USDA Invites Additional Public Comments Per Hemp IFR Till October 8

By William Sumner, Hemp Content Manager, New Frontier Data

The United States Department of Agriculture (USDA) is reopening a public comment period on its interim hemp regulations. Though the initial go-round garnered more than 4,600 comments, the department seeks additional input due to requests from both lawmakers and industry stakeholders.

The USDA hopes to gain feedback from stakeholders, particularly, about a dozen specific issues.

In the first of a two-part review, the Hemp Business Journal breaks down six areas in which the USDA seeks comment, outlining mitigating issues and some of the changes which stakeholders have suggested.

Issue 1: Measurement of Uncertainty for Sampling

The USDA’s Interim Final Rules (IFR) require testing laboratories to report the measurement of uncertainty for hemp samples. Samples that test over the federally mandated 0.3% THC concentration level yet fall within the measurement of certainty are considered legal. However, the IFR only accounts for measurements of uncertainty in laboratory activities, and does not consider pre-laboratory activities like cutting, bagging, sealing, transporting, and handling.

Some have suggested that the USDA add an additional measurement of uncertainty to consider those pre-laboratory activities, and the department is weighing its options.

2: Liquid Chromatography Factor: 0.877

To determine THC concentrations, federal hemp regulations require testing methods using post-decarboxylation, which measures total THC content including both THC and potential THC (i.e., THCA). The USDA is currently considering rewriting the formula to determine potential THC, as the current formula assumes the perfect conversion of THCA to THC without any loss or degradation. The department is seeking a more accurate formula, insisting that alternatives “should be clearly quantified and explained.”

3: Disposal and Remediation of Non-Compliant Plants

Under the IFR, noncompliant hemps plants must be completely destroyed, including parts of the plant that do not contain high concentrations of THC (i.e., seeds or fiber). Though the USDA relaxed requirements on law enforcement supervised plant disposal, the department is seeking input about how best to address remediation. Several possible alternatives include preserving the non-ingestible parts of the plant (i.e., fiber, seeds, stalks, etc.), filtering out the THC from noncompliant plant material, and allowing states to develop their own programs.

4: Negligence

Though the legal THC limit for hemp plants is 0.3%, producers are not charged with negligence so long as the plant does not test over 0.5%. Hemp producers have argued that the limit should be changed from 0.5% to 1%, and it seems that the USDA is open to the suggestion. However, the department requests that all comments “should include quantitative and qualitative data if available.”

5: Interstate Commerce

Interstate commerce has remained an issue in the hemp industry since the 2018 Farm Bill. States having a hardline stance against hemp have seized legal shipments, despite the USDA’s insistence that interstate hemp transports are legal. The USDA wants to know if it should take more steps to ensure interstate hemp commerce, such as requiring transporters to carry additional documents  (i.e., copies of the laboratory testing report[s], a hemp grower’s license, invoice/bill of lading, and contact information for buyer and seller).

6: 15-Day Harvest Window

Among the most controversial aspects of the IFR is that testing samples for hemp plants must be collected 15 days prior to harvest. Many have argued that the collection window is far too short, which places undue burdens on the supply chain, and could result in testing inaccuracies. Many have suggested extending the window to 30 days, and the USDA is seeking justifications for why that window may be more appropriate.

The comment period on the USDA’s Interim Final Rule will remain open until Oct. 8; all interested parties are invited to submit comments online.