Hemp Comments Submitted to USDA
Upon the publishing of the Interim Final Rule (IFR), the USDA opened a Public Comment Period to solicit feedback from farmers and businesses. What they quickly learned was that the IFR had many issues with it. Clearly, the DEA had still worked themselves into the regulatory protocol, and there were very strict rules about testing, including that the labs had to be registered with DEA. At the time, very few labs had this registration, and the industry was barreling straight toward bottleneck at harvest season. There were also very slim margins of error that would put farmers at risk of their crop testing 'hot', above the 0.3% THC limit. The USDA received over 4,500 comments, including from Members of Congress, major agriculture organizations, and thousands of hemp farmers and business owners. The Hemp Guy submmited a comment here as well.
On February 27, 2020, USDA, in conjunction with DEA, published a guidance, that hit the industry by storm. Groups and companies immediately voiced concerns, and new legislation was filed in Congress. The chorus of opposition to the IFR, which trying to implement a brand new program in time for 2020 harvest season, was too much. Senators and other leaders wrote letters, and the USDA declared that the program would not be implemented. Instead, the Federal Guidelines would revert to the Research Pilot Program, SEC 7606, from the 2014 Farm Bill. This gave everyone more time to work through the exact regulations and protocols for the hemp program that was in the 2018 Farm Bill. In September the USDA re-open a comment period until October 8, 2020.
Specifically, during this updated comment period, there was specific attention to 12 subjects, outlined in the USDA docket files. The USDA is truly working hard to get this right. The USDA read the comments, thoughtfully responded, and then requested more specific information.
Any time there is a Public Comment Period, we see it is our patriotic and democratic duty to respond. As Americans, we not only get to Vote, but we also get to have a dialogue. We respectfully submitted comments, which can be viewed and downloaded as part of the the Public Record:
We encourage appreciate and encourage all opportunities to submit Public Comment. In fact, there is still an open Comment Period for the DEA.
Here is our Full Comment as submitted to USDA:
October 8, 2020
U.S. Department of Agriculture
Agricultural Marketing Service
1400 Independence Ave., S.W.
Washington, D.C. 20250
Re: Establishment of a Domestic Hemp Production Program, Interim Final Rule
(Docket No. AMS-SC-19-0042)
Thank you for the opportunity to submit this public comment, on the USDA Interim Final Rule (IFR) on the Domestic Hemp Production Program. Thank you for leadership and commitment from the USDA to helping American farmers, especially small farmers, that too often struggle to keep their farming operations sustainable. Over much of the past decade, I have dedicated my life to educating lawmakers, farmers, businesses, and consumers, on the benefits of domestic hemp production.
Hemp can be a lifeline to small farms, an opportunity to bring manufacturing jobs back to the US, and a valuable crop with a storied American history. Hemp is also one of many clear paths forward for regenerative agriculture. The ongoing cycle of industrial agriculture is not sustainable for small farmers, and on the land itself in the depletion of valuable topsoil. Regenerative agriculture practices can put carbon back in the soil, simultaneously restoring the natural productivity of organic soil, while sequestering millions of tons of carbon from the atmosphere. Utilizing our agricultural land as a carbon sink could be our greatest opportunity to reverse climate change.
On January 29th, I submitted comments detailing specific parts of the IFR, which is included in full below. The common theme is that hemp should be overseen by USDA, and the DEA should not be involved in any way. The burgeoning hemp industry offers opportunities farmers, and particularly, small farms that may be struggling and not have the capacity to address overbearing regulations. I would like to very briefly comment on 12 subjects that are of interest to AMS:
Measurement of uncertainty for sampling
It is important that there is a wide margin of error in sampling to protect farmers and their livelihoods.
Liquid chromatography factor, 0.877 (total THC testing)
THCA is not psychoactive and may have health benefits. I agree that the testing protocol should be .5262 to protect farmers and processors from potential loss through margin of error.
