Delay of the USDA Hemp Pilot Program Rule: A little relief, a lot to recommend

In October, the US Senate passed continuing resolution H.R. 8319, which contains a provision to extend the USDA hemp pilot programs through September of 2021. This extension allows states operating under the 2014 Farm Bill guidelines to continue through next year’s growing season. 

Hemp Pilot Programs, established by the 2014 Farm Bill, were originally set to expire Saturday, Oct. 31, 2020. At that point, all states would have been required to switch to regulations set forth by the 2018 Farm Bill, which are reiterated in the U.S. Department of Agriculture’s (USDA’s) Interim Final Rule (IFR) on hemp. Unless the IFR is updated to reflect more farmer-friendly requirements, the Final Rule will be just as restrictive.

“The industry should be allowed to develop before producers are punished and/or financially devastated for circumstances beyond their control”…

Vermont Agency of Agriculture Food and Markets, Comments to the USDA IFR on Hemp Programs

These new regulations could crush innovation, ruin diversification strategies, and cripple small scale farmers with logistical impossibilities and testing requirements.

Vermont’s Agency of Agriculture, and nearly two dozen other states, chose to resist blind adoption of the 2018 regulations as interpreted by the USDA IFR, opting to operate the State administered Industrial Hemp Program in accordance with the 2014 Farm Bill framework. States that made this bold choice were rewarded with 11 more months of “business as usual,” while states that submitted plans to meet the 2018 regulations will be handicapped.

Prudent judgement from the VT Agency of Agriculture, Food & Markets (VAAFM)., coupled with the continuing resolution, ensures that Vermont hemp farmers have far greater flexibility and access to market through September 2021. We applaud these efforts and believe this is a good time to revisit their thoughtful response to the USDA IFR, aimed at improving the Final Rule.

As written, some recommendations of the USDA IFR appear to exceed the statutory mandate granted by the 2018 Farm Bill, and thus VAAFM made several important recommendations, particularly as they relate to small scale producers and farmers.

VAAFM Comments & Recommendations to the IFR

Fundamentally, VAAFM concludes that the IFR “does not always correctly interpret Congressional intent and is overly restrictive in some of its mandated procedures”.1 

Most disruptive and exclusionary to small farmers are the onerous sampling, testing and reporting requirements, which would prove prohibitive to even the largest hemp farmers in regions like Vermont. As the negligence standard ensures that only agri-business can afford to take the risk, VAAFM points out that IFR’s requirements appear to “favor large producers with deeper pockets and will create an uncertain agricultural commodity market for hemp”.1

VAAFM points out that IFR’s requirements appear to “favor large producers with deeper pockets and will create an uncertain agricultural commodity market for hemp”.1

Farmers can select the best, stable genetics, but even the best laid plans are subject to the elements. Any farmer worth his salt knows that a hard frost will sweeten the beets, or push more resin production on hemp flowers. Producers operating in good-faith should be eligible for crop insurance—a basic instrument for fiscal responsibility, presently denied to non-compliant/”negligent” crops under the IFR.

VAAFM’s comments call for a regulatory framework that promotes well-paying jobs in rural communities across states with small producers. This would include changing the definition of negligence from 0.5% THC to 1.0% THC—if indeed the USDA has the authority to determine “negligence” among individual state programs.

Addressing the 15-day sampling protocol, VAAFM pointed out that the IFR “will create an unsustainable bottleneck that will seriously disrupt crop production and harvest.” Especially outside of metro areas, there are insufficient designated people and permissible laboratories to handle the demand for testing that this will create. USDA should eliminate the federal sampling requirements and allow states to submit their own plans, or adopt a protocol with an expanded time frame (45 days) and allow for a broader THC sampling of the whole plant, instead of the flowers alone.

If a crop is determined to be negligent, the Final Rule should allow farmers to destroy hemp crops in a manner that allows them to get some value from their plants, such as animal bedding, compost, or fuel. It is unfathomable that the current IFR would dictate the destruction of the entire crop for perceived “negligence” from a single portion, of a single plant, and “small farms cannot lose a substantial portion of their annual crop and remain viable.”

VAAFM also advocated to streamline the reporting requirements, preventing farmers from having to submit data to both federal and state-level regulators. 

We support the strong advocacy Vermont has displayed on behalf of small scale hemp producers across our region, and we will continue to advocate for thoughtful approaches to the developing cannabis industry.

Sources:

  1. Comments of the VAAFM Related to the Federal Program Requirements For the Establishment of a Domestic Hemp Program, Interim Final Rule. P2 pp https://agriculture.vermont.gov/sites/agriculture/files/documents/PHARM/hemp/VAAFM_Comments_01272020.pdf