FMCSA agrees to take public comments after declining previous request.
Trucking companies are requesting federal regulators to use hair testing to determine a driver’s fitness for drug use, and the government has agreed to examine the proposal.
The Trucking Alliance, comprised of J.B. Hunt Transport, U.S. Xpress, and Knight-Swift Transportation, is requesting an exemption to permit the use of hair testing for drugs in random testing and pre-employment screenings of drivers. The positive results would then be entered into the FMCSA Drug and Alcohol Clearinghouse for the first time.
The Trucking Alliance has submitted a request to amend the definition of actual knowledge to include a driver’s positive hair test results. This would require the results to be reported to the FMCSA Drug and Alcohol Clearinghouse and to inquiring carriers to comply with federal regulations. The request was submitted in April.
Trucking Alliance carriers have long contended that hair testing is significantly more accurate in determining whether a person is a habitual drug user versus urine testing.
“My clients have knowledge of hundreds of thousands of positive drug tests that they’re not able to share under the current system, and those drivers are all out on the road right now,” said Rob Moseley, an attorney representing the group. “This exemption would give motor carriers making inquiries into the clearinghouse the opportunity to have full knowledge of habitual drug users during the hiring process.”
A recent Trucking Alliance-backed study found FMCSA’s clearinghouse may be significantly underreporting the use of harder drugs by truck drivers, such as cocaine and illegal opioids, due to the exclusion of hair testing in the database.
A study supported by the Trucking Alliance has revealed that the FMCSA’s clearinghouse may be underestimating the use of hard drugs like cocaine and illegal opioids by truck drivers due to the lack of hair testing data in the database. The FMCSA has agreed to examine the Trucking Alliance’s exemption application in a request for comments to be published on Wednesday, which goes against their response to a similar request made by the group in 2020.
In August 2020, the Trucking Alliance requested the FMCSA for an extra exemption to use hair drug test results in place of half of the required random testing, which currently involves urine testing. The FMCSA responded in May 2021 that it could not process the application because the U.S. Department of Health and Human Services had jurisdiction over drug policy matters and the agency lacked the authority to act. The FMCSA’s response stated that it could not comply with federal requirements relating to official notice and comment.
Further, publishing the group’s request for official notice and comment given its lack of jurisdiction “would be misleading to the agency’s stakeholders and other interested parties,” FMCSA stated last year.
Policy change at FMCSA?
FMCSA’s stance has apparently changed, however, as it plans to go forward Wednesday with a notice and comment period, even though it again notes a lack of authority.
“Although FMCSA lacks the statutory authority to grant the Trucking Alliance’s request for exemption until [HHS] has taken certain action, FMCSA requests public comment on the exemption application, as required by statute,” the agency stated in the current comment request.
The FMCSA has not commented on why it is publishing a notice and comment period this time and what impact it could have on stakeholders. An expert on trucking regulations views the agency’s change in handling exemption requests as a positive development.
“My experience in the past was that FMCSA would sometimes respond to exemption requests explaining why it had been denied and not released for public comment, like in the case where it didn’t have statutory authority to grant a request,” said P. Sean Garney, co-director at Scopelitis Transportation Consulting.
“But putting these requests out in the public square, where it can be discussed and debated, generates important conversations in the industry, and while many of these exemptions may never be granted, they may seed important conversations that could lead to good public policy at the end of the day.”
The Drug Testing Advisory Board of the HHS is revising the proposed mandatory guidelines for drug testing using hair, which were released in September 2020, based on public comments and a review of current scientific literature. The revisions will be discussed during a closed meeting in September. Once finalized, the guidelines must be approved by the HHS and then reviewed by the Office of Management and Budget.
