South Dakota Already Requires Testing Labs to Register With DEA. The New Subsection (k) Does Not Name a Testing Class.

#8…

The last two pages mapped the interfaces and named the automatic-suspension tether.¹ This page is the leftover establishment class.

South Dakota treats a cannabis testing facility as its own certificate. Chapter 44:90:06 writes the lab. Chapter 44:90:09 writes the sampling and testing that cultivation, manufacturing, and dispensary shops must use.² The April 28, 2026 text does something narrower. The expedited pathway in 21 C.F.R. § 1301.13(k) is for entities holding a state medical-marijuana license who seek registration as a marijuana manufacturer, distributor, or dispenser.³ Testing is not named as its own (k) class. That is SILENT. It is not an exclusion.

Pierre already wrote a DEA sentence for the lab

Article 44:90:06:01 does not wait for Schedule III. After registration, a testing facility must work toward ISO/IEC 17025 accreditation and complete it within thirty-two months. Failure is a revocation. The same section then says a cannabis testing facility shall register with the Drug Enforcement Administration pursuant to 21 C.F.R. § 1301.13.⁴ The parenthetical on that citation is June 28, 2021.⁵ The section’s source note shows an amendment effective August 4, 2025. The federal reference nevertheless remains June 28, 2021.⁶ The April 2026 order added subsection (k) to the same federal section.⁷

The state rule expressly cites § 1301.13 with a June 28, 2021 parenthetical. This page does not assume that South Dakota’s dated incorporation automatically incorporates the later subsection. The dated citation is the question.

What subsection (k) names, and what it does not

Paragraph (k)(1) lists three registrations. A registered manufacturer may cultivate, produce, process, package, label, and transfer, subject to the limitations of its state license. A registered distributor may receive and transfer, subject to the same limit. A registered dispenser may dispense to individuals authorized by state law, subject to the same limit.⁸

A testing facility is not in that list. The federal definition of “State medical marijuana license” is a license authorizing manufacture, distribution, and/or dispensing.⁹ South Dakota’s testing certificate is written to analyze samples, keep them independent of the other three shops, and return or destroy what it does not consume in the test.¹⁰ Those verbs are not the three verbs in (k)(1).

The ordinary Part 1301 table still exists. Section 1301.13(c) treats an analytical laboratory as its own business activity. The independent-activity table then lists “Chemical Analysis” as a separate registration covering Schedules I through V, filed on DEA Form 225.¹¹ That is a different row from manufacturer, distributor, or dispenser, and it is a different row from subsection (k). This page does not decide which federal form a South Dakota testing facility must use after April 28. It marks the mismatch the current 44:90 citation does not resolve.

Independence is a state rule. It is not a (k) class.

South Dakota already built a wall the other three certificates do not have. Testing-facility operating procedures must include a signed disclosure that the owner has no financial conflict with, interest in, investment in, landlord-tenant relationship with, or loan to a cultivation facility, product manufacturing facility, or dispensary.¹² Sampling and batch testing sit in chapter 44:90:09. Inventory of samples sits in 44:90:11:08.¹³ Those are 44:90 problems in a 44:90 docket.

They do not become a fourth (k) registration because the lab touches cannabis. They also do not disappear because subsection (k) is silent. Department inspection materials already treat “Required Accreditation and Registration – Drug Enforcement Agency 44:90:06:01” as an operational line item.¹⁴ The Department can still say, in the October 3 record, which federal registration it thinks that line item is pointing at now.

What this page does not do

It does not say the testing certificate is disqualified from federal registration. Unpublished at the state level; here is what the federal text uses; here is what 44:90 names; the gap is the story.¹⁵

It does not say a South Dakota lab may skip DEA registration. The current state rule says the opposite, and it says it with a 2021 citation.¹⁶

It does not say Schedule III converted the lab into a manufacturer, a distributor, or a dispenser. Paragraph (k)(1) does not write that conversion.

It does not say the Department must rewrite 44:90:06:01 before October 3. The notice invites amendments, data, opinions, and arguments.¹⁷ A comment that quotes 44:90:06:01 and § 1301.13(k)(1) and asks which federal registration class the Department now intends is a comment. A comment that announces the lab is locked out of the medical program is not.

