Colorado Legislature Passes Resolution on USDA Interim Rules
This is the Joint Resolution the Colorado Legislature passed concerning the USDA Interim Final Rules:
SENATE JOINT RESOLUTION 20-005
BY SENATOR(S) Marble and Fenberg, Bridges, Coram, Crowder, Donovan,
Fields, Foote, Ginal, Gonzales, Hisey, Holbert, Lee, Moreno, Rankin,
Rodriguez, Sonnenberg, Story, Tate, Todd, Williams A., Woodward, Garcia;
also REPRESENT A TIVE(S) Hooton and Saine, Arndt, Baisley, Becker, Bird,
Bockenfeld, Buck, Buentello, Caraveo, Coleman, Cutter, Duran, Esgar,
Froelich, Garnett, Geitner, Gonzales-Gutierrez, Gray, Herod, Holtorf, Jackson,
Kennedy, Kipp, Kraft-Tharp, Lontine, McCluskie, McKean, Melton,
Michaelson Jenet, Mullica, Neville, Pelton, Ransom, Roberts, Singer, Sirota,
Snyder, Soper, Titone, Valdez A., Valdez D., Van Winkle, Weissman, Will,
Williams D., Wilson, Young.
CONCERNING THE GENERAL ASSEMBLY’S SUPPORT OF THE
STATE OF COLORADO’S WRITTEN COMMENTS SUBMITTED ON
THE UNITED STATES DEPARTMENT OF AGRICULTURE’S
INTERIM FINAL RULE REGARDING THE ESTABLISHMENT OF
A DOMESTIC HEMP PRODUCTION PROGRAM.
WHEREAS, Colorado has long recognized the strong economic
potential that hemp production offers our agricultural sector and the
increasing consumer demand for hemp products in Colorado; and
WHEREAS, Colorado has been a national leader in developing public
policies that support hemp production, protect farmers and consumers,
and treat hemp as an important agricultural product and not a controlled
substance; and
WHEREAS, The federal government enacted the “Agricultural
Improvement Act of2018”, Pub.L. 115-334, which removed hemp from
schedule I of the federal “Controlled Substances Act”; and
WHEREAS, The federal “Agricultural Improvement Act of 2018”
required the United States department of agriculture (USDA) to develop
a plan for the regulation of hemp and authorizes each state to submit a
state plan of regulation for approval by the secretary of the USDA; and
WHEREAS, On October 31, 2019, the USDA adopted an interim final
rule (interim rule) entitled “Establishment of a Domestic Hemp
Production Program”, 7 CPR 990, that will remain in effect through
November 1, 2021; and
WHEREAS, The USDA has requested that interested persons submit
written comments on the interim rule on or before January 29, 2020, for
the USDA to consider when adopting a final rule; and
WHEREAS, The Colorado department of agriculture (the State)
solicited stakeholder feedback on the interim rule and submitted written
comments to the USDA on behalf of Colorado, which comments reflect
the overall sentiment of Colorado stakeholders, including farmers, local
government officials, law enforcement, industry advocates, and academic
institutions; and
WHEREAS, The State is submitting written comments on the interim
rule; and
WHEREAS, The State’s comments on the interim rule reflect
Colorado’s concern that the proposed requirements set forth in the interim
rule are overly burdensome to farmers, will stifle the growth of
Colorado’s hemp industry, and will make it challenging to regulate hemp
given the large size of Colorado’s existing hemp industry; and
WHEREAS, Colorado has established an appropriate and reasonable
regulatory framework that allows for the effective growth of the hemp
industry in Colorado; and
WHEREAS, The State’s written comments submitted for the USDA’s
consideration reflect specific, reasonable concerns and recommendations
that are based on Colorado’s regulatory experience and are highlighted in
this resolution; and
WHEREAS, With respect to the interim rule’s requirement that a
laboratory registered with the federal drug enforcement agency (DEA)
must conduct testing on hemp, the State’s written comments suggest that
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the USDA should instead allow for the use of state- or tribal-certified
labs; and
WHEREAS, With respect to a threshold set in the interim rule
establishing that the production of any crops that contain a THC
concentration of more than 0.5% on a dry-weight basis constitutes a
negligent violation that requires the development of a corrective plan, the
State’s written comments state that the threshold should be raised from
0.5% to 1.0% THC concentration on a dry-weight basis to limit the
frequency of corrective plans; and
WHEREAS, Hemp seeds currently lack the genetic stability of other
certified seed and the USDA has refrained from including in the interim
rule the regulatory framework for a certified seed program or for seed
breeding and research and development. The State’s comments point out
that this omission will stifle innovation and delay hemp genetics from
achieving much-needed stability. The State feels strongly that there is a
critical need to regulate hemp research and development differently than
commercial production; and
WHEREAS, With respect to the interim rule’s requirement that plants
that test above 0.3% THC concentration on a dry-weight basis be
disposed of in accordance with the federal “Controlled Substances Act”
and DEA regulations, the State’s written comments suggest that the final
rule should instead allow state regulators to develop procedures for
remediation of the plants to render them compliant instead of requiring
their immediate disposal; and
WHEREAS, The State remains concerned that key provisions of the
interim rule will raise barriers to entry for small farmers that could
prevent this critically important constituency from entering the market,
and the cumulative effects of the interim rule might unintentionally favor
larger, more well-capitalized operations that can spread risk from a
financial loss associated with a noncompliant crop; and
WHEREAS, With respect to the interim rule’s requirement that plants
be harvested within 15 days after they’ve been collected for testing, the
State’s written comments recommend that the final rule provide a 30-day
harvesting window instead due to the substantial manual labor involved
in harvesting hemp, the incompatibility with common harvesting
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techniques, and the logistical challenges of complying with the increased
sampling rate requirements; and
WHEREAS, The State’s written comments on the interim rule present
thoughtful and compelling recommendations on how the USDA’s rules
could be improved to allow for greater flexibility and equity in state
regulation of hemp production in a manner that protects farmers and
consumers and promotes growth of the industry; and
WHEREAS, The State’s written comments on the interim rule align
with Colorado’s long-standing public policies to support hemp
production, protect farmers and consumers, and treat hemp as an
important agricultural product; now, therefore,
Be It Resolved by the Senate of the Seventy-second General Assembly
of the State of Colorado) the House of Representatives concurring herein:
( 1) That the General Assembly strongly supports and concurs with the
State’s written comments on the interim rule;
(2) That the USDA should treat this Joint Resolution as written
comments on the interim rule from the General Assembly; and
(3) That the General Assembly strongly supports the State’s written
comments and the adoption of a final rule that incorporates the
recommendations in the State’s written comments.
Be It Further Resolved, That copies of this Joint Resolution be
transmitted to the Secretary of Agriculture Sonny Perdue, Administrator
PAGE 4-SENATE JOINT RESOLUTION 20-005
Bruce Summers of the Agricultural Marketing Service of the USDA, and
to each member of Colorado’s congressional delegation.
