By Joe Morey
News Editor
Lac Courte Oreilles joined multiple tribes who issued comments to the United States Department of Agriculture (USDA) regarding the Interim Final Rule for the 2018 Farm Bill and hemp production plans. The main concerns of the Tribes include testing requirements, disposal of hemp that exceeds THC levels and tribal sovereignty when dealing with USDA.
The Interim Final Rule requires that hemp crops which test higher than the acceptable level of tetrahydrocannabinol (THC) which is .3% be collected for destruction by an authorized person under the Controlled Substances Act, or a duly authorized officer.
The tribes objected to this rule with the Rosebud Sioux Tribe stating, "Only a western culture would create a rule whereby a valuable item must be destroyed in whole rather than simply using it for another equally useful and unoffensive purpose.”
LCO Tribal Governing Board member Tweed Shuman told the USDA rather than destruction, tribes, as sovereign nations and primary regulators over hemp within tribal jurisdictions, should have the opportunity to dispose of these crops in other ways so long as they are used for non-consumptive and non-commercial purposes.
“Arguably, there is enough leeway in the language in the statute to allow for alternative methods of disposing of hemp plants that exceed the allowable THC level,” Shuman said. “Hemp plants could still be ‘disposed’ of by being used for research or farm usage or through another remediation measure. In this way, plants will not be sold by a producer as hemp, and will not end up in a hemp product.
“Each time a producer is required to destroy a lot of crops, the producers loses out on the profits that would be made off of the sale of that lot. It seems logical that it would take some time for producers to be able to ensure continuity with hemp THC levels, so newer producers may suffer higher rates of hemp crop destruction. This has the potential for putting a producer out of business pretty quickly. Tribes, like LCO, who are just entering the industry likely will not have the financial backing to lose a majority of their crops in the first growing season and then continue on.”
Shuman said with an alternative to destruction of the crops, there would be an opportunity to mitigate these losses.
“For example, hemp has the ability to withstand and accumulate the toxins from contaminated soils, leading it to be beneficial to brownfield cleanups,” Shuman noted. “Additionally, universities may find it useful to study the cannabis plant regardless of THC level for research purposes. If remediation was an alternative to destruction, LCO and other producers may have the opportunity to sell non-conforming hemp crops for these non-consumptive purposes and make back a small portion of the loss from not distributing the plants into the market.”
The Interim Final Rule requires that laboratory testing for the THC level of hemp crops be conducted in a laboratory certified by the U.S. Drug Enforcement Administration (DEA). The rule requires crops to be certified below a 0.3% the THC threshold within 15 days of harvest and would require Tribes to quickly shuttle samples to federal labs which are located some distance away, for example, in Wisconsin, the nearest labs are two located in Milwaukee.
The Ute Mountain Tribe stated, "The idea of limiting a nationwide legal commercial industry to a few dozen already overburdened and backlogged DEA labs is baffling, represents a substantial chokepoint in hemp production, and frankly sets the stage for many hemp producers to fail under the proposed regulatory framework.”
Shuman remarked in his comments, “The requirement to utilize DEA certified laboratories will result in a higher cost to LCO and other tribes. State producers have a larger availability of planting locations since they utilize fee lands within the state, comprising the majority of the state. There is a stronger likelihood that a DEA certified laboratory will be located near metro centers, like Milwaukee, and that state producers are located a shorter distance from these areas. In contrast, tribes are confined to the boundaries of the reservation under tribal plans, keeping the production location to remote areas. If tribes had the ability to utilize other laboratories that were not DEA certified for the testing of hemp crops, there would likely be more laboratories available and closer to rural areas like LCO’s reservation. This would decrease the time and resources tribes would need to expend just to transport the hemp crops to a laboratory for testing.
Shuman also commented about LCO losing the 2019 growing season because, although the Farm Bill was passed in December of 2019, the Interim Final Rule was not published until October 31, 2019.
“While the USDA worked to ensure that tribes and states would have the opportunity to submit regulatory plans for approval in time for the 2020 planting season, the 2019 planting season was lost,” Shuman said. “During this time, some states produced hemp outside of the USDA framework and licensed growers under state laws. Further, while many states took advantage of the opportunity to produce hemp under the authorities of the 2014 Farm Bill, tribes did not have the same autonomous opportunity. To participate in the production of hemp under the 2014 Farm Bill, tribes had to partner with a state institution of higher education or department of agriculture in order to be eligible. These nuances in the law led to tribes essentially being left behind in the hemp industry and now seek to enter the hemp industry on unequal footing. Many tribes, like LCO, have yet to begin the production of hemp as we follow the protocols laid out in the 2018 Farm Bill and the regulations and guidance produced by the USDA.”
Regarding sovereignty, Shuman stated, “While the USDA works to advance a final rule to replace the Interim Final Rule, it is important to remember that tribes are sovereign nations and should not be left behind or disadvantaged in a federally implemented economic development opportunity. This is especially important because of the unique relationship between tribes and the federal government whereby the federal government owes a trust responsibility to Indian tribes. This relationship dates back to the start of this country, is recognized through the U.S. Constitution and decades of Supreme Court precedent, and grounded in the premise that tribes are sovereign bodies and domestic dependent nations under the trust of the federal government. Thus, the federal government, through its agencies, should work to ensure that opportunities are provided for tribes, and that tribes are not left behind.”
Shuman added further consultation is necessary to ensure there is adequate time to collect feedback from the Tribes as the hemp regulations are important to shaping the outcome of the USDA’s hemp production program and will clearly have an effect on tribal producers.
“In summary, we respectfully ask the USDA to consider the unique attributes of tribal sovereignty when finalizing the Industrial Hemp Interim Final Rule. If tribes are really to take on the primary regulatory authority of hemp production on the reservation, there should be flexibility within the hemp provisions to allow tribes to truly exercise this authority and end up on even footing with states in the production of hemp,” Shuman concluded.