USDA Expands Options For ‘Hot’ Hemp Disposal, Delays DEA-Registered Lab Requirements: UPDATE
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USDA Expands Options For ‘Hot’ Hemp Disposal, Delays DEA-Registered Lab Requirements: UPDATE

The USDA says it is delaying enforcement of key provisions of the interim final rule until Oct. 31, 2021, or until it publishes its final rule.

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March 3, 2020

Joy Beckerman, the president of the Hemp Industries Association (HIA), says the U.S. Department of Agriculture's [USDA's] recent delay in enforcing select regulations clears a major hurdle for growers this upcoming season. "That is a step in the right direction, and the [USDA is] saying, 'OK, we're not going to completely kill this emerging industry in the first growing season,'" Beckerman says.

But for Beckerman and the HIA, more improvements—especially those that are permanent—are left to be made. The HIA lays out its suggested improvements in a 14-page letter on the interim final rule's comment section. "These rules, even with these changes, are setting farmers up for noncompliant hemp and failure," Beckerman says about the USDA's revised regulations. "I'm hopeful we may see more changes."

Though the USDA has expanded its allowed methods of noncompliant hemp disposal, it's one particular change Beckerman says she'd like to see honed even further. 

"On the one hand, yes, we’re happy to see [the USDA has] moved from destruction, which was just completely unacceptable, to disposal. But when you look at the methods of disposal, you don't see biochar, you don't see pyrolysis ... You still see a destruction of sorts," Beckerman says. "They're still not giving us anything useful to do with the world’s most useful plant."

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Originally published Feb. 27

The U.S. Department of Agriculture (USDA) is delaying enforcement of two hemp program requirements that have caused uproar in the industry: testing hemp at a lab registered by the Drug Enforcement Administration (DEA) and disposal of non-compliant outdoor crops.

The USDA has developed new requirements for these two areas, which were both highly contested during the public comment period on the interim final rule (IFR). The comment period on the IFR ended Jan. 29 with nearly 4,700 comments. 

These new requirements will be in effect until Oct. 31, 2021, or until the final rule is published—whichever comes first, the USDA says.

Laboratory Testing

Under the USDA’s IFR, hemp’s tetrahydrocannabinol (THC) content must be tested at a DEA-registered lab to assure it remains under the 0.3% federal limit. There were only 47 DEA-registered labs in the entire country, leaving some states without any at all, so the USDA has rescinded that requirement for the time being.

“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,” says Greg Ibach, USDA Under Secretary for Marketing and Regulatory Programs, in a news release.

Under the new USDA requirement, tests can be conducted at labs that are not registered with the DEA. However, the labs must still meet all other requirements in the IFR, the USDA says. This mainly pertains to the requirement to test for total THC by using post-decarboxylation or “other similarly reliable methods,” the USDA says.

Though the delayed enforcement is likely only temporary—the USDA says the change to lab testing requirements will “allow additional time to increase DEA registered analytical lab capacity”—it gives the industry a moment to breathe and build up the infrastructure needed. 

“We are pleased by that delay, as there is no DEA-registered lab in Maine at present, and the department, as well as growers, were worried about a testing bottleneck this year. This postponement gives DEA, the states, labs and growers additional time to work through this testing requirement,” Nancy McBrady, the director of the Maine Department of Agriculture, Conservation and Forestry, tells Hemp Grower. “We hope that with this delay, lab infrastructure will have adequate time to expand in Maine and that there will be greater clarity on the DEA certification process.”

'Hot' Crop Disposal

The IFR also currently requires all crops that test above the 0.3% THC limit, also known as "hot" crops, be destroyed by a DEA-registered reverse distributor or law enforcement. But the USDA’s new requirements give new options for disposing of these hot crops that test above the federal limit.

New options for disposal are:

  • Plowing crops under with curved plow blades to rotate subsoil to the surface and bury the crop.

  • Cutting the crops and blending them with other biomass materials for green manure compost.

  • Leveling the field with tow-behind disking.

  • Using a commercial lawn mower to shred and mix the crop.

  • Trenching the fields and burying the crop at least 12 inches below the surface.

  • Burning the crop on the field.

“The new methods are intended to allow producers to apply common on-farm practices for the destruction of non-compliant plants,” the USDA says in a news release.

The state, tribe or the state’s department of agriculture will be responsible for establishing protocols and procedures to ensure non-compliant hemp is appropriately disposed, the USDA says. Producers must still document the disposal of all non-compliant plants.

“One of the top considerations in making these changes was the desire to provide additional options that minimize, to the extent possible, the resource impact to state and local law enforcement in handling hemp that is out of compliance,” Ibach says. “We look forward to partnering with producers, states, tribes and other stakeholders to deliver regulations that work for everyone."

What’s Next?

During a conference call with the media earlier this month, Agricultural Marketing Service (AMS) Administrator Bruce Summers discussed which provisions of the IFR the USDA may consider reexamining.

Unfortunately for farmers, the strict THC limit is in the hands of the federal government and cannot be changed by the USDA. Congress needs to approve the change.

But in addition to the newly announced enforcement delays, Summers also mentioned during the call that the 15-day harvest window and sampling procedures have “room for discretion” as well. For example, which part of the plant to sample and how much of the plant to take is not clearly dictated in the farm bill, so the USDA may reexamine those provisions.

Farmers and other industry stakeholders will have another chance to air their concerns after this growing season, when Summers said the USDA will re-open comments to capture feedback from farmers’ experiences.