NOTICES
DEPARTMENT OF AGRICULTURE
General Permit Standards and Requirements for Hemp
[50 Pa.B. 2397]
[Saturday, May 9, 2020]Recitals.
This Notice amends and replaces the previous Notice ''General Permit Standards and Requirements for Hemp'' published in the January 4, 2020 Pennsylvania Bulletin (50 Pa.B. 11, Saturday January 4, 2020).
A. The Act relating to Controlled Plants and Noxious Weeds (''Act'') (3 Pa.C.S.A. § 1501 et seq.) authorizes the Department of Agriculture (Department) through the Controlled Plant and Noxious Weed Committee (Committee) to establish a controlled plant list and to add plants to or remove plants from the controlled plant list (3 Pa.C.S.A. § 1511(b)(3)(ii)(iii)).
B. The Act provides for publication of the noxious weed and the controlled plant list and additions or removals or changes thereto to be published as a notice in the Pennsylvania Bulletin and for such additions or removals to become effective sixty (60) days from publication (3 Pa.C.S.A. § 1511(b)(3)(iv)).
C. Pursuant to that authority, the Committee acted to add hemp to the Controlled Plant List and published such Notice in the Pennsylvania Bulletin on April 6, 2019 (49 Pa.B. 1667, Saturday April 6, 2019).
D. Section 1513 of the Act authorizes the Department to issue General Permits, on a Statewide or Regional basis, for the research, marketing, retail, wholesale, transport, storage, warehousing, display, distribution, cultivation or propagation of controlled plants, where the controlled plants have similar characteristics and are capable of being cultivated, propagated, processed and controlled or eradicated in a similar fashion (3 Pa.C.S.A § 1513(1)).
E. General Permits and applications for General Permits must address at least those requirements set forth at section 1514(5)(i)—(viii) (3 Pa.C.S.A. § 1514(5)(i)—(viii)), but may include and address additional requirements as established by the Department herein (3 Pa.C.S.A. § 1513(3)).
F. General permits shall be published in the Pennsylvania Bulletin and become effective upon publication (3 Pa.C.S.A. § 1513(2)).
G. Hemp is also regulated on the federal level by the United States Department of Agriculture (USDA) as authorized by the Agricultural Improvement Act of 2018 (115-334), (2018 Farm Bill).
H. The 2018 Farm Bill defined ''hemp'' as the plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
I. The 2018 Farm Bill directed USDA to establish guidelines for states to follow in establishing plans to allow for state primacy in the regulation of growing or cultivation of hemp plants.
J. With the designation of hemp as a Controlled Plant under the authority of the Act, persons are required to obtain a permit from the Department prior to cultivating, propagating, growing or processing hemp.
K. Hemp has been designated a controlled plant in Pennsylvania and its propagation, cultivation, testing, transportation, warehousing and storage, processing, distribution and sale is of a statewide concern.
L. This General Permit establishes rules and requirements for the distribution and sale of hemp planting materials, and for the propagation, cultivation, testing, transportation, warehousing, storage, and processing of hemp as authorized by the Act.
M. This General Permit does not and may not abrogate the provisions of the act related to industrial hemp research, at 3 Pa.C.S.A. §§ 701—710, including, permitted growers must still submit fingerprints to the Pennsylvania State Police for the purpose of obtaining criminal history record checks. The Pennsylvania State Police or its authorized agent shall submit the fingerprints to the Federal Bureau of Investigation for the purpose of verifying the identity of the applicant and obtaining a current record of any criminal arrests and convictions.
General Permit.
With the forgoing recitals incorporated into this General Permit by reference, the Department hereby establishes a General Permit, under the authority of the act related to controlled plants and noxious weeds (Act) (3 Pa.C.S.A. § 1501 et seq.), for the Controlled Plant, hemp. The terms of the General Permit are as follows:
Article I. General Provisions and Definitions.
(a) Establishment of the Hemp General Permit. A General permit is hereby established for the Controlled Plant, hemp, defined as the plant Cannabis sativa L. and any viable part of that plant, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. This General Permit covers the entire Commonwealth.
(b) Purpose of the General Permit. The purpose of this general permit is as follows:
(1) To establish provisions to control the planting, growing, propagation and cultivation of hemp.
(2) To establish requirements under which persons may apply to plant, grow, propagate or cultivate hemp in the Commonwealth.
(3) To establish requirements establishing where hemp may be planted, grown, propagated and cultivated in the Commonwealth.
(4) To establish requirements for sale and distribution of hemp nursery stock.
(5) To establish requirements under which persons may apply to process hemp in the Commonwealth.
(6) To establish requirements for tetrahydrocannabinol (THC) testing of hemp planted, grown, propagated, cultivated or processed in the Commonwealth.
(7) To establish requirements for the transportation of hemp planted, grown, propagated and cultivated in the Commonwealth.
(8) To establish requirements for storage and warehousing of hemp planted, grown, propagated and cultivated in the Commonwealth.
(9) To establish requirements for the disposal of a permitted crop where the THC concentration exceeds 0.3 percent on a dry weight basis.
(c) Definitions.
Act. The act of October 30, 2017, P.L. 774, No. 46, at 3 Pa.C.S.A. §§ 1501—1562, related to controlled plants and noxious weeds.
Agent or inspector. A representative of the Department of Agriculture duly appointed by the Secretary of Agriculture to carry out the provision of the Act and this General Permit.
Applicant. A person(s) signing and submitting a hemp application and responsible for ensuring compliance with the terms of the application and permit.
Committee. The Controlled Plant and Noxious Weed Committee established in section 1511 (relating to designation of noxious weeds and controlled plants).
Control order. A written order issued by the department to a person detailing required treatment measures to control noxious weeds or controlled plants.
