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RIMS Report: Risk Management Implications of Conflicting Federal and State Cannabis Laws

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The RIMS External Affairs Committee has issued a new Legislative Review discussing the challenges risk professionals may face regarding the cannabis laws in the United States.

Available exclusively to members, The Risk Management Implications of Conflicting Federal and State Cannabis Laws is designed as a resource for risk professionals representing cannabis businesses, as well as landowners and landlords who often face a range of issues as a result of the disconnect between state and federal cannabis laws.

The sale, possession and use of marijuana has been fully and partially decriminalized in many states, but is still federally recognized as a “Schedule I Narcotic” under the Controlled Substances Act. This has led to conflicting interpretations of the law and unwittingly put many companies at risk of breaking the law.

“The members comprising our external affairs committee have been monitoring the developments related to cannabis for years,” said Whitney Craig, RIMS Government Affairs Director. “There are few absolutes when it comes to cannabis in the United States, but the review provides a concise guide to help members navigate through the challenges posed in this evolving industry.

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The review discusses:

  • how and when to navigate between state and federal laws
  • the risks of a marijuana business opening a bank account
  • what types of businesses are subject to federal drug raids
  • how these laws and risks impact residential and commercial owners
  • insurance resources
  • and more.

“Until the Controlled Substances Act is amended to remove marijuana as a Schedule I Narcotic, there is always some risk that shifting political winds or other factors in the area where the business is located may result in prosecution, even where marijuana has been legalized or decriminalized,” the report states. “Careful due diligence and legal advice from counsel familiar with this area of law is always a wise choice.”

The report touches on a number of new cannabis industries, such as delta 8 THC which has become popular in Texas due to the recent DSHS ban. There are a number of merchant services that will process payments for delta 8 THC products, and there are also a number of banks who will accept these clients, according to delta 8 vape manufacturer Area 52.

The report is currently available exclusively to RIMS members.

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To download the report, visit RIMS Risk Knowledge library at www.RIMS.org/RiskKnowledge. For more information about the Society and to learn about other RIMS publications, educational opportunities, conferences and resources, visit www.RIMS.org.

Risk Management magazine has covered the risks that growing marijuana can pose to commercial or residential property.

NTSB’s Most Wanted Improvements Reflect Major Transportation Disasters of 2018

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The National Transportation Safety Board (NTSB) unveiled its 2019-2020 Most Wanted List of Transportation Safety Improvements today. The 10-item list is associated with 267 open NTSB safety recommendations that mark critical changes needed in the next two years to reduce transportation accidents, injuries and fatalities, and longstanding safety issues that threaten businesses, professionals and the traveling public.

The list, which is now available online, was unveiled at the NTSB’s press conference in Washington, D.

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C.:

  • Eliminate Distractions.
  • End Alcohol and Other Drug Alcohol Impairment.
  • Ensure the Safe Shipment of Hazardous Materials
  • Fully Implement Positive Train Control (PTC)
  • Implement a comprehensive strategy to reduce speeding-related crashes
  • Improve the Safety of Part 135 Aircraft Flight Operations
  • Increase Implementation of Collision Avoidance Systems in All New Highway Vehicles
  • Reduce Fatigue-Related Accidents
  • Strengthen Occupant Protection
  • Require Medical Fitness – Screen for and Treat Obstructive Sleep Apnea

“We do not simply come up with these recommendations based on a whim,” NTSB chairman Robert Sumwalt said during his opening remarks. “It’s a data-driven approach based on the results of our investigation and the tragic and senseless deaths we investigate. The NTSB’s most wanted list is written in blood.”

Sumwalt said driving while distracted – from cars to trains – had risen to be one of the most prevalent transportation risks facing American roads, railways, businesses and the general population. Texting-while-driving, he said, can increase the likelihood of a crash between four and 20 times. Sumwalt said the NTSB has called for an outright ban on all mobile devices when operating a vehicle because of the distraction to a driver’s cognitive ability and has urged policymakers to regulate the use of devices like Bluetooth and hands-free phones the same as standard mobile device use.