The question left on the lab desk

South Dakota created a fourth establishment. The April text created three expedited federal classes. The state rule already requires a DEA registration under § 1301.13 and still cites June 28, 2021.

The crosswalk marked that row SILENT.¹⁸ This page is why. The Department can still say which form it thinks the lab is supposed to file.

Footnotes

¹ Jason Karimi, Part 1301 Defers Security to State Law. Article 44:90 Never Mentions Part 1301, WeedPress (Sept. 22, 2026), https://weedpress.org/2026/09/22/part-1301-defers-security-to-state-law-article-4490-never-mentions-part-1301/; 21 C.F.R. § 1301.13(k)(3) (as amended Apr. 28, 2026), https://www.ecfr.gov/current/title-21/chapter-II/part-1301/section-1301.13.

² ARSD ch. 44:90:06, https://sdlegislature.gov/Rules/Administrative/44:90:06; ARSD ch. 44:90:09, https://sdlegislature.gov/Rules/Administrative/44:90:09.

³ 21 C.F.R. § 1301.13(k); Schedules of Controlled Substances: Rescheduling of Food and Drug Administration Approved Products Containing Marijuana From Schedule I to Schedule III; Corresponding Change to Permit Requirements, 91 Fed. Reg. 22,714, 22,721 (Apr. 28, 2026), https://www.govinfo.gov/content/pkg/FR-2026-04-28/pdf/2026-08176.pdf.

⁴ ARSD 44:90:06:01, https://sdlegislature.gov/Rules/Administrative/44:90:06:01.

⁵ Id. (citing 21 C.F.R. § 1301.13 (June 28, 2021)).

⁶ ARSD 44:90:06:01 (source note: 52 SDR 10, effective Aug. 4, 2025).

⁷ 91 Fed. Reg. at 22,721.

⁸ 21 C.F.R. § 1301.13(k)(1)(i)–(iii); 91 Fed. Reg. at 22,721.

⁹ 21 C.F.R. § 1300.01 (definition of “State medical marijuana license”); 91 Fed. Reg. at 22,721.

¹⁰ ARSD 44:90:03:07, https://sdlegislature.gov/Rules/Administrative/44:90:03:07; ARSD 44:90:11:08, https://sdlegislature.gov/Rules/Administrative/44:90:11:08.

¹¹ 21 C.F.R. § 1301.13(c) (analytical laboratory as a business activity); 21 C.F.R. § 1301.13(e)(1)(xi) (Chemical Analysis; Schedules I–V; DEA Form 225).

¹² ARSD 44:90:03:07(2).

¹³ ARSD ch. 44:90:09; ARSD 44:90:11:08.

¹⁴ S.D. Dep’t of Health, Medical Cannabis Inspection Reports — Testing Reports, line item for ARSD 44:90:06:01 (Required Accreditation and Registration – Drug Enforcement Agency), https://doh.sd.gov/programs/medical-cannabis/med-cannabis-establishments/inspection-reports/.

¹⁵ Jason Karimi, The April Rescheduling Order Asks for a License. Pierre Issues Four Certificates, WeedPress (Sept. 11, 2026), https://weedpress.org/2026/09/11/the-april-rescheduling-order-asks-for-a-license-pierre-issues-four-certificates/; 21 C.F.R. § 1301.13(k)(1); ARSD 44:90:03.

¹⁶ ARSD 44:90:06:01.

¹⁷ S.D. Legislative Research Council, South Dakota Register, Vol. 53, at 25 (Aug. 31, 2026), https://sdlegislature.gov/; Jason Karimi, How to File a Written Comment on South Dakota’s 38-Rule Medical Cannabis Package, WeedPress (Sept. 21, 2026), https://weedpress.org/2026/09/21/how-to-file-a-written-comment-on-south-dakotas-38-rule-medical-cannabis-package/.

¹⁸ Jason Karimi, Part 1301 Defers Security to State Law. Article 44:90 Never Mentions Part 1301, WeedPress (Sept. 22, 2026), https://weedpress.org/2026/09/22/part-1301-defers-security-to-state-law-article-4490-never-mentions-part-1301/.