Controlled plant. A plant species or subspecies that has been designated by the Committee as a controlled plant and is regulated to prevent uncontained growth and to negate undesirable characteristics.
Controlled Substances Act (CSA). The Federal statute codified in 21 U.S.C. 801—971, establishing federal U.S. drug policy under which the manufacture, importation, exportation, possession, use and distribution of certain substances is regulated.
Culpable mental state greater than negligence. Meaning acts made intentionally, knowingly, or with recklessness. This definition is derived from the definition of negligence in Black's Law Dictionary. See Black's Law Dictionary (10th ed. 2014).
Department. The Department of Agriculture of the Commonwealth. Distribute or distribution. To barter, consign, exchange, give away, import, in any way transfer, offer for sale, sell or otherwise supply or transport a noxious weed or controlled plant in this Commonwealth.
Distribute or distribution. To barter, consign, exchange, give away, import, in any way transfer, offer for sale, sell or otherwise supply or transport a noxious weed or controlled plant in this Commonwealth.
Drug Enforcement Administration (DEA). A federal law enforcement agency under the United States Department of Justice, and the lead agency for domestic enforcement of the Controlled Substances Act.
Eradication. The elimination or removal of a noxious weed or controlled plant so that no further growth occurs for at least three consecutive years.
Farm Service Agency (FSA). An agency of the United States Department of Agriculture that provides services to farm operations.
General permit. A Statewide or regional permit that is issued by the department for a controlled plant and specifies terms and conditions for distribution, cultivation or propagation of the controlled plant.
Hemp. The plant Cannabis sativa L. and any viable part of that plant, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.
Landowner. A person in whom is vested the title of property or with any rights in real property that permit possession or control of surface activities on the real property. The term includes a department, board, commission, agency and instrumentality of the Federal Government and the Commonwealth and any of its political subdivisions.
Lessee. A person who has entered into a contract granting the person occupation or use of property during a certain period of time in exchange for a specified rent.
Lot. The term ''lot'' refers to a contiguous area in a field, greenhouse or indoor growing structure containing the same variety or strain of cannabis throughout. To be defined by the producer in terms of farm location, field acreage and variety (i.e. cultivar) and to be reported as such to the Department and the FSA.
Negligence. Failure to exercise the level of care that a reasonably prudent person would exercise in complying with the regulations and standards established.
Permit. A document issued by the Department authorizing a person to perform functions and activities related to hemp which require adherence to the rules and requirements established by this General Permit.
Person. An individual, corporation, association, partnership, municipality or any other entity.
Processor. Any person who converts hemp material into a different form or product.
Propagate. To increase, multiply or spread a plant or crop through planting, cultivation or any means of reproduction.
School Property. Any property used by students that is under the jurisdiction of a public school district, intermediate unit, area vocational-technical school, charter school or non-public school.
THC. The chemical delta-9 tetrahydrocannabinol. For the purposes of this General Permit, THC shall include total potential tetrahydrocannabinol in a plant or product, derived from the corrected sum of the tetrahydrocannabinol and tetrahydrocannabinolic acid content.
USDA. The United States Department of Agriculture.
Article II. Procedure for Application and Permitting.
(a) Permit Application Process. The following rules and requirements apply to permitting and the application for a permit.
(1) To produce or process hemp under the Pennsylvania Hemp General Permit, a person must apply for and be issued a Permit from the Department.
(2) No permit shall be issued to grow, cultivate or propagate hemp for personal use.
(3) The Department will begin accepting applications effective with publication of the General Permit in the Pennsylvania Bulletin.
(4) Conditions and terms of this General Permit may change upon future conditions, including requirements imposed by USDA in acceptance of the Pennsylvania State Hemp Plan, legal standards imposed by another federal agency, statutory or regulatory changes or changes in other legal requirements.
(5) Application periods will be announced by the Department and published at https://www.agriculture.pa.gov/Plants_Land_Water/industrial_hemp/Pages/default.aspx. Persons anticipating late season or indoor planting must submit their applications during published application periods.
(6) The permit application will be available online at the Department's Hemp Program website at https://www.agriculture.pa.gov/Plants_Land_Water/industrial_hemp/Pages/default.aspx. Applications may also be requested by contacting The Bureau of Plant Industry at 717-787-4843 or by mail at:
Hemp Program
Pennsylvania Department of Agriculture
2301 North Cameron Street
Harrisburg, PA 17110.(7) Applications shall be submitted with the application fee and supporting documents. The completed application along with all required reporting constitutes a written plan as required by the Act. Incomplete applications will not be processed.
(8) Any persons who materially falsify any information in their application shall be deemed ineligible to participate in the program.
(9) Upon successful review of completed applications, the Department will issue permit documents to approved applicants.
(b) Application Contents. All applications shall comply with the requirements established herein.
(1) Contact Information. Set forth contact information including at a minimum, legal name, address, day and evening telephone numbers, and email address (if available). If the applicant is a business entity, the applicant shall provide the full name of the business, address of the principal business location, full name and title of the key participants, an email address if available, and an EIN number of the business entity.
(2) Location Information. Provide the physical location, including a detailed plot map and description of the site to be planted or the site where the hemp will be propagated, cultivated, stored or processed. A separate application is required and shall be submitted for each physical address (individually titled property) of a growing, cultivating, propagating, storage, or processing location.
(i) The description of the location shall include the county and municipality.
(ii) Contain a legal description of the land, plot map and geospatial location of the overall site and each separate field, greenhouse, building or other site where hemp will be produced, warehoused or processed. The plot map should show the name of each road bordering the physical location.
(iii) If the address/facility is not owned by the applicant, a copy of the fully executed lease signed by the property and issued to the business or applicant must be attached to the application, and also a completed signed agreement granting the Department access to the property to enter the property for up to 3 years following the termination of the lease and allow for the destruction of any hemp plants found on the property by the lease holder during that time. A template of this access agreement will be provided on the Department's website.
