New Federal Ruling – “No Barriers Preventing the Reporting of Positive Test Results to State Licensing Authorities”

The Office of Drug and Alcohol Policy and Compliance (ODAPC) has published an Interim Final Rule (IFR) in the Federal Register [No. 73, Vol. 115, Pg. 33735], permitting state commercial drivers license (CDL) issuing authorities to receive commercial motor vehicle (CMV) driver positive and refusal drug and alcohol test results from employers without driver written consent. The IFR also permits these state licensing authorities to receive owner-operator positive and refusal results from Consortia/Third Party Administrators (C/TPA’s).

So, when a state law requires employers and C/TPA’s for owner-operators, to report the CMV driver ‘Positive’ and ‘Refusal’ results for tests conducted under FMCSA 49 CFR Parts 382 and FTA 655 to a state licensing authority, there are no barriers, real or perceived in part 40, preventing them from doing so. Hopefully, with these restrictions more states will be encouraged to adopt the reporting into law. In California, the licensing agency is the Department of Motor Vehicles (DMV), but as of yet this requirement has not been put into California law.

In my article last month, we touched on an investigative report by the Government Accountability Office (GAO) released in November 2007, prompted by an unfavorable undercover news release pointing out the deficiencies within the DOT collection procedures at various collection sites in Texas and Minnesota. The shocking findings in the investigation prompted another study and those findings were released in late May. Refer to “Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them Off the Road” below for a recap of the report.

Lawmakers vowed to address the faults in the program with legislation later this year. “We have a totally failed system,” said Rep. Peter A. DeFazio, D-Ore., who along with Rep. James L. Oberstar, D-Minn. and Rep. John L. Mica, R-Fla., make up a bi-partisan coalition calling for reform. “Today, our fears have been confirmed,” said Oberstar, the chairman of the House Transportation and Infrastructure Committee.

Judging by the industry Interim Final Rule (IFR) released on June 13th and the immediate effective date, these lawmakers actually stuck to their words to take action. It is refreshing to see that from the news release just over one year ago, the government has moved to rectify what has long been a known problem within the drug and alcohol testing and commercial transportation industry which directly impacts the safety of the motoring public.

Today, even with the many deficiencies recently reported within these regulations, the overall percentage of positive test results for commercial drivers has been between 3.5% to 4%.

From AADT’s testing results experience, especially within the pre-employment and owner-operator’s random selections, and the consensus of others within the commercial driver drug testing industry, the overall percentage of actual positive commercial drivers operating under the influence of drugs and/or alcohol is probably more likely in the 6% to 8%. A full 50% of the drivers under the influence are either not tested, know how to beat the testing process or just job-hop. Due to the many masking agents available on the open market, enabling employers and the lack of following proper protocol within the collection site process it has become too easy for the “cheaters” to compromise the regulations.

So now, hopefully, these new government reports and the suggested drug testing program changes will move us one step forward to the ultimate solution …. a federal/national database where all perspective employers can check a commercial licensed driver’s drug and alcohol history and the four other related and complimentary improvements outlined in the following article.

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

A recent GAO report found DOT driver substance abuse testing to be filled with many loopholes. After almost 20 years, the programs deficiencies have finally been publicly exposed in a 74-page report approved May 15 and publicly released on May 21, by the Government Accountability Office (GAO).

After a series of significant commercial transportation accidents where driver drug and alcohol use was determined to be involved, Congress passed the Omnibus Transportation Employee Testing Act of 1991, because they recognized the safety need for ensuring drug- and alcohol-free transportation employees. The “Act” required DOT Agencies to implement drug testing (only) of safety-sensitive transportation employees in the aviation, trucking (including school bus drivers, and certain limousine and van drivers), railroads, mass transit, and pipelines industries. In 1994, DOT added alcohol testing requirements to its regulations. Also in that year, all commercial drivers and companies, both inter-and intrastate were required to comply with these regulations by 1995.
In late 2007, there were just over 724,000 registered interstate motor carrier’s nationwide (5-million CDL holders). In all of 2007, the Federal Motor Carrier Safety Administration (FMCSA) and state partners like the Ca. Highway Patrol (CHP), performed 37,000 safety audits, that’s less than 4% of the interstate motor carrier population. They also performed 17,000 (drug program related) compliance reviews, on just over 2% of all interstate motor carriers. While the largest motor carrier fleets operate around 50,000 trucks, most interstate motor carriers are small, with approximately 80 percent operating between 1 to 6 trucks.

