TESTING SUMMARY
| Effective date: | 7/14/2020 |
| Sampling time frame: | 15 days |
| DEA lab registration required?: | Yes |
| Total THC (delta-9 THC + THCa): | Yes |
| Sampling protocol: | [link] |
| Sampling agent? (State/3rd Party) | State |
Below is the Montana Hemp Plan that was approved by the USDA. To review the official document, click [here].
Montana Hemp Plan
Montana law requires the Montana Department of Agriculture (hereafter Department) to license hemp growers in the state and provides broad rulemaking authority to create a functional hemp regulatory plan. The Department believes its current plan meets requirements set forth in the 2018 Farm Bill and seeks approval from the United States Department of Agriculture (USDA). Farm Bill requirements are numbered below with the Department’s response following each.
1. How will the Department show a practice to maintain relevant information regarding land on which hemp is produced in the State or territory of the Indian tribe, including a legal description of the land, for a period of not less than 3 calendar years?
- (Department Response) Montana Law (Attachment A) requires a license to grow hemp. Our Hemp License Application form, for both the two years (2018 and 2019) of the pilot program and moving forward with the USDA program, requires the legal description of the land or the longitude and latitude from which the legal description can be obtained. We have updated our forms to be consistent with the proposed USDA forms. The current form is Attachment F. We maintain all governmental records for a minimum of three years and a minimum of 7 years for information such as this.
2. Does the Department have a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe?
- (Department Response) Montana has an Analytical Chemistry Lab which has applied for DEA approved status and expects to obtain it soon (Attachment G). The plan performs two tests:
- Determination of Delta-9-Tetrahydrocannabinol (Δ9-THC) and Delta-9- Tetrahydrocannabinolic Acid (Δ9-THCA) in Hemp Using Liquid Chromatography-Electrospray/Mass Spectrometry;
- Determination of Total Moisture in Forages using a Two-Step Procedure.
3. Does the Department have a procedure for the effective disposal of plants, whether growing or not, that are produced in violation of this subtitle; and products derived from those plants?
- (Department Response) The Department has legal authority over hemp and hemp processing. See Attachment A (Laws) and Attachment B (Rules). The disposal procedure is outlined in Attachment E.
4. Does the Department have a procedure to comply with the enforcement procedures under the 2018 amendments to the Agricultural Marketing Act of 1946 Section 297A subsection (e)?
- (Department Response) We are adopting procedures to mirror by reference the Farm Bill enforcement actions by rule (Attachment B). The Department has the ability by state law to adopt additional rules as needed or required by the USDA. All enforcement actions will be conducted with proper due process as guaranteed by Montana law. The Agricultural Marketing Act of 1946 Section 297A subsection (e) is adopted by reference. The Department plans to utilize the DEA procedures and policies including “DEA Internal Directive Regarding the Presence of Cannabinoids in Products and Materials Made from the Cannabis Plant (May 22, 2018)” when taking compliance actions.
5. Does the Department have 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 the limits on THC found in the Farm Bill?
- (Department Response) The Department adopted rules (Attachment B, Attachment C) that include sampling and inspection procedures. Random compliance checks on paperwork and procedures are planned annually for a random number of growers. The schedule for this is 20 percent per year. Our proposed sampling protocol is found in Attachment H and our inspection schedule is found in Attachment I.
6. Does the Department have a procedure for submitting the information described in the Agricultural Marketing Act of 1946 Section 297C(d)(2), as applicable, to the Secretary not more than 30 days after the date on which the information is received?
- (Department Response) The Department already collects required information as part of its state hemp program and will share information based on the schedule specified by the USDA including on a monthly and yearly basis as indicated. See Attachment C.
7. Can the Department certify that the State or Indian tribe has the resources and personnel to carry out the practices and procedures described in 1 through 6 above?
- (Department Response) The Department has proven its capability to do so over the course of the last three years while operating its hemp pilot program. Montana laws and rules allow us to raise fees as needed to pay for costs incurred. Attachment B includes the Department’s rules that include fees for additional work required by the 2018 farm bill. The Department plans to have two full-time employees in the program and utilize additional staff during the pre-harvest season sampling. The Department certifies that it can, has, and will continue to perform all the duties outlined herein and required in the 2018 Farm bill.
8. Has the Department included any other practice or procedure established by a State or Indian tribe, as applicable, to the extent that the practice or procedure is consistent with this subtitle?
- (Department Response) The Department has included all portions of its current program in the attachments that follow. The Department views failure to obtain a required license as an intentional violation and not a negligence violation.
