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Specialty Crops Program, AMS USDA
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RE: Doc. No. AMS–SC–19–0042; SC19–990–2 IR DEPARTMENT OF AGRICULTURE, Agricultural Marketing Service 7 CFR Part 990 - Establishment of a Domestic Hemp Production Program
January 29, 2020
To Whom it May Concern,
We the undersigned organizations representing small farmers and ranchers strongly support the long-awaited creation of a legal pathway for states, tribes and farmers and ranchers to grow hemp in the United States. We believe Congress, in adopting the statutory changes authorizing these changes, intended to create a new opportunity to benefit the nation’s producers, including small-scale, diverse and tribal producers. Because we share the belief that this new opportunity should benefit all farmers, we endorse the earlier comments of Hempstead Project Heart (Dec 6, 2019), and share with USDA our concerns about the following sections of the rules, and our recommendations for changes to improve the new program.
I. HARVESTING RESOURCES FOR SMALL, MINORITY AND LIMITED RESOURCE FARMERS AND RANCHERS
In order to ensure that small, minority and limited resource farmers and ranchers have a fair and equitable opportunity to participate in the environmental and economic benefits of the industrial hemp industry, the USDA Agricultural Marketing Service should devise a grant program designed to provide low cost harvesting machinery and technical assistance specifically for small farmers. The rule should be modified to include a harvesting assistance plan that grants, finances or otherwise makes harvesting equipment available to small family farmers.
The rule should guarantee that small farmer cooperatives in each state have access to loans and grants to secure harvesting equipment to be used on a priority basis by small, minority and limited resource farmers and ranchers. A mandated guarantee of harvesting equipment is essential for small farmers in a new budding industry because access to specialized equipment supports a hemp grower’s efforts to service and repay loans secured by real estate where hemp is grown. This new equipment harvesting provision advances that intent and purposes of the industrial hemp statute and rule as it would promote the orderly marketing of hemp and hemp products while decreasing instances of farm foreclosures associated with the inability to harvest hemp within 15 days of testing.
Minority farmer organizations who receive grants or low interest loans from AMS specific to harvesting hemp can orderly schedule testing and harvesting so as to ensure that cooperatives and their members comply with timing of testing and harvesting required in this rule. (See further discussion below on our recommendation to increase timing from 15 to at least 28 days between testing and harvesting).
II. Fair and Equitable Access to Laboratory Hemp Testing for Small, Minority and Limited Resource Farmers and Ranchers
The rule expects there to be a dearth of laboratory testing assets where access to testing assets may widely vary among states and regions within states. The undersigned organizations are concerned that the lack of testing resources within states will have a detrimental impact on small, minority and limited resource farmers and ranchers. Therefore, the Agriculture Marketing Service must modify the rule to include provisions that ensure that historically underserved farmers and ranchers will have access to hemp testing laboratories and facilities on a priority basis. The inclusion of this provision will ensure that hemp related farmland is utilized for its highest and best economic use while decreasing occurrences of farmland foreclosures among historically underserved and limited resource hemp producers.
III. USDA LOAN SERVICING UNDER 7 C.F.R. 1951-S
The rule should be modified to accommodate and harmonize the uncertain aspects of hemp cultivation, harvesting, and marketing with USDA direct and operating loan servicing. Currently, the Farm Service Agency loan making and loan servicing functions are not aligned with the Agriculture Marketing Service’s implementation of these industrial hemp regulations. The rule must include joint loan-servicing provisions established by FSA with input from FSA and farmer organizations. The hemp related loan servicing provisions must take into consideration loan compliance and loan repayment difficulties connected to harvesting challenges and crop destruction requirements. Hemp related loan-servicing provisions would prevent the FSA from placing a hemp farmer in default, acceleration and foreclosure if the hemp crop cannot be harvested due to the 15-day rule or the .3% THC rule.
FSA loan servicing and compliance activities and enforcement mechanisms must be modified and clarified so as not to hold an FSA borrower in monetary or nonmonetary default in the event of random audits that conclude that a hemp licensee be issued corrective action plans for negligent violations beyond the control of the hemp producer / farm loan borrower.
The hemp loan servicing rule effectively would place a stay on default, acceleration and foreclosure when the family farmer has acted in good faith, but was nevertheless unable to harvest due to lack of harvesting equipment, crop testing, or unsettled disputes with the U.S. Drug Enforcement Agency.
IV. REDUCE THE RESTRICTIVE LEVEL OF THC AND DISPOSE NOT DESTROY
With the above sections acknowledging the difficulties associated with a .3% THC limitation, it must be noted that the proposed rule requires measuring the total THC level of hemp. However, as stated in the USDA’s description of marijuana “Delta-9 tetrahydrocannabinol, or THC, is the primary intoxicating component of cannabis.” This being said, it is reasonable to accept the Delta-9 THC as the target of the measurement as opposed to using the measurement of the total THC in hemp. The USDA should allow the Delta-9 THC threshold of 1% for research and development for Land-Grant universities that highlight the academic, scientific, and marketing aspects of the American hemp industry. The average global Delta-9 THC threshold is 1%, leaving American hemp at a competitive global disadvantage to countries with a 1% threshold. A higher Delta-9 THC threshold would result in fewer non-compliant harvests and greatly reduce farmers vulnerability to weather events that impact THC levels.
Additionally, hemp is a diverse crop with thousands of uses. Modern technology has paved the way to implement many processes that will remediate non-compliant harvests and allow growers to make use of crops that exceed the THC limits. The non-compliant hemp may be processed for purposes other than consumption, such as fiber, “hempcrete”, or many other products. Such authority would create an alternative income pathway for farmers and growers and prevent the destruction and loss of an entire harvest.
