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July 31, 2019 9:30 AM, EDT

Regulatory, Legal Guidance Could Soon Provide Clarity on the Transport of Hemp

Ladybug on hemp plant A ladybug sits on a leaf of a hemp plant at a research station in Aurora, Ore., that's part of Oregon State University's newly formed Global Hemp Innovation Center. (Gillian Flaccus/AP)

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Potential solutions to some of the vexing problems that truckers and law enforcement are facing regarding the transportation of legal hemp across state lines could be coming soon.

The U.S. Department of Agriculture has drafted an interim final rule that is being reviewed within the department that could soon provide regulatory guidance needed for the 2018 Agriculture Improvement Act that legalized industrial hemp.

In a recent update to USDA’s regulatory agenda, the agency estimated it would be establishing the rules and regulations for the domestic production of hemp as early as August.

The farm bill signed into law in December removes hemp from the Schedule I list of illegal drugs and prohibits state authorities from interfering with the interstate transportation of the commodity.

Truckload of confiscated hemp

Idaho State Police confiscated this load of industrial hemp in January. (Idaho State Police)

In addition to the regulatory development, the 9th U.S. Circuit Court of Appeals in Seattle has set oral arguments for Aug. 28 in a test case stemming from a bust in Idaho earlier this year in which a truck driver traveling through the state hauling a 6,700-pound load of hemp from Oregon to Colorado was charged with marijuana trafficking. Authorities in Idaho pressed charges because they said hemp is illegal in the state and that there is no federal regulatory guidance yet on the interstate transportation of hemp.

The fact that USDA officials have not yet issued regulatory guidelines based on the new law has created confusion among law enforcement and motor carriers.

In response to the confusion, the Commercial Vehicle Safety Alliance is assembling a working group to study ways to provide commercial vehicle inspectors guidance on what to do when they stop a truck carrying hemp, which cannot be easily distinguished at roadside from marijuana.

“Hemp and marijuana look the same and smell the same,” said Capt. John Hahn of the Colorado State Patrol, chairman of the working group. “There’s frankly a lack of technology for the roadside inspector who happens to stop one of these trucks to determine the THC content of the load. At this point, there are no easy answers.”

Hemp is a member of the cannabis plant family, but is absent the high levels of tetrahydrocannabinol, or THC, responsible for the psychoactive effects of marijuana.

Hemp is used for a number of products including cannabidiol, or CBD, a substance some believe to effectively treat such maladies as anxiety, cognition problems, movement disorders and pain. It also is used in such common products as paper, clothing and jewelry.

Hahn, commander of the Colorado State Patrol’s commercial vehicle hazardous materials enforcement division and a member of CVSA’s board of directors, said that since 2014, the legal hemp market has exploded to become a billion-dollar business as of 2018.

A total of 35 states have legalized the commodity, Hahn said.

“But you’ve got a handful of states out there in which it’s not legal,” he told Transport Topics. “We’re going to be looking for where there are lines that intersect with the farm bill and motor carrier regulations.”

Hahn said the working group will likely begin its discussions at CVSA’s late September annual meeting in Biloxi, Miss.

Until then, the typical commercial vehicle inspector will likely be in “a bit of a quandary,” Hahn said.

USDA General Counsel Stephen Vaden

Vaden

Stephen Vaden, USDA’s general counsel, already has spoken on the hemp transportation issue in a legal opinion in May that could foretell the department’s stance when it publishes its regulatory regimen.

Vaden said that while states and American Indian tribes currently can regulate the lawful production and sale of hemp under a 2014 law, they may not prohibit the interstate transportation or shipment of the product grown under a program authorized by the agriculture department.

Due to the confusing state of the legality of interstate hemp transportation, American Trucking Associations has been cautioning truckers to think twice about transporting hemp until the USDA regulations provide clarity.

“Forty-one states allow the cultivation of hemp for commercial, research or pilot programs,” said an ATA dispatch earlier this year. “However, legal questions have arisen to whether hemp currently in production meets the criteria of the farm bill’s interstate transportation pre-emption provision. ATA recommends that motor carriers continue to exercise caution in accepting shipments of hemp.”