9. Who are the Department’s contacts for this program?
- Andy Gray
Hemp Program Coordinator (406) 444-0512
AnGray@mt.gov
- Cort Jensen
Chief Attorney
(406) 444-5402
cojensen@mt.gov
Montana Department of Agriculture
302 North Roberts
Helena, MT 59601
Attachment A – Montana Law
Hemp Laws of Montana (MCA)
80-18-101 Definitions
80-18-102 Hemp authorized as agricultural crop 80-18-103 Hemp — licensing
80-18-104 and 80-18-105 reserved
80-18-106 Hemp production — notification requirements 80-18-107 Rulemaking authority
80-18-108 and 80-18-109 reserved 80-18-110 Disposition of fees
80-18-111 Affirmative defense for possession or cultivation of marijuana
80-18-101. Definitions.
As used in this part, the following definitions apply:
- “Hemp” means all parts and varieties of the plant Cannabis sativa L. containing no greater than 0.3% tetrahydrocannabinol.
- “Marijuana” means all plant material from the genus Cannabis containing tetrahydrocannabinol (THC) or seeds of the genus capable of germination.
80-18-102. Hemp authorized as agricultural crop.
Hemp that has no more than 0.3% tetrahydrocannabinol is considered an agricultural crop in this state. Upon meeting the requirements of 80-18-103, an individual in this state may plant, grow, harvest, possess, process, sell, or buy hemp if the hemp does not contain more than 0.3% tetrahydrocannabinol.
80-18-103. Hemp — licensing.
(1) An individual growing hemp for commercial purposes shall apply to the department for a license on a form prescribed by the department.
- The application for a license must include the name and address of the applicant and the legal description of the land area to be used for the production of hemp.
- The licensing requirements of this part do not apply to employees of the agricultural experiment station or the Montana state university-Bozeman extension service involved in research and extension-related activities.
80-18-106. Hemp production — notification requirements.
(1) Each licensee shall file with the department:
- documentation showing that the seeds planted are of a type and variety certified to have no more than 0.3% tetrahydrocannabinol; and
- (b) a copy of any contract to grow hemp.
(2) Each licensee shall notify the department of the sale or distribution of any hemp grown by the licensee, including the name and address of the person receiving the hemp.
80-18-107. Rulemaking authority.
The department shall adopt rules that include but are not limited to:
- (1) testing of the hemp during growth to determine tetrahydrocannabinol levels;
- (2) supervision of the hemp during its growth and harvest;
- assessment of a fee that is commensurate with the costs of the department’s activities in licensing, testing, and supervising hemp production; and
- any other rules and procedures necessary to carry out this part.
80-18-110. Disposition of fees.
All fees assessed as provided in 80-18-107 must be deposited with the state treasurer to the credit of the state special revenue fund for the use of the department for administering and enforcing this part.
80-18-111. Affirmative defense for possession or cultivation of marijuana.
(1) It is an affirmative defense to a prosecution for the possession or cultivation of marijuana under 45-9- 102, 45-9-103, and 45-9-110 that:
- (a) the defendant was growing hemp pursuant to this part;
- the defendant had valid applicable controlled substances registrations from the United States department of justice, drug enforcement administration; and
- the defendant fully complied with all of the conditions of the controlled substances registration.
- This section is not an affirmative defense to a charge of criminal sale or distribution of marijuana.
Attachment B – Current Hemp Rules of Montana
| Subchapter 1 Hemp Definitions and License Applications | |||
| 4.19.101 | DEFINITIONS | | 8/24/2019 |
| 4.19.102 | APPLICATION FOR MONTANA STATE HEMP PROGRAM LICENSE | | 5/11/2019 |
| 4.19.103 | MONTANA STATE HEMP PROGRAM | | 5/11/2019 |
| 4.19.104 | FEES | | 5/11/2019 |
| 4.19.105 | LAB TESTING FEES | | 5/11/2019 |
| 4.19.1e06 | PENALTIES OR REVOCATIONS | | 5/11/2019 |
| 4.19.107 | HEMP VARIETY | | 5/11/2019 |
| 4.19.108 | HEMP VARIETY CATEGORIES | | 5/11/2019 |
| 4.19.109 | PROHIBITION ON GROWING BOTH HEMP AND MEDICAL MARIJUANA | | 5/11/2019 |
| 4.19.110 | HEMP SAMPLING | | 5/11/2019 |
| Subchapter 2 Hemp Processing Definitions and License Applications | |||
| 4.19.201 | HEMP PROCESSING LICENSE AND FEE | | 8/24/2019 |
| 4.19.202 | HEMP PROCESSING FOR A COMMODITY DEALER | | 8/24/2019 |
Attachment C – USDA Compliance Policy
The Montana Department of Agriculture will utilize the following internal policies and procedures when emulating the USDA approved state hemp plan. The Department would like to state that this in no way waives or abridges the sovereignty of the State of Montana. The USDA is limited in what it can require of states by the language of the 2018 Farm Bill and the US Constitution.
