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January 20, 2021 5:00 PM, EST

USDA Says It Lacks Jurisdiction to Issue Hemp Transport Shipping Document Guidance

Field of hempField of hemp by chriss_ns/Getty Images

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Although it supports the interstate transportation of legal hemp, a final hemp rule announced by the U.S. Department of Agriculture does not include requirements for shipping documents that could help motor carriers avoid being stopped, inspected or subject to detention by law enforcement when crossing state boundaries.

“At this time, USDA recommends that transporters carry a copy of the producer’s license or authorization, as well as any other information the governing state or Indian tribe recommends or requires that will validate that the transporter is transporting legally grown hemp,” USDA’s Agricultural Marketing Service said in a Jan. 19 Federal Register post. “USDA is not adding transportation paperwork requirements to this rule because it does not have jurisdiction over common carriers or other types of transporters.”

In lieu of any formal guidance, USDA encouraged producers of hemp and carriers providing hemp transportation services to provide copies of the U.S. Drug Enforcement Agency laboratory testing report to show the hemp is legal, a hemp grower license, invoice or bill of lading, and contact information of the load’s buyer and seller.

USDA-Hemp by Transport Topics

The interim rule, published in the Federal Register in October 2019, established a domestic hemp production program authorized by the Agriculture Improvement Act of 2018, signed into law in December 2018.

The law and final rule make clear that motor carriers can legally transport hemp, a member of the cannabis plant family, but only if it is absent high levels of THC, or tetrahydrocannabinol, the compound that gives pot its high. Cannabis with a THC level exceeding 0.3% is considered marijuana, which remains classified as a Schedule I controlled substance regulated by DEA.

The lack of transportation documents for the transport of hemp has for some time been a concern of American Trucking Associations and the Commercial Vehicle Safety Alliance.

“It’s definitely a gray area,” said Abigail Potter, a drug policy expert for ATA. “The problem here is they’re punting back and forth. The Department of Transportation is punting to the USDA, and the USDA is punting to DOT.”

Potter said that truckers could face document challenges in some states, but are particularly vulnerable in two states, Idaho and North Dakota, which don’t even allow the production of hemp.

Hemp is used for products including cannabidiol, or CBD, a substance some believe to effectively treat anxiety, cognition problems, movement disorders and pain. It also is used in such common products as paper, clothing and jewelry. The transport provision in the rule will not only afford the trucking industry a potentially lucrative — and legal — new business venture, it could allow hemp producers better access to nationwide markets.

The chairman of a CVSA working group focused on hemp said that while interstate transport of the substance is clearly legal, potential risks remain for motor carriers and drivers hauling it.

John Hahn

Hahn

“So many of the questions that are out there from a regulatory standpoint are the very same questions for those of us on the enforcement side,” Capt. John Hahn of the Colorado State Patrol told a group of executives attending a December virtual presentation at ATA’s Security and Human Resources National Conference.

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 THC levels. “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,” Hahn said.

Hahn did not return a phone message seeking comment on the final rule.

Commenters on the October interim rule said that USDA should work with other agencies, including DEA and Department of Justice, to develop cohesive information and guidance regarding enforcement related to hemp.

USDA responded that it has worked with DEA and other agencies in developing these regulations to assure that the intent of the 2018 Farm Bill provisions for hemp are met. However, it said it is responsible for the regulatory oversight of hemp production and that DEA and other law enforcement agencies are responsible for enforcing the law regarding marijuana.

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