Motor Carrier Safety
Preliminary Information on Challenges to Ensuring the Integrity of Drug Testing Programs Gao ID: GAO-08-220T November 1, 2007Crashes involving commercial motor carriers, including trucks and buses, account for 13 percent of all highway deaths each year. While illegal drug use is not among the most frequently cited factors associated with large truck crashes; studies show that the use of illegal drugs, such as marijuana, heroin, or cocaine, can severely impair driving ability. Since 1988, federal regulations have required commercial drivers to submit urine samples to be tested for drugs. The Federal Motor Carrier Safety Administration (FMCSA) is responsible for ensuring compliance with these regulations. News reports and other investigations have raised concerns that drivers may be escaping detection by avoiding the test or somehow altering the results. This testimony provides preliminary information on the challenges confronting FMCSA in (1) overseeing and enforcing compliance with drug testing regulations and (2) ensuring the integrity of the drug tests and the processes for keeping drivers with identified drug problems off the roads. It is based on work currently in process, which includes examining options to address these challenges. GAO's work thus far has included interviews with officials from the Department of Transportation (DOT) and the Substance Abuse and Mental Health Services Administration (SAMHSA), along with a wide variety of stakeholders, including motor carriers, unions, and industry associations. GAO discussed this testimony with DOT officials and incorporated their comments as appropriate.
FMCSA faces two key challenges in ensuring that commercial motor carriers have drug testing programs in place. First, there appears to be a significant lack of compliance among motor carriers, particularly small carriers and self-employed drivers. Violations of drug testing protocols are noted in more than 40 percent of FMCSA's safety audits conducted since 2003 of carriers that have recently started operations and more than 70 percent of the compliance reviews conducted on carriers already in the industry since 2001. These problems also extend to service agents, which are entities that collect urine samples or administer other aspects of the program. For example, GAO investigators working under cover tested 24 collection sites and determined that 22 did not fully comply with applicable protocols. The second challenge is that FMCSA's oversight activities are limited, both in quantity and scope. Safety audits, which are targeted at new entrants, began in 2003 and, as a result, do not affect carriers in business earlier than 2003. Such companies can be covered in compliance reviews, but these reviews occur at only about 2 percent of carriers a year, according to FMCSA data. In addition, FMCSA oversight does not specifically address compliance by service agents, such as collection sites, unless there are particular allegations or complaints. Even when FMCSA is able to ensure that carriers and others are in compliance with drug testing requirements, there are additional challenges in ensuring the integrity of drug testing programs. The urine test itself can be subverted in various ways, such as adulterating or diluting the urine sample or substituting synthetic urine or a drug-free sample. Products designed to ''beat'' the test are brazenly marketed on the Internet. The extent to which subversion is occurring is unknown------and is impossible to determine. SAMHSA officials with whom we met told us when adulterants work well and destroy the evidence of their presence, they are undetectable. Furthermore, the required urine test has certain limitations. For example, it covers only five drug categories (marijuana; cocaine; amphetamines; opiates, such as heroin; and phencyclidine (PCP)), and it may provide a clean result if a person has not used any of these drugs within the past several days. Finally, drivers may not disclose instances in which they failed previous drug tests. If they are able to remain drug-free for enough time to pass a preemployment test, their new employer may not know about their past history of drug use. GAO identified various options to address these challenges, some of which were proposed by carriers, industry associations, DOT, and others. These options include publicizing educational information about the regulations for carriers, service agents, and drivers; encouraging carriers to do more to ensure service agent compliance; improving and expanding FMCSA oversight and enforcement authority; adopting federal legislation to prohibit products designed to tamper with a drug test; and developing a national reporting requirement for past positive drug test results. GAO's ongoing work will examine the advantages and disadvantages of the various options in more detail; we expect to issue the report in May 2008.
GAO-08-220T, Motor Carrier Safety: Preliminary Information on Challenges to Ensuring the Integrity of Drug Testing Programs
This is the accessible text file for GAO report number GAO-08-220T
entitled 'Motor Carrier Safety: Preliminary Information on Challenges
to Ensuring the Integrity of Drug Testing Programs' which was released
on November 1, 2007.
This text file was formatted by the U.S. Government Accountability
Office (GAO) to be accessible to users with visual impairments, as part
of a longer term project to improve GAO products' accessibility. Every
attempt has been made to maintain the structural and data integrity of
the original printed product. Accessibility features, such as text
descriptions of tables, consecutively numbered footnotes placed at the
end of the file, and the text of agency comment letters, are provided
but may not exactly duplicate the presentation or format of the printed
version. The portable document format (PDF) file is an exact electronic
replica of the printed version. We welcome your feedback. Please E-mail
your comments regarding the contents or accessibility features of this
document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
United States Government Accountability Office:
GAO:
Testimony:
Before the Subcommittee on Highways and Transit, Committee on
Transportation and Infrastructure, House of Representatives:
For Release on Delivery:
Expected at 10:00 a.m. EDT:
Thursday, November 1, 2007:
Motor Carrier Safety:
Preliminary Information on Challenges to Ensuring the Integrity of Drug
Testing Programs:
Statement of Katherine Siggerud:
Director:
Physical Infrastructure Issues:
GAO-08-220T:
GAO Highlights:
Highlights of GAO-08-220T, a testimony before the Subcommittee on
Highways and Transit, Committee on Transportation and Infrastructure,
House of Representatives.
Why GAO Did This Study:
Crashes involving commercial motor carriers, including trucks and
buses, account for 13 percent of all highway deaths each year. While
illegal drug use is not among the most frequently cited factors
associated with large truck crashes; studies show that the use of
illegal drugs, such as marijuana, heroin, or cocaine, can severely
impair driving ability. Since 1988, federal regulations have required
commercial drivers to submit urine samples to be tested for drugs. The
Federal Motor Carrier Safety Administration (FMCSA) is responsible for
ensuring compliance with these regulations. News reports and other
investigations have raised concerns that drivers may be escaping
detection by avoiding the test or somehow altering the results.