Disposal and remediation of non-compliant "hot" plants
“Hot” plants can be rendered ‘non consumable’ or labeled as ‘not for human consumption’, and can be disposed of easily on a farm such as mulching, etc. It can also be channeled into industrial hemp use, such as building materials.
Raising the negligence standard for non-compliance from 0.5 to 1 percent
The negligence standard should certainly be raised to 1% THC. We do not want to burden small farmers with risk of non- compliance. 1% is not enough to get anyone high and farmers should not be punished given the several factors that can raise the THC levels above 0.5%.
Further clarifying that interstate commerce is expressly authorized by statute
Requiring basic documents as suggested is appropriate, but should not overburden small businesses with regulations.
Whether the 15-day harvest testing window should be raised to 30 days
Yes, the harvest testing window should certainly be raised to 30, or even 45 days. A shorter window would create a bottleneck at harvest season and undue stress on farmers. As long as the THC level is within the margins of error, which should be widened to protect farmers, a wider testing window will not be an issue.
Hemp seedlings, microgreens and clones
Immature plants do not need to be tested for THC. THC production only occurs in any significant quantity in mature plants, and requiring THC testing in seedlings or microgreens could create undue burden on farmers and small businesses.
Hemp breeding and research
Because hemp is a brand new crop, we want to encourage all research and protect the ability of researchers to test a variety of methodologies from having to destroy any research. Because this hemp will not be for human consumption, they should not have the same requirements. The research provisions should encourage robust research.
Sampling methodology – flower vs. whole plant
To protect farmers, the methodology should not be exclusively from the mature flowering tops. The law simply states ‘dry weight basis’ so we should follow the intent of the law.
Sampling methodology – homogenous composition, frequency and volume
We want to make sure that the sampling methodology does not become an undue burden to small farmers. We support the AMS working with farmers to develop a methodology that is viable and feasible, and makes sense.
As this is a brand new program, sampling agents will need to be trained and updated on new protocols and technology, which will certainly develop. Individual States may see the need for specific training programs relating to the local or regional industry. Federal guidelines should be minimal while States should take the lead.
DEA laboratory registration
The DEA should not be involved in the hemp program. Labs should be able to test hemp without any oversight from DEA. Unless there seems to be negligent or criminal behavior, DEA should not be involved.
To summarize, the hemp program should be the foundation to a productive hemp industry, that give farmers a new crop. Especially small farms, where hemp can offer a new opportunity in a time when many small farms struggle. Small farms may not have the capacity to handle overbearing regulations, and should not have to deal with DEA at all. There are serious drug problems in our country, and hemp farming is not one of them. American farmers have enough on their plate, with the risks involved in agriculture. We want to support farmers, while ensuring safe products for consumers.
I would again like to thank USDA for re-opening this comment period to review comments in this important, and timely issue of hemp production. We appreciate the delay of the USDA rules and the continuation of SEC7606, the research pilot program, that I personally helped to shepherd into law. Together we will build a great new American industry.
Founder, The Hemp Guy www.TheHempGuy.com
Founder, Hemp Opportunity Fund
Principal, DROZgroup www.DROZgroup.com
Hemp Lobbyist, Vote Hemp (2008-2018)
Contributing Editor, HEMP Magazine
[Public Comment Submitted During 1st Comment Period:]
January 29, 2020
Administrator Bruce Summers and Secretary Sonny Perdue
U.S. Department of Agriculture, Agricultural Marketing Service
1400 Independence Ave., S.W.
Washington, D.C. 20250
Re: Establishment of a Domestic Hemp Production Program
(Docket No. AMS-SC-19-0042)
Dear Administrator Summers and Secretary Perdue,
Thank you very much for the opportunity to submit this public comment on the USDA Interim Final Rule. Thank you for your leadership and commitment to helping farmers through the implementation of the domestic hemp production program. USDA has speedily and diligently moved to implement an interim hemp program, and I want to thank you for that. Over the past decade, I have been dedicated to educating lawmakers, farmers, businesses, and consumers, on the benefits of domestic hemp production, as an advocate and registered federal lobbyist. Today, I am contributing editor, strategic advisor, and consultant in the hemp industry.
