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The Commercial Vehicle Safety Alliance has petitioned the Federal Motor Carrier Safety Administration to amend agency regulations to require that interstate transporters of hemp carry a variety of shipping documents to avoid law enforcement uncertainties.
The petition request is in response to the federal Agricultural Improvement Act of 2018, which included the legalization of hemp production and prohibited states from stopping the interstate transportation of hemp.
“However, there are inconsistencies in how the transportation of hemp is enforced at the state level due to differences in state laws, enforcement policies and varying legal classifications of hemp,” said CVSA’s June 9 petition request with FMCSA.
“As states work to implement the changes necessary for allowing the interstate transportation of hemp produced under the outlined plan, additional details are needed for law enforcement interacting with hemp during its transportation to ensure a load’s validity and safety,” the petition letter said.
Since hemp so closely resembles and smells like marijuana, a load of hemp can be delayed or seized by state law enforcement while it is tested for tetrahydrocannabinol, or THC, levels. But there is currently a lack of technology for a roadside inspector who happens to stop a truck to determine the THC content of the load.
CVSA said that the specifics on how roadside inspectors should verify the valid and safe transportation of hemp are essential to ensure uniform enforcement across the country. “Without such standards, the responsibility falls on each roadside inspector to evaluate and determine the status of the hemp being transported,” CVSA said.
Legally, for a load to be labeled as hemp, and not marijuana, it cannot have a THC level exceeding 0.3%. Over that amount of THC, the compound that gives pot its high, a load will be considered marijuana. Despite the fact that many states have legalized some uses of marijuana, the drug remains classified as a federal Schedule 1 controlled substance regulated by DEA.
Specifically, CVSA is requesting that FMCSA require truckers hauling hemp to have on board the following documents:
- Laboratory testing report(s) for the hemp.
- Grower’s license(s) of the producer(s) of the hemp being transported.
- Contact information of the buyer and seller.
- Invoice/bill of lading.
“This requirement would also benefit the motor carrier industry. Providing clear direction on the necessary documentation that a motor carrier must have will reduce the amount of time a driver is detained to verify the safety and validity of their cargo, improving efficiency,” CVSA said.
Although it supports the interstate transportation of legal hemp, a final hemp rule announced in 2021 by the U.S. Department of Agriculture did not include requirements for shipping documents because it does not have jurisdiction over common carriers or other types of transporters, USDA said in a January 2021 Federal Register post.
“I question whether FMCSA has the legal authority to grant that relief and require hemp transporters to carry specific documentation. Certainly the agency does this in other areas, most notably hazmat,” said Brandon Wiseman, an attorney and president of Trucksafe Consulting, a DOT regulatory compliance consulting and training service firm. “But there, the agency has explicit direction from Congress to regulate the safety of hazmat shipments, which entails ensuring everyone involved knows exactly what type of hazmat is on the truck.”
In contrast, the lawful transportation of hemp is less of a safety issue and more of a commercial one, and the FMCSA tends not to get too involved in the commercial aspects of trucking, according to Wiseman.
In 2019 and 2020, a few carriers and drivers got caught up in litigation as a result of the interstate transport of hemp.
“This was especially true in Idaho where a couple of drivers were infamously arrested for possessing marijuana because they were transporting a lot of hemp,” Wiseman said. “These cases manifested from some ambiguity that existed in the Farm Bill’s transport provisions, which generally preempted states from prohibiting the interstate transportation of hemp through their borders, but only when the hemp in question was produced in accordance with a USDA-approved state hemp licensing regime.”
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