The head of the U.S. Department of Agriculture (USDA) again indicated that the Drug Enforcement Administration (DEA) had an outsized influence on its proposed rules for hemp, stating that the agency “really didn’t like the whole program to begin with.”
During a hearing on USDA’s budget before the Senate Appropriations Committee last week, Agriculture Secretary Sonny Perdue was pressed on restrictive provisions of USDA’s interim final rule for hemp, specifically as it concerns the limited THC threshold allowed in the crop.
Sen. Jeff Merkley (D-OR) said the 0.3 percent THC limit is arbitrary, and it’s not necessary to distinguish hemp from marijuana.
Perdue said that was “certainly true” and he added that USDA “fought for a little more flexibility of widening those standards,” but it was constrained by congressionally approved statutes and faced pushback from other federal agencies as it attempted to loosen restrictions.
“You may know also in the regulations, we had some pushback from DEA,” the secretary said, noting for the second time this month that the agency stood opposed to implementing a domestic hemp program in the first place. He previously called out DEA for its role in shaping restrictive rules for the newly legal crop in a House hearing.
We made a few modification as we were able to under the legal statutes in our interim final rule. This is a new and unusual crop, as you understand, and we’ll be very open to ongoing comments as we go forward about what those other flexibilities,” he said. “But our hands were constrained many times by the interagency process of other people weighing in.”
Sen. Patrick Leahy (D-VT) quickly followed up to say that he shares Merkley’s concerns and he urged Perdue to “continue working with us to get it right.”
Later in the hearing, which was first reported by Hemp Industry Daily, Merkley again brought up hemp and asked the secretary whether it would be fair to characterize the interim final rule as a “draft plan” given the evolving nature of the regulations. He cited USDA’s recent decision to temporarily lift certain testing requirements as an example of that fluid approach.
“I would think you would” be able to characterize it as a draft, Perdue replied. “The problem is, on an interim final rule, as our lawyers have explained to me, once it’s set, unless they’re minor changes in that, you can’t change it until you go to the notice of proposed rulemaking. I would functionally say it’s a draft plan.”
“This is a very unique crop as you know. We were learning as we were going and we tried to nail it best we could,” he said. “We had some pushback as I indicated in other agencies, but I would think your characterization of a draft is a good one.”
The senator also inquired about the possibility of allowing certain states to continue to operate under the more limited research-focused provisions of the 2014 Farm Bill, as opposed to the 2018 version that contains what industry stakeholders describe as problematic provisions.
As it stands, states and tribes are able to use the earlier version for the 2020 growing season.
Perdue said that his “preference would be to resolve the issues from our federal rule, if we can, by that 2021 growing season.”
“If we cannot, I will be absolutely as flexible as the law allows in order to perpetuate the 2021 under the state rules of 2014 in that area if we can’t resolve the main issues that the states that had those 2014 laws resolved,” he said.
Perdue added regulators at the department will “continue to look at things that we feel like we can do under the guise of the interim final rule to match up with where the states were in their ’14 rules in order to reconcile any differences and resolve those.”
“Our goal was to have really all the states under the federal umbrella, but we understand why some states chose not to,” he said.
In the meantime, USDA has continued to approve regulatory plans submitted by states and tribes. In the most recent round, Georgia and Montana had their plans signed off on, raising the total number of approvals to 10 ten states and 12 tribes.