DRUG AND ALCOHOL TESTING OF

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DRIVERS

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HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

NOVEMBER 1, 2007

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DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE

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DRUG AND ALCOHOL TESTING OF

COMMERCIAL MOTOR VEHICLE

DRIVERS

(110–86)

HEARING

BEFORE THE

SUBCOMMITTEE ON 

HIGHWAYS AND TRANSIT

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

NOVEMBER 1, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

(

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

JULIA CARSON, Indiana 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ACURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

LAURA A. RICHARDSON, California 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

RICHARD H. BAKER, Louisiana 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

(II)

SUBCOMMITTEE ON HIGHWAYS AND TRANSIT 

PETER A. DEFAZIO, Oregon, Chairman 

NICK J. RAHALL II, West Virginia 

JERROLD NADLER, New York 

ELLEN O. TAUSCHER, California 

TIM HOLDEN, Pennsylvania 

MICHAEL E. CAPUANO, Massachusetts 

JULIA CARSON, Indiana 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

GRACE F. NAPOLITANO, California 

MAZIE K. HIRONO, Hawaii 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A ARCURI, New York 

CHRISTOPHER P. CARNEY, Pennsylvania 

JERRY MCNERNEY, California 

BOB FILNER, California 

ELIJAH E. CUMMINGS, Maryland 

BRIAN BAIRD, Washington 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

STEVE COHEN, Tennessee 

ZACHARY T. SPACE, Ohio 

BRUCE L. BRALEY, Iowa, Vice Chair 

HARRY E. MITCHELL, Arizona 

LAURA A. RICHARDSON, California 

JAMES L. OBERSTAR, Minnesota 

(Ex Officio) 

JOHN J. DUNCAN, JR., Tennessee 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

RICHARD H. BAKER, Louisiana 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

JOHN L. MICA, Florida 

(Ex Officio) 

(III)

(V)

CONTENTS Page

Summary of Subject Matter .................................................................................... vii 

TESTIMONY 

Craig, Rick, Director of Regulatory Affairs, Owner-Operator Independent 

Drivers Association .............................................................................................. 50

Hageman, Sergeant Alan, Patrol Division Support/Logistics, Oregon State 

Police ..................................................................................................................... 30

Hill, Hon. John, Administrator, Federal Motor Carrier Safety Administration, 

accompanied by Jim L. Swart, Acting Director, Office of Drug and Alcohol 

Policy and Compliance, U.S. Department of Transportation ........................... 35

Kutz, Gregory D., Managing Director, Forensic Audits and Special Investigations, U.S. Government Accountability Office ................................................... 5

McLuckie, Fred, Legislative Director, International Brotherhood of Teamsters ....................................................................................................................... 50

Siggerud, Katherine A., Director, Physical Infrastructure Team, U.S. Government Accountability Office .................................................................................. 5

Smith, Donna R., Ed.D., Regulatory Affairs and Program Development Officer, Firstlab, Inc., Substance Abuse Program Administrators’ Association .... 5

Stephenson II, Robert L., M.P.H., Director, Division of Workplace Programs, 

Substance Abuse and Mental Health Services Administration, Department 

of Health and Human Services ........................................................................... 35

Williamson, John Wilburn, Assistant Director for Driver and Vehicle Services, 

North Carolina Division of Motor Vehicles ........................................................ 30

Woodruff, Greer, Senior Vice President of Corporate Safety and Security, 

J.B. Hunt Transport, Inc., American Trucking Associations ........................... 50

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Altmire, Hon. Jason, of Pennsylvania .................................................................... 62

Carney, Hon. Christopher P., of Pennsylvania ..................................................... 63

DeFazio, Hon. Peter A., of Oregon ......................................................................... 65

Matsui, Hon. Doris O., of California ...................................................................... 68

Mitchell, Hon. Harry E., of Arizona ....................................................................... 69

Oberstar, Hon. James L., of Minnesota ................................................................. 75

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Craig, Rick ................................................................................................................ 80

Hageman, Sergeant Alan ........................................................................................ 94

Hill, Hon. John ......................................................................................................... 112

Kutz, Gregory D. ...................................................................................................... 127

McLuckie, Fred P. .................................................................................................... 163

Siggerud, Katherine ................................................................................................ 203

Smith, Donna ........................................................................................................... 234

Stephenson II, Robert L. ......................................................................................... 246

Williamson, John Wilburn ...................................................................................... 319

Woodruff, Greer ....................................................................................................... 336

SUBMISSIONS FOR THE RECORD 

Craig, Rick, Director of Regulatory Affairs, Owner-Operator Independent 

Drivers Association, reponses to questions from the Subcommittee ................ 89

Hageman, Sergeant Alan, Patrol Division Support/Logistics, Oregon State 

Police, responses to questions from the Subcommittee ..................................... 108

Hill, Hon. John, Administrator, Federal Motor Carrier Safety Administration, 

responses to questions from the Subcommittee ................................................. 120

Page

VI

Kutz, Gregory D., Managing Director, Forensic Audits and Special Investigations, U.S. Government Accountability Office, responses to questions from 

the Subcommittee ................................................................................................. 156

McLuckie, Fred, Legislative Director, International Brotherhood of Teamsters, 

responses to questions from the Subcommittee ................................................. 199

Siggerud, Katherine A., Director, Physical Infrastructure Team, U.S. Government Accountability Office, responses to questions from the Subcommittee .. 226

Smith, Donna R., Ed.D., Regulatory Affairs and Program Development Officer, Firstlab, Inc., Substance Abuse Program Administrators’ Association, 

responses to questions from the Subcommittee ................................................. 240

Stephenson II, Robert L., M.P.H., Director, Division of Workplace Programs, 

Substance Abuse and Mental Health Services Administration, Department 

of Health and Human Services, responses to questions from the Subcommittee .............................................................................................................. 262

Williamson, John Wilburn, Assistant Director for Driver and Vehicle Services, 

North Carolina Division of Motor Vehicles, responses to questions from 

the Subcommittee ................................................................................................. 330

Woodruff, Greer, Senior Vice President of Corporate Safety and Security, 

J.B. Hunt Transport, Inc., American Trucking Associations, responses to 

questions from the Subcommittee ....................................................................... 345

ADDITIONS TO THE RECORD 

Psychemedics Corporation:

Ray Kubacki, President, written statement ....................................................... 355

William Thistle, Senior Vice President and General Counsel, written statement ................................................................................................................... 361

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(1)

HEARING ON DRUG AND ALCOHOL ABUSE 

TESTING OF COMMERCIAL MOTOR VEHICLE 

DRIVERS 

Thursday, November 1, 2007

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

SUBCOMMITTEE ON HIGHWAYS AND TRANSIT, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 10:04 a.m., in Room 

2167, Rayburn House Office Building, the Honorable Peter A. 

DeFazio [Chairman of the Subcommittee] presiding. 

Mr. DEFAZIO. Sometimes around here, you have to tear up the 

script and that is what we are going to do today. Not being previously aware of the breadth and depth of the problems that are 

about to be revealed here today, I am changing the order of the 

witnesses because I want the principals who are involved in shaping Federal policy or implementing Federal policy in these areas to 

hear the testimony which is going to be absolutely devastating. 

I have been very critical of Mexican trucks coming across the 

border and raised a host of safety issues. Among the issues I have 

raised is the lack of certified drug testing facilities in Mexico. Well, 

it turns out here in the United States of America, we have no 

meaningful program of drug testing for commercial truck drivers, 

none. We are going to hear that today. 

The collection facilities are easily penetrated with false licenses. 

The facilities themselves, you could easily smuggle in devices that 

are readily available on the internet which we will hear about a little later today. 

The FMCSA has been aware of this. They, in fact, say in their 

testimony, in response to GAO, no, they weren’t shocked at all to 

learn that these testing facilities were loophole-ridden and providing tests for which results were easily modified and made meaningless, but they have sent out posters. 

We are going to hear testimony that there is a 2004 report about 

the problem with job-hopping. 

So even when this faulty system works, which we don’t know 

how many people are out there abusing substances. The most conservative estimate, 1.7 percent, everybody agrees on that, at least 

1.7 percent. That is 170,000 truck drivers driving 80,000 pound 

trucks, abusing drugs. 

In Oregon, with the random test, it seems like maybe the number is five times higher. We don’t know. There is no meaningful 

system, none. This is shocking. This is incredibly shocking stuff. 

2

We are going to proceed in a little different manner today. So we 

are going to have people listen to the people who are doing the investigations and a person representing an organization that has 

been critical of the system, and then we will have the other witnesses. Then I will hope for meaningful responses from the Administrator and the person representing SAMHSA because this cries 

for out action. 

If you lack legal authority to implement the program that your 

2004 report said you needed to do to take care of job-hopping, tell 

us, but you don’t say it in your testimony. You are just saying, 

well, yes, we got that report in 2004. We are still thinking about 

how we might have a national database. 

So that when you have a drug-abusing truck driver who doesn’t 

complete treatment and goes to another trucking company and 

starts driving again, we have no idea except in the State of North 

Carolina and a few other places who have taken steps that we 

could take nationally to prevent that from happening, prevent people from being killed because there are drug-abusing truck drivers 

out there. 

Mr. Duncan. 

Mr. DUNCAN. Well, thank you, Mr. Chairman. 

This is a very appropriate subject about which to hold a hearing, 

and I thank you for calling this hearing today. The safety of truck 

and bus drivers on our Nation’s highways is a major concern for 

this Committee and Subcommittee. 

We know that a driver’s health can significantly affect his ability 

to drive safely while on the road with other trucks, buses, passenger cars and pedestrians. Recent news reports have called truck 

and bus driving safety into question, particularly with respect to 

driving while under the influence of drugs. 

In response, this Committee has exercised his oversight responsibility to review policies regarding drug testing of truck drivers. We 

want to know if there is actually a problem with drug use and drug 

testing in the trucking industry. Only when we get an accurate picture of this issue and its severity can we determine effective measures to address it. 

