Advancing the cause of liberty in Utah

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October 7, 2014

Commissioner Adams,

We received notice of the proposed rule, R68-22, regarding Industrial Hemp Research. Te stated
purpose of the rule is to be in compliance with H.B. 105 which passed in the 2014 General
Legislative Session.

However, in reviewing the rule, we have identifed a few provisions that exceed authority granted
under the law. We desire to bring these issues to your attention before the currently drafted rule
becomes efective.

1. Section 4-41-103 of Utah code, enacted into law upon H.B. 105s passage, states, Te
department shall certify a higher education institution if the higher education institution
submits certain documents do the department. However, R68-22-3 contains no matching
provision indicating that the department shall certify a complying higher education institution.

In contrast, the rules developed for another section of H.B. 105, dealing with the Hemp Extract
Registration Card, do contain shall language for the department. After requiring certain
documents of the applicant, R436-55-6 states that upon approval of the application, the
department shall issue a hemp extract registration card to the applicant.

Without this language, the rule might allow for discretion by the department. However, as
indicated, the law requires the department to certify eligible institutions, removing any
discretion in the process by the department.
2. H.B. 105 requires a higher education institution, in order to be eligible for the industrial hemp
research certifcate, to submit the following to the department:

1. the location where the higher education institution intends to grow or cultivate industrial
hemp;

2. the higher education institution's research plan; and

3. the name of an employee of the higher education institution who will supervise the
industrial hemp growth, cultivation, and research.

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Te proposed rule requires additional information from the higher education institution, going
further than the law requires. In addition to the previously listed information, the department
seeks to require the following:

4. A description of the industrial hemp varieties to be planted on the growing area(s);

5. A criminal history and background checks for all applicant(s) participating in the
project; and

6. A security plan.

As these are not required by law, we believe it inappropriate for the department to require them
as a condition of certifcation; only items 1-3 are required by law, and the department shall
certify the institution once they have been submitted.
3. As an additional requirement for certifcation, the department seeks to require an
acknowledgement on the part of the institution that, Any information provided to the
Department may be provided to law enforcement agencies without notice.

In contrast, the rule for the Hemp Extraction Registration Card, under R436-55-9, states that,
Te department may verify to a law enforcement agency whether an individual is a lawful
possessor of a hemp extract registration card, without disclosing more information than is
reasonably necessary to verify the authenticity of the hemp extract registration card.

We believe the latter approach is best and encourage you to model this rule for R68-22-3 (2)(a).
4. R68-22-3 (2)(c) currently reads, Applicant(s) will allow department ofcials and law
enforcement ofcers on the growing area(s) at any time. Te law does not require this, and we
believe it excessive for the department to attach this requirement as a condition of certifcation.

Law enforcement ofcers who suspect criminal activity or a violation of the law may obtain a
warrant to gain access to a universitys property. While H.B. 105 empowers the department to
ensure any industrial hemp project meets the standards of an agricultural pilot project, as
defned by Section 7606 of the U.S. Agricultural Act of 2014, nothing under that section
requires or suggests the need to allow law enforcement ofcers full access to any growing area.
We do fnd it reasonable, however, to allow department ofcials to have access for inspection

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purposes; should they fnd something in the course of an investigation, they can refer the matter
to the proper authorities for further investigation and possible action.

Te concerns listed here also apply to another proposed rule, R68-22-5 (1), which reads,
Department and law enforcement ofcial(s) shall have complete and unrestricted access to all
industrial hemp plants and seeds whether growing or harvested, all land, buildings and other
structures used for the cultivation and storage of industrial hemp.

Tis broad authority was, we believe, neither contemplated nor allowed by H.B. 105.
We look forward to the next iteration of the rule taking into account these and perhaps other
comments you will receive.
Respectfully,


Connor Boyack
President, Libertas Institute
cboyack@LibertasUtah.org