Operationally, the Minnesota 2014 Farm Bill hemp program is very similar to the Wisconsin Pilot Program and Hemp Program with the primary difference in laboratory testing. Prior to 2019, testing was done in a private lab for delta-9 THC, and it did not include THC-A. In 2019, Minnesota switched over to testing for the post-decarboxylation concentration of THC which includes THC-A, and began transitioning to using a Minnesota state regulatory lab. The fee structure includes a grower license fee of $150 with a growing location fee of $250, a processor license fee of $250, a license change fee of $50, an additional inspection fee for sampling of $250, and an additional testing fee of $125.
Minnesota’s 2018 Farm Bill hemp program adopts all necessary regulatory changes to comply with the IFR and 2018 Farm Bill. This includes adopting the new definition of acceptable hemp THC levels. Under the new hemp program, Minnesota will estimate and report the MU with all test results. This will result in a narrower range in which a participant can produce hemp with acceptable THC content than in Wisconsin.
Illinois
The Industrial Hemp Act was passed in Illinois in 2018, at which time the pilot program became available to commercial hemp growers. Illinois submitted a 2018 Farm Bill state plan to the USDA, which was recently approved. Illinois is currently operating as a pilot program under the 2014 Farm Bill and will continue to operate that program. They have not determined how long they will continue to operate under the pilot research program based on the extension of the authority to operate a 2014 Farm Bill program, before transitioning to a 2018 Farm Bill hemp program.
Components of the Illinois 2014 Farm Bill program that differ from the Wisconsin program include specifications for laboratories to be approved for regulatory testing, a minimum growing area of ¼ acres for outdoor hemp crops and 500 square feet for indoor crops, destruction of hemp with a post-decarboxylation THC content of equal to or greater than 0.7 percent for an initial test, and a retest is allowed if the initial test is between 0.3 percent and 0.7 percent THC. If the retest exceeds 0.3 percent THC, the crop must be destroyed. Illinois allows licensing periods of one, two, or three years at $375, $700, or $1000 respectively.
Illinois’s approved 2018 Farm Bill state plan does not have regulations that go beyond the IFR; the state plan has similar language and regulations to the IFR and other state plans implementing the IFR. This includes the addition of a MU and the requirement to harvest within fifteen days of the collection of the regulatory sample. While Illinois has not decided when to transition from the pilot program to a program operated pursuant to the 2018 Farm Bill, growers will face stricter regulations after the transition.
Michigan
The Michigan hemp pilot program began in 2019 under the 2014 Farm Bill. Michigan’s 2018 Farm Bill state plan has been resubmitted to USDA and is under review as of October 15, 2020. However, they plan to continue to operate under a 2014 Farm Bill research program until the end of their 2020 licensing year on November 30, 2020, then transition to a federally approved state hemp program operated pursuant to the 2018 Farm Bill and the IFR.
The Michigan 2014 Farm Bill program tests for post-decarboxylation THC concentration. In the event of a failed initial regulatory test, the Michigan pilot program allows up to two resamples and tests, while the Wisconsin program allows one resample and test. The Michigan program is distinctly different in their use of testing facilities licensed under the Michigan Medical Marihuana Facilities Licensing Act, which allows certain licenses to test industrial hemp, or allows a testing facility approved by the department. In addition, growers must post signage at each boundary line of a grow location with state-specified language. Growers must also enter into a seed-to-sale tracking system established under the Marihuana Tracking Act. Michigan has a grower license fee of $100, a site modification fee of $50, and a processor, handler, broker fee of $1350. A $250 late fee applies to both licenses. Michigan continues in 2020 under the authority of the 2014 Farm Bill.
Under the 2014 Farm Bill, Michigan allowed hemp growers to sample their own crops and transport that sample to the state laboratory for testing. When Michigan’s 2018 Farm Bill Program is federally approved pursuant to the 2018 Farm Bill, its state hemp program must comply with the IFR and growers will no longer be allowed to sample their own hemp. When implemented, Michigan’s new 2018 Farm Bill hemp program will have stricter regulations than its pilot program.
