FMCSA takes on request to allow hair tests into drug clearinghouse

“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,” Rob Moseley, an attorney representing the group, told FreightWaves. “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.

In a request for comments expected to be published Wednesday, the FMCSA has agreed to consider the Trucking Alliance’s exemption application — a move that seems contrary to the agency’s response to a more extensive but similar appeal made by the group in 2020.

In August of that year, the Trucking Alliance asked FMCSA, in addition to the group’s current exemption request, for an extra exemption allowing hair drug test results in lieu of 50% of the required random testing, which currently require carriers to use urine testing.

Citing jurisdiction over drug policy matters by the U.S. Department of Health and Human Services (HHS), FMCSA responded in May 2021 that because it lacked statutory authority to act on the application, the agency was unable to process it in accordance 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.

FMCSA did not immediately respond for comment on why it is publishing a notice and comment period this time around and what the effect of doing so could have on stakeholders.

A trucking regulations expert sees the agency’s apparent change in how it responds to exemption requests as a welcome trend.

“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,” P. Sean Garney, co-director at Scopelitis Transportation Consulting, told FreightWaves.

“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.”

HHS’s Drug Testing Advisory Board (DTAB) is revising proposed mandatory guidelines for drug testing using hair, released in September 2020, based on public comments and a review of current scientific literature cited in them. DTAB plans to discuss the revisions during a closed meeting in September. Once complete, the final draft of the guidelines must be cleared by HHS and then reviewed by the Office of Management and Budget. 

Related articles:

• FMCSA-reported drug test violations grew 10% in 2021
• FMCSA’s Hutcheson tells senators she wants to close ‘loopholes’ in trucker drug testing
• FMCSA issues new driver-ban rules for drug and alcohol abusers

Click for more FreightWaves articles by John Gallagher.