Many very respectable organizations have submitted thoughtful comments through this Docket, including The National Association of State Departments of Agriculture (NASDA), The Small Business Administration (SBA), the American Farm Bureau Federation (AFBF), and Members of Congress and other political leaders, to name a few. There is a clear consensus on some of the issues that should be addressed, and I firstly want to echo these comments. Especially the comments of the American Farm Bureau, the largest U.S. farm group, which include policies that were recently passed by delegates at the 101st Annual Convention.
Below is a brief overview of comments that I would like to highlight.
The Sampling Guidelines require that Sampling Agents collect samples from only the top one-third of the plant. This upper portion of the plant is not the only part of the plant that is used in the manufacturing of hemp products. Moreover, the highest concentration of THC is found in this top portion of the plant that will result in an inaccurate measurement of THC in the plant.
I recommend that Sampling Guidelines be amended to require samples taken and homogenized from all parts of the plant.
Sampling to Harvest Window
I feel that allowing only 15 days between sampling and harvest is inadequate and unworkable. Farmers have to depend on hand labor to harvest and bring crops in. Weather conditions also must be right during harvest and precipitation could delay the harvest process. There is also an insufficient amount of DEA-registered laboratories to perform testing on all producers during such a small window, more on that below.
I recommend that USDA revise the regulations to allow for 45 days between sampling and harvest to take into account all these factors.
Disposal of Non-Compliant Plants
The 2018 Farm Bill makes no mention of destruction; it only requires disposal of non-compliant plants or plant material. The IFR requires all non-compliant plant material to be destroyed pursuant to DEA regulations. The complete destruction of a non-compliant hemp crop poses a great risk of economic hardship on hemp farmers. Under the IFR, hemp producers risk losing the entirety of their investment, and are subject to further liability for the costs associated with destruction of their crop.
I recommend that USDA amend the disposal provisions of the IFR to allow for disposal by states and tribes without following DEA provisions under the Controlled Substances Act (“CSA”). I further urge USDA to allow states and tribes to implement the simplest and most cost-effective disposal methods.
This includes, as suggested by the AFBF, alternative uses of non-compliant crops, to label the ‘hot crop’ as unfit for human consumption, to be redirected into industrial or other manufacturing use.
DEA Registered Labs
The 2018 Farm Bill removed hemp from the definition of marijuana under the CSA, thereby removing DEA involvement over the regulation of hemp as well. Congress authorized USDA alone to regulate hemp production. The 2018 Farm Bill did not anticipate DEA having a role in the testing process and specifically DEA-registered laboratories were not envisioned by Congress.
I recommend the removal of language requiring DEA registration of labs and that USDA, in cooperation with State agencies, develop its own lab approval process specific to handling hemp.
The IFR defines negligence as “a failure to exercise the level of care that a reasonably prudent person would exercise in complying with the regulations set forth under this part.” However, the IFR subsequently creates a bright-line rule where a THC measurement above 0.5% is automatically considered negligent.
I recommend that this provision should be removed, and that USDA determine any fault of a hemp producer by assessing the facts surrounding any violation of the Statute. Should USDA refuse to remove a numerical threshold, I recommend that it should be raised to at least 1%. Although still arbitrary, a 1% THC limit would give much needed flexibility to account for at least some of the various factors that can affect THC concentration that are outside of a hemp producer’s control.
This 1% limit is widely supported, and was also clarified in the public comment submitted by the American Farm Bureau Federation.
In conclusion, I recommend that USDA issue a new IFR adopting these requested changes as soon as possible rather than waiting. State and tribal regulators need certainty on how the IFR will regulate hemp so they can submit plans in time for the 2021 growing season.
Thank you again for your consideration and leadership,