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Comment Period Closes for USDA Rules

USDA Hemp Framework Receives Criticisms; Can One Size Fit All?                                                                          By: Joe Vitale

Wednesday, January 29th was the end to a 90 day public comment period on the USDA’s Interim Hemp Rules that saw over 4,600 comments submitted from concerned farmers, local and state governments, businesses, and trade associations.

Some recurring topics throughout the comments include acceptable THC levels, the harvest window, sampling process, and strict compliance requirements. Overall, many feel that the USDA interim final rules are too rigid and would restrict farmer success while overburdening state governments.

New York’s Response

Throughout the state, individuals, businesses, associations, and the NYS Department of Agriculture & Markets (DAM) submitted comments to the USDA. The NY Hemp Industries Associations, Seneca Nation, Grow Hemp New York, Hempire State Growers, Canopy Growth Corp, and the NYS Farm Bureau, among others submitted their responses to the proposed rules. Each comment pointed out specific and relevant issues that would have effects on New York farmers, regulators, and businesses.

Commissioner Richard Ball submitted a lengthy comment on behalf of the DAM, pointedly addressing six major issues within the interim final rule, including:

  1. Issue #1: Sampling only the flower material

  2. Issue #2: Sampling of every lot of hemp.

  3. Issue #3: 15-day window to sample before harvest

  4. Issue #4: Lack of definitions

  5. Issue #5: Identification and disposal of non-compliant plants

  6. Issue #6: Reporting requirements

The proposed rules would require that samples for testing be taken only from the top few inches flower, from each “lot” of hemp, and submitted within fifteen days of harvest to be tested. The Department cited fluctuations in the 2017 and 2019 harvest season weather which affected harvest windows throughout the state as ramifications of environmental conditions.  Because of these unknown variables, a fifteen-day testing window, the DAM argues, is unrealistic. Citing an overflow of samples needed to be tested in the 2019 season, the Department pointed out that the NYS lab is logistically incapable of processing that many samples in such a short window, especially considering the rules call for a sample from “every lot”.

Commissioner Ball did not hold back criticism of the USDA in his letter, flatly stating the framework is “contrary to the intent of the hemp provisions of the 2018 Farm Bill” and lamenting a “one-size-fits-all” approach. New York clearly feels the federal rules should allow regulators in each state the flexibility to address their specific needs without potentially violating federal law.

New York has not yet submitted their plan under the interim rules to regulate hemp and it appears through their comments that all options are on the table – including opting to allow the USDA oversight of hemp growers or keeping the current research pilot program in effect until October 31st of 2020.  

Comments submitted from New York echoed the sentiment of Commissioner Ball. The New York HIA expressed serious concerns regarding the role of the Drug Enforcement Agency as they argue congressional intent of the 2018 Farm Bill directs the USDA to regulate hemp as an agricultural commodity. The Seneca Nation expressed similar concerns about over-enforcement and sovereignty, asking the federal government to specifically allow tribal law enforcement to oversee sampling and compliance while also pointing out that the definition of tribal lands may be too narrow.

Commisioner Ball (Left) with State Senator Tom O'Mara, Lt. Gov Kathy Hochul, and Assemblywoman Donna Lupardo at Governor Cuomo's Hemp Summit in 2017 at Cornell University. Picture via Cornell

A Nationwide Concern

New Yorkers aren’t the only ones concerned about the interim rules. Similar criticisms have been echoed nationwide by everyone from small-scale farmers to national organizations over sampling, harvest windows, and compliance with THC testing. Agricultural departments from numerous states and entire congressional delegations representing Virginia, Maine, Connecticut, and Colorado have submitted comments. Other prominent groups include NASDA, Vote Hemp, and the American Bankers Association. Some comments bring into question what regulations may be absent – including a clearer direction to law enforcement over transportation, automatic renewal of licenses, and coordination with the FDA.

The question on everyone’s mind remains – can this one-size regulation truly fit all? As the USDA goes through each comment and ultimately decides which regulations may need changing, farmers and organizations both within New York and nationwide will be watching anxiously. The USDA has the opportunity to provide solid baseline regulation which would add much-needed stability while helping state programs flourish but will its regulations stifle the industry and disincentive producers instead?

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