USDA Announces Delay of Enforcement of Requirement for DEA Registration of Hemp Testing Laboratories

On February 27, the U.S. Department of Agriculture (USDA) announced the delay of enforcement of certain requirements under the interim final rule (IFR) for the U.S. Domestic Hemp Production Program.

As we previously reported, on Nov. 7, 2019, USDA published its much-anticipated rule establishing the requirements for hemp production under USDA, state and tribal jurisdictions.  The rule was published as an IFR to allow for the quick implementation (in time for the next growing season) and still provide interested parties time to submit comments.  USDA indicated that it planned to publish a final rule two years later.

Based on comments received, it appeared that the IFR requirement to test the hemp 15 days before harvest was expected to create problems for the farmers.  Under the IFR, testing must be done by DEA Registered Testing Laboratories.  However, according to commenters, the capacity of these laboratories is insufficient to handle the number of samples anticipated; some states have no DEA Registered laboratories, whereas others only have one or just a couple.

To address this complication, USDA has decided to delay enforcement of the requirement for labs to be registered by the DEA.  As announced on February 27, 2020, USDA plans to delay the registration requirement until Oct. 31, 2021, or until the final rule is published, whichever comes first.  The laboratories must still meet all the other requirements in the IFR, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods.  Also, all labs must work towards being compliant with the DEA registration requirements before the period of delayed enforcement expires.

Another major hurdle in the IFR is the disposal of “hot hemp,” i.e., hemp that has more than 0.3% THC on a dry weight basis.  USDA has delayed enforcement of the requirement that producers must use a person authorized to handle marijuana under the Controlled Substances Act, such as a DEA-registered reverse distributor or law enforcement, to dispose of non-compliant plants.  USDA has increased flexibility in disposal methods by adding some common on-farm practices for the destruction of non-compliant plants making them non-retrievable or non-ingestible. A list of allowed disposal techniques and descriptions is available on the U.S. Domestic Hemp Production Program web page and include plowing under non-compliant plants or composting into “green manure” for use on the same land.