This rulemaking is to implement 2019 Senate Bill 1020, creating s. 581.217, F.S., which requires the Department to administer the state hemp program. This proposed rule will regulate the cultivation of hemp.

 

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES

Division of Plant Industry

RULE NO.:RULE TITLE:

5B-57.014State Hemp Program

PURPOSE AND EFFECT: This rulemaking is to implement 2019 Senate Bill 1020, creating s. 581.217, F.S., which requires the Department to administer the state hemp program. This proposed rule will regulate the cultivation of hemp.

SUMMARY: Section 581.217, F.S., directs the Department to adopt rules for the licensure and cultivation of hemp by eligible persons in the state. This rulemaking will adopt a process by which applicants may be licensed to cultivate hemp, applicable cultivation requirements, transportation requirements, sampling and harvest procedures, and rules to address violations.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: Section 581.217, F.S., directs the Department to adopt rules for the licensure and cultivation of hemp by eligible persons in the state. This rulemaking will adopt a process by which applicants may be licensed to cultivate hemp, applicable cultivation requirements, transportation requirements, sampling and harvest procedures, and rules to address violations.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 570.07(23), 581.031(4), (5), 581.217, FS.

LAW IMPLEMENTED: 581.031, 581.083, 581.217, FS.

A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:

DATE AND TIME: October 18, 2019, 9:00 a.m.

Cabinet Meeting Room, The Capitol, Lower Level, 400 South Monroe Street, Tallahassee, Florida 32399

October 21, 2019, 9:00 a.m.

PLACE: Florida State Fairgrounds, 4800 US-301, Tampa, FL 33610

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Holly Bell; [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

Rule 5B-57.014 - State Hemp Program

(1) Pursuant to s. 581.217, F.S., and in accordance with 7 U.S.C. Section 1639p, the Department shall authorize and oversee the development of the State Hemp Program to regulate the cultivation of hemp in the state, which is a potentially invasive plant species and is a threat to the plant life of this state if not properly controlled. Hemp cultivated pursuant to this rule is considered an agricultural commodity.

(2) Definitions. The definitions provided in ss. 581.011, 581.217, F.S., and the following shall apply to this rule:

(a) “Control person” means an individual, partnership, corporation, trust, or other organization that possesses the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. The term includes:

1. A company’s executive officers, including the president, chief executive officer, chief financial officer, chief operations officer, chief legal officer, chief compliance officer, director, and other individuals having similar status or functions.

2. For a corporation, a shareholder who, directly or indirectly, owns 10 percent or more or that has the power to vote 10 percent or more, of a class of voting securities unless the applicant is a publicly traded company.

3. For a partnership, all general partners and limited or special partners who have contributed 10 percent or more or that have the right to receive, upon dissolution, 10 percent or more of the partnership’s capital.

4. For a trust, each trustee.

5. For a limited liability company, all elected managers and those members who have contributed 10 percent or more or that have the right to receive, upon dissolution, 10 percent or more of the partnership’s capital.

(b) “Person” means individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

(c) “Plot” means a contiguous area in a field, greenhouse, or indoor growing structure used for cultivation of the same variety of hemp.

(d) “Processed hemp plant material” means plant matter, including stalks, seed hulls, woody biomass, hemp flowers, or other foliar material that has been processed in such a manner that makes it an ineffective host of plant pests or disease.

(e) “Responsible person” means a natural person who controls or manages the day to day operations of the hemp cultivation. 

(f) “Total delta-9 tetrahydrocannabinol concentration” means [delta-9 tetrahydrocannabinol] + (0.877 x [tetrahydrocannabinolic acid]).

(g) “Unprocessed hemp plant material” means plant matter, including stalks, seed hulls, woody biomass, hemp flowers, or other foliar material that has been harvested but has not been processed in such a manner that makes it an ineffective host of plant pests or disease.

(3) It is unlawful for any Person to introduce into this state or move through this state the propagative parts of hemp, live hemp plants, Processed hemp plant material, or Unprocessed hemp plant material unless introduced or moved in compliance with this rule. This prohibition does not apply to products containing Hemp extract purchased, sold, and transported in retail packaging.

(4) Application. It is unlawful for a Person to cultivate hemp in this state without a License to Cultivate Hemp issued by the Department. A Person seeking a license to cultivate hemp shall submit the following to the Department: 

(a) A completed Application for License to Cultivate Hemp FDACS-08112, 10/19, incorporated herein by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX.

(b) A detailed description of each Plot location intended for the cultivation of hemp, including address, legal land description, tax parcel number, and GPS coordinates.

(c) A full set of fingerprints for each Control person and the Responsible person submitted through a Livescan service provider evaluated by the Florida Department of Law Enforcement for state and national processing to Department ORI number. The Livescan service provider receipt for payment and process reference number must be provided with the Application For License to Cultivate Hemp, FDACS-08112, 10/19. If the fingerprint processing identifies criminal charges or convictions related to a controlled substance violation under state or federal law, the Department will notify the applicant that additional information is needed to complete the application. The applicant must provide to the Department a certified copy of the final disposition concerning the matter which the Department requested additional information pursuant to this section within ninety (90) days of receipt of the notification.

