Current through Register Vol. 50, No. 6, December 1, 2023
RELATES TO:
KRS
61.870 - 61.844, Chapter 217B,
260.850-260.869,
7
U.S.C. 1639,
7
C.F.R. Part 990
NECESSITY, FUNCTION, AND CONFORMITY:
KRS
260.862(1) authorizes the
department to promulgate administrative regulations for a Hemp Licensing
Program in the Commonwealth of Kentucky.
KRS
260.862(1)(a) authorizes the
department to license persons who wish to participate in a Hemp Licensing
Program by cultivating, handling, processing, or marketing hemp. This
administrative regulation establishes procedures and requirements for licensing
persons who wish to grow or cultivate hemp as a participant in the department's
Hemp Licensing Program.
Section 1.
Definitions.
(1) "Agent" means a person who is
employed by or working under contract for a license holder, and who does not
have any ownership interest in the hemp.
(2) "Applicant" means a person who submits an
application on his or her behalf or on behalf of a business entity to
participate in the Hemp Licensing Program.
(3) "Broker" means to engage or participate
in the marketing of hemp by acting as an intermediary or negotiator between
prospective buyers and sellers.
(4)
"Cannabis":
(a) Means the plant that,
depending on its THC concentration level, is either "hemp" or "marijuana."
Cannabis is a genus of flowering plants in the family Cannabaceae of which
Cannabis sativa is a species, and Cannabis indica and Cannabis ruderalis or
subspecies thereof. Cannabis includes all parts of the plant, whether growing
or not, including its seeds, resin, compounds, salts, derivatives, and
extracts; and
(b) Does not mean a
"publicly marketable hemp product," as defined by subsection (37) of this
section.
(5) "CBD" means
cannabidiol.
(6) "Commissioner" is
defined by
KRS
260.850(1).
(7) "Commonwealth" means the Commonwealth of
Kentucky.
(8) "Conviction":
(a) Means an adjudication or finding of
guilt, including a plea of guilty or nolo contendere; and
(b) Does not mean a conviction subsequently
overturned on appeal, pardoned, or expunged.
(9) "Corrective action plan" means a document
established by the department for a licensee to correct a negligent violation
of, or non-compliance with, KRS 260.850-260.869 or a requirement of 302 KAR
Chapter 50.
(10) "Culpable mental
state greater than negligence" means to act intentionally, knowingly,
willfully, or with criminal negligence.
(11) "Decarboxylation" means the completion
of the chemical reaction that converts the delta-9-THC-acid into delta-9-THC,
the intoxicating component of cannabis. The decarboxylated value is also
calculated using a conversion formula that sums delta-9-THC and eighty-seven
and seven-tenths (87.7) percent of delta-9-THC-acid.
(12) "delta-9-THC" means
delta-9-tetrahydrocannabinol concentration (the primary intoxicating component
of cannabis). For compliance purposes, all delta-9-THC concentrations are
measured post- decarboxylation (result commonly referred to as total
THC).
(13) "Department" or "KDA" is
defined by
KRS
260.850(3).
(14) "Geospatial location" means a location
designated through a GPS or other global system of navigational satellites used
to determine the precise ground position of a place or object.
(15) "GPS" means Global Positioning
System.
(16) "Handling" is defined
by
KRS
260.850(4).
(17) "Hemp" or "industrial hemp" is defined
by
KRS
260.850(5).
(18) "Hemp Grower License" means a document
issued by the department authorizing the person to grow, handle, market, and
store hemp in the Commonwealth under the terms established in the document,
KRS
260.850 through
260.869,
and this administrative regulation.
(19) "Hemp Processor/Handler License" means a
document issued by the department authorizing the person to process, handle,
market, and store hemp in the Commonwealth under the terms established in the
document,
KRS
260.850 through
260.869,
and 302 KAR 50:031.
(20) "Hemp
product" or "industrial hemp product" is defined by
KRS
260.850(6).
(21) "Key participant":
(a) Means a person who has a direct or
indirect financial interest in the entity producing hemp, such as an owner or a
partner in a partnership and includes an entity's chief executive officer,
chief operating officer, and chief financial officer; and
(b) Does not mean farm managers, field
managers, or shift managers.
(22) "Law enforcement agency" means the
Kentucky State Police, DEA, or other federal, state, or local law enforcement
agency or drug suppression unit.
(23) "Licensed grower" means a person
authorized in the Commonwealth by the department to grow, handle, store, and
market hemp under the terms established in a hemp grower license,
KRS
260.850 through
260.859 and this
administrative regulation.
(24)
"Licensed processor" means a person in the Commonwealth authorized by the
department to process, handle, store, and market hemp under the terms
established in a hemp processor/handler license
KRS
260.850 through
260.869,
and 302 KAR 50:031.
(25) "Location
ID" means the unique identifier established by the applicant for each unique
set of GPS coordinates where hemp will be grown, handled, stored, or processed,
which can include a field name or building name.
(26) "Lot" means a contiguous area in a
field, greenhouse, or indoor growing structure containing the same variety or
strain of hemp throughout.
(27)
"Negligence" means failure to exercise the level of care that a reasonably
prudent person would exercise in complying with an administrative regulation,
rule, or instruction.
(28)
"Nonviable seed" means a seed that has been crushed, dehulled, or otherwise
rendered to have a zero percent germination rate.
(29) "Person" means an individual or business
entity.
(30) "Pesticide" means any
substance or mixture of substances intended to:
(a) Prevent, destroy, control, repel,
attract, or mitigate any pest;
(b)
Be used as a plant regulator, defoliant, or desiccant; or
(c) Be used as a spray adjuvant, once mixed
with a U.S. Environmental Protection Agency registered product.
(31) "Post-harvest sample" means a
sample taken from the harvested hemp from a particular lot's harvest in
accordance with the procedures as established in 302 KAR 50:056. The entire
lot's harvest is in the same form (for example, intact-plant, flowers, ground
materials), homogenous, and not mixed with non-hemp materials or hemp from
another lot.
(32) "Pre-harvest
sample" means a composite, representative portion from living plants in a hemp
lot collected in accordance with the procedures as established in 302 KAR
50:056.
(33) "Prohibited variety"
means a variety or strain of cannabis excluded from the Kentucky Hemp Licensing
Program.
