The U.S. Department of Agriculture (“USDA”) officially launched the U.S. Domestic Hemp Program on October 31, 2019.
On that date, USDA published an interim final rule in the Federal Register explaining how the agency will implement the hemp provisions of the 2018 Farm Bill. Under the authority granted by these provisions, tribal governments may regulate hemp production within their territories.
The rule makes clear that “no State or Indian Tribe may prohibit the transportation or shipment of hemp or hemp products…through the State or territory of the Indian Tribe.” For the next year, this will be true for hemp cultivated under a 2014 Farm Bill pilot program as well. After that, producers will need a license from either USDA or from a state or tribe that is implementing a USDA-approved plan.
While USDA received a number of state and tribal plans earlier this year, the agency indicated that it would hold off on any form of review or approval until it issued regulations. So now is the time to draft or finalize a plan for submission, making sure that it fully complies with the published rule.
Components of a Tribal Hemp Plan
Every tribal government’s hemp plan must include the following:
- Plans to maintain relevant producer and land information
- Plans for accurate and effective sampling and testing
- Disposal procedures for non-compliant crops
- Inspection procedures
- Information collection and reporting procedures
- Enforcement procedures
In its submission, the tribe must also certify that the tribal government has sufficient resources and personnel to meet the federal government’s requirements. Tribes should pay careful attention to what compliance with the rule will look like in practice.
Importantly, all hemp crops must be tested within 15 days of harvest. Testing must take place in a laboratory that is registered with the Drug Enforcement Administration. This is because there is a possibility that any “hemp” handled by a testing facility could test above the 0.3% THC limit. If this is the case, the plant material is actually marijuana, not hemp, and marijuana remains a controlled substance under federal law. The tribal government must include in its plan a procedure for seizing and destroying any crops that exceed the 0.3% THC limit.
Note also that the USDA hemp program does not address processing or manufacturing of hemp-derived products. The Food and Drug Administration (“FDA”) has jurisdiction over the sale of products containing cannabidiol (“CBD”) and has yet to issue regulations on this topic.
Need Assistance Drafting a Hemp Plan?
Drafting and implementing a tribal plan will be a significant undertaking. Members of Drummond Woodsum’s First Nations group are available to assist tribal governments with this process.