The DOT study of the causes of truck crashes found that brake 

problems, speeding and driver fatigue are the most common factors 

cited as causes. Illegal drug usage was cited as being an associated 

factor in 2 percent of drug crashes. 

There are 711,000 commercial motor carriers registered by the 

Federal Motor Carrier Administration. This translates to more 

than four million individuals who have been issued a commercial 

driver’s license. 

FMCSA is charged with regulating the safety of all commercial 

motor vehicles engaging in interstate commerce. The Agency must 

focus its attention on policies and actions that will reap the greatest safety benefit. Looking to other Department of Transportation 

agencies like FAA, FTA or FRA for a drug and alcohol testing program structure really is probably not going to work. The trucking 

industry needs a safety oversight and enforcement program that 

fits the unique needs and size of the industry it regulates. 

We have to keep our eye on the main objective, protecting our 

citizens from unsafe drivers and vehicles. Our policy and funding 

3

decisions should be focused on the activities that will do this the 

most effectively. 

Thank you again, Mr. Chairman, for calling this hearing, and I 

look forward to hearing the testimony. 

Mr. DEFAZIO. I thank the gentleman. 

I turn to Mr. Oberstar, the Chair of the Full Committee. 

Mr. OBERSTAR. Mr. DeFazio, Chairman, I share your anger, your 

frustration and your fury at the state of drug and alcohol testing 

in the United States, especially in the light of the efforts this Committee has made on Mexican trucks and drivers and drug testing 

and the inadequacy of their program, but to find that ours falls so 

grossly short is, as you put it, shocking and makes one angry. 

This Committee played a significant role in the 1980s in shaping 

the drug and alcohol testing rules that were put in place in the late 

eighties, but there hasn’t been any oversight over whether those 

rules are working and how they are working and who is being 

caught and how the tests are being avoided. 

The number of commercial drivers using drugs by official record 

has gone down, but the rules aren’t working. They aren’t working 

as well as they should. We know that drivers are still using drugs 

but getting away with it. That is the serious problem. 

Now this is not a hearing about morality of drug use. It is not 

about the character of the people who are using the drugs. It is 

about breaking the law, avoiding the law, skillfully using the internet to get around the law. It is about safety, about lives on the 

highways. 

Commercial motor carriers account for 13 percent of highway 

deaths a year. Illegal drugs, so far as is known, account for a small 

percentage of those crashes. But, as Mr. DeFazio said, even at 1 

percent, that is 110 plus thousand, maybe as many as 200,000, 

deaths. I mean incidents of drivers. 

We know what the effects of cocaine, marijuana and speed use 

are on driving. They impair the driver’s ability to conduct that vehicle. It is one thing to go to a pop concert and use those drugs, 

but it is something else to use them and get behind the wheel of 

a 80,000 pound vehicle. This Committee takes that seriously. 

The FOX News outlet in Minneapolis in February of this year 

conducted an investigation of drug testing facilities on some tips 

that they received, sites where urine is collected, where what they 

found shocked them about the integrity of the tests. 

The FOX reporter wasn’t required to empty his pockets. He was 

sent to a public restroom that other building tenants had access to. 

The restroom wasn’t searched first to make sure that nothing had 

been hidden there to help him mask the tests. 

Collectors who are not following protocols, facilities that don’t 

meet Federal requirements create an opportunity, an opening for 

drug users to escape detection, and they will jump on the opportunity in athletics as well as in driving. 

The Health and Human Services Department in 2005 issued a 

guidance to collectors to try to deal with the cheating problem. 

They said a drug user who is part of a workplace drug testing program will most likely to defeat the drug test if given the opportunity. Well, that is human nature. 

4

What FOX News found, what GAO is going to tell us today is 

that there is plenty of opportunity, and there are products out 

there to make it possible to cheat, over 400 products, gadgets to 

help a drug user beat the drug test, products that can be added to 

a urine sample to mask the drug, to dilute the urine sample. 

Even synthetic urine, I was stunned to find out, virtually indistinguishable from human urine, with products like Whizzies, 

UrineLuck, a play on words, a play on the sound of words, and 

Stealth. They are sold on web sites called PassYourDrugTest.com, 

OneHourDetox.com, Whizzinator.com. 

Committee investigators from our Committee found human urine 

for sale on craigslist, adulterants available on eBay, adulterants 

available on Amazon. I thought you could only buy books from 

Amazon. 

These products are sold with the specific intent of defeating a 

drug test. There is no other use, no other beneficial use for those 

products. They ought to be banned, and I hope one of the outcomes 

of this hearing will be legislation to do exactly that. 

Health and Human Services admits that their tests don’t pick up 

these products. When they do, guess what, the manufacturer simply changes the formula. It is a cat and mouse game, the manufacturer staying one step ahead of the labs. Because the products fool 

the labs, there is no way of knowing how widespread the cheating 

is. 

That is one of the revealing, shocking messages of and findings 

of the GAO report. Because they don’t know how many drivers are 

cheating, the regulatory agencies can’t tell how many drivers are 

using drugs. 

The Motor Carrier Safety Administration estimates 2 percent of 

drivers test positive, but there are other studies that suggest a 

much higher number. In Oregon, State police conducted two operations last spring and this fall where they anonymously tested 400 

drivers. They found illegal drugs in nearly 10 percent of truck drivers. 

Health and Human Services published their occupational drug 

use survey finding that 7.4 percent of heavy truck drivers reported 

they had used illegal drugs in the prior month. At 2 percent, that 

is 200,000 drivers. If only half of those were using, there is still 

100,000 drivers on the roads—indefensible, unacceptable. 

Then there is another loophole. Drivers who have been caught 

using drugs can keep on driving without going through the rehab 

process. 

In May, 1999, a bus taking 43 passengers crashed in New Orleans, killing 22 passengers, and the driver tested positive for marijuana. The tragedy was it could have been prevented. When the 

company hired the driver, they didn’t know the driver had failed 

four prior drug tests, two for which he was fired. 

Getting a job applicant’s prior drug history relies on self-reporting. That is not good enough. There are no alternative sources from 

which employers can get that history, and there are drug-using 

drivers that are able to jump from job to job, leaving their drug use 

history behind. 

Now the Tour de France last year was widely criticized for drug 

use by cyclists, but they were all caught. There is a rigorous proVerDate 0ct 09 2002 11:07 Apr 08, 2008 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 P:\DOCS\38866 HTRANS1 PsN: JASON
5

gram of testing bicyclists by the World Anti-Doping Agency and the 

U.S. Anti-Doping Agency. They follow the cyclists into the testing 

place, into the bathroom. They stand there while the urine sample 

is delivered. They take blood tests. 

Now we have all these privacy laws that say you can’t do that 

sort of thing. Well, there are other ways to deal with it, and we 

are going to explore those in the course of this hearing and we are 

not going to just leave it there. We are going to follow up with action by this Committee under the vigorous leadership of Chairman 

DeFazio. 

Thank you. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

Mr. Chairman, just on one remark you made, it is not just that 

the manufacturers get ahead of the tests—and I will be asking 

about the rationale for this because it is unfathomable to me—but 

Health and Human Services is apparently required to publish the 

list of adulterants and the tests developed for them in the Federal 

Register so that the manufacturers are able to change their formulas and prevent detection. That one is way beyond me, so that 

will be another topic I hope we cover. 

With that, we will turn to our first panel of witnesses. As I say, 

we have gotten off the script here because this is so extraordinary. 

I do want and hope that when the Administrator testifies later, 

and the Acting Director of the Office of Drug and Alcohol Policy 

and Compliance is with him and the person representing the Substance Abuse and Mental Health Services Administration, I would 

urge you to take notes and depart from your prepared testimony 

because you are going to need to. 

So, with that, I will turn first to Mr. Gregory D. Kutz, Managing 

Director, Forensic Audits and Special Investigations, U.S. GAO. 

Mr. Kutz. 

TESTIMONY OF GREGORY D. KUTZ, MANAGING DIRECTOR, FORENSIC AUDITS AND SPECIAL INVESTIGATIONS, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; KATHERINE A. 

SIGGERUD, DIRECTOR, PHYSICAL INFRASTRUCTURE TEAM, 

U.S. GOVERNMENT ACCOUNTABILITY OFFICE; DONNA R. 

SMITH, ED.D., REGULATORY AFFAIRS AND PROGRAM DEVELOPMENT OFFICER, FIRSTLAB, INC., SUBSTANCE ABUSE PROGRAM ADMINISTRATORS’ ASSOCIATION 

Mr. KUTZ. Mr. Chairman and Members of the Subcommittee, 

thank you for the opportunity to discuss drug testing for commercial truck drivers. 

Recent reports of drivers operating with controlled substances in 

their system raise serious questions about the safety of our Nation’s highways. Today’s testimony highlights our covert testing of 

the DOT drug testing program. My testimony has two parts. First, 

I will discuss what we did and, second, I will discuss what we 

found. 

First, we created two fictitious companies and selected 24 publicly advertised urine collection sites that followed DOT protocols. 

These sites are located in Los Angeles, Dallas-Fort Worth, New 

York, New Jersey and the Washington, D.C. areas. We also produced 24 bogus commercial driver’s licenses for 24 fictitious indiVerDate 0ct 09 2002 11:07 Apr 08, 2008 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 P:\DOCS\38866 HTRANS1 PsN: JASON
6

viduals from the States of Washington, Georgia, West Virginia and 

Delaware. 

Using bogus licenses, we visited these 24 sites, posing as drivers 

selected by our fictitious companies to take a drug test. At these 

sites, we tested 16 key DOT protocols designed to prevent an employee from beating a drug test. We also purchased synthetic urine 

and adulterants on the internet and used these products for eight 

of our tests. 

Moving on to the results of our work, we found breakdowns in 

all phases of the drug testing program. I have in my hand one of 

the 24 bogus driver’s licenses that we used for this test. We produced this West Virginia driver’s license, using commercially available hardware, software and materials. 