(34) "Processing" is
defined by
KRS
260.850(9).
(35) "Program" means the department's Hemp
Licensing Program.
(36) "Propagule"
means a plant or plant part that can be utilized to grow a new plant.
(37) "Publicly marketable hemp product" means
a hemp product that meets one (1) or more of the following descriptions:
(a) The product:
1. Does not include any living hemp plants,
viable seeds, leaf materials, floral materials, or delta-9-THC content above
zero and three-tenths (0.3) percent; and
2. Does include, without limitation, the
following products: bare stalks, bast fiber, hurd fiber, nonviable roots,
nonviable seeds, seed oils, and plant extracts (excluding products containing
delta-9-THC above zero and three-tenths (0.3) percent);
(b) The product is CBD that was derived from
"hemp", as defined by subsection (17) of this section; or
(c) The product is CBD that is approved as a
prescription medication by the United States Food and Drug
Administration.
(38)
"Secondary pre-harvest sample" means a pre-harvest sample that is taken:
(a) In a given lot after the first
pre-harvest sample is taken; and
(b) On a different day than the initial
pre-harvest sample.
(39)
"Signing authority" means an officer or agent of the organization with written
authorization to commit the legal entity to a binding agreement.
(40) "Strain" means a group of hemp with
presumed common ancestry and identified physiological distinctions. A strain
does not meet the uniformity, stability, or distinction requirements to be
considered a variety.
(41)
"University" means an accredited institution of higher learning located in the
Commonwealth.
(42) "Variety" means
a subdivision of a species that is:
(a)
Uniform, in that the variations in essential and distinctive characteristics
are describable;
(b) Stable, in
that the variety will remain unchanged in its essential and distinctive
characteristics and its uniformity if reproduced or reconstituted as required
by the different categories of varieties; and
(c) Distinct, in that the variety can be
differentiated by one (1) or more identifiable morphological, physiological,
other characteristics from all other publically known varieties, or other
characteristics from all other publicly known varieties.
(43) "Variety of concern" means any variety
of hemp that tests above 0.3000 percent delta9-THC in one (1) or more
pre-harvest samples. A hemp variety designated as a "variety of concern" could
be subject to restrictions and additional testing.
(44) "Volunteer cannabis plant" means any
cannabis plant that:
(a) Grows of its own
accord from seeds or roots in the years following an intentionally planted
cannabis crop; and
(b) Is not
intentionally planted.
Section 2. Grower License Application.
(1) Any person who wishes to grow hemp at any
location in the Commonwealth shall submit to the department a completed Hemp
Grower License Application, or annual license renewal, incorporated by
reference as part of the Hemp Grower Licensing Application Packet in
302 KAR
50:080.
(2) Existing grower license holders shall
annually complete the department's requirements for license renewal by March
15.
(3) A person who does not hold
a license from the department shall not:
(a)
Grow, cultivate, handle, or process; or
(b) Broker, store, or market hemp or other
cannabis that does not fall within the definition of a "publicly marketable
hemp product" at any location within the Commonwealth.
(4) A person under the age of eighteen (18)
years of age shall not apply for or hold a grower license.
(5) Completed Hemp Grower License
Applications shall be received by the department by the end of the application
period established in the application.
(6) Completed Hemp Grower License Application
forms shall be delivered to KDA Hemp Licensing Program, 111 Corporate Drive,
Frankfort, Kentucky 40601.
(7) The
department shall deny any Hemp Grower License Application that fails to meet
the deadline established in the application.
(8) Each applicant shall pay a grower
application fee in the amount established in
302 KAR
50:060.
(9) Application fees shall not cover or
include the cost of the criminal background checks required by
KRS
260.862(2)(d) and Section 3
of this administrative regulation. Applicants and license holders shall pay
criminal background check fees.
(10) The department shall deny any Hemp
Grower License Application that is received without the application fee
established in
302 KAR
50:060.
(11) With the Hemp Grower License Application
form, the applicant shall submit, at a minimum:
(a) If the applicant is an individual, the
individual's full name, residential address, telephone number, and email
address (if available);
(b) If the
applicant is a business entity:
1. the
entity's name, Employer Identification Number, business location address in
Kentucky, and principal business location;
2. for the individual who will have signing
authority on the entity's behalf, his or her full name, title within the
entity, business address, telephone number, and email address (if available);
and
3. for each key participant,
his or her full name, title within the entity, business address, telephone
number, and email address (if available);
(c) The proposed acreage or greenhouse or
indoor square footage to be planted;
(d) Street address, location ID, and GPS
coordinates for each field, greenhouse, building, or site where hemp will be
grown, handled, or stored;
(e) Maps
depicting each site where hemp will be grown, handled, or stored, with
appropriate designations for field boundaries, and Location IDs corresponding
to the GPS coordinates; and
(f)
Agreement to all terms and conditions established in the hemp grower
application.
(12) Any
Grower License Application that is missing required information shall be
subject to denial.
(13) The terms
and conditions established in the hemp grower application shall include for a
licensed grower, at a minimum:
(a)
Acknowledgement that licensed growers shall comply with all requirements
established in 302 KAR Chapter 50;
(b) Agreement to pay a licensing fee in the
amount established in
302 KAR
50:060;
(c) Acknowledgement that licensed growers
shall comply with instructions from representatives of the department and law
enforcement agencies;
(d) A consent
to entry onto, and inspection of, all premises where hemp or other cannabis
plants or materials are located or licensed to be located, by representatives
of the department and law enforcement agencies, with or without cause and with
or without advance notice;
(e) A
consent to forfeiture and destruction, without compensation, of:
1. Material found to have a measured
delta-9-THC content in excess of zero and three-tenths (0.3) percent on a dry
weight basis;
2. Plants located in
an area that is not licensed by the department; and
3. Plants not accounted for in required
reporting to the department;
(f) Agreement to apply for licensing of all
growing, handling, and storage locations, including GPS coordinates, and
receive department approval for those locations prior to having hemp on those
premises;
(g) Acknowledgement that
licensed growers shall:
1. Submit a Site
Modification Request, incorporated by reference in
302 KAR
50:080;
2.
