|Effective date:||January 27, 2020|
|Sampling time frame:||15 days|
|DEA lab registration required?:||Yes|
|Total THC (delta-9 THC + THCa):||Yes|
|Sampling agent? (State/3rd Party)||USDA approved samplers|
Below is the Nebraska Hemp Plan that was approved by the USDA. To review the official document, click [here].
NEBRASKA STATE HEMP PLAN
Pursuant to the Nebraska Hemp Farming Act (Act) Neb. Rey. Stat. §§2-501 to 2-519, the Department of Agriculture (NDA) is responsible for the administration and enforcement of the Act. The Act is attached in Appendix 1.
- The Act establishes the Nebraska Legislature’s intent that NDA be granted primary regulatory authority over the production of hemp in Nebraska. This State Plan is intended to provide for the monitoring and regulation of such hemp production;The Act establishes the Nebraska Legislature’s intent that NDA be granted primary regulatory authority over the production of hemp in Nebraska. This State Plan is intended to provide for the monitoring and regulation of such hemp production;
- NDA will comply with all requirements for state pians in 7 CFR Part 990;
- NDA is in the process of adopting regulations to further clarify the requirements of the Nebraska State Hemp Plan. The Nebraska Administrative Procedure Act, Neb. Rev. Stat. §84-901 et seq., governs the procedure for promulgation of such regulations, including review and public notice and opportunity for comment. Any aspects of this plan that have not yet been promulgated in statute or regulation are subject to the procedures required for adoption of such statutes or regulations;
- NDA will use the following license number scheme when assigning license or authorization numbers so that the number will be 31_0001, 31^0002, 31J3003, and so forth;
- All information required for states to submit to the United States Department of Agriculture (USDA) will be emaiied to USDA no later than thirty (30) days after the date NDA receives the information.
I. NDA will maintain relevant producer and land information
- The Act provides in §2-505(2) that all applicants for hemp cultivation licenses must provide NDA with the following information:
(a) The applicant’s full name, birthdate, mailing address, telephone number, and valid email address. If the applicant is an entity and not an individual, the name of the applicant, mailing address, telephone number, and valid email address, the full name of each officer, director, partner, member, or owner owning in excess of ten percent of equity or stock in such entity, and the birthdate, title, mailing address, telephone number, and valid email address of each such person. State law requires that individuals applying for any license must be a United States Citizen or be a qualified alien. NDA will use the e-verify system for all non-citizen individuals requesting licenses. NDA will also require the EIN number of the business entity;
(b) The proposed acreage to be cultivated or the square footage of a greenhouse or other indoor space to be cultivated;
(c) The street address, legal description, location ID, and GPS coordinates for each field, greenhouse, building, or other site where hemp will be cultivated. The site information may be verified by the NDA; and
(d) Maps depicting each site where hemp will be cultivated, with appropriate indications for entrances, field boundaries, and specific locations corresponding to the GPS coordinates provided under subdivision;
- NDA will maintain the information listed in Paragraph 1, above along with information for other key participants as defined in 7 CFR 990.1, by creating an Excel spreadsheet and saving associated documentation in Hyland Software’s information platform OnBase, for a period of at least five (5) years and will keep all information updated;
- NDA will require licensed cultivators to report their hemp crop acreage to the USDA Farm Service Agency (FSA) and to report to FSA their state license number. Licensed cultivators will also be required to report their FSA lot numbers to NDA within ten (10)
days of receiving a lot number;
- NDA will provide to USDA contact information and all license and authorization numbers for each licensed cultivator by filling out the USDA State and Tribal Producer Report attached in Appendix 2 and emailing it to USDA the first of every month. If the first falls on a holiday or weekend, the reports will be emailed on the next business day;
- License holders are required by the Act to inform NDA of any changes in al! information required by NDA;
- NDA will update USDA regarding contact information and license and authorization numbers once a month by filling out the USDA State and Tribal Producer Report for new producers and changes to existing producer information and emailing it to USDA at the first of every month. If the first falls on a holiday or weekend, the reports will be emailed on the next business day;
- The Act requires in §2-510(1) that to obtain a license, the applicant must consent to a background check for any felony controlled substance conviction in the ten years prior to the time of application for all of the individuals listed on the application. NDA will require
all applicants to submit a criminal history report for each individual listed on the appiication which covers state and federal_feiony drug convictions for the preceding ten (10) years.