We used licenses just like this one to gain access to all 24 sites 

to take our drug tests. This clearly shows that a drug user could 

send someone else in their place to take a drug test. 

With respect to protocols, 22 of the 24 sites that we visited failed 

at least 2 of the 16 DOT protocols that we tested. For example, 75 

percent of the sites failed to secure the facility from substances 

that could be used to adulterate or dilute the specimen. 

The first posterboard and the pictures on the monitor on both 

sides of me show pictures we took at one of the collection sites with 

our cell phone cameras. Notice in the first picture the potential 

adulterants such as Lysol outside of the collection area. The second 

picture shows the same Lysol container which our investigator took 

into the collection area and could have easily used to adulterate his 

urine. 

We also found that products designed to be a drug test are widely available for sale on the internet. The next posterboard shows 

some of the marketing pitches that are used to sell these products. 

As you can see, these products are represented to be safe, 

undetectable and guaranteed to beat a DOT or other drug test. 

We were able to easily bring these products into all eight of the 

sites that we tested for them. For example, I have in my hand one 

of the bottles and heating pads that we used to carry synthetic 

urine into the collection area. We also used vials like the one I 

have in my hand to carry adulterants into the collection area. 

None of the eight synthetic or adulterated urine samples that we 

provided were detected by the labs. 

Mr. OBERSTAR. Mr. Kutz, I want to interrupt you at that point. 

Mr. KUTZ. Sure. 

Mr. OBERSTAR. Are you able to identify the authors of those comments? 

Mr. KUTZ. On the posterboard there? 

Mr. OBERSTAR. Yes. 

Mr. KUTZ. I don’t have that with me, but there were lots of sites. 

Mr. OBERSTAR. You do have that information? 

Mr. KUTZ. We could get that for you if you are interested. 

Mr. OBERSTAR. Submit that for the record, please. 

Mr. KUTZ. Certainly. 

Mr. DEFAZIO. Mr. Chairman, we do have some slides that I was 

going to have the staff put up later which actually show some of 

these web sites and the advertisements. 

7

Mr. OBERSTAR. We do have that, but I wonder about these particular comments. 

Mr. KUTZ. We could submit that for you, yes, sir. 

In conclusion, our covert testing clearly shows that a drug user 

could easily beat the DOT drug tests. Even if the collection sites 

followed all of the DOT protocols, our work shows that the tests 

can be beaten using counterfeit documents, synthetic urine or 

adulterants. 

Addressing the vulnerabilities that I have just discussed will require substantial improvements in all phases of the drug testing 

program. 

Mr. Chairman, that ends my statement. I look forward to your 

questions. 

Mr. DEFAZIO. Thank you. 

With that, I turn to Katherine Siggerud, Director of the Physical 

Infrastructure Team of U.S. GAO. 

Ms. Siggerud. 

Ms. SIGGERUD. Chairman Oberstar, Chairman DeFazio, Ranking 

Member Duncan and Members of the Subcommittee, we appreciate 

your invitation to appear at this hearing on drug testing of drivers 

employed in safety-sensitive positions in the motor carrier industry. 

My colleague, Mr. Kutz, has described the significant problems 

existing at collection sites that are an important component of 

FMCSA’s drug testing program. Our ongoing work for this Subcommittee and the Chairman of the Full Committee raises issues 

about compliance, accountability and design of additional aspects of 

the drug testing program. 

My statement presents these preliminary results today and will 

focus on challenges in, first, overseeing and enforcing compliance 

with drug testing regulations and, second, ensuring the integrity of 

the drug tests and the processes for keeping drivers with identified 

problems off the roads. Before getting to these results, it is useful 

to provide some background of the program itself. 

As shown in this slide and in the packets you have in front of 

you, drug testing is a multi-step process that includes many players. Employers must, of course, design and implement a program 

or hire a third party to do it for them. In addition, FMCSA provides regulation and oversight. 

Collection sites obtain the specimens. Laboratories test the specimens under the oversight of the Department of Health and Human 

Services. Medical review officers review and verify lab results and 

report them to employers, and substance abuse professionals design programs for employees that wish to return to driving after a 

positive test. 

With regard to FMCSA’s efforts to ensure that commercial motor 

carriers have drug testing programs in place, we found that noncompliance appears to be widespread. 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 the 

carrier has no drug testing program at all. 

As shown here, the most frequently cited drug testing violations 

in compliance reviews are carriers having employed drivers without 

8

a pre-employment drug test or not testing them at all. About 1 percent of compliance reviews find that carriers allow drivers with a 

positive drug test to continue to drive. Non-compliance appears to 

be particularly high among small carriers and owner-operators. 

In addition, FMCSA’s oversight is limited. While new entrant 

safety audits are designed to reach all new entrants, compliance reviews only reach about 2 percent of carriers each year due to the 

size of the industry and resources devoted to these activities. 

In particular, oversight activities do not address compliance by 

agencies and by carriers to implement drug testing programs such 

as collection sites because of limited resources and the lack of enforcement authority. FMCSA will investigate service agents such 

as collection sites as a result of a specific complaint but can only 

act to disqualify them from DOT’s testing programs rather than 

using the fines that can be applied to motor carriers. 

Even when there is good compliance with regulations, drivers 

who use drugs may still be driving commercial motor vehicles. 

First, as Mr. Kutz explained, subversion of the drug test is still 

possible. The regulations do not require employees to directly observe collection nor do they require a thorough search for hidden 

subversion products. 

The extent to which subversion is occurring is unknown and is 

impossible to determine because when specimens are successfully 

adulterated or substituted, there is no record which would allow us 

to judge this extent. 

Second, there are limitations to the test itself. Drivers who use 

illegal substances other than the five the DOT tests for, those are 

amphetamines, cocaine, opiates, marijuana and PCP, or who use 

certain prescription medications may not be identified. 

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. 

Finally, lack of disclosure of past positive drug tests is a problem. 

DOT regulations require that an employer, in addition to testing a 

job applicant, inquire about that applicant’s drug test history and 

contact the driver’s recent employers. 

Representatives from several motor carriers told us it is easy for 

drivers to simply omit any previous employer for whom they tested 

positive or any such pre-employment drug test. 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 tests. 

In our ongoing work, we are analyzing options for addressing 

some of these problems including their costs, advantages and disadvantages. These include publicizing information and successful 

practices regarding drug testing requirements to carriers, service 

agents and drivers, 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, and developing 

a national reporting requirement for past positive drug test results. 

We will be issuing our report to the Committee in May. 

I will take any questions when the Committee is ready. Thank 

you. 

9

Mr. DEFAZIO. Thank you. 

We would now turn to Dr. Smith. Go ahead. 

Ms. SMITH. My name is Dr. Donna Smith. I represent today, before you, the Substance Abuse Administrators’ Association which is 

a non-profit professional group that has as its members, DOT regulated employers and service agents who assist them and support 

them in implementing and conducting workplace drug and alcohol 

testing programs. 

In preparation for my being here today, the organization did conduct a survey, a very thorough survey of its membership to explore 

the problems that the Committee is addressing. We also held a recent conference where this particular topic was discussed and 

where more data were provided. 

So, as a summary of that, I would like to present that there are 

probably three main things that I believe and that the association 

believes are roadblocks to being able to effectively implement the 

Department of Transportation’s drug and alcohol testing program 

and to achieve its objectives of deterrence and detection of illegal 

drug use among safety-sensitive workers. Those three things, my 

colleagues have already mentioned. 

One is obviously that there are opportunities to cheat on the 

drug test and very, very little opportunity to detect that cheating. 

Secondly is that the when the rules have been successful in identifying an individual who tests positive or who refuses to test 

through an adulterated or substituted drug test, by our best estimates, only 40 percent of those go through any kind of rehabilitation, intervention or return to duty efforts. 

Now other people would say, well, that is a good thing; it is 

working; they aren’t working in transportation any more or they 

aren’t driving a truck any more. I am not at all convinced that that 

is true. 

The third thing that I think is the greatest impediment to the 

success of the Department of Transportation’s drug and alcohol 

testing regulations is a real difficulty in implementing effective 

compliance monitoring, and that is particularly true in the commercial motor carrier industry. 

I would to take just a couple of more minutes to explain in some 

depth what some of the things that I think are critical. 

Having to do with collection sites, when I worked for five years 

at the U.S. Department of Transportation at the time that the Omnibus Act was being implemented and the regulations were being 

promulgated, we always said then that we knew that the collection 

of the specimen was going to be the weakest link in the process. 

We had a lot of tools to address the analytical issues in the laboratories. We had a lot of ways that we could address issues in 

terms of the training and the expertise of the physicians who would 

review and interpret test results. 

The mere scope of specimen collection for potentially hundreds of 

thousands of employers is mind-boggling. Our estimate in our association is that there are probably at least 10,000 collection sites 

that service DOT-regulated employers across the U.S. These are 

laboratories, patient service centers. These are urgent care centers. 

They are doctors’ offices. They are chiropractors’ offices. They are 

whatever. 

10

In almost all cases, collecting a forensic urine drug sample is not 

their core business and, in almost all cases, this task is entrusted 

to the lowest paid, least trained member of that staff. So I think 

just getting our hands around that is difficult. 

In terms of the return to duty process and people that circumvent that—and I think it may be as high as 50,000 people that 

we have caught on the drug test but who do not go through the 

return to duty process—I think that we need to look seriously at 

the opportunity for a national database. 

The U.S. Coast Guard, the Federal Aviation Administration and, 

to some extent, the Federal Railroad Administration have been 

much more successful because they are able to rescind or revoke 

licenses or documents, and people therefore cannot work in that industry again until they have been able to satisfy the return to duty 

requirements. 

So, in short, the recommendations to the Committee from SAPAA 

are as follows: 

That the Congress support and pass some form of the Drug Testing Integrity Act to try to get a handle on the proliferation of the 

adulterants and the other products so readily available. 

