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USDA Final Interim Rule Affirms Interstate Transport of Hemp

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


The U.S. Department of Agriculture on Oct. 30 announced its final interim rule supporting a 2018 hemp legalization law that will allow the interstate transportation of hemp without interference from the 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,” the rule said. “Thus, states and Indian tribes may not prevent the movement of hemp through their states or territories even if they prohibit its production.”

As a result, hemp producers will have access to nationwide markets, the rule said.

The interim rule will help expand production and sales of domestic hemp, benefiting U.S. producers and consumers. With the publication of the interim rule, USDA will begin implementing the hemp program including reviewing state and tribal plans and issuing licenses under the USDA hemp plan.

While the interim final rule clears up the hemp transportation issue that has confused many motor carriers, it does reiterate that the hemp being transported cannot legally contain the level of THC that would classify it as marijuana.

“While the states and tribes may not prohibit the transportation of hemp produced under the Farm Bill, law enforcement does not currently have the means to quickly verify whether the cannabis being transported is hemp or marijuana,” the announcement said. “The interim final rule will assist law enforcement in identifying lawfully produced hemp versus other forms of cannabis that may not be lawfully transported in interstate commerce.”

“Cannabis with a THC level exceeding 0.3% is considered marijuana, which remains classified as a schedule I controlled substance regulated by the Drug Enforcement Administration under the Controlled Substance Act.”

The 2018 Farm Bill 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.”

Delta-9 tetrahydrocannabinol, or THC, is the primary intoxicating component of cannabis.

The agency said it will accept public comments on the rule for 60 days after it is published in the Federal Register, anticipated for Oct. 31. The effective date of the rule was not disclosed in the announcement, but the agency said it would be announced with publication in the Register. The interim rule will be effective for two years and then replaced by a final rule, the announcement said.

Hemp is a commodity that can be used for numerous industrial and horticultural purposes including fabric, paper, construction materials, food products, cosmetics and production of cannabinoids such as cannabidiol or CBD.

USDA said hemp production in the U.S. has seen a resurgence in the past five years; however, 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. 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.

The rule does not affect the exportation of hemp.

“Should there be sufficient interest in exporting hemp in the future, USDA will work with industry and other federal agencies to help facilitate this process,” USDA said.

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.

However, an arrest by state police in Idaho in connection with a load of hemp traveling through the state, has left truckers uncertain as they have waited for USDA to issue regulations for the Farm Bill.

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

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