This testimony provides preliminary information on the challenges
confronting FMCSA in (1) overseeing and enforcing compliance with drug
testing regulations and (2) ensuring the integrity of the drug tests
and the processes for keeping drivers with identified drug problems off
the roads. It is based on work currently in process, which includes
examining options to address these challenges. GAO‘s work thus far has
included interviews with officials from the Department of
Transportation (DOT) and the Substance Abuse and Mental Health Services
Administration (SAMHSA), along with a wide variety of stakeholders,
including motor carriers, unions, and industry associations. GAO
discussed this testimony with DOT officials and incorporated their
comments as appropriate.
What GAO Found:
FMCSA faces two key challenges in ensuring that commercial motor
carriers have drug testing programs in place. First, there appears to
be a significant lack of compliance among motor carriers, particularly
small carriers and self-employed drivers. Violations of drug testing
protocols are noted in more than 40 percent of FMCSA‘s safety audits
conducted since 2003 of carriers that have recently started operations
and more than 70 percent of the compliance reviews conducted on
carriers already in the industry since 2001. These problems also extend
to service agents, which are entities that collect urine samples or
administer other aspects of the program. For example, GAO investigators
working under cover tested 24 collection sites and determined that 22
did not fully comply with applicable protocols. The second challenge is
that FMCSA‘s oversight activities are limited, both in quantity and
scope. Safety audits, which are targeted at new entrants, began in 2003
and, as a result, do not affect carriers in business earlier than 2003.
Such companies can be covered in compliance reviews, but these reviews
occur at only about 2 percent of carriers a year, according to FMCSA
data. In addition, FMCSA oversight does not specifically address
compliance by service agents, such as collection sites, unless there
are particular allegations or complaints.
Even when FMCSA is able to ensure that carriers and others are in
compliance with drug testing requirements, there are additional
challenges in ensuring the integrity of drug testing programs. The
urine test itself can be subverted in various ways, such as
adulterating or diluting the urine sample or substituting synthetic
urine or a drug-free sample. Products designed to ’beat“ the test are
brazenly marketed on the Internet. The extent to which subversion is
occurring is unknown”and is impossible to determine. SAMHSA officials
with whom we met told us when adulterants work well and destroy the
evidence of their presence, they are undetectable. Furthermore, the
required urine test has certain limitations. For example, it covers
only five drug categories (marijuana; cocaine; amphetamines; opiates,
such as heroin; and phencyclidine (PCP)), and it may provide a clean
result if a person has not used any of these drugs within the past
several days. Finally, drivers may not disclose instances in which they
failed previous drug tests. If they are able to remain drug-free for
enough time to pass a preemployment test, their new employer may not
know about their past history of drug use.
GAO identified various options to address these challenges, some of
which were proposed by carriers, industry associations, DOT, and
others. These options include publicizing educational information about
the regulations for carriers, service agents, and drivers; encouraging
carriers to do more to ensure service agent compliance; improving and
expanding FMCSA oversight and enforcement authority; adopting federal
legislation to prohibit products designed to tamper with a drug test;
and developing a national reporting requirement for past positive drug
test results. GAO‘s ongoing work will examine the advantages and
disadvantages of the various options in more detail; we expect to issue
the report in May 2008.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.GAO-08-220T]. For more information, contact
Katherine Siggerud at (202) 512-2834 or siggerudk@gao.gov.
[End of section]
Mr. Chairman and Members of the Subcommittee:
We appreciate the opportunity to participate in this hearing on drug
testing for those employed in safety-sensitive positions in the motor
carrier industry. The Department of Transportation (DOT) estimates that
approximately 4.2 million people, including truck and bus drivers, work
in such positions, and their safety on the road affects the safety of
the traveling public. Commercial motor carriers[Footnote 1] account for
less than 5 percent of all highway crashes, but these crashes result in
about 13 percent of all highway deaths, or about 5,500 of the
approximately 43,000 highway fatalities that occur nationwide annually.
A DOT study on the factors associated with large truck crashes finds
that vehicle factors, such as brake problems, and behavioral factors,
such as speeding and driver fatigue, are some of the most frequently
cited factors involved in large truck crashes.[Footnote 2] While
illegal drug use is not among the most frequently cited factors in the
DOT study--appearing as an associated factor in only 2 percent of the
crashes included in the study--it is clear that the use of illegal
drugs, such as marijuana, heroin, or cocaine, can severely impair the
ability of individuals to drive. Since 1988, federal regulations have
required that these commercial drivers be drug tested. DOT and the
Federal Motor Carrier Safety Administration (FMCSA) publish regulations
that govern the drug testing process.[Footnote 3] FMCSA is responsible
for ensuring compliance with these regulations, and does so through
safety audits of carriers that have recently started
operations[Footnote 4] and compliance reviews conducted on carriers
already in the market.
Testing results clearly indicate that some drivers are using illegal
drugs. FMCSA data show that each year from 1994 through 2005, between
1.3 and 2.8 percent of drivers tested positive for the presence of
illegal drugs under random testing. However, concerns exist that some
drivers may be escaping detection. Recent drug tests conducted during
roadside inspections of trucks in Oregon suggest that the percentage of
truck drivers using illegal drugs while operating vehicles may be
somewhat higher than FMCSA reports.[Footnote 5] Furthermore, recent
reports have also suggested that some locations where drug testing
specimens are collected are not in compliance with DOT protocols, which
can potentially make it easier to tamper with or substitute a urine
specimen. In 2005, we reported that products used to tamper with drug
use screening tests are widely available, and that the sheer number of
these products, and the ease with which they are marketed and
distributed through the Internet, present formidable obstacles to the
integrity of the drug testing process.[Footnote 6]
My testimony today addresses what we have learned about these and other
challenges to establishing an effective drug testing program. It is
based primarily on the work we currently are doing for this
Subcommittee and for the Chairman of the full Committee. Our current
work, which we expect to complete in May 2008, addresses the challenges
that may be encountered in implementing federal drug testing
regulations; the roles and responsibilities that federal agencies,
state agencies, and others have in overseeing industry compliance with
drug testing regulations, and the limitations they encounter in
regulations or oversight; and the options, if any, that have been
proposed for improving compliance with and addressing the limitations
of drug testing regulations, and the advantages and disadvantages of
these options. Because this work is not yet finished, my observations
today are preliminary in nature. My testimony addresses the types of
challenges confronting FMCSA in (1) overseeing and enforcing compliance
with drug testing regulations and (2) ensuring the integrity of the
drug tests and the processes for keeping drivers with identified
problems off the roads. As part of my observations about these
challenges, I will discuss options we have identified as possible
improvements that we will be looking at in more detail as we continue
our work.