That they would follow what six States have tried to do. Of 

course, the purveyors of these products simply get around that by 

having the ads on their web site: We can’t ship to you in North 

Carolina, but we can ship it to a friend or family member in any 

of the neighboring States. 

So I think we need a national piece of legislation, Mr. Chairman. 

I think that we also need to increase funding and resource for 

the Federal Motor Carrier Safety Administration. The ratio of auditor or inspector to carrier is abysmal. But we have to make those 

more than paper audits, more than an auditor or an inspector 

going in and saying: Let me see our statistical report for the year. 

Let me see your written policy. 

The inspectors must be trained and they must be held to go out 

into the field to do the kind of collections that Mr. Kutz’s organization did in terms of seeing what is going on. 

I also believe that the development somehow of a national database is essential to stop the job-hopping. You have an industry 

where turnover rate, where availability of drivers really drives and 

encourages the process of being able to walk out of one trucking 

company or motor carrier and go down the road to the next. 

Finally, I think that the Department of Transportation needs to 

more effectively wield a club and a tool that it already has in place 

in the regulations which is the Public Interest Exclusionary Process so that when collection sites or when third party administrators 

or when medical review officers flagrantly disregard the requirements that are already there in the rule, that they are in fact posted as this service agent cannot do business with a DOT-regulated 

employer. 

Thank you for your time and your attention. 

Mr. DEFAZIO. Thank you. 

We would now go for a round of questions. 

First, a couple of questions from web sites, if I could see the slide 

that says, this one claims Government endorsement. Could the 

GAO comment on that? 

11

It says we carry FDA-approved drug test detoxification programs 

for passing serious drug tests. All of our products are manufactured 

in the U.S. I, of course, supported manufactured in the U.S., 

but——

[Laughter.] 

Mr. DEFAZIO. Located DHS and DEA certified facilities. Can you 

comment? Do you have any comment or insight into that claim? 

Mr. KUTZ. I don’t certainly. 

Ms. SIGGERUD. I don’t either. 

Mr. DEFAZIO. Okay. How about then the favorite links from a 

DAT testing facility web site slide? No, not the Whizzinator. Yes, 

here we go, the last one. 

This is from a lab called, I think it is blacked out. They are in 

California. Some of the specifics are blacked out. I don’t know why. 

I would love to publish their name right now, but I will get it later. 

It is something health care clinic, Commerce, California, and 

they administer commercial truck driver medical exams and drug 

testing. They have their favorite links. We all like our favorite 

links. 

Their favorite link is to—could we have the next slide please—

Insider’s Guide to Passing a Drug Test: What the Labs Don’t Want 

You to Know. This is on the web site of a company that is certified 

to do commercial truck driver medical exams and drug testing. 

Ms. SIGGERUD. Well, I think, Chairman DeFazio, clearly that is 

a problem, and we have all made the case today here that these 

adulterants and substitutes are not regulated except by a few 

States and that there is an issue with oversight of these collection 

facilities. It is not surprising, therefore, to see a collection facility 

web site that would have, shall we say, questionable information 

on it. 

Mr. DEFAZIO. I think, Dr. Smith, this might go to your comment 

about the exclusionary process or the disqualification process. 

Maybe a company that is doing medical exams and drug testing 

that has a favorite link on how to beat the test, do you think they 

ought to be doing these tests? 

Ms. SMITH. No, sir, and I think that is the point. It is just like 

what I think we have been through as a Country in terms of how 

did we get OSHA compliance. There has to be—there has to be 

some kind of threat, a risk assessment that every employer, every 

company is going to go through in terms of what may happen if I 

don’t comply, and I think that it has been difficult. 

I think one of the fears, Mr. Chairman—and I know this was 

true when I was at the Department of Transportation—is if we 

rode these people too hard, then they will simply say: Okay, I am 

not going to do drug testing anymore, all right, DOT drug testing. 

It is not a big part of my revenue anyway and, you know what, I 

don’t even care if I do the DOT physicals. I am going getting 25 

or 35 bucks for those. So that is okay. 

The concern was all right, then we are simply going to make it 

harder for a commercial motor carrier to comply because they are 

not going to have very many places that they can send this driver 

for that random test when he is between Moose Breath and wherever. 

Mr. DEFAZIO. Okay, thank you. 

12

In the testimony by Mr. Kutz, on page 20, you say here: Corrective Action Briefing, we briefed the DOT on the results of our investigation on October 1st, 2007. DOT officials agreed with our 

findings and indicated they were not surprised by the results of our 

work, stating that they have performed similar tests themselves in 

prior years with similar results. 

Do you stand by that? They actually said that? 

Mr. KUTZ. Yes. We do corrective action briefings all the time. 

Our protocols are first to brief your staff, and then we go to the 

agencies affected and brief them. We document what we say to us, 

and that is correct. 

Mr. DEFAZIO. Then it says there their response was they developed posters? 

Mr. KUTZ. That is what it says, yes. 

Mr. DEFAZIO. Are the posters required to be posted in these facilities? 

Mr. KUTZ. I don’t believe they are required. We did see one of 

the best practices was one of the places that followed all the protocols actually did have posters up there. So that certainly was one 

of the better things we did see, and we didn’t see many good 

things. 

Mr. DEFAZIO. Then they also said that the REAL ID Act could 

close a vulnerability identified, using fake driver’s licenses. 

My recollection, and you could help me out with this, on the 

REAL ID Act is I believe State compliance is required in 2009 or 

2010 and then States are not required until a person’s license is 

reissued to provide a REAL ID-capable license, which could be in 

some States as long as 10 years. So we could be looking at 2020. 

Mr. KUTZ. That is a long term, clearly. 

Mr. DEFAZIO. Right, right. 

Mr. KUTZ. I agree. 

Mr. DEFAZIO. They didn’t seem disturbed by the fact you were 

able to successfully penetrate all these facilities with fake driver’s 

licenses today? 

Mr. KUTZ. I think they were, but they didn’t really offer a short 

term solution. I think that is something we can talk about at the 

hearing today, are there short term solutions to that issue. 

Mr. DEFAZIO. What would those be? 

Mr. KUTZ. Well, we talked about two possibilities, either the employer faxing a copy of identification to the test sites of the person 

coming to take the test or actually the test site making copies of 

the credentials that were given to them for the person taking the 

test and making sure that those go back to the employer, so the 

employer makes sure that the person who took the test is in fact 

their person. That could be a short term, low cost alternative. 

Mr. DEFAZIO. Okay, we will be asking the Administrator if he 

would like to do that. 

I have a question about part of the problem with the drug testing 

is it is obviously ephemeral, and there is some discussion about 

hair and other things. Is hair testing accurate for historic drug use 

which might then give us probable cause to target more testing on 

that person? 

Can anybody comment on that? 

13

Ms. SMITH. I can comment on that simply by the involvement 

that I have had with clients that utilize hair testing. Does it give 

a longer window of detection for illegal drug use depending on the 

length of hair sample? The answer to that question is yes. 

Is it reliable? I think again the science is divided on that. It certainly is analytically reliable. 

I think you have questions about whether or not single time or 

recreational use is as easily detected in terms of absorption into the 

hair as you do people who are chronic or frequent users. I think 

you also have some of the issues with regard to the availability of 

sample depending on where on the body you can get sufficient hair, 

so from a reliability, et cetera. 

I think, though, the thing that would address some of the issues 

that we are having here is, and I am sure Mr. Stephenson and Dr. 

Bush from SAMHSA will back me up, since hair testing has begun 

to proliferate more in the non-regulated drug testing world—that 

is employers doing drug tests not under Federal authority of any 

kind—we have seen the products, the ads and whatever increase 

over 300 percent for shampoos, for hair preparations that you 

would put on your hair to pass your hair test if your employer has 

gone to that. 

I have had collectors, who have been trained how to snip the hair 

and package the hair, contact me because people are showing up 

with weaves and with human hair wigs and all kinds of things. So 

I don’t want you to think that by changing specimens, you can necessarily——

Mr. DEFAZIO. That is not exactly where I was going. Where I was 

going was that the hair test, since it is not real time and there is 

potential dispute, could be used as an indicator to give us probable 

cause to target that individual for more frequent urinalysis or 

something along those lines. 

Not necessarily a disqualification but say: Well, we notice the 

test shows you have been using drugs in the past. That means you 

are going to be subjected to more frequent random testing. 

Ms. SMITH. And I can tell you that I have seen that used in other 

programs that I have been involved with particularly in the area 

of monitoring healthcare professionals who have had their licenses 

rescinded for substance abuse. 

Mr. DEFAZIO. Then one other, yes. 

Ms. SIGGERUD. Chairman DeFazio, we will be looking at these alternative specimens in our work, in our report that will be issued 

in May. 

Let me just mention a couple things to keep in mind about them. 

I think part of it is we need to decide what it is we are trying to 

accomplish. Are we looking for long term use or are we looking for 

recent use? The urine is useful for recent use; the hair is useful for 

longer term use. 

We have talked with motor carriers who are using hair testing 

as part of a pre-employment test for that very reason and then also 

using urine testing. 

The other issue to keep in mind is, of course, what Dr. Smith 

brought up. In deciding to go a different direction in this area, we 

need to look at the potential to address the two problems that Mr. 

Kutz found, and that is the ability to substitute or to adulterate 

14

and whether the industry that assists with that will sort of ramp 

up and be responsive to a new testing. 

Mr. DEFAZIO. That goes to that requirement. Are you familiar 

with this requirement that DHHS publish a road map on how to 

beat the system and can you tell me what the possible rationale for 

that is? 

Ms. SIGGERUD. DHHS does, in fact, publish in the Federal Register, protocols for testing and ranges within which testing will be 

done. My understanding is that is a Federal requirement. Dr. 

Smith may have some more to say about that. 

Ms. SMITH. I would defer that, I think, for when Mr. Stephenson 

is here. He can tell you exactly the circumstance under which that 

has to be published. 

Mr. DEFAZIO. Okay, we may want to. 

