On October 29th the USDA finally released its interim rules for the production and testing of hemp.The next step is for the government to enter these rules into the Federal Registrar, where they will sit for a 60-day open comment period. Once the comment period ends, final rules will be written and be in affect for a little more than two years later. While these rules are not fully final yet, they are a major step in the full implementation of the 2018 Farm Bill. If you are hemp cultivator or considering entering the booming industry, it’s vital to stay up-to-date so you can be ready and 100% compliant.
While the team at ACS Laboratory continues analyzing the full scope of the new rules, we wanted to start by highlighting procedures surrounding Hemp THC testing.
In this post –
State hemp testing requirements
USDA hemp testing requirements
USDA’s recorded webinar & transcript
STATE & TRIBAL PLANS
According to the interim hemp rules, if a state or tribe wants to have primary regulatory power over hemp production, they must submit a plan for approval to monitor and regulate the crop. This includes procedures for sampling and requirements for testing hemp to ensure that it does not exceed the acceptable hemp THC level (0.3%).
As of today, several states have written hemp rules that they will submit for approval. Florida, in particular, has completed its rule-making process and is ready for final review after which it will send the proposal to the federal government.
State plan requirements for hemp testing
- Samples must be sent to a DEA registered laboratory for testing
- Lab testing methods must be reliable for THC potency testing
- All samples must not exceed .3% Total THC on dry weight analysis
- Total THC potency must be calculated by following equation: THC = (%THCA) x 0.877 + (%THC)
- Reliable methods include gas or liquid chromatography with detection, which analyzes THC and THCA to determine final potency
- Alternative testing protocols will be considered if they are comparable in accuracy
- Samples must be collected and sent within 15 days prior to anticipated harvest
- Farms under 10 acres test a minimum of 1 plant per lot or acre
- Larger farms should test in accordance with Recommended Methods of Sampling
What if the sample tests higher than .3% THC?
- States must include plans for disposal of non-compliant hemp
- Must be a high degree of certainty before any crop is disposed; USDA will accept test results above .3% within a certain margin of error as determined by the state
- IE: a laboratory reports a result as 0.35% with a +/- 0.06 margin of error, it is still legally considered hemp
What are the laboratory requirements?
- Labs should meet the AOAC International standard method performance requirements
- Laboratories must report the measurement of uncertainty as part of any results
- Labs must obtain a DEA registration prior to testing
- USDA is also considering requiring labs to comply with “Laboratory Approval Program (which will go beyond ISO 17025 accreditation)
- Approved laboratories would be posted on the USDA Domestic Hemp Production Program website
WHAT IF MY STATE DOESN’T HAVE A PLAN?
If your state chooses not to submit a hemp cultivation plan, or their plan has not yet been approved, you can still apply for a hemp license directly with the USDA. In these cases, you must comply with USDA’s established procedures for sampling and testing below:
USDA procedures for sampling and testing
- Samples must be collected by USDA approved sampling agent
- You must pay any fees associated with sampling
- You must follow USDA guidance on sampling procedures (not yet posted)
- Procedures will include collecting a minimum number of plant specimens
- Samples must test at or below .3% THC based on post-decarboxylation results
- Samples must be reported on a dry weight basis
- Approved methodologies include gas or liquid chromatography (or similar method)
What if my sample tests higher than .3% THC?
- You may request that the non-compliant sample be retested (at your own cost).
- Samples exceeding acceptable hemp THC level must be disposed of
- You must arrange for disposal of the entire lot by an authorized state or federal enforcement officer
- You must document and submit proof of disposal to the USDA following completion
What are the USDA’s laboratory requirements?
- All labs must be registered with the DEA
- USDA is also considering requiring requiring labs to obtain an additional USDA license (see above)
- Labs will be required to share test results with you (the hemp producer) and the USDA
- USDA will provide instructions on how to submit results to USDA
- Labs may provide results in any manner so that you can produce a copy of results
- Web portal or electronic mail is preferred
At ACS Laboratory we’re at the forefront of the latest federal regulations. We are already submitting electronic results, utilizing the best-in-class gas chromatography testing methods,reporting THCA and Total THC and exceeding the minimum quality requirements through our ISO 17025 accreditation. When testing your hemp at our facility, you can feel confident that your results will be compliant with current and future regulations.
Contact us today to learn more.
THE USDA HOSTED A WEBINAR
You can watch the recorded session by Jeffrey Davis here.
Prefer to read? Here’s the full transcript of the webinar.
On October, 31, 2019, USDA formally issued an interim final rule establishing the USDA Domestic Hemp Production Program. The following is a basic overview of the program.
To begin, we will provide a basic overview of hemp-related provisions under the 2014 Farm Bill.
Under the 2014 Farm Bill, state departments of agriculture and institutions of higher education were permitted to produce hemp as part of a pilot program for research purposes.
The 2014 Farm Bill did not allow for the production of hemp for general commercial activity.
It also did not remove industrial hemp from the Controlled Substances list.
Moving forward, the
2018 Farm Bill removed industrial hemp from the Schedule 1 list under the Controlled Substances Act.
It also directed USDA to develop a domestic production program to review and to approve plans submitted by states and by Indian tribes.
It also directed USDA to establish a federal plan for those producers in states and tribes that do not have a USDA-approved plan as long as the production of hemp is not prohibited in those states or tribes.
It extended the 2014 Farm Bill provisions for 12 months after the 2018 Farm Bill provisions come into effect.
Please keep in mind that states and Indian tribes may not prohibit the interstate transportation or shipment of hemp as lawfully produced under a state or tribal plan or under a license issued under the USDA plan or the 2014 Farm Bill.
