by Duane Stjernholm
Comments on the Establishment of a Domestic Hemp Production Program
AGENCY: Agricultural Marketing Service USDA
ACTION: Interim final rule with request for comments.
Please Note: Page Numbers reference the Federal Register
First of all we would like to laud everyone in the US Government that had a part in completing the Herculean Task of compiling and completing this Interim Document. However, we (the paid Shareholders, strategic collaborative partners, and Friends of the Colorado Hemp Processing Cooperative) have several concerns about some of the specifics of this document that require us to make the following comments. Thank you for allowing the 60 Comment Period that permits us to make our concerns public for your consideration to help make the Actual Final Rules the best they can be for everyone involved in this nascent revival of the US Hemp Industry.
We appreciate your efforts and hope that all US Government employees involved with these rules remember that they represent all US Citizens and that any Final Rules need to be formulated for the Greatest and Highest Good of all Americans. Government Employees at all levels, including Government Employees, Elected Officials and Government Contractors, are not paid by special interests, lobbyists, campaign contributors, and specific political parties, but by the taxes of all hard working US Citizens. We all need to Collaborate and celebrate that The US Hemp Industry is being revived after 80 years of dormancy. We additionally have the added benefit that we can revive it with 21st Century Technology. Being that it is the 21st Century, it is time to let go of the 20th Century’s manufactured “Reefer Madness” stigmatization that cannabis has been subjected to for the last 80 years. Hemp has the potential to bring economic stimulus to Rural America and as stewards of our future and our future generations prosperity, we need to maximize this potential.
For the purposes of these comments, we would like to remind you that hemp, as defined in the 2018 Farm Bill, means the plant species “Cannabis sativa L. and any part of the plant including the seeds thereof and all derivatives, extract, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis” (Federal Register IFR Introduction Page 58523 et al). In the Sampling and Testing for Delta-9 tetrahydrocannabinol (Section B Page 58524) it states that “… person shall collect samples from the flower material from such cannabis plants for delta-9 tetrahydrocannabinol concentration level testing”. This brings us to our first comment. As the Statutes require that only the flower material is being tested, and the definition of hemp includes any part of the plant, it is a non sequitur that the whole plant be destroyed if the flower material tests over the .3 THC (delta-9 tetrahydrocannabinol) level. The cannabinoids are the most concentrated in the flower, but since we are referring to any part of the whole plant in the definition and the various parts of the hemp plant are used for different purposes, why are we only testing the flower? Of course the flower is used for cannabinoids for recreational and medical purposes, but the leaves and seeds are used for food, and the stems and stalks used for fiber and paper among thousands of other uses. We would propose that a much more 21st Century scientifically accurate sampling procedure be utilized. Specifically, to scientifically and accurately determine the THC level of the entire plant, we would strongly advocate and recommend that the sampling procedure collect material from not only the flower, but include equal parts (by dry weight) of the leaves, stems and stalks, including both the bark (Bast) of the stalk and the pith (Hurd) of the stalk. These components from the entire hemp plant could then be homogenized (blended together) and that more accurately representative homogenized sample be used to determine the actual and much more precise THC level of the entire plant. Logically, this would be a much more scientifically accurate analysis while still utilizing the post decarboxylation methods of testing that is recommended by the Bill.
In our Research we’ve tried to determine why the .3% THC figure has been designated as the difference between Hemp and marijuana, and our research indicates that it is just an arbitrary figure with no scientific basis. It creates a confusing situation where all Hemp is cannabis, but not all cannabis is Hemp. A much easier and more common sense solution than the above would be to take all cannabis off the Schedule I Controlled Substance List as hemp has already been. This would give Producers much more freedom to prosper without all the onerous regulations and burdensome fees that Hemp is currently subject to. Even a change from the 0.3% THC level to a 1.0% THC level would ease some of the Producers’ concerns about having to destroy a crop that they have put blood sweat, tears, time and money into. Unfortunately, these percentage changes can only be made by the President or Congress but we are confident that this will happen sooner than later. The Rule states (Page 58524) that “Sampling procedures, among other requirement, must ensure that a representative sample of the hemp production is physically collected and delivered to a DEA-registered laboratory for testing”. However, related to the above, if only the flower material is tested, then only the flower material is subject to going over the 0.3% THC level. Therefore, logically, the only part of the plant that should be destroyed if the test goes over 0.3% THC is the flower material, allowing the Producer to recoup some of his time and money by utilizing the remaining undestroyed, untested segments of the plant. A viable alternative that would not require and change in test sampling or THC % levels is that, using 21st century technology, the Authorized person (DEA reverse distributor) charged with overseeing the corrective action of the non-compliant crop could be Authorized to oversee the digitally tracked channeling of that crop into an approved processing facility that would transform that crop into a non-ingestible product like hempcrete, fiberboard, paper, or numerous other non-ingestible products. Alternatively, utilizing 21st Century technology, as an alternative corrective action, the THC could be extracted from the flower material before it goes into the open market. Since the THC level is the only aspect of the plant that is not compliant, then the THC could be extracted and destroyed using 21st Century Technology without destroying the value of the rest of the plant for the Producers. The Producers would thus not be out their whole investment and may even realized a modest return to offset their expenses, but would not benefit from the THC portion of the plants. The suicide and bankruptcy rates of Farmers in America (Producers) are at an all time high and we certainly don’t want exacerbate those rates with over-regulation in the revival of a once important crop that was crucial in helping the US win WWII in the “Hemp For Victory” Campaign. These alternative considerations for corrective action are absolutely necessary and critical in assuring that the revival of the US Hemp Industry is given every possible chance to succeed. Utilizing these actions could also significantly defray the projected annual cost of $6.432 million for the disposal of non-compliant crop disposal and would add more positive benefit to the Producers and the country. This is also compliant with Executive Order 13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539). Although the “AMS adopted the best option among the alternatives” (Page 58548) for sampling procedures, it is very possible and probable that they did not consider all of the alternatives including the ones presented above.