(d) An environmental containment plan for each Plot. An environmental containment plan must include the following:

1. A containment system of silt fences, berms, or fallow areas consisting of bare earth or ground cover to prevent the hemp from spreading beyond the Plot.

2. A plan to clean any equipment used on the Plot of all debris before it is moved from the property.

3. A transportation and movement plan that ensures that the propagative parts of hemp, live hemp plants, Processed hemp plant material, and Unprocessed hemp plant material is covered and moved in full containment during transport from noncontiguous locations.

(5) License.

(a) A License to Cultivate Hemp expires twelve months after the date of issuance.

(b) A License must be renewed by following the application procedures outlined in Rule 5B-57.014(4), F.A.C. The License must be renewed on or before the expiration date of the current license. 

(c) A License to Cultivate Hemp is not transferable.

(d) A Licensee must request an amendment to the application sixty (60) days prior to planting additional cultivation locations.

(6) Cultivation requirements. The licensee must:

(a) Comply with the licensee’s environmental containment plan.

(b) Comply with the Hemp Waste Disposal Manual. The Hemp Waste Disposal Manual FDACS-08115, 10/19, is incorporated herein by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX. The Hemp Sample Submission Form FDACS-08113, 10/19, is incorporated herein by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX. Code of Federal Regulations Title 40 – Protection of Environment, Parts 261 and 263, revised as of July 1, 2019, is incorporated herein by reference and available online at http://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX.

(c) Maintain documentation describing the varieties of hemp cultivated for three (3) years from the date of harvest. These documents must be provided to the Department upon request.

(d) Maintain the certification, label, and receipts for all Certified hemp seed or Certified hemp cultivars used in cultivation of hemp for three (3) years from the date of harvest. These documents must be provided to the Department upon request.

(e) Use only Certified hemp seed or Certified hemp cultivars as defined in Rule 5E-4.016, F.A.C., or nursery stock obtained from a Florida nursery registered with the Department that was grown from Certified hemp seed or a Certified hemp cultivar.

(f) Only cultivate hemp on lands that are used primarily for bona fide agricultural purposes pursuant to s. 193.461, F.S., or lands located within an area zoned for agricultural or industrial use. 

(g) Post signage at every cultivation location access point which contains the following information: the Department issued license number, the address of the cultivation location, and the following statement, “Hemp is being cultivated under a license issued by the Florida Department of Agriculture and Consumer Services.”

(h) Each Plot must be identified separately using a numeric plot designation.

(7) Nurseries. Nurseries propagating hemp plants for distribution shall:

(a) Register with the Department pursuant to s. 581.031(21), F.S.

(b) Hold a License to Cultivate Hemp issued by the Department.

(c) Only distribute hemp plants for cultivation to Persons in the state of Florida who are licensed pursuant to this rule or to Persons within the United States who are authorized to cultivate hemp under a plan authorized pursuant to 7 U.S.C. 1639p.

(d) Maintain copies of hemp plant movement records or sales invoices including Department-issued license numbers for three (3) years from the date of sale or the date of movement and provide copies to the Department upon request.

(8) Tetrahydrocannabinol concentration field sampling.

(a) Prior to each harvest, the licensee shall collect a representative sample from each Plot of hemp to be tested for Total delta-9 tetrahydrocannabinol concentration. The representative sample must be collected and submitted in accordance with the Hemp Field Sampling Manual for Licensees, FDACS-08114, 10/19. The Hemp Field Sampling Manual for Licensees is incorporated herein by reference and available online at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX.

(b) The representative sample shall be submitted by the licensee to an ISO 17025 accredited laboratory for testing. The licensee must use laboratories whose methods for testing Total delta-9 tetrahydrocannabinol concentration are within their scope of accreditation. The licensee must require the laboratory to report the analysis results for Total delta-9 tetrahydrocannabinol concentration and a copy of the Hemp Sample Submission Form, FDACS-08113, 10/19, directly to the Department by email at [e-mail] within twenty-four (24) hours of test completion. The licensee shall not harvest the Plot until the laboratory results indicate the representative sample does not have a Total delta-9 tetrahydrocannabinol concentration that exceeds 0.3% on a dry weight basis unless authorized under paragraph 5B-57.014(9)(b), F.A.C. If the representative sample results indicate that the Total delta-9 tetrahydrocannabinol exceeds 0.3% on a dry weight basis, the Department will perform a confirmatory test.

(c) If the initial laboratory report and the Department’s confirmatory results indicate that the Total delta-9 tetrahydrocannabinol exceeds 0.3% on a dry weight basis, the licensee will be responsible for the destruction of all hemp plants in the Plot. The licensee shall completely destroy all hemp plants, rendering the plants as non-viable in accordance with the Hemp Waste Disposal Manual FDACS-08115, 10/19. However, if a licensee removes and destroys all leaf and floral material from the plants, the hemp plants may be processed for barestalk fiber, hulled hemp seed, hemp seed protein powder, or hemp seed oil.

