Senate Bill 0186 (Public Act 4 of 2021) – Summary of Changes
March 25, 2021
The 2018 federal Farm Bill directed the United States Department of Agriculture (USDA) to establish a national regulatory framework to produce industrial hemp in the United States. USDA’s interim final rule (IFR), published on October 31, 2019, established the United States Domestic Hemp Production Program.
On January 19, 2021, USDA published its final rule, incorporating modifications based on public comments and lessons learned during the 2020 growing season. The final rule became effective on March 22, 2021.
Until recently, the regulatory requirements for cultivating industrial hemp in Michigan were prescribed in the Industrial Hemp Growers Act, Public Act 220 of 2020 and Michigan’s approved State Hemp Plan. To continue operating under state authority, the law and plan has updated to reflect the changes made in USDA’s final rule. The updated law has been assigned Public Act 4 of 2021, the Industrial Hemp Growers Act. The department is now in the process of revising its state hemp plan and will submit the revised plan to USDA for approval.
The following is a summary of the key changes made to PA 220 in Senate Bill 0186, and Michigan’s state hemp plan:
Timing of sample collection
Recognizing the logistical challenges growers can face when harvesting industrial hemp acreage, the hemp harvest window has increased from 15 to 30 days. Growers are still required to have their hemp sampled prior to harvest; however, they now have 30 days after sample collection to harvest.
Disposal and remediation of non-compliant plants
Prior to the final rule, growers were required to dispose of non-compliant hemp using one of several approved agricultural methods. To minimize the financial loss associated with having to dispose of non-compliant hemp, growers may now choose to remediate non-compliant hemp instead of disposing of it. The two options for remediation are:
- Disposal of floral material and salvaging the remainder of the plant
- Blending the entire plant into a biomass-like material.
Under both forms, additional sampling and testing of the post-remediated crop must occur to determine THC levels, and only successfully remediated crops will be allowed to enter the stream of commerce.
Testing using DEA-registered laboratories
Recognizing laboratories could potentially be handling cannabis exceeding 0.3 percent THC on a dry weight basis, which is, by definition, marijuana and a Schedule I controlled substance, all laboratories testing industrial hemp must be registered with the United States Drug Enforcement Agency (DEA). This requirement has always applied to MDARD’s Geagley Laboratory, the only Michigan laboratory authorized to test hemp for regulatory compliance. However, it now also applies to any laboratory testing hemp throughout the growing season to monitor THC concentration.
Given the limited number of DEA-registered labs available to growers at this time, enforcement of this requirement will be postponed until December 31, 2022. After this date, growers must ensure the laboratories they utilize for monitoring the THC levels in their hemp during the growing season are DEA-registered.
Negligent violations
Negligence is defined as a failure to exercise the level of care a reasonably prudent person would exercise in complying with hemp cultivation requirements. Prior to the final rule, growers with hemp testing above 0.3 percent but below 0.5 percent were considered to have grown non-compliant hemp. However, this was not considered to be a negligent violation.
Because compliant hemp can be difficult to grow, the negligence threshold has been raised from 0.5 percent to one percent and the maximum number of negligent violations a grower can receive in a growing season (a calendar year) has been limited to one. Raising the negligence threshold will facilitate grower compliance as they become more familiar with growing hemp and as the availability of stable hemp genetics improves.
Hemp Sampling
MDARD’s state hemp plan contains several requirements related to sampling and analyzing hemp to ensure compliant THC levels. One requirement is collecting enough hemp during sampling to ensure, at a confidence level of 95 percent, that no more than one percent of the plants in the sampled lot would exceed the acceptable THC level. Because a variety of factors can influence the THC concentration in a hemp lot, USDA is modifying its sampling provisions to allow states to develop performance-based sampling requirements. This added flexibility will allow MDARD to take into consideration things such as seed certification, grower compliance, variety performance, etc. when developing its sampling plan.
Grower Registration Cycle
Based on feedback received from growers, the grower registration cycle has been changed from December 1 – November 30 to February 1 – January 31. This means grower registrations already issued for the 2021 growing season will be valid until January 31, 2022.
In addition to these key changes, other updates were made to PA 4 that will provide additional clarity in the law and a better explanation of its regulatory requirements. A copy of Public Act 4 can be found here.
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