He also said that nearly 37,000 fatalities were reported on roadways in 2017, the most recent year of data available.

The inclusion of distracted driving dovetails with a study released in January by the Insurance Institute for Highway Safety (IIHS), which highlighted the marked increase in drivers using phones in risky ways. based on an observational survey of drivers in four Northern Virginia communities drivers were 57 percent more likely to be observed manipulating their phones, like when texting or using for purposes other than phone calls.

Based on findings that fatal crash risk is 66 percent higher when manipulating a phone, IIHS researchers estimated that about 800 crash deaths in the United States in 2017 could be attributed to drivers texting or using phones for things other than talking.

PTC also received special focus during the NTSB panel discussion and press conference. Board member Jennifer Homendy said the most recent data is from the third quarter of 2018 and that, “we are closer to installation but there’s a big difference between installation and operational. We’re a ways away from that, unfortunately. The risk is the same 50 years ago as it was a year ago,” she said, referencing the PTC-preventable crash she investigated exactly one year ago in Cayce, South Carolina.

After Congress passed the PTC Enforcement and Implementation Act of 2015 it also authorized the FAST Act, which allocated $199 million in PTC grant funding and specifically prioritized PTC installation projects for Railroad Rehabilitation and Improvement Financing funding. The Association of American Railroads estimates that freight railroads will spend $10.6 billion implementing PTC, with additional hundreds of millions each year to maintain. The American Public Transportation Association has estimated that the commuter and passenger railroads will need to spend nearly $3.6 billion on PTC.

As previously reported, several major transportation providers, such as AMTRAK and the Long Island Railroad have missed critical deadlines for installing PTC.

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“In 1961 President Kennedy set a goal to put a man on the moon by the end of the decade and in July 1969 Neil Armstrong and Buzz Aldrin did that,” Homendy said. “In 1969, NTSB investigated its first PTC-preventable accident. In one decade we put a man on the moon but in five decades we haven’t implemented PTC.”

Limit Organizational Exposure During the Polar Vortex

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A polar vortex has gripped large areas of the Northern United States, and all-time lows are being approached in parts of Midwest states like Iowa and Illinois. This frigid weather phenomenon is defined by the National Oceanic and Atmospheric Association (NOAA) as a large area of low pressure and cold air that normally surrounds the North and South poles. But during unstable conditions, the Arctic air can expand and drift southward to North America.

The extreme cold has led to several injuries and six deaths, including an auto accident that killed a couple, a man who likely froze to death in his Milwaukee garage and another man struck by a snow plow in the Chicago area.

The weather system has also forced the closure of schools, businesses, flights and even the United States Postal Service in some areas, and warnings are in effect for workers to stay home and keep off the roads.

Driving Tips

Some people must get out and drive, however, and so whether making deliveries, heading to or from work, or running necessary errands, drivers and asked to use heightened caution.

At this time last year when preparing for the “weather bomb,” AAA recommended precautions that can be applied during a polar vortex, including this basic tip: Accelerate and decelerate slowly. Applying the gas slowly when accelerating is the best method for regaining traction and avoiding skids, AAA said, cautioning that it takes time to slow down for a stoplight as it takes longer to slow down on icy roads.

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Building Tips

Looking inside your organization’s physical foundation is also critical to its resilience. In addition to clearing snow from driveways and de-icing entrances, organizations should be cognizant of how such brutally low temperatures can impact their workplaces. Interstate Restoration offers tips on how to address a building’s infrastructure during winter weather.

For example, if your pipes are found to be frozen, Interstate Restoration offers suggestions to reduce the likelihood of a burst:

  1. Turn off water to the building at the main water shutoff valve
  2. Inspect the pipe closely for cracks and note any that you find
  3. If you find cracks, call a plumber for advice before doing anything else
  4. If there is no damage present, add a space heater to the area or use a hair dryer to gradually warm the pipe. If the outside temperature is expected to rise, you can also wait for the pipe to thaw on its own before turning the water back on. PROCEED WITH CAUTION: Never use any type of open flame or torch to thaw pipes.