(iv) Location Restrictions:
(A) Given the potential of hemp pollen to interfere with medical marijuana crops, hemp may not be planted within three miles of an approved medical marijuana growing facility.
(B) Hemp may not be grown, cultivated, propagated or planted in or within 200 feet of any structure that is used for residential purposes, without prior written approval from the Department. Any written approval may establish additional requirements set forth by the Department therein.
(C) A person shall not handle, process, warehouse or store leaf or floral material from hemp in a facility or field location that is within 200 feet of any structure that is used for residential purposes, without prior written approval from the Department. Any written approval may establish additional requirements set forth by the Department therein.
(D) May not grow, plant, cultivate or propagate less than one-quarter acre and 300 hemp plants in any outdoor location nor less than 2,000 square feet and 200 hemp plants in any indoor facility, unless prior written approval is provided by the Department. Any written approval may establish additional requirements set forth by the Department therein.
(E) Shall not grow, plant, cultivate or propagate hemp within 1,000 feet of a pre-kindergarten through 12th grade school property or a public recreational area, unless prior written approval is provided by the Department. Any written approval may establish additional requirements set forth by the Department therein.
(F) Shall not include on application or Site Modification Request any property for growing, planting, cultivating or propagating hemp that is not owned or completely controlled by the applicant or permitted grower.
(G) Hemp shall be physically segregated from other crops unless prior written approval is obtained in writing from the Department. Any written approval may establish additional requirements set forth by the Department therein.
(H) Hemp plant material from each lot shall be kept separate from and may not be commingled with hemp plant material from other lots.
(I) The use of land, properties and facilities shall comply with all laws, regulations and requirements of any governmental agency or other regulating authority, including building, commercial, environmental, zoning and other regulated categories.
(3) Hemp Variety Information. Applicants shall list the type and amount of seed, clones, propagules or cuttings they have acquired or intend to acquire and hemp varieties they intend to plant, propagate and cultivate.
(i) For all hemp seed, clones, propagules or cuttings which will be grown, cultivated, propagated or planted the source, including the legal name and address shall be listed.
(ii) The anticipated acreage for each type or variety of hemp shall be listed.
(iii) The type of product(s), (such as fiber, seed, dried flower, CBD or other) to be produced or processed.
(4) Criminal History Information. Applications shall be accompanied by proof of completed criminal history reports for the applicant and any other key participants in hemp program activities. This shall include a Federal Bureau of Investigation (FBI) background check These must be dated no more than sixty (60) days prior to the date the application is received by the Department.
(i) Key participants are a person or persons who have a direct or indirect financial interest in the entity producing hemp, such as an owner or partner in a partnership. A key participant also includes persons in a corporate entity at executive levels including chief executive officer, chief operating officer and chief financial officer.
(ii) Key participant does not include other management positions like farm, field or shift managers.
(iii) Any key participant having a disqualifying criminal history background, such as a disqualifying felony as provided for by section 297B(e)(3)(B)(i) of the 2018 Farm Bill, will not meet the requirements of this General Permit and may not participate in the Hemp Program. A disqualified key participant will result in rejection of the Hemp Program application.
(iv) The criminal history reports must indicate that the applicant and key participants have not been convicted of a State or Federal felony related to a controlled substance for a period of 10 years prior to the date when the report was completed.
(v) FBI background checks are valid for 3 years. Directions for obtaining FBI background checks meeting the Hemp Program requirements are available on the Department's website at https://www.agriculture.pa.gov/Plants_Land_Water/industrial_hemp/Pages/default.aspx.
(5) Attestations. The applicant shall attest to all the following statements:
(i) That subject to the criminal penalties for unsworn falsification to authorities, at 18 Pa.C.S.A. § 4904, during the time period of the application and General Permit issued thereunder they will immediately report to the Department any key participant of the permit that is convicted of a state or federal controlled-substance-related felony.
(ii) That subject to the criminal penalties for unsworn falsification to authorities, at 18 Pa.C.S.A. § 4904, the plant materials have been selected from apparently disease-free and pest-free sources.
(iii) That in propagating, cultivating, harvesting, transporting and processing of hemp, all biosecurity safeguards will be utilized in order to assure isolation from the domestic environment outside of permitted locations.
(iv) That subject to the criminal penalties for unsworn falsification to authorities, at 18 Pa.C.S.A. § 4904, the approved applicant and permit holder will continue to comply with the permit requirements for the duration of time the hemp or hemp materials are in the permit holder's possession, including any regrowth of the hemp.
(c) Hemp Permit Approval and Renewal. Once a Permit application has been approved by the Department, the Department will issue a Permit to the applicant for the approved site. Permits are issued on a calendar year basis and all the following rules and requirements apply.
(1) Permits are not transferrable in any manner.
(2) An applicant whose application has been approved will not be considered a permitted grower under this General Permit and shall not commence any activities, including purchase or planting of any hemp seeds, hemp plants, hemp plant parts, hemp materials or hemp products until the applicant is issued a Permit by the Department for that year.
(3) Permits are issued on a calendar year basis, do not renew automatically and must be renewed every calendar year.
(4) Applications for renewal will be subject to the same terms, conditions and approval process as set forth in the General Permit and application for initial or new permits.
(5) Permits will be valid until December 31 of each calendar year.
(d) Permit Holder Responsibilities.
(1) An approved applicant and permit holder, or any person propagating, cultivating, transporting, storing, warehousing, distributing, retailing, wholesaling, processing or researching hemp and required to have a permit, shall comply with all the provisions of this General Permit.
(2) Compliance. The approved applicant and permit holder shall continue to comply with the permit requirements established in this General Permit for the duration of time the hemp or hemp materials are in the permit holder's possession, including any regrowth of the hemp.