Tens of thousands of truck drivers operate without compliance while thousands who fail drug tests may still be driving buses and heavy commercial vehicles in violation of federal regulations and state laws, the report found. The GAO report also described a number of flaws in the existing DOT drug testing program that allows truckers and bus drivers to fail drug tests and yet move or “job-hop” on to driving for another company.

The report found that fewer than half of the estimated 85,000 interstate truck drivers who test positive in drug tests each year are believed to complete the required treatment and follow-up testing program to be able to legally return to their jobs. The true number of truckers who fail drug tests and continue to drive could be much higher, said an investigator with the House Transportation and Infrastructure Committee.

The GAO report also confirmed problems documented in a variety of national newspapers beginning in 2006, many of them independently investigated the trucking industry’s drug program procedures and reported on spotty background checks, drug use by truckers and inconsistent oversight by state and federal authorities.

In 2006, 4,995 people were killed nationwide and 106,000 injured in crashes involving large trucks, the report noted. In California, also in 2006 according the CHP’s Statewide Integrated Traffic Records System (SWITRS) report, there were 400 large truck related fatalities. In comparison, Texas had about 500. To view the latest (2006) SWITRS report, go to: www.chp.ca.gov/switrs/pdf/2006-sec6.pdf

Although mechanical problems, including brakes and tires, speeding and driver fatigue are the most frequent factors in fatal accidents involving commercial vehicles, studies have also found that drugs or alcohol substantially increase the risk of accidents.

Driver Employment Screening Process Problematic
The GAO report found that many trucking companies don’t bother to conduct the required pre-employment and random drug tests and “have limited incentives” to do so. And for companies that do try to comply, drivers can easily lie about their previous employment history to avoid flow-up details by the perspective employer. The GAO found, only about 4 percent of interstate trucking companies large and small undergo safety audits each year by the FMCSA, which regulates interstate traffic.

This number of course, is much higher in California for all motor carriers with terminals here due to CHP’s Bi-annual Inspection of Terminals or (BIT) inspection program. The CHP actually has two separate inspection programs, the BIT which is related to equipment and driver compliance and the Carrier Inspection, which is focused on controlled substance and alcohol testing program compliance. While not required, CHP normally does both inspections at the same time when scheduled. There are approximately 80,000 terminals in California; a terminal can be for one truck or over a thousand.

Additionally, the report found dishonest truckers can beat the testing system by using false IDs and chemicals referred to as adulterants to alter their urine for drug tests. If caught, drivers can easily move on to other trucking companies, which the GAO described as ‘job-hopping’. “If you fail both at beating the test and job-hopping, you state-hop,” Rep. Peter A. DeFazio, D-Ore said. He also added that, “If you fail a test in Texas, you can go to California, and no one including states with mandatory positivity reporting is talking with each other. There are many loopholes that need to be plugged.”

Among the report’s “best” recommendations were the creation of a national database and the state’s suspension of the truckers who fail or refuse drug tests. Trucking associations like the American Trucking Associations (ATA) which represents the nation’s largest carriers, say they support a national drug and alcohol test database administered by trucking companies. State based associations like CDTOA believe that a federal database, possibly tied to the Commercial Driver’s License Information System (CDLIS) makes more sense.

CDLIS is a legal requirement established by the federal government for jurisdictions (all states and the District of Columbia) to adhere to certain minimum standards mandated by the Commercial Motor Vehicle Safety Act (CMVSA) of 1986. The most important aspects of the Act are: a.) Establishment of the single license requirement; b.) Prohibition of companies from allowing a driver employed by them to operate the company’s vehicles if convicted of violating a local law relating to motor vehicle traffic control (other than a parking violation); c.) Establishment of mandatory written and driving tests to ensure applicants have the required knowledge and skills; d.) Prohibiting issue of a CDL by any jurisdiction if the driver has been disqualified, suspended, revoked, or canceled; and e.) Establishment of the Commercial Driver’s License Information System (CDLIS).

