8 Colo. Code Regs. § 1203-23, pt. 4

Current through Register Vol. 48, No. 1, January 10, 2025

Part 4 - INSPECTION AND SAMPLING PROGRAM

4.1 All Registrations are subject to routine inspection and sampling to verify that the total THC concentration of the hemp planted within a Registered Land Area does not exceed the acceptable Hemp THC level.

4.2 Except as set forth below in regard to performance-based sampling, all lots grown on a Registered Land Area must be sampled by the Department or an Authorized Sampler. Prior to the anticipated harvest, a Registrant must coordinate sampling of its hemp lots by contacting either an Authorized Sampler or the Department.

4.3 Samples from hemp plants must be collected within thirty (30) days prior to the anticipated harvest.

4.4 The Commissioner shall also conduct additional inspections and sampling to verify compliance with the reporting requirements of these Rules. A subset of Registrants will be randomly selected each year for records audit, inspection of premises, and sampling to ensure compliance of these rules.

4.5 A Registered Land Area may be subject to inspection and sampling prior to voluntary termination of the Registration or before its expiration date.

4.6 During any inspection or sampling, the Registrant or authorized representative shall be present at the growing operation, if possible. The Registrant or authorized representative shall provide the Department's Inspector with complete and unrestricted access to all hemp plants, parts and seeds within a Registered Land Area whether growing or harvested, and all land, buildings and other structures used for the cultivation and storage of Hemp.

4.7 All hemp lots within a Registered Land Area must be sampled to ensure compliance with the Hemp Program.

4.7.1 Individual samples of each variety or lot of hemp must be sampled from the Registered Land Area.

4.7.2 The sampled material will be prepared for testing using protocols approved by the CDPHE Hemp Testing Laboratory Certification 5 CCR 1005-5 (incorporated by reference herein, effective April 14, 2021). Material incorporated by reference does not include any later amendments or editions of the incorporated material. Copies of material incorporated by reference are available for public inspection during regular business hours and may be obtained at a reasonable charge or examined by contacting the Plants Division, Colorado Department of Agriculture, 305 Interlocken Parkway, Broomfield, CO 80021. Further, the incorporated material may be examined at no cost on the Internet at: https://www.coloradosos.gov/CCR/GenerateRulePdf.do?ruleVersionId=9408&fileName=5 %20CCR%201005-5

4.7.3 Quantitative laboratory determination of the total THC concentration on a dry weight basis will be performed according to CDPHE's standard operating procedures as set forth at 5 CCR 1005-5 (incorporated by reference herein, effective April 14, 2021). Material incorporated by reference does not include any later amendments or editions of the incorporated material. Copies of material incorporated by reference are available for public inspection during regular business hours and may be obtained at a reasonable charge or examined by contacting the Plants Division, Colorado Department of Agriculture, 305 Interlocken Parkway, Broomfield, CO 80021. Further, the incorporated material may be examined at no cost on the Internet at:

https://www.coloradosos.gov/CCR/GenerateRulePdf.do?ruleVersionId=9408&fileName=5 %20CCR%201005-5..

4.7.4 A sample test result of a representative sample with a total THC concentration on a dry weight basis greater than the acceptable Hemp THC level shall be conclusive evidence that the lot represented by the sample is not in compliance with this Rule. At least one non-compliant hemp plant or part of a plant in the Registered Land Area contains a total THC concentration on a dry weight basis of more than 0.3% and that the Registrant of that Registered Land Area is therefore not in compliance with the Act.

4.7.5 Upon receipt of such a test result, the Commissioner may, among other disciplinary options, summarily suspend or revoke the Registration of a Hemp Registrant in accordance with the Act, these Rules, and section 24-4-104, C.R.S.

4.7.6 A Registrant shall not harvest the hemp prior to sample collection.

4.7.7 Harvested plant material may not leave the Registered Land Area prior to receiving sample results except when plant material is moved to storage outside of the Registered Land Area to prevent crop loss under the following conditions:

4.7.7.1 A registrant must maintain control and ownership of hemp stored outside of the Registered Land Area until receiving sample results.

4.7.7.2 A registrant must report to the Department the location of hemp stored outside of the Registered Land Area.

4.7.8 Individual samples of Hemp lots shall not be commingled with other lots during sampling or laboratory analysis.

4.7.9 Plants grown only for R&D cannot be moved to a commercial registration or enter into the stream of commerce.

4.7.10 Any Registrant with a lot that tests above the acceptable hemp THC level, but below 1.0 percent THC on a dry weight basis may choose to dispose of or remediate each such lot. If a Registrant chooses to remediate, the Registrant may do so in one of the two following ways:

4.7.10.1 Separating and destroying flowers of plants found in non-complying lots within the RLA, while retaining stalks, leaves, and seeds; or

4.7.10.2 Blending the entire hemp lot to create a biomass.

4.7.11 If a Registrant elects to remediate any lot that is tested above the acceptable Hemp THC level, the Registrant must first request permission from the Department by submitting a Remediation and Disposal form to the Department to notify the Department of the Registrant's chosen method of remediation, including the date by which the remediation will be complete. Upon approval from the Department, the Registrant may so remediate.

4.7.12 Any such request must be made within 10 days of the Registrant's receiving the Remediation and Disposal form from the Department.

4.7.13 The Department will conduct remediation sampling or verification of any separation and destruction within 10 days of the remediation date reported to the Department pursuant to rule 4.7.9.

