The USDA hemp rules are out, and they account for some THC variance

(This developing story has been updated with additional details and reaction to the rules.)

Farmers growing hemp would get a small cushion in THC limits under nationwide rules proposed Tuesday by federal agriculture regulators.

Under the U.S. Department of Agriculture’s draft rules, crops testing higher than 0.3% THC due to uncertain genetics and variation in sampling and testing procedures will have a range of “measurement of uncertainty” that their crops must fall within for their test results to be considered acceptable.

“USDA recognizes that hemp producers may take the necessary steps and precautions to produce hemp … yet still produce plants that exceed the acceptable hemp THC level,” the rules say.

The guidelines will be published in the Federal Register on Thursday and take effect immediately.

Farmers wouldn’t be considered in negligent violation unless their hemp crops test above 0.5% THC, according to USDA Undersecretary Greg Ibach. Ibach heads up the USDA’s Agricultural Marketing Service (AMS), the division responsible for drafting the federal rules.

Still, farmers with hemp that tests at 0.3%-0.5% THC “would still need to dispose of the plants,” the agency said.

The THC variance may give some hemp farmers additional comfort they won’t face penalties for hemp above 0.3% THC, said Shawn Hauser, a hemp specialty lawyer at the Vicente Sederberg firm in Denver.

But the proposal “may not go far enough for farmers whose profit or loss can depend on a  minuscule amount of THC content,” she added.

“More protections for ‘hot’ hemp are needed to protect legitimate operators who are complying with the rules but experience reasonable variances in testing results.”

Along with the interim final rule, the USDA will release a guidance document that will include the specific steps for sampling, including how to collect a statistically representative sample of a producer’s crop.

Under the new federal crop sampling and testing provisions:

  • Crop testing must be carried out in a Drug Enforcement Administration-registered laboratory.
  • Sampling of hemp flower material must be conducted within 15 days before anticipated harvest by a USDA-approved sampling agent, which could be a federal, state or local law enforcement agent.
  • States may submit alternative sampling and testing protocols for consideration if they may result in comparable or similarly reliable testing results.

State plans

Ibach said the AMS will work with the states and American Indian tribes that have passed hemp production legislation to approve their plans as soon as possible.

The 2018 Farm Bill requires the USDA to evaluate state and tribal plans within 60 days after submission.

“States hopefully will take the opportunity to review their plans against the USDA rules and regulations and make any adjustments they need to,” said Ibach, who added that states that already submitted hemp proposals should “re-affirm” them.

State and tribal plans must include procedures for:

  • Tracking the land where hemp is grown
  • Testing for the concentration levels of THC
  • Disposing of non-compliant plants
  • Compliance provisions for handling violations, including farm inspections
  • Sharing information with law enforcement.

The USDA will work with producers in states or tribes that do not have a USDA-approved plan, as long as hemp production is not prohibited in those states, Ibach said.

For example, farmers in South Dakota, which outlaws hemp production, would not be able to legally produce hemp because of the state’s current position.

The rules leave in place the potential for broad state differences in how hemp is grown and sold.

The USDA’s guidelines would “provide a greater degree of certainty and uniformity to hemp industry participants but will still result in state-by-state differences that require careful attention,” Philadelphia cannabis lawyer Seth Goldberg of the Duane Morris law firm wrote in an email to Hemp Industry Daily.

However, states and tribes may not prohibit interstate shipments of hemp lawfully produced under an approved state or tribal plan or a USDA-issued license under the rule.

There will be a 30-day waiting period for USDA to start looking to license producers living in states or tribal lands that do not suggest rules to the USDA.

Public comment needed

When the USDA interim rule is published to the Federal Register, it will trigger a 60-day, public-comment period ending Dec. 30.

“We will use the 2020 growing season as a chance to test drive the interim rule to guide any adjustments,” Ibach said.

The interim rule expires in two years, by which time the USDA hopes to have final rules in place.

For more information, or to read a draft copy of the interim final rule, click here.