These implementations are provided in the spirit of cooperation, with consistency between levels of government, and to create straightforward compliance for our farmers. The Department asks for the USDA’s careful consideration before imposing additional requirements not included in the Farm Bill. Our ability to work with the USDA and the FDA is codified in our hemp rules at ARM 4.19.103(b).
A. Reporting to the USDA, AMS, and FSA
- The Department will comply with USDA reporting requirements and will provide (“real-time”) data on hemp licensees and compliance actions utilizing the fields and formats requested by the USDA. The Department respectfully asks that the USDA consider revising the required field to include only those needed as opposed to those desired (such as emails).
- Reports will include any changes to the status of producers and the implementation of a license number consistent with the USDA format.
- The Department will work with growers and the AMS and FSA to create formats that allow for ease of data sharing and consistent labeling to allow for ease of use of federal and state programs.
- Materially false statements on required forms is prohibited by Montana law and is grounds for denying an applicant participation in the Montana State Hemp Program and may also trigger action from law enforcement.
B. Sampling/Testing Additions
- The producer or their representative will be present at the growing site for sampling unless a compelling and documented reason is provided by the grower and the Department consents.
- The Department will have access to samples and inspect any and all cannabis in the hemp program or claimed as hemp by a grower. This is not meant to create or imply jurisdiction or responsibility over medical marijuana.\
- The Department’s sampling procedure is pre-harvest sampling.
- Montana’s Analytical Chemistry Lab is in the process of attaining its DEA license and expects to receive it before the 2020 testing season.
- The Department will utilize the Measurement of Uncertainty in a manner consistent with the USDA. The Department urges the USDA show similar flexibility and practicality in sampling variations and procedures.
C. How to Handle a “Hot” Hemp Violation
- The Department will work with the USDA, DEA, and local law enforcement to ensure that non-compliant hemp is prohibited from entering the stream of commerce or being replanted. This will be accomplished consistently with the “DEA Internal Directive Regarding the Presence of Cannabinoids in Products and Materials Made from the Cannabis Plant” (May 22, 2018), focus on rendering plants unable to replant, and isolate and destroy THC consistent with DEA policies when feasible.
This will also allow for some portions of the crop to be utilized if rendered DEA complaint. A negligent violation would apply as well. The Department’s forms and procedures for doing so are found in Attachment E and Attachment F.
- Procedures for all violations are consistent with the 2018 Farm Bill and incorporate the federal law, including timeframes and corrective action plans, into the Montana Hemp Rule in ARM 4.19.106.
D. Compliance Inspections
The Department incorporated a five-year random rotation of compliance inspections into its Inspection Schedule (Attachment I).
E. Montana Procedures not listed in the Federal Plan but consistent with it
- Montana views failure to obtain a hemp license as an intentional violation (instead of negligent) of the act and does not provide any protection in that case should law enforcement view this as criminal action.
Attachment D – Proposed Rule Changes
The rule changes listed below are in a draft format and have not yet been proposed. New matter is underlined and deleted matter is interlined in ARM 4.19.104.
4.19.104 FEES (1) The fee for a Montana State Hemp License is $450.
(2) The planting fee is $400 per Montana State Hemp License plus:
(a) an additional $250 for Category C seed varieties for all tests required by the USDA IFR or rule.
Reason: In order to comply with the U.S. Domestic Hemp Production Program, set forth by USDA, all crops must be tested. Fees were previously based on the Department’s risk-based Hemp Variety Categories (see ARM 4.19.108) which required 100% testing of category C variety crops only. Testing fees listed in 4.19.104(2)(a) apply to all tests submitted for inspection and are necessary to operate the Montana State Hemp Program.
NEW RULE I FSA REPORTING COMPLIANCE (1) All producers must register their land use with the FSA in order to participate in the Montana Hemp Program.
Reason: The U.S. Domestic Hemp Production Program requires producers to submit information to the USDA’s Farm Service Agency. The Montana Department of Agriculture must require reporting in order for its hemp program to be federally compliant.