To address these issues, we reviewed DOT and FMCSA regulations,
policies, and reports and interviewed officials from DOT (FMCSA and the
Office of Drug and Alcohol Policy and Compliance (ODAPC)) and the
Department of Health and Human Services' (HHS) Substance Abuse and
Mental Health Services Administration (SAMHSA). This review focuses on
the controlled substance portion of the drug and alcohol testing
regulations, and does not address alcohol testing. We analyzed FMCSA
data on the results of compliance reviews and safety audits, and data
on enforcement activities. We interviewed representatives from six
motor carriers, including large carriers, small carriers, and an owner-
operator. We interviewed motor carrier industry associations
representing many segments of the motor coach and trucking industry,
such as the American Trucking Association, the Owner-Operator
Independent Drivers Association, the American Bus Association, and the
National Association of Small Trucking Companies. We also interviewed
officials from unions representing truck and bus drivers and from a
variety of associations representing urine specimen collectors, medical
review officers, substance abuse professionals, drug testing
consortiums, and others involved in the drug testing industry. We also
interviewed representatives from one of the largest laboratories
involved in the DOT drug testing industry. In addition, we observed
FMCSA oversight activities, including two compliance reviews and two
new entrant safety audits in California and Virginia. We selected
states in which to observe compliance reviews and new entrant safety
audits on the basis of the availability of on-going FMCSA oversight
activities. As we continue our work, we plan to observe additional
compliance reviews and safety audits. Also, our Forensic Audits and
Special Investigations (FSI) team tested compliance with protocols of
collection sites in three metropolitan areas selected for the large
number of truck drivers residing in those areas, as well as Washington,
D.C. Our undercover investigators posed as commercial truck drivers who
needed a DOT drug test and, in some cases, tested whether they could
successfully adulterate or substitute the specimens. They conducted
their investigation from May to September 2007 in accordance with
standards prescribed by the President's Council on Integrity and
Efficiency. We determined that the data used in this statement are
sufficiently reliable for our purposes. We began our review in June
2007 and are performing it in accordance with generally accepted
government auditing standards.
Summary:
FMCSA's efforts to ensure that commercial motor carriers have drug
testing programs in place face two key challenges.
* Lack of compliance appears to be widespread. Our review of FMCSA
data, visits to individual carriers, and discussions with industry
associations, indicate that carriers, particularly small carriers and
owner-operators,[Footnote 7] are often not in compliance with the drug
testing requirements. According to FMCSA data, more than 70 percent of
compliance reviews conducted since 2001 and more than 40 percent of
safety audits conducted since 2003 found violations of drug testing
regulations, including finding that the carrier had no drug testing
program at all.[Footnote 8] The most frequently cited drug testing
violations in compliance reviews are that drivers operating in safety-
sensitive positions have not successfully passed a preemployment drug
test, or that drivers are not being tested at all. About 1 percent of
compliance reviews per year find carriers that have allowed drivers
with a positive drug test to continue to operate in safety-sensitive
positions. We also found indications that a lack of compliance with
protocols may also be present among entities that collect specimens for
testing. Posing as commercial truck drivers needing DOT drug tests, our
investigators, in a statement also issued today, determined that 22 of
the 24 collection sites they tested were not in compliance with some of
the protocols that guide the process of collecting a urine specimen.
[Footnote 9]
* FMCSA's oversight is limited. While new entrant safety audits--which
began in 2003--are designed to reach all new entrants, compliance
reviews only reach approximately 2 percent of carriers each
year.[Footnote 10] These activities are limited in the extent to which
they can identify and rectify problems in carriers' drug testing
programs. In particular, these oversight activities do not address
compliance by agents used by carriers to implement drug testing
programs--such as collection sites--in part, because of limited
resources and the lack of enforcement authority over these service
agents.[Footnote 11] However, FMCSA will investigate service agents as
a result of specific allegations and complaints. These limitations in
FMCSA oversight may lessen incentives for carriers and service agents
to comply with drug testing requirements.
Even in situations in which FMCSA is able to ensure that a carrier has
a sound framework in place for drug testing, there are additional
challenges in ensuring the integrity of drug testing programs.
* Subversion of the drug test is still possible. The regulations do not
require directly observed collection, nor do they require a thorough
search for hidden subversion products. Drivers intent on adulterating
or substituting a urine specimen can conceal small vials in socks or
other undergarments, which may not be identified. The extent to which
subversion is occurring is unknown--and is impossible to determine.
SAMHSA officials with whom we met noted that when adulterants work well
and destroy the evidence of their presence, they are undetectable.
Similarly, when urine samples are successfully substituted with
synthetic urine, or another person's drug-free urine, there is no
record of them. Our investigators were able to successfully substitute
synthetic urine at a collection site that followed all DOT protocols,
and the laboratory was not able to detect any of the adulterants or
substitutes used in their investigation.
* There are limitations to the test itself. Drivers who use illegal
substances other than the five that DOT tests for, or misuse certain
prescription medications, may not be identified during the drug testing
process. Also, the urine test does not provide indications of drug use
history because it can only detect the presence of drugs taken within
the previous several days.
* Lack of disclosure of past positive drug tests may be a problem. DOT
regulations require that an employer, in addition to testing an
applicant and receiving a negative result, also inquire about a
driver's drug test history by contacting the driver's recent employers
listed on the employment application. Representatives from several
motor carriers with whom we met told us it is easy for drivers to
simply omit any previous employer for whom they tested positive or any
past preemployment test that was positive. Such drivers can remain drug-
free for a period of time leading up to their next preemployment test,
get a negative result, and get hired--without their new employer
knowing about any past positive drug tests.
