States Follow 2014 Farm Bill Amid Concern for USDA’s Interim Final Rule: UPDATE
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States Follow 2014 Farm Bill Amid Concern for USDA’s Interim Final Rule: UPDATE

As the USDA continues approving state draft plans for hemp programs, a growing number are opting to operate under old rules.

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February 11, 2020

Alaska, North Dakota and Utah are the latest states to announce they will continue operating under their 2014 Farm Bill pilot programs. As of Feb. 6, the U.S. Department of Agriculture has updated the status of other states' plans as well. This story will continue to be updated as more state plans are approved.

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Originally published Jan. 30

When the U.S. Department of Agriculture (USDA) published its interim final rule for hemp, states didn’t hesitate to assemble at the drawing board. Approvals of state hemp programs for the 2020 growing season are well underway, with a dozen state plans under USDA review and six approved so far—Delaware,  Louisiana, Ohio, Nebraska, New Jersey and Texas.

But instead of leaping straight into the controversial program outlined by the USDA’s interim final rule, some states have chosen to take advantage a caveat in the 2018 Agriculture Improvement Act (2018 Farm Bill): operating under old rules.

The 2018 Farm Bill extended the Agriculture Act of 2014 (the 2014 Farm Bill) provisions through Oct. 31, 2020, so states and tribes that participated in that pilot program can continue doing so until then.

It’s an option that 10 states have chosen so far, giving them “a little more time to get [their plans] figured out,” Eric Steenstra, president of Vote Hemp, told Hemp Grower back in November. 

While devising a hemp program in compliance with federal regulations is no easy task, a large reason some states are holding onto pilot provisions is because they hope the USDA will adjust its regulations, many of which have drawn fierce criticism and concern throughout the industry.

Growing Concerns

Since the USDA published its interim final rule in October, state departments of agriculture and farmers have voiced their opposition to various aspects of it in public comments. (When the comment period on the interim rule ended Jan. 29, it had received about 4,600 comments, more than 1,000 of which flooded in the final day.)

For instance, the Maine Department of Agriculture, Conservation and Forestry (DACF) penned a lengthy response to the USDA’s rule, with DACF Commissioner Amanda Beal saying the regulations have the “potential to be detrimental to Maine farmers who have invested in hemp production as well as those who are planning to enter this emerging hemp industry."

Maine DACF’s concerns in its letter to the USDA are reflective of many in the industry. Among logistical concerns regarding registration, background checks, disposal and more, issues the Maine DACF raises in its letter include:

  • the number of labs registered by the Drug Enforcement Administration (DEA) is far too sparse to require testing at them.
  • sampling is required for a large number of plants, making sampling within the 15-day-of-harvest time frame nearly impossible to meet.
  • the low permitted tetrahydrocannabinol (THC) threshold is difficult for many to obtain.

“When federal law gets worked out—and Maine is contributing to this process with feedback from DACF staff and hemp growers—we will look at a new program,” Jim Britt, the communications director for the Maine DACF, tells Hemp Grower. “Until then, we are sticking with the pilot program because it is better for our growers.”

The THC threshold is perhaps the most prevalent concern among the industry. If farmers produce hemp with more than 0.3% total THC, otherwise known as a “hot crop,” they must destroy it. 

Neighboring state Vermont has also opted to stick with 2014 regulations because a majority of the available hemp genetics grown in 2019 wouldn’t comply with the THC limit.

“The Vermont Agency of Agriculture, Food & Markets wanted to assure Vermont’s farmers for the 2020 growing season that they [can] continue to cultivate hemp as they had in 2019,” the agency's chief policy enforcement officer Stephanie Ann Smith tells Hemp Grower. “The agency also hopes that Congress will take action to allow for the identification of hemp varieties through genetic testing and/or increase total THC from 0.3% to 1%.”

The threshold is difficult to obtain, especially as many farmers reach for high levels of cannabinol (CBD). State departments of agriculture and the American Farm Bureau Federation  are hoping to see the limit bumped up to at least 1% total THC. The move would follow a growing global trend as countries like Thailand, Uruguay and Australia up their THC limits on hemp to 1%.

As some states hold out for a rule change from the USDA, they’re also using the extra time to learn more about what cultivars work best in this fledgling industry. Genetics and growing conditions can influence THC levels, so many state universities are conducting research on which cultivars grow best in their states.

“Industrial hemp has been a moving target for many regulatory agencies this year,” said Chris Chinn, director of the Missouri Department of Agriculture, in a public statement. “After working with producers, closely analyzing the federal requirements passed down by Congress and USDA, and incorporating our own state law, we determined that Missouri should spend the 2020 growing season learning more about what works in our state. We are confident this is the best choice for our producers in Missouri.”

Following New Rules

Despite industry-wide concerns, many states are still opting to draft fresh plans in compliance with the USDA’s interim final rule, according to the federal department’s website.

Spokespeople for the departments of agriculture in Ohio and Louisiana—two of just six states that have received USDA approval for their plans—tell Hemp Grower they did not participate in the 2014 Farm Bill pilot program, so they were required to start new.

New Jersey, on the other hand, did have a pilot program in place. But when the 2018 Farm Bill passed, the state decided it’d be best to push forward with new regulations to get ahead of requirements that were already spelled out.

“We decided at that time to work with our legislators to amend the existing state law to comply with the new farm bill provisions,” New Jersey Secretary of Agriculture Douglas Fisher tells Hemp Grower. “We believed that would be the fastest method for approval, rather than implementing a pilot program, then having to amend legislative laws. We are now compliant with federal law going forward.”

The USDA tracks the status of state and tribal hemp production plans on its website. (Note: Some states have not yet indicated their plan of action to the department.) 

Here’s a status breakdown of participating states’ plans as of Feb. 6, according to the USDA: 

Have a USDA-Approved Plan

  • Delaware 
  • Louisiana
  • Nebraska
  • New Jersey
  • Ohio
  • Texas

Operating Under the 2014 Farm Bill

  • Alaska
  • Arkansas
  • Colorado
  • Kentucky
  • Maine
  • Maryland
  • Minnesota
  • Missouri
  • New Mexico
  • North Dakota
  • Utah
  • Vermont
  • Wisconsin

Under Review by the USDA

  • Alabama
  • Arizona
  • Georgia
  • Indiana
  • Iowa
  • Kansas
  • Montana
  • Pennsylvania
  • South Carolina
  • Virginia
  • Washington
  • West Virginia
  • Wyoming

Drafting a Plan for USDA Review

  • California
  • Florida
  • Hawaii
  • Illinois
  • Nevada
  • Oklahoma
  • U.S. Virgin Islands 

Pending Resubmission

  • Connecticut
  • Oregon
  • Tennessee

USDA Hemp Producer License (the USDA will issue the producer license)

  • New Hampshire