Kicking the Compliance Can Down the Road USDA Delays Implementation of DEA Registration and Hot Hemp Disposal Requirements 

March, 2020 - Marc Adesso

The Department of Agriculture (USDA) announced in late February that it's delaying enforcement of certain requirements set forth in its Interim Final Rule (IFR) on the Domestic Hemp Production Program (84 FR 58522) under certain circumstances until October 31, 2021, or until publication of the final rule on such hemp production program, whichever occurs first.

In the notice, the USDA indicates that it is delaying enforcement based on conversations with states and tribes as they pursue USDA-approval of their plans for hemp production, which indicated that delayed provisions would serve as a significant hindrance to the growth of a domestic hemp market at this nascent stage.

The requirements that were delayed are as follows:

  • In order to allow additional time for more THC testing labs to obtain registration with the United States Drug Enforcement Agency (DEA), the USDA delayed enforcement of the requirement to use DEA-registered laboratories for testing (7 C.F.R §§ 990.3(a)(3)(i) and 990.26(e)). Under this guidance, the testing can be conducted by labs that are not yet DEA-registered until the USDA’s final rule is published, or Oct. 31, 2021, whichever comes first.All laboratories engaged in the testing of hemp through this interim period will be subject to the same compliance requirements of the IFR. Specifically, labs must adhere to the standards of performance as outlined within the IFR, including the requirement to test for total THC employing post-decarboxylation or other similarly reliable methods. At the Industrial Hemp Summit held in Danville, Va. (at which Waller attorneys were present) just days before the USDA’s notice was issued, the director of the USDA’s Domestic Hemp Production program, William Richmond, told attendees that laboratory testing requirements were among the aspects the agency could change, while other aspects of the IFR and the 2018 Farm Bill, such as a 0.3% total THC limit and the requirement for information sharing, can be changed only by Congress.

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