Iowa
Iowa Senate Bill 599 was signed into law in May 2019, which authorized the production of hemp pursuant to the 2018 Farm Bill and the IFR. Iowa began accepting applications for its hemp program on April 1, 2020. As of October 15, 2020, Iowa had 85 licensed growers. Iowa charges licensing fees of $500 plus $5/acre (0-5 acres), $750 plus $5/acre (5.1-10 acres), and $1,000 plus $5/acre (10.1 – 40 acres). Iowa has a maximum 40-acre limit per license. Each license applies to one location only.
Data and Analytical Methodologies
The Department gathered information from several states and the federal government, related to regulations, sampling and testing protocols, compliance, importation, and other related subject areas. Staff at the Department reviewed this information and the Department’s legal authority, in drafting this emergency rule. The Department also reviewed the operation of the program over the prior growing seasons conducted under the previous emergency rules.
Department Contact
Questions and comments related to this rule may be directed to:
Melody Walker
Wisconsin Department of Agriculture, Trade and Consumer Protection
2811 Agriculture Drive
Madison, WI 53718
Phone: (608) 224-4586
______________________________________________________________________________
FINDING OF EMERGENCY
A finding of emergency is not required. Section 94.55 (3w), Stats., provides that the Department of Agriculture, Trade and Consumer Protection is not required to provide a finding of emergency for a rule promulgated under this section. SECTION 1: Chapter ATCP 22 repealed and recreated to read:
EMERGENCY RULE
Hemp
ATCP 22.01 Purpose. This chapter implements a hemp research program as authorized under ss. 94.55 (2) and (3w), Stats. ATCP 22.02 Definitions. As used in this chapter:
(1) “Applicant” means a person who has submitted a license application for a grower license or processor license.
(2) “Certified seed source” means hemp seed that is certified according to Wisconsin Crop Improvement Association standards.
(3) “Decarboxylated” means the completion of the chemical reaction that converts tetrahydrocannabinolic acid (THC-A) into delta-9 tetrahydrocannabinol (THC), the intoxicating component of cannabis. The decarboxylated value is also calculated using a conversion formula that sums delta-9 THC and 87.7 percent of THC-A.
(4) “Department" means the state of Wisconsin department of agriculture, trade and consumer protection.
(5) “Destroy” or “destruction” means incinerate, till under the soil, compost, or dispose of hemp in another manner approved by the department in such a way as the plants cannot be further handled, processed, or enter the stream of commerce.
(6) “Distribute" means to sell, offer to sell, exchange, barter, or solicit orders for the sale of hemp or otherwise supply or furnish hemp to purchasers of hemp in this state, whether or not the transactions are made wholly or partially in this state or another state.
(7) “Division” means the division of agricultural resource management.
(8) “Fit for commerce certificate” means a document issued by the department or another state, Indian tribe, or the United States department of agriculture, or an entity approved by another state, Indian tribe, or the United States department of agriculture to issue such a document, attesting that the hemp has been lawfully produced in compliance with this chapter or another state, tribal, or United States department of agriculture hemp program under Section 7606 of the Agricultural Act of 2014 or Section 10113 of the Agricultural Improvement Act of 2018. “Fit for commerce certificate” includes a valid document issued by an entity approved by another state, Indian tribe, or the United States department of agriculture to issue such a document, that attests that the hemp contains an acceptable hemp THC level.
(9) “Grower license” means the document that is issued by the department to a person after a successful grower application and review process and submission of all licensing fees.
(10) “Growing location” means a physical premises where a licensee operates as a hemp grower. A growing location may consist of multiple facilities, fields, greenhouses, or lots.
