3 Del. Admin. Code § 805-6.0 - Sampling, Testing Requirements and Inspections

6.1 Sampling:

6.1.1 Sampling of hemp plants as required by the USDA, will be conducted by a sampling agent designated by the Department. Sampling agents will follow USDA and Department protocol for entering hemp growing sites and collecting the minimum number of plant specimens necessary to represent a homogenous composition of the lot that is to be sampled. The sampling agent will conduct one pre-harvest sample for each lot per licensed producer.

6.1.2 The Department requires that a licensed producer submit fees associated with sampling and testing, and if applicable resampling and retesting, at a total of $350 per sample collected. Fees are to be collected by the Department prior to sampling.

6.1.3 If a licensed producer fails to complete harvest within 15 days of sample collection, the Department will collect a second pre-harvest sample of the lot to be submitted for testing.

6.1.4 A licensed producer or an authorized representative can request that the sampling process be conducted during a time that they are present at the growing site, however, sampling agents shall be provided complete and unrestricted access during business hours to cannabis plants, whether growing or harvested, and land, buildings, and other structures used for the cultivation, handling, and storage of all cannabis plants, and locations listed in the producer license.

6.1.5 Within 30-15 days prior to the anticipated harvest of cannabis plants, a licensed producer or an authorized representative of the licensed producer, as documented on the Delaware Domestic Hemp Production Program Application, shall notify the Department of the anticipated date of harvest via phone or email.

6.1.6 Within 15 days prior to the date of harvest, as indicated by the licensed producer or authorized representative of the licensed producer, as documented in the Delaware Domestic Hemp Production Program Application, a sampling agent shall collect representative samples from cannabis plants to submit for testing of THC concentration levels.

6.1.7 The sampling agent will not collect samples on lots where cannabis plants have not matured to flowering stage, as the USDA requires that samples consist of flower material.

6.1.8 A licensed producer or any other individual shall not harvest cannabis plants prior to samples being collected by the Department. A licensed producer or other individual may harvest lots that have been sampled by the Department but shall not remove harvested material from a growing site or comingle harvested lots without written authorization from the Department.

6.1.9 The growing site must be surveilled by the sampling agent. The sampling agent shall:

6.1.9.1 Verify the GPS coordinates of the growing site and lot as compared with the GPS coordinates submitted by the licensee to FSA;

6.1.9.2 Estimate the average height, appearance, approximate density, condition of the hemp plants, and degree of maturity of the flowering material, meaning inflorescences; and

6.1.9.3 Visually estimate the homogeneity of the lot to be sampled to establish that the lot is of like variety.

6.1.10 Cuttings from each individual lot, as identified by a licensed producer, and submitted by the producer to the FSA as per the requirements of the USDA, shall be organized as composite samples. Lots are to be defined by the producer. Producers must utilize guidelines from the Department for identifying lots, identification must be based on farm location, planting date, and variety. Producers are responsible for reporting lot identification to the FSA.

6.1.10.1 For purposes of determining the number of individual plants to meet sampling protocol as determined by the USDA sampling protocol document, the size of each individual lot shall be considered by the Department and sampling agent. For sampling purposes, samples from separate lots must remain separated and are not to be comingled.

6.1.10.2 For lots of less than four acres, including indoor growing sites, the sampling agent will collect a minimum of five cuttings to form one composite sample. For lots greater than four and fewer than ten acres, including indoor growing sites, the sampling agent will collect a minimum of one cutting per acre to form a composite sample.

6.1.10.3 For lots larger than 10 acres, including indoor growing sites, the number of plants that will be selected to form a composite sample is based upon the Codex Alimentarius Recommended Methods of Sampling for the Determination of Pesticide Residues for Compliance with MRLS CAC/GL 33-1999, in accordance with USDA.

6.1.10.4 A licensed producer may contact the Department to request that a second sample be collected for retesting if it is believed the original THC concentration level test results were in error.

6.1.11 When collecting samples from each lot, the sampling agent must:

6.1.11.1 Always walk through the lot following a sawtooth pattern, beginning at one point of the lot and walking towards another point located on the opposite side of the lot.

6.1.11.2 Walk access roads, drainage ditches, or other accessible paths that allow penetration into the lot (stand), in cases where the lot (stand) is determined too dense and walking through is deemed impossible.

6.1.11.3 Cut at least "n" flower material at random distances in the lot, while walking a sawtooth pattern.

6.1.11.4 Avoid collecting too many cuttings from the borders of the field or indoor growing site, high spots or low spots in the lot, and male plants.

6.1.11.5 Make the cut of a cannabis plant just underneath the flower material. Each composite sample will contain cuttings of flower material from the uppermost areas of the plant consistent with a ratio of two-fifths of n. The remainder of the composite sample will be collected from the upper one-third of the plant. The sample size must be of adequate volume, as determined by the Department, to accommodate laboratory tests.

6.1.11.6 Utilize one paper sample bag, per lot, for collecting cuttings.

6.1.11.7 Seal each bag with a laboratory sticker and record the sample identification information and date on the bag.

6.1.12 The Department will label samples for submission to the laboratory using the following information:

6.1.12.1 Producer license number;

6.1.12.2 Date of sample (month, day, year); and

6.1.12.3 Lot identification as outlined by the Department and reported to FSA.

6.2 Testing:

6.2.1 The Department will contract with a USDA approved laboratory to perform THC tests and require that test results be shared with the licensed producer, the Department, and the USDA.

6.2.2 A cannabis sample collected and submitted by the Department for testing is required in order to regulate that hemp plants produced in the state of Delaware contain acceptable THC levels. Test results are intended to measure the THC concentration levels of composite cannabis samples collected from individual lots.

6.2.3 The laboratory used for testing regulatory samples of cannabis, collected and submitted by the Department, is a USDA approved laboratory and meets testing protocol and compliance standards as required by USDA. (7 CFR Part 990 Domestic Hemp Production Program).

6.2.4 The Department will review the measurement of uncertainty to make final determinations regarding acceptable THC levels. (7 CFR Part 990.3a(3) iii (F)).

6.2.5 The Department does not guarantee that regulatory sampling and testing conducted by the Department will be in compliance with other State regulatory authorities.

6.3 Inspections:

6.3.1 The Department will conduct annual inspections of, at a minimum, a random selection of license holders and registration holders to verify that hemp is not produced or processed in violation of this Program. The Department shall have access, during reasonable business hours, to any premises where hemp plants may be held.

6.3.2 The Department requires that the following records be made available to the Department during reasonable business hours:

6.3.2.1 Acquisition of hemp plants.

6.3.2.2 Production and handling of hemp plants.

6.3.2.3 Storage of hemp plants.

6.3.2.4 Disposal of hemp plants. A producer that disposes of hemp plants is required to notify the Department within ten days of disposal or destruction, using the Disposal Certificate form.

6.3.3 If the Department finds that pesticides are being sprayed, the licensed producer is subject to inspections by pesticide inspectors under the authority of Delaware Pesticide Laws (3 Del.C. Ch. 12).

6.3.4 If the Department finds that hemp plants or hemp nursery stock are being sold, the licensed producer is subject to inspection by nursery inspectors under the authority of Delaware Nursery Laws (3 Del.C. Ch. 13).

Notes

3 Del. Admin. Code § 805-6.0

24 DE Reg. 861 (3/1/2021) (final)