N.Y. Comp. Codes R. & Regs. tit. 1 § 159.15

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

Section 159.15 - Infractions and Violations

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.

N.Y. Comp. Codes R. & Regs. Tit. 1 § 159.15

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