V. FAIR AND REASONABLE THC TESTING WINDOWS
The rule proposes a 15-day window before harvest to test THC compliancy levels. While acknowledging the difficulties of this window, it must also be highlighted that this time period is extremely restrictive when considering the difficulties farmers may encounter due to unpredictable weather and unforeseen events, such as equipment malfunction. This rule will limit the type of farmer able to grow hemp. This is a blatant regulatory barrier to small-scale farmers and discriminatory toward farmers who lack resources to access particular harvesting equipment. Harvesting hemp requires intensive labor, and many farmers will not have the resources to be able to harvest in 15 days of even the best weather conditions.
Additionally, harvesting within this window is further made difficult, and likely in many situations impossible, due to USDA’s testing regulations which require THC samples to be processed only by Drug Enforcement Agency (DEA) approved testing laboratories. Many states have as few as one DEA approved lab, and some states have none at all. It will very difficult for testing labs to process the hundreds of thousands of acres of hemp in a reasonable time frame during harvest season. This limiting factor results in extreme delays in testing THC samples, causing farmers to miss the 15-day window for harvest and to fall into noncompliance.
The rule must be adjusted from 15 days to 28 days, which is still a conservative amount of time, but offers moderate room for small scale farmers to harvest in a timely manner and to accommodate for unpredictable events. This rule would likely cause the hemp industry to fail in totality, or simply discriminate against hemp farmers without the resources to farm with industrial equipment, which would constitute a failure of the USDA’s commitment to American producers.
VI. HEMP PRODUCER PRIVACY AND ANTI-ADMINISTRATIVE SEARCH WARRANTS
The rule must be modified to include language prohibiting USDA or the Drug Enforcement Agency from executing administrative search warrants without probable cause while using the hemp production enforcement as a cover for unauthorized search warrants on land owned and operated by hemp producers. Frequently, farmers in rural communities may have disagreements with neighboring farmers and seek revenge by reporting unfounded allegations to USDA and law enforcement agencies. The rule must provide protections to prevent destruction of lives and farm economic opportunities in the absence of real verifiable unlawful conduct. The rule must be amended to require that USDA or DEA hemp-related administrative search warrants are limited to hemp farming operations as defined in the farm bill and applicable regulations.
With specific regard to subsection 990.71 of the USDA Hemp Producer Plan, subpart (2) Criminal History Report, the USDA must alter this rule’s normalization of mass surveillance of hemp growers. Requiring all USDA hemp producers to submit an FBI Identity History Summary to grow hemp in compliance with the law undermines Congressional intent to make hemp an agricultural commodity while also infringing upon the lawful privacy of growers.
VII. USE THE FARM BILL’S DEFINITION OF HEMP
The rule allows testing protocol to be limited to the flowers of the hemp plant. This would not be a true test of the plant’s material. The 2018 Farm Bill defines hemp “as the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not”. This means the entirety of the plant. However, the proposed rule limits testing to solely one part of the plant, that is, the flower. Most of the current states’ rules and the original USDA proposed protocol includes testing all parts of the plants, including flowers, shoots and leaves. This would present a representative sample of the entire plant. With the THC level already set at a low number, the public is protected from any narcotic effects of the hemp plant. Moreover, crop insurance does not protect crops destroyed or cover losses due to exceeding THC limits. Testing the flowers only would severely restrict the hemp farmer to bring to market a viable crop and cause growers to lose a crop without any insurance protection while not being an accurate representation of the crop’s true THC profile.
VIII. ACCOMMODATE INTERSTATE COMMERCE
It is impossible to determine the THC level of cannabis without a laboratory analysis. This causes a huge dilemma for law enforcement across the United States and the entire supply chain of industrial hemp. The USDA must provide shipping information as a part of the FSA’s crop report for law enforcement to verify shipments of lawfully produced hemp. Without a verification process for hemp to undergo interstate transit, the American hemp market is left extremely vulnerable, as well as those transporting the crops and products. Allowing a process for farmers, processers and shippers to create a shipping or transportation manifest and itineraries will allow for a reliable and safe system of commerce within the hemp industry. It is inexcusable and willfully ignorant that this has not yet been implemented. It is known that transporting legal hemp, seeds, or products can cause a legal or safety risk for shippers, farmers, law enforcement and others while undergoing transportation. This nascent industry must have protocols in place in order to protect commerce.
In closing, we concur strongly with a point that Marc Grignon of Hempstead Project Heart raised in comments on December 6, 2019 for this docket: “…I want to stress the importance of non-stringent hemp regulations which create opportunities for the farmer during a time of crisis. The trade war, volatile weather, and the decline of rural communities contribute to a bleak future for farmers. Over the last year, there have been 580 Chapter 12 farm filing bankruptcies and the number continues to increase day by day. Farm income has decreased since 2013, the last year of record high profits. Even this year farm income reached $88 billion, still 29% less than 2013. As a beginning farmer I have hope to keep control of the land I grow on for my future generations, but I need hemp to make that happen. Hemp has the potential to become part of the solution to the farm crisis occurring across our country.”
We recommend the aforementioned modifications in order to assure that this 21st century `industrial hemp program provides essential opportunities to build a new generation of farmers and ranchers, with economic and ecological benefits to all this nation’s rural communities. We thank you for your attention to our input.
The undersigned,
Rural Coalition
National Latino Farmers and Ranchers Trade Association
North Carolina Association of Black Lawyers Land Loss Prevention Project
Rural Advancement Fund of the National Sharecroppers Fund
Oklahoma Black Historical Research Project, Inc.
National Immigrant Farmers Initiative