II. NDA will provide for accurate and effective sampling and testing
- Based on NDA’s interpretation of the Act, NDA will follow USDA’s sampling protocol described in the Sampling Guidelines attached in Appendix 3 when collecting samples from each lot;
- NDA will sample or require USDA approved samplers to sample within 15 days prior to the harvest date;
- NDA will use a method for sampling that will result in at least a confidence level of 95% that no more than one percent (1%) of the plants in the lot would exceed the acceptable hemp THC level and wiil represent a homogenous composition of the lot by following USDA’s sampling protocol described in the Sampling Guidelines attached in Appendix 3 except that NDA may require more plants in each sample;
- NDA will require the license holder or authorized representative to be present during the sample collection at the growing site;
- The Act provides in §2-514(2) that NDA may, at its discretion, conduct sampling and testing of any hemp from any licensee at any time and to obtain a license, the applicant must consent to NDA entry onto all registered sites, with or without cause, and with reasonable advance notice;
- The Act in §2-503(11) defines hemp as the plant Cannabis sativa L. and any part of such plant, including the viable seeds of such 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% on a dry weight basis;
- For the purpose of determining compliance with the requirements of the Act and the Nebraska State Hemp Plan, NDA will deem hemp to have an acceptable THC level if, the test results indicate 0.3% THC or less is within the distribution or range of the measurement of uncertainty;
- The Act requires in §2-514(1) that hemp from each cultivation site registered with NDA shall be tested for total potential delta-9 tetrahydrocannabinol concentration prior to harvest by an approved testing facility at the license holder’s expense. To meet the Act’s definition of hemp, the testing must be done on a dry weight basis;
- NDA will inform all licensed cultivators that if they harvest before samples are taken or before results confirm the cannabis is hemp, they will be in violation of the Act and will be subject to enforcement actions;
- The Act provides in §2-514(4) that testing of hemp prior to harvest shall be conducted using post-decarboxylation or other similarly reliable methods for the testing of delta-9 tetrahydrocannabinol concentration. NDA plans to approve only laboratories meeting AOAC International standard method performance requirements for selecting an appropriate method. At a minimum, the testing methodology must consider the potential conversion of delta-9 tetrahydrocannabinolic acid (THCA) in hemp into delta-9 tetrahydrocannabinol (THC) and the test result must reflect the total available THC derived from the sum of the THC and THC-A content. Testing methodologies meeting these requirements include, but are not limited to, gas chromatography and highperformance liquid chromatography;
- The Act provides in §2-514(5) that testing of hemp shail be conducted by a testing facility approved by NDA. NDA plans to require testing facilities to comply with the Testing Guidelines attached in Appendix 4 except that NDA plans to require ISO 17025 accreditation.
- NDA will only approve a United States Drug Enforcement Administration (DEA) registered testing facility. NDA plans to also require the testing facility to have ISO 17025 accreditation. NDA will require the approved testing facilities to list on each analysis report the measurement of uncertainty;
- The Act provides in 2-514(10) that the testing facilities shall provide a report giving the results of the potency analysis of each sample. For tests directed by NDA, the report is required to be provided to the licensed cultivator and a copy of the report shall be issued to NDA. The report is required to be provided before the harvest date;
- NDA will require testing faciiities to report results to USDA in accordance with 7 CFR 990 and to use the Laboratory Test Results Report attached in Appendix 5. NDA will require that the testing facilities additionally send this report to NDA with proof that it was sent to USDA;
- The Act requires in §2-514(11) that when a test result is adverse, NDA may require a licensed cultivator to have further tests done and may require destruction of any plants in any portions of the site containing noncompliant plants;
- The Act requires in §2-510(1) that to obtain a license, the applicant must consent to destruction of hemp if the hemp is found to not be in compliance with the Act.