Then, finally, on the job-hopping which was raised and the issue 

of a Federal registry, we had a report in 2004 and from reviewing 

the FMCSA testimony, it seems like they are thinking about it. Is 

that sort of the extent of where we are at here? They are kind of 

thinking about it? 

This is an identified problem. Did you have any discussions with 

FMCSA about the national database and the need for one and the 

job-hopping problem. 

Ms. SIGGERUD. Yes, we have had discussions with FMCSA and, 

in our ongoing work, we also do plan to go to the States that have 

a registry already. There are a number of them across the Country 

and two States that actually not only require reporting but connect 

that then to the provision of the CDL. 

There are a number of issues to be addressed there. Clearly, the 

registry would address two problems. One would be the job-hopping 

issue. The other would be helping employers to comply with the requirement that they do check the previous drug history. The registry addresses both of those. 

Clearly, in setting it up, there are a number of things to think 

about, the resources that would need to be devoted to the registry 

to make sure that it is timely and accurate and then another question of whether, at the Federal level, you want to make the connection to the CDL the way a few of the States are doing. 

Mr. DEFAZIO. Okay, we will look forward to your further 

thoughts on that. 

I do have the full name now. It is the Ross Healthcare Clinic in 

Commerce, California, great citizens. We might want to have 

FMCSA consider whether they want these people to still continue 

to be eligible to apply to do medical exams and drug testing given 

their advocacy for beating the drug test, and that isn’t an advertisement for this company. 

Thank you. I turn now to the Ranking Member, Mr. Duncan. 

Mr. DUNCAN. Well, thank you, Mr. Chairman. 

Ms. Siggerud, you say in your statement that DOT estimates 

that approximately 4.2 million people including truck and bus drivers work in such positions, in other words, commercial driving, and 

that commercial motor carriers 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 

annual highway fatalities. 

15

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 while illegal 

drug usage is not among the most frequently cited factors, appearing as an associated factor in only 2 percent of the crashes, which 

everybody would agree is 2 percent too many. 

I just wonder, do you have faith in that DOT study or, in your 

investigation of this, do you have any reason to question that? 

Do you think that 2 percent figure is accurate? I am just trying 

to learn the extent of the problem here. 

Ms. SIGGERUD. Yes, there are a lot of different ways to think 

about that, Mr. Duncan, but let me just make a few points. It certainly is true that the study, and this is the Large Truck Crash 

Causation Study. It is an ongoing study that was done to investigate crashes post hoc, and it is very comprehensive. 

Mr. DUNCAN. You say it is a long term study? 

Ms. SIGGERUD. It is called the Large Truck Crash Causation 

Study. 

Mr. DUNCAN. How long has it been going on? 

Ms. SIGGERUD. I would have to get that to you for the record, Mr. 

Duncan. 

Mr. DUNCAN. Anyway, it has been several years? 

Ms. SIGGERUD. Yes, it has. The idea of it is it goes out to crashes 

and investigates a number of factors related to them after the 

crash. It does, of course, identify that equipment failure and behavior problems are very significant causes of crashes. Of course, this 

Committee has looked at those issues in other hearings. 

With regard to the amount of illegal drug use going on, though, 

and its contribution to crashes, we really don’t know very well 

what the actual percentage is of drivers that are using drugs. The 

bottom number is certainly the 2 percent that FMCSA identifies. 

The upper bound may be somewhere around the 10 percent that 

hair testing and other testing has shown. So it is fairly difficult to 

know exactly what the causes are. 

Another part of that Large Truck Crash Causation Study did 

say, however, that there is no doubt that illegal drug use does increase the likelihood and the risk of a crash occurring. 

Mr. DUNCAN. I am told by staff that of these four million truck 

and bus drivers that approximately half are tested every year. Is 

that fairly accurate? 

Ms. SIGGERUD. The Federal requirement is that 50 percent of 

workers be tested in a given year, yes. 

Mr. DUNCAN. So I am not sure I understood what you just said. 

Roughly, two million are being tested each year, is that correct? 

Ms. SIGGERUD. That is certainly what the requirement is. We 

have some concerns based on our work. 

Mr. DUNCAN. Well, it may be what the requirement is. What I 

am trying to get at is how many do you think are being tested. 

Ms. SIGGERUD. My guess is when it comes to motor carriers, it 

is probably less than 50 percent. We did find in our work, and 

FMCSA has told us this, that when they go out and do these safety 

audits of new companies that are just getting a DOT number and 

16

entering into the motor carrier business, that they find that 30 percent of those companies have no drug testing program at all. 

So my guess is less than 50 percent of motor carriers’ drivers are 

being tested in any given year. 

Mr. DUNCAN. I am also told that roughly 2 percent of the total 

number of drivers test positive. 

Ms. SIGGERUD. Of those that are tested and where, in fact, the 

test is able to either find a positive test or an adulterated test, as 

Mr. Kutz has said and as we have found, we think that there is 

a higher number that were actually successfully substituting or 

adulterating and not getting caught. 

Mr. DUNCAN. Is it accurate then that 40 percent of those who 

have tested positive go through the return to duty process? 

Ms. SIGGERUD. I don’t have those numbers in front of me, Mr. 

Duncan, but I have no reason to doubt what Dr. Smith said. 

Mr. DUNCAN. All right. 

Mr. Kutz, what is involved in the return to duty process? In your 

investigation of all of this, do you think that the return to duty 

process is sufficient in most instances? 

Mr. KUTZ. We stopped. We actually did the test and stopped. 

Mr. DUNCAN. You didn’t look into that? 

Mr. KUTZ. No, we didn’t look at that. Once we got our negative 

results back, we were done. 

Ms. SIGGERUD. Mr. Duncan, I can comment on that if you would 

like me to. 

Mr. DUNCAN. Yes, go right ahead. 

Ms. SIGGERUD. Once a positive test is reported to an employer, 

what is supposed to happen is the driver is supposed to be removed 

from that safety-sensitive position and then be allowed to go 

through this process which would typically involve education, treatment and a series of drug tests before being allowed to return to 

duty. 

Mr. DUNCAN. Well, is the main problem here not so much in the 

number of drivers being tested, but it is in the fact that it is so 

easy falsify or manipulate these tests? Is that the main problem? 

Ms. SIGGERUD. I would say there are two problems. That is one 

of them. The other is that there is a fair amount of non-compliance 

within the motor carrier community itself in terms of actually getting drivers to enroll in this drug testing program at all. 

Mr. DUNCAN. Dr. Smith, do you feel that the States are being 

harsh enough on the drivers that have these accidents in which 

drugs are involved? 

Secondly, do you question this return to duty process and your 

association, has it been trying to encourage or do something to see 

that the States do get a little tougher in enforcement? 

In other words, in our system, the Federal Government can’t do 

everything. The State and local people have to do some things as 

well. 

Ms. SMITH. Two things, I think that are of note: In the six 

States, and I only have data on three of them, there is a requirement that either the medical review officer or the employer report 

DOT violations such as a positive drug test or refusal to test where 

the specimen is adulterated or substituted and that that information is then put onto that driver’s CDL. 

17

The substance abuse professionals that I have spoken to that operate in those States have seen higher compliance with going 

through the return to duty process because the driver in the State 

of Oregon, for example, okay, knows that positive test is on his 

CDL record. 

In order for him to work in transportation again, unless he 

leaves the State and is able to get a CDL elsewhere, is contingent 

upon him completing the return to duty process that Ms. Siggerud 

just mentioned with regard to a substance abuse professional evaluation, completion of education or rehabilitation and having passed 

a return to duty and then being subject to increased, intensified 

monitoring through follow-up testing in addition to taking his or 

her chances in the random pool. 

So I think that, yes, where States have taken the lead, I think 

that there is an effect. It is only two States I can judge it on. I 

don’t have a lot of data, Mr. Duncan. 

Mr. DUNCAN. All right. 

One last question, Mr. Kutz, what do you think is the best way 

to stop or discourage this cheating or this manipulation of these 

tests that seems to be going on at this point? 

Mr. KUTZ. Well, if you don’t address the actual collection process 

and move towards more of a direct observation, you really have to 

attack these products because these products are so widespread. 

It is interesting that 1 or 2 percent of the people fail. I would 

like to meet those people because it would hard to imagine someone not being able to beat at test if they were fairly skilled and actually bring in synthetic urine. They don’t check your socks, for example. So if you put synthetic urine in your sock, you potentially 

could beat this test 100 percent of the time. 

Mr. DUNCAN. Well, when you say address the collection process 

or get to the products, how do you think we should go about that? 

That is the question. 

How can we stop this cheating, do you think? 

Mr. KUTZ. Well, certainly, with respect to the current process, 

better adherence to the current protocol would help. We found an 

average of four to five out of the sixteen tests we looked at or of 

the protocols we looked were not followed by the sites. So, right 

there, you have a problem with adherence to DOT protocols. 

With respect to improving that process, again, and I am not saying this is the right answer but a direct observation is one certain 

way to know that you are getting the person’s urine. There is still 

potential ways to beat that, but direct observation is certainly a 

stronger test. 

Then again, the products at the end of the process, just it is a 

proliferation of those products. Again, since there is not a real 

search of the person going into the site to take the test, it is very 

easy to hide an adulterant or synthetic urine to get in. 

So it is really there is no silver bullet. I think there are a lot of 

pieces of this that need to be looked at. 

Mr. DUNCAN. All right, thank you very much. 

Mr. DEFAZIO. I thank the Ranking Member. 

I turn now to the Chairman. 

Mr. OBERSTAR. Thank you, Mr. Chairman. 

18

I want to thank this panel for your very thoughtful and in-depth 

review and shocking information that you have provided for us. 

Mr. Kutz, when you got deeply into this investigation and you 

found these products—Whizzies, UrineLuck, Stealth—and guidance 

on how to pass a drug test, and found those products on Craig’s 

List and eBay and Amazon, what was your gut reaction? 