Submit the appropriate fees based on the requested changes; and
3. Obtain prior written approval from a
representative of the department before implementing any change to the licensed
sites stated in the hemp grower license and an acknowledgement that growing
site changes shall be subject to a site modification surcharge in the amount
established in
302 KAR
50:060 for a new set of GPS coordinates;
(h) Acknowledgement that anyone
applying pesticides to hemp shall hold a pesticide license and apply pesticides
in accordance with Section 16 of this administrative regulation;
(i) Acknowledgement that the risk of
financial or other loss shall be borne solely by the licensed grower;
(j) Acknowledgement that licensed growers
shall comply with restrictions established by the department limiting the
movement of hemp plants and plant parts;
(k) Agreement that any time hemp is in
transit, a copy of the hemp grower license shall be available for inspection
upon the request of a representative of the department or a law enforcement
agency;
(l) Agreement that, upon
request from a representative of the department or a law enforcement agency, a
licensed grower shall immediately produce a copy of his or her hemp grower
license for inspection;
(m)
Agreement to submit Field Planting Reports and Harvest Reports incorporated by
reference in
302 KAR
50:080, and other reports required by the department
to which the grower has agreed, on or before the deadlines established in this
administrative regulation;
(n)
Agreement to scout and monitor unlicensed fields for volunteer cannabis plants
and to destroy those volunteer cannabis plants for three (3) years past the
last date of planting reported to the department;
(o) Agreement not to employ or rent land to
cultivate hemp from any person whose hemp license was terminated or who was
denied admission to the Hemp Licensing Program for:
1. Failure to obtain an acceptable criminal
background check;
2. Failure to
comply with an order from a representative of the department; or
3. Both; and
(p) Agreement to abide by all land use
restrictions for licensed growers established in Section 5 of this
administrative regulation.
Section 3. Criminal Background Check.
(1) Each licensed grower, applicant, or key
participant within an entity that is a grower or applicant, shall undergo and
pay for an annual criminal background check from the Department of Kentucky
State Police as required by
KRS
260.862(2)(d).
(2) A licensed grower, applicant, or key
participant within an entity that is a grower or applicant, shall, following
completion of the background check, ensure delivery of the report to the
department with the licensing application or renewal.
(3) The department shall not accept a report
from a criminal background check that occurred more than sixty (60) days prior
to the date of the application.
(4)
Failure to submit the background check with the application shall be grounds
for license denial.
(5)
Substitution of a signing authority shall require approval from the department
and the submission of a current criminal background check on the substitute
signing authority.
Section
4. Application for Hemp Grower License; Criteria and Procedure for
Evaluation.
(1) The department shall apply the
criteria established in paragraphs (a) through (m) of this subsection in
evaluating an application for the grower license.
(a) In accordance with Section 2 of this
administrative regulation, the applicant shall submit a complete application
with all required components and attachments.
(b) For an applicant who has been a Hemp
Licensing Program participant previously, the applicant shall comply with the
responsibility to submit:
1. Field Planting
Report and Greenhouse/Indoor Planting Report, incorporated by reference in
302 KAR
50:080;
2.
Harvest Report, incorporated by reference in
302 KAR
50:080;
3.
Any other reports deemed necessary by the department to which the applicant has
agreed.
(c) The
applicant's growing sites, handling sites, and storage sites shall be located
in the Commonwealth of Kentucky.
(d) The applicant's primary residence shall
be located in Commonwealth of Kentucky or within fifty (50) miles of at least
one (1) of the applicant's Kentucky growing sites.
(e) The applicant shall affirm that the
applicant resides at the primary residence listed on the Grower License
Application form from May 1 to September 30.
(f) The criminal background check report
indicates that, within ten (10) years from the date when the background check
was issued, the applicant shall not have:
1. A
felony conviction; or
2. A
drug-related misdemeanor conviction or violation.
(g) A person who has been convicted of any
felony or any drug-related misdemeanor or violation in the previous ten (10)
years from the date of application shall not be eligible to obtain a license.
1. A person who was growing hemp lawfully
with a license, registration, or authorization under a pilot program authorized
by Section 7606 of the Agricultural Act of 2014 (7 U.S.C.
5940) shall be eligible to obtain a
license.
2. A person who was
lawfully growing hemp before December 20, 2018 and was convicted prior to
December 20, 2018 shall be eligible to obtain a license.
(h) Including those times when the applicant
was not a participant in the department's Hemp Licensing Program, the applicant
shall have demonstrated a willingness to comply with the department's rules,
instructions from department staff, and instructions from representatives of
Kentucky State Police and other law enforcement agencies.
(i) The applicant shall not be delinquent in
making any required reports or payments to the department in connection with
the applicant's participation in the Hemp Licensing Program or other programs
within the department.
(j) The
applicant shall not have any unpaid fees, fines, or civil penalties owed to the
department.
(k) The applicant shall
not have and shall not make any false statements or representations to a
representative of the department or a law enforcement agency. Any person who
materially falsifies any information contained in an application shall be
ineligible to obtain a license from the department.
(l) The applicant's proposed growing sites
shall comply with the land use restrictions established in Section 5 of this
administrative regulation. Denial of all proposed growing sites shall
constitute grounds for denial of the application.
(m) The applicant shall not have had a hemp
license revoked within five (5) years previous to the date of this
application.
(2) The
department shall conditionally approve an application for a hemp grower license
if the application complies with this administrative regulation.
(3) The department shall notify applicants by
letter or email whether the application has been denied or conditionally
approved. A person shall not be a participant in the Hemp Licensing Program
until the applicant has received a hemp grower license from the
department.
(4) Applicants shall
pay licensing fees prior to receiving a hemp grower license.
(5) Applicants shall complete a mandatory
orientation session at a location designated by the department. The department
shall not allow any person to complete orientation in lieu of the
applicant.
(6) After the date of
issuance for a license, the applicant shall no longer be conditionally
approved. The applicant shall be fully approved as a participant in the Hemp
Licensing Program.
Section
5. Land Use Restrictions for Licensed Growers.
(1) A licensed grower shall not plant or grow
any cannabis that is not hemp.
(2)
A licensed grower shall not plant or grow hemp or other cannabis on any site
not licensed.