(3) Upon receipt of a Hemp Program permit, the permit holder shall provide their unique Department hemp permit number and associated hemp production locations and acreage information to FSA.
(4) For any variety or field plot of one (1) acre or less, permit holder shall post signage at the plot location. The signage shall be of weather resistant material, be a minimum of 18 by 30 inches in size, have a letter size of at least 1 inch and shall include the following information:
(i) The statement, ''Pennsylvania Department of Agriculture Permitted Hemp Growing Site'';
(ii) Permit holder's name;
(iii) Permit holder's permit number; and
(iv) the Department's telephone number.
(5) Signage shall not include the following:
(i) Any logo of the Department.
(ii) Any language setting forth health or medical claims.
(6) Change in Information or Status. The following rules and requirements apply to any change in Permit information.
(i) A Permit holder must notify the Department immediately should there be any change in the information provided on the Permit application, including acreage, varieties or type of hemp or hemp seed procured, planted, cultivated or harvested, closure, sale of land or any other information required in the application.
(ii) If at any time, there is a change to the information submitted in the permit application, a permit modification is required. FSA must also be notified of changes.
(iii) Any change to the growing, planting, cultivating or propagation location or ownership of the location shall require a new permit and must be submitted during the permit submission time period for that calendar year.
(7) Abandonment or closure of permitted hemp site. The permitted hemp grower shall, prior to abandonment or closure of the permitted site, notify the Department in writing of his intent to close or abandon the site. Failure to so will result in the permitted grower being charged and responsible for any destruction costs, including destruction of hemp that may have escaped the boundaries of the permit location and may result in the assessment of other penalties as allowed under the Act.
(8) Permit holders, including all key participants, are responsible for and shall immediately notify The Department of any drug related convictions they receive during the time period of a permit.
Article III. Propagation and Cultivation.
The following rules and requirements apply to the propagation and cultivation of hemp.
(a) Hemp Source Materials. The permit holder is responsible for sourcing, purchasing, and acquiring the hemp seed, clones, propagules or cuttings which they will be growing, planting, cultivating or propagating and shall ensure that this complies with all the requirements of this general permit.
(1) Prohibited Hemp Varieties and Varieties of Concern. A permit holder shall check the Department's website or request a list of Prohibited Hemp Varieties and Varieties of Concern.
(i) Prohibited Hemp Varieties. Prohibited Hemp Varieties have tested higher than 1.0% THC in previous years and resulted in required crop destruction.
(A) Prohibited Hemp Varieties and the seed thereof, listed by the Department, shall not be approved for planting, propagation, cultivation, sale, transfer, retail, wholesale, distribution, transportation, storage or warehousing in the Commonwealth.
(B) Prohibited Hemp Varieties and the seed thereof shall be illegal in the Commonwealth and shall be subject to a Control Order, ordering its destruction, a stop-sale order or a seizure and condemnation order or any combination of the above and the imposition of penalties as allowed under the Act.
(ii) Hemp Varieties of Concern. Hemp Varieties of Concern are varieties that have tested higher than 0.3% THC in some Pennsylvania planting locations in previous years, or have tested high in other states, resulting in crop destruction. Hemp Varieties of Concern including the seed thereof shall be pre-approved by the Department for planting, propagation, cultivation, sale, transfer, retail, wholesale, distribution, transportation, storage, warehousing, or processing in the Commonwealth.
(2) Hemp seed source. All the following requirements shall be met:
(i) The permit holder shall be responsible for sourcing and purchasing all hemp seed and shall assure the seed, whether internationally or domestically sourced, meets all phytosanitary requirements for movement of seed.
(ii) Hemp seed labeling. All seed shall meet the labeling requirements of the PA Seed Act (3 Pa.C.S.A. § 7101 et seq.). A summary of these requirements is available on the Department's Hemp Program webpage: https://www.agriculture.pa.gov/Plants_Land_Water/industrial_hemp/Pages/default.aspx.
(iii) The permit holder shall obtain a statement from the licensed producer or guarantor supplying the seed that the variety has a THC content equal to or less than 0.3% on a dry weight basis, as determined by an independent third-party laboratory.
(iv) Reuse of hemp seed. Seed produced by a permit holder may only be saved or used for future planting under the following conditions:
(A) The original seed source holding rights to the seed grants such permission to the permit holder and provides written approval and documentation of their authority to grant that permission.
(B) The permit holder has registered with the Department's certified seed program and met the requirements of the Seed Act (3 Pa.C.S.A. § 7101 et seq.) and its attendant regulations.
(v) Sale of hemp seed. The provisions of the Seed Act (3 Pa.C.S.A. § 7101 et seq.), its attendant regulations and this General Permit shall apply to the sale of hemp seeds.
(3) Hemp nursery stock: Hemp clones, cuttings and seedlings for planting, propagation and cultivation are permitted under the following conditions:
(i) Hemp clones, cuttings and propagules being shipped into the Commonwealth for planting, propagation, cultivation or sale or transfer shall be accompanied by a Federal Phytosanitary certificate, a state of origin-issued health certificate or certification that the plants were grown at a state licensed and inspected nursery.
(ii) Any permit holder receiving hemp nursery stock, whether for propagation of additional nursery stock or for production planting, shall obtain a statement from the licensed producer or guarantor supplying the hemp clones, cuttings or propagules that mature plants from the variety have a THC content of less than 0.3% on a dry weight basis, determined by an independent third-party laboratory.
(iii) Production of hemp nursery stock is permitted under the following conditions:
(A) Any permit holder who is vegetatively propagating plant material must have documentation verifying that the person holding rights to the source material has granted permission to the permit holder for this activity.