Laura Drotleff can be reached at [email protected]

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18 comments on “The USDA hemp rules are out, and they account for some THC variance
  1. Dillon Gross on

    What are you talking about? Did you actually read the testing and sampling protocols? These regulations will absolutely destroy the industry.

    Reply
  2. Katherine on

    Still confused regarding what they plan on doing. .3 or .5. Is it THCa or delta9. Wish that it was black and white rule. Still grey area to me. When testing, you can take a hemp bud divid it in half send it to two different labs and get totally different results.

    Reply
    • Lee on

      Any hemp with over .3% thc has to be destroyed, period. Thc is defined as delta 9 thc plus .877 thca. Basically total thc after decarboxylation.

      Reply
    • KR Woodburn on

      It is 0.3 % with a variance through the labs testing results. That variance is for each individual test.
      Example#1 If your crop tests at 0.35 and the variance is 0.06 then the range is 0.41 to 0.29 and they will allow it as legal hemp based on it being at or under the 0.3

      Example #2 If your crop tests at 0.35 and the variance is 0.03 then the range is 0.38 to 0.32 and your crop is illegal and hot as it is on both higher and lower figures above 0.3

      The 0.5 % number to just above 0.3% is supposed to reflect that the farmer did everything they could to select the right genetics that keeps their crop not hot.
      This is based on results from 2014 Farm Bill pilot program results as many have run hot and this is supposed to be an average “hotness” when otherwise in compliance.

      Reply
      • Matt on

        KR, that is a correct reading. At least it is the way I understand it from my reading and talking with Pixis’ testing labs.

        My issue is the definition of “Cannabis Product” and sub-definitions of “Hemp Products” and
        “Marijuana”. “Cannabis Product” includes all products produced from the cannabis plant (including, but not limited to seed, flower, fiber, extract, distilled oils, etc…).

        From my reading, any/all “Cannabis Product” that tests above .3% D9-THC is to be defined as “Marijuana” and must be set for destruction.

        I have not seen a single batch of extracted crude hemp oil that tests lower than 1%, and more often closer to 3. Dewaxing can increase concentration by another 1%, and distillation can raise that concentration another 1% (by removal of terpenes).

        This will classify all CBD distillate (prior to THC remediation/conversion processes) as “Marijuana”.

        Because everything in the extract/distillate realm is above the .5% limit, all handlers/processors are considered “negligent”.

        This is what frightens me.

        Reply
  3. Terry Toner on

    .3% total thc is not a reasonable benchmark for an emerging industry!

    When I visit farms I see men and women working,farming.paying taxes
    Construction crews installing concrete floors and buildings, for drying and processing. Paying taxes.
    When I visit production labs, I see people working, making tinctures and salves from hemp to ease people’s pain. And paying taxes.

    When I’m in the store I see people purchasing creams and salves with cbd from hemp in it, using it to ease pain from arthritis and the pains of life, and paying taxes.

    This plant will be used to replace virtually all fossil fuel plastics that is killing our environment, houses from the byproduct, mixed with Lyme, creating a new emerging home building market.

    Right now what I don’t see? Our government helping.

    You can just as easily said 3/4% or 1% total thc, until genetics catch up! or how about moving thc down the drug schedule a notch or two? “ as dangerous as meth and heroine” ? Give me a break. That’s a farce and you know it.

    This is a new industry, with so so much potential to help people feed their families and to ease pain from the aches of life.

    A government that is of the PEOPLE would certainly expect you to act like a government of the PEOPLE!

    Reply
    • Ricardo on

      There is a big difference between hemp and marihuana. All of those taxes are for marihuana, in California a state license costs $900 and that is it.
      Europe has a thc level of .2 and it seems to be working well with their genetics. They are trying to raise the thc to .3 to match Canada and the USA by Jan. 2021. This way exports will meet the same standards. If the thc amount is raised to .5 then people will want 1% then 1.5 so where does the definition of cannabis sativa hemp become cannabis sativa marihuana? Lets keep our standards and then we can evaluate its effectiveness and adjust after we have reliable data.

