State Agriculture Departments React to the USDA’s Delays of Several Hemp Regulations

State Agriculture Departments React to the USDA’s Delays of Several Hemp Regulations
March 04, 2020

Following thousands of comments and some constructive criticism from several state agriculture departments, the U.S. Department of Agriculture (USDA) is reconsidering some of its rules for America’s hemp sector.

In late February, the USDA announced that it would delay enforcement of certain requirements in the agency’s Interim Final Rule (IFR), the regulations currently governing the nation’s newly-legal domestic hemp production program.

‘Worked Hard to Enable Flexibility’

Under the new guidance, the USDA is temporarily halting enforcement of the requirement that the labs used for testing THC levels in hemp need to be certified with the Drug Enforcement Administration (DEA). It also delayed enforcement of its requirement that hemp producers use a DEA-registered “reverse distributor” or law enforcement when disposing of non-compliant hemp plants under some circumstances.

“Because currently there isn’t sufficient capacity in the United States for the testing and disposal of non-compliant hemp plants, USDA has worked hard to enable flexibility in the requirements in the Interim Final Rule for those issues,” USDA Under Secretary for Marketing and Regulatory Programs Greg Ibach said in a press release.

The USDA said the delayed enforcement of those regulations starts this crop year and lasts until the end of October 2021 or until the final rule is published, whichever comes first. In another document on their web site, the USDA said the decision to delay was based on the thousands of responses they received during the IFR’s public comment period, as well as discussions with “states and tribes as they pursue USDA-approval” of their various hemp programs. “Through these conversations, we have learned that these provisions will serve as a significant hindrance to the growth of a domestic hemp market at this nascent stage,” the statement continued.

Relief at the State Level, But Some Concerns Remain

State governments expressed relief that the USDA was recognizing their concerns about the IFR. “This move will help create more job opportunities, will help our farmers and our economy,”Colorado Governor Jared Polis said in a press release.

Kentucky announced in January it was continuing its hemp pilot program for the 2020 season under the provisions of the 2014 Farm Bill, rather than transitioning to a full commercial program under the IFR.

Following the USDA’s recent announcement, Ryan Quarles, Kentucky’s Commissioner of Agriculture, said he applauded the changes to the IFR. “By delaying DEA lab testing certification until October 31, 2021 or until the final rule is complete, they have given labs more time to get compliant for testing purposes,” Quarles said in a statement emailed to Hemp Benchmarks. “They also heard our concerns loud and clear about on-farm disposal methods, like plowing under and disking, for non-compliant hemp.”

Paul Adams, Industrial Hemp Program Manager for North Carolina, said he considered the USDA delays a good sign that the agency might show flexibility regarding some other contentious issues within the IFR.

“The ‘negligence rule’ of 0.5 percent is certainly very difficult, especially in an industry that doesn’t have the stable genetics like other crops that we produce; through breeding or stress that may or may not be the grower’s fault,” he told Hemp Benchmarks. “We’d like to see that restriction loosened up. And then the 15-day requirement, in terms of harvest after sampling, is a difficult timeline to operate on for both farmers and state departments of agriculture, to actually get the job done in that period of time.”

Adams said regulatory uncertainty is a factor in the decreased number of farmers applying for hemp cultivation licenses in North Carolina this year, compared to the 2019 growing season. “I have existing growers that are wary about the dynamic landscape that we have from a regulatory standpoint,” he added. “And I think there’s a lot of people with [hemp] material still in the barn. So there’s definitely some apprehension about really taking another serious stab at making hemp work, at least from a grower’s perspective.”

Other states appear to be taking a wait-and-see attitude regarding the regulatory delays, especially regarding the issue of DEA-certified labs. “The Nevada Department of Agriculture (NDA) is the only regulatory testing agency allowed to determine THC compliance in Nevada,” NDA Plant Industry Division Deputy Administrator Meghan Brown said in a statement to Hemp Benchmarks. “We are waiting to hear from the DEA on how they will handle certification for states that have both hemp and legal marijuana industries.” But Adams, of North Carolina, said he’s hopeful that the USDA is considering issues that hemp-growing states have been grappling with for several years now. “It’s a good sign that they may be agreeable to making some modifications to make this program work more readily for states that have been in this for a while,” he noted. “I’m glad to see that they have made some concessions.”