The Honorable Merrick B. Garland June 17, 2024
Attorney General
U.S. Department of Justice
The Honorable Anne Milgram, Administrator
Drug Enforcement Administration
8701 Morrissette Drive
Springfield, Virginia 22152
Submitted via Electronic Docket
Re: Part 1 of 2 of the Public Comments from
the National Drug & Alcohol Screening Association
Docket No. DEA–1362
Dear Attorney General Garland and Administrator Milgram,
The undersigned, National Drug & Alcohol Screening Association (NDASA) hereby respectfully submits its Part 1 of 2 of our comments in Docket No. DEA-1362; A.G. Order No.5931-2024, “Schedules of Controlled Substances: Rescheduling of Marijuana”. We are very concerned about the significant transportation safety repercussions of this rescheduling, which we believe are unintended consequences of this rulemaking action. In the interests of domestic transportation safety, we are submitting Part 1 of our comments today to explain the unintended safety impact and how catastrophic accidents can be avoided. In Part 2 of our comments, which we anticipate filing next month, we will address the substantive subject matter of this Notice of Proposed Rulemaking (NPRM) and how the supporting evidence that must be considered should result in a different outcome regarding the rescheduling of marijuana under the Controlled Substances Act (CSA).
NDASA is also submitting a timely Request for Hearing in this matter to address factual inaccuracies submitted by the Department of Health and Human Services (HHS) and upon which the Drug Enforcement Administration (DEA) and the Attorney General are expected to rely, for the decision about rescheduling marijuana from Schedule I to Schedule III under the Controlled Substances Act (CSA). It is essential that the final rule rests upon solid reasoning and reliable facts, which we will plan to address at the hearing as well as in Part 2 of our public comments.
Our non-profit association, NDASA, represents a diverse coalition of employers and contractors, including medical professionals, substance abuse professionals, laboratory and toxicological experts, certified drug and alcohol collections professionals, designated employer representatives, major transportation industry employers and their professional associations, large and small business owners, all of whom are on the front lines of protecting the safety of commercial and public transportation in our nation. Our membership reaches tens of thousands of employers and millions of American workers nationally. Thus, we are deeply invested in maintaining effective measures to prevent needless accidents caused by those under the influence of marijuana and other impairing substances.
Unintended Transportation Safety Consequences If Marijuana Becomes Schedule III
NDASA and its membership are extremely concerned about the unintended consequences of rescheduling marijuana from Schedule I to Schedule III of the CSA because this would end the ability of the U.S. Department of Transportation (DOT) to test safety-sensitive transportation employees for marijuana use. Marijuana drug testing has been an effective method of deterrence for commercial transportation safety-sensitive employees across the nation for more than three decades. Transportation safety sensitive employees include, but are not limited to: airline pilots, air traffic controllers, school bus drivers, subway and train operators, ferry operators, pipeline operators and truck drivers. These safety-sensitive employees have been subject to testing for marijuana and other drugs since shortly after catastrophic accidents in the mid and late 1980s that were directly related to employee marijuana use.
Rescheduling marijuana to Schedule III would abruptly end DOT-regulated testing for marijuana and would have a profoundly detrimental impact on transportation safety in the United States. This connection between the rescheduling of marijuana and the impact on commercial transportation safety was never discussed in the NPRM. Thus, it is fair to conclude there is a significant and dangerous blindside in this rulemaking. In addition to the DOT-regulated transportation safety-sensitive employees, the air traffic controllers employed by the Federal Aviation Administration (FAA) would no longer be subject to the deterrence and detection ensured by Federal marijuana testing. NDASA is raising these issues to the attention of the Attorney General and the DEA to prevent potentially catastrophic accidents and loss of life as a result of the rescheduling of marijuana.
This important connection to the rescheduling of marijuana and transportation safety that was not addressed in the NPRM was created through the Omnibus Transportation Employees Testing Act of 1991 (OTETA), codified at 49 U.S.C. 45102 and 45104 (aviation industry testing), 49 U.S.C. 20140 (rail), 49 U.S.C. 31306 (motor carrier), and 49 U.S.C. 5331 (transit). OTETA requires the DOT to follow the Substance Abuse and Mental Health Services Administration of HHS for the science of drug testing, including the drugs to be tested and the drug metabolite cutoff levels, which are set forth in the HHS Mandatory Guidelines. OTETA also requires DOT to use only HHS-certified laboratories for all drug testing required by DOT.
