Bill Text: TX SB1240 | 2019-2020 | 86th Legislature | Introduced
Bill Title: Relating to the production and regulation of hemp; requiring an occupational license; authorizing fees.
Spectrum: Slight Partisan Bill (Republican 5-2)
Status: (Introduced - Dead) 2019-03-07 - Referred to Business & Commerce [SB1240 Detail]
Download: Texas-2019-SB1240-Introduced.html
By: Perry, et al. | S.B. No. 1240 | |
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relating to the production and regulation of hemp; requiring an | ||
occupational license; authorizing fees. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Title 5, Agriculture Code, is amended by adding | ||
Subtitle F to read as follows: | ||
SUBTITLE F. HEMP | ||
CHAPTER 121. STATE HEMP PRODUCTION PLAN | ||
Sec. 121.001. DEFINITION. In this chapter, "hemp" means | ||
the plant Cannabis sativa L. and any part of that plant, including | ||
the seeds of the plant 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. | ||
Sec. 121.002. LEGISLATIVE INTENT. It is the intent of the | ||
legislature that this state have primary regulatory authority over | ||
the production of hemp in this state. | ||
Sec. 121.003. DEPARTMENT RULES. (a) The department, after | ||
consulting with the governor and attorney general, shall adopt | ||
rules consistent with Chapter 122 providing: | ||
(1) a practice to maintain relevant information | ||
regarding land on which hemp is produced in this state, including a | ||
legal description of the land, for a period of at least three | ||
calendar years; | ||
(2) a procedure for testing, using | ||
post-decarboxylation, high-performance liquid chromatography, or | ||
another similarly reliable method, the delta-9 | ||
tetrahydrocannabinol concentration of hemp produced in this state; | ||
(3) a procedure for the effective disposal of plants, | ||
whether growing or not, that are produced in violation of Subtitle | ||
G, Agricultural Marketing Act of 1946 (7 U.S.C. Chapter 38, | ||
Subchapter VII), and products derived from those plants; | ||
(4) a procedure to comply with the enforcement | ||
procedures described by Section 297B(e), Agricultural Marketing | ||
Act of 1946 (7 U.S.C. Section 1639p(e)); | ||
(5) a procedure for conducting annual inspections of, | ||
at a minimum, a random sample of hemp producers to verify that hemp | ||
is not produced in violation of Subtitle G, Agricultural Marketing | ||
Act of 1946 (7 U.S.C. Chapter 38, Subchapter VII); | ||
(6) a procedure for submitting the information | ||
described in Section 297C(d)(2), Agricultural Marketing Act of 1946 | ||
(7 U.S.C. Section 1639q(d)(2)), as applicable, to the secretary of | ||
the United States Department of Agriculture not later than the 30th | ||
day after the date the information is received; and | ||
(7) standards for certifying that this state has the | ||
resources and personnel to carry out the practices and procedures | ||
described by Subdivisions (1) through (6). | ||
(b) The department shall attempt to adopt rules under | ||
Subsection (a) that will, in substance, meet the minimum | ||
requirements for approval as a state plan under Section 297B, | ||
Agricultural Marketing Act of 1946 (7 U.S.C. Section 1639p). | ||
Sec. 121.004. SUBMISSION OF STATE PLAN. (a) The | ||
department, after consulting with the governor and attorney | ||
general, shall submit to the secretary of the United States | ||
Department of Agriculture a state plan for monitoring and | ||
regulating the production of hemp in this state as provided by | ||
Section 297B, Agricultural Marketing Act of 1946 (7 U.S.C. Section | ||
1639p). | ||
(b) The plan shall include the rules adopted under Section | ||
121.003 and any other required information. | ||
(c) If a plan submitted by the department is disapproved by | ||
the secretary of the United States Department of Agriculture, the | ||
department, after consulting with the governor and attorney | ||
general, shall amend the rules under Section 121.003 as needed to | ||
obtain approval and submit an amended plan. | ||
(d) The department shall, as necessary, seek technical | ||
assistance from the secretary of the United States Department of | ||
Agriculture in adopting rules under Section 121.003 and otherwise | ||
developing the plan. | ||
CHAPTER 122. PRODUCTION OF HEMP | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 122.001. DEFINITIONS. In this chapter: | ||
(1) "Hemp" has the meaning assigned by Section | ||
121.001. | ||
(2) "Institution of higher education" has the meaning | ||
assigned by Section 61.003, Education Code. | ||
(3) "License" means a hemp producer's license issued | ||
under Subchapter C. | ||
(4) "License holder" means an individual or business | ||
entity holding a license. | ||
(5) "Plot" means a contiguous area in a field, | ||
greenhouse, or indoor growing structure containing the same variety | ||