We have identified various options to address these challenges, some of
which have been proposed by carriers, industry associations, DOT, and
others. These options include such steps as providing and publicizing
information and successful practices regarding drug testing
requirements directly to carriers, service agents, and drivers;
encouraging carriers to do more to ensure that the service agents they
use comply with DOT protocols; improving and expanding FMCSA oversight
and enforcement; adopting federal legislation prohibiting the sale,
manufacture, or use of adulterants or substitutes; testing for more and
different drugs; testing alternative specimens, such as hair; and
developing a national reporting requirement for past positive drug test
results. There are advantages and disadvantages to implementing any of
these various options. Our ongoing work will examine the advantages and
disadvantages of these options in more detail.
Background:
Federal drug testing regulations require commercial motor carriers to
have a drug testing program that covers transportation safety-sensitive
employees who operate commercial motor vehicles that have a gross
vehicle rating of 26,001 pounds or more; are designed to transport 16
or more passengers, including the driver; or are of any size and are
used in the transportation of hazardous materials. While the largest
motor carriers operate upwards of 50,000 vehicles, most carriers are
small, with approximately 80 percent operating between 1 and 6
vehicles. Carriers continually enter and exit the industry, and
turnover among small carriers is high, thereby making them harder to
track. Since 1998, the industry has increased in size by an average of
about 29,000 interstate carriers per year.
The Omnibus Transportation Employee Testing Act of 1991 required DOT to
implement drug testing using urine specimens. Carriers are required to
obtain a negative test result prior to employing a driver and allowing
him or her to engage in safety-sensitive duties. Carriers also must
conduct random testing, postaccident testing, and reasonable suspicion
testing. As implemented by DOT, testing covers five drug categories:
marijuana, cocaine, amphetamines (including methamphetamines), opiates
(including heroin), and phencyclidine (PCP). If an employee tests
positive, he or she is required to complete a return-to-duty process
before reengaging in safety-sensitive duties. The return-to-duty
process is guided by a substance abuse professional and may include
education, treatment, follow-up testing, and aftercare.
Motor carriers must implement a drug testing program and may use
service agents to perform some or all of the tasks needed to comply
with DOT drug testing requirements (see fig. 1). A motor carrier must
designate an employer representative, who is an employee authorized by
the carrier to take immediate action to remove a driver from safety-
sensitive duties after being notified of a positive or refusal-to-test
result.[Footnote 12] Service agents must meet qualification
requirements and are responsible for implementing the required
protocols.
Figure 1: Overview of the DOT Drug Testing Process:
[See PDF for image]
This figure is an illustration of the DOT Drug Testing Process,
depicting the following data:
Notification:
Drivers are notified to submit to a drug test for one of the following
reasons:
* Preemployment;
* Reasonable suspicion;
* Random testing;
* Postaccident;
* Return to duty and follow-up.
Notification given by: Motor carrier or consortium/third-party
administrator.
Urine collection:
Drivers report immediately to the collection site, where the following
occurs:
* Verify ID and empty pockets;
* Select sealed kit and provide at least 45 ml of urine;
* Watch collector check temperature and pour into two bottles--primary
and split specimen;
* Watch collector seal bottles and sign paperwork;
* Collector sends specimens to laboratory. Performed by: Collector, who
must meet DOT requirements, and driver.
Lab testing:
Analyzes primary specimen for:
* Marijuana;
* Cocaine;
* Amphetamines;
* Opiates (including heroine);
* Phencyclidine (PCP);
* May test for presence of adulterants. Performed by: Laboratory
certified by HHS.
Medical review:
Lab results are reviewed to determine if there are any legitimate
medical reasons for a positive, adulterated, or substituted test
result. This includes interviews, review of medical records, and/or
request for an examination by an approved physician. Performed by:
Medical review officer,who is nationally certified.
Employees' rights:
Upon notice by the medical review officer of a positive, adulterated,
or substituted test result, the driver has 72 hours from the review to
request that the split specimen be tested by another certified
laboratory. Performed by: Medical review officer and driver.
Verified results:
Medical review officer reports verified results to the designated
employer representative as one of the following:
* Negative;
* Positive;
* Refusal;
* Canceled.
Performed by: Medical review officer.
Action taken:
If test is positive:
* Driver is immediately removed from safety-sensitive functions;
* Driver permitted to resume duties only after evaluation, treatment,
education, and/or counseling and after a return-to-duty negative drug
test. Performed by: Designated employer representative, substance abuse
professional, and driver.
Source: GAO analysis of DOT requirements.
[End of figure]
Service agents include the following:
* A collector instructs drivers during the urine collection process,
makes an initial inspection of the specimen provided, divides the
specimen into primary and split specimens,[Footnote 13] and sends it to
the laboratory for analysis. A collection site can be a portable
toilet; any toilet in a clinic, hospital, or office building; or a
toilet on-site at a carrier's place of business.
* A laboratory analyzes the specimen. Laboratories must be certified by
HHS; as of January 2007, there were 46 such laboratories.
* A medical review officer, who is a licensed physician, is responsible
for receiving and reviewing laboratory results for a carrier's drug
testing program and evaluating medical explanations for certain drug
test results. In cases of confirmed positive or refusal-to-test
results, the officer must verify the laboratory results by speaking
with the driver and informing the driver of his or her right to have
the split specimen tested.
* A substance abuse professional evaluates drivers who have tested
positive or refused to take a test and makes recommendations about the
return-to-duty process, which could include education, treatment,
follow-up testing, and aftercare. Drivers are required to complete the
recommended steps before they reengage in safety-sensitive functions.