However, HHS does not have authority to test for Schedule III drugs. The authority of HHS to test for and to certify laboratories for testing is provided by Executive Order 12564– Drug-free Federal Workplace of Sept. 15, 1986 (E.O. 12564). Under E.O. 12564. HHS is only authorized to test for drugs and certify laboratories to test for drugs that are in Schedule I or II of the CSA. Specifically, E.O. 12564, Section 7(c) states: “For purposes of this Order, the term ‘illegal drugs’ means a controlled substance included in Schedule I or II, as defined by section 802(6) of Title 21 of the United States Code”.[1] Sections 3.2 (a) of both the HHS Mandatory Guidelines for Urine and the HHS Mandatory Guidelines for Oral Fluid state that an employee may be tested for “any drugs listed in Schedule I or II of the Controlled Substances Act.”[2]
If marijuana becomes a Schedule III substance, HHS would no longer be able to require testing for or to certify laboratories to test for marijuana. As a result, DOT immediately would no longer be able to test for marijuana because OTETA requires DOT to rely on HHS for the science of drug testing (the drug cutoff levels and scientific protocols), and DOT-regulated tests are required to be screened and confirmed at HHS certified laboratories. If a DOT-regulated safety-sensitive employee were to test positive for Schedule III marijuana, the testing would have occurred at a laboratory no longer certified by HHS and the test result would be legally unsustainable. Thus, the day after marijuana were to become a Schedule III drug, would be the day all marijuana testing for safety-sensitive employees would come to a screeching halt.
Hence, since the rescheduling of marijuana to Schedule III would stop all DOT-regulated testing, and this was never mentioned in the NPRM, we believe it is a profound unintended consequence. If marijuana becomes a Schedule III substance, safety-sensitive transportation employees, including airline pilots, air traffic controllers, school bus drivers, subway and train operators, ferry operators, pipeline operators and truck drivers, will no longer be subject to Federally regulated marijuana testing and would be able to use marijuana on-the-job and outside work hours. In addition, others who include FAA’s air traffic controllers would be able to use marijuana and would not be subject to testing for it. The absence of marijuana testing for these safety-sensitive transportation employees poses a significant risk to the safety of our roads, skies, waterways, pipelines and rails.
Federally regulated drug testing for transportation safety-sensitive employees has long been integral to maintaining safety standards within the domestic transportation sector since several marijuana-related train and subway accidents took place in the 1980s, the last of which was a catastrophic fatal collision between a Conrail train and an Amtrak passenger train in 1987. The Federal Railroad Administration (FRA) began drug testing almost immediately after this accident and the rest of DOT-regulated testing began in 1989. For more than three decades since the inception of DOT-regulated drug testing, these protocols have effectively prevented marijuana-related accidents in commercial transportation. In fact, in the more than 35 years of federally regulated drug testing, the National Transportation Safety Board has not found a single commercial transportation accident to have been caused by marijuana. Thus, the prevention resulting from DOT-regulated testing has created an outstanding record of safety that is at risk of being shattered by the rescheduling of marijuana.
If there were a scientifically reliable method for determining actual marijuana impairment, this would likely be a different discussion. Of course, there is a reliable method for measuring alcohol impairment. However, impairment testing for marijuana has not been possible due to several complicating factors. Marijuana consumption has a different impact and is more highly variable than alcohol consumption.
First, the nature of tetrahydrocannabinol (THC), as a fat-soluble substance that adheres to human fat cells, means that THC stays in a person’s body longer than water-soluble alcohol. While alcohol is eliminated easily from the human body, THC remains in the fat cells and may cause prolonged impairment, depending upon use and product type, such as vaping concentrated THC.
Second, marijuana products that would be covered by this final rule span a broad spectrum of potencies – from about 5 % to 90% THC. This broad range of potencies produces vastly differing physiological and psychological effects on different individuals.
Third, how and when marijuana products impact the individuals using them also differs depending on the methods of consumption – from smoking to vaping, eating, dabbing, etc. as well as the individual’s frequency of use. As an example, consumption through the lungs impacts a person almost immediately, while edibles can impact a person up to two hours after consumption.
Consequently, without having an impairment standard on the horizon, the only way to ensure transportation safety is to test for the presence of marijuana. For more than three decades, DOT has been required to follow HHS for the science and the cutoff levels HHS has set for the presence of marijuana. This marijuana testing has proven to be an effective deterrent and an invaluable safety tool.
Recommendations for Addressing the Unintended Consequences
For the reasons stated above, NDASA believes the marijuana rescheduling proposal in the NPRM, which is based on many incomplete and erroneous factual evidence, would produce unintended and potentially catastrophic consequences. We are respectfully making three recommendations to address the unintended consequences:
Recommendation # 1 – Maintain the status quo and leave marijuana in Schedule I.
We respectfully request that the current rulemaking be withdrawn or finalized with no change to the current status of marijuana as Schedule I. The United States Congress has multiple legislative actions pending on marijuana from rescheduling (H.R. 610: “Marijuana 1-to-3 Act of 2023”) H.R. 610, to allowing limited use for veterans (H.R. 2682: “Veterans Medical Marijuana Safe Harbor Act”), to not allowing legalization (H.R. 5323: “Stop Pot Act of 2023”), to the full legalization of marijuana (H.R. 5601: “Marijuana Opportunity Reinvestment and Expungement Act” or the “MORE Act”). Consequently, it would be practical to withdraw this NPRM and allow the Legislative Branch to address the policy and legal issues surrounding the scheduling and/or legalization of marijuana.