or strain of hemp throughout the area. | ||
Sec. 122.002. LOCAL REGULATION PROHIBITED. A municipality, | ||
county, or other political subdivision of this state may not enact, | ||
adopt, or enforce a rule, ordinance, order, resolution, or other | ||
regulation that prohibits the production of hemp as authorized by | ||
this chapter. | ||
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT | ||
Sec. 122.051. RULES. (a) The department may adopt rules | ||
necessary to implement, administer, and enforce this chapter. | ||
(b) Rules under Subsection (a) must be consistent with any | ||
similar rules governing the production of a comparable crop. | ||
Sec. 122.052. FEES. (a) The department shall set and | ||
collect: | ||
(1) an application fee for an initial license in an | ||
amount not to exceed $100; | ||
(2) a license renewal fee in an amount not to exceed | ||
$100; | ||
(3) a participation fee for each location described by | ||
Section 122.103(b)(3) and each location added after the application | ||
is submitted in an amount not to exceed $100; | ||
(4) a site modification fee for each change to a | ||
location described by Section 122.103(b)(3) in an amount not to | ||
exceed $500; and | ||
(5) a collection and testing fee for each preharvest | ||
test or secondary test if performed by the department in an amount | ||
not to exceed $300. | ||
(b) A fee set by the department under this section may not | ||
exceed the least of: | ||
(1) the amount necessary to administer this chapter; | ||
or | ||
(2) the maximum amount provided by Subsection (a). | ||
(c) The department may not set or collect a fee associated | ||
with the production of hemp that is not listed in Subsection (a). | ||
(d) Fees collected by the department under this chapter are | ||
not refundable and may be appropriated only to the department for | ||
the purpose of administering this chapter. | ||
Sec. 122.053. INSPECTIONS. (a) The department shall | ||
randomly inspect land where hemp is grown to determine whether hemp | ||
is being produced in compliance with this chapter. | ||
(b) The department may enter onto land described by Section | ||
122.103(b)(3), conduct inspections, and collect and test plant | ||
samples. | ||
Sec. 122.054. SAMPLE COLLECTION AND TESTING. The | ||
department may collect samples and perform testing or contract with | ||
a laboratory for the performance of that collection and testing on | ||
behalf of the department. A test performed by a laboratory on | ||
behalf of the department is considered to be performed by the | ||
department for purposes of this chapter. | ||
SUBCHAPTER C. HEMP PRODUCER'S LICENSE | ||
Sec. 122.101. LICENSE REQUIRED; EXCEPTIONS. (a) Except as | ||
provided by Subsection (b), a person may not produce hemp in this | ||
state unless the person holds a license under this subchapter. | ||
(b) A person is not required to hold a license under this | ||
subchapter to: | ||
(1) produce hemp if the person holds a license under | ||
Chapter 487, Health and Safety Code; | ||
(2) manufacture commercial feed containing hemp in | ||
accordance with Chapter 141; or | ||
(3) manufacture an article or other item containing | ||
hemp in accordance with Subtitle A, Title 6, Health and Safety Code. | ||
Sec. 122.102. INELIGIBILITY BASED ON CRIMINAL CONVICTION. | ||
(a) An individual who is convicted of a felony relating to a | ||
controlled substance under state or federal law may not, before the | ||
10th anniversary of the date of the conviction: | ||
(1) hold a license under this subchapter; or | ||
(2) be a governing person of a business entity that | ||
holds a license under this subchapter. | ||
(b) In connection with each application for the issuance or | ||
renewal of a license, the department shall obtain criminal history | ||
record information for each individual described by Section | ||
122.103(b)(1) or (2)(C) for the purpose of determining whether the | ||
applicant is disqualified under Subsection (a). | ||
(c) The department by rule may require an individual to | ||
submit a complete and legible set of fingerprints to the department | ||
for purposes of obtaining criminal history record information under | ||
Subsection (b). | ||
(d) Notwithstanding Subsections (b) and (c), the department | ||
is not required to obtain criminal history record information for | ||
an individual if the department receives a copy of the individual's | ||
license to carry a handgun under Subchapter H, Chapter 411, | ||
Government Code, that was issued or renewed not more than one year | ||
before the application date. | ||
Sec. 122.103. APPLICATION; ISSUANCE. (a) A person may | ||
apply for a license under this subchapter by submitting to the | ||
department an application form prescribed by the department along | ||
with the required application fee. | ||
(b) The application must include: | ||
