Maine’s Department of Agriculture, Conservation, and Forestry (DACF) would write new rules to bring the state’s hemp program into line with federal rules after the legislature passed LD 1942 when it met for veto day in Augusta on May 9.
The bill is made necessary by the Agriculture Improvement Act of 2018, also known as the Farm Bill, which required the federal United States Department of Agriculture (USDA) to create a national regulatory framework for the production of hemp.
The law allows states and Indian tribes to create their own programs to regulate the production of hemp, which requires a license to grow, provided those plans adhere to certain guidelines outlined in the bill. The bill requires state plans to record information about the land on which hemp is grown, as well as create procedures for testing the concentration levels of tetrahydrocannabinol (THC) in hemp plants, conducting annual samples of hemp producers, and for submitting information required to be recorded to the USDA.
The USDA published a final rule, which includes more specific regulations hemp producers must follow in order for state plans to receive federal approval, related to the farm bill on January 19, 2021. The rule went into effect on March 22, 2021.
Included in the agency’s final rule is a stipulation that state hemp programs collect enough samples from licensed growers to ensure with 95 percent certainty that no more than one percent of the plants exceed acceptable THC levels. Under the rule, an acceptable THC concentration level is no more than 0.3 percent. If THC levels in a hemp plan exceed this, it is considered marijuana for the purposes of federal law.
Under the USDA’s rules, a plan that does not comply with requirements will not be approved. States can submit an amended plan to the agency for review. States without an approved plan are subject to USDA regulation.
Once a state plan has been approved, it remains in effect until the USDA revokes it, which may occur following changes to federal or state law that do not result in amendments to an approved plan. Significant changes to state statute require a state to resubmit its plan to the USDA.
Maine currently has an approved plan for the production of hemp. The state’s plan was first submitted to the federal government on November 16, 2021. Following feedback from the federal agency, DACF resubmitted its plans with additional changes.
But, as DACF commissioner Amanda Beal noted in her letter to the USDA’s undersecretary, differences between Maine’s hemp program and the USDA’s final rule required the legislature to make changes to its statutory authority.
“If successful, the statutory changes and subsequent rulemaking will authorize hemp production and provide the Department with authority needed to regulate hemp production in a manner consistent with the 2018 Farm Bill and the Final Rule,” Beal wrote to the department.
LD 1942, which makes changes to the statute and gives DACF rulemaking authority, was finally passed by the legislature on May 9, the final legislative day of the second session.
As originally written, the bill gave hemp growers authority to grow plants with a one percent concentration of THC, a level that exceeds the federal limit. It also allowed a person to plant, grow, harvest, possess, process, sell, and buy hump in accordance with a federal license issued by the USDA or another state.
Current state law allows individuals to grow up to three hemp plants for personal use with a license. The original bill did not remove this language from law, but added language around licensing to the law.
However, the language of the original bill was struck and replaced by the majority amendment produced by the legislature’s Committee on Agriculture, Conservation and Forestry. Struck from this amendment was language allowing people to grow up to three hemp plants for personal consumption.
The amendment, which was adopted by both the Senate and House of Representatives, addresses another aspect of the USDA’s final rule. The rule stipulates that state plans for hemp management must prohibit anyone convicted of a drug-related felony under either state or federal law from producing hemp for 10 years following the date of their conviction.
The USDA’s final rule also notes that the farm bill does not define what it means to participate in a state hemp program. States must define what it means to “participate” in their own program plans. The final rule does identify and define “key participants,” but states are not required to adopt that language.
According to the final rule, “Key participants are a person or persons who have a direct or indirect financial interest in the entity producing hemp, such as an owner or partner in a partnership. A key participant also includes a person in a corporate entity at executive levels including the chief executive officer, chief operating officer, and chief financial officer.”
Key participants are also required to receive a background check and criminal history reports, completed within the last 60 days, if their application is for a business entity.
“If key participants are not subject to criminal history checks, [Agricultural Marketing Service] cannot ensure statutory restrictions on individuals with felony convictions related to controlled substances are met.”
The amendment to LD 1942 adopted and passed by the legislature largely adopts the final rule’s language, defining a key participant as a person with “a direct or indirect financial interest in an entity producing hemp, such as an owner or partner in a partnership.” The amendment also stipulates a key participant includes executive level officers in a corporate entity.
In order to enforce the 10-year limit on drug-related criminal convictions for hemp growers, the amendment to LD 1942 adopted by the legislature adds hemp growers to a list of professions subject to state statute governing occupational licensing.
