Editor's Note
USDA Agricultural Marketing Service (AMS) issued two notices this week providing a legal opinion on authorities for hemp production and a clarification on hemp production for Indian tribes. The legal opinion highlights that after enactment of the 2018 Farm Bill, hemp is no longer a controlled substance and after USDA publishes regulations implementing hemp production provisions of the 2018 Farm Bill, states and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued under the USDA plan. States and Indian tribes will not be allowed to prohibit the interstate transportation or shipment of lawfully produced hemp. USDA intends to issue an interim final rule in August 2019. This rule can be issued without notice-and-comment and made effective upon publication, but the agency can then modify based on comments received after the rule’s issuance.

USDA also clarified that Indian tribes can partner with an institution of higher education or a state department of agriculture in the same state or in a different state to produce industrial hemp under authorities in the 2014 Farm Bill . To be eligible, both the tribe's state and the state of the institution of higher education or department of agriculture must allow the production of industrial hemp. 
March 28, 2019
U.S. Department of Agriculture Agricultural Marketing Service (AMS)

Legal Opinion on Authorities for Hemp Production 
The Agriculture Improvement Act of 2018 (2018 Farm Bill) authorized the production of hemp and removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of Controlled Substances. In response to questions raised concerning provisions pertaining to the interstate transportation of hemp and who may obtain a license to produce hemp, the U.S. Department of Agriculture’s Office of the General Counsel (OGC) has concluded the following:

  1. As of the enactment of the 2018 Farm Bill on December 20, 2018, hemp has been removed from schedule I of the Controlled Substances Act and is no longer a controlled substance.
  2. After USDA publishes regulations implementing the new hemp production provisions of the 2018 Farm Bill, States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued under the USDA plan.
  3. States and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.
  4. A person with a State or Federal felony conviction relating to a controlled substance is subject to a 10-year ineligibility restriction on producing hemp under the Agricultural Marketing Act of 1946. An exception applies to a person who was lawfully growing hemp under the 2014 Farm Bill before December 20, 2018, and whose conviction also occurred before that date.


USDA Clarifies Industrial Hemp Production for Indian Tribes

This notice clarifies avenues for Tribal participation under authorities in the 2014 Farm Bill to grow industrial hemp for research purposes during the 2019 growing season. Under the 2014 Farm Bill, an Indian tribe can enter into a partnership or contract with an institution of higher education or a State department of agriculture both within or in a different State than the one in which the Indian tribe is located to produce industrial hemp on the tribe’s land. For an Indian tribe to be eligible to do so, 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 must allow the production of industrial hemp.

The 2014 Farm Bill authorizes State departments of agriculture and institutions of higher education to grow and cultivate hemp for the limited purpose of conducting research under pilot programs. However, the definition of “State” that applies to section 7606 does not include Indian tribes. Indian tribes independently have not been able to initiate their own hemp programs under the 2014 Farm Bill and instead have had to obtain a license or authorization under a state program.

This ability under the 2014 Farm Bill to obtain a license or authorization from a State department of agriculture or institution of higher education located in a State other than the State of one’s residence extends to persons and entities that are not affiliated with an Indian tribe. As is the case with Indian tribes, a State department of agriculture located in a State that allows for hemp production may license or authorize an individual or entity that is not located in that State to produce hemp for research purposes, provided that the State where the individual or entity is located also allows hemp production. Likewise, an individual or entity may partner or contract with an institution of higher education in another State under the same conditions.

The law remains unchanged in that Indian tribes, individuals, and entities located in States that do not permit hemp production are ineligible to participate in the growing or cultivation of hemp under the 2014 Farm Bill program.