(9) Harvest.

(a) The licensee must notify the Department no fewer than thirty (30) days prior to each intended harvest date by email at [e-mail] or by phone at 1-888-397-1517. The licensee shall not harvest the hemp until the pre-harvest laboratory results indicate that the sample does not have a Total delta-9-tetrahydrocannabinol concentration that exceeds 0.3 % on a dry weight basis.

(b) If sample or resample results are not available before the intended harvest date or the licensee needs to alter the intended harvest date, the Plot may be harvested if the licensee complies with the following:

1. At least 48 hours prior to harvest, the licensee must report to the Department its revised harvest date and the anticipated harvest tonnage.

2. Within 24 hours of harvest, the licensee must report to the Department the harvested tonnage.

3. The harvested material must remain unprocessed in a securely locked building or fixed container on the licensed address or the storage location identified on the licensee’s application. For the purposes of this subparagraph, drying or freezing to prevent spoilage is not considered processing.

4. The harvested material must remain segregated from other harvested hemp until laboratory results are available.

(10) Inspections. The Department shall conduct random annual inspections of each licensee to ensure compliance with the following:

(a) The Licensee’s environmental containment plan.

(b) Maintenance of Certified hemp seed or Certified hemp cultivar documentation required under paragraph 5B-57.014(6)(d), F.A.C.

(c) Hemp plants have a Total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis.

(d) Hemp plants are found to be free from plant pests or disease not known to be established in this state.

(e) Compliance with s. 581.217, F.S., and rules promulgated therefrom.

(11) Transportation Requirements.

(a) Intrastate movement. Any Person transporting propagative parts of hemp, live hemp plants, Processed hemp plant material, and Unprocessed hemp plant material within the state of Florida shall:

1. Transport in a fully enclosed vehicle or container when being moved between noncontiguous locations.

2. Have in their possession a bill of lading or proof of ownership, documentation showing the name, physical address, Plot designation, and license number of the originating licensed cultivator, and the name and physical address of the recipient of the delivery when transporting between non-contiguous locations.

3. Stop and submit for inspection while passing any official agricultural inspection station pursuant to s. 570.15, F.S.

(b) Interstate movement. Any Person outside the State of Florida who desires to ship into this state propagative parts of hemp, live hemp plants, Processed hemp plant material, and Unprocessed hemp plant material from any state, U.S. possession, territory, or district of the United States, or foreign jurisdiction, shall comply with the following regulations:

1. The movement of propagative parts of hemp or live hemp plants into the State of Florida is prohibited unless:

a. Maintained and shipped in a sterile growing media and environment; and

b. Accompanied by proof of origin with license number, or equivalent, from the jurisdiction of origin and a phytosanitary certificate of inspection issued by a state or country plant protection governmental agency.

2. The movement of any Unprocessed hemp plant material destined for processing into the State of Florida is prohibited unless accompanied by proof of origin and transported frozen or dried.

3. The movement of any Processed hemp plant material into the state of Florida is prohibited unless:

a. The Processed hemp plant material has been rendered non-viable through processing; and

b. Accompanied by proof of origin with license number, or equivalent, from the jurisdiction of origin.

4. Upon entry in the state, all persons transporting propagative parts of hemp, live hemp plants, Processed hemp plant material, and Unprocessed hemp plant material must comply with the intrastate movement requirements outlined in this rule.

(12) Abandoned operations. It is the responsibility of the licensee to completely destroy all hemp plant material, rendering the plants non-viable in accordance with the Hemp Waste Disposal Manual FDACS-08115, 10/19, prior to vacating the property or stopping hemp cultivation.

(13) Violations. A licensee must complete a corrective action plan if the Department determines that the licensee has negligently violated s. 581.217, F.S. or this rule. A licensee who negligently violates the corrective action plan under this rule three times within five (5) years is ineligible to cultivate hemp for five (5) years following the date of the third violation. If the Department determines that a licensee has violated s. 581.217, F.S., or Department rules with a culpable mental state greater than negligence, the Department shall immediately report the licensee to the Attorney General and the United States Attorney General. A determination that a licensee has negligently violated s. 581.217, F.S. or this rule shall be subject to the process outlined in ss. 120.569 and 120.57-120.595, F.S. A determination that a licensee has violated s. 581.217, F.S., or Department rule with a culpable mental state greater than negligence shall be reported to the Attorney General, the state attorney for the judicial circuit where the violation occurred, and the United States Attorney General notwithstanding ss. 120.569 and 120.57-120.595, F.S.

(14) Final Order. The Department may issue an order directing the licensee to destroy any hemp cultivated in violation of s. 581.217, F.S., or Department rule.

(15) Destruction verification. All destructions must be conducted under the supervision of an authorized representative of the Department.

Rulemaking Authority 570.07(23), 581.031(4), (5), 581.217(5), FS. Law Implemented 581.031, 581.083, 581.217, FS. History–New       .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Dr. Trevor Smith, Director Division of Plant Industry

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Commissioner of Agriculture Nicole Fried

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: October 08, 2019

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: June 6, 2019