22.05.140 Procedure for inspecting, sampling, and testing.
(a) The Department shall conduct regular inspections of hemp producers to ensure compliance with this chapter, applicable federal regulations, and required THC concentration.
(1) Inspections will be at least annually, they may be randomly selected, and they may be performed without notice.
(2) Inspectors shall be certified pursuant to the USDA and Yurok laws and regulations.
(3) During a scheduled sample collection, the Tribal producer or an authorized representative of the Tribal producer must be present at the growing site.
(4) During inspection and sampling, inspection/sampling representatives must be provided with complete and unrestricted access during business hours to all hemp and other cannabis plants, whether growing or harvested, and all land, buildings, and other structures used for the cultivation, handling, and storage of all hemp and other cannabis plants, and all locations listed in the Tribal producer license.
(5) All licensees shall grant the Department unrestricted access to the registered land area(s) and accompanying facilities, any piece of land, building, greenhouse, and other structures used for the cultivation, handling, and storage of all hemp and other cannabis plants, and all locations listed in the producer license.
(6) Hemp plant materials from one lot cannot be commingled with hemp plant material from other lots.
(7) All samples collected by the Department shall become the property of the Department and no compensation shall be owed by the Department for such samples.
(b) A hemp producer must arrange for and ensure the sampling of each harvest lot no more than 30 calendar days prior to harvest, or within such other period of time set forth in the USDA hemp regulations at 7 C.F.R. Part 990 et seq. as amended from time to time, for the purpose of ensuring that the harvest lot does not exceed the acceptable hemp THC level. If the producer fails to complete harvest within 30 days of sample collection, or within such other period of time set forth in the USDA hemp regulations at 7 C.F.R. Part 990 et seq. as amended from time to time, the hemp producer shall be required to submit a secondary pre-harvested sample of the lot for testing.
(c) A hemp producer may remove a harvest lot from a registered land area prior to receiving test results as set out in this section, so long as the required sample has been submitted and the harvest lot does not enter the stream of commerce until test results have been received.
(d) Compliance and safety testing for hemp and hemp products required by these rules shall be conducted by federally designated or independent laboratories accredited to ISO/IEC 17025, the standard published by the International Organization for Standardization (the “ISO”) titled “General Requirements for the Competence of Testing and Calibration Laboratories,” or an accreditation standard approved by the Department because the laboratory uses appropriate, validated methods and procedures for all testing activities and who also evaluate measurement of uncertainty as controlled by the USDA federal regulations.
(e) A producer must have an approved Yurok sampling agent pursuant to USDA regulations and Yurok laws and regulations who will collect samples from the flower material of such cannabis material for delta-9 tetrahydrocannabinol concentration level testing.
(f) For each sample tested pursuant to this section, the hemp producer shall obtain from a laboratory a certificate of analysis that includes, at a minimum, the following information:
(1) General information identifying that the hemp that is the subject of the certificate of analysis is the product of a sample tested by the independent testing laboratory; and
(2) The procedure for testing was able to accurately identify whether the sample contains a delta-9 tetrahydrocannabinol content concentration level that exceeds the acceptable hemp THC level.
(3) The procedure shall include a validated testing methodology that uses postdecarboxylation or other similarly reliable methods with AMS and S&T or as otherwise permitted under the USDA hemp regulations at 7 C.F.R. Part 990 et seq. as amended from time to time.
(4) The methodology shall consider the potential conversion of delta-9 tetrahydrocannabinolic acid (THC-A) in hemp into THC and the test result measures total available THC derived from the sum of the THC and THC-A content, or shall abide by such other testing requirements permitted under the USDA hemp regulations at 7 C.F.R. Part 990 et seq. as amended from time to time.
(5) The testing methodologies meeting the requirements of this subsection (f) include, but are not limited to, gas or liquid chromatography with detection.
(A) Any test of a representative sample resulting in higher than the acceptable hemp THC level shall be conclusive evidence that the lot represented by the sample is not in compliance with this section.
(B) Lots tested and not certified by a laboratory consistent with the Department’s policies, as amended from time to time, at or below the acceptable hemp THC level may not be further handled, processed, or entered into the stream of commerce and the producer shall ensure the lot is disposed of in accordance with 7 C.F.R. Part 990.27 of the USDA federal regulations, and the Yurok laws, regulations, and policies and procedures.
(6) The testing procedures shall determine the total THC concentration on a dry weight basis.
(7) Analytical testing for purposes of detecting the concentration levels of THC shall meet the following standards:
(A) Laboratory quality assurance must ensure the validity and reliability of test results;
(B) Analytical method selection, validation, and verification must ensure that the testing method used is appropriate (fit for purpose), and that the laboratory can successfully perform the testing;
(C) The demonstration of testing validity must ensure consistent, accurate analytical performance;
(D) Method performance specifications must ensure analytical tests are sufficiently sensitive for the purposes of the detectability requirements of this section; and
(E) An effective disposal procedure for hemp plants that are produced that do not meet the requirements of this section.
(i) The procedure must be in accordance with DEA reverse distributor regulations found at 21 C.F.R. 1317.15, and Yurok laws, regulations and policies and procedures.
(ii) Measurement of uncertainty (MU) must be estimated and reported with test results. Laboratories shall use appropriate, validated methods and procedures for all testing activities and evaluate measurement of uncertainty.
(g) The Department shall promptly notify the Administrator by certified mail or electronically of any occurrence of cannabis plants or plant material that exceed the acceptable hemp THC level, and attach the records demonstrating the appropriate disposal of all of those plants and materials in the lot from which the representative samples were taken.
(1) The measurement of uncertainty will be included as part of any hemp test results; and
(2) The date the hemp was sampled, the date testing was performed, and methodology used to analyze the sample; and
(3) The THC concentration contained in the test sample; and
(4) A statement indicating whether the sample contained a THC concentration of not more than the acceptable hemp THC level.
(5) The Yurok Hemp Plan relies on the same standard as the USDA definition of “acceptable hemp THC level” to account for the uncertainty in the test results.
(h) One sample per lot of hemp shall be collected pursuant to USDA sampling guidelines for hemp growing facilities.
(i) The method used for sampling from the flower material:
(1) Must ensure that samples are obtained from the flowering tops of plants when flowering tops are present, and that those samples are approximately five to eight inches in length from the “main stem” (including leaves and flowers), “terminal bud” (occurring at the end of the stem), or “central cola” (cut stem that could develop into a bud) of the flowering top of the plant;
(2) Must ensure that a representative sample is collected that represents a homogenous composition of the lot; and
(3) Must be sufficient at a confidence level of 95 percent that no more than one percent of plants would exceed acceptable hemp THC level.
(j) A hemp producer may apply to the Department for retesting and/or resampling of any noncompliant harvest lot, which may be approved or denied at the Department’s discretion.
(k) Nothing in this section shall prevent a hemp producer from voluntarily collecting samples and testing hemp for quality assurance and research and development purposes. [Ord. 78 § 22103, amended, 6/23/2022; Ord. 68 § 22104, amended, 5/21/2020.]