“We’re glad you’re listening. Let’s work together to get it right, right now.”

September 24, 2020

Hemp is as challenging to regulate as it is to produce, and USDA has confronted these challenges in drafting an Interim Final Rule (IFR) to implement the hemp authorities enacted in the 2018 Farm Bill. But in the rush to promulgate the IFR, the rule was issued with substantive flaws that are putting farmers—and America’s entire hemp industry—at great risk. It is encouraging to see USDA’s public acknowledgment of these problems in announcing a new comment period, but once again the timing couldn’t be worse; just like last year when the IFR was rolled out. We understand the pressures that the Department may be facing, but we urge you to extend the comment window beyond the harvest season.

Nevertheless we are redoubling our efforts to provide the most comprehensive and substantive input we can by the October 8th closing date. But no matter how quickly or correctly the Department finalizes the Rule, confusion and consternation now reign with the IFR in its current form, and we fear this year’s impending harvest will yield a bumper crop of bankruptcies and lawsuits rather than fiber, flower and food. Therefore we urge the Department to delay enforcement of the IFR provisions relating to the problems it has now publicly recognized, as it did for two such provisions in February, until the Rule is finalized.

We particularly appreciate that the Department’s announcement of the new comment period specifically addresses several of our most pressing concerns: measurement of uncertainty for sampling, calculation of the post-decarboxylation value of THC (‘Liquid Chromatography Factor’), the sampling of only flowering tops, and the 15-day testing window, among others. Our forthcoming comments will elaborate on these concerns.

However, the short window and timing of this comment period came to some as a surprise, given the legitimate criticisms last year for issuing the IFR and a post hoc comment period at the end of October. These actions come right at harvest, when farmers are most vulnerable to market disruptions and least able to provide constructive feedback. The October 8th deadline also precludes farmers, researchers and regulators from analyzing and conveying the lessons learned from this year’s harvest, which is the first to occur after the IFR was issued. We would expect USDA to be relying on such input to improve the Rule.

That said, we appreciate that the Department may now be accelerating its efforts to replace the IFR with a Final Rule. Perhaps this rush was set in motion by the impending expiration of 2014 pilot program authorities, though newly enacted legislation now extends those authorities for another year; so this may no longer be an immediate concern. Or perhaps this decision was made in light of legal action now being threatened against DEA’s IFR on hemp, in which petitioners assert violations of the Administrative Procedures Act by DEA that can be similarly alleged against USDA: each agency issued its IFR with dubious claims of good cause for exempting itself from the APA’s requirements for public notice and comment in advance of issuing a rule, and each IFR contains decisions that can be construed as arbitrary and capricious. An attempt to correct the error by rushing a new comment period and replacing the IFR with a Final Rule could be seen as designed to preempt litigation by rendering such APA claims moot; though in addition to being preceded by public notice and comment, the Final Rule would also have to be free of arbitrary and capricious decisions for such a strategy to succeed.

Adversarial impulses like lawsuits are a natural response to the perception of clear and present danger created by these IFRs, but with USDA we believe a more constructive approach is within reach. The Department’s decision in February, upon hearing substantive concerns raised by the industry, to delay enforcement of two Rule provisions (DEA certification of labs and destruction of ‘hot’ crops), together with USDA’s more recent acknowledgment of the significant problems that remain, shows the Department has been listening and recognizes the need to address these outstanding issues. Such a constructive posture may yet enable the Department to incorporate the changes necessary to avoid arbitrary and capricious decisions in the Final Rule, if it acts on the input it has requested.

In that same spirit of cooperation, we also urge USDA to delay enforcement of the IFR provisions relating to the problems that commenters (and now USDA itself) have identified—specifically those at §990.3(a)(2)(i), §990.3(a)(2)(ii), §990.3(a)(3), §990.25(b) and related references in other sections of the IFR—until the Final Rule is promulgated. Obviously we are all reeling from wildfires, extreme weather and the COVID pandemic, which is reason enough to take this action. Moreover, in elaborating on its search for input on these matters within the comment period announcement, USDA clearly recognizes stakeholder concerns about technical errors that contradict scientific evidence and put farmers at immense financial risk. Given this acknowledgment, and USDA’s own intent to protect farmers as stated in its Federal Register preamble to the IFR, we hope that USDA will recognize the imperative to apply the delayed enforcement precedent it set in its February decision to these additional provisions.

Furthermore, as our forthcoming comment submissions will explain, the IFR’s technical errors create a presumption of guilt that misconstrues the legal definition of hemp, exposing State and Federal authorities to legitimate claims of unjust regulatory takings that may invalidate the Rule entirely and leave the industry hopelessly in limbo. With so little to gain and so much to lose by leaving these provisions in place, it’s hard to imagine any reason not to delay their enforcement at this time. Which mistake would the Department rather make?

We eagerly look forward to more discussion with you on all these issues. They are so complex as to defy one-way communication in rushed comment periods: more shared learning and deliberation is what we all need at this crucial time. Let us show you how critical it is to properly calculate how much THCA actually decarboxylates to Δ9-THC, why accounting for sampling error is so essential, how sampling only the flowering tops needlessly puts us all at risk, why the 15-day testing window is impracticable for both farmers and testing labs, and how disastrous it would be for us all to leave these problems unresolved any longer. At the same time, perhaps you can help us understand the statutory mandates and interagency pressures your rules need to satisfy. We’re all learning how to manage this crop; we ought to do it together. With harvest getting underway we haven’t a moment to lose.

Thank you for your attention, and for your service to America’s farmers.

Sincerely,

Herrick Fox
Meristem Farms, LLC
Morrisville, Vermont

Josh Schneider
Cultivaris Hemp, LLC
San Diego, California