Chapter 32-7 SAMPLING, TESTING, DISPOSAL, AND REMEDIATION

CHAPTER 32-7
SAMPLING, TESTING, DISPOSAL, AND REMEDIATION

32-7-1 Standards, Methods and Procedures.

The person or entity carrying out sampling, testing, or disposal of hemp or marijuana must comply with all requirements and standards in this title. This title shall automatically be updated to incorporate all USDA guidance documents on sampling, testing, and disposal methods.

(Enacted by PBP TC No. 2020-141, May 6, 2020; amended by PBP TC No. 2021-291, July 28, 2021)

32-7-2 Sample Collection.

(A) Planting Report. Within fourteen (14) calendar days after the completed planting of any hemp crop, each producer shall submit to the Tax Commission a planting report that includes the geospatial location coordinates and a map showing the location and actual acreage or square feet of hemp planted within the producer’s registered land area.

(B) Pre-Harvest Notification. A producer must ensure that, within thirty-five (35) days prior to the anticipated harvest of cannabis plants, the producer submits a pre-harvest notification to the Tax Commission and that within thirty (30) days prior to the anticipated harvest of the cannabis plants, the person designated by the Tax Commission collects samples from the flower material from such cannabis plants for delta-9 tetrahydrocannabinol concentration level testing to establish whether the cannabis plants of each lot have an acceptable hemp THC level.

(D) Samples of hemp plant material from one (1) lot shall not be commingled with hemp plant material from other lots.

(1) All samples collected will be specifically labeled and sealed appropriately from one lot before moving to sampling the next lot.

(2) The sampler will seal each bag with the hemp production license identifier.

(3) The sample shall also identify the following: sampler contact information; name and contact information of the producer; producer hemp license or authorization number; date of sample; and “lot” ID; any other information that may be required by the Nation, mail delivery services, customers or groups of customers.

(4) This procedure will ensure plant material from one (1) lot will not be comingled with hemp plant material from other lots.

(5) The designated sampler will be provided with necessary equipment and supplies to carry out proper testing techniques.

(E) The method used for sampling from the flower material of the cannabis plant must be sufficient at a confidence level of ninety-five (95) percent that no more than one (1) percent of the plants in the lot would exceed the acceptable hemp THC level. The method used for sampling must ensure that a representative sample is collected that represents a homogeneous composition of the lot.

(F) During a scheduled sample collection, the producer or an authorized representative of the producer must be present at the growing site.

(G) The person or entity designated by the Tax Commission to collect samples shall be provided with complete and unrestricted access during business hours to the registered land area and all hemp and other cannabis plants, whether growing or harvested, and all land, buildings, and other structures used for the production and handling of all hemp and other cannabis plants.

(1) Samplers must be trained under applicable Nation training procedures.

(2) The Nation will maintain information, available to licensees, on all approved samplers.

(H) A producer shall not harvest the cannabis crop prior to sampling by the Tax Commission.

(I) A producer shall not remove hemp from its registered land area, other than for testing purposes, until such test results for that hemp have been completed and the Tax Commission releases that hemp by notification to the producer.

(1) Nothing in this section shall prevent a hemp producer from voluntarily collecting samples and testing hemp and hemp products for quality assurance, and for research and development purposes. The Tax Commission will not consider this type of self-testing to be official and will not count toward proving if the acceptable hemp THC concentration level is met.

(J) The costs of all sampling shall be paid for by the producer.

(Enacted by PBP TC No. 2020-141, May 6, 2020; amended by PBP TC No. 2021-291, July 28, 2021)

32-7-3 Testing.

(A) The Tax Commission, or the person or entity designated by the Tax Commission to collect samples, shall deliver the sample to the laboratory to accurately identify whether the sample contains a delta-9 tetrahydrocannabinol content concentration level that exceeds the acceptable hemp THC level.

(1) After December 31, 2022, the Nation will only use DEA-registered labs to conduct testing as required by 7 C.F.R. §990.25(g)(3).

(B) Testing shall conform to any chain of custody protocol specified by the Tax Commission.

(C) Analytical testing for purposes of detecting the concentration levels of THC in the flower material of the cannabis plant shall meet the following standards:

(1) Laboratory quality assurance will ensure the validity and reliability of test results;

(2) Analytical method selection, validation, and verification will ensure that the testing method used is appropriate (fit for purpose), and that the laboratory can successfully perform the testing;

(3) The demonstration of testing validity will ensure consistent, accurate analytical performance; and

(4) Method performance specifications will ensure analytical tests are sufficiently sensitive for the purposes of the detectability requirements of this part.