- NDA will require that all noncompliant hemp in the possession of a license holder, or on a registered site, be destroyed and disposed of in accordance with the Controlled Substances Act (CSA) and the DEA regulations. NDA will require that 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;
- Section 2-515(1) of the Act requires that licensed cultivators transporting hemp cultivated under the Act shall carry with the hemp being transported a copy of their licensed cultivator license and a copy of the test results pertaining to such hemp;
- NDA will allow sampling of hemp based on the lots established between the licensed cultivator and FSA so long as the lot only contains one variety of hemp. NDA will use for regulatory purposes the lot number the licensed cuttivator has received from FSA. If a final test result for a lot is above the acceptable hemp THC level, NDA plans to require that the whole lot be destroyed;
- NDA will not allow licensed cultivators to commingle !ots until all lots to be commingled have been sampled, tested and have test results showing an acceptable delta-9 THC level.
III. Plan for disposal procedures
- NDA will require license holders to dispose of cannabis that is not compliant with the Act or USDA requirements;
- NDA will require licensed cultivators to:
(a) Use the assigned FSA lot number for each lot of a single variety in a field.
(b) Keep records of all transfers of harvested hemp crops to a processor or out-of-state recipient. The records shall be kept by the lot number and shall include:
(i) Dates of harvest and transfer;
(ii) Name and address of any processor or other recipients;
(iii) Estimate of the amount of hemp transferred on a dry weight basis;
(iv) Records of sampling in conformance with sampling protocols,
(v) A certificate of analysis for each lot identified; and
(vi) A description of any lot that was disposed of for being non-compliant.
(c) NOA will require a licensed cultivator who distributes live hemp plants to keep records of all transfers of live hemp plants to another licensed cultivator or out-of state recipient. The records shall be kept by FSA lot number and shall include:
(i) Dates of transfer;
(ii) Name and address of the other licensed cultivator or other recipient; and
(iii) Number of hemp plants transferred.
(d) NOA will require licensed cultivators to send the disposal records listing the lot number to NOA within ten (10) days and to keep the required records for a minimum of three (3) years from harvest date by lot number;
- NDA will require that license holders with cannabis which tested above the acceptable delta-9 THC level must dispose of such cannabis in accordance with the CSA and the DEA regulations found at 21 CFR 1317.15. NDA plans to require that 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;
- NDA wiikequire State and Tribal Hemp Disposal Report attached in Appendix 6 must be used to document the disposal process of cannabis which was found to be above the acceptable delta-9 THC level;
- NDA will send USDA State and Tribal Hemp Disposal Report including test results by email every first of the month and include in the information received from the licensed cultivator. If the first falls on a holiday or weekend, the reports will be emaiied on the next business day. NDA will file the Report even on months that no disposals have occurred in Nebraska,
IV. Plan for inspection procedures
- The Act provides in §2-504 NDA the authority to adopt regulations on procedures for conducting, at a minimum, annua! inspections of a random sample of hemp licensed cultivators and processor-handlers to verify that hemp is not cultivated, processed, or handled in violation of the Act or the state plan as we!! as, at its discretion, conduct other inspections of a licensed cultivator’s or processor-handler’s operation, including all sites registered with NDA;
- The Act provides in §2-510 that to obtain a license, the applicant must consent to NOA inspections to verify that hemp is not cultivated, processed, or handled in violation of the Act;
- NOA will require sampling of every registered cultivation site by FSA lot number prior to harvest. If there are no other USDA approved samplers in Nebraska which are unbiased and meet NOA standards for chain of custody, reliability and responsibility, NOA will only use NOA staff or temporary staff which meet the requirements for USDA approved samplers. If there are other USDA approved samplers in Nebraska available to conduct the regulatory sampling required pre-harvest, NOA may use such samplers for at least some of the required sampling;
- NOA will perform random annual inspections of up to twenty-five (25) percent of the license holders selected as a part of an impartial sample to determine adherence to requirements. The inspections will include a review of records and documentation, and may include site visits to farms, fields, greenhouses, storage facilities, or other locations affiliated with the licensed cultivator’s hemp operation. The inspections will include the current crop year, as well as any previous crop year(s). If NOA determines under an inspection that the producer is not compliant, NOA will require a corrective action plan or take other enforcement action as required by the Act and the Nebraska State Hemp Plan. The licensed cultivator’s implementation of a corrective action plan will be reviewed by NOA during a future inspection;
- NOA will inspect during the growing season any licensed cultivator NOA has a reason to believe may be in violation of the Act, including but not limited to licensed cultivators under a corrective action plan.
