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USDA says Tribes may grow under 2014 Farm Bill provisions until 2018 processes are put in place

By Joe Morey News Editor


On May 28, 2019 the United States Department of Agriculture (USDA) published a legal opinion and executive summary of certain hemp related provisions of the 2018 Farm Bill. They issued a notice to Indian Tribes clarifying their stance on industrial hemp production.


In a letter the LCO Tribal Governing Board received from their legal representation regarding the USDA summary, they said, “Tribes may grow industrial hemp for research purposes pursuant to the 2014 Farm Bill hemp program by partnering with an institution of higher education or state department of agriculture, provided that the state in which the Indian tribe is located and the state in which the institution of higher education or state department of agriculture is located, both allow for the production of industrial hemp.”


As recently as May 1 at a USDA/Tribal consultation, representatives from the USDA stated to tribal leaders their intent to propose a delay in the approval process of tribal ordinances governing their own hemp operations. The USDA told the tribes their plan was to have the approval process in place by the 2020 growing season.


LCO TGB member Tweed Shuman said the delay would harm the tribes. He pointed out that states were allowed to go forward with pilot programs under the 2014 Farm Bill until the 2018 Farm Bill processes were put in place.


Just three days before the May 28 letter permitting tribes to go forward with hemp production under research purposes, Shuman said the TGB was planning to start a two to three acre test plot of industrial hemp near the casino.


“We are currently in the process of submitting our plan and tribal ordinance to the USDA. We’re still on track to have a harvest this fall,” Shuman said. He indicated there is a tribal processing facility within the state which will be used.


“We’ll be harvesting the flower and the seeds for health foods. Hemp for health products is very popular right now,” Shuman added. “With this initial test crop we’ll at least get our feet wet.”


The tribe’s legal representation said the USDA has stated in the past that the 2014 Farm Bill hemp provisions will remain in place while the 2018 Farm Bill hemp provisions are not yet effective.


Summary of the USDA report from the tribe’s legal representation;


As detailed below, the USDA came to four conclusions within its legal opinion, all of which directly or indirectly impact Indian tribes.


First, with the passage of the 2018 Farm Bill, hemp was removed from a schedule I drug under the Controlled Substances Act (“CSA”). This was accomplished by amending the definition of “marijuana” under the CSA, and amending the definition of “tetrahydrocannabinols” (“THC”) under the CSA to exclude THC in hemp. This provision became effective as of the December 20, 2018 date of the enactment of the 2018 Farm Bill, and therefore, hemp is no longer considered a controlled substance.


Second, once the USDA publishes regulations implementing the 2018 Farm Bill hemp provisions, states and tribes may not prohibit the interstate transportation or shipment of hemp produced legally in accordance with the 2018 Farm Bill. The lawful production of hemp would occur under a state or tribal plan approved by the USDA or under a license issued pursuant to the USDA plan.


Similarly, the USDA’s third conclusion provides that states and tribes also may not prohibit the interstate transportation or shipment of hemp legally produced in accordance with the 2014 Farm Bill. Under the 2014 Farm Bill, states and tribes may produce hemp for research purposes by partnering with an institution of higher education or state department of agriculture, provided that the state in which the Indian tribe is located and the state in which the institution of higher education or state department of agriculture is located, both allow for the production of industrial hemp.


Fourth, the USDA concluded that there is a ten-year restriction on hemp production by an individual who has a state or federal felony conviction relating to a controlled substance. An exception exists if the conviction occurred prior to the enactment of the 2018 Farm Bill on December 20, 2018 and if the individual was lawfully growing hemp under the 2014 Farm Bill prior to the December 20, 2018 date. The USDA stated that it is the responsibility of the state or tribe to determine the eligibility of the individual wishing to produce hemp in the state or tribal territory.