Motor Carrier Safety:

Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them off the Road

GAO-08-600: Published: May 15, 2008. Publicly Released: May 21, 2008.

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Federal law requires commercial drivers to submit urine specimens for drug testing. The Federal Motor Carrier Safety Administration (FMCSA) is responsible for ensuring that motor carriers comply with these regulations. Recent reports have raised concerns that some drivers may not be tested, some may be tested but avoid detection, and some may test positive but continue to drive. GAO was asked to look at these challenges. This report reviews (1) the factors that contribute to challenges related to drug testing and (2) the various options that exist to address these challenges. GAO obtained information from a wide variety of stakeholders in the drug testing industry, and analyzed data from FMCSA and others to determine the potential effectiveness of various options.

Many factors contribute to the challenges of detecting drivers who are using illegal drugs and keeping them off the road until they complete the required return-to-duty (treatment) process. Factors contributing to drivers not being in a drug testing program include FMCSA's limited oversight resources for all carriers and limited enforcement options for safety audits of new carriers. Although FMCSA and its state partners review thousands of carriers each year, these reviews touch about 2 percent of the industry. As a result, carriers have limited incentives to follow the regulations. Factors contributing to failures to detect drug use include the ease of subverting the urine test, either because collection sites are not following protocols or because drivers are using products that are widely available to adulterate or substitute urine specimens. For example, GAO investigators, posing as commercial truck drivers needing drug tests, found that employees at 10 of 24 collection sites tested did not ask the investigator to empty his pants pockets, as they are required to do, to ensure he was not carrying adulterants or substitutes. Factors contributing to drivers testing positive yet continuing to drive include drivers not divulging past drug test history, carriers' failure to conduct thorough background checks on a driver's past drug testing history, and self-employed owner-operators' failure to remove themselves from service. GAO's analysis identified the following options as having the greatest potential for addressing these challenges: (1) For increasing the number of drivers tested: strengthen the enforcement of safety audits for new carriers. Stiffer requirements for having a testing program will likely result in more new entrants having effective drug testing programs. DOT has begun this improvement. (2) For reducing opportunities to subvert the test: additional authority to levy fines when collection sites do not follow federal protocols. This could decrease the opportunity to subvert the test. Also, congressional action to ban subversion products at the federal level could make these products more difficult to obtain. (3) For reducing the number of drivers who test positive and continue to drive: a national database of drug testing information. This would allow for more thorough checking of applicants' past test results. FMCSA has begun to lay the groundwork for a database, but FMCSA may need additional authority to ensure accurate reporting of information. Also, using the database to encourage states to suspend a driver's commercial driver's license after a positive drug test or refusal to test would be a more direct way to compel drivers to complete the return-to-duty process. Any of these options would require either additional resources or a transfer of resources that fund other safety-related initiatives, and some of the options require federal or state legislation and rule making. A national database would have to consider driver protections and a process by which information can be corrected or removed.

Matters for Congressional Consideration

  1. Status: Open

    Comments: On February 4, 2009, Representative Engel introduced the Drug Testing Integrity Act of 2009 in the House of Representatives. The Act would ban products designed to defraud drug tests. On February 15, 2011 Representative Engel re-introduced the bill, which was referred to the House Committee on Energy and Commerce and then to the Subcommittee on Commerce, Manufacturing, and Trade. As of May 2012, no further action has been taken.

    Matter: Taking action to address the challenges FMCSA faces to ensure that its drug testing program detects drivers who are using illegal drugs, and to keep drivers who have tested positive off the road until they have completed the return-to-duty process, provides an opportunity to improve safety on the roads. In order to assist the Department of Transportation (DOT) and FMCSA in addressing these challenges, and thereby improving road safety, Congress may wish to consider adopting legislation to ban subversion products.