V. Plan for collection of information
- Pursuant to the Act in §2-505(8) an application and supporting documents submitted to NOA are not public records but such information may be submitted to the United States Department of Agriculture pursuant to the requirements of section 10113 of the federal Agriculture Improvement Act of 2018, Public Law 115-334, or any other federal statute, rule, or regulation, and may be submitted to law enforcement;
- NOA will submit by email to USDA the State and Tribal Hemp Producer Report and the State and Tribal Disposal Report the first of every month, or the first business day thereafter, all information NOA has on such date.
- NOA will inform licensed cultivators they are required to comply with USDA requirements for providing information to FSA including:
(a) The hemp crop acreage or acreage of greenhouse or indoor square footage dedicated to the production of hemp;
(b) A report of total acreage of hemp planted, harvested, and disposed;
(c) Their license or authorization numbers;
(d) All street addresses and geospatial location(s) of each lot or greenhouse where hemp will be produced. If the licensed cultivator operates in more than one location, such information will be required to be provided for all production sites;
- NOA will submit, by email the State and Tribal Hemp Annual Report attached in Appendix 7 to USDA by December 15 of 2020, and each year thereafter. NOA will include in the report the total planted acreage, total acreage disposed and the total harvested acreage for Nebraska.
VI. Plan to comply with enforcement procedures
- The Act provides in §2-511(1) that upon a determination by NOA that any person in the state has unintentionally violated the Act, the state plan, any rules and regulations under the act, a corrective action plan, or an order NOA, NOA may issue a cease and desist order and a corrective action plan;
- After the passage of a legislative bill amending the Act in the 2020 legislative session of the Nebraska Legislature, the Act will mirror the provisions of 7 CFR Part 990 regarding negligent violations. Under the current Act, NOA will deem unintentional violations to include:
(a) Failure to provide legal description of land;
(b) Failure to obtain a license;
(c) Production of cannabis with THC exceeding the acceptable hemp THC level which does not rise to the level of an intentional violation of the Act;
- The Act provides in §2-511(4) that a corrective action plan may include:
(a) A reasonable date by which the license holder shall correct the unintentional violation;
(b) A requirement that the license holder shall periodically report to the NOA on the compliance of the license holder with the corrective action plan for a period of not less than the next two calendar years;
(c) An administrative fine of up to five hundred dollars per day; and
(d) A temporary suspension of a license;
- NOA will include in all corrective action plans:
(a) A reasonable date to correct the violation and reporting requirements for 2 years from date of the negligent violation;
(b) Provisions that any person that commits a negligent violation 3 times within a 5-year period is ineligible to produce hemp for a period of 5 years from the date of the 3rd violation;
(c) NOA shall conduct inspections to determine if corrective action plan has been implemented; and
(d) Violations are not subject to other federal, state, tribal, or local government criminal enforcement action;
- The Act provides in §2-511(3) that any person who unintentionally violates the Act, the state plan, any regulations under the Act, a corrective action plan, or an order of NOA three times in a five-year period shall be ineligible to obtain a license to cultivate, handle, process, or broker hemp for a period of five years beginning on the date of the third violation;
- The Act provides in §2-511(2) that any person who commits a violation under that section of the Act shall not be subject to any additional criminal enforcement by state or local government authorities other than authorized under this section of the Act;
- The Act provides in §2-512(1) that upon a determination by NOA that any person in the state has intentionally violated the Act, the state plan, any regulations under the Act, or an order of NOA, NOA shall notify the United States Attorney General; the Nebraska Attorney General; and the county attorney for the county in which the violation occurred. When NOA determines a violation was committed with a culpable mental state greater than negligence, NOA will immediately report the violations to the US Attorney General, USDA, and the NE Attorney General;
- The Act provides in §2-512(2) that any person who intentionally violates the Act, the state plan, any regulations under the Act, a corrective action plan issued pursuant to this section, or an order of NOA three times in a five-year period shall be ineligible to obtain a license to cultivate, handle, process, or broker hemp for a period of ten years beginning on the date of the third violation;
- The Act provides in §2-507(1) that applications shall be denied if any individual listed in the application for a license has been convicted of a felony related to a controlled substance under either state or federal law within the preceding ten years. Section 2- 505(2) of the Act provides that a business entity must list on the application anyone holding ten percent or greater interest in the business;
- The Act provides in §2-507(3) that any person who intentionally and materially falsifies any information contained in an application under the Act shall be ineligible to obtain a license to operate as a licensed cultivator, processor-handler, or broker.
