Senate hearing looks at hemp-growing obstacles for farmers and state and tribal governments

July 25, 2019

The United States Senate Committee on Agriculture, Nutrition, and Forestry today held a hearing on hemp production and the 2018 Farm Bill. The meeting convened federal agencies USDA, FDA, and EPA as well as the testimony of industry stakeholders providing important perspectives on challenges related to farming and testing of hemp crops and extracts, as well as the challenges tribal governments face in establishing an infrastructure for the farming and processing of hemp.

At the hearing’s opening, Senator Pat Roberts (R-Kansas), chairman of the committee, expressed the importance of providing “certainty and predictability” to farmers, but noted the legal and regulatory challenges that hemp cultivation entails. Currently, USDA’s Agricultural Marketing Service (AMS), as required by the 2018 Farm Bill, is in the process of rulemaking related to hemp agriculture and hopes to complete regulations by fall 2019 in time for the 2020 hemp-planting season. State and tribal governments do not have to submit their plans for hemp production until AMS’s rulemaking is completed.

Until the new rulemaking is completed per the requirements of the 2018 Farm Bill, state and tribal governments may still operate under the rules of the 2014 Farm Bill. While the AMS develops regulation, USDA’s Risk Management Agency (RMA) is researching options for offering crop insurance for hemp production.

“H.R. 2157, the Supplemental Appropriations for Disaster Relief Act, 2019, directed the Federal Crop Insurance Corporation to offer coverage for hemp through a Whole-Farm Revenue Protection plan beginning in 2020,” stated Greg Ibach, Under Secretary for Marketing and Regulatory Programs, USDA, in his testimony today. “Covered hemp must be grown in accordance with state and federal regulations. In addition, the producer must have a contract with a buyer. Earlier this year, RMA issued guidance to permit hemp to be grown without voiding the Whole-Farm Revenue Protection policy for 2019.”

Protecting farmers is very important. During the hearing, Brian Furnish, a hemp farmer from Cynthiana, KY, explained that hemp agriculture is very difficult. In the first year of hemp agriculture under the 2014 Farm Bill, an estimated 80%-90% of hemp seeds were destroyed due to weeds, Furnish said.

Currently, there is no legal or approved crop management methods for hemp farmers. Evaluating which pesticides can be used on hemp is the task of the Environmental Protection Agency (EPA).

“Starting with an initial registration application we received in May 2019, I can report that the agency has recently begun to receive a number of registration requests seeking to add hemp to pesticide labels,” said Alexandra Dapolito Dunn, assistant administrator, Office of Chemical Safety and Pollution Prevention, EPA, in her testimony. “Currently, there are 10 product registration requests under review at the EPA. We have developed an approach for reviewing these actions and we plan to engage the public in the context of our decision-making on these initial actions by requesting public comment via Federal Register notice of receipts.”

Dunn said these requests will be prioritized and reviewed on an expedited basis.

Perspectives from the stakeholders offered a great deal of insight into the challenges of cultivating hemp. As already stated, Furnish relayed the incredible difficulty of successfully planting a hemp crop, which can result in incredible losses. Furnish said he had an advantage in that he already had the infrastructure of a tobacco growing model that translated well into growing hemp and allowed him to become successful. Contrast this with tribal governments who, under the 2014 Farm Bill, could only participate in hemp agriculture in a state where it was approved in collaboration with an institution of high education or a state department of agriculture. This has put tribal governments significantly behind states in developing a successful hemp-growing program.

Darrell G. Seki, senior tribal chairman, Red Lake Band of Chippewa Indians, in Red Lake, MN, stated in his testimony the profound economic opportunity that hemp cultivation and production provides tribal citizens. However, he said, delays in regulation put the tribes’ investment at risk.

“The more the AMS delays, the less time tribal producers are given to prepare, plan, finance, and plant for the new crop year,” said Seki. “Because there are no regulations, USDA takes the position that it cannot review and approve any proposed regulatory plans, whether from a tribe or a state. However, states are still able to continue growing hemp under the 2014 law—and tribes are not. Right now, the only way for tribes to begin hemp production is to use the extremely limited 2014 Farm Bill industrial hemp authority, which as I have stated does not acknowledge tribal sovereignty and requires a state competitor to become a willing partner.”

Seki also wished for greater engagement between USDA and tribal governments in developing these regulations and particularly with regard to tribal regulatory jurisdiction over hemp.

“Unlike Red Lake and some other tribes, many tribes have many different types of land within their jurisdictional boundaries: fee land, restricted fee land, individual trust land, or tribal trust land,” said Seki. “All of those legal categories can have different jurisdictional rules; yet hemp could reasonably be grown on any of those lands within the ‘territory of an Indian tribe.’ Given USDA’s limited legal expertise in tribal lands, this committee should insist that tribal leaders be welcomed by USDA, along with their technical advisors, to partner with USDA in guiding the regulation-writing process that will shape the federal regulations regarding our tribal jurisdiction over our tribal territory and how the term “tribal territory” is best defined in the regulation of hemp.”

Another important point brought up by the panel of industry stakeholders was the lack of consistent testing protocols between states for determining the legal 0.3% THC threshold in hemp-derived CBD products.

“One of the challenges that the 2014 Farm Bill–authorized pilot programs revealed in this respect, and what we hope to prevent in the forthcoming USDA regulations, is that if states implement too many different testing protocols, then the industry is left in a situation where what is legal in one state may not be legal in another,” said Erica Stark, executive director of the National Hemp Association (NHA; Reading, PA), in her testimony. “Another of the challenges revealed by the 2014-era pilot programs relates to the uncertainty of determining D9-THC [delta-9-tetrahydrocannabinol] in hemp crops, including ‘using post-decarboxylation or other similarly reliable methods.’”

With these challenges in mind, Stark and NHA suggested specific protocols for THC testing be standardized throughout the country. “Specifically, the National Hemp Association recommends that these procedures call for using gas chromatography-flame ionization detection (GC-FID) or high-performance liquid chromatography (HPLC) to estimate D9-THC concentrations in post-decarboxylated hemp, and that the estimates resulting from those post-decarboxylation methods be divided by three in order to determine the D9-THC concentrations on a dry-weight basis, thus determining whether the crop meets the legal definition of hemp,” said Stark. “GC-FID and HPLC are the most commonly used testing methods by states…The reason for dividing the D9-THC concentrations in post-decarboxylated hemp by three is due to the relative difference in the concentration of D9-THC in post-decarboxylated hemp as compared to the concentrations in hemp on a dry-weight basis.”