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USDA issues interim hemp rule

Daily Oklahoman - 11/20/2019

Nov. 20--The U.S. Department of Agriculture's interim rule governing the nationwide production of hemp is in the field.

The agency published an interim rule on Oct. 31 that will remain in effect for two years.

Meanwhile, the agency is accepting public comments on the interim rule between now Dec. 30.

The agency stated it intends to publish a final rule in late 2021.

Kenny Naylor, food safety and consumer protection services director at Oklahoma'sDepartment of Agriculture, Food and Forestry, applauded the interim rule, saying it clears up potential confusion when it comes to moving product across state lines.

Producers should be able to ship their crops to processing facilities or end-users without having to worry about differing rules from state to state, he observed.

"These people should be able to transport without any issues. That was needed," he said.

Still, Naylor said other portions of the interim rules likely will attract comment, such as certain testing requirements and how producers that violate THC limits are handled.

Joseph White, whose Midwest Hemp grows product under Oklahoma's pilot program, said he is certainly interested in the testing requirements.

White said he worries his crops, which meet acceptable tetrahydrocannabinol (THC) levels under Oklahoma's testing criteria, wouldn't be able to do so under the proposed federal program.

The USDA would require the product's THC levels to be tested differently by requiring the inclusion of a hemp plant's THCA (tetrahydrocannabinolic acid) content as part of a calculation of its total THC content, while still maintaining a 0.3% total limit on what would be allowed. Oklahoma standards exclude the acid from that calculation.

"None of the cultivars I raised this year would be legal under the USDA's interim rule," White said. "I am extremely concerned about my crops going hot now because of the new rule changes."

Beyond the testing requirement, the interim rule sets out various policies and procedures that both the federal government and state or tribal authorities that decide to take oversight of hemp production are required to follow.

It requires regulators to collect and maintain information, including geospatial data, about what lands or greenhouses are used to produce the crop.

Testing samples are required to be collected from a crop within 15 days before it is harvested and tested at a U.S. Drug Enforcement Administration-registered laboratory.

Plants that violate the THC standard must be destroyed by individuals authorized to destroy illegal crops under the U.S. Controlled Substances Act.

State and Tribal plans must include compliance procedures to ensure hemp is being produced in accordance with the USDA's requirements that include conducting annual inspections of, at a minimum, a random sample of hemp producers.

They must also include procedures to handle violations that might include either failing to register the land under a state or tribal program, not obtaining required licenses or permits, or producing hemp that has too much THC.

When it comes to the last part, the federal rule defines a negligent operator as one who fails to exercise the level of care that a reasonably prudent person would follow to comply.

If a grower's plants have a higher THC level of 0.5%, the rule sets out they would be negligent.

However, it states a grower could avoid that designation if the crop's THC level was between 0.3% and 0.5% and the grower had used seed that had reliably grown compliant plants in other parts of the country.

The agency said it is seeking comments about whether or not any other factors should be considered.

That could be important, given a grower labeled as negligent three times within a five-year period wouldn't be allowed to grow hemp for five years after the third citation.

Any producer who intentionally, knowingly or recklessly violated the THC standard could be criminally prosecuted, the rule states.

The agency states in the interim rule it did not include a seed certification program because identical seeds grown in different geographical locations and growing conditions can react differently when it comes to THC levels.

It states it also found it doesn't have accurate data on the origins of most hemp seed planted in the country, and lacks the technology necessary to determine seed planting results across the nation.

Interest grew in Oklahoma's hemp program in 2019, compared to the year before.

This year, 351 growers obtained licenses through Oklahoma's research-based pilot program, compared to just 28 the previous year.

Those growers, they said, had aimed to plant the crop on 21,340 acres in 2019, compared to just 445 acres the previous year.

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