* A consortium/third-party administrator is a company that can provide
or coordinate either a variety of or all of the above services for
carriers and owner-operators.[Footnote 14]
FMCSA has responsibility for ensuring compliance by trucking and motor
coach companies with drug testing requirements. FMCSA does so through
safety audits of new entrants and compliance reviews of existing
companies--both of which cover compliance with all types of safety
regulations, including drug and alcohol testing. Safety audits are
required for all new entrants to the trucking industry and are
opportunities for FMCSA to provide educational and technical assistance
to new carriers, explain carriers' responsibilities under the federal
regulations, and check for operational deficiencies. In excess of
40,000 safety audits were conducted in 2006. Compliance reviews occur
for four reasons: (1) poor carrier safety record in SafeStat,[Footnote
15] (2) a fatal accident, (3) a complaint against the carrier or
driver, or (4) a follow-up investigation after violations. In 2006,
FMCSA and state investigators conducted more than 15,000 compliance
reviews. In addition to the audits and compliance reviews, FMCSA also
makes educational materials about drug testing available on its Web
site.
FMCSA Faces Two Key Challenges in Ensuring Drug Testing Programs Are in
Place:
FMCSA's efforts to ensure that commercial motor carriers have drug
testing programs in place face two key challenges: limited compliance
by carriers and others involved in the process, and limitations in the
mechanisms FMCSA uses to ensure that drug testing programs are in
place.
Compliance by Carriers and Others Is in Question:
Our reviews of FMCSA data, visits to individual carriers, and
discussions with industry associations indicate that carriers,
particularly small carriers and owner-operators, are often not in
compliance with the drug testing regulations, resulting in the
possibility that many drivers are not being tested, which increases the
potential for drivers who use illegal substances to continue operating
in safety-sensitive positions. According to FMCSA data, more than 70
percent of compliance reviews conducted since 2001 and more than 40
percent of safety audits conducted since 2003 found violations of drug
testing regulations. The most frequently cited violation found in new
entrant safety audits, which was found in 30 percent of safety audits
conducted since 2003, was that carriers had no drug testing program at
all. The most frequently cited drug testing violations in compliance
reviews are that drivers operating in safety-sensitive positions have
not successfully passed a preemployment drug test, or that drivers are
not being tested at all (see fig. 2). About 1 percent of compliance
reviews per year find carriers that have allowed drivers with a
positive drug test to continue to operate in safety-sensitive
positions.
Figure 2: Percentage of Selected Violations Identified during FMCSA
Compliance Reviews, 2001-2007:
[See PDF for image]
This figure is a horizontal bar graph depicting the following data:
Violation: Using a driver prior to obtaining a negative preemployment
test; Percentage: approximately 21.
Violation: No drug testing program;
Percentage: approximately 9.
Violation: Failure to randomly test 50 percent of drivers; Percentage:
approximately 9.
Violation: Failure to check with previous employers concerning previous
drug tests[A]; Percentage: approximately 7.
Violation: Failure to get a postaccident drug test; Percentage:
approximately 3.
Violation: Failure to complete the return-to-duty process; Percentage:
approximately 1.
Violation: Failure to remove driver with a positive drug test;
Percentage: approximately 1.
[A] This violation may be reported under other applicable sections of
DOT and FMCSA regulations.
Source: GAO analysis of FMCSA data from 2001 to September 21, 2007.
[End of figure]
We saw similar problems in our field visits: in the two compliance
reviews and two new entrant safety audits we observed, two of the
carriers, both of which were small carriers, were not aware of the drug
testing requirements and did not have a drug testing program at all.
For example, a representative at one of the carriers we interviewed did
not understand the comprehensiveness of the drug testing regulations.
The carrier had hired owner-operators, who are enrolled in a random
drug testing program through a consortium/third-party administrator,
but did not fully understand its responsibility to obtain testing
results and other information from the consortium in which those owner-
operators are enrolled. Furthermore, for those carriers who use drivers
on and off throughout the year, there was confusion regarding how to
include them in random drug testing.
Compliance with drug testing regulations is particularly problematic
for owner-operators who are not hired by other companies. An owner-
operator must follow the drug testing regulations and be in a drug
testing program just like all other drivers employed by motor carrier
companies. For example, an owner-operator is required to get a
preemployment drug test and to enroll in a consortium for random
testing purposes. However, it is unclear how an individual who is both
the employer and the employee would comply with drug testing
regulations. For example, should the owner-operator who participates in
a consortium test positive, there is no one who will remove the
individual from safety-sensitive duties, and no one beyond the owner-
operator will be notified of the positive result.[Footnote 16]
Posing as commercial truck drivers needing DOT drug tests, our
investigators determined that there is also a lack of compliance with
protocols among entities that collect specimens for testing, resulting
in the ability for drivers to subvert a drug test. Twenty-two of the 24
collections sites our investigators tested were not in compliance with
some of the protocols that guide the process of collecting a urine
specimen. For example, employees at 10 sites failed to ask the
investigator to empty his pants pockets and display items to ensure no
items were present that could be used to adulterate the specimen. One
employee who did ask the investigator to empty his pockets did not
verify that all of his pockets were empty, allowing the investigator to
bring an adulterant into the collection area by hiding it in his back
pocket.
Mechanisms for Checking Compliance Have Limitations:
While almost all compliance reviews and safety audits test compliance
with drug and alcohol testing regulations, these activities have
several limitations and gaps in how effectively they can identify and
correct poor compliance.[Footnote 17]
* Most carriers are not reviewed. Safety audits began in 2003, and
since these audits are targeted at new entrants, they do not affect
companies in business earlier than 2003. FMCSA compliance reviews only
reach approximately 2 percent of carriers each year. Owner-operators
and small carriers are less likely than larger companies to be selected
for a compliance review. Several associations told us that small
carriers may be less likely to comply with the drug testing regulations
because they may have less understanding of their responsibilities, and
because they have less incentive to comply, given the rarity in which
they will be visited by FMCSA or state investigators.
* Oversight of service agents is lacking. Except in the case of
specific allegations or complaints, FMCSA investigators do not visit or
audit collection sites or any other service agents employed by the
carrier to observe procedures and enforce compliance with drug testing
requirements.[Footnote 18] FMCSA has a limited number of people to
oversee the potentially tens of thousands of sites that can be used to
collect urine for DOT drug testing. Collection sites can be located
anywhere--for example, a portable toilet or any toilet in a clinic,
hospital, or office building--and can operate during differing hours.
