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The U.S. Department of Agriculture has issued a final interim rule supporting a 2018 hemp legalization law that will allow the interstate transportation of hemp without interference from states.
“In addition to establishing a national regulatory framework for hemp production, Congress expressly pre-empted state law with regard to the interstate transportation of hemp,” said the rule, published in the Federal Register on Oct. 31. “Thus, states and Indian tribes may not prevent the movement of hemp through their states or territories even if they prohibit its production.”
The rule is effective Oct. 31 through Nov. 1, 2021, and USDA said it will accept public comments through Dec. 30.
The transport provision in the rule will not only afford the trucking industry a potentially lucrative — and legal — new business venture, it also will allow hemp producers better access to nationwide markets.
The rule also formalizes the USDA’s detailed program that will allow hemp to be grown under federally approved plans and make hemp producers eligible for a number of agricultural programs.
“In my view, the interim rule does make it clear that states are prohibited from interfering in the interstate commerce of hemp,” said Abigail Potter, manager of safety and occupational health policy for American Trucking Associations. “The other thing that also should be clear is that the U.S. Food and Drug Administration still has the authority for any additives or any food product with CBD added to it on any animal food product. So this USDA authority is only with hemp in its pure form or CBD in its pure form.”
CBD, or cannabidiol, does not cause a high and is often sold as a dietary supplement or included in creams and other personal care products.
USDA said hemp production in the U.S. has seen a resurgence in the past five years, but it remains unclear whether consumer demand will meet the supply.
“High prices for hemp, driven primarily by demand for use in producing CBD, relative to other crops, have driven increases in planting,” the rule said. “Producer interest in hemp production largely is driven by the potential for high returns from sales of hemp flowers to be processed into CBD oil.”
While the rule clears up the hemp interstate transportation issue that has confused many motor carriers, it also cautions that the hemp being transported must meet the legal definition of hemp and cannot contain the level of THC that would classify it as marijuana. (THC, or tetrahydrocannabinol, is the compound that gives pot its high.)
In a recorded video announcement, Secretary of Agriculture Sonny Perdue said the rule requires that growers be licensed by the state or USDA to grow hemp, and they must have drug-testing protocols to make sure their product is “hemp and nothing else.”
That announcement was referring to concerns that hemp growers ensure that their product is legally hemp, and not marijuana.
One of the challenges for the new rule is that law enforcement does not currently have the means to quickly verify whether the cannabis being transported is hemp or marijuana. One of the ways the interim rule attempts to help law enforcement is to require that all hemp production be sampled and tested for THC concentration levels by growers. Under the rule, samples must be collected by a USDA-approved sampling agent or a federal, state or local law enforcement agent authorized by USDA to collect samples.
“It is the responsibility of the licensed producer to pay any fees associated with sampling. USDA will issue guidance on sampling procedures that will satisfy sampling requirements to coincide with publication of this rule,” USDA said. “This guidance will be provided on the USDA website.”
The tests by growers must confirm that their hemp does not exceed the 0.3% level of THC that would signal the hemp is considered marijuana, still classified as a Schedule I controlled substance regulated by the Drug Enforcement Administration under the Controlled Substance Act.
The 2018 Farm Bill, signed into law in December, defines hemp as the “plant species Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.”
The 2018 Farm Bill removed hemp from the federal Schedule I list of illegal drugs. However, in recent months, truck drivers traveling through a few states, including Idaho and Oklahoma, have been arrested for hauling hemp due to laws in those states declaring hemp and marijuana illegal.
Such state laws have caused truckers to avoid traveling through those states as they wait for USDA to issue regulations codifying the 2018 Farm Bill.
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