N.Y. Comp. Codes R. & Regs. tit. 1 § 159.10

Current through Register Vol. 46, No. 50, December 11, 2024

Section 159.10 - Sampling for Acceptable Hemp THC Levels

(a) Sampling of Growers/Sampling Agents.

(i) As currently authorized under federal law as an acceptable testing methodology for commercial growers, the Department or sampling agents certified by the Department, shall collect samples from all lots of the unharvested hemp plants of all growers to test for acceptable hemp THC levels within 30 days of the proposed harvest date ("pre-harvest sampling").

(ii) Should the Department receive approval from the USDA to undertake performance-based sampling of growers which would eliminate the requirement to test all lots of all growers, the Department will seek to amend its grower sampling methodology to provide for performance-based sampling, where appropriate.

(iii) Growers of hemp for research and research institutions may, with the written approval of the Department, adopt and carry out performance-based sampling.

(iv) Sampling for regulatory testing for acceptable hemp THC levels shall be conducted either by Department inspectors or sampling agents approved by the Department.

(v) Sampling agents shall be trained and certified by the Department.

(vi) An applicant for State certification to sample hemp shall apply upon a form prepared by the Department, which application shall require a current criminal history report issued no more than 60 days prior to submission of the application to sample hemp.

(vii) The Department shall maintain and post a list of certified sampling agents on its website.

(viii) Should the Department be required to provide sampling services, the grower shall pay a sampling fee equal to the actual cost of procuring the sample, mailing, or delivering the sample to the lab, and performing the laboratory analysis for each lot sampled by the Department.

(ix) The cost of sampling by a Department-certified sampler will be determined by agreement between the sampling agent and the grower.

(b) Procedures for obtaining pre-harvest regulatory sampling.

(i) The grower, using the Department's pre-harvest report form, shall notify the Department of the anticipated date for the harvest of its hemp crop and the number of lots to be harvested. The preharvest report form shall be delivered to Department so that it arrives no less than 30 days before the anticipated harvest date.

(ii) The grower shall notify the Department in writing of any anticipated delay to the proposed date of harvest, which shall extend the time to complete the regulatory sampling by the number of days of the commencement of the harvest is delayed. If the harvest is delayed beyond 30 days after a sample has been taken, a new sample must be taken and tested prior to harvest.

(iii) Pre-harvest sampling shall only be conducted by the Department or a Department-certified sampling agent. Plant material sampling by the grower or the grower's agent does not satisfy preharvest regulatory testing requirements and the plant material generated by the grower's sampling shall not be used for the Department's regulatory testing sampling.

(iv) The grower shall not harvest its hemp until a Department inspector, or a Department-certified sampling agent, has completed the pre-harvest sampling of the grower's hemp or until the grower has received written approval to harvest from the Department.

(v) Harvested hemp shall remain in the possession and control of the grower and not sold unless the testing required by this Part demonstrates that the lot of harvested hemp meets the acceptable hemp THC level and, accordingly, may enter the stream of commerce.

(c) Sampling of the hemp crop.

(i) The Department and the sampling agents shall be provided with complete and unrestricted access to the grower's premises during business hours, to all hemp and other hemp plants and plant parts, whether growing or harvested, and all land, buildings and other structures used for the cultivation, handling, and storage of all hemp and cannabis and all locations listed in the grower's license.

(ii) If requested by the Department, the grower shall provide an authorized representative of the grower to be present for the scheduled sampling.

(iii) The Department's inspectors or Department-certified sampling agents shall sample the parts of unharvested hemp plants using a sampling method that is sufficient, at a confidence level of 95 percent, to conclude that no more than one percent of the plants in the lot exceed the acceptable hemp THC level or such other sampling method that the Department believes appropriate to ensure that the hemp produced by the grower does not exceed the acceptable hemp THC level.

(iv) The Department or Department-certified sampling agents shall sample hemp grown using a sampling protocol published by the Department and posted on the Department website.

(v) The sampling protocol may be amended from time to time, at the Department's discretion, provided that the amended protocol is posted on the Department's website, and shall go into effect for the following year's growing season.

(vi) Samples of the cultivated hemp for the Department's regulatory testing shall be obtained from the flowering tops of plants when flowering tops are present and shall be approximately five to eight inches in length from the "main stem" (including the leaves and flowers), "terminal bud" (that occurs at the end of a stem), or "central cola" (cut stem that could develop into a bud) of the flowering top of the plant.

(vii) Samples of hemp plant material from one lot shall not be comingled with hemp plant material from other lots.

N.Y. Comp. Codes R. & Regs. Tit. 1 § 159.10

Adopted New York State Register April 6, 2022/Volume XLIV, Issue 14, eff. 4/6/2022