(3) A licensed grower
shall not grow hemp or other cannabis in or within 100 feet of any structure
that is used for residential purposes without first obtaining written
permission from the department.
(4)
A licensed grower shall not handle or store leaf or floral material from hemp
or other cannabis in or adjacent to any structure that is used for residential
purposes.
(5) Hemp shall be
physically segregated from other crops unless prior approval is obtained in
writing from the department.
(6) A
licensed grower shall plant a minimum of 1,000 plants in each growing site
unless prior approval is received in writing from the department.
(7) A licensed grower shall plant a minimum
of one-quarter (0.25) acre in each outdoor growing site unless prior approval
is received in writing from the department.
(8) Except as established in subsection (9)
of this section, a licensed grower shall not grow hemp or other cannabis in any
outdoor field that is located within 1,000 feet of a school or a public
recreational area.
(9)
Notwithstanding the prohibition in subsection (8) of this section, hemp may be
grown within 1,000 feet of a school, if:
(a)
The applicant has been designated by a school district
superintendent;
(b) The applicant
is a vocational agriculture instructor, agriculture teacher, or other qualified
person who is employed by a school district; and
(c) The school district's board has voted to
approve the applicant's proposal.
(10) An applicant or licensed grower shall
not include any property on his or her application or Site Modification
Request, incorporated by reference in
302 KAR
50:080, to grow, cultivate, or store hemp that is not
owned or completely controlled by the applicant or licensed grower, as
evidenced by a written lease or other document that shall be provided to the
department upon request.
(11) A
licensed grower shall not grow, handle, or store hemp or other cannabis on
property owned by, leased from, or previously submitted in a license
application by any person who is ineligible or whose hemp license was
terminated, or who was denied admission to the Hemp Licensing Program for:
(a) Failure to obtain an acceptable criminal
background check;
(b) Failure to
comply with an order from a representative of the department; or
(c) Both.
(12) Licensed growers shall post signage at
each greenhouse, indoor growing location, storage building, and lot of one (1)
acre or less. The signage shall include the:
(a) Agency title, "Kentucky Department of
Agriculture Hemp Licensing Program";
(b) License holder's name;
(c) License holder's license number;
and
(d) Department's telephone
number.
Section
6. Administrative Appeal from Denial of Application.
(1) An applicant wishing to appeal the
department's denial or partial denial of an application shall submit a written
request for a hearing postmarked within fifteen (15) days of the date of the
department's notification letter or email.
(2) An appealing applicant shall mail a
hearing request letter to KDA Hemp Licensing Program, 111 Corporate Drive,
Frankfort, Kentucky 40601.
(3)
Appeals shall be heard by a three (3) person administrative panel whose members
shall be designated by the commissioner. The panel shall include at least one
(1) person who is a department employee and at least one (1) person who is not
a department employee and not involved or invested in any hemp projects in
Kentucky.
(4) The members of the
administrative panel shall not be required to accept or consider information or
documents that were not compliant with application deadlines established in
this administrative regulation.
(5)
The members of the administrative panel shall apply the same standards
established in this administrative regulation to determine if the department's
action in denying the application was arbitrary or capricious.
(6) Hearings on appeals shall be open to the
public and occur at a time and date and location designated by the
commissioner.
(7) An appealing
applicant shall appear in person at the assigned hearing time. Failure to
appear on time shall constitute grounds for dismissal of the appeal.
(8) The three (3) members of the
administrative panel shall rule on the appeal by a majority vote.
Section 7. Hemp Grower Licenses.
(1) An applicant shall not be a participant
in the Hemp Licensing Program until the department has issued a hemp grower
license following the applicant's completion of the department's mandatory
orientation session and payment of licensing fees.
(2) The grower license application shall
establish the terms and conditions, pursuant to KRS Chapter 260 and 302 KAR
Chapter 50, governing participation in the Hemp Licensing Program.
(3) Failure to agree or comply with terms and
conditions established in the hemp grower license application or this
administrative regulation shall constitute grounds for appropriate departmental
action, up to and including termination of the grower license and expulsion
from the Hemp Licensing Program.
(4) A Hemp Grower License shall remain in
force as long as the license holder meets annual renewal requirements by March
15 of each year.
(5) A Hemp Grower
License may be terminated by the license holder or the department upon thirty
(30) days prior written notice.
(6)
A Hemp Grower License authorizes the license holder to grow hemp; handle his or
her own hemp, including drying, grinding, separating foliage from stem,
storing, and packaging; and market his or her own hemp. A Hemp Grower License
shall not authorize the grower to process hemp, handle other person's hemp, or
market another person's hemp.
(7)
The department shall issue grower's license numbers in accordance with this
format: "21_0001" through "21_9999."
Section 8. Licensing Fees; Secondary
Pre-Harvest Sample Fees.
(1) Licensing fee.
(a) The conditionally approved applicant or
license holder shall pay a licensing fee prior to the issuance of a new license
or an annual license renewal.
(b)
The licensing fee for each growing address shall be in the amount established
in
302 KAR
50:060.
(2) Secondary Pre-Harvest Sample fee.
(a) If a licensed grower fails to complete
the harvest within thirty (30) days after the department collects the
pre-harvest sample, the licensed grower shall submit a new Harvest Report and
may be required to pay a secondary pre-harvest sample fee.
(b) If four (4) or more samples are taken
from the same address, then the licensed grower shall be required to pay a
secondary pre-harvest sample fee for each sample taken from that address in
excess of three (3) samples.
(c)
The secondary Pre-Harvest sample fee shall be paid to the department within
fifteen (15) days of invoice by the department. The secondary pre-harvest
sample fee shall be as established in
302 KAR
50:060.
(d) The licensed grower shall not harvest the
remaining crop until the department collects a secondary pre-harvest sample if
one is required as established in paragraph (a) or (b) of this
subsection.
Section
9. Site Modifications and Site Modification Surcharge Fees.
(1) A licensed grower who elects to grow hemp
in a new growing location or store or handle at a site other than the sites
specified by the GPS coordinates listed on the hemp grower license, shall
submit a Site Modification Request, incorporated by reference in
302 KAR
50:080, and obtain written approval from a
representative of the department, prior to planting or storing at the proposed
location.
(2) Any request for a new
growing location shall comply with the land use restrictions established in
Section 5 of this administrative regulation.
