Rusty Rumley, Senior Staff Attorney
On February 27, 2020, the United States Department of Agriculture (“USDA”), in coordination with the Drug Enforcement Agency (“DEA”), released a statement delaying enforcement of two provisions from the interim final hemp rules. This delay is in place until the sooner of October 31, 2021 or publication of the final hemp rules. These two provisions deal with THC compliance testing at a DEA registered laboratory and on disposal of hemp crops that test above the legal limit. However, it is worth noting that this is not a change in the interim final rule that was published last October. Further, decisions like enforcement discretion can be modified at any time in the future.
A provision that concerned many hemp growers for the 2020 crop year was the requirement that compliance testing, meant to assure that the crop was under the 0.3% THC on a dry weight basis, occur only at a DEA registered laboratory. The reasoning behind this approach was that crops that test “hot” would not meet the definition of industrial hemp and would therefore be considered marijuana, a Schedule I controlled substance. The resulting issue for hemp growers was that this requirement had the likelihood to create a bottleneck, as less than fifty labs had contacted USDA to be listed as testing locations for hemp by February, 2020. Many states did not even have a single registered lab. In its enforcement discretion, USDA is delaying this provision so that more labs will have time to register with the DEA and make themselves available as a testing location. However, even with the DEA registration requirement suspended for the immediate future, labs will still need to meet the standards of performance as laid out by the interim final hemp rule.
The second issue addressed by the statement of enforcement discretion addressed the disposal of hemp plants that were found to be non-compliant, such as those that tested above the legal THC limit. The interim rules required that the plants be destroyed on site and that the destruction take place in accordance with the Controlled Substances Act and DEA regulations. This would necessitate a duly authorized law enforcement officer in place to oversee the destruction of the plant material – typically, burning the crop. The enforcement discretion would suspend the need to have a law enforcement officer oversee the disposal process and would allow for other means of disposal so long as those methods are in compliance with the applicable state or tribal program. The disposal method must render the plants non-retrievable and in non-ingestible form. This standard can be met by disking, plowing, mulching/composting, mowing, burying the material at least 12 inches deep or burning the crop.
Since USDA is exercising its enforcement discretion in these instances, rather than publishing another final rule, it is important to realize that it can change either of these decisions at a later date without required notice. Growers must stay aware of any changes that USDA publishes on its website for the 2020 growing season.