4.7.13.1 Non-compliant hemp lots may be remediated by separating and destroying the flowers from the plants in the non-compliant lots, while retaining stalks, leaves, and seeds or by shredding the entire hemp plant to create a biomass.

4.7.13.2 Registrants must return a completed Remediation and Disposal form to the Department within ten (10) days of receiving the Remediation and Disposal form indicating the date of disposal or remediation.

4.7.14 No person may remediate any lot sample results that indicate a total THC content of 1.0 percent or greater.

4.7.15 Any lot that is tested with a total THC content of 1.0 percent of greater must be disposed of as follows:

4.7.15.1 By using DEA registered reverse distributor or law enforcement; or

4.7.15.2 On site at the farm or hemp production facility.

4.7.15.3 Disposal on site at the farm must occur as set forth by the Agriculture Marketing Services of USDA Hemp Remediation and Disposal Guidelines (incorporated by reference herein, effective January 15, 2021). Material incorporated by reference does not include any later amendments or editions of the incorporated material. Copies of material incorporated by reference are available for public inspection during regular business hours and may be obtained at a reasonable charge or examined by contacting the Plants Division, Colorado Department of Agriculture, 305 Interlocken Parkway, Broomfield, CO 80021. Further, the incorporated material may be examined at no cost on the Internet at:

https://www.ams.usda.gov/sites/default/files/media/HempRemediationandDispos alGuidelines.pdf.

4.8 A Registrant who produces Certified Seed or Certified Clones, is registered with an R&D registration, has produced hemp at or below the acceptable hemp THC level for the previous three years, who produces hemp microgreens, hemp greens, hemp transplants, and immature plants, or who produces hemp for grain or other industrial purposes may petition the Department for inclusion in the Department's performance-based sampling program on a form provided by the Department, including as follows:

4.8.1 Certified Seed or Certified Clones:

4.8.1.1 Provide the Department with evidence of AOSCA certified seed or plant material label(s) in the form of the certified seed tag, including the total area (square feet or acres) planted.

4.8.1.2 Provide the Department with evidence of having planted AOSCA Certified Seed or AOSCA Certified Clones that have tested at or below the acceptable Hemp THC level for the previous three (3) years, including evidence that the Registrant will continue to use the same variety.

4.8.1.3 Registrants producing Certified Seed or Certified Clones are subject to random sampling.

4.8.2 Research and Development Registrants:

4.8.2.1 When hemp does not enter the stream of commerce, a Registrant may self-report all total THC concentration test results so long as the Registrant permits the Department to inspect or audit the above documentation set forth in Parts 2.2.7 through 2.2.9.

4.8.2.2 Research institutions are exempt from pre-harvest sampling of hemp crops when they comply with 4.8.2.1 listed above.

4.8.3 A Registrant who has produced indoor or outdoor hemp to maturity from the same variety or strain for the previous three, consecutive years that, when tested by the Department or an authorized sampling agent, with results at or below the acceptable hemp THC level.

4.8.4 A Registrant who is producing hemp microgreens, hemp greens, hemp transplants, and immature plants is exempt by placing an averment on the application that:

4.8.4.1 Hemp transplants will be transferred only to the location at which these plants will grow to maturity and from which these plants will be harvested; and

4.8.4.2 Mother plants may be exempt from sampling after testing within the allowable hemp THC level. Otherwise, different strains of mother plants that are harvested or leave the Registered Land Area must be sampled.

4.8.5 Production for grain or other industrial uses may be exempt from testing of each lot but will be randomly sampled.

4.9 Fees and Costs

4.9.1 For all sampling conducted by the Department pursuant to these Rules, the Department will charge the Registrant $125 per inspection plus all laboratory costs associated with the inspection.

4.9.2 Registrants selected for inspection and sampling shall reimburse the Department for both the fees and costs incurred by the Department within 30 days of the date of invoice.

4.9.3 Registrant is responsible for paying all fees to approved samplers and third party labs.

4.9.4 The Registrant shall pay for any inspection and laboratory analysis costs, including the costs associated by any authorized sampler and the costs assessed by any laboratory for sampling the THC content of any sample taken.

4.10 Authorized Samplers

4.10.1 Any individual acting as an authorized sampler must possess a valid sampler registration and certification issued by the Commissioner.

4.10.1.1 Each authorized sampler shall complete and file with the Commissioner an application on a form furnished by the Commissioner which contains at a minimum the following: name, address, telephone number and any other information required on the form.

4.10.1.2 Each applicant for an authorized sampler certification shall take a yearly Department-approved sampler training course and pass an examination administered by the Department.

4.10.1.3 The Commissioner, or Commissioner's designee shall administer a general training class on the authorized sampling and handling techniques according to protocols approved by the Commissioner.

4.10.2 The Commissioner may cancel an authorized sampler's registration and certification or refuse to register or certify any person who has engaged in any of the following activities:

4.10.2.1 Consistent disregard for established and approved methods of sampling determined by the Department.

4.10.2.2 Failing or refusing to disclose a conflict of interest.

4.10.2.3 Tampering with samples to influence test results.

4.10.2.4 Purposeful commingling of sampled lots.

8 CCR 1203-23, pt. 4

40 CR 05, March 10, 2017, effective 3/30/2017

41 CR 06, March 25, 2018, effective 4/15/2018

44 CR 13, July 10, 2021, effective 7/30/2021

44 CR 23, December 10, 2021, effective 12/31/2021