In comments submitted to U.S. Department of Agriculture (USDA), Agricultural Marketing Service (AMS), AHPA requested numerous, significant revisions to the Interim Final Rule (IFR) that establishes a domestic hemp production program before a Final Rule is promulgated in 2021.
AMS has indicated the IFR will be in effect for two years, impacting hemp production during the 2020 and 2021 hemp growing seasons. However, a number of states have already announced they will continue to operate their hemp production programs under the provisions of the 2014 Farm Bill for the 2020 growing season due to the timing of the release of the IFR in late 2019 and technical details that represent significant implementation challenges are the reason for this decision. Some states have also cited the lack of qualified analytical laboratories that meet the requirements defined in the IFR as another consideration.
"The issuance of federal regulations for hemp production in the form of the IFR represent an important step forward for this crop. AHPA also believes that there exists significant room for improvement in the IFR and the subsequent Final Rule," said AHPA Director of Program Development Jane Wilson. "These comments were prepared with considerable input from our more than 40 AHPA members directly engaged in the hemp-CBD trade. We also consulted with partner hemp associations, so we expect these comments are consistent with major concerns of industry stakeholders."
AHPA also strongly recommended that AMS conduct another public comment period towards the conclusion of the 2020 hemp growing season to allow for first-hand experience with the IFR provisions to inform the Final Rule.
AHPA's comments address a wide range of topics, including recommendations to improve the sampling and testing guidelines issued with the IFR. AHPA noted the following concerns with the IFR:
- The requirement to test hemp for THC content within 15 days prior to harvest provides insufficient time to reliably complete THC compliance testing and harvest activities
- Setting the negligence threshold at 0.5% THC does not provide sufficient protection for hemp producers
- Analytical laboratories should not be required to be DEA-registered to perform THC compliance testing
- Law enforcement should not perform sampling of hemp plant material for pre-harvest testing
- The scope of appeals processes should include technical issues
- The provision regarding interstate transportation of hemp should specify the controlling THC test result to avoid legal disputes
Acceptable disposal of non-compliant plant material should include other methods besides crop destruction
AHPA also highlighted ways to improve the separate sampling and testing guidelines issued by AMS:
- Hemp sample preparation procedures are overly burdensome for analytical laboratories
- Hemp sampling protocols should be designed to achieve a more representative compliance testing sample
- AMS should clarify how it intends to evaluate if alternate testing protocols meet the requirements of the testing guidelines
- AMS should provide a public list of approved THC analytical methods
- Determination of moisture content during analytical process and calculation of measurement of uncertainty require clarification
Background
On October 31, 2019, the USDA AMS issued the IFR titled “Establishment of a Domestic Hemp Production Program.” As mandated by the Agricultural Improvement Act of 2018 (2018 Farm Bill), the IFR outlines provisions for AMS “to approve plans submitted by States and Indian Tribes for the domestic production of hemp.” The IFR also “establishes a Federal plan for producers in States or territories of Indian Tribes that do not have their own USDA approved plan.”