Few carriers conduct regular oversight of the service agents they
employ. One large carrier with whom we spoke tests and verifies that
the collection sites it uses are in compliance. Smaller carriers are
less likely to conduct such oversight, given their more limited
resources. Representatives from a third-party administrator with whom
we spoke told us that it observes some of the collection sites it uses,
sometimes at a client's request. If significant problems are found,
representatives told us they alert the carriers to discontinue use of
that collection site. In addition, representatives told us that some
major collection companies internally audit their own sites to ensure
the sites comply with all requirements.
* FMCSA conducts enforcement, but enforcement actions on service agents
are limited. Although not all violations result in enforcement actions,
FMCSA can use civil penalties, compliance orders, and out-of-service
orders to enforce carriers' compliance with drug testing requirements.
During safety audits of new entrants, FMCSA typically does not assess
fines against the carrier for noncompliance, since the purpose of these
audits is to educate and inform to encourage compliance.[Footnote 19]
The result of a safety audit is a list of recommendations for
corrective action and a requirement to provide documentation that
corrective action was taken. FMCSA does not believe it has the
authority to levy civil penalties on service agents. If a service agent
is found to be out of compliance, FMCSA officials told us that at most,
they can only fine the carrier that uses the service agent--not the
service agent itself. Several carrier and drug testing industry
associations we interviewed also commented that lack of enforcement of
the drug testing requirements against service agents, particularly
collection sites, is a problem. FMCSA and ODAPC can initiate a process
to disqualify service agents from participating in activities related
to DOT drug testing programs, known as a Public Interest Exclusion
(PIE), in cases of serious noncompliance. While a number of PIEs have
been initiated, no PIE has been completed or formally issued.
Typically, the service agent has either corrected the noncompliance or
gone out of business before the PIE could be completed.
* There is limited proactive outreach to carriers, service agents, and
drivers. While new entrant safety audits are an important tool for
educating and informing new carriers, these audits typically do not
occur until after a carrier has been operating for 9 to 18 months. New
carriers receive little information about drug testing requirements
when they register. When a new carrier applies for a DOT number, the
application includes a question in which the carrier must confirm
whether it understands its responsibilities related to drug and alcohol
testing. However, FMCSA does not provide any educational information on
drug testing when it approves the application. The carrier must seek
out information on the regulations and other responsibilities. The
FMCSA and ODAPC Web sites provide substantial educational information
on drug testing responsibilities to carriers, service agents, and
drivers. An official from FMCSA told us that its Web site may not
effectively reach carriers and drivers, and that there is a need to be
more proactive in disseminating information on the drug testing
program.
Options that we have identified to address these limitations include:
* providing more information to carriers, service agents, and drivers
when they enter the industry, and publicizing the materials available
on the FMCSA Web site;
* encouraging carriers to do more to test and verify that the service
agents they use are in compliance with the requirements; and:
* increasing or expanding FMCSA's oversight activities and enforcement
authority.
FMCSA's fiscal year 2008 operating plan calls for improving the Web
site and better publicizing available information, and its
Comprehensive Safety Analysis 2010 (CSA 2010) initiative includes plans
to improve current oversight.[Footnote 20] Our ongoing work will
examine the advantages and disadvantages of the various options in more
detail.
Additional Challenges Threaten Integrity of the Drug Testing Process:
Even in situations in which FMCSA is able to ensure that a carrier has
a sound framework in place for drug testing, there are additional
challenges that can affect the integrity of results for individual
tests. These challenges range from opportunities to subvert the test
results to learning about past instances in which applicants may have
failed drug tests.
Subversion of Drug Tests Is Still Possible:
Adulterating or diluting the urine sample or substituting synthetic
urine or drug-free urine is possible, even if carriers and service
agents are in perfect compliance with requirements. For example, our
investigators were able to successfully substitute synthetic urine at a
collection site that appeared to follow all DOT protocols. In most
instances, DOT drug testing protocols do not require directly observed
collection, nor do they require a thorough search for hidden subversion
products. Drivers intent on adulterating or substituting a urine
specimen can conceal small vials in socks or other undergarments, such
as those shown in figure 3. Products designed to dilute, cleanse, or
substitute urine specimens are easily obtained and brazenly marketed on
Web sites. Other products--more than 400 in number--are used to
adulterate urine samples. The sheer number of these products, and the
ease with which they are marketed and distributed through the Internet,
present formidable obstacles to the integrity of the drug testing
process.
Figure 3: Devices Used to Hold Adulterants or Substitutes:
[See PDF for image]
Note: The two left photographs show a container that was used for
substituted or synthetic urine, with a heating pad attached. The
photograph on the far right shows a belt designed to hold a urine pack
filled with synthetic urine.
[End of figure]
Another method of substitution is having another person give the urine
specimen instead of the driver. Collection sites are required to
identify the driver by looking at a photo ID issued by the employer
(other than in the case of an owner-operator or other self-employed
individual) or a federal, state, or local government (e.g., a driver's
license). The protocols do not require carriers to provide photographs
or other identification of drivers to collectors to validate the
identification. For example, our investigators successfully used bogus
driver's licenses to gain access to all 24 collection sites--
demonstrating that drug users could send someone to take a drug test in
their place using fake identification.
The extent to which subversion is occurring is unknown--and is
impossible to determine. SAMHSA officials with whom we met noted that
when adulterants work well and destroy the evidence of their presence,
they are undetectable by laboratories. DOT issued a Notice of Proposed
Rulemaking in 2005 to require specimen validity testing to test for the
presence of adulterants, and a final rule is expected in fall
2007.[Footnote 21] Similarly, when urine samples are successfully
substituted, the result is a negative test result; therefore, no data
exist on the extent to which such substitution occurs. For example, our
investigators adulterated or substituted eight specimens in their
investigation, and the laboratory was not able to detect any of the
adulterants or substitutes used.
