On January 27, 2020, the USDA approved the Texas Department of Agriculture (“TDA”) plan to regulate hemp. Before licenses can be issued, however, the TDA must adopt rules for the regulation of hemp cultivation and manufacturing. These proposed rules were published on January 10, 2020 and are open for public comment until February 10, 2020. Comments can be directed to the TDA at This email address is being protected from spambots. You need JavaScript enabled to view it..
Here are some key provisions of the proposed rules that anyone interested in farming hemp should carefully consider.
4 TAC § 24.1 defines an acceptable THC level in hemp as having “a result of 0.3% or less. For example, if the reported delta-9 tetrahydrocannabinol content concentration level on a dry weight basis is 0.35% and the measurement of uncertainty is +/- 0.06%, the measured delta-9 tetrahydrocannabinol content concentration level on a dry weight basis for this sample ranges from 0.29% to 0.41%.”
4 TAC § 24.5 states that the initial application fee for a hemp growing license is “at least $100 for each license application.”
4 TAC § 24.6 addresses hemp sampling, collection and testing fees and states that the “fee for sampling and collection conducted by the Department shall be $300.”
4 TAC § 24.8 designates TDA as the lead agency for the “administration, implementation, and enforcement of hemp production, and authorizes the Department to adopt rules to coordinate, implement and enforce the hemp program” in Texas. To be clear, “a person who does not hold a valid [hemp production] license from the Department shall not produce, handle, or sample and collect hemp within the State of Texas.”
4 TAC § 24.8(6) prohibits any person has in the last 10 years, been convicted of a felony, under state or federal law, relating to a controlled substance from holding a license. This provision also applies to “all key participants covered by the license.” All applicants must be subjected to a criminal background check.
4 TAC § 24.14 prohibits any license holder from producing or handling any cannabis that is not hemp and hemp shall be physically segregated from other crops unless prior approval is obtained in writing from TDA.
4 TAC § 24.19 mandates that “all persons who intend to process non-consumable hemp products shall register with Department.”
4 TAC § 24.20 provides that TDA, the DEA, DPS and local law enforcement agencies shall be “provided with complete and unrestricted access to all hemp plants … and all facilities used for the production and storage of all hemp in all locations where hemp is produced or handled.”
4 TAC § 24.21 states that 15 days before a hemp crop can be harvested, the license holder must submit a sample test request form to TDA.
4 TAC § 24.23 notes that “a license holder shall not harvest a cannabis crop prior to samples being collected.”
4 TAC § 24.28 provides that the approved State laboratory “shall send the test results electronically to the Department and the license holder no later than the 14thbusiness day from the sample collection date.” If any tested sample comes back with at least a 95% confidence level that the THC level exceeds the hemp THC limit, then the lab shall promptly notify the producer and the Department of the failed test result. A retest may be requested of the original sample, but the results of the retest are final. If the sample fails to pass testing, then the entire lot of hemp associated with that test sample must be destroyed.
4 TAC § 24.30 mandates that a license holder submit a disposal report to the Department no later than 7 days after the license holder receives a final test result that exceeds the hemp THC level. Non-compliant plants from that lot may not be handled, processed, or enter into the stream of commerce and must be disposed of in strict compliance with the federal Controlled Substances Act and DEA regulations. Within 5 days of receiving notice of disposal from the Department, the license holder shall pay all costs and fees required for the destruction of the non-compliant plants and surrender the plants to a DEA regulated disposal site. License holder must keep detailed records of all disposed of plants.
4 TAC § 24.32 creates a complaint procedure in which the public can report any license holder who is suspected of being in violation of these rules.
4 TAC § 24.33 provides that any licensed hemp producer is subject to non-criminal enforcement action for any act that is proven to amount to negligent production of non-compliant hemp in excess of the THC level. Notice of a violation requires the license holder to submit to a “corrective action plan.” Failure to follow through on a two-year corrective action plan can result in revocation of a license.
4 TAC § 24.34 provides possible referral to law enforcement of any licensed producer who violates these rules with a “culpable mental state greater than negligence.”
4 TAC § 24.35 states that the Department “may issue a notice of suspension to a license holder if the Department or its representative receives credible evidence establishing that a license holder has: 1) engaged in conduct, being either an act or omission, violating a provision of this chapter; or (2) failed to comply with a written order from the Department related to negligence as defined in this chapter.”
4 TAC § 24.36 mandates that the Department shall “immediately revoke” the license of a person who “pleads guilty to, or is convicted of, any felony related to a controlled substance under Texas law, federal law or the law of any other state” or “made a false statement or provided false information or documentation to the Department … with a culpable mental state greater than negligence.”
4 TAC § 24.39 requires that a department issued manifest must accompany any transport of hemp outside a facility where hemp is produced and that manifest “shall accompany all samples collected and transported to laboratory testing.” It is also important to note that unless prior approval is granted, hemp plant materials may not be transported along with any other cargo that is not hemp material.
4 TAC § 24.44 requires that “a person may not sell, offer for sale, distribute or use hemp seeds in the State of Texas unless the seed is certified or approved by the Department.”