(1) if the applicant is an individual, the | ||
individual's full legal name and contact information; or | ||
(2) if the applicant is a business entity: | ||
(A) the name under which the entity is authorized | ||
to transact business in this state; | ||
(B) the entity's principal business location | ||
address in this state; and | ||
(C) the full legal name, title, and contact | ||
information of each governing person, including an e-mail address | ||
if available; | ||
(3) the legal description of the land on which the | ||
applicant will cultivate or harvest hemp and the global positioning | ||
system coordinates of that location; and | ||
(4) other information required by department rule. | ||
(c) The department shall issue a license to a qualified | ||
applicant not later than the 60th day after the date the department | ||
receives the completed application and the required application | ||
fee. | ||
Sec. 122.104. TERM; RENEWAL. (a) A license is valid for | ||
one year and may be renewed as provided by this section. | ||
(b) A license holder may apply for the renewal of a license | ||
under this subchapter by submitting an application in the manner | ||
prescribed by the department and paying the required renewal fee. | ||
(c) The department shall renew a license if the department | ||
determines the applicant's license is eligible for renewal. | ||
Sec. 122.105. REVOCATION. (a) The department may revoke a | ||
license if the license holder intentionally violates this chapter | ||
or a rule adopted under this chapter. | ||
(b) The department shall revoke a license if the license | ||
holder is convicted of a felony relating to a controlled substance | ||
under Chapter 481, Health and Safety Code. | ||
SUBCHAPTER D. PREHARVEST TESTING | ||
Sec. 122.151. TESTING REQUIRED. A license holder may not | ||
harvest a hemp plant unless the delta-9 tetrahydrocannabinol | ||
concentration of a representative sample of hemp plants from the | ||
plot where the plant is grown is tested using post-decarboxylation, | ||
high-performance liquid chromatography, or another similarly | ||
reliable method in the manner required by this subchapter. | ||
Sec. 122.152. REPRESENTATIVE SAMPLE. (a) For purposes of | ||
Section 122.151, a representative sample of hemp plants from a plot | ||
consists of cuttings taken from at least five plants throughout the | ||
plot. | ||
(b) A laboratory performing testing under this subchapter | ||
shall homogenize all the cuttings in the sample and test the delta-9 | ||
tetrahydrocannabinol concentration of a random sample of the | ||
homogenized material. | ||
Sec. 122.153. SAMPLE COLLECTION. (a) A license holder | ||
shall notify the department at least 20 days before the date the | ||
license holder expects to harvest hemp plants. | ||
(b) A sample must be collected by the department or another | ||
entity described by Section 122.154(a). | ||
(c) The department by rule may prescribe reasonable | ||
procedures for a person who collects a sample to submit the sample | ||
to the testing laboratory selected by the license holder. | ||
Sec. 122.154. TESTING LABORATORY. (a) Testing required by | ||
this subchapter must be performed by: | ||
(1) the department; | ||
(2) an institution of higher education; or | ||
(3) a private testing laboratory accredited by an | ||
accreditation body in accordance with International Organization | ||
for Standardization ISO/IEC 17025 or a successor standard. | ||
(b) A license holder shall select a laboratory described by | ||
Subsection (a) to perform testing of a sample taken from the license | ||
holder's plot. A license holder must pay the costs of sample | ||
collection and testing. The fee for sample collection and testing | ||
performed by the department may not exceed the amount provided by | ||
Section 122.052. | ||
(c) The department shall recognize and accept the results of | ||
a test performed by an institution of higher education or private | ||
testing laboratory described by Subsection (a). The department may | ||
require that a copy of the test results be sent directly to the | ||
department by the institution of higher education or private | ||
testing laboratory. | ||
(d) The department shall notify the license holder of the | ||
results of a test performed by the department not later than the | ||
14th day after the date the sample was collected under Section | ||
122.153. | ||
SUBCHAPTER E. HARVEST AND USE OR DISPOSAL OF PLANTS | ||
Sec. 122.201. HARVEST. (a) A license holder shall harvest | ||
the plants from a plot not later than the 20th day after the date a | ||
preharvest sample is collected under Section 122.153 unless field | ||
conditions delay harvesting or the department authorizes the | ||
license holder to delay harvesting. | ||
(b) A license holder may not sell or use harvested plants | ||
before the results of a test under Subchapter D performed on a | ||
