BEFORE THE DEPARTMENT OF AGRICULTURE
OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On November 6, 2020, the Department of Agriculture published MAR Notice No. 4-20-270 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 1946 of the 2020 Montana Administrative Register, Issue Number 21.
2. The department has adopted the following rules as proposed: New Rules I (4.19.111), II (4.19.112), III (4.19.113), and IV (4.19.203).
3. The department has amended ARM 4.19.102, 4.19.107, 4.19.108, and 4.19.110 as proposed.
4. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
4.19.101 DEFINITIONS (1) through (9) remain as proposed.
(10) "Research" means growing hemp in a manner which the resulting hemp may not conform to the USDA guidelines in some manner. This includes but is not limited to the use of a pesticide not approved for hemp, efforts to lower a cultivar's THC level through hybridization, or development of new cultivars which are not from certified seed. Research must be conducted with the intent of improving or expanding upon the genetics and/or cultivation practices of hemp.
(10) and (11) remain as proposed but are renumbered (11) and (12).
AUTH: 80-18-107, MCA
IMP: 80-18-101, 80-18-102, 80-18-103, 80-18-106, 80-18-107, 80-18-110, 80-18-111, MCA
REASON: See Comment 8
4.19.103 MONTANA STATE HEMP PROGRAM (1) remains as proposed.
(2) Live hemp plants or propagatable hemp plant parts may only be sold to persons licensed to grow hemp. Viable hemp seed intended for propagation may only be sold to persons licensed to grow hemp or persons licensed to process, condition, or
sale sell seed for propagation. Hemp grain , sold as a commodity intended for use as an approved food ingredient or oil, may only be sold to persons licensed to purchase, handle, or process hemp grain or another commodity.
AUTH: 80-18-107, MCA
IMP: 80-18-102, 80-18-103, 80-18-106, MCA
REASON: See Comments 4 and 11
4.19.104 PROGRAM FEES (1) through (4) remain as proposed.
(5) The director may waive all or part of any of these fees, if there is sufficient money to perform the regulations of the hemp act without them. This waiver may be individual, institutional, or by category of hemp seed. The waiver must have a time limit in it when granted.
AUTH: 80-1-102, 80-18-107, MCA
IMP: 80-18-102, 80-18-103, 80-18-106, 80-18-110, MCA
REASON: See Comment 5
5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT 1: The fees per sampling/testing would only be triggered when the grower requests them.
RESPONSE 1: The fees are charged when the grower is required to get them for compliance or when they request them. This usually occurs because the grower has multiple varieties or lots, or because it is an indoor grow environment with multiple harvest dates. If the department or law enforcement request additional samples/test above and beyond those required for USDA compliance, the grower would not be charged.
COMMENT 2: Hemp licensees should be made available as quickly as possible in the calendar year.
RESPONSE 2: It is the department's goal to have that happen. Occasionally changes in federal rule or law may slow down the speed at which the department can updates its own rules or forms to keep up.
COMMENT 3: The language about record keeping is overly board.
RESPONSE 3: It would be all of the paperwork related to hemp that would show compliance with the state law and any that would help track the hemp or hemp derivative next movement from the grower or processor. As of 2020, hemp is still a regulated plant and failure to have the proper records would make it extremely difficult to show that laws were followed. As regulations become more exact the amount of paperwork should diminish.
COMMENT 4: There is a typo in ARM 4.19.103(2). "Sale" should be "sell."
RESPONSE 4: The department agrees and will amend the rule to read "sell." See changes in ARM 4.19.103.
COMMENT 5: Numerous commenters requested that the A/B lower fees and sampling rate be kept under the pilot program extension or just be kept lower.
RESPONSE 5: The department needs to generate enough fees to cover the expenses of the program. By being able to remain in the pilot program for at least the majority of 2021, the department should be able to waive some of the sampling and testing fees for As and Bs that are not part of the random sampling required. The rule is being further amended to allow for such a waiver at the discretion of the director.
COMMENT 6: Numerous commenters expressed support for the department continuing to run a state program as opposed to turning it over to the USDA.
RESPONSE 6: No response is necessary.
COMMENT 7: Numerous commenters wanted the category system kept and/or support for moving the system online for As and Bs.
RESPONSE 7: The department agrees.
COMMENT 8: Commenters requested definitions for "research" and "indoor."
RESPONSE 8: The department agrees that a definition for "research" would avoid confusion; however, the definition of "indoor" is not unique to this rule or law. See changes in ARM 4.19.101.
COMMENT 9: A commenter requested that there be a method to create new seed types for propagation under the research license.
RESPONSE 9: The department intended just such a scenario in New Rule I(2)(f). The researcher would be able to retain the seed in that case, notify the department, and change a future planting to be a non-research planting.
COMMENT 10: A commenter said that New Rule IV is inconsistent.
RESPONSE 10: The new rule is meant to clear up confusion that was leading growers to believe that they had an exemption to other laws.
COMMENT 11: If the department plans to remove hemp grain from the commodity dealers' rules at some point, it should not be referred to as a commodity.
RESPONSE 11: The department agrees, and the language has been corrected to show the change. See ARM 4.19.103.
/s/ Cort Jensen /s/ Mike Foster
Cort Jensen Mike Foster
Rule Reviewer Director
Certified to the Secretary of State January 5, 2021.