(11) “Harvest” means to remove from the growing substrate or to remove any part from the plant while in the growing substrate including seeds, flowers, buds, cuttings (plant sections originating from stems, leaves, or roots and capable of developing into new plants), leaves, or any other part of the plant for purposes of propagation, distribution, sale, or further use. Harvest does not include culling plants or plant parts if the plants or plant parts are subsequently destroyed. Harvest does not include destruction of hemp.
(12) “Hemp” means the plant Cannabis sativa L., and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 THC concentration of not more than 0.3 percent on a dry weight basis or the maximum concentration allowed under federal law up to 1 percent, whichever is greater, as tested using post-decarboxylation or other similarly reliable methods. “Hemp” does not include a prescription drug product that has been approved by the U.S. food and drug administration.
(13) “Hemp program” means the department’s hemp research program established under s. 94.55 (2), Stats., and this chapter. (14) “Licensee” means a person possessing a grower license or processor license.
(15) “Lot” means a contiguous area in a field, greenhouse, facility, or growing structure containing the same variety or strain of hemp throughout the area.
(16) “Person” means an individual, corporation, partnership, limited liability company, government or governmental subdivision, or other legal entity.
(17) “Processor license” means a document that is issued to a person after a successful processor application and receipt of all fees.
(18) “Registration” means the annual submission by a licensee of a registration form provided by the department, registration fees, and research agreement or other information as required by the department.
(19) “Registration fee” means the applicable amount that shall be paid by a licensee annually in order to plant, grow, cultivate, or operate.
(20) “Research agreement” means a contract between the department and the licensee, detailing the rules of the hemp program. This is a legally binding agreement between the state of Wisconsin and the applicant. Failure to adhere to the research agreement may result in removal from the hemp program.
(21) “THC” means total delta-9 tetrahydrocannabinol, or total delta-9 THC. Delta-9 THC is the primary psychoactive component of cannabis. Delta-9 THC and THC are interchangeable.
(22) “Variety” means a form of a plant created through plant breeding and cultivation. Cultivar, variety, and strain are interchangeable.
ATCP 22.03 Hemp program license.
(1) Grower license required. (a) No person may operate as a hemp grower without a grower license from the department. A grower license issued under this chapter does not expire unless the hemp program expires or the license is revoked, but an annual registration shall be completed. A grower license may not be transferred to another person. The grower license allows a person to plant, possess, cultivate, grow, and harvest hemp under Wisconsin law. A grower license allows a person to store, handle, and convert into a marketable form under Wisconsin law the hemp cultivated, grown, and harvested under this grower license.
(b) A valid department-issued grower license is converted to a grower license issued pursuant to this Chapter on the effective date of this Chapter.
(2) Grower license application. A person applying for a grower license shall apply on a form provided by the department. An applicant shall provide all of the following to the department:
(a) The applicant’s legal name and address and any other name under which the applicant does business. If the applicant is a business entity, the full name of the business, the principal Wisconsin business location address, the full name of the individual who is authorized to sign on behalf of the business entity, phone number, and email address.
(b) If the applicant is a business entity, the name, title, and email address of the individual who will be primarily responsible for the hemp operations of the business entity and who will be the subject of the federal and state criminal background check.
(c) Informed consent form authorizing the department to conduct a federal and state criminal background check pursuant to sub. (5).
(d) The global positioning system coordinates for the center of each growing location where hemp will be planted, grown, cultivated, or harvested.
(e) Maps depicting each growing location where hemp will be planted, grown, cultivated, harvested, or processed with appropriate designation for entrances, boundaries, lots, and specific locations corresponding to the global positioning system coordinates and street address.
(f) Number of acres or square footage to be planted. The number of acres or square footage should be the maximum the applicant intends to plant, grow, cultivate, or harvest. Any increase in acres or square footage requires a license amendment and associated additional fees pursuant to sub. (8).
(g) A description of the research being conducted under the registration.
(h) A signed research agreement.
(i) Other information reasonably required by the department.