Under state statute, boards that govern occupations requiring license, such as doctors and nurses, consider criminal conviction within the past 10 years as an “element of fitness” to practice that profession. LD 1942 adds “applicants to and licensees of the Department of Agriculture, Conservation and Forestry for growing, processing, and transporting hemp” to the list of professions subject to that requirement.
The Senate voted to adopt this amendment on April 20 and also voted to adopt a floor amendment sponsored by Sen. Craig Hickman (D-Kennebec). Hickman’s amendment struck the provision in the committee amendment that made hemp growers subject to statutes governing occupational licensing and introduced new statutory language allowing DACF to request a criminal history check for applicants for a hemp grower’s license, as well as for key participants.
Hickman’s amendment also added language stipulating that criminal history record information obtained through this process could be viewed by the subject of a search and that the information remain confidential and only be used for the purpose of screening an applicant for a hemp license.
The Senate voted on April 20 to adopt Hickman’s amendment and then sent the bill to the House of Representatives, which subsequently tabled the bill pending acceptance of either the minority or majority report.
LD 1942 remained on the House’s unfinished business until May 9, when Rep. Kathleen Dillingham (R-Oxford) made a motion to take up the bill. By a vote of 55 to 57, Dillingham’s motion failed. However, following a break to allow legislation to move between the chambers, Dillingham again motioned to remove the bill from the table.
Dillingham’s second motion was successful, with the House voting 53 to 46 to remove LD 1942 from the table. Rep. Maggie O’Neil (D-Saco) subsequently motioned to accept the committee’s majority report and indefinitely postpone the bill.
“Maine cannot put into statute bad rules that create obstacles to a strong, inclusive Maine hemp industry. By voting to indefinitely postpone, we keep bad laws off the books in Maine and give farmers a clear path to federal compliance,” O’Neil said.
O’Neil further said the federal government had created “onerous, discriminatory policies” that the state didn’t need to adopt. She said the rule’s THC limits are “unscientific” and argued it would take away Mainers’ ability to grow personal hemp plants.
Dillingham rose to speak in support of the bill, saying she’d spent the past week talking to the state’s hemp growers. Dillingham said while the growers didn’t express sentiments disagreeing with O’Neil, they also fully support Maine’s hemp program becoming USDA compliant.
“By not having the USDA compliant program, you put them at risk and they lose the following: risk management tools that are provided from the USDA, federally subsidized crop insurance, conservation and research National Institute of Food and Agriculture grants, and national organic program accreditation,” Dillingham said.
Dillingham also noted growers would not be able to sell plants across state lines should the program lose USDA approval.
Following a debate, which saw Dillingham rise three times to speak in support of the bill, O’Neil’s motion to table the bill failed by a vote of 51 to 55. The chamber voted under the hammer to adopt the majority committee amendment already adopted by the Senate.
Rep. William Pluecker (I-Warren) then moved to indefinitely postpone adoption of Hickman’s amendment.
“The Senate amendment has taken what we passed as a majority out of the committee and made it even more strenuous and more difficult for farmers to grow hemp than the original product of the committee,” said Pluecker.
Pluecker’s motion was successful. By a vote of 60 to 46, the House voted to indefinitely postpone the amendment.
The bill was then sent to the Senate in nonconcurrence, which voted 28 to 4 to recede and concur with the House, stripping Hickman’s Senate amendment from the bill.
Sen. Jeff Timberlake (R-Androscoggin) later motioned for the Senate to reconsider its decision to recede and concur, setting off questions about what procedural moves the body could take to prevent the bill from leaving the chamber without Hickman’s amendment.
Senate President Troy Jackson (D-Aroostook) informed the body that if the motion to reconsider failed, the bill would move the House. A successful motion to reconsider would allow the Senate to insist on its former action whereby it passed LD 1942 with Hickman’s amendment attached.
Hickman rose to speak in favor of the motion to reconsider in an effort to allow the amendment to remain attached to the bill.
“If we fail to reconsider and go back to a posture that we held before we sent the bill to the House, we will be comparing for the first time in history, farmers in the state of Maine to [workers in occupations licensed by the state],” said Hickman.
By a vote of 16 to 16, the motion to reconsider the bill failed. It was sent back to the House, which voted under the hammer to enact the bill.
LD 1942 returned once more to the Senate, which voted under the hammer to finally enact the bill. A motion to reconsider that vote, made by Sen. Jim Dill (D-Penobscot), subsequently failed by a vote of 16 to 16.
The bill will now go to Gov. Janet Mills’ desk for signature.