  2. Status: Closed - Implemented

    Comments: In May 2008, we found that a national clearinghouse of records related to alcohol and controlled substances testing would enhance the Federal Motor Carrier Safety Administration's (FMCSA) ability to identify drivers - known as "job hoppers" - who test positive for use of a controlled substance for one carrier but then go to work for another carrier without successfully completing a required return-to-duty process. A national clearinghouse would make positive test information more readily available to carriers to make more informed hiring decisions and to FMCSA for use in its initiatives targeted at carriers that employ job-hoppers and job-hoppers themselves. At the time of our review, the Department of Transportation (DOT) had plans to initiate a rule-making process to implement a national clearinghouse. While federal legislation was not required to give DOT authority to develop the clearinghouse, we reported that such legislation would help to avoid conflicts with state laws and support DOT's rule-making process. Furthermore, we found that Congress would need to provide DOT with additional authority to ensure that professionals involved in the drug testing program report information to a clearinghouse. We therefore recommended that Congress consider providing FMCSA with the ability to exert oversight and enforcement authority - including the ability to levy civil penalties - over professionals involved in the drug testing process as it relates to reporting information to the clearinghouse. In response to our recommendation, the Moving Ahead for Progress in the 21st Century Act - which was signed into law on July 6, 2012 - contained provisions requiring that DOT establish a national clearinghouse of records related to alcohol and controlled substances testing, and providing DOT with civil and criminal penalty authority over professionals involved in the drug testing program. The legislation directed DOT to consider the findings and recommendations of GAO's report in designing the clearinghouse. The establishment of the clearinghouse will enhance FMCSA's ability to identify drivers who engage in job-hopping and help to ensure compliance with return-to-duty requirements. These outcomes will lead to fewer drivers on the road who have tested positive for alcohol or substance abuse, and have failed to complete the return-to-duty process.

    Matter: Taking action to address the challenges FMCSA faces to ensure that its drug testing program detects drivers who are using illegal drugs, and to keep drivers who have tested positive off the road until they have completed the return-to-duty process, provides an opportunity to improve safety on the roads. In order to assist DOT and FMCSA in addressing these challenges, and thereby improving road safety, Congress may wish to consider providing FMCSA with the ability to exert oversight and enforcement authority over service agents involved in the DOT drug testing process-- which would enable DOT to address issues related to requiring service agents to report drug testing information to FMCSA's national database and levying civil penalties on service agents that are not in compliance with DOT drug testing regulations.

  3. Status: Closed - Implemented

    Comments: In May 2008, we found that one of the most effective ways to keep drivers who test positive for alcohol or controlled substances or refuse to test off the road, would be to encourage or compel states to make a positive test or refusal-to-test grounds for a suspension of a commercial driver's license. Furthermore, we concluded that the national clearinghouse for alcohol and controlled substance testing that was under consideration could serve as the information foundation for enforcing suspension of a commercial driver's license. Requiring commercial driver's license suspension however, is beyond the Department of Transportation's (DOT) authority. We further reported that even if such legislation were passed, states may need to pass their own legislation to make a positive test grounds for suspension of a commercial driver's license. We therefore recommended that Congress consider taking action to encourage or compel states to use the national clearinghouse to take action to suspend the commercial driver's license of drivers who have tested positive or refused to take a DOT drug test. In response to our recommendation, the Moving Ahead for Progress in the 21st Century Act - which was signed into law on July 6, 2012 - contained provisions requiring that DOT establish a process for the chief commercial driver's licensing official of a State to request and receive an individual's record from the clearinghouse if the individual is applying for a commercial driver's license from the State. The legislation directed DOT to consider the findings and recommendations of GAO's report in designing the clearinghouse. While this provision does not directly address suspension of the license, it allows for a process by which state licensing officials can access the database for information on positive drug tests and use such information according to the laws and rules of their respective states. With such information, state licensing officials may be able to deny or take whatever action is allowed by state law with respect to the commercial driver's licenses of individuals who have a record in the clearinghouse, thus leading to fewer drivers on the road who have tested positive for alcohol or substance abuse, and have failed to complete the return-to-duty process.