One potential option to addressing this problem is to restrict the sale
of products that allow applicants to subvert tests. As we have
previously reported, several states have laws that prohibit the
manufacture, sale, or use of products intended to subvert drug tests,
but these laws are difficult to enforce.[Footnote 22] To our knowledge,
very few individuals have been cited or convicted for violating these
laws. As we also reported, however, South Carolina convicted
individuals for marketing and selling masking products: one who sold
urine substitution kits over the Internet, and another who advertised
that his store carried products that are used to pass drug tests by
cleansing the system. However, the interstate nature of the manufacture
and sale of products intended to subvert a drug test lessens the impact
of state-based laws. Legislation that would have prohibited the
manufacture, marketing, sale, or shipment of such products was
introduced in Congress in 2005 and 2006, but was not enacted.
Current Testing Covers a Limited Number of Drugs and Amount of Time:
Even if drivers submit legitimate, unadulterated urine samples, the
current testing regimen has certain limitations.
* Drivers may misuse substances other than the five being tested.
Drivers who use illegal substances, such as ecstasy, or misuse legal
substances, such as prescription medication containing
oxycodone[Footnote 23] and other synthetic opiates, can go unidentified
by the drug tests, although the use of these other substances can
impair the ability of these drivers to operate in a safety-sensitive
position. In addition, the use, and misuse, of prescription drugs may
also be a problem.
* Test detects drug use only within the past few days. The urine test
detects drugs used by the driver within the past several days (range of
1 to 5 days). This is a particular concern for preemployment testing,
according to carriers with whom we spoke, since a habitual user can
refrain from drug use for several days before the test in order to test
negative.
Utilizing other types of tests, such as hair tests, as well as testing
for other types of drugs, have been proposed for dealing with these
limitations. Hair tests can detect long-term and habitual drug use and
representatives from several associations we interviewed told us that
hair tests are, therefore, more suitable for preemployment purposes. In
fact, some motor carriers supplement the DOT test with these
alternative tests, and some carriers also test for additional drugs.
One large carrier we interviewed uses hair tests to complement the DOT-
regulated urine test and found higher rates of drug use in the hair
test (approximately 8 percent compared with 2 to 3 percent for urine
tests on the same individuals). However, union representatives with
whom we spoke are not in favor of carriers utilizing alternative tests
in addition to DOT-regulated tests, because doing so creates multiple
standards throughout the industry that their members have to comply
with. In addition, hair testing is not effective at detecting current
or very recent drug use, and the test is also more expensive than urine
testing. Our ongoing work will further analyze the pros and cons of
these options.
Information about Past Test Failures Is Limited:
DOT regulations require that an employer, in addition to testing an
applicant and receiving a negative result, also inquire about a
prospective driver's drug test history by contacting the driver's
recent employers listed on the employment application. Representatives
from several motor carriers with whom we met told us that drivers'
applications are often incomplete. In addition, it is easy for drivers
to simply omit any previous employer for which they tested positive or
any past preemployment test that was positive. Such drivers can remain
drug-free for a period of time leading up to their next preemployment
test, get a negative result, and get hired--without their new employer
knowing about any past positive drug tests and without having gone
through the required return-to-duty process.
Various options have been suggested for dealing with this issue, and in
particular, many in the industry have proposed developing a national
reporting requirement for past positive drug tests. As with the other
types of options that we have previously discussed, our ongoing work
will analyze the pros and cons of these improvements. According to a
DOT official with whom we met, FMCSA is considering implementing a
central repository containing national drug and alcohol testing results
to which carriers would have access, but its timeline is uncertain.
According to DOT, several states already require some form of
information sharing on drivers' past positive drug tests, though
implementation varies by state. For example, Oregon requires the
medical review officer to report positive results to the state, while
Texas requires carriers to report positive test results. Furthermore,
there is variation on what states do with such information that is
collected. For example, in North Carolina and Washington, positive drug
test results will disqualify drivers until they complete the return-to-
duty process, while in other states it is unclear whether the
information is being utilized at all.
Our Future Work Will Focus on Options to Address Challenges:
Our future work, which we expect to complete in May 2008, will provide
more definitive information about many of the matters covered in my
statement today. This information will include more detailed
information about FMCSA's enforcement activities related to the drug
testing regulations. Our report in May 2008 will also focus on the
various options that have been proposed to address the challenges and
problems we have discussed today.
Mr. Chairman, this concludes my prepared statement. I would be pleased
to respond to any questions that you or other Members of the
Subcommittee might have.
For further information on this statement, please contact Katherine
Siggerud at (202) 512-2834 or siggerudk@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this statement. Individuals making key contributions
to this testimony were Andrew Von Ah, Assistant Director; Andrea
Chinchilla; Paul Desaulniers; Michelle Everett; Bert Japikse; Sara Ann
Moessbauer; John Ryan; Sandra Sokol; Stan Stenersen; and Rebecca
Kuhlmann Taylor.
[End of section]
Footnotes:
[1] There are approximately 711,000 commercial motor carriers
registered in Federal Motor Carrier Safety Administration's Motor
Carrier Management Information System (MCMIS). This includes an
unidentified number of carriers that are registered but are no longer
in business. MCMIS contains information on the safety fitness of
commercial motor carrier and hazardous materials shippers subject to
the Federal Motor Carrier Safety Regulations and the Hazardous
Materials Regulations.
[2] DOT, Federal Motor Carrier Safety Administration, Analysis
Division, Large Truck Crash Causation Study, Publication No: FMCSA-RRA-
07-017 (July 2007).
[3] Title 49, Code of Federal Regulations (CFR), Part 40 provides rules
governing how drug tests are to be conducted and what protocols are to
be used. The tests cover alcohol as well as drugs, but the focus of our
work has been on the testing that covers five drug categories:
marijuana, cocaine, amphetamines (including methamphetamines), opiates
(including heroin), and phencyclidine (PCP). The Office of Drug and
Alcohol Policy and Compliance, within the Office of the Secretary of
Transportation, publishes these rules. 49 CFR Part 382 contains FMCSA's
specific drug testing regulations.
[4] Trucking companies are required to receive a new entrant safety
audit within the first 18 months of business. Motor coach companies are
required to receive a new entrant safety audit within the first 9
months of business.
