Or. Admin. Code § 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.
Notes
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
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