    Matter: Congress may wish to consider taking action to encourage or compel states to use the national database to take action to suspend the CDL of drivers who have tested positive or refused to take a DOT drug test.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In 2008, we reported that one of the factors that contribute to truck drivers not being in a drug testing program include Federal Motor Carrier Safety Administration's (FMCSA) limited enforcement options for safety audits of new carriers. New-entrant safety audits provide essential educational information to and are intended to educate and encourage compliance with safety regulations. The majority of new entrants are typically visited 8 to 9 months after beginning operations. However, before the safety audit occurs, new entrants may operate without adequately implementing safety management regulations, including drug testing. FMCSA data indicate 30 percent of new entrants lack a drug testing program. Under the rules in effect in May 2008, the absence of a drug testing program did not result in a failure of the audit. In December 2006, FMCSA had published a Notice of Proposed Rulemaking to strengthen the safety audit pass/fail criteria to give more significance to basic safety management requirements, including drug testing. As of the time of our report, the rulemaking had not been completed, and we recommended that the Secretary of Transportation expedite the rule-making process to improve the enforcement of safety audits for new entrants in order to address the challenge facing FMCSA to ensure truck drivers are in a drug testing program. In response, the Federal Motor Carrier Safety Administration moved forward and issued a final rule on the New Entrant Safety Assurance Process on December 16, 2008. The final rule amends the New Entrant Safety Assurance Program regulations to raise the standard of compliance for passing the new entrant safety audit. Through the final rule, the Agency identified 16 regulations that are essential elements of basic safety management controls necessary to operate in interstate commerce and makes a carrier's failure to comply with any one of the 16 regulations an automatic failure of the safety audit. Five of the 16 regulations are related to the drug testing regulations; making it an automatic failure if the carrier lacks a drug testing program. As a result of the rule, FMCSA will be better able to identify at-risk new entrant carriers and ensure deficiencies in basic safety management controls, including drug testing, are corrected before the new entrant is granted permanent registration.

    Recommendation: In order to address the challenges facing FMCSA to ensure drivers are in a drug testing program, and to keep drivers off the road once they have tested positive, the Secretary of Transportation should expedite the rule-making process to improve the enforcement of safety audits for new entrants.

    Agency Affected: Department of Transportation

  2. Status: Closed - Implemented

    Comments: In May 2008, we found that a national clearinghouse of records related to alcohol and controlled substances testing would enhance the Federal Motor Carrier Safety Administration's (FMCSA) ability to identify drivers - known as "job hoppers" - who test positive for use of a controlled substance for one carrier but then go to work for another carrier without successfully completing a required return-to-duty process. A national clearinghouse would make positive test information more readily available to carriers to make more informed hiring decisions and to FMCSA for use in its initiatives targeted at carriers that employ job-hoppers and job-hoppers themselves. At the time of our review, the Department of Transportation (DOT) had plans to initiate a rule-making process to implement a national clearinghouse, however, nothing had yet come to fruition. We also found that DOT may not have the authority it needed to ensure that professionals involved in the drug testing process report information to the clearinghouse. We therefore recommended that Congress consider providing that authority to DOT, and that DOT expedite its rulemaking on a national clearinghouse. In response to our recommendation, the Moving Ahead for Progress in the 21st Century Act - which was signed into law on July 6, 2012 - contained provisions requiring that DOT establish a national clearinghouse of records related to alcohol and controlled substances testing, and providing DOT with civil and criminal penalty authority over professionals involved in the drug testing program. The legislation directed DOT to consider the findings and recommendations of GAO's report in designing the clearinghouse. According to DOT, the legislation requires the Department to establish the Clearinghouse by October 1, 2014. FMCSA has drafted a Notice of Proposed Rulemaking for public review and comment to address this mandate and GAO's recommendation. According to DOT officials, DOT expects to publish the notice early in 2013. The establishment of the clearinghouse will enhance FMCSA's ability to identify drivers who engage in job-hopping and help to ensure compliance with return-to-duty requirements. It will also help to ensure that employers are meeting their drug and alcohol testing responsibilities. These outcomes will lead to fewer drivers on the road who have tested positive for alcohol or substance abuse, and have failed to complete the return-to-duty process.

    Recommendation: In order to address the challenges facing FMCSA to ensure drivers are in a drug testing program, and to keep drivers off the road once they have tested positive, the Secretary of Transportation should expedite the rule-making process to create a national database of positive and refusal-to-test drug and alcohol test results.

    Agency Affected: Department of Transportation

 

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