sample representing the plants are received. If the test results | ||
are not received before the plants are harvested, the license | ||
holder shall dry and store the harvested plants until the results | ||
are received. | ||
(c) A license holder may not commingle harvested plants | ||
represented by one sample with plants represented by another sample | ||
until the results of the tests are received. | ||
Sec. 122.202. USE OR DESTRUCTION OF HARVESTED PLANTS. (a) | ||
If the results of a test under Subchapter D performed on a sample | ||
show a delta-9 tetrahydrocannabinol concentration of not more than | ||
0.3 percent on a dry weight basis, the license holder may sell or | ||
use the plants represented by the sample for any purpose allowed by | ||
law. | ||
(b) If the results of a test under Subchapter D performed on | ||
a sample show a delta-9 tetrahydrocannabinol concentration of more | ||
than 0.3 percent on a dry weight basis: | ||
(1) the license holder shall dispose of all plants | ||
represented by the sample in a manner approved by the department; or | ||
(2) if the department determines the plants | ||
represented by the sample reached that concentration solely as a | ||
result of negligence, the license holder may: | ||
(A) process the plants into fiber with a delta-9 | ||
tetrahydrocannabinol concentration of not more than 0.3 percent on | ||
a dry weight basis and dispose of any remaining parts of the plants | ||
in a manner approved by the department; or | ||
(B) transfer the plants to an appropriately | ||
licensed person to process into a product with a delta-9 | ||
tetrahydrocannabinol concentration of not more than 0.3 percent on | ||
a dry weight basis and dispose of any remaining parts of the plants | ||
in a manner approved by the department | ||
SUBCHAPTER F. ENFORCEMENT | ||
Sec. 122.251. NEGLIGENT VIOLATIONS. (a) If the department | ||
determines that a license holder negligently violated this chapter | ||
or a rule adopted under this chapter, the department shall enforce | ||
the violation in the manner provided by Section 297B(e), | ||
Agricultural Marketing Act of 1946 (7 U.S.C. Section 1639p(e)). | ||
(b) A license holder described by Subsection (a) is not | ||
subject to a civil, criminal, or administrative enforcement action | ||
other than an enforcement action provided by this chapter. | ||
(c) A license holder who negligently violates this chapter | ||
three times in any five year period may not grow, process, or | ||
otherwise produce hemp in this state before the fifth anniversary | ||
of the date of the third violation. | ||
Sec. 122.252. OTHER VIOLATIONS. If the department | ||
determines that a license holder violated this chapter or a rule | ||
adopted under this chapter with a culpable mental state greater | ||
than negligence, the department shall immediately report the | ||
license holder to: | ||
(1) the United States attorney general; and | ||
(2) the attorney general of this state, who may: | ||
(A) investigate the violation; | ||
(B) institute proceedings for injunctive or | ||
other appropriate relief on behalf of the department; or | ||
(C) report the matter to an appropriate law | ||
enforcement agency. | ||
SECTION 2. Subchapter A, Chapter 141, Agriculture Code, is | ||
amended by adding Section 141.008 to read as follows: | ||
Sec. 141.008. UNADULTERATED FEED. (a) Commercial feed is | ||
not considered adulterated solely on the basis that the commercial | ||
feed contains hemp as defined by Section 121.001 if the hemp was | ||
produced in accordance with Subtitle G, Agricultural Marketing Act | ||
of 1946 (7 U.S.C. Chapter 38, Subchapter VII). | ||
(b) The service may not take an enforcement action under | ||
this chapter solely on the basis that commercial feed contains hemp | ||
as defined by Section 121.001 if the hemp was produced in accordance | ||
with Subtitle G, Agricultural Marketing Act of 1946 (7 U.S.C. | ||
Chapter 38, Subchapter VII). | ||
SECTION 3. Subchapter C, Chapter 431, Health and Safety | ||
Code, is amended by adding Section 431.062 to read as follows: | ||
Sec. 431.062. PROHIBITED ENFORCEMENT ACTIONS RELATED TO | ||
HEMP PRODUCTS. The department may not take an enforcement action | ||
under this subchapter solely on the basis that a product contains | ||
hemp as defined by Section 121.001, Agriculture Code, if the hemp | ||
was produced in accordance with Subtitle G, Agricultural Marketing | ||
Act of 1946 (7 U.S.C. Chapter 38, Subchapter VII) and the product is | ||
in conformance with this chapter and other applicable law. | ||
SECTION 4. Subchapter D, Chapter 431, Health and Safety | ||
Code, is amended by adding Section 431.0815 to read as follows: | ||
Sec. 431.0815. UNADULTERATED FOOD. A food is not | ||
considered adulterated under Section 431.081 solely on the basis | ||
