Cal. Code Regs. Tit. 3, § 4951 - Corrective Action Plan

(a) If the commissioner finds a cultivator has negligently violated Food and Agricultural Code Division 24 or this chapter, the commissioner shall issue a notice of violation and require a corrective action plan be provided by the cultivator. Negligent violations, defined as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation shall include:

(1) failing to provide a legal description of the land on which the cultivator cultivates hemp,

(2) failing to obtain registration prior to cultivation, or

(3) producing hemp with a THC concentration greater than the acceptable hemp THC level except that cultivators do not commit a negligent violation for producing hemp with a THC concentration greater than the acceptable hemp THC level if the crop does not have a total delta-9 tetrahydrocannabinol concentration of more than 1.0 percent on a dry weight basis.

(b) A notice of violation shall describe:

(1) the violations charged to the recipient,

(2) the right to request a hearing before the commissioner via a written appeal, as specified in Section 4952(a), including the email, mailing address, physical address, and/or website that may be used to submit an appeal

(3) a corrective action plan, and

(4) an administrative hold, if applicable.

(c) A notice of violation that is sent by certified mail to the last known address of the person charged shall be considered received even if delivery is refused or the notice is not accepted at that address.

(d) If the commissioner determines that hemp grown not in compliance with Food and Agricultural Code Division 24 or this chapter will negatively affect the welfare or well-being of the general public, it is in the public interest to issue an order for the administrative hold of hemp:

(1) The order shall provide a description of the hemp to be subject to the administrative hold.

(2) Within twenty-four (24) hours of receipt of the order for administrative hold, the person in possession of the hemp subject to the hold shall physically segregate, safeguard and preserve all industrial hemp subject to the hold in the area designated on the licensee's premises diagram.

(3) While the administrative hold is in effect, the person in possession of the industrial hemp is restricted from selling, donating, transferring, transporting, gifting, giving away, or destroying the industrial hemp that is subject to the hold.

(4) Nothing herein shall prevent a registrant from continued possession, cultivation, or harvesting of the industrial hemp subject to the administrative hold. While the administrative hold is in effect, all industrial hemp subject to the hold shall be segregated from industrial hemp that is not subject to hold.

(5) Nothing herein shall prevent a person in possession of the hemp from voluntarily surrendering industrial hemp subject to an administrative hold to the commissioner. The registrant shall identify the hemp being voluntarily surrendered. Voluntary surrender does not waive the right to a hearing and any associated rights.

(6) Nothing herein shall prevent the person who is in possession of the hemp from inspecting it or from taking a sample according to Section 4941 and testing according to Section 4942 for evidence while in the presence of a person designated by the commissioner.

(7) The hold order shall be nullified upon issuance of a decision under Section 4952(a), (b), or (c) that finds the person charged in the notice of violation was not and is not in violation as so charged.

(8) If the notice of violation places a hold on hemp, or requires a person to cease operations, the notice of violation shall remain in effect pending the outcome of the hearings in Section 4952(a), (b), or (c).

(9) Nothing herein shall be construed to extend required destruction timeframes and waive prohibitions on cultivation or harvest in Division 24 of the Food and Agricultural Code or this chapter.

(10) The Commissioner shall remove a hold order upon finding that the violation that caused the hold order has been corrected.

(e) The commissioners or the Department shall not apply more than one negligent violation towards the eligibility requirement outlined in Section 4951(k) per calendar year.

(f) The cultivator will be required to provide a corrective action plan to the commissioner within 30 calendar days from the receipt of the notice of violation. The thirty-day period shall be tolled until the appeal periods described in Sections 4952(a), (b), or (c)(2), when applicable, have expired. The corrective action plan shall include:

(1) a reasonable date, not to exceed 45 calendar days, by which the cultivator shall correct the violation,

(2) measures to correct the violation, and

(3) periodic reporting to the commissioner on its compliance with the requirements of Division 24 of the Food and Agricultural Code, this chapter, and the corrective action plan for a minimum of two years from the date of the violation.

(g) The corrective action plan shall be approved by the commissioner prior to implementation of the corrective action plan.

(h) The commissioner shall confirm compliance with the corrective action plan by conducting field inspections. The commissioner shall be provided with complete and unrestricted access during business hours to all hemp and other cannabis, 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 registered as a cultivation site.

(i) Failure to comply with this section shall result in revocation of registration and the existing crop may be considered non-compliant and subject to destruction in accordance with Section 4950.

(j) Revocation shall be effective within 30 calendar days from the notice of violation of the corrective action plan unless appealed pursuant to Section 4952.

(k) After 30 calendar days from revocation date and if the applicant intends to cultivate industrial hemp, the applicant shall submit a new registration application in accordance with the registration procedures outlined in Section 4901(a) and if requested by the commissioner, a corrective action plan.

(l) Any registrant, key participant, established agricultural research institution, or hemp breeder that commits a negligent violation three times in a five-year period shall be ineligible to participate in the industrial hemp program for a period of five years beginning on the date of the finding of the third violation.

(m) A cultivator shall not, as a result of a negligent violation, be subject to any criminal enforcement action by the state or local government.

(n) The Secretary shall immediately report any violations that are determined by the department or commissioner to have been conducted with a mental state greater than negligence which is defined as acting intentionally, knowingly, willfully, recklessly, or with criminal negligence including, but not limited to, intentionally, with recklessness, or with gross negligence, to the Attorney General of the United States and the Attorney General of California. Subsections (a) through (g) of this section shall not apply to such violations.

Notes

Cal. Code Regs. Tit. 3, § 4951

1. New section filed 7-11-2022 as an emergency; operative 7-11-2022 (Register 2022, No. 28). A Certificate of Compliance must be transmitted to OAL by 1-9-2023 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 1-3-2023 as an emergency; operative 1-3-2023 (Register 2023, No. 1). A Certificate of Compliance must be transmitted to OAL by 4-3-2023 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 1-3-2023 order, including editorial correction of subsection lettering, amendment of subsections (d)(7)-(8), (f) and (j), new subsection (k), subsection relettering and amendment of newly designated subsection (l), transmitted to OAL 3-29-2023 and filed 5-11-2023; amendments effective 5-11-2023 pursuant to Government Code section 11343.4(b)(3) (Register 2023, No. 19).

Note: Authority cited: Sections 407, 81003, 81004, 81004.5 and 81012, Food and Agricultural Code. Reference: Section 81012, Food and Agricultural Code.

1. New section filed 7-11-2022 as an emergency; operative 7/11/2022 (Register 2022, No. 28). A Certificate of Compliance must be transmitted to OAL by 1-9-2023 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 1-3-2023 as an emergency; operative 1/3/2023 (Register 2023, No. 1). A Certificate of Compliance must be transmitted to OAL by 4-3-2023 or emergency language will be repealed by operation of law on the following day.
3. Certificate of Compliance as to 1-3-2023 order, including editorial correction of subsection lettering, amendment of subsections (d)(7)-(8), (f) and (j), new subsection (k), subsection relettering and amendment of newly designated subsection (l), transmitted to OAL 3-29-2023 and filed 5-11-2023; amendments effective 5/11/2023 pursuant to Government Code section 11343.4(b)(3) (Register 2023, No. 19).