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HomeMy WebLinkAboutC20-418 Colorado Department of Agriculture1 MEMORANDUM OF UNDERSTANDING BETWEEN THE COLORADO DEPARTMENT OF AGRICULTURE AND EAGLE COUNTY PARTIES AND EFFECTIVE DATE The Parties to this Memorandum of Understanding (“Agreement”) are the Colorado Department of Agriculture (“Department” or “CDA”) and EAGLE COUNTY, collectively the Parties. By signature of the authorized designee for each entity, the parties agree to comply with the terms of this Agreement, which shall be effective upon the date the last party executes this document. I.PURPOSE This Agreement is designed and intended to establish information-sharing protocols between the Parties related to the confidential business information of persons who are registered with the Department to operate within the Department’s Industrial Hemp Regulatory program. This Agreement is not intended to abrogate, expand, or limit any current statutory authority set forth within the relevant sections of, or any subsequent revisions thereto, the Agricultural Improvement Act of 2018 (“2018 Farm Bill”), the Establishment of a Domestic Hemp Production Rules, 7 CFR Part 990 (“IFR”), or the Colorado Revised Statutes, the relevant provisions of which sections are set forth below. II.STATUTORY AUTHORITIES A.The Department registers and regulates persons who desire to engage in industrial hemp cultivation for commercial purposes or grow industrial hemp for research and development purposes. Sections 35-61-102 and 104, C.R.S. (2019). B.Persons who desire to register to cultivate or grow industrial hemp must apply for registration in a form and manner determined by the Commissioner of Agriculture. Section 35-61-104(1), C.R.S. (2019). C.The Department of Agriculture is a principal department of State of Colorado. Section 24-1-110(1)(m), C.R.S., (2019). D.The public records of a state agency are open to public inspection at all times. Section 24-72-201, C.R.S. DocuSign Envelope ID: 6566B51B-AE81-4C1B-AC9B-A354FDE894F7 C20-418 2 E.A state agency’s custodian of public records “shall deny the right of inspection of . . . [t]rade secrets, privileged information, and confidential, commercial[] [or] financial . . . data.” Section 24-72-204(3)(a)(IV), C.R.S., (2019). F.States with USDA-approved state plans must submit to USDA a report providing “the contact information and the status of the license . . . issued for each producer covered. . . . . The report shall contain . . . : the full name of [any new producer], license or authorization identifier, business address, telephone number, and email address . . . . For each new producer that is an entity . . . the report shall include full name of the entity, the principal business location address, license or authorization identifier, and the full name, title, and email address . . . of each employee for whom the entity is required to submit a criminal history report . . . .” 7 CFR § 990.70(a)(1)(i) and (ii) (2019). G.The information submitted to USDA “will be assembled and maintained by USDA and made available in real time to Federal, State, and local law enforcement as required by the 20189 Farm Bill.” 7 CFR Part 990, Preamble (2019). III.BACKGROUND AND AGREEMENT WHEREAS, The Department is an agency of the state; and WHEREAS, Agencies of the state are subject to Colorado’s Open Records Act (“CORA”), sections 24-72-201, et seq.; and WHEREAS, The Department, as part of its regulation of the Industrial Hemp Regulatory Act, sections 35-61-101, et seq., collects privileged information, including trade secrets and confidential, commercial and financial data of persons who register to cultivate industrial hemp; and WHEREAS, CORA mandates non-release to the public of privileged information, including trade secrets and confidential, commercial and financial data; and WHEREAS, EAGLE COUNTY has requested that the Department share such trade secrets and confidential, commercial and financial data with EAGLE COUNTY for the limited purpose of enforcing its laws, including zoning regulations; and DocuSign Envelope ID: 6566B51B-AE81-4C1B-AC9B-A354FDE894F7 3 WHEREAS, USDA’s IFR requires that states with approved plans, which such plan the Department intends to submit, provide the information EAGLE COUNTY has requested from the Department; and WHEREAS, The Department desires to cooperate with EAGLE COUNTY in the spirit of the requirements of the 2018 Farm Bill and the IFR while honoring CORA’s mandate not to release such information to the public; and WHEREAS, Both the Department and EAGLE COUNTY desire that such information be given and received in accordance with all local, state, and federal regulations. NOW THEREFORE, the Parties agree as follows: 1.Information Subject to Limited Release. Subject to the limitations, provisions, and promises set forth in the following paragraphs, the Department will share with EAGLE COUNTY the following information related to hemp registrants in the state of Colorado: a.The physical location, by address and geo-spatial positioning (GPS) coordinates, of areas of land registered for the cultivation or growth of industrial hemp; and b.The names of the individuals who have registered the land area for growth or cultivation of industrial hemp. 2.Agreements Regarding Confidentiality of the Released Information. EAGLE COUNTY understands and agrees that the information released to it is, and at all times must remain, the property and possession of the Colorado Department of Agriculture, and EAGLE COUNTY will have no custody or control over the creation, maintenance, or disposition of the records. EAGLE COUNTY will return or destroy any Department records after those records are no longer needed for any law-enforcement purposes. EAGLE COUNTY understands and agrees that it must retain absolute confidentiality of the information. EAGLE COUNTY understands and agrees that it will refer any public information requests for the information to the Department. EAGLE COUNTY understands and agrees that the information released to it is provided solely for the purpose of law enforcement, including zoning enforcement. DocuSign Envelope ID: 6566B51B-AE81-4C1B-AC9B-A354FDE894F7 4 EAGLE COUNTY understands and agrees that none of the information released to it may be posted to any public web site; released to any public individual, including any person associated with the press, any trade organization, or any other branch of government; or published in any other manner or method without the express, written consent of the Department. 3.Timing of Reports of Information. The Department agrees to provide a report once per month to EAGLE COUNTY. Such report will be in a searchable spreadsheet format and limited only to fields of information as set forth in this Agreement. IV.TERM AND TERMINATION This Agreement shall remain in effect unless and until terminated by written agreement or until USDA has established a working database pursuant to the terms and conditions of the IFR and the 2018 Farm Bill. V. SIGNATURES IN WITNESS WHEREOF, the parties hereto execute this Agreement, which shall become DocuSign Envelope ID: 6566B51B-AE81-4C1B-AC9B-A354FDE894F7 5 effective when both parties, or their representatives, have affixed their signatures. In so signing, each signatory avers that he or she has all legal right and authority to enter into this Agreement on behalf of the party for whom he or she signs. STATE OF COLORADO Colorado Department of Agriculture EAGLE COUNTY By: _________________________________ Date: ____________________ Printed or Typed Name: __________________________________ Title: ______________________________________ By: _________________________________ Date: ____________________ Printed or Typed Name: Wondirad Gebru Title: Director- Division of Plant Industry- Colorado Department of Agriculture DocuSign Envelope ID: 6566B51B-AE81-4C1B-AC9B-A354FDE894F7 Chair Kathy Chandler-Henry 11/17/2020 11/17/2020