that the food contains hemp as defined by Section 121.001, | ||
Agriculture Code, if the hemp was produced in accordance with | ||
Subtitle G, Agricultural Marketing Act of 1946 (7 U.S.C. Chapter | ||
38, Subchapter VII) and the food is in conformance with this chapter | ||
and other applicable law. | ||
SECTION 5. Subchapter E, Chapter 431, Health and Safety | ||
Code, is amended by adding Section 431.1115 to read as follows: | ||
Sec. 431.1115. UNADULTERATED DRUG OR DEVICE. A drug or | ||
device is not considered adulterated under Section 431.111 solely | ||
on the basis that the drug or device contains hemp as defined by | ||
Section 121.001, Agriculture Code, if the hemp was produced in | ||
accordance with Subtitle G, Agricultural Marketing Act of 1946 (7 | ||
U.S.C. Chapter 38, Subchapter VII) and the drug or device is in | ||
conformance with this chapter and other applicable law. | ||
SECTION 6. Subchapter F, Chapter 431, Health and Safety | ||
Code, is amended by adding Section 431.1415 to read as follows: | ||
Sec. 431.1415. UNADULTERATED COSMETIC. A cosmetic is not | ||
considered adulterated under Section 431.141 solely on the basis | ||
that the cosmetic contains hemp as defined by Section 121.001, | ||
Agriculture Code, if the hemp was produced in accordance with | ||
Subtitle G, Agricultural Marketing Act of 1946 (7 U.S.C. Chapter | ||
38, Subchapter VII) and the cosmetic is in conformance with this | ||
chapter and other applicable law. | ||
SECTION 7. Section 431.043, Health and Safety Code is | ||
amended to read as follows: | ||
(a) A person who is required to maintain records under this | ||
chapter or Section 519 or 520(g) of the federal Act or a person who | ||
is in charge or custody of those records shall, at the request of | ||
the department or a health authority, permit the department or | ||
health authority at all reasonable times access to and to copy and | ||
verify the records. These records include records that verify the | ||
hemp ingredients were produced in accordance with Chapter 122, | ||
Texas Agriculture Code. | ||
SECTION 8. Sections 481.002(5) and (26), Health and Safety | ||
Code, are amended to read as follows: | ||
(5) "Controlled substance" means a substance, | ||
including a drug, an adulterant, and a dilutant, listed in | ||
Schedules I through V or Penalty Group 1, 1-A, 2, 2-A, 3, or 4. The | ||
term includes the aggregate weight of any mixture, solution, or | ||
other substance containing a controlled substance. The term does | ||
not include hemp, as defined by Section 121.001, Agriculture Code, | ||
or the tetrahydrocannabinols in hemp. | ||
(26) "Marihuana" means the plant Cannabis sativa L., | ||
whether growing or not, the seeds of that plant, and every compound, | ||
manufacture, salt, derivative, mixture, or preparation of that | ||
plant or its seeds. The term does not include: | ||
(A) the resin extracted from a part of the plant | ||
or a compound, manufacture, salt, derivative, mixture, or | ||
preparation of the resin; | ||
(B) the mature stalks of the plant or fiber | ||
produced from the stalks; | ||
(C) oil or cake made from the seeds of the plant; | ||
(D) a compound, manufacture, salt, derivative, | ||
mixture, or preparation of the mature stalks, fiber, oil, or cake; | ||
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(E) the sterilized seeds of the plant that are | ||
incapable of beginning germination; or | ||
(F) hemp, as that term is defined by Section | ||
121.001, Agriculture Code. | ||
SECTION 9. (a) Not later than the 90th day after the | ||
effective date of this Act, the Department of Agriculture shall | ||
adopt rules under Section 121.003, Agriculture Code, as added by | ||
this Act, and submit for approval a state plan to the secretary of | ||
the United States Department of Agriculture as provided by Section | ||
121.004, Agriculture Code, as added by this Act. | ||
(b) The Department of Agriculture shall submit amended | ||
state plans as provided by Section 121.004(c), Agriculture Code, as | ||
added by this Act, as necessary until the plan is approved. | ||
(c) As soon as practicable after the effective date of this | ||
Act, the executive commissioner of the Health and Human Services | ||
Commission shall adopt rules necessary to implement the changes in | ||
law made by this Act. | ||
SECTION 10. The Department of Agriculture shall implement | ||
the state plan approved by the secretary of the United States | ||
Department of Agriculture not later than the 30th day after the date | ||
on which the state plan is approved. | ||
SECTION 11. This Act takes effect immediately if it | ||
receives a vote of two-thirds of all the members elected to each | ||
house, as provided by Section 39, Article III, Texas Constitution. | ||
If this Act does not receive the vote necessary for immediate | ||
effect, this Act takes effect September 1, 2019. |