New York Published Proposed Emergency Rules on Hemp Cultivation Licensing: What’s Going On?
On January 12, 2022, the New York Department of State’s Division of Administrative Rules published emergency regulations in the New York State Register that formally implemented the New York State Hemp Grower License program (the Grower License Program). The regulations are effective immediately. New York’s approximately 800 hemp cultivators should be aware of the new costs and administrative obligations contained in the emergency rules. While these new regulations are somewhat of a departure from the way New York hemp farmers have grown hemp in the past, the regulations prevent current hemp cultivation authorizations from lapsing and give New York hemp cultivators clear and simple guidance for operating in compliance with state and federal law.
The Origins of New York Hemp Cultivation
The Grower License Program is part of the New York State Hemp Program Plan (NY Hemp Plan), which the US Department of Agriculture (USDA) approved in November 2021 pursuant to the 2018 Farm Bill. The Plan went into effect on January 1, 2022. Previously, New York hemp cultivators operated under the state’s Industrial Hemp Agricultural Research Pilot Program, which was established in 2015 after the 2014 Farm Bill authorized states to conduct pilot programs to study industrial hemp for economic and agricultural purposes.
The 2018 Farm Bill expanded on the 2014 Farm Bill and authorized hemp cultivation on a broader scale. The 2018 Farm Bill regulated production of hemp by allowing states and tribes to submit hemp production plans to the USDA for approval. Under the 2018 Farm Bill, if a state did not submit a plan or the USDA did not approve a plan, then hemp cultivators would obtain hemp cultivation licenses from the USDA directly. The proposed emergency regulations implement the NY Hemp Plan, giving current and new hemp growers an opportunity to cultivate hemp with a New York cultivation license while avoiding a lapse in current authorizations under the former 2014 Farm Bill pilot program.
Changes to Expect from the New Licensing Program
The new licensing program retains most substantive provisions from the state’s pilot program, but a few key changes should be noted. First, the new program requires all currently licensed cultivators to reapply under the new program for a license to operate in 2022. Although the non-refundable application fee for a three-year license is $500, consistent with the fee under the pilot program, the new program now also requires a $100 non-refundable fee for any amendments to an application. Additionally, growers are also responsible for submitting FBI-issued criminal history reports for all key participants within 60 days of license application.
Next, the program introduces new guidance on sampling, testing, and recordkeeping procedures. Growers must hire a sampling agent certified by the New York Department of Agriculture and Markets and must conduct private lab testing to ensure hemp crops are within the allowable THC level, which is 0.3% THC or less. Costs associated with sampling and testing procedures will vary based on the grow operation size and the number of tests conducted by the selected lab. Licensed growers must also maintain detailed records and reports for each permitted location and each individual lot, and all recordkeeping must be preserved for a minimum of three years.
Finally, the new program requires all hemp growers to register grow locations in person with their local USDA Farm Service Agency office. Registration must occur within 10 days of planting, and licensees must provide the grow location’s street address, acreage, planting reports, pre- and post-harvest reports, and a description of the intended use of the hemp crop. While registration must occur in person, the new program acknowledges its heavy reporting requirements and permits electronic submissions whenever possible. The New York Department of Agriculture and Markets is also actively developing new forms to standardize electronic reporting and streamline reporting requirements.
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This news article is intended for educational purposes only and is not intended to give legal advice. If you are seeking legal advice on the subject please consult one of our New York licensed attorneys: Perry Salzhauer, Ramsey Chamie, or Brittany Adikes.