Recommendation # 2 – Reschedule Marijuana to Schedule II.
While NDASA does not recommend rescheduling marijuana to Schedule II versus maintaining the status quo of Schedule I, as a first choice, it would be more preferable than moving marijuana to Schedule III. We will present evidence in our second set of comments to demonstrate that the criteria for moving marijuana from Schedule I to III is not objectively supportable.
Moving marijuana to Schedule II of the CSA would keep marijuana testing within the current authority HHS has been granted under E.O. 12564. As long as marijuana remains in CSA Schedules I or II, HHS will have the authority to continue to test for and certify laboratories to test for marijuana. This would retain marijuana in the DOT-regulated drug testing panel and continue the more than three decades of effective deterrence of marijuana use among transportation safety-sensitive employees.
Recommendation # 3 – Before a final rule is issued to reschedule Marijuana to Schedule III, Create an Executive Order that authorizes HHS to conduct testing for and certify laboratories to test for drugs beyond Schedules I and II
If this rulemaking will move marijuana to Schedule III of the CSA, we respectfully request that immediately before or simultaneously with the issuance of the final rule, an Executive Order is released to supplement E.O. 12564 such that HHS will have clear authority to test for substances beyond Schedules I and II of the CSA. Such an Executive Order will maintain the status quo for Federally regulated drug testing and would remove the possibility of unintended consequences.
The new Executive Order would supplement and would not replace E.O. 12564. Here is an example of what could be included in the new Executive Order:
Executive Order _______– Supplement to the Drug-free Federal workplace Executive Order 12564
I, JOSEPH ROBINETTE BIDEN JR., President of the United States of America, find that:
The Federal government, as an employer, is concerned with the well-being of its employees, the successful accomplishment of agency missions, and the need to maintain employee productivity;
The Federal government, as a regulator of transportation safety, is concerned with the well-being of transportation safety-sensitive employees, the traveling public, and others who benefit from the safe operation of commercial transportation;
By the authority vested in me as President by the Constitution and laws of the United States of America, including section 3301(2) of Title 5 of the United States Code, section 7301 of Title 5 of the United States Code, section 290ee-1 of Title 42 of the United States Code, deeming such action in the best interests of national security, public health and safety, law enforcement and the efficiency of the Federal service, it is hereby ordered as follows:
Section 1(a) For purposes of drug testing and laboratory certification under Executive Order 12564, the Secretary of Health and Human Services is authorized to promulgate scientific and technical guidelines for drug testing programs, and to certify laboratories to conduct drug testing for “illegal drugs”.
Section 1(b) For purposes of this Order and Executive Order 12564, the term “illegal drugs” means a controlled substance included in Schedules I through V, as defined by section 802(6) of Title 21 of the United States Code, or an unscheduled drug that is deemed by the Department of Justice or the Department of Health and Human Services to be potentially endangering to health, safety or security. The term “illegal drugs” does not mean the use of a controlled substance pursuant to a valid prescription or other uses authorized by law. However, marijuana continues to be an illegal drug if used by safety-sensitive or safety-related employees, regardless of a marijuana prescription or recommendation for its use.
The language in Section 1(b) would grant HHS, and its agency, SAMHSA, the authority to conduct testing and certify laboratories for drugs beyond Schedules I and II. The language stating “or an unscheduled drug that is deemed by the Department of Justice or the Department of Health and Human Services to be potentially endangering to health, safety or security” would allow for the testing of substances that demonstrate an emerging threat, such as “street drugs” that have not yet been classified by the DEA under the CSA.
Such a “Safety Carve-Out” through an Executive Order, would ensure transportation safety-sensitive employees, including Federal air traffic controllers, would continue to be deterred from marijuana use. The Safety Carve-Out must ensure, at a minimum, that HHS would continue to certify laboratories for substances below Schedules I and II of the CSA. Deploying this, or a substantially similar Executive Order would remove the unintended consequences that would otherwise result from moving marijuana to Schedule III, as proposed in this NPRM.
Respectfully submitted,
M. Jo McGuire
Executive Director
National Drug & Alcohol Screening Association
1629 K Street NW, Suite 300
Washington, DC 20006
jomcguire@ndasa.com
[1]Executive Order. Federal Register. [Online] [Cited: September 25, 2019.] https://www.archives.gov/federal-register/codification/executive-order/12564.html .
[2] HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs using Urine. 82 Fed. Reg. 7920 (Jan. 23, 2017) https://www.govinfo.gov/content/pkg/FR-2017-01-23/pdf/2017-00979.pdf ;HHS Mandatory Guidelines for Federal Workplace Drugtesting Programs using Oral Fluid. 84 Fed. Reg. 57554 (Oct. 25, 2019) https://www.govinfo.gov/content/pkg/FR-2019-10-25/pdf/2019-22684.pdf
- Read Part 2 of NDASA’s response to the proposed rescheduling of marijuana
- Read about some unintended consequences of marijuana legalization by Bill Current
- Find details about how to provide comment for the DEA’s proposed rulemaking