      Reply
    • Bryan Woolard on

      We need to get the general public behind this before it’s to late and big money/pharma and a money hungry
      ( materialistic) government take full control. Only way this is going to happen is a massive sample give away on a national scale. Our economy is the best it will be for along time. If everyone starts showing hot on random drug screens from low thc cannabis use, in the end they will have to up the limit period. All the big money needs workers to build there products, buildings, roads, and more. Basically it would be a working strike. We have to ban together on this. All races, sex, creeds. But for anyone to stand up for this they need to feel the relief. Sorta funny when you think about it. The money from investors driving this will spend millions on states at election time to spread the word. Imagine if they spent millions on free samples. This plant sells it self once consumed. Granted the money driving this has some greed in it and the rest of us want people in general to be healthy. But at this point we are all on the same team. We will cross the other bridge later. Can any one out here start a true web site ( leafly is getting some of this) but a web site that normal people can log into and post what conditions they treat, what strain, effects good or bad. Make sure everyone references when they was younger they treated xyg etc. this way it is not admitting for any employment watching their employees on line activity. But then all of us could share the same site as references. Instead of scrolling the internet for hours finding random cases, we need to organize on a larger scale. The free samples would help alot of depressed/ sore/ broke people see that they have a problem and help to to address it. We was not put on this earth to just be paid legal slaves to the government for their needs. We have a higher purpose, the thc will help people see that and that is why they don’t want everyone to have it. There is a lot, but not all I think will realize this once they consume it and their brain connections start to heal from all of the chemicals. That is why they are so scared of it. It goes back to the ancient technology, scrolls, tablets and more for a reason. People need to wake up. Religion of all types which all came from the same energy/god/ohm/ source/ creation/ one conscious. What ever you call it. Some how people even twisted that to put them against each other.Just like they say not to take the Bible word for word. They even know the truth is in there in bits and pieces. For example genesis by chapter 4 if you read word for word you will see the serpent told Adam eve the truth not the figure there self represented as a god. Then once they ate from the plant and then became aware which by our nature we should. For me cannabis made me aware. Back to the reason. But then the people( ancient astronauts theory comes in here big time) said Adam and Eve ate from the tree and are good like like us. So that proves they are gods by only knowing, or what they call god they even miss understood. We all go back to energy and star dust once we are done if you listen to the ancient technology. They explain in detail in the scrollls and tablets that have been translated. Final thought. Why else would they start translating scrolls to only get 20-30 percent done and then look to the sky and not release any more details and keep them in locked vaults with armed guards protecting them. Certain religions use parts of the knowledge from the scrolls/ tablets to control us I think. We bicker amongst our selves so much we loose our power. Just like the union, turmoil in the group weakens us. We need to join together and go at his head on to win. This is but only one more argument to keep our eyes off of the real prize.

      Reply
  4. Charlie on

    I strongly believe that hemp’s MAXIMUM THC level should be at 1.0%
    This is a real-world reasonable working limit.
    Foreign regulators will be more lenient with their farmers and hemp products manufacturers, and the U.S. will not be able to fairly compete with them in global markets.
    USDA and/or FDA : PLEASE ALLOW 1.0% THC IN ALL HEMP PLANTS AND HEMP PRODUCTS. This is a REAL-WORLD and reasonable number.

    Reply
  5. steve ayers on

    i curently run a processing plant in Ky to help the farmer the THC level needs to be at .99 to insure the crop the CBD and THC is effected by the weather and growing conditions of this crop then hold the processor to the .3 for consumer goods

    Reply
  6. Mark Neumann on

    The problem in Wisconsin this year will be nationwide next year. The whole industry is about to be bottle necked into a quagmire of limited resources and intelligence brought on by special interests groups threatened by a plant. Stock up on oil now while its available.

    Reply
  7. Drarshad raza on

    Can any one define the reasons for the hemp crop to go “HOT” beside the genetics. I man real world experience. Does temperature & climate has any effect on THC accumulation in crop??

    Reply

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