3 Del. Admin. Code § 805-8.0

Current through Register Vol. 28, No. 5, November 1, 2024

Section 805-8.0 - Violations

8.1 Destruction. The Department requires the on-site destruction of lots located on outdoor or indoor growing sites that have been determined to have higher than acceptable hemp THC levels. The Department will instruct the licensed producer on acceptable destruction protocol and coordinate with the licensed producer to ensure that lots are destroyed in a manner that renders the lot non-retrievable and unfit to enter the stream of commerce. The Department will require that destruction take place within 72 hours after the Department notifies the licensed producer that destruction is required.

8.1.1 It is the responsibility of a licensed producer to destroy lots by using destruction methods that render the lot non-retrievable and unfit to enter the stream of commerce.

8.1.2 If the Department determines that a lot has higher than acceptable hemp THC levels, the lot must not be further handled, processed, or enter the stream of commerce.

8.1.3 The Department requires that a licensed producer notify the Department if the licensed producer destroys a lot by his or her own determination and independent of a requirement set by the Department.

8.2 Disposal. The Department will require the disposal of a lot that has been determined to have higher than acceptable levels of THC, where on-site destruction is not feasible. The Department will require that disposal take place within 72 hours of notification and shall be the sole responsibility and at the expense of the licensed producer. The Department will coordinate with the licensed producer to ensure that lots are disposed of in a manner that renders the lot non-retrievable and unfit to enter the stream of commerce.

8.3 Harvesting. The Department prohibits any comingling of harvested lots of cannabis plants with other lots or other material without prior written permission from the Department.

8.4 Negligent or Culpable Violations.

8.4.1 A hemp producer shall be subject to enforcement for negligently:

8.4.1.1 Producing cannabis exceeding the acceptable hemp THC level. Hemp producers do not commit a negligent violation under this paragraph if they make reasonable efforts to grow hemp and the hemp does not have a post decarboxylated delta-9 tetrahydrocannabinol concentration of more than 0.5% on a dry weight basis. The Department does require the destruction or disposal of cannabis that exceeds the acceptable hemp THC level.

8.4.1.2 Producing hemp without a license. A new applicant must submit a Delaware Domestic Hemp Production Program Application to the Department no later than February 1st. A licensed producer must submit for renewal prior to license expiration. Licenses are not automatically renewed. Applications for renewal shall be subject to the same terms, information collection requirements, and approval criteria, as required in the initial application.

8.4.1.3 Failing to provide annually, an accurate description of land where hemp is produced using the Annual Growing Site Registration form.

8.4.1.4 Failing to have locked entrances on an indoor growing facility.

8.4.1.5 Failing to adequately display signage, at each entrance to an indoor or outdoor growing site, to indicate a hemp growing site.

8.4.2 Corrective action for negligent violations. For each negligent violation, the Department will issue a Notice of Violation and require a Corrective Action Plan for the licensed producer. The Department shall conduct an inspection to determine if the corrective action plan has been implemented. The licensed producer shall comply with the corrective action plan to cure the negligent violation. Corrective Action Plans will be in place for a minimum of two (2) years from the date of their approval. Corrective Action Plans will, at a minimum, include:

8.4.2.1 A reasonable date by which the licensed producer shall correct the negligent violation;

8.4.2.2 A requirement that the license holder or registration holder shall periodically report to the Department, as applicable, on compliance with the Corrective Action Plan for a period of not less than the next two years from the date of the negligent violation;

8.4.2.3 A description of quality control measures, staff training, and quantifiable action measures taken by the Producer. Producers should document this using the Correction Action Plan template; and

8.4.2.4 If a subsequent violation occurs while a Corrective Action Plan is in place, a new plan must be submitted with a heightened level of quality control, staff training, and quantifiable action measures as defined by the Department.

8.4.3 Negligent violations and criminal enforcement. A licensed producer that negligently violates this part shall not, as a result of that violation be subject to any criminal enforcement action by any federal, state, or local government.

8.4.4 Negligent violations and license revocation. A producer that negligently violates the license 3 times in a 5-year period shall have their license revoked and be ineligible to produce hemp for a period of 5 years beginning on the date of the third violation.

8.4.5 Culpable mental state greater than negligence. If the Department determines that a license holder has violated the terms of the license or of this part with a culpable mental state greater than negligence:

8.4.5.1 The Department shall immediately report the license holder to:

8.4.5.1.1 The U.S. Attorney General; and

8.4.5.1.2 The chief law enforcement officer of the State, as applicable, where the production is located; and subsections 8.4.1 and 8.4.2 of this regulation shall not apply to culpable violations.

8.4.5.2 The Department shall immediately revoke the license. Licenses will be revoked for a period no less than 5 years.

8.5 Licensed producers intending to sell hemp plants or hemp nursery stock must comply with the Delaware Nursery Laws (3 Del.C. Ch. 13).

8.6 Licensed producers intending to apply pesticides must comply with the Delaware Pesticide Laws (3 Del.C. Ch. 12).

8.7 Licenses or registrations may not be sold, assigned, transferred, pledged, or otherwise disposed of, alienated or encumbered.

8.8 In accordance with the provisions of 3 Del.C. § 1108 and 3 Del.C. § 1110, it shall be unlawful to violate or fail to comply with any provisions of these regulations and the person charged with a violation of these regulations shall be assessed a civil penalty, in accordance with 3 Del.C. § 1110.

8.8.1 Any unlicensed person producing, processing, or handling hemp shall be assessed a penalty of not more than $500 per offense. Required to complete application process immediately and all associate fees.

8.8.2 Any license holder or registration holder that interferes or refuses to cooperate with inspection or sampling procedures conducted by the Department shall be assessed a penalty of not more than $500, and not more than $1,000 for each subsequent offense.

8.8.3 Any licensed producer that fails to submit timely reports to the Department shall be assessed a penalty of not more than $100 and not more than $200 for each subsequent offense.

8.8.4 Any license holder or registration holder that fails to respond to the Department's communications within a reasonable amount of time.

8.8.5 No assessment shall be levied until after the party has been notified by certified mail and has been provided an opportunity for a hearing.

8.9 Revocation of a license or registration. Any license or registration issued by the Department may be canceled orally or in writing by the Department whenever the Department determines that the holder of the license or registration has not complied with a provision of these regulations or requirements in Sections 6.0 and 7.0. If the cancellation is oral, the cancellation will become effective immediately, and the cancellation and the reasons for the cancellation will be confirmed in writing as soon as circumstances allow.

8.10 Processors and processor registrations shall be subject to the stipulations in Section 8.0 where applicable.

3 Del. Admin. Code § 805-8.0

23 DE Reg. 494 (1/1/2020) (Emer.)
24 DE Reg. 861 (3/1/2021) (final)