Or. Admin. Code § 603-048-8021

Current through Register Vol. 63, No. 10, October 1, 2024

Section 603-048-8021 - [Effective until 1/14/2025] Notice of Detainment for Presumptive Marijuana

(1) The Department may detain, seize, or embargo all cannabis that is determined to be presumptive marijuana pursuant to OAR 845-026-4110 in accordance with ORS 561.605 to 561.630.

(a) If the licensee or person in possession of the subject cannabis does not request a hearing within the timeline and manner described in written notification from the Department, withdraws a request for hearing, notifies the Department or the administrative law judge that they will not appear, or fails to appear at a scheduled hearing, the Department may summarily destroy or otherwise dispose of the cannabis, or summarily issue an order requiring the licensee or person in possession to dispose of the subject cannabis in accordance with OAR 603-048-0640.

(b) A licensee may only rebut a finding that the cannabis is presumptively marijuana by conducting valid pre-harvest sampling and testing that is performed by the Department in accordance with OAR 603-048-0600. Pre-harvest sampling and testing that is not performed by the Department is insufficient to rebut a finding that the cannabis is presumptively marijuana. The Department is not responsible for any costs for any pre-harvest testing.

(A) To request sampling and testing for purposes of rebutting a finding that cannabis is presumptively marijuana, within three (3) calendar days from the date the Department issued the notice of detainment, seizure, embargo a grower must submit to the Department, a completed sampling request form provided by the Department that includes:

(i) A written sampling request for THC analysis for each harvest lot, as identified by the harvest lot identifier, for which the grower is requesting sampling and testing and the total number of harvest lots to be sampled and tested;

(ii) A description of the location of the production area of each harvest lot, as identified by the harvest lot identifier, including the GPS coordinates or address of the harvest lot; and

(iii) A written description and visual depiction of each harvest lot to be sampled and tested such that the production area for each harvest lot is apparent from a visual inspection of the premises and easily discernible from other harvest lots.

(B) Harvest lots or production areas sampled and tested by the Department in compliance with OAR 603-048-0600 that pass testing under OAR 603-048-0600 may be released from detainment. The Department shall not issue an order to destroy until the time to request sampling and preharvest testing has expired.

(C) Cannabis that does not pass testing must be destroyed in accordance with 603-048-0640, except that when requesting approval to dispose of the presumptive marijuana in accordance with OAR 603-048-0640(2)(a), the licensee must submit the request at least two (2) calendar days, not including weekends and holidays, prior to disposal.

(2) Hearings.

(a) If a hearing is requested, as described in 603-048-8021(1)(a), the hearing and the order shall be issued as soon as practicable and not later than the timelines set out in this rule, unless the reason for the delay is explained in the final order.

(A) A hearing held pursuant to a timely request shall be conducted within 11-20 calendar days of the request unless:

(i) the Department requests a postponement; or

(ii) the licensee requests a delay and the administrative law judge determines there is good cause or the Department otherwise agrees to a postponement.

(B) The record shall be closed within 48 hours from the conclusion of the hearing.

(C) A proposed or final order must be issued by the administrative law judge within five (5) days, excluding weekends and holidays, from the closing of the record unless the administrative law judge determines there is good cause to delay the proposed or final order.

(b) OAH may select a hearing date and notify the licensee and the Department in writing. The hearing date may be changed with good cause.

(c) OAH may serve and communicate with the licensee by electronic mail unless the licensee requests in writing that service be accomplished by facsimile or regular mail. Service by e-mail is effective at the time a properly addressed email is sent. For cases where final order authority is delegated to OAH, OAH shall also mail a copy of the final order to the licensee.

(d) Discovery and Exchange of Exhibits and Witness Lists.

(A) Witness information and documents or objects planned to be offered as evidence as described in OAR 137-003- 0566(1)(a)-(c) must be exchanged no later than three (3) calendar days before the hearing date unless there is good cause for delay.

(B) Requests for production of documents to the Department are limited to the following:

(i) The licensee's application for the current license;

(ii) Sampling and testing documentation for the cannabis subject to the disputed notice of detainment;

(iii) Any inspection report regarding the sampling and testing of the cannabis subject to the disputed notice of detainment prepared by the Department or the Department's designee.

(C) Requests for admission and written interrogatories are limited to a total of 10 separate requests (each subpart to count as a separate request).

(D) Depositions of Department witnesses, staff, or designees are not authorized.

(e) Motions for summary determination are not available in contested case proceedings regarding notices of detainment issued under this rule.

(f) A final order issued by OAH that finds in the Department's favor shall require the licensee or person in possession to dispose of the subject cannabis in accordance with OAR 603-048-0640 within ten (10) calendar days from the date of the order unless extended in writing by the Department.

(3) A licensee subject to a detainment, seizure, embargo, or disposal order under this section must comply with OAR 603-048-0900(4) except that the cannabis may be sampled by the Department for the purposes of pre-harvest testing in accordance with this rule.

(4) A licensee must dispose of presumptive marijuana ordered to be disposed of under this rule in accordance with OAR 603-048-0640, except that when requesting approval to dispose of the presumptive marijuana in accordance with OAR 603-048-0640(2)(a), the licensee must submit the request at least two (2) calendar days, not including weekends and holidays, prior to disposal. The licensee must dispose of the presumptive marijuana by the date the final order requires destruction unless extended by the Department in writing.

(5) The Department does not offer collaborative dispute resolution regarding notices issued under this rule.

Or. Admin. Code § 603-048-8021

DOA 16-2024, temporary adopt filed 07/19/2024, effective 7/19/2024 through 1/14/2025

Statutory/Other Authority: ORS 561.190, 561.605-561.620, 571.260-571.348 & OL 2024, Chap. 16

Statutes/Other Implemented: OL 2024, Chap. 16 & 571.263