(B) Permit holders who intend to sell or distribute hemp nursery stock
1. shall hold a Pennsylvania Nursery License under the Plant Pest Act (PPA) (act of December 16, 1992, P.L. 1228, No. 162) (3 P.S. § 258.1 et seq.), and make all transactions in accordance with provisions of the PPA and its attendant regulations.
2. Shall only sell hemp stock plants to permit holders within Pennsylvania or to out-of-state persons that meet the requirements of the hemp program rules in their state, which may be verified by requesting visible proof of state permit or referencing a state listing of permit or license holders.
3. Records of planting material sales: Records of the sale or distribution of hemp nursery stock shall be maintained for a minimum of three (3) years and shall contain the following information for each sale or distribution.
(aa) Date of the sale or distribution.
(bb) Date of shipment.
(cc) Name, Address, telephone number, license or permit number of the purchaser and final grower, cultivator or propagator if different.
(dd) Quantity of plants in shipment, by variety and stage of development (cutting, seedling, rooted cutting, etc.)
(ee) Source of mother plants for nursery stock.
(ff) Seed information including a seed tag for plants started from seed.
(gg) The Federal Phytosanitary certificate, state of origin-issued health certificate or certification that the plants were grown at a state licensed and inspected nursery for each sale, distribution or shipment.
(hh) A copy of all attestations required above for seeds, clones, cuttings and propagules.
(ii) A copy of all Reports required for seeds, clones, cuttings and propagules.
(jj) A copy of all written grants of permission required for seeds, clones, cutting and propagules.
(b) Inspection. The Department may conduct unannounced inspections during normal business hours. The permit holder shall grant Department inspectors unrestricted access, during normal business hours, to all permitted sites or sites required to be permitted under the provisions of the Act and this General Permit, including, all growing, planting, cultivation and propagation locations and adjacent areas, buildings, storage and processing areas and all other grounds, structures, and facilities involved in the hemp production.
(1) Where practicable the Department will notify the permit holder of an inspection.
(2) Where the permit holder is given notice of an inspection the permit holder or a designated representative thereof, shall be present to accompany the Department inspector.
(c) Reporting and Recordkeeping. Permit holders shall comply with the following.
(1) Reports. The following reports are required from Permit Holders:
(i) Report of production acreage, filed with FSA; FSA Report detail. Permitted growers are required to report their hemp crop acreage with FSA, and to provide FSA with specific information regarding field acreage, greenhouse, or indoor square footage of hemp planted. This information shall include all the following:
(A) Name, street address, geospatial location or other comparable identification method specifying where the hemp will be produced, and the legal description of the land.
(B) Geospatial location or other methods of identifying the production locations.
(C) The information shall be provided for each field, greenhouse, building, or site where hemp will be grown, planted, cultivated or propagated.
(D) Follow the specific procedures for reporting hemp acreage to FSA which will be posted on the USDA Domestic Hemp Production Program website.
(ii) Planting Report, filed with the Department—The permit holder shall submit to the Department on forms provided by the Department, within 10 days after planting. The Report shall set forth all the following:
(A) Date planted.
(B) Stage of development at the time of planting (seed, cutting, etc).
(C) Variety and quantity of each variety planted.
(D) The plot map and geospatial location where each lot was planted including each separate field, greenhouse, building or other site and the square footage, acreage or plot dimensions of each.
(iii) Inactive Permit report, filed with the Department. The permit holder shall submit this report to the Department on a form provided by the Department, when the permit holder determines that there will be no activity under the permit.
(iv) Failed Crop Destruction Report, filed with the Department. The permit holder shall submit this report to the Department on a form provided by the Department, if the crop is not suitable for harvest and rendered useless at the planting, cultivation, propagation or growing site. To be submitted within ten (10) business days of destruction of any surviving hemp plants.
(iv) Harvest Report, filed with the Department. The permit holder shall submit this report to the Department on a form provided by the Department. The report shall include harvested quantities and disposition of crop, by lot.
(2) Recordkeeping Requirements. Permitted growers shall maintain copies of all records and reports necessary to demonstrate compliance with the permit program. These records include those that support, document, or verify the information provided in the forms submitted to the Department, including:
(i) For each permitted location.
(A) The information provided on the application for a permit
(B) Permit document received from the Department
(C) A detailed map of the permitted site meeting all the requirements of subsection above [Article II(b)(2)].
(D) At least one label from every different lot of seed or nursery stock, along with any Material Transfer Agreements or THC testing documentation received from the source.
(E) Invoice(s) showing the amount of seed and hemp plants, hemp parts, hemp material and hemp products purchased and the name and address of the source of the material. This information shall cross reference the Permit number under which the materials were procured.
(F) The specific field and location where the seed, hemp plants, hemp parts, hemp material and hemp products were planted, cultivated and propagated (site map with planting sites indicated) and the corresponding permit for each.
(ii) For each individual lot
(A) Acreage (outdoor) or square footage (indoor)
(B) Variety name and amount planted, cultivated and propagated and the corresponding permit number.
(C) Type of Hemp—Fiber, Grain, Seed, CBD
(D) Planting Date
(E) Harvest Date
(F) THC test date and results (copy of analysis report(s))
(G) The yield of the site at harvest
(H) Any factors impacting harvest, including seed pressure, irrigation, storm damage, flooding, drought or any other issue arising
(3) All records, reports and documents shall be kept and maintained for a minimum of three years and made available to the Department for inspection upon request.
(d) General Responsibilities.
(1) Assure all hemp plants and products are within the boundaries of the legal description of the land, plot map and geospatial location submissions made to the Department as required by subsection (ii) above. Cannabis plants found planted, cultivated, propagated or growing outside of the boundaries will not be covered by the permit, will constitute a violation of this General Permit and will be subject to destruction.
(2) Cessation of propagation. If the permit holder intends to stop planting, growing, propagating or cultivating hemp, the permit holder shall notify the Department and implement all measures ordered by the Department to destroy the hemp, including all regrowth, seeds, plantings, cultivars and parts of the hemp plant.
