Oct. 31, 2019 — After much anticipation, the USDA announced their interim ruling and federal guidelines for U.S. hemp farmers, including guidelines for how hemp will be sampled and tested for THC content. This new ruling will come into effect once it is published in the federal register on Oct. 31 and will sunset after 2 years, when a final ruling will be put into place.

The USDA will begin issuing hemp production licenses as part of this new program, for which applications can be submitted 30 days after the effective date of the interim rule. This will include a criminal background check and a report of hemp acreage by each applicant to the FSA (Farm Service Agency) after spring planting. Growers will also be required to outline each individual lot being used to grow hemp (including greenhouses), providing addresses, details on purpose for the crop and GPS coordinates for lots without addresses.

As part of this ruling, states with hemp programs will be asked to review the new hemp regulations and make any adjustments to their programs that are necessary to make them compliant and resubmit them to the USDA if necessary. The new ruling, according to USDA undersecretaries Greg Ibach and Bill Northey, closely follows the 2018 Farm Bill, though states will still need to check the new interim ruling against their state programs.

Other key highlights include:

  • States are prohibited from banning the interstate transport of legally grown hemp
  • Growers in states or tribes without an official hemp program in place will still be able to apply for USDA hemp grower licenses, provided that their state or tribe has not banned hemp production
  • Hemp farmers will be able to apply for a variety of programs in the 2020 growing season, including loans, crop insurance, disaster assistance and conservation programs.

As a part of this ruling, the USDA also established guidelines for sampling hemp crops. The full document outlining hemp sampling guidelines can be found here. Highlights include the following:

  • Samples will be collected by authorized state, federal or USDA agents 15 days before projected harvest
  • Sample sizes will be determined by acre: this includes one plant per acre for lots of 10 acres or less, with an equation to determine sample size provided for lots over 10 acres
  • The samples will come from random intervals throughout the fields and greenhouses and will be cut “just underneath a flowering material, meaning inflorescence (the flower or bud of a plant), located at the top one-third of the plant.”

USDA also developed guidelines for sampling and testing procedures that are being issued concurrently with this rule. The full document outlining hemp testing guidelines can be found here. Highlights include:

  • All labs testing hemp THC levels are required to register with the DEA
  • Labs must utilize “post-decarboxylation or other similarly reliable [testing] methods approved by the Secretary”
  • Hemp will be tested by dry weight, with a moisture content generally between 5-12%

Labs will also calculate THC within a “measurement of uncertainty,” a scientific measurement that allows for hemp to slightly exceed the 0.3% THC limit based on the lab’s confidence in the test’s accuracy. An example from the interim ruling says the following:

“For example, if a laboratory reports a result as 0.35%. [THC] with a measurement of uncertainty of +/- 0.06, the distribution or range is 0.29% to 0.41%. Because 0.3% is within that distribution or range, the sample, and the lot it represents, is considered hemp for the purpose of compliance.”

To view the full interim ruling, click here.