June 14, 2019

Appeal of the Determination on Nonmailability

JAMES COLLINS v. UNITED STATES POSTAL SERVICE

P.S. Docket Nos. MLB 18-319,
MLB 18-368 through MLB 18-379,
MLB 18-381 through MLB 18-481,
MLB 18-483 through MLB 18-485,
MLB 18-487 through MLB 18-495,
MLB 18-497 through MLB 18-498,
MLB 18-500 through MLB 18-512,
MLB 18-514 through MLB 18-553,
MLB 18-557 through MLB 18-578,
MLB 18-581 through MLB 18-597

APPEARANCE FOR PETITIONER
James Collins, pro se

APPEARANCE FOR RESPONDENT
Steven Sultan, Esq.
Postal Inspector Attorney

INITIAL DECISION

On November 19, 2018, Appellant timely appealed from a determination of nonmailability by the Postal Service Inspection Services of multiple packages sent by him to numerous recipients.  39 U.S.C. § 3001; 18 U.S.C. § 1716; 39 C.F.R. Part 953.  The Postal Service moved for summary judgment on December 11, 2018.  The appeals for the various packages were consolidated into this lead case.  See Order to Consolidate Cases dated December 18, 2018.  In a telephone conference on January 9, 2019, counsel for Appellant stated that the over 200 packages that are the subject of these consolidated appeals contained industrial hemp seeds and are mailable pursuant to our decision in KaB, LLC v. United States Postal Service, MLB 18-39, 2018 WL 5877235 (November 8, 2018).
Subsequent to that decision the Postal Service instituted a new policy to comply with applicable federal law.  The new policy permitted the shipping of industrial hemp under certain conditions.  This interim policy was later codified in Publication 52, Hazardous, Restricted, and Perishable Mail, § 453.37 (June 2019)(Publication 52). 
For purposes of this section, “hemp” shall have the meaning provided under federal law, including Section 10113 of the Agricultural Improvement Act of 2018, Pub. L.115-334 (7 U.S.C. § 1639o), or any successor provision. Hemp and hemp-based products, including cannabidiol (CBD) with the tetrahydrocannabinol (THC) concentration of such hemp (or its derivatives) not exceeding a 0.3 percent limit are permitted to be mailed only when:
a. The mailer complies with all applicable federal, state, and local laws (such as the Agricultural Act of 2014 and the Agricultural Improvement Act of 2018) pertaining to hemp production, processing, distribution, and sales; and
b. The mailer retains records establishing compliance with such laws, including laboratory test results, licenses, or compliance reports, for no less than 2 years after the date of mailing.
In a telephone conference on January 30, 2019, counsel for Appellant sought permission to withdraw as his client was no longer returning his calls or participating in the prosecution of this appeal.  I issued an Order instructing Appellant to contact our office with updated contact information.  I further ordered Appellant to reply to Respondent’s Motion for Summary Judgment not later than February 15, 2019.  In the Order, I explained that in accordance with Postal Service policy, Appellant must produce evidence of his licensure and produce evidence sufficient to establish that the seeds contained in the packages meet the federal definition of industrial hemp.  I explained that failure to respond would result in my ruling on Respondent’s pending Motion for Summary Judgment.  Appellant did not respond to the Order.
I need not delve into the details of the matter to grant Respondent’s motion.  Under Postal Service policy, the mailer must comply with the provisions of Publication 52, including the requirements set forth in the recently codified policy.  Appellant failed to comply with these provisions, and Respondent is entitled to judgment in its favor.
Respondent’s Motion for Summary Judgment is GRANTED.

ORDER

The Appeal is DENIED.  The Postal Service may dispose of the nonmailable contents of the packages in accordance with 39 U.S.C. § 3001(b).  See 39 C.F.R. § 953.16.

James G. Gilbert
Chief Administrative Law Judge

Judicial Officer