AUGUSTA, Maine - The Department of Agriculture, Conservation and Forestry has issued its comments to the USDA on the Interim Final Hemp Rule, expressing concerns with proposed requirements that have the potential to adversely affect the growth of the hemp industry in Maine. The comments come after a thorough analysis by state officials and include feedback from Maine farmers. The USDA's proposed hemp regulations were released Oct. 29, 2019, and states were invited to review and respond with comments within 60-days.

**"The requirements proposed by the interim rule 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," commented Amanda Beal, DACF Commissioner. We strongly encourage the USDA to ensure that the final rules are practical and dont hamper the future growth of hemp production and its potential contribution to Maines economy.**

Maines hemp program launched in 2016 with one grower, and today 181 licensed hemp farmers are growing hemp in all of Maines 16 counties, and crop varieties are thriving.

We urge the USDA to deliver a flexible Domestic Hemp Production Program rule that takes into consideration the complexities of hemp production, commented Nancy McBrady, Director, Bureau of Agriculture, Food and Rural Resources. Maine farmers have spoken, and we agree, that the rules proposed by the USDA are overly burdensome, and we are hopeful that changes will be made that reflect the needs of hemp farmers.

*The following comments were submitted E. Ann Gibbs, Director of Animal and Plant Health, Bureau of Agriculture, Food and Rural Resources, on the United States Department of Agricultures (USDA) Interim Final Hemp Rule:*

USDA Agricultural Marketing Service Doc. No. AMS-SC-19-0042 SC19-990-2 I. Via Email

**Re: State of Maine Comments on USDA Interim Final Hemp Rules**

Dear Sir/Madam:

The Maine Department of Agriculture, Conservation and Forestry thanks you for the opportunity to comment on the USDA AMS interim final rule, 7 CFR Part 990 Establishment of a Domestic Hemp Production Program (Rule). Maine has had a hemp program in place since 2016, beginning with one grower who harvested seed from less than an acre. This has since grown to 181 license agreements and over 2000 acres of planted hemp in 2019. Hemp is now grown in every one of Maines 16 counties, and the varieties grown are thriving in all parts of the state. There has been a lot of support for and interest in this new crop by producers, private industry, the state legislature, and the Department. However, we are concerned that the requirements proposed by the Rules will require some major adjustments to the program that could adversely affect the growth of this industry in Maine. Below are our comments regarding how these proposed changes will impact the Maine program.

**LABS**

The Rules require that testing labs be registered with DEA. This may be cumbersome at best and impossible to meet at worst. In 2019, the Maine program switched to using one available private testing lab, which is not currently registered with DEA, because our state lab was unable to process samples. The private lab is ISO 17025 accredited, which is an important accreditation because it requires third-party assessors to evaluate the laboratorys ability to produce precise, accurate test and calibration data, and facilities are regularly reassessed to ensure technical expertise is maintained. ISO 17025 accreditation is more important to the state than DEA registration.

It is also unclear how many labs in Maine will seek DEA registration for hemp, or if they will even be available to test hemp samples. Maine just approved and is implementing a recreational marijuana program, and with the new push to find labs to test marijuana, labs may choose to focus on this crop and not hemp. Hemp testing labs will also need a DEA approved plan for disposal of non-compliant hemp, and those requirements are not clear at this time.

**THC LEVELS**

DACF is concerned that the USDAs requirement for a 0.3% Total THC level with no provision for mitigation does not allow for enough flexibility given the realities of the crop. This is not practical: many hemp cultivars are unstable and may fluctuate in THC content depending on soil type, climate, weather, pest infestations, or other plant stress factors. Since the sampling procedures are worst case based and do not include plant material from the entire plant, non-compliant test results should be allowed to be mitigated. The 2018 Farm Bill under Section 297B e(2)(B) Corrective Action Plan appears to allow the state to develop corrective actions when a growers hemp is found to be above 0.3% Total THC. The states corrective action plan should be allowed to include grower requirements to extract from or process the entire plant as biomass when total THC levels are above 0.3% and below 0.5%. (Note that, ideally, Maine would prefer that the upper limit be 1% Total THC because the risk of anyone using that cannabis for the marijuana market is virtually non-existent.) Additionally, the extractor or processor could be required to assure the THC level of any product produced is diluted below the 0.3% threshold, and if any excess THC isolate exists, that it is properly disposed.

Currently, Maine law only requires hemp to be less than 0.3% delta 9 THC (not Total THC). Many of the CBD varieties currently grown will not meet USDAs new total THC threshold. If the USDA retains the 0.3% Total THC level with no allowance for flexibility, the likely outcome for growers would be significant lost investments and diminished market prospects for what limited varieties will qualify as hemp using this limit. The industrys growth prospects could be significantly reduced. We urge the USDA to allow for greater, yet manageable, flexibility in determining THC levels that can qualify as hemp with or without additional mitigation. Another direction the USDA could take on defining what qualifies as hemp is to use taxonomic determination based on the genetic testing of known cannabinoid ratios of stable cultivars. Type III cultivars that are CBD dominant with a ratio of at least 20:1 CBD to THC are not psychoactive and produce high levels of CBD, which is one of the chief derivatives that hemp growers seek.