Attachment E – Disposal Protocol
Throughout this protocol the term “owner” is defined as the grower of the hemp crop, or the owner of hemp product, under the jurisdiction of the Montana Department of Agriculture.
- If the hemp tests positive for a prohibited amount of THC during sampling, in an inspection, or by self-disclosure of a grower, the Department may notice the owner and either retest the second half of a sample or take a second sample for testing.
- The owner will receive notice of the non-compliant crop and be issued a stop movement order (other than harvest) and the right to appeal (formally or informally) under the Montana Administrative Procedures Act.
- The Department will work with the owner to create a plan of action to either destroy the non-compliant hemp or render it compliant.
- The USDA will also receive notice of the non-compliant hemp and be asked if a remediation plan will be allowed (See 6) or whether destruction will be required.
- If destruction is required by the USDA, the Department will work with the owner to find a methodology to safely destroy the hemp consistent with state law and any safety concerns present. This may result in the crop being harvested prior to destruction. The owner is responsible for all costs of the destruction. The USDA will then be informed of how and when the hemp was destroyed.
- If the USDA allows a remediation plan to dilute or eliminate the THC present, the Department will require the owner to sign a consent order and will retest the hemp post- remediation to assure compliance. The order and retest will be sent to the USDA.
- The owner may be subject to additional regulatory scrutiny (including more frequent testing) during the five years post positive test by the Department or the USDA.
Attachment F – Current Forms
Links are provided to the location of application, reporting, compliance and destruction forms to ensure our USDA counterparts can access current versions of documents. Inspection and sampling forms are included in Attachment H.
Application and Licensing Forms:
MT Hemp License Application, Stage 1, 2020 MT Hemp Planting Report, Stage 2, 2020 MT Planting License Certificate
MT Production License Certificate
Compliance documents:
MT Hemp Sample Test Results Report
MT Hemp Sample Results Informational letter MT Hemp Sample Results Affidavit letter
MT Hemp Sample Results Affidavit
MT Hemp Sample Results Corrective Action Plan letter MT Hemp Sample Results Destruction letter
MT Hemp Sample Results Destruction form MT Mitigation Guidance Document
Reporting documents:
MT 2019 Annual Hemp Harvest Report
Attachment G – Analytical Lab
The Department utilizes the Montana State University Analytical Lab located in Bozeman, MT and calculates Total Delta9-THC on a dry weight basis (%Total delta9-THC = % Delta9-THC + (%Delta9-THCA x 0.8772). The 2018 Farm Bill requires testing methodology that utilizes post decarboxylation, which includes THCA.
Contact information and qualifications are provided below. The lab has provided regulatory work for our internal use for decades and has completed contract work for both the federal government and other states. The Analytical Lab’s DEA license was applied for in November 2019 and this attachment will be updated once it is received.
Jona Verreth
Laboratory Bureau Chief
Phone : (406) 994-6408
E-mail : JVerreth@mt.gov
McCall Hall
Montana State University
PO Box 173620
Bozeman, MT 59717-3620
ISO/IEC 17025
The laboratory is accredited to ISO/IEC 17025 for the specific tests listed on A2LA Certificate Number 2694.01
Certification
The laboratory is certified in forage analysis by NFTA.
Proficiency Testing
The laboratory participates in the following proficiency testing programs every year:
§ National Forage Testing Association (NFTA)
§ Association of American Feed Control Officials (AAFCO)
§ Magruder (Fertilizer)
§ EPA pesticide residues in soil and plant tissue
Attachment H – Sampling Protocols
The Department will post its current sampling protocols on its website to stay current with the requirements of the USDA, DEA, and the Industry. The sampling protocol provided is the most current version, as of January 1, 2020. The Department has proposed its guidance document for sampling and testing of hemp which outlines the internal procedures the Department will use to guide sampling and testing protocol. These procedures are in draft form and are subject to change at the discretion of the Department. Licensed hemp growers are encouraged to review this document in preparation of having their crop sampled and for guidelines on self-testing.
Procedure Guidance for Sample Collection, Sample Prep and Delivery: includes all inspection and sampling forms
Attchment I – Inspection/Sampling Schedule
- The Department will always prioritize inspections by complaints of non-compliance.
- The Department will strive to minimize the number of inspections needed to avoid unnecessary expense or burden on farmers.
- To the extent required by the USDA, the Department will inspect 100% of all fields.
- The Department will collect paperwork and conduct procedure inspections on 20% of growers each year to ensure compliance and the growers’ understanding of program requirements.