Justice Department Proposes Moving Marijuana to Schedule III, Raising Drug-Testing Questions for Trucking

The U.S. Department of Justice formally proposed moving marijuana from Schedule I to Schedule III of the Controlled Substances Act in a notice published in the Federal Register on May 21, 2024. Attorney General Merrick Garland had submitted the proposal on May 16.

What the proposal says

The proposal follows the view of the Department of Health and Human Services that marijuana has a currently accepted medical use and a lower potential for abuse than other Schedule I drugs. Schedule I is reserved for substances with no accepted medical use and a high potential for abuse, such as heroin and LSD. Schedule III includes ketamine, anabolic steroids and products with limited amounts of codeine.

The notice states that if the change is finalized, "the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions" of the Controlled Substances Act. Rescheduling would not legalize the drug at the federal level. Until a final rule is issued, marijuana remains a Schedule I substance.

The rescheduling must go through formal rulemaking with an opportunity for a hearing. Comments were due July 22, 2024, and requests for a hearing by June 20.

The drug-testing question

Truck drivers and other DOT safety-sensitive workers are tested under 49 CFR Part 40, which requires labs to test for five drug classes: marijuana, cocaine, amphetamines, opioids and phencyclidine. Land Line noted that the regulation names those drugs and does not refer to drug schedules.

The Owner-Operator Independent Drivers Association said the proposal had no immediate, direct effect on drug testing for commercial drivers but "may or may not eventually result in changes to DOT drug testing protocols."

"We anticipate there will be numerous regulatory, legislative and legal actions over the next few years that will determine if testing for DOT safety-sensitive personnel should be modified," OOIDA President Todd Spencer said. "This will be an opportunity to examine issues such as impairment levels, impairment detection, roadside enforcement capabilities, medical benefits and driver retention, among a host of others. Undoubtedly, highway safety must be the most important factor when evaluating if changes are warranted."

The American Trucking Associations raised a sharper concern in a letter to Garland, HHS Secretary Xavier Becerra and Transportation Secretary Pete Buttigieg. ATA argued that HHS guidelines governing DOT testing allow regulated employers to test only for drugs in Schedules I and II, so "without additional action, deregulation or rescheduling of marijuana would have the likely consequence of precluding testing for all professional drivers and transportation workers as part of the DOT testing program," wrote Dan Horvath, ATA's senior vice president of regulatory affairs and safety policy.

ATA said marijuana accounted for around 60% of positive employer drug tests of commercial drivers reported to FMCSA's Drug and Alcohol Clearinghouse as of March 2024. "Absent an impairment standard, testing for marijuana use by safety-sensitive employees must remain in place," the association said. HDT noted that no widely accepted test exists for marijuana impairment comparable to blood alcohol content.

What it means for drivers and fleets

Nothing changed for CDL holders when the proposal was published in May 2024: marijuana remained a Schedule I drug, DOT testing rules were untouched, and a positive test still meant removal from safety-sensitive duty and the return-to-duty process. Carriers had to keep testing as before while the rulemaking, hearing process and any follow-up guidance from DOT played out.