The Minnesota Department of Agriculture (“MDA”) recently announced certain temporary administrative rules involving industrial hemp have been adopted through an expedited rulemaking process in order to bring the state’s Industrial Hemp Program in line with the plan recently approved by the U.S. Department of Agriculture.
The temporary administrative rules clarify various issues specifically addresses the level of culpability required before a licensee has its licenses revoked. When a cannabis crop’s THC levels exceed .3% Delta-9 THC (“hot hemp”), the state determines the grower’s level of culpability in growing the unacceptable cannabis. Prior to these roles, growers had concerns about potentially losing their license with a single violation of a high level of THC. The new temporary administrative rules state a license may be revoked if a licensee grew cannabis with an unacceptable THC level “with a culpable mental state greater than negligence.” This level of culpability typically requires something more before the grower risks its license, such as a willful indifference or an intent to grow cannabis with an unacceptable high level of THC, before a license is revoked. Minnesota defines “culpable mental state greater than negligence,” to mean to act intentionally, knowingly, willfully, recklessly or with criminal negligence.
This higher level of culpability may decrease the risk of a grower’s license being revoked for hot hemp, but it does not mean a grower is in the clear if the THC level of a cannabis crop is too high due to negligence. “Negligence” is defined as “failure to exercise the level of care that a reasonably prudent person would exercise….” A grower’s license will be revoked with three negligent violations in five years. The temporary administrative rules provide that growers shall not receive more than one negligent violation per growing year, but the wording did not make it into the administrative rule relating to license revocation. Even though there is arguably some ambiguity, a grower runs the serious risk of losing its license should this happen and should proceed as if multiple negligent violations in one grow season triggers license revocation.
Again, these are temporary administrative rules drafted for the purpose of governing and licensing industrial hemp growers and went into effect on August 16, 2021. These rules are in effect for two years. The MDA is proceeding with the formal rulemaking process and expects to have it completed prior to the rules’ expiration in 2023.