(3) The department shall charge a site
modification surcharge fee for each new Location ID, (specifically, a GPS
coordinate for each new individual field or greenhouse or indoor structure)
where hemp will be grown. The amount of the site modification surcharge fee
shall be as established in
302 KAR
50:060.
(4) The department shall not approve a site
modification request for a new growing location until the department has
received the site modification surcharge fee.
(5) The department shall not assess a site
modification surcharge for changes to storage only locations.
Section 10. Seed and Propagule
Acquisition.
(1) A license holder intending to
acquire seeds or propagules first shall determine whether or not the variety or
strain intended for purchase is listed on the department's current Summary of
Varieties List, which is posted on the department's Web site.
(a) If the variety or strain is listed on the
Summary of Varieties List, no pre-approval from the department shall be
required.
(b) If the variety or
strain is not listed on the Summary of Varieties List, the license holder shall
submit a New Hemp Variety or Strain Request Form along with a certificate of
analysis for that strain or variety, showing that mature plants grown from that
seed variety or strain have a floral material delta-9-THC (measured
post-decarboxylation, also referred to as total THC) content of not more than
0.300% on a dry weight basis from an independent third-party
laboratory.
(2) A
license holder who develops a new hemp variety or strain shall submit the New
Hemp Variety or Strain Request form, prior to its use in crop
production.
(3) The department
shall not approve a New Hemp Variety or Strain Request unless the licensed
grower affirms in writing that the requested seed acquisition plan does not
infringe on the intellectual property rights of any person and that the seed or
propagule source is a current legal hemp operation.
(4) The department shall not approve a New
Hemp Variety or Strain Request if a representative of the department has
information supporting a belief that the variety or strain will produce plants
with delta-9-THC (measured post-decarboxylation, also referred to as total THC)
content of more than 0.300% on a dry weight basis.
(5) A license holder shall not buy, sell,
possess, or transfer seeds or propagules of any variety or strain designated as
a Prohibited Variety on the department's published Summary of Varieties
list.
(6) Upon request from a
representative of the department, a licensed grower or licensed processor shall
provide a distribution list showing locations where and to whom the hemp seeds
or propagules were distributed.
(7)
Any person engaging in the distribution of hemp seeds shall adhere to the
applicable Kentucky seed laws (KRS
250.010 through
250.990) and
administrative regulations (12 KAR
1:116 through
12 KAR
1:175) .
(8) Any person who intends to move
transplants or other living plants from a location in Kentucky to a location
outside Kentucky shall obtain a Class A Nursery License from the Kentucky
Office of the State Entomologist.
Section 11. Seeds of Wild, Landrace, or
Unknown Origin.
(1) A person shall not acquire
or grow hemp or cannabis seeds or propagules of wild, landrace, or unknown
origin without first obtaining written approval from a representative of the
department.
(2) The department
shall not allow hemp or cannabis seeds or propagules of wild, landrace, or
unknown origin to be planted, cultivated, or replicated by any person without
the department first arranging for replication and THC testing of mature plants
grown from the seeds or propagules by the department or its designee.
(3) Any licensed grower or licensed processor
found to have saved seed, propagules, or cuttings, or cultivated seeds,
propagules, or cuttings from a cannabis plant of wild, landrace, or unknown
origin, without advance written permission from the department shall be subject
to suspension or revocation of his or her license and forfeiture without
compensation of his or her materials.
Section 12. Planting Reports to USDA's Farm
Service Agency (FSA).
(1) Prior to the
submission of Planting Reports, a licensed grower shall report hemp crop
acreage to USDA's Farm Service Agency (FSA) including, at a minimum, the:
(a) Street address and, to the extent
practicable, geospatial location for each lot or greenhouse where hemp will be
produced;
(b) Location as
identified by the FSA Office: farm serial number, tract number, field number,
and sub-field number;
(c) Acreage
(or square footage, in the case of a greenhouse or other indoor growing
facility) dedicated to the growing of each variety or strain of hemp;
(d) Grower's name and license number;
and
(e) The farm serial number,
tract number, field number, and sub-field number provided by FSA for each lot
as recorded by the license holder and subsequently submitted on all hemp
planting and harvest reports to the department.
(2) The department shall collect and retain,
for a period of at least three (3) calendar years, location ID information for
every site or location where the department has approved hemp to be
grown.
Section 13.
Planting Reports for Outdoor Plantings.
(1) A
licensed grower shall submit to the department a complete and current Field
Planting Report, within fifteen (15) days after every planting, including
complete replanting, of seeds or propagules in an outdoor location.
(2) Each Field Planting Report shall identify
the:
(a) Correct variety or strain
name;
(b) Address and Field
location ID as listed on the hemp grower's license;
(c) Farm serial number, tract number, field
number, and sub-field number (lot number) provided by the USDA FSA Office;
and
(d) Amount planted and the
primary intended use of the harvest.
(3) A licensed grower who does not plant hemp
in an approved outdoor site listed in the hemp grower license shall submit a
Field Planting Report, on or before July 31, stating that hemp has not been
planted and will not be planted at that site.
Section 14. Planting Reports for Indoor
Plantings.
(1) A licensed grower shall submit
to the department a complete and current Greenhouse/Indoor Planting Report
within fifteen (15) days after establishing plants at an indoor
location.
(2) Each
Greenhouse/Indoor Planting Report shall identify the:
(a) Correct variety or strain name;
(b) Address and Greenhouse or indoor growing
location ID as listed in the hemp grower license;
(c) Farm serial number, tract number, field
number, and sub-field number (lot number) provided by the USDA FSA Office;
and
(d) Amount planted and the
primary intended use of the harvest or of the hemp plants.
(3) In addition to the initial
Greenhouse/Indoor Planting Report, a licensed grower with an approved
greenhouse or indoor growing site shall submit quarterly reports, which are
incorporated by reference in
302 KAR
50:080, for each location ID to the department.
Greenhouse/Indoor Planting Reports shall be due no later than March 31, June
30, September 30, and December 31.
Section 15. Site Access for Representatives
of the Department and Law Enforcement Agencies.