(D) The procedure for testing must be able to accurately identify whether the sample contains a delta-9 tetrahydrocannabinol content concentration level that exceeds the acceptable hemp THC level. At a minimum, analytical testing of samples for delta-9 tetrahydrocannabinol concentration levels must use postdecarboxylation or other similarly reliable methods approved by the Tax Commission. The testing methodology must consider the potential conversion of THC acid (THCA) in hemp into THC and the test result reflect the total available THC derived from the sum of the THC and THC–A content.

(E) The total THC concentration level shall be determined and reported on a dry weight basis.

(F) Measurement of uncertainty must be estimated and reported with test results. Independent laboratories shall use appropriate, validated methods and procedures for all testing activities and evaluate measurement of uncertainty. Independent labs must meet the AOAC International Standard Method Performance Requirements (SMPR) for selecting the methods used for testing.

(G) The laboratory that conducts the test of the sample(s) shall notify the Tax Commission of the test results.

(1) If the test results indicate the acceptable hemp THC level is met, the Tax Commission shall inform the producer and release the lot from which the samples were taken by notification to the producer.

(2) If the test results indicate the acceptable hemp THC level is not met, the Tax Commission shall inform the producer.

(H) The cost of all testing shall be paid by the producer.

(Enacted by PBP TC No. 2020-141, May 6, 2020; amended by PBP TC No. 2021-291, July 28, 2021)

32-7-4 Disposal and Remediation.

(A) Any sample test result that exceeds the acceptable hemp THC level according to laboratory results obtained through tribal sampling and testing protocols shall be conclusive evidence that the lot represented by the sample is not in compliance with this title.

(B) A producer who believes that the original THC level test results were in error may request retesting of the original sample. Such retesting shall be performed in the same way and to the same standards as the original sampling and testing.

(C) Any lot tested that does not meet the acceptable hemp THC level shall be subject to disposal or remediation; all hemp plants in the lot shall either be remediated to bring the lot under the acceptable hemp THC concentration level, or all plants shall be disposed of in a manner that renders the lot nonretrievable.

(1) Disposal means destroying noncompliant hemp by performing any one (1) or combination of the following on-farm activities: plowing under, mulching/composting, disking, bush mowing, deep burial, and burning.

(2) Remediation refers to the following processes by which noncompliant hemp is rendered compliant:

(a) Blending or shredding the entire plant into biomass plant material.

(i) The entire lot containing noncompliant hemp must be shredded to create a homogenous, uniform biomass using shredders, composters, or specialty mechanical equipment.

(ii) All biomass plant material created in this process must be kept separate from any compliant hemp stored in the area and clearly labeled as hemp for remediation purposes before it is removed to enter a stream of commerce.

(iii) All biomass plant material that does not meet acceptable hemp THC concentration levels must be disposed of rendering the entire lot nonretrievable.

(b) Disposing of floral materials and salvaging the remainder of the plant, retaining stalks, leaves, and seeds.

(i) Licensees may remove floral materials by hand or by mechanical means and are subject to the approved disposal methods provided in this plan.

(ii) All remaining hemp materials salvaged using this process must be kept separate and clearly labeled as hemp for remediation purposes until floral materials can be properly disposed.

(iii) Additional sampling and testing of the post-remediated crop must occur to determine THC concentration levels before it is rendered compliant and can be entered into a stream of commerce.

(D) The producer must notify the Tax Commission and the USDA of its intent to dispose or remediate noncompliant hemp materials by submitting required documentation in accordance with tribal regulations. As follow up, the producer will provide verification of disposal or remediation documentation to the Tax Commission and the USDA.

(1) The Tax Commission may require verification of disposal or remediation by requiring pictures, videos, or other proof of disposal or remediation.

(2) The Tax Commission may require in-person verification of disposal or remediation by assigned personnel, Tribal Police, or an approved reverse distributor during or after the process.

(E) It is the sole responsibility of the producer to pay any fees associated with resampling, remediation, and/or disposal without compensation from the Tribe.

(Enacted by PBP TC No. 2020-141, May 6, 2020; amended by PBP TC No. 2021-291, July 28, 2021)