(Part 2 of a two-part series looks at what ancillary businesses, industry associations and public figures have to say about the USDA’s interim final rule for federal hemp production. Part 1 examined comments submitted by hemp farmers.)
In its open call for comments on federal hemp production regulations, the U.S. Department of Agriculture (USDA) has received more than 1,300 responses.
The USDA last week extended its public comment period through Jan. 29, 2020.
Comments submitted by Jan. 29, 2020, will be considered before a final rule is created, according to the agency.
Respondents so far have ranged widely from farmers and processors to industry associations, members of Congress and even law enforcement.
Hemp Industry Daily reviewed the public comments to find out what ancillary businesses, industry associations and public figures were saying:
Emily Gogol, hemp processor, Oregon
As a small business owner with a Ph.D. in biomedical science, I feel strongly that many of the proposed regulations for the domestic hemp program should be amended.
Specifically, I would ask that:
- Hemp for extraction has different regulations than hemp for a smokable product. During the hemp extraction process, THC can be removed. There are a variety of technologies already in use that are effective, and we are conducting additional research to develop more efficient and less costly methods.
- Be concerned only with psychoactive compounds, like delta-9 THC. There isn’t strong evidence for what is a medically relevant percentage of THC. From a biomedical perspective the 0.3% total THC doesn’t have strong evidence to back it up.
Jonathan Miller, general counsel and member of U.S. Hemp Roundtable, Kentucky
The interim final rule requires all noncompliant plant material to be destroyed. However, Congress directed no such destruction in the Farm Bill and, in fact, specifically directs disposal as follows: ‘‘(iii) a procedure for the effective disposal of -‘‘(I) plants, whether growing or not, that are produced in violation of this subtitle.”
We recommend that noncompliant parts of the plant be permitted for use on the farm, with feedstock or fuel, with a prohibition of it on entering commerce with exceptions.
Particularly in light of the tremendous value of hemp biochar as a soil amendment and for research and development purposes, we specifically suggest spelling out that pyrolysis is an acceptable means of effective disposal, and the resulting char may enter into commerce.
U.S. Sens. Ron Wyden and Jeff Merkley, Oregon
The 2018 Farm Bill requires testing for delta-9 tetrahydrocannabinol (THC) using “postdecarboxylation or other similarly reliable methods.” Reliable testing methods have emerged that do not necessitate decarboxylation to accurately measure THC concentrations.
Instead of allowing similarly reliable non-decarboxylation tests to be used to measure delta-9 THC, the interim final rule introduced a new requirement, contrary to the specific language in the 2018 Farm Bill, that hemp samples must be tested using methods where the “THC concentration level reported accounts for the conversion of delta-9-tetrahydrocannabinolic acid (THC-A) into THC.”
As authors of the Hemp Farming Act of 2018 that was included in the 2018 Farm Bill, we believe strongly that this is a complete reversal of the congressional intent expressed in that law and requires testing that Congress specifically did not include.
Given the 2018 Farm Bill specificity, and because it allows for flexibility in testing methods by allowing “other similarly reliable methods,” we encourage USDA to allow testing for delta-9 THC using methods that do not involve the application of heat or decarboxylation, and to remove all requirements for converting THCA into THC.
U.S. House of Representatives, Virginia delegation
The interim final rule establishes a negligence threshold of 0.5%. If the THC level is found to be above 0.5%, a farmer could be prosecuted under the law.
The 0.5% threshold is arbitrary and too low given that THC levels are subject to swings based on several factors, including location, weather and timing.
We would like to make two suggestions for consideration:
- First, we recommend this threshold be set at the highest possible threshold in order to protect good-faith farmers who follow the rules, plant certified seeds and clones and engage in best practices to grow compliant hemp.
- Second, we recommend adding mediation options so that farmers acting in good faith who accidentally exceed the threshold can resolve the issue without fear of criminal prosecution.
Ray Mazzie, Hemp Industries Association, Florida chapter
By combining THC-A and THC, farmers are going to be forced to harvest much earlier and lose substantial cannabinoid content, thus reducing the farmers’ revenue significantly.
This can have a serious chilling effect on the amount of acres planted and thus increase prices for the consumer significantly.
Further, the reduction of domestic supply will incentivize hemp biomass, or hemp derivatives, purchasers to import their supply.
The foreign supply will not only have labor cost advantages, but it will be subject to a less restrictive regulatory regime, essentially pricing domestic hemp and hemp derivatives out of the market.
Frank Vasquez, Santa Barbara Sheriff’s Office, California
Currently, I am charged with supervising the cannabis enforcement program for a largely cannabis-populated county in California.
During my time, I have assisted in developing regulation, enforcing state and local laws and promoted a fair regulatory process through accountability and deterrence. Deterrence being the biggest factor of pushing operators to do the right thing.
During this journey, I have seen hemp, and it’s very difficult to distinguish from cannabis. In fact, we have and are working several cases where hemp is being grown, as a cover crop for cannabis, and these investigations are difficult at best.
There are several reasons for that, but the biggest being hemp is legal, and warrants to enter and test are difficult absent specific circumstances or information. My agency even has purchased a THC testing machine to aid in this, but again, we need to get access to the hemp in order to test and resolve the concern, or push forward a criminal investigation.
There is a public expectation we look at everything, and I feel accountability and deterrence will help us, as a community, deal with any and all negative impacts of cannabis and hemp.
Access is the key to the balance, which is the most difficult task.
North Carolina Industrial Hemp Council
Requiring the sampling of all hemp produced is simply not feasible without significant additional resources to cover cost of additional staff.
North Carolina currently has over 1,350 licensed hemp growers. This past fall, the North Carolina Department of Agriculture and Consumer Services tested 55% of the thousands of hemp fields planted across our state, with employees working up to 70 hours a week. It is impossible to ask this staff to do more and we are not aware of any state that has been able to physically sample each field.
Additionally, the sheer magnitude of sampling volume during peak harvest periods would push the analytical limits of any laboratory testing THC levels.
We respectfully request that USDA consider allowing states to perform random and risk-based sampling of hemp grown in their state. … It seems unnecessary to have the testing labs be registered with the (Drug Enforcement Administration) DEA since this was not required of pilot programs and may cause additional delays in sampling as laboratories seek certification.
The proposed 15-day pre-harvest testing window creates a very narrow time frame for growers, creating another unnecessary obstacle for compliance.
It is not unrealistic to think that growers may encounter weather or other constraints that may force them to harvest hemp without knowing whether it is compliant due to inevitable delays in laboratory results because of high sample volumes.
Based on our experiences, we do not think states will have the resources to … deliver samples to an approved laboratory and receive results all within a 15-day window.
These comments were edited for length and clarity.
Laura Drotleff can be reached at [email protected]