(1) The department shall provide information
about approved growing, handling, and storage site locations to representatives
of the Kentucky State Police, USDA, DEA, and other law enforcement agencies
whose representatives request licensed site information, including GPS
coordinates.
(2) Licensed growers
shall have no reasonable expectation of privacy with respect to premises where
hemp or other cannabis seeds, plants, or materials are located, and any
premises listed in the hemp grower license.
(3) A licensed grower, whether present or
not, shall permit a representative of the department or a law enforcement
agency to enter into premises where hemp or other cannabis seeds, plants, or
materials are located, and any premises listed in the hemp grower's license,
with or without cause and with or without advanced notice.
Section 16. Pesticide Use.
(1) A licensed grower who uses a pesticide on
hemp shall first be certified to apply pesticides by the department pursuant to
KRS Chapter 217B.
(2) A licensed
grower who is certified to apply pesticides by the department pursuant to KRS
Chapter 217B shall not use, or be eligible to use, a Category 10 license to
apply pesticides to hemp in violation of the product label.
(3) A licensed grower shall not use any
pesticide in violation of the product label.
(4) A licensed grower who uses a pesticide on
a site where hemp will be planted shall comply with the longest of any planting
restriction interval on the product label prior to planting the hemp.
(5) The department may perform pesticide
testing on a random basis or if representatives of the department have reason
to believe that a pesticide may have been applied to hemp in violation of the
product label.
(6) Hemp seeds,
plants, and materials bearing pesticide residue in violation of the label shall
be subject to forfeiture or destruction without compensation.
Section 17. Responsibility of a
Licensed Grower Regarding Harvest of Hemp Lots.
(1) The department may inspect a Licensed
Grower's premise or collect samples of any hemp or other cannabis material, at
any time.
(2) The grower shall not
harvest hemp plants from a lot without the department first collecting samples
from that lot.
(3) At least fifteen
(15) days prior to the anticipated harvest of hemp plants, the grower shall
submit to the department a completed and current Harvest Report form
identifying the intended date of harvest (or date of destruction, in the case
of a failed crop).
(4) The
department's receipt of a Harvest Report shall trigger a sample collection by a
properly trained representative of the department in accordance with the
procedures established in 302 KAR 50:056.
(5) During the department's scheduled sample
collection, the grower or an authorized representative of the grower shall be
present at the growing site.
(6)
Representatives of the department shall be provided with complete and
unrestricted access to all hemp and other cannabis plants, whether growing or
harvested, and all land, buildings, and other structures used for the
cultivation, handling, and storage of all hemp and other cannabis plants, and
all locations listed in the hemp grower's license.
(7) The licensed grower shall harvest the
crop not more than thirty (30) days following the date of sample collection by
the department.
(8) If the licensed
grower fails to complete a harvest within thirty (30) days following the date
of sample collection, then the licensed grower shall submit a new Harvest
Report and may be required to pay a secondary pre-harvest sample fee in the
amount established in
302 KAR
50:060.
(9) Floral materials shall not be moved
outside the Commonwealth, nor moved beyond a processor, nor commingled, nor
extracted, until the department releases the material in writing.
(10) Harvested materials from one (1) lot
shall not be commingled with other harvested lots without prior written
permission from the department.
(11) A licensed grower who fails to submit a
Harvest Report shall be subject to revocation of his or her license.
(12) A licensed grower who proceeds to
harvest a crop without first obtaining authorization from the department shall
be subject to revocation of his or her license.
(13) The department shall conduct inspections
of some licensed growers on a randomly selected basis.
Section 18. Collection of Samples; THC
Testing; Post-Testing Actions.
(1) The
department shall collect hemp samples for THC testing in accordance with the
procedures established in 302 KAR 50:056.
(2) The designated laboratory shall receive,
prepare, and release hemp samples in accordance with the procedures established
in 302 KAR 50:056.
(3) The
designated laboratory shall measure delta-9-THC concentration of each hemp
sample (postdecarboxylation, often referred to as total THC) in accordance with
the procedures established in 302 KAR 50:056.
(4) The department shall undertake
post-testing actions in accordance with the procedures established in 302 KAR
50:056.
(5) All samples shall
become the property of the department and shall not be returnable. Compensation
shall not be owed by the department.
(6) If the designated laboratory is not able
to provide THC testing services required by the department, the department may
identify and contract with a third party lab to perform THC testing
services.
(7) The department may
collect samples of hemp or other cannabis material at any time.
Section 19. Restrictions on Sale
or Transfer.
(1) A licensed grower shall not
sell or transfer, or allow the sale or transfer, of living plants, viable
seeds, leaf material, or floral material to any person in the Commonwealth who
does not hold a license issued by the department.
(2) A licensed grower shall not sell or
transfer, or allow the sale or transfer, of living plants, viable seeds, leaf
material, or floral material to any person outside the Commonwealth who is not
authorized to possess such materials under the laws of that
jurisdiction.
(3) The department
shall allow the sale or transfer of stripped stalks, fiber, dried roots,
nonviable seeds, seed oils, floral and plant extracts (excluding THC in excess
of zero and three-tenths (0.3) percent) and other marketable hemp products to
members of the general public, both within and outside the Commonwealth, if the
marketable hemp product's decarboxylated delta-9-THC level is not more than
zero and three-tenths (0.3) percent.
(4) A licensed grower selling or
transferring, or permitting the sale or transfer, of floral or plant extracts
(including CBD), shall retain testing data or results for at least three (3)
years demonstrating that the extract's delta-9-THC level is not more than zero
and three-tenths (0.3) percent.
(5)
A licensed grower shall not sell or transfer floral extracts containing a
decarboxylated delta-9-THC concentration in excess of zero and three-tenths
(0.3) percent.
(6) Licensed growers
shall comply with the federal Food Drug and Cosmetic Act, 21 U.S.C. Chapter 9,
and all other applicable local, state, and federal laws and regulations
relating to product development, product manufacturing, consumer safety, and
public health.
(7) A licensed
grower shall not knowingly permit hemp to be sold to or used by any person in
the Commonwealth, who is involved in the manufacture of an item named on the
prohibited products list established in
302 KAR
50:070.
(8) A person shall not ship, transport, or
allow to be shipped or transported, any hemp product with a decarboxylated
delta-9-THC concentration in excess of zero and three-tenths (0.3)
percent.
