APGA submitted comments on July 22 in response to the Department of Justice’s (DOJ) proposed rule “Schedules of Controlled Substances: Rescheduling of Marijuana.” These comments were submitted jointly with the American Gas Association and the Interstate Natural Gas Association of America.
Natural gas distribution operators must maintain anti-drug and alcohol programs compliant with the Part 199 regulations required by the Pipeline and Hazardous Materials Safety Administration (PHMSA). These regulations define “prohibited drug” consistently with the Department of Transportation’s (DOT) 49 CFR Part 40 regulations. Part 40 defines “drugs” as those “… for which tests are required under this part and DOT agency regulations, including marijuana, cocaine, amphetamines, phencyclidine (PCP), and opioids.” However, DOJ's proposal to reschedule marijuana from a Schedule I to a Schedule III drug under the Controlled Substances Act (CSA) could have unintended consequences for DOT’s ability to test safety-sensitive transportation employees for marijuana use.
In the Omnibus Transportation Employee Testing Act of 1991, Congress required DOT to align its testing regime with the Department of Health and Human Services (HHS). Currently, HHS-certified laboratories do not have the authority to test for Schedule III drugs. The associations are concerned that if DOJ moves forward with rescheduling marijuana, HHS would no longer be able to develop testing protocols or certify laboratories to test for marijuana. In this scenario, all transportation employees—including pipeline operators, air traffic controllers, bus drivers, subway and train operators, and truck drivers—would no longer be subject to federally regulated marijuana testing.
The associations believe it is imperative for pipeline safety that companies and systems ensure their employees are able to perform their jobs safely, including being sober and free from the influence of drugs. Therefore, the associations argue that a carve-out is necessary for safety-sensitive transportation employees. The comments also emphasize the need for DOJ and DOT to collaborate on a final rulemaking that preserves DOT’s long-standing drug-testing regime for transportation safety-sensitive employees.
For questions on this article, please contact Erin Kurilla of APGA staff by phone at 202-464-2742 or by email at ekurilla@apga.org.