Because the Rule (Page 58524) requests comments and information regarding the 15-Day sampling and harvest timeline we are offering the following comments. Not only is this protocol unrealistic from the Producer’s perspective, there are too many significant extraneous variables and conflicts to pinpoint an exact harvesting timeline to this level of specificity. Some of these variables are unpredictable weather, optimum maturity of the crop, availability of harvesting equipment and personnel. There is also a huge difference between procedures for successful harvesting Hemp to be used in CBD products and procedures for successfully harvesting Hemp to be used in whole plant processing. CBD products have been shown to have positive uses, but we feel that whole plant processing is the realistic future of the Hemp Industry because all parts of the Hemp plant have value, not just the flower material. The growing protocols for CBD production and whole plant processing are vastly different. The protocol for growing CBD crops involves only using feminized seed or clones or, alternatively, the male plants uprooted to prevent pollination. The reason for this is that Pollination decreases the cannabinoids in the plant and CBD producers want to maximize their CBD production. These plants are planted at about one plant every three feet and are bushy short plants that do not decorticate well. For whole plant processing, our recommended protocol for growing Agriculturally Cultivated Industrial Hemp is that seeds are planted at a rate of 75-90 plant per square yard. This planting method crowds out weeds, requires less herbicides, and forces the plant to grow straight and tall (for optimum decortication) and produces the majority of seed and flower at the top of the plant. For CBD Harvesting when the flower material is harvested, the stalks often go to waste and the plants are not allowed to produce seed. For whole plant processing, the seeds, residual flower, and stalks (decorticated into the Bast and the Hurd) are all valuable raw materials that are the basis for the thousands of products that can be produced from Hemp. Harvesting for these whole plant materials is really a two step process where, when the seeds are at their optimum maturity and dryness, the seeds and residual flower are harvested and taken to the processing facility for sorting and separating, leaving the erect stalks in the field to additionally dry out and not get moldy for optimum decortication. When (weeks or months later) the stalks are sufficiently dry, a different harvesting machine is used to cut them and then they are transported to the processing facility for decortication into the Bast and the Hurd. Thus, when harvesting for whole plant processing, there is really two harvesting periods which can occur months apart. How does this two-part harvesting procedure fit into the directive of having to sample within 15 days of harvest? In reality, we have a Preliminary Harvest for seed (which has virtually no THC) and residual flower (which has lower THC levels due to pollination) and a Main (final) Harvest for the higher tonnage stalks. To comply with this Rule as written for testing purposes, we would advise our Producers to submit the date of the main Harvest to comply with the Rule, as this is when we would be harvesting the bulk of the crop with the most THC due to the much larger biomass involved.
There were over 90 million acres of corn grown in the United States last year, but only 78,000 acres of hemp. To facilitate Hemp Acreage to grow into the commodity levels of corn and other major crops, it is crucial that Hemp be allowed to be grown from seed to seed, fully mechanized from seed to sale, and include whole plant processing with the two-step harvesting protocol we have outlined above. Any regulations that hinder this process are not in line with the IFR’s good cause in carrying out ” … the Public’s interest in expediting the ability of the nation’s farmers to enter the new agricultural market presented by Hemp” ( Good Cause Analysis page 58554). This restrictive rule as written will have a negative effect on the current and future innovation in the areas of industrial Hemp usage. This will produce a negative effect on Rural Communities who have the most potential to Benefit from successful Hemp cultivation including processing, manufacturing, and retail sales which in the end produces true trickle-down economics. This is acknowledged in the Introduction to the Rule as “Hemp is a commodity that can be used for numerous industrial and horticultural purposes including fabric, paper, construction materials, food products, cosmetics, production of cannabinoids (such as cannabidiol or CBD) and other products” (Page 58522). Since Hemp, as defined in the 2018 Farm Bill is no longer a controlled substance, the utilization of homogenized sample testing is virtually mandated to be the prevailing and preferred testing protocol.