The following are some basic provisions of the interim final rule.
The interim final rule is effective upon publication in the Federal Register. Publication occurred on October 31, 2019.
The interim final rule includes a public comment period, allowing USDA to seek input on the rule as it as enacted. USDA will use the 2020 growing season as a chance to test drive the interim rule to help guide any adjustments that are made in the final rule.
The interim final rule sunsets after two years, which allows time both to make it through a full crop cycle and for USDA to deliver a final rule.
The following slides summarize some issues around tribal jurisdiction.
The rule notes explicitly that a tribal government desiring to have primary regulatory authority over the production of hemp and the territory for which it has jurisdiction,
can administer a USDA approved plan for hemp production. This is true even in cases in which tribal lands may be contained within the boundaries of a State which has explicitly banned the production of hemp or a state that has a USDA approved plan, but for which the tribe has land jurisdiction.
With the publication of the interim final rule states and tribes may not prohibit the interstate transportation or shipment of hemp, that is lawfully produced under an approved state or tribal plan, a USDA issued license or the 2014 farm bill.
The following slides summarize other key provisions of the interim final rule.
The interim final rule provides guidance on some of the basic provisions needed from from states or tribes to obtain plan approvals.
State and tribal plans must include the following
They must include procedures for tracking the land where hemp is grown, procedures for testing using post-decarboxylation or other similarly reliable methods for delta nine tetrahydrocannabinol concentration levels, otherwise known as THC.
They must include procedures for disposing of non compliant or hot plants.
They must include compliance provisions. Otherwise, how to handle violations, and requirements for inspection of farms.
They must include procedures to share information.
And they must be able to certify that the state or tribe has available resources to manage their plans.
The interim final rule provides for a 30 day waiting period for USDA to license producers whose states or tribes do not submit plans for approval.
Producers in states or tribes that will have a plan are expected to enroll in those plans.
The interim final rule also contains requirements for sampling of hemp.
States and tribes must ensure that a representative sample of the hemp production is physically collected
Sampling must be conducted within 15 days prior to the anticipated harvest
A USDA approved sampling agent or a federal, state, or law enforcement agent collect samples from the flower material of the hemp plant.
A guidance document which was issued outside of this interim final rule includes the specific steps for sampling, including how to collect a statistically representative sample. This document is available on the AMS website.
Please note that alternative sampling and testing protocols will be considered if they are comparable and similarly reliable.
Testing requirements are as follows:
Testing must be completed by a DEA registered laboratory
Any licensee may request that the laboratory retest the samples, if it is believed that the original THC level test results were in error.
A measurement of uncertainty or “MU” must be estimated and reported with test results to ensure the test uncertainty is taken into account. If the actual THC level is within the range of MU, the results will be considered to be acceptable.
A measurement of uncertainty is a scientific calculation that make allowances for variation and sampling and testing procedures.
If a test result is up to 0.5% THC concentration, the result is not considered a negligent violation. However, the crops still must be destroyed.
The Farm Bill specifies that producers with more than three negligent violations in a five year period will be ineligible to participate in the hemp program.
The following slide is a summary of some basic provisions for hemp producers.
To produce hemp, you first need to be licensed or authorized under a state, tribal or USDA hemp program. The program plan you are licensed under ultimately depends on the location of your hemp growing facility.
The first step is to contact your local state Department of Agriculture or tribal government to see if they have a hemp production plan that has been submitted to or approved by the USDA
If your state our tribal government has an approved plan or it’s in the process of developing a plan, you must apply to and be licensed or authorized under its hemp program.
If your state or tribal government does not have a pending or approved hemp production plan, you may apply for a USDA hemp production license.
Applications to obtain a license to produce hemp under the USDA production plan are available on the USDA hemp program web page.
Please remember that you cannot receive a hemp production license under a state, tribal government or under the USDA plan, if you have been convicted of a felony related to a controlled substance sometime in the last 10 years.
Basic steps to becoming a hemp producer under state or tribal government plan are as follows:
Step one, apply to the state or tribal government and receive an authorization to grow hemp.
Step two. After you have planted hemp visit your local USDA Farm Service Agency office, provide the FSA office with your state or tribal license or authorization identifier.
You should also provide the FSA office with the geospatial locations where you are growing hemp. Upon doing so you will receive a lot number or, lot numbers, from the FSA.
Please remember when it is time to sample the lot for THC content, you will request an authorized agent come to sample each lot. You will also be required to follow proper sampling and testing procedures for measuring hemp THC content.
Also, you will be required to submit all required information to your state or tribal government
Under the USDA plan, the first step is to verify that your state or tribal government does not prohibit the production of hemp. Next, check with your state to be sure that your state or tribal government does not administer their own hemp production program.
The following step is to submit to the USDA hemp program, an application, and a copy of your FBI criminal history investigation report.
A link with instructions on how to obtain the FBI criminal history report is also available on the USDA AMS website.
After you have planted hemp, you must visit your local USDA Farm Service Agency office, provide them with your USDA license number, and also provide the geo-spatial locations where you are growing hemp. Upon doing so you will receive a lot number or lot numbers from the FSA.
And finally, you must remember to always submit any required information to USDA that is required under the USDA hemp program.
Over the next several months, the next steps for USDA are as follows:
AMS plans to work with states and tribes to approve their draft state and tribal plans.
And also beginning 30 days following the effective date of the rule USDA will begin to review license applications from those individual producers in states and tribes that do not have a hemp production plan.
Please keep in mind, for more information, you can always visit the USDA hemp production Program website at the following link: usda.gov/topics/hemp
Additionally, you can always submit questions to us at Farm Bill.firstname.lastname@example.org
We appreciate you listening. Thank you