Mr. KUTZ. Well, I wasn’t surprised they were out there, but the 

number of hits you get when you put in, for example, beat drug 

test and pass drug test, it is hundreds of thousands or millions of 

hits out there. So it is just amazing the number of entities that are 

out there that are marketing these products. 

Mr. OBERSTAR. Hundreds of thousands and millions of hits telling the subscriber, the person checking in on the internet, this is 

how you can beat the DOT, flat-out telling them how to operate illegally, right? 

Mr. KUTZ. It is the DOT and any other drug test. I mean it is 

much broader than that, but DOT is specified in many of the web 

sites. We will help you beat the DOT test, guaranteed, 200 percent 

money back return, all those kinds of guarantees. 

Mr. OBERSTAR. And FDA-approved, as Mr. DeFazio pointed out 

there. 

Mr. KUTZ. I saw that representation. Whether that is true or not. 

Mr. OBERSTAR. Wild claim, whether it is true or not, it gets your 

attention right away. 

Mr. KUTZ. Many claims like that, yes. 

Mr. OBERSTAR. But others, than drivers, would be subscribing to 

those list, wouldn’t they? 

Mr. KUTZ. That is correct. 

Mr. OBERSTAR. Dr. Smith, you touched on but didn’t get deeply 

into the issue of making the products, the masking products illegal. 

Has your organization pursued this matter in any depth? 

Ms. SMITH. Yes, we have, in fact. 

Mr. OBERSTAR. You did suggest a Drug Test Integrity act. 

Ms. SMITH. Yes, that was last introduced as, I believe, H.R. 4910, 

and SAPAA did present testimony in a hearing on that particular 

bill. My understanding is it went to Committee and was not acted 

upon or did not go any further. 

Mr. OBERSTAR. That was in the last Congress. 

Ms. SMITH. Yes, sir. 

Mr. OBERSTAR. That was in the Committee on Energy and Commerce. 

Ms. SMITH. That is correct. 

Mr. OBERSTAR. We have that bill. Staff has looked at the Drug 

Testing Integrity Act. I have just made a cursory review of it. We 

need to look at that in greater depth, and we welcome your suggestions as to how we can make it more effective. 

Ms. SMITH. We would be happy to provide that because I think 

it is very essential that we are as comprehensive as possible in the 

language. If you have something like, for example, if you have language that any product that is solely produced or distributed or 

sold to defraud a drug test, you will find that suddenly those labels 

will say a product suitable for cleaning your fine jewelry, okay, for 

making precision instruments operate cleanly and for detoxifying 

body fluids. So now it simply comes. 

19

Now, of course, the product’s name may have something clever 

like Mary Jane Super Clean, wink wink, okay, Mary Jane, of 

course, the code name for marijuana. So I think it is important 

that there be a lot of thought placed into putting together a piece 

of legislation that can have some effect. 

I might also add that I think there are 15 States now that have 

some degree of legislation in this regard. Some of the most successful ones have been ones where it also makes it a criminal offense, 

albeit there are a lot of different levels from misdemeanor to whatever, for the person who is caught using a product. So it is really 

trying to get at the end user as well as the manufacturer, distributor, et cetera. 

I would think that that should be something the Committee or 

whoever would sponsor such a bill should take into account. 

Mr. OBERSTAR. I am glad you elaborated on it because you 

touched on all the follow-up points I was going to raise. You are 

very good. 

Once you say, okay, this is illegal because it has no other valid 

societal beneficial use, then some other application like it is a good 

pesticide can be tacked onto it. 

Ms. SMITH. And FDA-approved. 

Mr. OBERSTAR. This anti-drug effort has to be a multilayered 

issue just like security. Security has to be multilayered. You cannot 

do just one thing. You have to have many applications, many aspects. 

Just as in safety in aviation, we don’t do just one thing. We don’t 

build one practice into an aircraft. We build many backups, 

redundancies. 

So there have to be backups and redundancies in this drug testing, and one of those is to go the origin. Make the product illegal 

so at least there is a way to catch someone doing it and potentially 

shut them down. 

Then the testing, the process of testing and then the user and 

then the company that is hiring the people. One of the later testimonies we will see is a suggestion for a national clearinghouse. 

You suggested a national database, something that I have advocated. 

We also have the National Driver Register which catches over 

350,000, 400,000 drivers a year who lose their license in one State 

and are still able to get a license or try to get a license in another 

State. The NDR has cut those people, prevented them from getting 

licenses. I know a little something about that because I authored 

that legislation 25 years ago, and aviation uses the NDR now. 

Something of this nature and maybe expanding the information 

available through the National Driver Registry would be beneficial 

as well. 

Ms. SMITH. The only response that I have there is, and I am not 

an attorney but having dealt for many years with this with my 

former colleague from the Department of Transportation, Robert 

Ashby, there is a difference or what would have to be adopted, a 

difference from DOT drug tests which are administrative employer, 

et cetera, as opposed to something that has been adjudicated 

through the criminal justice system such as a driving under the influence or a driving while intoxicated. 

20

So, I would agree. Certainly, the NDR has been extremely effective in my opinion with how FAA has used it to identify pilots and 

others who have DWI convictions and that is an indicator of substance abuse or an issue that needs to be dealt with. 

I really do think that it is possible. I know that it will be a cumbersome system because there has to be some type of avenue for 

correction to records that are incorrect. There has to be some way 

to document effectively for the driver who has gone through the return to duty process and has successfully completed rehabilitation 

and therefore should be eligible. All of those things are necessary. 

Mr. OBERSTAR. Thank you. 

Mr. Duncan asked, I think, a key question in this process that 

we are engaged in, that is, is the problem that the tests are easy 

to bypass? We don’t need to rehash the answer because it was a 

very good answer and complete answer. But how do we deal with 

that? 

Mr. Kutz, I know your investigation was aimed at finding the 

issues that you raised, the problems that you have reported on, but 

in the process you and Ms. Siggerud surely have some ideas how 

testing can be made more effective. 

Mr. KUTZ. Well, I would say again you have mentioned that you 

have to look at all the phases of this program. 

Mr. OBERSTAR. Yes. 

Mr. KUTZ. From our perspective, with the covert testing we did, 

from the moment you walked in the door until the point in time 

when the lab actually tested the urine, there were issues with all 

phases of that. 

I can look at it as three phases: You walked in the door with the 

counterfeit ID. You were able to get in. 

You were able to do through the protocols. They didn’t follow a 

lot of protocols and, even if they did, you could substitute the urine 

or adulterate the urine. 

Then when you sent it to the laboratories, the lab was unable to 

detect in the eight cases we did the adulterants or the synthetic 

urine. So you have issues even with the laboratories and what kind 

of testing they are doing and how effective that is. We haven’t discussed that yet even. 

Mr. OBERSTAR. The driver ID was again shocking, but that is an 

issue that the Department of Homeland Security is dealing with for 

a secure identification card for transportation workers. We need to 

engage them in this process of accelerating their development of 

the TWIC and coordinating with other agencies of Federal and 

State Government. We have to engage the States in this process as 

well. 

Then the next is the protocols. What are your thoughts about the 

presence of an observer in the delivery of a sample? 

Mr. KUTZ. Well, again, it gets into the tradeoff between privacy 

and other issues and having an effective drug test. Certainly, direct 

observation is going to be a lot harder to beat than actually going 

into a room and closing the door. 

We did have one instance where the individual actually made our 

agent leave the door open, and we still were able to substitute synthetic urine into the collection cup and beat the test. So it is very 

21

difficult without a direct observation to actually catch someone trying to cheat. 

Ms. SIGGERUD. Mr. Oberstar, if I could add to that. 

Mr. OBERSTAR. Yes, Ms. Siggerud. 

Ms. SIGGERUD. I think the thing to keep in mind in expanding 

in that direction, which would be much more labor-intensive than 

the current approach, of course, is that not only are we talking 

about motor carriers but transit workers, rail workers, aviation 

workers, et cetera, the vast majority of whom are not using drugs. 

Having a directly observed observation for people who are likely 

not criminals, I think, would be a very big step to take. 

Mr. OBERSTAR. And could be very hugely labor-intensive, no 

question about it. I know that. 

Look, in bridge testing, we had testimony just last week in Mr. 

DeFazio’s hearing on legislation and we reported yesterday on a 

bridge safety program, that the State of Minnesota has only 77 inspectors for 14,000 bridges. They don’t have enough people to do 

that job. Imagine trying to deal with seven million drivers in this 

Country. 

Well, we need to think this through. 

What about the lab test? Wouldn’t that be something more amenable to management, that Federal and State Governments could 

actually exercise control over the labs that are doing the testing? 

Mr. KUTZ. I think HHS does exercise some oversight of the labs, 

certainly. Again, getting into the issue of whether the labs are actually testing for synthetic urine or dilutants, right now for this 

test, the DOT test we did, we don’t know whether they were checking for the synthetic urine or the adulterants. They are authorized 

but not required to, and so that is another thing, certainly. 

Mr. OBERSTAR. We need to close that loophole then. 

Mr. KUTZ. That could be a loophole in addition to what Chairman DeFazio said with respect to the advertising for these people 

out there, what actually they are testing for and what kind of 

things are out there. That is something that needs to be looked at. 

That could be a simple fix so that these people who are out there, 

devising products to beat the system, don’t know everything they 

need to know. 

Mr. OBERSTAR. We absolutely have to crack down, I think, on 

that advertising on the internet how to beat the DOT. That is 

something within our ability to do. If we have the chip for parents 

to prevent their kids from being exposed to bad TV, we ought to 

be able to do something like this. 

All right, I have gone on way too long, but I am exercised about 

this. 

Mr. DEFAZIO. Thank you, Mr. Chairman. 

Just one very quick point, I believe a lot of the airlines—I have 

heard complaints from the employees—do direct observation because you mentioned, Ms. Siggerud, FAA, but I think they do. 

No? You are shaking your head. No, okay. 