Section 20.
Other Prohibited Activities.
(1) A licensed
grower shall not allow another person, other than an agent of the licensed
grower, to grow, handle, or store hemp under their license in lieu of obtaining
a separate hemp grower license.
(2)
A license holder shall not make, manufacture, or distribute in the Commonwealth
any of the prohibited products listed in
302 KAR
50:070.
Section 21. Information Submitted to the
Department Subject to Open Records Act,
KRS
61.870 Through 61.844.
(1) Except as established in subsection (2)
of this section, information and documents generated or obtained by the
department shall be subject to disclosure pursuant to the Kentucky Open Records
Act,
KRS
61.870 through
61.884.
(2) Personally identifiable information
including physical address, mailing address, driver's license numbers,
background checks, GPS coordinates, telephone numbers, and email addresses
shall be shielded from disclosure to the maximum extent permitted by law,
except that the department shall provide this information to law enforcement
agencies and other regulatory agencies upon request.
Section 22. Violations Requiring Temporary
License Suspension Procedures.
(1) The
department shall notify a licensed grower in writing that the Hemp Grower
License has been temporarily suspended if a representative of the department
receives information supporting an allegation that a licensed grower has:
(a) Plead guilty to, or is convicted of, any
felony or drug-related misdemeanor or violation, in accordance with
KRS
260.864;
(b) Engaged in conduct violating a provision
of
KRS
260.850 through
260.869,
302 KAR Chapter 50, or the hemp grower license with a culpable mental state
greater than negligence;
(c) Made a
false statement to a representative of the department or a law enforcement
agency with a culpable mental state greater than negligence;
(d) Been found to be growing or in possession
of cannabis with a measured delta-9-THC concentration above zero and
three-tenths (0.3) percent with a culpable mental state greater than
negligence;
(e) Failed to comply
with an order from a representative of the department or a law enforcement
agency with a culpable mental state greater than negligence; or
(f) Been found to be growing or in possession
of cannabis plant material with a measured THC concentration of 3.000% or
greater.
(2) The
department shall schedule a license revocation hearing for a date as soon as
practicable after the notification of temporary suspension, but not later than
sixty (60) days following the notification of temporary suspension.
(3) A person whose Hemp Grower License has
been temporarily suspended shall not harvest, process, or remove cannabis from
the premises where hemp or other cannabis was located at the time the
department issued its notice of temporary suspension, except as authorized in
writing by a representative of the department.
(4) As soon as possible after the
notification of temporary suspension, a representative of the department shall
inspect the licensed grower's premises and perform an inventory of all
cannabis, hemp, and hemp products that are in the licensed grower's
possession.
Section 23.
License Revocation Hearings and Consequences of Revocation.
(1) The department shall notify a person
whose Hemp Grower License has been temporarily suspended of the date the
person's license revocation hearing will occur at a time and place designated
by the commissioner.
(2) License
revocation hearings shall be adjudicated by a three (3) person administrative
panel in accordance with
KRS
260.864.
(3) License revocation hearings shall be open
to the public.
(4) A person whose
Hemp Grower License has been temporarily suspended shall appear in person at
the assigned hearing time. Barring unexpected events, such as inclement
weather, failure to appear on time shall constitute a waiver of the person's
right to present information and arguments against revoking the hemp grower
license.
(5) A representative of
the department shall have an opportunity to present information and arguments
for revoking the hemp grower license.
(6) A person whose hemp grower license has
been temporarily suspended shall be allowed an opportunity to present
information and arguments against revoking the hemp grower license.
(7) The three (3) members of the
administrative panel shall rule on the question of revocation by a majority
vote.
(8) If a majority of the
three (3) members of the administrative panel find that it is more likely than
not that a licensed grower has committed any of the acts listed in subsection
(1) of this section, then the hemp grower license shall be revoked effective
immediately.
(9) If a majority of
the members of the administrative panel vote against revoking the hemp grower
license, the department shall lift the temporary suspension within twenty-four
(24) hours of the vote.
(10) If a
majority of the members of the administrative panel vote in favor of revoking
the hemp grower license, then a representative of the department or a law
enforcement agency shall have authority to destroy or confiscate all cannabis,
hemp, and hemp products that are in the person's possession.
(11) A person whose property is destroyed or
confiscated by a representative of the department or a law enforcement agency
shall be owed no compensation or indemnity for the value of the cannabis, hemp,
or hemp products that were destroyed or confiscated.
(12) The department shall immediately report
any person whose license has been revoked on the grounds that he or she
violated a provision of
KRS
260.850 through
260.869,
302 KAR Chapter 50, or violated the grower license with a culpable mental state
greater than negligence, to an appropriate law enforcement agency.
(13) A person whose grower license has been
revoked shall not be eligible for licensure for a period of five (5) years from
the date of the most recent violation.
Section 24. Monetary Civil Penalties.
(1) If a representative of the department
receives information supporting a finding that it is more likely than not that
a person has engaged in conduct violating a provision of
KRS
260.850 through
260.869,
302 KAR Chapter 50, or the hemp grower license application, then the department
shall assess a monetary civil penalty not to exceed $2,500 per
violation.
(2) A person wishing to
appeal the department's assessment of a monetary civil penalty shall submit a
written request for a hearing within fifteen (15) days of the notification
date.
(3) A person wishing to
appeal the department's assessment of a monetary civil penalty shall mail a
hearing request letter to KDA Hemp Licensing Program, 111 Corporate Drive,
Frankfort, Kentucky 40601.
(4)
Appeals shall be heard by a three (3) person administrative panel whose members
shall be designated by the commissioner. The administrative panel shall include
at least one (1) person who is a department employee and at least one (1)
person who is not a department employee and not involved or invested in any
Kentucky hemp projects.
(5) The
members of the administrative panel shall determine if the department's action
in assessing the monetary civil penalty was arbitrary or capricious.
(6) Hearings on the appeal shall be open to
the public and occur at a time, date, and location designated by the
commissioner.
(7) An appealing
person shall appear in person at the assigned hearing time. Barring unexpected
events, such as inclement weather, failure to appear on time shall constitute
grounds for dismissal of the appeal.
(8) An appealing person shall be allowed an
opportunity to present arguments for reversing the assessed monetary civil
penalty.
