The Department of Justice’s Drug Enforcement Administration on May 20 officially published its notice of proposed rulemaking that, if finalized, would reschedule marijuana from a Schedule I controlled substance to Schedule III.
The Biden Administration signaled its intent to move forward with such a proposal earlier this month, and the NPRM’s publication formalized that effort.
The DEA’s proposal said moving marijuana from Schedule I to Schedule III under the Controlled Substances Act would be “consistent with the view of the Department of Health and Human Services (HHS) that marijuana has a currently accepted medical use, as well as HHS's views about marijuana's abuse potential and level of physical or psychological dependence.”
That, ultimately, is the difference between the two scheduling levels, as previously reported. Schedule I drugs are defined in the Act as “drugs with no currently accepted medical use and a high potential for abuse.” Those include heroin, LSD, ecstasy and, at least for now, marijuana.
Schedule II drugs, in the terms of the legislation, show “high potential for abuse, with use potentially leading to severe psychological or physical dependence,” and are considered dangerous. These include combination products with less than 15 milligrams of hydrocodone per dosage unit (Vicodin), cocaine, methamphetamine, methadone, fentanyl and more.
Drugs classified under Schedule III, how DEA is looking to classify marijuana, are those “with a moderate to low potential for physical and psychological dependence,” and have a lower abuse potential than Schedule I and Schedule II drugs. Currently, these include products containing less than 90 milligrams of codeine per dosage unit, like Tylenol with codeine, as well as ketamine, anabolic steroids, testosterone and more.
Typically, according to Brandon Wiseman, attorney and president of Trucksafe Consulting and guest for this week's Overdrive Radio podcast, Schedule III drugs “are still controlled in the sense that they require a prescription.” As such, having a Schedule III drug in your system is not necessarily a disqualifying factor in DOT drug testing. The driver must have a valid medical prescription for that drug, and the medical review officer (MRO) that validates the results of the drug test has to be comfortable that the use of that drug won’t impact the driver’s ability to safely operate a truck.
“Some prescription drugs will inhibit a driver's ability to safely operate a truck,” Wiseman said in the podcast. “And so we just weed those drivers out. Those drivers aren't going to be physically qualified. They're not going to be able to get a med card, for example, to be able to operate.” Hear much more from Wiseman here:
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In 2023, however, HHS conducted a scientific and medical evaluation of marijuana based on a comprehensive review of available data and recommended that marijuana be transferred to Schedule III.
[Related: Marijuana legalization, trucking, and the future of drug testing]
What rescheduling could mean for employer and otherwise required testing
When the DEA’s rule was released, the American Trucking Associations sent a letter to Attorney General Merrick Garland, HHS Secretary Xavier Becerra and DOT Secretary Pete Buttigieg to call attention to the potential negative impacts the rescheduling of marijuana could have on employers in trucking.
“Absent an explicit allowance for continued employer marijuana testing of safety-sensitive workers, this change may have considerable negative consequences for highway safety and safety-sensitive industries,” the group said.
ATA is concerned that reclassifying marijuana “could prohibit certain industries from screening for marijuana use by workers performing safety-sensitive roles.” The group added that “if the trucking and broader transportation industries’ ability to conduct drug testing for marijuana use is restricted, the risk of impaired drivers operating on our nation’s roadways undetected would increase, endangering all who share the road.”
Under the HHS’ Mandatory Guidelines for Federal Workplace Drug Testing Programs, under which transportation workers like truck drivers fall, regulated employers can test for Schedule I and II drugs. If marijuana were to be reclassified as a Schedule III drug, it could be precluded from drug testing of truck drivers and other transportation workers.
Evidenced by Federal Motor Carrier Safety Administration Drug and Alcohol Clearinghouse data, marijuana is by far the biggest reason drivers test positive and are prohibited from operating commercial vehicles. According to FMCSA data through March, since the Clearinghouse took effect in 2020 marijuana has been identified in 147,472 positive drug tests. The next highest offender is far from that level -- cocaine has been detected in 40,299 positive drug tests since 2020.
Wiseman said this could create inconsistencies in how different agencies view drug testing.
“If marijuana is no longer a Schedule I substance, then arguably DOT and FMCSA lose their authorization to test for that substance,” he said. “But that then leaves open the existing regulations from FMCSA and USDOT, which clearly contemplate marijuana testing.”
Additionally, FMCSA has longstanding guidance on marijuana use by truckers.
Wiseman said at this early stage in the proposal process, it’s hard to know how it will all shake out in the long run. “We're hoping to get some clarification, though, from either the DEA or the U.S. Attorney General on that front,” he noted.
Conflicting state laws on marijuana’s legal status, too, add a layer of complexity to the issue, Wiseman added.
“Long story short, it's going to be a long time, I suspect, before we have concrete answers to this,” he said. “But I think even if we don't have concrete answers in the form of some kind of rulemaking from FMCSA or the U.S. DOT, we're probably going to have to have some interim guidance from those agencies to at least explain how they envision this working once the DEA's rule gets passed, if it's going to be finalized.”
There are a few scenarios that could play out during the NPRM stage of the rescheduling rule (the comment period remains open through July 22). Wiseman said he expects comments to be filed from FMCSA, the DOT, the ATA and other trucking groups. Once the comment period closes, as with all proposals in the Federal Register, the DEA will consider all of the comments filed before publishing a final rule.
“I have no doubt that we will see changes from the proposed rule to the final rule,” Wiseman said. “Whether it will include a component to address trucking is up in the air. I think that's probably the best thing that could happen, is that there would be some kind of provision inserted to at least address trucking.”
Another potential outcome, though probably less likely, would be marijuana being treated like alcohol, where truck drivers aren’t prohibited from using it, but it has to be within certain parameters. The problem with marijuana, as Alex Lockie's recent reporting has made clear, however, is that there isn’t currently an easy way to detect impairment.
“It's just something that is, as I understand it, not really readily available to law enforcement,” Wiseman said of the ability to detect marijuana-use impairment. “And so really all we're testing for on the DOT test is actually marijuana metabolites” in the urine.
If the plan is to treat it more like alcohol, though, “then we're going to have to have a better way of detecting impairment,” he added.
[Related: Biden officially commits to marijuana regs overhaul: What CDL drivers need to know]
