How would federal rescheduling of marijuana affect trucking?

Jason Cannon:
CCJ's 10 44 is brought to you by Chevron Delo, heavy duty diesel engine oil. Now there's even more reasons to choose Delo.

Matt Cole:
The Biden administration is looking to reclassify marijuana at the federal level. What does that mean for trucking?

Jason Cannon:
You're watching CCJ's 10 44, a weekly episode that brings you the latest trucking industry news and updates from the editors of CCJ. Don't forget to subscribe and hit the bell for notifications, so you'll never miss an installment of 10 44. Hey everybody, welcome back. I'm Jason Cannon and my co-host, as always is Matt Cole, the Department of Justice and the Drug Enforcement Agency. Recently published notice of proposed rulemaking to reclassify marijuana from a schedule one drug to a Schedule three drug

Matt Cole:
To begin to understand what rescheduling marijuana might mean for trucking. It's important to know what the differences are between schedule one and Schedule three drugs. Brandon Wiseman, president of Truck Safe Consulting and a partner at the Children's Law Firm joins us this week to talk about those differences before getting into what the proposed rescheduling could mean for trucking.

Brandon Wiseman:
I'm Brandon Wiseman. I'm president of a company called Truck Safe, and then a partner with the Childress Law Firm at Truck Safe. We do a lot of content, all centered around DOT regulations and helping fleets and their drivers understand the basics of DOT compliance and what they need to know about following those rules and keeping themselves out of trouble. From what I understand about the way that the DEA schedules, I'm by no means an expert in that particular area, but as I understand it from my work in the transportation industry and understanding DOT drug testing in that context, schedule one drugs are the types of drugs, the hard drugs that are generally recognized as having no accepted medical use and like a high potential for abuse. Whereas a Schedule three drug, which is where the DEA is proposing to move marijuana, are lower hazards, lower potential for physical and psychological dependence.

They are still controlled though in the sense that, as I understand it, they still require a prescription to be able to use those types of drugs. So that's the distinction in a nutshell. So as I understand it, again, most of the Schedule three drugs, again, a low potential for dependence, but these drugs are still controlled in the sense that they require a prescription. So the way that the DOT regulations handle this is that they say that just testing positive for those particular drugs on A DOT test isn't in and of itself going to render the driver disqualified, but they have to have a valid medical prescription for the drug and their prescribing physician and the MRO who verifies the results of the drug test, they have to be comfortable that the driver's use of that particular drug. It won't affect their ability to safely operate a commercial motor vehicle.

So that's essentially the way it's handled now is for those prescription drugs. Certainly there are lots of truck drivers on prescriptions. It's just a matter of whether the involved feel comfortable that that particular drug isn't going to inhibit their ability to safely operate a truck. Some prescription drugs will inhibit a driver's ability to safely operate a truck, and so then 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 trucks. So that's the way we handle it currently.

Jason Cannon:
Brandon says if the DEA moves forward with the proposal and it becomes final, it could create a lot of confusion surrounding drug testing.

Brandon Wiseman:
Well, it's going to create some ambiguity for sure, because the way that the DOT drug testing works is that there are several different federal agencies involved with it. It's not specific to trucking. So anybody who's familiar with these regulations knows that we are dealing with two parts of the federal regulations for truck driver DOT testing. We're dealing with part 40 and part 3 82. The reason part 40 is involved is because those are the broader US DOT regulations that are broadly applicable to all modes of transportation. So railroad workers and airline pilots and drug and alcohol testing fits under those regulations. Most of the components of federal drug and alcohol testing for DOT purposes are broadly applicable to the modes. And so right there, we've got two agencies involved. We've got the F-M-C-S-A that's in charge of trucking, that has a role to play in drug testing truck drivers, but then we've got the US DOT involved that's involved in the sense of kind of setting the standards for how we conduct testing regardless of the mode.

But then we also bring in a third federal agency, which is the Department of Health and Human Services, which is even more broadly responsible for setting standards for drug testing in the workplace. And so this sets up a problem where when we have one change to a minor part of workplace drug testing, that cascades down to these other agencies, and it creates the potential for some conflicts among their various regulations. Some of them may mention marijuana by name, others of them may mention it by what schedule they're on. And so that's what I'm most concerned about. And actually a TA seems pretty concerned about it too.

Matt Cole:
Brandon mentioned concerns raised by the American Trucking Associations. He goes into more detail on those concerns after a quick word from 10 44 sponsor Chevron lubricants.