(9) A representative of
the department shall have an opportunity to present arguments for affirming the
assessed monetary civil penalty.
(10) The three (3) members of the
administrative panel shall rule on the appeal by a majority vote.
(11) A majority of the three (3) members of
the administrative panel may affirm the assessed monetary civil penalty, affirm
and increase or decrease the assessed monetary civil penalty or reverse the
assessed monetary civil penalty.
(12) The department shall have the authority
to pursue unpaid monetary civil penalties by filing a civil cause of action in
the Franklin Circuit Court.
Section
25. Licensing for Representatives of Universities and Colleges.
(1) Except as established in this section,
faculty members, administrators, and staff members of an institution of higher
education shall be subject to all requirements of this administrative
regulation.
(2) An institution of
higher education shall not allow its faculty, administration or staff members,
or any sponsored student to be in possession of, or conduct academic research
involving, living hemp plants, leaf material, floral material, or viable seeds
of hemp without first completing and submitting a Hemp License
Application.
(3) An authorized
faculty, administrator, or staff member of an eligible institution of higher
education who wishes to be in possession of, or conduct an academic research
project involving living hemp plants, leaf material, floral material, or viable
seeds of hemp shall complete and submit a Hemp License Application.
(4) If a university applicant's research plan
includes growing hemp, then a Hemp Grower License shall be issued by the
department.
(5) If a university
applicant's research plan does not include growing hemp, then a Hemp
Processor/Handler License shall be issued by the department. An authorized
faculty, administrator, or staff member of an eligible institution of higher
education who wishes to be in possession of, or conduct an academic research
project involving, leaf material or floral material from hemp shall complete
and submit a Processor/Handler License Application.
(6) The department shall accept applications
from an authorized faculty, administrator, or staff member of an eligible
institution of higher education at any time of the year.
(7) The department shall not collect fees for
licenses issued to a faculty member, administrator, or staff member of an
institution of higher education if the project is for research only and not
intended for commerce.
(8) Sampling
and testing of hemp grown under the authority of this section shall be
conducted by the department if the harvested material is intended for
commerce.
(9) An eligible
institution of higher education shall:
(a) Be
accredited by, and in good standing with, a regional or national higher
education accreditation agency;
(b)
Confer academic degrees at the associate, bachelor, master, or doctoral level;
and
(c) Have a principal campus or
office that is located at a site within the Commonwealth of Kentucky.
(10) Universities and Colleges
growing hemp for research purposes shall ensure the disposal of all
noncompliant plants.
(11)
Universities and Colleges growing hemp for research purposes shall also comply
with the reporting requirements including reporting disposal of noncompliant
plants.
(12) Universities and
Colleges that handle cannabis varieties with known THC concentrations above the
level acceptable for hemp shall follow the Controlled Substance Act
requirements for handling marijuana.
Section 26. Record Keeping Requirements;
Three (3) Year Retention Period.
(1) For at
least three (3) years, license holders shall maintain and make available for
inspection by the department during reasonable business hours, records
regarding:
(a) Acquisition of hemp
plants;
(b) Production and handling
of hemp plants;
(c) Storage of hemp
plants; and
(d) Disposal of all
cannabis plants that do not meet the definition for "hemp".
(2) The department shall have
access to any premises where hemp plants could be held during reasonable
business hours.
(3) All reports and
records required to be submitted to the department as part of participation in
the program in this part, which include confidential data or business
information, such as information constituting a trade secret or disclosing a
trade position, financial condition, or business operations of the particular
licensee or their customers, shall be received by, and at all times kept in the
custody and control of, one (1) or more employees of the department or their
representatives. Confidential data or business information may be shared with
applicable federal, state, or local law enforcement agencies or their designees
in compliance with applicable law.
Section 27. Corrective Action Plans for
Negligent Violations.
(1) If the department
determines that a grower committed a negligent violation of any provision
within KRS Chapter 260.850 to 260.869 or 302 KAR Chapter 50, or
7 C.F.R.
990.6(b) then the department
shall devise and implement a corrective action plan for the grower.
(2) Examples of negligent violations shall
include, for example:
(a) Failure to license
land where hemp is grown;
(b)
Failure to obtain a license; and
(c) Production of cannabis with THC exceeding
one (1) percent.
(3)
Corrective action plans shall remain in place for at least two (2) years and
include, at a minimum:
(a) The date by which
the grower shall correct each negligent violation;
(b) Steps to correct each negligent
violation; and
(c) A description of
the procedures to demonstrate compliance.
(4) A grower who commits a negligent
violation shall not, as a result of that violation, be subject to any criminal
enforcement action by any government.
(5) If a subsequent violation occurs while a
corrective action plan is in place, a new corrective action plan shall be
submitted with a heightened level of quality control, staff training, and
quantifiable action measures.
(6) A
grower who commits three (3) or more negligent violations within a five (5)
year period shall have his or her license revoked and be ineligible to obtain a
license for a period of five (5) years beginning on the date of the third
violation. A violation that occurred prior to January 1, 2022 shall not count
toward the three (3) violations referred to in this subsection.
(7) The department shall perform at least two
(2) inspections to ensure the licensee's compliance with the corrective action
plan.
Section 28.
Mandatory Reports to Law Enforcement Agencies for Violations with a Culpable
Mental State Greater than Negligence.
(1) In
addition to being subject to the license suspension, license revocation, and
monetary civil penalty procedures established in this administrative regulation
and 302 KAR 50:031, a person who is found by the department to have violated
any statute or administrative regulation governing that person's participation
in the hemp program with a culpable mental state greater than negligence shall
be subject to the reporting requirements established in this section.
(2) The department shall immediately report a
person who is found by the department to have violated any statute or
administrative regulation governing that person's participation in the hemp
program with a culpable mental state greater than negligence to the:
(a) Attorney General of the United
States;
(b) Commissioner of the
Kentucky State Police; and
(c)
Commander of the Kentucky State Police's Cannabis Suppression Branch.
47 Ky.R. 643,
1196; eff. 3-2-2021;
48
Ky.R. 1631, 2460; eff. 7/5/2022.
STATUTORY AUTHORITY:
KRS
260.862,
7
U.S.C. 1639