(3) Abandonment. If the permit holder abandons, relinquishes possession or ownership of, control over or responsibility for the hemp in a manner inconsistent with the provisions of this General Permit, all plant material, regrowth, seeds, plantings, cultivars and parts of the hemp plant shall be destroyed in a manner ordered and approved by the department.
(4) Continued responsibility. The original permit holder shall continue to be responsible for the hemp and hemp materials, seeds, regrowth, plantings, cultivars and parts of the hemp plant and the cost of destruction and eradication thereof.
(5) Penalties. The original permit holder shall continue to be subject to the penalties imposed under the Act and this General Permit.
Article IV. Sampling and Testing for THC.
(a) Sampling and testing for THC. All hemp planted, cultivated, propagated or growing in Pennsylvania shall be sampled and tested to determine THC concentration levels.
(1) Sampling
(i) Official samples must be collected by a Department-certified sampling agent and in accordance with the sampling procedures and requirements established by the Department and set forth on the Department's Hemp Program webpage: https://www.agriculture.pa.gov/Plants_Land_Water/industrial_hemp/Pages/default.aspx.
(ii) The sampling procedures will assure a representative sample of each variety and lot is procured for testing and address the process and procedures to be followed from entering a growing area and collecting the minimum number of plant specimens necessary to accurately represent the THC content, through laboratory testing of the samples and reporting results.
(iii) Samples must be collected no more than fifteen (15) days prior to harvest. If harvest is delayed more than 15 days from the sampling date, the lot must be resampled.
(iv) A Chain of Custody Form developed by the Department shall be utilized by all persons authorized to take Official samples.
(v) A sample receipt shall be completed by the certified sampling agent or Department employee conducting the sampling and signed by the hemp permit holder or an authorized representative thereof, who must be present when sampling is taking place.
(vi) No sample(s) may be removed from the permitted site prior to the chain of custody form and sample receipt being completed and signed.
(2) It shall be the responsibility of the hemp permit holder to assure that each hemp lot described in their permit is sampled and tested according to the guidelines established by the Department.
(i) The hemp permit holder shall hire a Department-certified sampling agent to take a representative sample of each lot of hemp planted, cultivated, propagated or grown, to submit for testing.
(ii) It is the responsibility of the permit holder to schedule testing within 15 days prior to harvest and to be present or have an authorized representative present at the growing site at the time of sampling.
(iii) The permit holder shall designate the specific laboratory where samples will be sent for THC testing. The laboratory shall be an independent laboratory able to meet all requirements for testing and reporting outlined in Article IV sections (e) and (f) below.
(iv) The hemp permit holder shall pay any fees charged and costs associated with sampling and testing.
(v) A permit holder may request that the laboratory retest samples. The permitted grower shall pay the fees and costs of the resampling and testing.
(vi) The permitted grower shall agree to the release of all original test results from the laboratory directly to the Department and to USDA.
(3) The Department may conduct random audits of hemp permit holders and take its own samples for testing.
(i) A Department employee may take Official samples to audit samples taken by a certified sampling agent. Such audits will be done on a random basis and may be done at the Department's discretion.
(ii) The Department may also take Official samples pursuant to an investigation, as the result of a complaint or where an Official sample tests above the 0.3% THC concentration threshold.
(b) Prohibition Against Harvest Prior to Testing.
(1) Hemp may not be harvested prior to an official sample being taken by the Department or a Department certified sampling agent.
(2) Any sample taken after harvest shall not be accepted, the crop will no longer be compliant, a notice of violation may be issued, and the harvested material may be required to be destroyed.
(c) Movement Prohibition. The following rules and requirements shall apply to the movement of hemp plants, parts and products. No hemp plants, plant parts or products are permitted to be removed from the permitted growing site until all the following rules and requirements have been met:
(1) THC testing has been completed on all samples by the Department or an independent laboratory able to meet all requirements for testing and reporting outlined in Article IV sections (e) and (f) below.
(2) The testing confirms acceptable THC level(s) at or below 0.3% on a dry weight basis for all samples from each representative lot.
(3) Written approval, such as a Letter of Clearance, for removal and movement of the hemp plant, hemp parts or hemp product is received from the Department.
(d) THC Testing.
(1) THC levels in representative samples must test at or below a THC level of 0.3% on a dry weight basis.
(2) Hemp plant, plant parts or products testing above 0.3% may be subject to a control order and may be required to be destroyed.
(3) After sampling, harvested plants and plant parts must be identified by signage denoting the sample with which they are associated.
(4) Harvested plants and plant parts must be separated and stored separately from each other according to lot, field, and variety associated with each sample.
(e) THC Testing Laboratory Standards and Methods. All the following shall comprise the rules and requirements for THC testing.
(1) Testing shall be done at the Department laboratory or an independent laboratory able to meet all requirements for testing and reporting outlined in Article IV sections (e) and (f). The laboratory shall be a DEA registered laboratory meeting standards of performance described in USDA regulation or guidance. The Department shall delay enforcement of the requirement for DEA registration of laboratories, in parallel with the delay of enforcement announced by USDA in an enforcement discretion memo issued February 27, 2020 (https://www.ams.usda.gov/rules-regulations/hemp/enforcement) or any subsequent related publication by USDA.
(2) Testing for THC will be conducted using post-decarboxylation or other similarly reliable method approved by the Department and by USDA where the THC concentration level measured includes the potential to convert delta-9-tetrahydrocannabinolic acid (THCA) into THC. Testing methodologies currently meeting these requirements include those using gas or liquid chromatography with detection.
(3) Testing shall be done and reported on a dry weight basis.
(4) The laboratory must report a Measurement of Uncertainty (MU) with each hemp test result. The laboratory must be able to provide documentation for derivation of the measurement of uncertainty if requested by the Department.