Ms. SMITH. Under Federal authority, any employer in transportation, whether it is an airline or whether it is a motor carrier, is 

limited to just six very specific circumstances where they can do direct observation. Those, under the regulatory scheme, have been 

22

identified as instances where the employee or the candidate has a 

lowered expectation of privacy. 

For example, a flight attendant who has a positive test and now 

must undergo follow-up testing, the airline can do every single one 

of those follow-up tests under direct observation. 

Mr. DEFAZIO. All right, so it is sort of a probable cause thing. 

Okay, thank you. 

Mr. Boustany will go ahead with his questions. 

Mr. BOUSTANY. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Mr. Chairman, we have a doctor here now. Maybe 

he can help us get to the bottom of this. 

Mr. BOUSTANY. Human ingenuity is truly amazing especially 

when used for devious purposes. With that having been said, it 

leads me to doubt whether we can actually truly regulate and 

eliminate the use of adulterants. That is going to be a difficult 

problem. 

In looking at this, I sort of broke it down into test integrity, looking at the collection process and looking at the lab accuracy and 

reporting. Then there are lab compliance and certification issues, 

what is the role of the State versus the Federal DOT in laying out 

those kinds of guidelines. 

Reporting, a database, then what you mentioned, a Federal database or should there be State databases with sharing of information. 

Then the effectiveness of the return to duty process. I guess I 

have so many questions, it is going to be impossible to ask them 

all, but I will start off with the return to duty process. How really 

effective is it right now? 

Ms. SMITH. It is my opinion from being in this industry for a 

number of years that it is minimally effective. I think that the 

problem that we have of under the Department of Transportation 

regulations a motor carrier nor any other employer is required to 

give a person an opportunity for rehabilitation, hold their job open 

and then monitor their after-care. 

It is my experience that in particularly the motor carrier industry, the majority of trucking companies where a driver is positive, 

they terminate them. They fire them on the spot. 

They are required by the DOT rules to hand them with their 

pink slip in one hand, in the other hand, by the way, here is the 

name and address of a qualified substance abuse professional. Go 

and get thee help. 

Mr. BOUSTANY. But we don’t know what happens to them afterwards. 

Ms. SMITH. Our information shows that clearly less than 40 percent of those ever follow through with that substance abuse professional referral. 

Mr. BOUSTANY. So, they leave. Some of them can leave the State, 

go get a CDL in another State by just not revealing information, 

and so we have major loopholes in that system or that issue alone. 

Another question, I am a physician but I am not an expert on 

laboratory science. Is there some general agreement on standards 

used to detect drug use and abuse, combinations of random testing 

with scheduled testing? 

23

Is there some general agreement that give you 90 percent confidence, 95 percent confidence or so on? 

Ms. SMITH. The best data that are probably available on that 

comes from the years of the U.S. Military’s drug testing program 

in terms of at what percentage, for example. 

Ms. Siggerud mentioned that the current percentage in the motor 

carrier industry is 50 percent random annually. 

In terms of looking at a population that you make some assumption of, what percentage random testing gives you the optimal deterrence, for example? 

What are the odds, if you will, that a person will be found, will 

be identified on a pre-employment drug test when they have had 

two or three days notice to clean up and not use drugs and knowing the detection level, et cetera? Those kinds of data are available. 

I can tell you in terms of trying to estimate the scope of the problem, a formula that has long been in place is if your random testing 

positive rate is, let’s say, 1 percent, using urine drug testing with 

the detection windows available, given the statistical manipulation, 

your best estimate is that the actual prevalence of current use is 

3 and a half times that percentage. There are limited studies available, sir, but that is the best that we have been able to do. 

Mr. BOUSTANY. Thank you. 

In terms of looking at laboratories and trying to make sure that 

laboratories are doing all that is necessary with regard to collection 

standards, accuracy reporting and so forth, what is the role of the 

State and State DOT versus Federal in that? 

Typically, labs and the practice of medicine is sort of a State-regulated issue. Could you comment on that interface? 

Ms. SIGGERUD. Mr. Boustany, this is a Federal program that we 

are talking about. So the collection sites are expected to follow 

standards and training established by the Federal Government. 

The medical review officers are again following standards established by the Federal Government. 

Mr. BOUSTANY. Federal guidelines. 

Ms. SIGGERUD. The laboratories that test the specimens are regulated by the Department of Health and Human Services. 

Mr. BOUSTANY. Okay, because clearly there is going to be a need 

to try to tighten all that up or do you feel that the standards are 

appropriate and it is just that the laboratories are not following the 

standards? 

Ms. SIGGERUD. I want to make a distinction here between collection sites and laboratories. 

Mr. BOUSTANY. Right. 

Ms. SIGGERUD. A lot of the issues we have talked about today 

have been more on the collection site side and whether those protocols are being followed and whether even when they are whether 

they can be subverted. 

The laboratories then are, of course, regulated by the Department of Health and Human Services, and we have not focused as 

much on whether there are particular issues there. We have a later 

witness on that, of course, but Mr. Kutz did find the laboratories 

were unable to identify some of the adulterated specimens that his 

investigators submitted. 

24

Mr. KUTZ. Right, of the eight specimens we submitted, four of 

them were synthetic urine and four were adulterated. The urine we 

adulterated was clean urine. So we don’t know whether an 

adulterant would have actually worked for a drug user, but the 

synthetic urine also produced a negative test result. 

We didn’t know whether the labs would be able to catch it or not. 

We weren’t certain of that. 

Mr. BOUSTANY. Okay. I mean we need to focus on both sides of 

it, the collection side and the laboratory accuracy piece. 

Mr. KUTZ. Yes. 

Mr. BOUSTANY. Thank you. That is all I have, Mr. Chairman. 

Mr. DEFAZIO. Thank you. 

We have only seven minutes until the vote. Do you want to do 

your five minutes now, Grace? 

Okay, go ahead, Mrs. Napolitano. 

Mrs. NAPOLITANO. Very quickly because I know we have to get 

out, the test integrity itself is questionable, of course. Some of it 

is done not in labs, right? Am I correct? So their validity is in question. 

What about employees of the labs? 

My reading of the staff memo indicates that there is a high turnover. Is there a question? Have you validated the integrity of the 

employees themselves in the labs? 

Ms. SMITH. I think again, if I can respond to that, that comment 

was intended for the collection sites, these 10,000 doctors’ offices, 

clinics, patient service centers. 

There are only approximately 57 laboratories that actually do the 

analysis of the specimens, that are certified by the Department of 

Health and Human Services, but there are all of these other collection sites where the process begins. 

Mrs. NAPOLITANO. There are no penalties for the employee who 

is found with dirty urine, am I correct? 

In other words, they can just be referred and hopefully they will 

go. Like you say, 40 percent might go. What happens? Is there a 

way to be able to make it mandatory referral or a penalty if they 

do not to be able to keep this employee from not revealing a prior 

dismissal based on dirty urine and then go and find another job 

and put people in jeopardy? 

My concern has been because I live in an area where the Alameda Corridor has thousands of trucks a day. Many of them come 

through my district. My concern is the safety of the people and how 

are those truck drivers able to maintain if they are on amphetamines, and I don’t see anything here related to alcohol, just drugs. 

Ms. SIGGERUD. Mrs. Napolitano, there is an alcohol program. We 

have just really focused our statements today on the drug testing 

program. It may be that there are witnesses who can talk more 

about that, but our focus is on the drug testing. 

I do want to be clear that for employees that have a positive test, 

their employers are required to immediately move them from a 

safety-sensitive position. So, in other words, they are not allowed 

to keep driving. Then there is this referral to this rehabilitation 

and treatment process. 

Mrs. NAPOLITANO. I know, but it is not mandatory; it is voluntary. 

25

Ms. SIGGERUD. The treatment process is voluntary, that is right. 

Mrs. NAPOLITANO. Then they go and find another job and not 

refer to their prior employment. 

Ms. SIGGERUD. In fact, that appears to be quite common in that 

they may go and apply for another job and not ever reveal that 

they worked at the employer where they had the positive drug test. 

Mrs. NAPOLITANO. Well, Mr. Chair, I will stop now so that we 

can get to the vote, but I would like to be able to have a second 

round. Thank you very much. 

Mr. DEFAZIO. I thank the gentlelady. I thank her for using her 

time so efficiently. 

We will now recess the hearing. There are three votes. We should 

hopefully be back in about 20 minutes. 

[Recess.] 

Mr. DEFAZIO. Let’s get organized here. 

I would recognize the gentleman from Texas, Mr. Poe. 

Mr. POE. Thank you, Mr. Chairman. 

I am impressed with the GAO’s ability to get to the truth, and 

I appreciate all three of you, your candor in testimony instead of 

double-talk which we seem to hear a lot of down here. 

I have three questions. You have described, I think, and very detailed the total, in my opinion, lack of the ability to test people who 

are driving these 18 wheelers throughout the Country. 

In spite of the fact this Committee and the sense of the House 

is that the Administration should not move forward with bringing 

in Mexican trucks, of course, we got the assurance from the Transportation Department that all these truck drivers coming in from 

south of the border are going to be tested, drug tested. 

Do you have any comments at all on the ability of Mexico to test 

its truck drivers that are coming into the United States? Do you 

know anything about their labs, their sampling, their process, if it 

exists? 

Ms. SIGGERUD. We have not looked at that in our ongoing work 

in GAO. 

Mr. POE. I am not sure you would be able to find any of those 

labs down there in Mexico. But if at some point the GAO needs another project, maybe that would be a good one to find out what is 

happening because now we are bringing in thousands of more 

truckers into the United States, and we have no control over that 

testing procedure. It disturbs me a great deal. 

When I was on the bench in Texas for forever, we had the same 

problem of drug testing. We found that hair samples was one of the 

best ways to find out if people continued to use drugs. I say that 

to get to the second question. 

What is your opinion about you can call it a national database 

or registry system? 

A truck driver goes to business one. He flunks for whatever reason, whether he is using methamphetamines, amphetamines or 

anything else, cocaine. 

