As the comment period for the USDA Interim Final Rule ends, NYCGPA submits its analysis and suggestions for regulatory reform.
The New York Cannabis Growers and Processors Association (NYCGPA) has submitted their comments on the USDA Interim Final Rule (IFR) on hemp.
Following intense criticism from industry stakeholders nationwide, USDA decided to reopen the comment period on their hemp ruling, accepting comments until October 8, 2020. This comment period coincides with the news that the 2018 Farm Bill will be extended for another year, delaying implementation of the IFR until September 30, 2021. This extension provides breathing room for growers who will not yet need to follow onerous cultivation provisions and will hopefully give USDA ample time to reconsider their regulations.
For the comment period, USDA specifically sought comments on twelve specific topics:
Measurement of Uncertainty for Sampling
Liquid Chromatography Factor, 0.877
Disposal and Remediation of Non-Compliant Plants
Negligence
Interstate Commerce
15-day Harvest Window
Hemp seedlings, microgreens, and clones
Hemp breeding and research
Sampling Methodology – Flower vs. Whole Plant
Sampling Methodology – Homogenous Composition, Frequency, and Volume
Sampling Agents
DEA Laboratory Registration
Each of these issues were major areas of contention during the original comment period last year. Of these twelve, NYCGPA decided to explore three in particular: 15-day Harvest Window; DEA Laboratory Registration; and Sampling Methodology – Homogenous Composition, Frequency, and Volume.
The 15-day Harvest Window, if not amended, is one of the most dangerous provisions of the IFR. The provision requires that “within 15 days prior to the anticipated harvest of cannabis plants, a producer shall have an approved Federal, State, or local law enforcement agency or other USDA-designated person collect samples from plants for the purpose of determining THC concentration.” This essentially states that a grower has fifteen days between submitting a sample for testing and harvesting their crop.
The 15-day Harvest Window puts unnecessary time constraints and economic burdens on hemp growers. Particularly, it fails to account for the length and unpredictability of harvest – if a grower does not complete harvest within fifteen days of sending out their testing sample, they would be required to retest their crop. For many growers, harvest can easily last longer than a month, well outside of USDA’s 15-day window. This ruling would thus require the grower to continuously retest their crop throughout harvest, bearing significant economic burden of repeated tests.
As many growers cultivate higher acreage lots, weather impediments would certainly amplify the already-excessive time constraints from the IFR’s fifteen-day window – a string of rainy days which delays harvest would shorten the already unreasonably harvest window. Additionally, because many hemp growers cultivate a number of genetic cultivars, each reaching full maturity at different times, growers would be forced to test and harvest each cultivar at multiple different points in the process. A thirty (or even forty-five) day window would be much better suited to growers’ needs and the reality and unpredictability of harvest season.
Other topics, such as the DEA laboratory registration, which states that hemp may only be tested at DEA-approved laboratories, are unnecessarily onerous. There are only two DEA-registered laboratories for over 700 licensed hemp growers in New York State. Harvest season would undoubtedly create bottlenecks and delay growers’ ability to harvest, many of whom would already be time-constrained due to other provisions such as the 15-day harvest window. In order to ease the burden on growers and to provide them better access to testing during harvest, USDA should strip the DEA-registered laboratory requirement altogether.
Another major issue in the IFR was the sampling methodology of ‘lot’ testing. According to AMS’s guidelines for sampling, one ‘lot’ is considered “a contiguous area in a field, greenhouse, or indoor growing structure containing the same variety or strain of cannabis throughout.” This definition favors flatter geographical areas over more varied regions such as New York, where often hemp fields are separated by natural features such as tree lines, bushes, streams, etc. Because a grower must test for each lot, rather than by field of genetic cultivar, this would mean that growers may need to send out multiple tests for what is effectively the same field of hemp.
The result is a costly and time-consuming process that is largely unnecessary and gives certain growers advantages over others, depending on their geographical region. Given the fact that a crop of a single varietal may be broken into many different ‘lots’ despite their uniformity and generally equal cannabinoid and THC contents, this methodology creates more problems for growers than it solves.
NYCGPA proposes that USDA should redefine a 'lot' of hemp. A more appropriate methodology might include defining ‘lots’ according to genetic cultivar uniformity rather than the geographical contiguousness of the crop field.
The USDA has a long way to go to establish fair, comprehensive, and logical regulations to uphold the nationwide hemp industry. It is imperative that the USDA reconsider the onerous policies drafted in the IFR and examine them not only independent of one another, but taken as a whole – for hemp growers to prosper and the industry to flourish, growers must be afforded flexibility in sampling and testing, in both sampling methodology, testing facilities, and pre-harvest testing window. Only then can the hemp industry that the USDA hopes to support reach its full potential.
For a more in-depth analysis and criticism of the IFR, please read the full NYCGPA letter, which can be found below.