In fact, a task force sponsored by the CHP in California as part of implementing and fine-tuning AB 2597 was assembled in 1998-1999. The task force was set-up to discuss many of these same drug testing program problems 10-years ago. The group was made up of state based transportation associations, trucking management, labor and enforcement and was designated as the California Drug Free Commercial Truck and Bus Driver Task Force. CDTOA/AADT presented many suggestions during these meetings including a five step program focused on the owner-operator related issues. And we also supported a federal centralized database for complete driver compliance information which included drug testing histories. It’s no surprise that little came out of these meetings because the local Teamsters were against virtually everything suggested back then that is now suggested in the GAO’s report.

According to the GAO report, the exact number of drivers who return to work without completing the required treatment is unknown. But a director of the Substance Abuse Program Administrators Association (SAPAA) “conservatively estimates that less than half of commercial driver’s license holders who test positive or refuse to test successfully complete the return-to-duty process before returning to their jobs,” the GAO report said. It also suggested that drug use could be significantly higher among truck drivers than what the random test data indicates because not all companies actually test, urinalysis can be unreliable and results can be altered.

Separately, J.B. Hunt Transport Services, Inc., the largest publicly held truckload transportation company in North America with annual revenues of more than $3.5 billion reported that only 1.6% of its drivers failed urine tests but 9% failed hair tests. The company employs over 16,000 employees of which 12,500 are drivers.

Other procedural problems were common, especially with the site urine collections process. GAO investigators who posed as truckers appearing for drug tests weren’t required to empty their pant pockets at 5 of 12 (42%) of the collection sites. The requirement is designed to help prevent a driver from using drug-concealing agents and devices or substitutions with clean urine samples. While most would conclude that this is ridiculous, it is a compromise or balance of individual privacy versus the need for transportation safety.

Owner-Operators Are Required to Self-Regulate – Right!
Another loop-hole in the drug testing system is the self-regulation required of tens of thousands of owner-operators, the GAO found. These non-leased self-employed drivers are “unlikely to remove themselves from safety-sensitive duty in the event of a positive test, if they even test,” the report concluded. In fact, employee drivers who continually test positive realize that becoming an employer/driver owner-operator is a way to completely work around these regulations in some states.

Truckers who test positive or refuse to test are supposed to undergo evaluation, treatment and return-to-duty testing under the supervision of a qualified person before being allowed to return to work as a driver. But the GAO report found that in fact seldom happened, because of company policies that fired most drivers, the lack of comprehensive regulations and enforcement resources.
The report did not single out any drivers or companies by name in the report, but lists all the Industry Associations that participated on page 50.

The GAO’s “best” recommendations for executive action to strengthen the DOT drug-testing program included:

• Implementation of a federal/national drug testing information database potentially tied to CDLIS, and
  
• Compel states to utilize the database to suspend commercial driver’s licenses after positive tests or refusals are reported, and licensure reissue only pending SAP program completion, and
  
• A comprehensive ban on all subversion activity (i.e. adulterant products sold on the internet, through magazines etc.) at the federal level, and
  
• Increasing the authority to take legal actions and levy fines directly against service agents, especially collection sites and C/TPA’s who disregard these federal regulations, and
  
• Enhancing enforcement of safety and compliance audits for new motor carrier entrants. Few states have safety programs like California’s CHP BIT/Carrier Inspection programs and rely mainly on the DOT/FMCSA for safety/carrier inspections.

Seven states in the U.S. including Texas, Washington and Oregon (California has certain exceptions such as school bus drivers) now have some type of positive drug testing reporting for those commercials drivers issued a CDL in those states. The information is sent to the perspective governmental licensing agency similar to California’s DMV and they disqualify the drivers CDL.
In Texas, the Dept. of Public Services (DPS) maintains a database of failed drug tests and positive alcohol tests that trucking companies can consult, the report said. It characterized Texas as having “low reporting from carriers.” There were 13,279 entries in the Texas database. Texas-based employers are required to report the drug test results of truckers holding Texas commercial driver’s licenses. Most other states required that the MRO report the positive test results. Washington and Oregon appeared to get the best participation results with about 1% of the states based CDL holders being disqualified. One of the problems with a state based requirement requesting that the MRO report the positive test result to the state is if an MRO is not based within that state then technically the state does not have jurisdiction over that MRO to enforce the reporting requirement.

For a copy of the GAO Report see:
Motor Carrier Safety: Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep them off the Road, GAO-08-600, May 15, 2008 www.gao.gov/new.items/d08600.pdf

Sincerely,

Lonnie Johnson
Operation Director