Outdoor Working Tips

The Department of Labor recommends that employees working in frigid temperatures avoid alcohol, smoking and some medications to help minimize risks.

As previously reported, the best way to avoid cold stress is by wearing proper clothing.

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The type of fabric makes a difference as well. For example, cotton loses its insulation value when it becomes wet, while wool, silk and most synthetics retain their insulation even when wet.

Here are some clothing tips for workers in cold environments:

  • For better insulation wear at least three layers of clothing: An inner layer of wool, silk or synthetic to wick moisture away from the body; a middle layer of wool or synthetic to provide insulation even when wet; and an outer wind and rain protection layer that allows some ventilation to prevent overheating.  Avoid tight fitting clothing.
  • Wear a hat or hood to help keep the entire body warm. Hats reduce the amount of body heat that escapes from the head.
  • Wear insulated boots or other appropriate footwear.
  • Keep extra clothing (including underwear) handy in case clothing gets wet.
  • Do not underestimate the wetting effects of perspiration. Venting of the body’s sweat and heat can be more important than protection from rain or snow, according to the DOL.

The Occupational Safety and Health Administration (OSHA) also issues guidelines, suggesting that heavy work be scheduled for the warmer part of the day, and to assign employees to work in pairs to lessen the risk of cold stress.

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Seven Qualities of an Impactful Risk Register

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You might have resolved to tidy up some processes and press the “reset” button on your risk register in the new year. Whether you’ve started a new position, want to improve your company’s operations or just overhaul your existing register, the basic foundations are out there.

Demonstrating their altruistic nature, many RIMS members have been offering their insight to those seeking suggestions – even going so far as to send their Excel sheet registers. Here are some criteria for your X and Y axes, culled from the OPIS network and existing resources on Risk Knowledge. While they are by no means a finite list, they can act as building blocks for your new template or register.

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  1. Exposure. Define the imminent or possible risk event.
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    Examples could be a data breach or earthquake.

  2. Risk Category. Itemize by who or what was affected by the exposure. Employees, property, locations, and systems are some examples.
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    If the exposure was public-facing, be sure to include your customers and shareholders.

  3. Cause of Loss. In addition to simply entering the risk origin, also detail whether it was on the radar or completely unforeseen. You might choose to add subcategory (or row) if necessary to document the specifics.
  4. Consequences (Primary and secondary). While many exposures impact the bottom line, it might also include damages to systems, infrastructure, and absences. There are other consequences that are tougher to quantify, such as reputation and employee morale. Subcategories for secondary (and tertiary, and possibly beyond) might be necessary.
  5. Target Risk Level. Driven by each company’s risk appetite level, the target risk level should be the mitigated level. “For example, risk appetite for strategic can be 4 (out of 5), operations 3 and safety 2,” wrote one member on an OPIS thread. “Therefore, any risk should be mitigated to the acceptable risk appetite level within each risk category – hence, a safety risk of 4 needs to be mitigated to a 2 level.”
  6. Expected Losses and Gains. Establish value to the projected outcome. There is certainly a downside risk to natural disasters, particularly where injuries, casualties, and property damage are concerned. But not all risks will be negative; selecting a new cybersecurity system, for example, may have costs but also estimated savings.
  7. Assignee. Just because you are the risk manager does not mean you are responsible for solving all the problems or having all the answers to each risk. A data breach would typically be assigned to the IT leader. However, depending on the size and structure of your organization, you might be the de facto authority on certain exposures, such as emergency preparedness and natural disasters. In those cases, enter your own name and get ready to act.

As stated earlier, these qualities are just starting points as you build your register – you should customize it to your organization and personal preferences.

When reflecting upon the makings of the risk register, one member said that the most critical issue was not the format, but rather “the dialogue that surrounds the register,” adding that “the discovery and discussions were what made that part of the ERM activity useful. Of course, having a nice means of communicating it makes it easier to focus the dialogue.”

RIMS also offers suggestions for ERM programs. Visit the OPIS network to get feedback from members and Risk Knowledge for resources such as the ERM Starter Risk Log Template.