(f) Test Results.
(1) Laboratories performing THC testing for hemp produced under this program shall submit certified electronic copies of all test results to the Department and USDA.
(2) The Department will provide instructions, to all laboratories performing testing for Pennsylvania permitted growers, on the manner to electronically submit test results to the Department.
(3) Permitted growers shall receive and be able to provide a copy of all test results to the Department at the Department's request.
(4) Permitted growers shall be responsible for maintaining a copy of all test results for a period of 3 years and making them available to the Department upon request.
Article V. Disposal of Non-compliant Products.
(a) Where test results evidence THC levels exceeding the acceptable hemp THC level of 0.3%, the laboratory conducting the test shall promptly notify the permitted grower, Department and USDA and provide a copy of the test results.
(b) All hemp plants, plant parts and products shall be subject to a control order from the Department and shall be held for disposal in a manner that complies with the provisions of the control orders, the CSA and DEA regulations.
(c) The material must be collected for destruction by a person authorized under the CSA to handle marijuana, such as a DEA-registered reverse distributor, or a duly authorized Federal, State, or local law enforcement officer, or official. The Department shall delay enforcement of the requirement for involvement of DEA-registered reverse distributors, in parallel with the delay of enforcement announced by USDA in an enforcement discretion memo issued February 27, 2020 (https://www.ams.usda.gov/rules-regulations/hemp/enforcement) or any subsequent related publication by USDA, if the permittee disposes of the plants using one of the means described at https://www.ams.usda.gov/rules-regulations/hemp/disposal-activities.
(d) Prior to the disposal of non-compliant hemp plants, plant parts or products, the permit holder must provide the following information and obtain approval from Department. Information shall include all the following.
(1) DEA or USDA issued order of destruction, if any.
(2) Date of removal.
(3) Date of destruction.
(4) Method of destruction.
(5) Name and contact information for the person responsible for the removal and destruction.
(e) Documentation of removal and destruction of the non-compliant hemp plants, hemp parts and hemp products. Documentation shall be submitted to the Department within five (5) business days of completion of the removal and destruction and shall include:
(1) Providing the Department and USDA with a copy of the documentation of disposal provided by the approved entity performing the removal and or
(2) Compliance with the reporting requirements established by the Department and USDA.
Article VI. Transportation.
(a) All hemp plants, hemp parts and hemp products being transported in the Commonwealth shall be packaged in a manner that complies with and allows for all the following:
(1) Conspicuous marking and individual identification of each package or bale.
(2) Provides permit information to the transporter that can be utilized by law enforcement to verify the material is hemp, sets forth the manner of packaging, variety(s) and quantity and variety of material in each package.
(3) Provides information setting forth each variety of hemp plant, hemp part and hemp product in the shipment.
(4) Provides test results for each package and variety of hemp, hemp parts and hemp product verifying they meet the THC standards established by law and regulation.
(b) All movement of hemp plants, plant parts and hemp products from a planting, cultivation, propagation or growing site or initial processing site shall be conducted in a manner to prevent any release of viable plant material to the environment and to maintain the identification of the producer, permit number and lot information.
(c) All shipments must be accompanied by shipping documents produced by the permit holder that shall include the following information (excluding samples being submitted for laboratory analysis):
(1) Shipping date
(2) Origin of the shipment
(3) Permit holders name, address, phone number,
(4) Growing location address (if different),
(5) Permit number,
(6) Variety information,
(7) Copy of the certificate(s) of THC analysis covering all material in the shipment, (not required for seedlings)
(8) Number of packages included in the shipment by variety,
(9) Description of the plant or plant parts in the packaging (Ex. Seedlings, mature whole plants, buds, leaf, retted stems)
(10) Destination of the shipment.
(11) Attached copy of the Department's Letter of Clearance (not required for seedlings)
(12) For seedlings and clones, each tray shall be marked with the variety information and producers permit number and accompanying documentation shall also include permit number of the person receiving the shipment.
(13) For harvested material in packaging of any weight, each container shall be individually identified by a label secured to the package with the following information.
(i) Permit holders name, address, phone number,
(ii) Growing location address (if different),
(iii) Permit number,
(iv) Variety information.
(14) For harvested material shipped in bulk, including bales, in addition to the accompanying documentation listed above, the shipping documents shall include the approximate weight of the shipment and if baled the number of bales and a description of the plant material included in the shipment.
Article VII. Warehousing and Storage.
(a) Movement Off the Permitted Site Prior to Results and Letter. Hemp harvested prior to receiving THC test results, including hemp plants, hemp parts, hemp materials and hemp products, may not be moved from the permitted site until a test at or below the acceptable THC level of 0.3% and the Department's Letter of Clearance is received by the permit holder.
(b) Movement Upon Release. Once released, movement of hemp, including hemp plants, hemp parts, hemp materials and hemp products to an offsite storage location, buyer, processor or any other location shall be accompanied by all required transportation and shipping documents required under this General Permit.
(c) Containment. All transportation, warehousing and storage of hemp plants, hemp parts, hemp materials and hemp products shall be conducted in a manner to prevent any release of viable plant material to the environment and to maintain the identification of the producer, permit number and varietal information for the material in storage.
(d) Off-site Storage or Warehousing Location. The permitted grower shall provide the Department with the following information for storage or warehousing locations that are not on the permitted growing site but where the hemp crop shall remain under the permit holder's control/possession.
(1) The legal name of the entity owning the storage location or warehouse.
(2) The physical address and GPS location of the facility.
(3) Date of each delivery.
(4) Quantity, type, variety and amount of each, shipped to the facility.
(5) Total amount of hemp in storage at each off-site location.
(6) Permit number under which each separate load was shipped.
