Current through Register Vol. 46, No. 12, March 20, 2024
Growers failing to adhere to the requirements set forth in
this Part shall be subject to penalties and other enforcement action, including
suspension and license termination, depending on the number and extent of the
infractions or violations that have occurred. The failure to comply with the
Part's requirements fall into three categories, as follows:
(a) Infractions. Infractions occur when a
grower fails to follow any of the requirements of this Part, and which are not
more specifically addressed in paragraphs (b) and (c) herein.
(i) The Department shall advise growers of
infractions observed by its inspector by delivery of an inspection report
listing the infractions observed or by delivery of a notice of
infraction.
(ii) The Department
shall establish a date by which the infraction shall be corrected.
(iii) A grower shall have an opportunity to
be heard concerning any noticed infraction with respect to which the Department
takes enforcement action.
(iv) At
the Department's discretion, a grower may be required to enter into a
compliance agreement to ensure future compliance.
(b) Negligent violations. Negligent
violations occur when a grower fails to exercise the level of care that a
reasonably prudent person would exercise in complying with the requirements set
forth in this Part.
(i) The following actions
fall within the category of negligent violations:
(1) Growing and handling of hemp without a
valid license; or
(2) Growing and
handling hemp at sites and locations not approved under the grower's license;
or
(3) Producing cannabis exceeding
the acceptable hemp THC level, provided that the regulatory sample of the
cannabis does not have a total THC concentration of more than 1.0 percent on a
dry weight basis, and the grower can demonstrate that it has made reasonable
efforts to grow compliant hemp; or
(4) Failing to timely dispose or otherwise
handle all lots of plants determined to have a more than the accepted hemp THC
level in a manner consistent with this Part or the guidance adopted pursuant to
this Part; or
(5) Harvesting hemp
prior to the collection of a regulatory pre-harvest sample by a Department
inspector or Department-certified sampling agent or prior to receiving written
approval to harvest from the Department; or
(6) Harvesting hemp more than 30 days after
the regulatory sampling date; or
(7) Commingling lots of harvested plant
material prior to the time that the sampled lots are tested and determined not
to exceed the accepted hemp THC level; or
(8) Failing to segregate and store the plant
material from each lot subject to regulatory sampling at an approved site or
such other location storage or changing its location from the location
authorized by the Department until regulatory testing results demonstrate that
the plant material does not exceed the accepted hemp THC level.
(ii) For each negligent violation,
the Department shall issue a Notice of Violation, advising the grower of the
negligent violation and providing a deadline by which the violation shall be
corrected.
(iii) The issuance of a
Notice of Violation may result in an assessment of a penalty or other
enforcement action.
(iv) A grower
may contest the noticed violation within 15 days of the date of the notice, and
shall be provided with an opportunity to be heard with respect to the noticed
violation.
(v) Corrective action
for negligent violations.
(1) Unless the
grower contests the violation, within 20 days of the date of the notice, the
grower shall submit a corrective action plan for the Department's approval,
which, at a minimum, shall include:
(A) A
reasonable date by which the negligent violation shall be corrected;
and
(B) The actions to be taken by
the grower to correct the violation and to ensure future compliance with the
requirements that were not met; and
(C) A schedule for the submission of
quarterly reports for a period of two years, which reports will advise the
Department of the grower's compliance with its corrective action
plan.
(2) The Department
shall advise the grower whether the proposed plan is approved as submitted or
if any changes or additional requirements are needed for an acceptable
plan.
(3) Pursuant to
7 U.S.C.
1639p(e)(2)(C), a grower
with an approved plan shall not, as a result of the negligent violation, be
subject to any criminal enforcement action by Federal or State
government.
(4) The State may
conduct inspections to determine if the corrective action plan has been
implemented as submitted.
(5) If a
subsequent violation occurs while a corrective action plan is in place, a new
corrective action plan must be submitted with a heightened level of quality
control, staff training, and quantifiable action measures.
(vi) A grower that negligently violates the
requirements of this Part three times during a 5-year period shall be
ineligible to produce hemp for a period of 5 years beginning as of the date of
the third violation.
(c)
Culpable Violation. A grower, with a culpable mental state greater than
negligence, that:
(1) grows or cultivates
hemp with a total THC level in excess of 1 percent on a dry weight basis;
(2) handles such non-compliant hemp
for a purpose other than ensuring its destruction pursuant to the requirements
of this Part; 3) and/or introduces such non-compliant hemp into the stream of
commerce, commits a culpable violation under this Part.
(i) When the Department has reason to believe
that a grower has committed a culpable violation, it shall issue a Notice of
Violation, and undertake such other enforcement action it deems
appropriate.
(ii) A grower may
contest the noticed violation within 15 days of the date of the notice and
shall be provided with an opportunity to be heard with respect to the noticed
violation.
(iii) If the Department
determines that a grower has committed a culpable violation, the Department
shall immediately report the grower to the U.S. Attorney General and the chief
law enforcement officer of the State.