Administrative Challenge and Unintended Consequences of Rescheduling Marijuana

The National Drug and Alcohol Screening Association (NDASA) and its membership have raised significant concerns about the potential unintended consequences of rescheduling marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA). Specifically, this change would impact the United States Department of Transportation's (DOT) ability to conduct drug testing for safety-sensitive transportation employees, which plays a crucial role in ensuring public safety across the nation.

Impact on DOT Drug Testing and Deterrence

Loss of Testing Capability: Rescheduling marijuana to Schedule III would effectively terminate the DOT's ability to test for marijuana among safety-sensitive transportation employees. This loss of testing capability poses a significant risk to public safety, as it undermines the existing deterrent effect that drug testing has on commercial transportation workers.

Historical Context: Federal drug testing for transportation employees was initiated due to fatalities caused by marijuana use in train and subway accidents in 1987. Since the implementation of these testing protocols, there have been no commercial transportation fatalities attributed to marijuana use, highlighting the effectiveness of the current system.

NDASA's Concerns with the NPRM

NDASA believes that the proposal to reschedule marijuana, as outlined in the Notice of Proposed Rulemaking (NPRM), is based on incomplete and erroneous evidence. They argue that the proposal fails to account for the potential unintended and potentially catastrophic consequences that could arise from such a change. Key concerns include:

Increased Risk of Accidents: Without the deterrent effect of marijuana testing, there is a heightened risk of impairment among safety-sensitive transportation employees, potentially leading to accidents and fatalities that makes business owners and government agencies vulnerable to lawsuits.

Regulatory and Compliance Challenges: The rescheduling would create significant administrative challenges for agencies like the DOT, which would need to overhaul their testing protocols and compliance frameworks to adapt to the new classification.

Proposed Solution: Safety Carve-Out

To mitigate these risks, NDASA proposes a "Safety Carve-Out" that would ensure the continued ability to test for marijuana among transportation safety-sensitive employees. This carve-out would involve:

Certification Authority for HHS: Ensuring that the U.S. Department of Health and Human Services (HHS) retains the authority to certify laboratories for testing substances, including marijuana, even if it is rescheduled to Schedule III. This would maintain the integrity and reliability of drug testing procedures.

1. Implementation Mechanisms: The Safety Carve-Out could be established through an Executive Order, legislation, or another definitive source of authority. This legal framework would empower HHS to set and enforce testing procedures specific to transportation safety.

2. Administrative Challenges

Regulatory Adjustments: Rescheduling marijuana would require significant regulatory adjustments. Agencies would need to update their policies, procedures, and compliance mechanisms to reflect the new classification while ensuring that safety standards are not compromised.

3. Interagency Coordination: Effective implementation would necessitate close coordination between various government agencies, including the DOT, HHS, and other relevant entities. Clear guidelines and communication channels would be essential to address the complexities of the rescheduling process.

4. Resource Allocation: Ensuring that HHS has adequate resources and authority to continue certifying laboratories and overseeing drug testing procedures would be critical. This may involve additional funding and staffing to manage the increased scope of responsibilities.

While the rescheduling of marijuana from Schedule I to Schedule III might be intended to address certain legal and medical considerations, the potential unintended consequences on transportation safety are a significant concern. NDASA emphasizes the need for a Safety Carve-Out to maintain the effectiveness of drug testing programs for safety-sensitive transportation employees. By carefully considering these factors and implementing appropriate safeguards, policymakers can ensure that public safety is not compromised while navigating the complexities of marijuana rescheduling.