(e) Within five (5) business days of the last shipment of hemp plants, parts, and products from any off-site storage facility, the permit holder shall provide written notice to the Department that the off-site facility no longer contains any hemp associated with their permit.
Article VIII. Processing.
(a) Hemp processers located in the Commonwealth are required to obtain a permit before receiving hemp materials at their facility.
(1) No separate processing permit is required if all hemp being processed is from a growing permit under the same permittee and address.
(2) If hemp is received from another address, a processing permit must be obtained. A processing permit is required if receiving hemp material from other permittees or moving hemp from sites with separate permits, but all under the same permittee.
(3) No permit is required for secondary or tertiary processors that do not receive any potentially viable hemp material.
(b) A permitted processor may not accept hemp plants or plant parts unless they are
(1) From a permitted or licensed grower; and
(2) Accompanied by a certificate of analysis from a laboratory confirming the THC level of the material is not above the 0.3% limit.
(3) Hemp material received from out-of-state must meet the same sampling and testing requirements required for Pennsylvania hemp growers, as described in Article IV of this General Permit.
(c) A permit holder shall keep and make available to the Department upon request, at a minimum, the following records and documentation:
(1) Information on all shipments of hemp plants and plant parts received from all in-state and out-of-state hemp growers, including
(i) Permit or license number of the grower
(ii) Name address and phone number of the permitted or licensed grower
(iii) Certificate of analysis evidencing compliance with THC levels for each lot received
(iv) Date of delivery
(v) Amount and description of materials received.
(2) Processors shall document procedures used to render all plant material non-viable, and how that non-viable material leaves the facility (whether as usable product or waste).
(d) Processors are required to notify the Department of any attempt to sell or distribute hemp or cannabis material to them by a person who does not hold a valid permit or license from the state of origin of the shipment. The documentation shall include, if known, the name, address, phone number, amount of material offered, source of the material, and varieties.
(e) Processors are required to report to the Department any shipment of material that does not contain all the information required by section (b) of this Article VIII (related to processing).
Article IX. Distribution and Sale.
(a) Legal Responsibility. Growers, cultivators or propagators of hemp and processers of finished hemp products shall meet all laws, regulations, orders and requirements of all authorities that regulate any produced, marketed, labeled, distributed, or sold as part of the permitted hemp program.
(b) Branding. The name, symbols, and logos of the Commonwealth of Pennsylvania or any of its agencies, including the Pennsylvania Department of Agriculture, may not in any way be used in the labeling, promotion or marketing of any hemp products associated with the permit without explicit written permission from the Department.
Article X. Hemp Permit Denial, Revocation and Suspension.
(a) Denial, Suspension or Revocation of Hemp Permit. A hemp permit may be suspended or revoked if the Department or its representative receives credible information that a permittee has done any of the following:
(1) Violated a provision of the Act, the General permit or the Department-issued Permit,
(2) Failed to comply with a written order of the Department.
(3) Failed to comply with a statutory or regulatory requirement of the USDA or other federal agency with jurisdiction over the growing, planting, cultivation, propagation, distribution, sale, transportation, processing, warehousing, storage or marketing of hemp.
(b) Action Upon Suspension, Revocation or Denial. Upon suspension, revocation or denial of a permit the permit holder shall cease all activities, including planting, cultivation, propagation, selling, distribution, transportation, harvesting, and handling of any hemp plant, hemp plant part, hemp product or hemp material and shall not remove hemp or cannabis from the permitted site or location where hemp or other cannabis was located at the time when the Department issued the suspension, revocation or denial order.
Article XI. Violations and Effective Date.
(a) The Department shall carry out all enforcement provisions of the Act.
(b) When the Department determines that a negligent violation has occurred, the Department shall issue a Notice of Violation and require a corrective action plan to be developed and implemented.
(c) Negligent violations include (but are not limited to):
(1) failure to provide a legal description of the land on which the hemp is produced;
(2) failure to obtain a permit before engaging in production or processing;
(3) production of plants exceeding the acceptable hemp THC level. The Department will not consider hemp producers as committing a negligent violation if they produce plants exceeding the acceptable hemp THC level if they use reasonable efforts to grow hemp and the plant does not have a THC concentration of more than 0.5 percent on a dry weight basis.
(4) Failing to file required reports with the Department in a timely manner.
(i) Planting Report or Inactive Permit Report must be submitted to the Department by September 1 of the permit year, unless a request for a waiver is received and approved by the Department.
(ii) Harvest Report or Failed Crop Report must be submitted to the Department by December 1 of the permit year, unless a request for a waiver is received and approved by the Department.
(d) For testing violations, the Department will consider multiple tests of a single lot as the basis for any violation. This means that if multiple tests from a single lot have a THC concentration exceeding the acceptable hemp THC level (but less than 0.5 percent if the hemp producer has made reasonable efforts to grow hemp), the Department considers this as one violation.
(e) A corrective action plan shall include a reasonable date by which the permit holder will correct the violation and requirements for reporting back to the Department on its compliance with the plan, for a period of not less than the next two calendar years.
(f) The Department shall approve and review a corrective action plan with the permittee and its implementation may be verified during a future audit or site visit.
(g) A permit holder who has received three negligent violations in a five-year period is ineligible to produce hemp for a period of five years from the date of the third violation. Negligent violations are not subject to criminal enforcement.
(h) If the Department determines that a violation is made with a culpable mental state greater than negligence, the Department shall report the violation to the Attorney General and the chief law enforcement officer of the commonwealth, as applicable, in addition to its own enforcement action.
Effective date. This General Permit shall become effective upon signature and publication in the Pennsylvania Bulletin and shall remain in effect until rescinded by subsequent order.
RUSSELL C. REDDING,
Secretary
[Pa.B. Doc. No. 20-634. Filed for public inspection May 8, 2020, 9:00 a.m.]
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