**SAMPLING** Under the new Rules, the state will be required to sample every field and every area that has a different variety/strain growing, which will substantially increase the number of samples required to be collected. We believe that this is impractical. DACF currently collects one sample per license agreement, and some of our licensees have 15 20 different grow sites. This year there were 217 grow sites on 182 license agreements and multiple varieties grown on more than half of those sites. Had the new Rules been in effect for 2019, the number of THC samples would have increased from 182 samples to 300 or more. An additional complication for sampling is the requirement for the licensee or a designated employee to accompany the sampling agent throughout the sampling process. This requirement, along with the increased number of samples, will make the states sampling of all hemp lots within 15 days of harvest very difficult. Both of these added burdens will require additional FTEs to complete the sampling within the 15-day timeframe.

**REGISTRATION**

The Rules will require hemp farms to register with the USDA Farm Service Agency (FSA). While we understand that the potential benefit to growers for registering is possible financial assistance from FSA under certain future circumstances, we believe it could also be a significant barrier for small, less experienced growers who comprise the bulk of our licensees. Registration with FSA could discourage growers from becoming licensed because many of them are also medical marijuana growers and would not be favorable to registering their land with a federal agency. The state hemp program depends upon license fees to support the regulatory program. If too many growers are discouraged by this requirement, the program may not be self-sustaining.

**BACKGROUND CHECKS** The requirement for background checks to exclude applicants with a felony in the last 10 years will be a significant change to the Maine program, which does not require such checks. Maines original state statues included a requirement for background checks, which were later deleted in the 2015 laws. This requirement will add another barrier for hemp growers who will be facing numerous new registration and reporting requirements under the Rules. Maine also has a statutory conflict with this requirement. 5 MRS Chapter 341 5303(1) only allows our agency to disqualify an individual from licensing on the basis of a criminal record for a maximum period of three years.

**REPORTING**

The Rules monthly reporting requirements to the USDA AMS are extensive and will impose burdens on the state to implement. The state will have to develop a more sophisticated and costly database in order to fulfill these requirements. Further, because one of the monthly reports requires submission of geospatial location data, the state will have to amend the current licensing statutes that protect locations of hemp production sites as confidential information. The new reports will also require our current testing lab to change their report format and develop a process to notify the grower as well as the state of the total THC test results for each crop lot. Finally, the Rule requires use of a special license numbering system. Implementation of the new numbering scheme is an additional burden. All of these data and reporting requirements will increase the program workload and require additional state expenses.

**DISPOSAL**

Currently, when non-compliant hemp is found in Maine, the Department notifies local law enforcement and then the Department oversees grower destruction of the crop. The USDAs Rule changes this process so that if non-compliant hemp is found, the DEA or another entity authorized to handle marijuana under the Controlled Substance Act will dictate the process for disposal. Recognizing the time and effort that may be asked of these entities in disposal situations, the Department advocates that options for destruction include simple solutions such as mowing, disking-in the crop, or composting.

**IMPLEMENTATION DATE**

The Department is concerned that the USDAs approved plan implementation deadline of October 31, 2020, will seriously disrupt Maine and other states current licensing schemes, to the detriment of growers. If growers state licenses are void after that date, it could create a barrier for the licensee to sell their 2020 crop. For instance, if hemp is harvested prior to October 31, 2020, and was tested under the states 0.3% delta 9 THC method, will that hemp no longer be allowed to be sold on or after October 31st? Further, due to the Rules requirement that currently confidential grower data be reported to the USDA, the Maine legislature will need to make statutory changes to current Maine law. Given the states legislative calendar, this may be impossible to achieve by that timeframe. We urge the USDA to rethink this deadline or provide for extended implementation dates, should states face legislative hurdles to comply. An alternative option would be to continue to operate state programs and gradually phase into the Federal program as milestones are achieved to comply with the Rule.

**FEDERAL PROGRAMS AND AGENCIES**

The Department is hopeful that these rules will establish a firm basis for Land Grant Universities to pursue hemp research without any threat of federal grant disqualification. The University of Maines risk management department has not allowed university staff to conduct any research that requires handling of cannabis of any form. We also are supportive of providing hemp growers access to the USDA-FSA cost-share funding and the USDA-NRCS programs. The Department would support allowing new hemp farmers to access that funding and those programs even earlier than the current rules allow.

**SUMMARY**

The Department hopes these comments are instructive as the USDA determines how to move forward with implementing the Federal hemp program. As presented, these Rules will be challenging to implement for states with existing hemp programs and could threaten the future growth of the industry overall. The years of hands-on and practical experience that Maine, along with numerous other states, has had operating its hemp program should inform the USDA on how these Rules should be amended. Please dont hesitate to contact us if you have any further questions.

Sincerely,

Ann Gibbs

Director Division of Animal and Plant Health