VII. NOA certifies that the hemp program has resources and personnel to carry out required Farm Bill practices and procedures
- The Act establishes the Nebraska Hemp Program Fund in §2-509. The fund is administered by NOA for the purpose of covering the costs of administering the Act. The fund may receive appropriations by the Legislature, gifts, grants, federal funds, and any other funds both public and private. All fees collected by NOA under §2-508 of the Act are required to be remitted to the State Treasurer for credit to the fund;
- Pursuant to §2-508(1) of the Act the NOA’s Director may raise or lower such fees prior to July 1 of each year to meet the criteria in this subsection, but the fee shall not be greater than the amount in column B of §2-508(2);
- The Act provides in 2-508(2) establishes fees as follows:
|Licensed cultivator, processor-handler, and broker license application fee||$100||$150|
|Licensed cuitivator site registration fee||$400 per site||$600 per site|
|Processor-handier site registration fee||$800 per site||$1200 per site|
|Site modification fee||$50||$75|
4. The fees are expected to raise $236,000 on an estimated
(a) 270 cultivator Licenses; 30 processor-handler licenses and 15 broker licenses;
(b) 400 registered cultivation sites and 50 registered processor sites; and
(c) 90 site modifications.With the adoption of LB 657 of 2019 (which adopted the Act) the Nebraska Legislature adopted an appropriation bill which set the spending authority for the Nebraska Hemp Program Fund at $50,000 for fiscal year 2019-2020, and at $110,000 for fiscal year
5. 2020-2021. The appropriation bill also capped salaries and per diems at a total of $50,000 for the first fiscal year and $75,000 for the second;
6. NOA estimates for the 2020 calendar year, implementing the Nebraska State Hemp Plan will cost approximately $231,152 based on:
(a) Salaries of $169,79;
(b) Operating expenses of $25,332;
(c) Travel of $8,340; and
(d) Repayments to other NOA funds used to cover hemp program costs in 2019 of $27,692.
7. NOA has already hired staff to work on the Hemp Program:
(a) A program manager was hired on June 1, 2019, beginning as a half time position with the position becoming full time on November 18, 2019;
(b) A half time staff assistant for the hemp program was filled and then vacated but NDA plans to have it filled again by January 15, 2020;
(c) A half time inspector for the hemp program has been hired to start January 6,2020.
8. NDA will use the existing inspection and investigation staff to cover the sampling procedures set out in the Nebraska State Hemp Plan and the Act. NDA currently has four (4) inspectors who will be used for this purpose and one investigator who will be used as needed;
9. NDA will seek to ensure an appropriate level of spending authority for the hemp program, to hire an additional half time inspector for the hemp program, and to allow the hemp fund to pay for staffing costs related to the hemp program that are currently absorbed by existing staff being paid by general funds. During the 2020 legislative session NDA plans to request the Nebraska Legislature for additional spending authority to ensure the Nebraska Hemp Program Fund is used to cover the costs of administering
the hemp program.