Timing, testing and the lack of in-state access to drug-registered laboratories were among the reasons state agriculture officials in six states said their hemp programs will be run under the 2014 pilot research program this year instead of submitting a 2020 hemp production plan under the new proposed federal rules.
“We looked at all the uncertainty of what’s going on at (the U.S. Department of Agriculture) USDA and decided that it would be better for our growers if we just continue on with our program,” Maine’s state horticulturist, Gary Fish, told Hemp Industry Daily.
“Then, hopefully, after they figure out what they’re going to do over the summer, we would then react to whatever changes they make and submit a plan after they’ve made their potential amendments to the interim final rule.”
Because the USDA didn’t publish the interim final rule until Oct. 31, 2019, during harvest season, state officials said they didn’t feel they would be able to pull together plans that would meet federal requirements in time to implement the rules for 2020.
This feat would have been especially difficult considering that the USDA included rules state officials opposed, according to Whitney Place, Minnesota’s deputy agriculture commissioner.
“It became really clear that there’s no way we’d be able to stand up a program that would meet the current interim final rule this year,” Place said.
Rewriting state hemp production rules was already a lengthy process before the USDA dropped federal regulations, as officials in Arkansas found out when they started reviewing its program in March.
“It’s taken nine months just to get the first rule rewrite done,” said Mike Stage, Arkansas’ agriculture division manager who oversees the state’s hemp program.
“So we decided that because we’re going to have to rewrite a lot of it to get it ready to submit to the USDA, we’re just going to go with the next season under the 2014 pilot while we rewrite our rules.”
The USDA decision to extend the comment period until the end of January also figured into New Mexico’s decision to extend its pilot program, said Jeff Witte, the state’s agriculture secretary.
“Not truly knowing what the final regulations might look like was a little concerning,” he told Hemp Industry Daily.
New Mexico’s hemp growers wanted to keep the status quo for one more year of certainty, Witte said.
After that, he noted, “we’ll have to look at whether we do a state program or turn the entire thing over to the USDA.”
Testing rules are burdensome, officials say
The USDA’s stringent THC testing procedures are a key area of concern for state officials, namely the 15-day pre-harvest sampling that must be administered by state or local law enforcement.
The rules require samples to be taken within 15 days of harvest, then delivered to laboratories registered by the U.S. Drug Enforcement Agency (DEA).
Right now, many states have longer testing windows, and few have DEA-registered labs.
“We don’t have any certified DEA labs available to do the testing,” Witte said. “So all of our tests would have had to go out of state.”
Other states worry not about the window but, rather, the number of samples.
In Maine, state horticulturist Fish said the added number of samples will be cumbersome.
“It will definitely increase our workload dramatically because we’ve been doing composite sampling across the grow,” Fish said, even for multiple fields with different varieties.
The new sampling rules will triple or even quadruple the number of samples the state takes, he added.
Minnesota officials wonder why they can’t keep using their old lab, which lacks DEA registration.
“Why do we need it when we’ve been operating for four years without it?”
Other states are taking issue with a lack of guidelines and funding to guide the destruction of crops that exceed 0.5% THC – the level that would determine that farmers are negligent.
Specifically, concerns include whether crops can be destroyed on site as well as the USDA’s “definition of what a ‘reverse distributor’ is going to be and if that’s going to cause a lot of extra cost to dispose of crops that measure over 0.5%,” Stage said.
Maine’s Fish echoed this concern, saying the destruction process could be complicated and costly.
“We’ll have to work together with a reverse distributor,” he said, “which we’ve never done before and don’t even know if they exist here.”
Further, the USDA rules don’t allow remediation, or the removal of THC from plants that have already been harvested. Instead, noncompliant plants must be destroyed, he said.
“We really need to get to where we’re regulating the product and not the plant.”
New hemp state
While Missouri has allowed hemp production for research, 2020 will be the first year that the state has accepted applications for commercial cultivation, according to Alan Freeman, program administrator for Missouri’s industrial hemp program.
Growing under the pilot “provided us opportunities to allow producers to get seed in the ground and learn how the process would work,” he said.
The state began accepting license applications Jan. 2 and so far has received more than 100 from farmers interested in growing the crop, Freeman added.
Feds should listen to state authorities, states say
Many of the rules proposed in the USDA’s interim final rule interrupt state programs, many of which have worked out kinks over the years since they were established under the 2014 Farm Bill, according to Place.
“We’re just trying to be able to operate a program that follows the law and that helps boost our hemp industry,” Place said. “We don’t want to stifle it because we can’t get our act together with this federal law.”
“We really hope that (the USDA will) take our feedback because we do have four years of experience and other states do, too. It’s working.”
Laura Drotleff can be reached at [email protected]