USDA Closes Additional Comment Period on Hemp Interim Final Rule

As USDA looks to create a final rule on hemp production, Colorado continues with 2014 requirements until Fall 2021

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The end of the month could have signaled the beginning of a domestic hemp production program nationwide with the start of a new final rule, however, the pilot program has been extended until 2021.  

If the interim final rule had been adopted it could’ve enacted stricter requirements and larger hemp testing samples in Colorado, but the Colorado Department of Agriculture hopes to use the intermediate time to discuss and clarify concerns identified by industry stakeholders in the interim rule. 

And the federal government has been looking for additional feedback, the U.S. Department of Agriculture’s additional public comment period for its interim final rule regarding industrial hemp closed Oct. 8. 

The original deadline for states to begin following official federal guidance under the 2018 Farm Bill was set for Oct. 31. However, with President Donald Trump’s signing of the Continuing Appropriations Act, the hemp pilot program was extended. According to the Federal Register, the USDA’s interim final rule is now effective until Nov. 1, 2021.

The 2018 Farm Bill legalized the commercial production of hemp nationwide and tasked the USDA with establishing a national regulatory framework for hemp production across the country. The bill further removed hemp and other cannabis and derivatives with  less than .3% THC on a dry weight basis from the definition of marijuana. However, if a plant is tested above that percentage it is no longer considered compliant, according to the USDA.

The U.S. Domestic Hemp Production Program was created by the USDA by interim final rule outlining the provisions for the USDA to approve plans submitted by states and tribes for domestic hemp production, according to the USDA website. The rule also established a federal plan for producers in areas with no USDA-approved plan.

Laura Pottorff, the Colorado Department of Agriculture plant health and certification section chief, oversees the state’s Industrial Hemp Program and said the 2014 Farm Bill created the hemp pilot program, and the state will maintain the rules and procedures for regulating hemp set in the 2014 Farm Bill until 2021.

The IHP regulates only the cultivation of industrial hemp, and administers a certified seed program, it doesn’t have any jurisdiction over processing, sale or distribution of industrial hemp, according to the webpage. The program also provides general information for the public and program members.

When the 2018 Farm Bill was passed, it had impact, Pottorff said. With the USDA setting out interim final rules as a result of the bill’s passing, every state who wanted to regulate hemp had to work to comply with those interim rules.

“The positive of having the USDA involved is that all states will be consistent, and there would be consistent rules for anyone growing an industrial hemp crop,” Pottorff said, however, she noted that in the interim final rule there were some difficulties and the rules were stricter in certain areas.

In Colorado, it was felt that was not necessarily conducive to the industry, she added. In turn, the delay of the 2018 Farm Bill was positive for the industry and the growers will continue to work with the USDA to fine tune ground rules and be implemented practically.

The CDA had a chance to comment on interim rules utilizing feedback from stakeholders across the industry, she said. 

She explained that with the USDA interim final rule, in certain areas could be stricter. As an example, the current program has a provision for when a plant may rise above the definition of hemp with .3% THC content.

Current state testing procedure involves removing the top two inches of female plants to be sent to the CDA lab which then uses a process called “decarboxylation” to determine the total percent THC concentration, according to a March 2020 frequently asked question sheet.

“This has been the procedure since the inception of our program and will not change when we adopt the USDA Approved State Plan, as this is also how it is defined in the USDA’s Interim Final Rule,” the factsheet states.

Currently, if a sample is taken and the crop tests higher than .3% but lower than 1%, “we allow a waiver for discipline — so we would not revoke a person’s registration as long as they chose to waive,” Pottorff said. But, the 2018 Farm Bill and proposed Interim Final Rule stated it would be negligent to walk that number back to .5% THC and 100% sampling of all lots.

“That is a big list, and it’s not that we disagree, but having to test 100% of the hemp growing and possibly having to walk negligence back to .5% THC may have caused quite a few more folks to be negligent or non-compliant,” Pottorff said.

She asserted that no one was stating that having hemp above .3% THC was alright, it was still non-compliant, but as long as the sample was in that window between .3% and 1% THC, Colorado was allowing a waiver from discipline. USDA had similar guidelines, but a stricter upper limit.

Pottorff hopes that discussions will continue surrounding that negligent window. 

And in terms of 100% sampling of all lots, Pottorff said the CDA would have to begin using third-party sampling agents and certify or approve outside laboratories. Some provisions had been put in place for moving toward those actions previously.

She believes that the USDA may be willing to think about provisions for different protocols for samples in research and development as opposed to commercial production. In the 2018 bill and interim final rule, there was no provision for research and development for treating this type different in terms of sampling. 

And 2019 held some interesting results for the industry. Last year, the CDA saw a tremendous increase in the number of registrants, and as a result, the market became flooded, she said.  The CDA has also seen a large drop-off in the number of farmers who registered to be in the program, and quite a few registered, and it does not appear that everyone who registered actually planted for a variety of reasons, she said.

“And one of the driving factors we believe is that saturation of the market,” Pottorff said. “A lot of people have reported to us they have product from 2018 still sitting on their property — and no market for it.”

Pottorff also noted that the Colorado Hemp Advancement & Management Plan, or CHAMP, report is slated to be released later this year. The report was supposed to be released in the spring of this year, however, due to COVID-19, the report release was pushed back, she said. 

The state webpage explains that the initiative incudes developing blueprints for the full supply chain in order to identify legislative and regulatory development, department resources, industry guidelines and support areas, research and advancement needs and opportunities and center of excellence development.

In the coming year, the agriculture department will continue to work with the USDA on the behalf of Colorado hemp producers to implement as many recommendations from CHAMP stakeholders as possible in the state’s plan.

—Avery Martinez

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