Other concerns regarding the 15-Day sampling protocol is that there is a great possibility there are currently not enough trained and certified personnel to effectuate a smooth harvest in a timely manner as the harvesting of the vast majority of the Hemp crops will occur within a very short time period. Another alternative that should be considered is to sample after 60 days of planting which will also give the samplers more flexibility in their whole plant sampling schedule and avoid the rush as harvesting time. In addition we are concerned that there are not enough DEA certified labs to test the samples in a timely manner. In searching the DEA’s website we could find no listing of the number and location of DEA Certified Testing Labs. As above, this is probably not compliant with Executive Order 13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
Also in regard to testing, the USDA is seeking comment on a testing lab approval as to whether or not to incorporate it into the subsequent final rule (Page 28525). Because “USDA is considering establishing a fee-for-service hemp laboratory approval process for labs that wish to offer THC testing services” (Page 58525), we would welcome more labs for testing. We would also strongly recommend that the fee for testing be very reasonable and not more than $25-50 per test as they currently are in Colorado. The more reasonable the Fee, the higher the likelihood that Producers will test more often to assure that they are remaining in compliance with the rule. In a lot of rural areas there are a lack of testing facilities and so we would welcome an increase in the number of USDA/DEA approved Labs to ease the burden of having to transport material long distances to be tested. Because the USDA is also requesting comment in regard to ISO 17025 accreditation (Page 58525), we would offer that the more accurate the testing is, the better it is for everyone. As long as this additional requirement doesn’t increase the fees beyond a reasonable level, we would accept that laboratories testing hemp should also have ISO 17025 accreditation if the USDA feels this is important.
In regard to The Farm Service Agency collecting information on crop acreage through the “Report of Acreage” form (Page 58547 and §990.7 Page 58559), we feel that this is an additional burden on the Producers. The State, Tribal Agencies and the USDA already have this information in regard to Hemp production and this information can be easily shared electronically with the FSA by the State Agencies, Tribal Agencies and the USDA. This is also in alignment with the Paper Reduction Act.
We respectfully request that in consideration of all of the comments above §990.24 (Page 58560) be amended to read:
“(a) At approximately 60 days post planting, a producer shall have an approved Federal, State, local law enforcement agency or other USDA designated person collect samples from the entire plant including flower material, leaves, stems and stalk of equal dry weight, and these equal samples be homogenized (blended together) for delta-9 tetrahydrocannabinol concentration level testing.”
Our last comment references your reasoning as to why hemp went out of favor in the 1930s (Page 58522 et al). Your statements are marginally true, but do not do justice to the real truth. Any student of Hemp knows that hemp was intentionally included in the same legislation that made marijuana illegal because Industrial Hemp was a threat to other industries controlled by the business magnates of the time. These included the oil holdings of John D. Rockefeller, the forest and paper industries of William Randolph Hearst, and the lucrative financial schemes of DuPont’s synthetic nylon and DuPont’s chief financial backer, Andrew Mellon of the Mellon Bank of Pittsburgh. This was done in conjunction with the “Reefer Madness” campaign promulgated by the first Commissioner of the Federal Bureau of Narcotics, Harry Anslinger. Mellon, who was Secretary of the Treasury and Anslinger’s Uncle In-Law, designed Harry Anslinger’s position to help eliminate Hemp’s as a primary competitor to DuPont’s new synthetic fiber, nylon. We only bring this up because the whole truth should be told regarding the real reasons that Hemp was made illegal and this should be correctly noted in the Federal Register. In addition, the cotton gin was invented in the 18th Century and according to your rational, all of a sudden it eased the harvesting of cotton in the 20th century (Page 58522 et al). The cotton gin is not used for harvesting, it is use for processing the harvested cotton and Hemp was a threat to this industry as well. We only mention this because Hemp has been demonized for long enough and we just want you to paint a more accurate picture of the unconscionable conspiracy to wipe out the competition to these other industries. These are the real reasons Hemp was made illegal in the first place, which was a travesty of justice. Fortunately we have slowly overcome this manufactured bias and we now have the opportunity to utilize this versatile plant for the good of all Earth Citizens. This can be effected as long as these regulations are based on facts and common sense in order to promote the cultivation of Hemp in such a way as to not be in contradiction with Executive Order 13563 to “select regulatory approaches that maximize net benefits, which include potential economic, environmental, public health and safety, effect distributive impacts, and equity” (Page 58539).
We want to Thank You again for allowing us to submit these comments and would like to iterate that we are working diligently to collaborate and co-create the revival of the Hemp Industry onto one that is fully compliant and produces the greatest and Highest Good for all participants and especially for all US Citizens. We Thank you for Supporting all our efforts in your consideration of all of the above. We also hope that you will make decisions to change the current IFR with regard to our comments, and that any changes made to the IFR will also include those that benefit the Greatest and Highest Good for all US Citizens.
Thank You for Your Consideration of Our Comments!
Co-Founder and Operator
Colorado Hemp Processing Cooperative
713 Cimarron Ave.
La Junta, CO 81050