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Brandon Wiseman:
They sent a letter recently to Merrick Garland, the US Attorney General raising this specific concern for trucking, which is that, hey, if marijuana gets scheduled, rescheduled to schedule three, that has the potential of eliminating the authorization that the U-S-D-O-T and that the F-M-C-S-A have to even test for marijuana to begin with because they're reliant on the Department of Health and Human Services guidelines, which say that workplaces can only test for schedule one substances. So if marijuana is no longer a Schedule one substance, then arguably DOT and F-M-C-S-A lose their authorization to test for that substance. But that then leaves open the existing regulations from F-M-C-S-A and U-S-D-O-T, which clearly contemplate marijuana testing and not to mention their guidance that they have their longstanding guidance on marijuana use by truck drivers. And so the question is, what will this ultimately mean for F-M-C-S-A and for U-S-D-O-T regulations? And we don't know yet. We're going to have to see how it plays out. We're hoping to get some clarification though, from either the DEA or the US Attorney General on that front.

Jason Cannon:
Making things even more complicated is that marijuana legalization laws vary from state to state where it's legal recreationally in some states, medicinally and others, and it's outright illegal in other states.

Brandon Wiseman:
That even adds another dimension of complexity to this, right? That's one that we have managed to date. We know the answer to that question to date, which is, this has been the question. We've got all these states that are legalizing it, as you said, for either medicinal purposes or for recreational purposes. How does that affect interstate regulated truck drivers? Well, DOT and F-M-C-S-A have been very clear about this. Even if it's legal in your state, that doesn't matter. It's unlawful at the federal level, and you as an interstate regulated truck driver are not authorized to use marijuana, even if it's legal in your state. And if you test positive for marijuana on A DOT mandated drug test, you're out of a job until you go through the return to duty process. It's been a pretty clear cut answer to that complexity of the state law and the federal law attention now with federal law, that federal law hook not being in there anymore potentially.

In other words, we can't lean on federal law. The US DOT can't lean on federal law as the basis for saying truck drivers can't do this. And so now we're going to have the potential for still divergent state and federal laws because some states may still say, even if the federal law authorizes this as a schedule three drug, we, Indiana, or whoever it may be, we don't want folks in our state to use it. So we're still going to have that conflict state and federal law, and it's going to add to that complexity of the question of whether this is going to be lawful for drivers or not. Long story short, it's going to be a long time, I suspect before we have concrete answers to this, but I think even if we don't have concrete answers in the form of some kind of rulemaking from F-M-C-S-A or the U-S-D-O-T, 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 DE's rule gets passed, if it's going to be finalized.

Matt Cole:
The DEA's rulemaking is still in the very early stages with the notice of proposed rulemaking having just been published in the federal Register on May 21st. A lot could change before it's finalized, if it ever even gets to that point.

Brandon Wiseman:
Remember, we're in the notice of proposed rulemaking stage from the DEA, so that means it's been published in the Federal Register. It's open for public comments for 60 days, and I have no doubt that docket's going to be flooded with comments, including from agencies like F-M-C-S-A and U-S-D-O-T, and certainly industry groups like the A TA and probably a bunch of the safety advocates will file comments as well. And the rulemaking process works like that. Once the DEA receives all of those comments, they're supposed to review them and figure out whether they warrant any changes to their proposed rule before they proceed along to publishing a final rule, which would set the dates for actually affecting the change. And so I have no doubt that we will see changes from the proposed rule to the final rule, 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. Whether it goes one way or the other, I don't know how it will go, but there should be at least something. And if the U-S-D-O-T and F-M-C-S-A want it their way, and they don't want marijuana use to be rampant among interstate regulated truck drivers, I think the way that you've described is probably way that it would be handled if the DEA is going to handle it, which is to carve out essentially safety sensitive functions or safety sensitive industries from the descheduling. And then maybe things stay status quo with respect to that. In trucking, we'll just have to wait and see.

Jason Cannon:
Brandon says marijuana could end up being treated like alcohol where it's not illegal to use per se, but the ability to test impairment on the spot is currently lacking.

Brandon Wiseman:
Another way I could see it going is starting to treat marijuana more like how we treat alcohol use for truck drivers. Certainly drivers aren't prohibited from using alcohol wholesale. Now, the regulations put some parameters around that. They can't obviously be using alcohol while they're on duty, and they're not supposed to be using it within four hours of being on duty. And certainly if they test positive for alcohol or if they're driving impaired, well then that's going to pull them out of the seat and disqualify them. So I could see marijuana kind of going along the same route of, maybe it's not unlawful per se, but maybe we are still concerned about potential impairment from its use. But I think if we get to that point and we're start starting to consider it more akin to alcohol from a regulatory perspective, we're going to have to have a better handle on ways to check for impairment. It's just something that's, as I understand it, not really readily available to law enforcement is detecting impairment from marijuana use. And so really all we're testing for on the DOT test is actually marijuana metabolites in the blood THC, in the blood, in the bloodstream or the urine I should say. But going forward, I think if that is the plan to move it more towards or to treat it more like alcohol, then we're going to have to have a better way of detecting impairment.

Jason Cannon:
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