[5] Oregon's roadside inspections had important differences to DOT-
regulated tests that limit the comparability of the results. For
example, these inspections (1) may include some drivers who are not
subject to DOT drug testing regulations; (2) tested for more substances
than does DOT--for example, the state inspection tested for some
prescription medications that are not included in DOT tests; and (3)
may not have used procedures comparable to DOT's collection, laboratory
analysis, and medical review procedures to ensure accurate results.
[6] GAO, Drug Tests: Products to Defraud Drug Use Screening Tests Are
Widely Available, GAO-05-653T (Washington, D.C.: May 17, 2005).
[7] Owner-operators own their own vehicles and hold a valid commercial
driver's license. An owner-operator may act as both an employer and a
driver at certain times, or as a driver for another employer at other
times.
[8] FMCSA data used in this statement include information from
compliance reviews and new entrant safety audits conducted through
September 21, 2007.
[9] GAO, Drug Testing: Undercover Test Reveal Significant
Vulnerabilities in DOT's Drug Testing Program, GAO-08-225T (Washington,
D.C.: Nov. 1, 2007).
[10] There were approximately 12,500 compliance reviews conducted on
carriers each year from 2001 through 2006.
[11] Service agent refers to any person or entity, other than an
employee of the employer, who provides services to employers and
employees in connection with drug and alcohol testing requirements.
This category includes, but is not limited to, collectors,
laboratories, medical review officers, substance abuse professionals,
and consortiums. To act as service agents, persons and organizations
must meet the qualifications set forth in applicable sections of
federal regulations.
[12] Specimens that have been adulterated or substituted are considered
refusals-to-test.
[13] In DOT drug testing, the split specimen is tested at a second
laboratory in the event that the employee requests that it be tested
following a verified positive, adulterated, or substituted test result
based on the primary specimen. Verified positive, adulterated, or
substituted test results are determined after laboratory analysis and
medical review.
[14] The regulations require owner-operators to implement a random
controlled substances testing program. To comply, owner-operators must
be enrolled in a random testing pool that includes other drivers. The
random testing pool is managed by a consortium/third-party
administrator.
[15] FMCSA targets compliance reviews toward those carriers that its
Motor Carrier Safety Status Measurement System (SafeStat) identifies as
having a high potential for being involved in crashes. We have recently
reported that a statistical approach would better identify commercial
carriers for compliance reviews than the current approach. GAO, Motor
Carrier Safety: A Statistical Approach Will Better Identify Commercial
Carriers That Pose High Crash Risks Than Does the Current Federal
Approach, GAO-07-585 (Washington, D.C.: June 11, 2007); and Motor
Carrier Safety: Federal Safety Agency Identifies Many High-Risk
Carriers but Does Not Assess Maximum Fines as Often as Required by Law,
GAO-07-584 (Washington, D.C.: Aug. 28, 2007).
[16] According to the regulations, an employer or owner-operator may
authorize a consortium/third-party administrator to act as an
intermediary for transmitting drug test results. Therefore, a
consortium/third-party administrator may also have information on drug
test results.
[17] FMCSA does not normally conduct reviews solely on drug testing.
However, we have reported that 95 percent of FMCSA compliance reviews
in fiscal years 2001 to 2006 included a review of drug and alcohol
testing compliance. GAO-07-584.
[18] There is some oversight of collection sites by other DOT agencies,
including the Federal Aviation Administration, the Federal Railroad
Administration, and the Federal Transit Administration, and by the
United States Coast Guard in the Department of Homeland Security. These
other agencies inspect some collection sites used by the employers and
operators they regulate. These collection sites may also be used by
FMCSA-regulated carriers.
[19] Certain violations discovered during a safety audit will result in
ending the safety audit and an immediate referral for a compliance
review. For example, one such violation is if a carrier is found to
have used a driver who had a positive drug test.
[20] Through CSA 2010, FMCSA expects to reduce motor carrier crashes,
fatalities, and injuries by using better ways to identify unsafe
carriers and drivers; assessing a larger portion of the motor carrier
industry; and expanding the range of interventions to be used with
carriers that and drivers who fail to comply with safety requirements.
[21] 70 Fed. Reg. 62276-01.
[22] GAO-05-653T.
[23] An example of a prescription medication containing oxycodone is
OxyContin®, which is a prescription painkiller used for moderate to
high pain relief associated with various injuries, and pain associated
with cancer. OxyContin® contains oxycodone, the medication's active
ingredient, in a timed-release tablet.
[End of section]
GAO's Mission:
The Government Accountability Office, the audit, evaluation, and
investigative arm of Congress, exists to support Congress in meeting
its constitutional responsibilities and to help improve the performance
and accountability of the federal government for the American people.
GAO examines the use of public funds; evaluates federal programs and
policies; and provides analyses, recommendations, and other assistance
to help Congress make informed oversight, policy, and funding
decisions. GAO's commitment to good government is reflected in its core
values of accountability, integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each
weekday, GAO posts newly released reports, testimony, and
correspondence on its Web site. To have GAO e-mail you a list of newly
posted products every afternoon, go to [hyperlink, http://www.gao.gov]
and select "E-mail Updates."
Order by Mail or Phone:
The first copy of each printed report is free. Additional copies are $2
each. A check or money order should be made out to the Superintendent
of Documents. GAO also accepts VISA and Mastercard. Orders for 100 or
more copies mailed to a single address are discounted 25 percent.
Orders should be sent to:
U.S. Government Accountability Office:
441 G Street NW, Room LM:
Washington, DC 20548:
To order by Phone:
Voice: (202) 512-6000:
TDD: (202) 512-2537:
Fax: (202) 512-6061:
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]:
E-mail: fraudnet@gao.gov:
Automated answering system: (800) 424-5454 or (202) 512-7470:
Congressional Relations:
Gloria Jarmon, Managing Director, jarmong@gao.gov:
(202) 512-4400:
U.S. Government Accountability Office:
441 G Street NW, Room 7125:
Washington, DC 20548:
Public Affairs:
Chuck Young, Managing Director, youngc1@gao.gov:
(202) 512-4800:
U.S. Government Accountability Office:
441 G Street NW, Room 7149:
Washington, DC 20548:
