the agency’s 2020 National Drug Threat Assessment, which came out earlier this month. The agency claimed some hemp businesses were “illegally producing and trafficking marijuana” and “large hemp grows are sometimes used to hide marijuana plants interspersed throughout the hemp plants.” 

The DEA never identified those states, let alone specific farms where agents found these alleged illegal grows. 

While DEA officials stuck to their agency’s unsubstantiated mantra and tried to discredit this new, burgeoning industry, agriculture departments around the country saw it differently. They resoundingly  praised the new rules.  

Kentucky Commissioner of Agriculture Ryan Quarles called the new rule “much improved.”

“I am grateful for all of the work done by the previous administration, including that of former Under Secretary of Agriculture Greg Ibach and his team, to have an open line of communication with state leaders,” Quarles said in a statement. 

The new regulations are national and “create an even playing field for all US hemp producers,”  emailed Colorado Department of Agriculture hemp spokesperson Laura Pottorff to The News Station. Colorado already passed a state rule that hemp could test up to 1% THC without farmers losing their crops.

“The rule also sets standards for sample collection and testing which should lead to consistency among states in how hemp is regulated,” Pottoroff added. “Most importantly, consistency leads to market trust and hopefully, less risk to farmers.” 

Jean Lotus

Jean Lotus is a Colorado-based award-winning journalist and hemp-building enthusiast who served on the state CHAMP commission to create Colorado's Hemp Blueprint.

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