So he waits it out and then he goes to the second business, another trucking company. Am I correct that the second business has 

no record that he flunked the test with the first business? Is that 

a correct statement? 

26

Ms. SIGGERUD. Mr. Poe, that is a correct statement as long as he 

did not reveal that on his job application. 

Mr. POE. Well, you know some of them might even tell them but 

probably not. 

What is your opinion of having a system where a person flunks 

at trucking business number one and trucking business number 

one puts the driver’s license, the social security number, something 

into a registry that is monitored, supervised by the Federal Government, not paid for by the taxpayers but supervised by the Federal Government, where the trucking industry itself is able to pull 

up individuals to find out if they flunked with one business or another? 

Do you have an opinion on something like that? 

Ms. SIGGERUD. Mr. Poe, we are looking at that in our ongoing 

work. It is important to know that there are a couple of States that 

are doing that. So we plan to look at those to see how those models 

are working in terms of getting the information out, in terms of accuracy, timeliness and the extent to which then motor carriers are 

able to act on that information. 

The Motor Carriers Administration did do a study on this concept a few years ago. It was largely a positive study, feeling that 

it would deal with really two problems. One being the one you 

mentioned of moving from job to job without revealing a past drug 

test. The other being that motor carriers are expected to comply 

with Federal requirements to actually do an inquiry in this area, 

and it is difficult for them to do so if they don’t have the information that they need. 

So we will be looking into that as a concept to address several 

of the problems that we have outlined in our statement today. 

Mr. POE. With the States that are doing this, is it paid for by 

the trucking industry? 

Ms. SIGGERUD. I do not have that information, Mr. Poe. 

Mr. POE. It would seem to me that it would be advantageous for 

the trucking industry to finance that some way because as a trial 

lawyer, if a guy flunked one place and he goes some place else and 

he is in a wreck, I would be suing that company because they 

didn’t have due diligence about the first situation. So it seems like 

it would be to their interest, plus highway safety, to have such a 

system. 

Lastly, do you think the system is feasible by having the trucking industry support the system? 

Ms. SIGGERUD. I really don’t have a comment on that, Mr. Poe. 

Mr. POE. Okay. Thank you, Mr. Chairman. 

Mr. DEFAZIO. Thank you, Mr. Poe. 

At this point, I think we are going to move on to the next panel. 

I do have just one question since he raised the issue of Mexican 

trucks. I was at the border 10 days ago with the Secretary, and 

they are doing inspecting the trucks at the border, but my understanding is that the drug testing is being done within the commercial zone but not at the border. So it is being done through collection facilities within the commercial zone. 

Do we have any inclination or information that those are operating in a different way than the problems we have identified here 

with collection facilities? 

27

Ms. SIGGERUD. In our discussions with FMCSA staff, they had 

told us that they have sent additional personnel into those zones 

to pay more attention to those collection sites than they typically 

do in other parts of the Country. 

Mr. DEFAZIO. Okay, so they will be inspecting more than 2 percent of them on an annual basis. 

Ms. SIGGERUD. That is my understanding. 

Mr. DEFAZIO. Right, but of course even if they are following the 

standards, as Dr. Smith has said, basically only an imbecile could 

not figure out how to beat the test following the standards. 

Ms. SIGGERUD. I mean, as we said in our statement, that even 

if you have full compliance with all aspects of the drug testing program, there are still ways that drivers that use drugs can continue 

to drive a motor vehicle. 

Mr. DEFAZIO. Right, okay. Thank you. 

I am sorry. Mr. Boozman came in. 

John. 

Mr. BOOZMAN. Thank you very much. 

Very quickly, Mr. Chairman, do we have the same problem 

across the board with physicians when they go, when they are 

being monitored, airplane pilots, people that work on trains, things 

like that? 

We are really talking about two things. We are talking about the 

problems of the industry as a whole and the drug testing industry 

and then the other thing specifically as it occurs with the truck 

drivers. Do we see the same thing, Dr. Smith? 

Ms. SMITH. We do not see the same thing particularly in the 

aviation industry or in the railroad industry. 

Mr. BOOZMAN. How do they do it differently? 

Ms. SMITH. They are different I think because, for example, in 

the rail industry, it is our experience that the vast majority of 

those specimen collections are actually done on railroad property 

with very well trained and dedicated teams who come in and collect 

the specimens. There is almost always a supervisor present from 

the railroad as an example. 

Aviation, the vast majority of random tests, et cetera, on aviation 

safety-sensitive personnel are also similarly conducted at airport 

property or aviation company property, frequently again using personnel that are trained, that do that month after month in comparison to others. 

Mr. BOOZMAN. So we have a much looser process with the trucking industry. 

Ms. SMITH. Well, certainly, because the driver that works for an 

over the road hauler, for example, might have a random test done 

in any of 48 States near any truck stop or near wherever, and so 

it is extraordinarily difficult for the motor carrier to control that. 

Mr. BOOZMAN. Right. 

Mr. Kutz, under the things that you all found, under current law, 

was there anything that was considered criminal, the violations 

that you saw? 

Mr. KUTZ. No, not necessarily. No. 

Mr. BOOZMAN. Has there been any criminal prosecution of the industry for any of these things that any of you all are aware of? 

28

Ms. SIGGERUD. Mr. Boozman, let me take a step back and answer 

that a couple of different ways. I mentioned in my statement that 

there is still a fair amount of non-compliance found with FMCSA 

does compliance reviews of motor carriers themselves in terms of 

having a program that meets the Federal standards. In those cases, 

FMCSA does have the ability to use fines and compliance orders, 

for example, to try to get that motor carrier to get its drug testing 

program up to snuff. 

With regard to the collection site issue that we have been talking 

about, FMCSA does not have that same enforcement authority. 

What it can do is take steps to remove that particular collection 

site or set of collection sites from the DOT drug testing program. 

Mr. BOOZMAN. So have they ever done that? Have they removed 

sites? 

Ms. SIGGERUD. There have been a number. It is called a public 

interest exclusion. There have been a number of these efforts started. To my knowledge, in most cases, either the collection site has 

dropped out of the program or come into compliance. 

Mr. BOOZMAN. But they really haven’t kicked anybody out? 

Ms. SIGGERUD. Not that I know of. 

Mr. BOOZMAN. I guess the only thing I would say is it doesn’t 

really matter what we do if there is no enforcement mechanism. It 

just doesn’t work. See what I am saying? 

Ms. SIGGERUD. The enforcement issue with regard to collection 

sites is one that I think both the Motor Carrier Safety Administration and this Committee should be considering. 

Mr. BOOZMAN. Okay. Thank you, Mr. Chairman. 

Mr. DEFAZIO. I thank the gentleman. 

Mr. Duncan. 

Mr. DUNCAN. Just very briefly, Mr. Chairman, obviously we can’t 

really know or we don’t really know at this point how many of 

these two million tests each year are bad or illegitimate or cheated 

on or whatever, but the implication or the gist of your testimony 

is that cheating or falsifying these tests is pretty widespread and 

rampant primarily because of all the goods that are being advertised over the internet and for other reasons. 

What I am getting at it this: Law enforcement, they know they 

stop just a very tiny percentage of the speeders each year. They 

catch a much higher percentage of the more serious crimes, but 

even thousands of murders go unsolved each year. 

What I am wondering about is this: Instead of doing two million 

tests that we regard as joke tests or questionable tests, would we 

be better off to go on the deterrence theory of most law enforcement? 

Most law enforcement is based on the fact that while we know 

we are not going to solve even a tiny fraction of these crimes, at 

least there is a deterrence value out there that they think stops 

many other people from committing the crime. So would we be better off with some much lesser number of tests but tests that would 

be clearly legitimate, that would be random, that would be personally observed and tests that would be thorough and authentic, 

50,000 or 100,000 of those? 

Would we better off with something like that or are we better to 

stay with the system that we have? 

29

Mr. KUTZ. I would just comment on that. I think everything 

should be on the table here. I mean everybody is looking same 

thing, an improved process. I don’t think anybody is happy with 

the results of what we have had today, and certainly I wouldn’t be 

happy with respect to us going in 24 out of 24 times and potentially 

beating this test. 

Something different has to be done, and that could be an option 

that should be on the table. I mean I wouldn’t dismiss it necessarily. 

Mr. DUNCAN. All right. Anybody else want to comment? 

Ms. SMITH. I honestly believe that the Department of Transportation’s drug and alcohol testing program and policy is well founded and well crafted. I think that it can be effective and, despite its 

shortcomings that we have talked about here today, I think there 

are some statistics that show that it has been effective from a deterrence perspective in terms of reducing the prevalence of illicit 

drug use by workers in the transportation industries over the past 

10 years. 

If we can but fine-tune the program that we have in the areas 

that we have talked about today, I am convinced that it can be and 

is an effective Federal program for the deterrence and detection of 

illegal drug use. 

I am talking about national databases to prevent going from 

State to State or job to job. I am talking about making mandatory 

specimen validity testing and giving the laboratories and HHS 

more bulk to be able to go after the people that produce these substances. I am talking about being able, again, to utilize the PIE 

and other processes to weed those providers that are not committed 

to following the procedures and upholding the integrity of the process. 

I don’t think the system, in terms of the rules, the program, is 

broken. I think the execution in terms of its enforcement is where 

our problems lie. 

Mr. DUNCAN. All right. Thank you very much. 

Mr. DEFAZIO. I thank the gentleman. He provoked one last question from me, and then we will move on. 

You said in the last 10 years, we have seen a big improvement, 

but since 1997 we have the 1.6 to 2.0 percent reported problem. Oregon has the 9 percent. We have self-reporting at 7.4. Since we 

have had that consistency in the most conservative number over 

those 10 years, I don’t know how we can say that we have made 

big progress. 

Ms. SMITH. You are right in terms of looking if you only look at 

drug test positive numbers, but I would suggest that there are 

other barometers for measuring the effectiveness of this program 

as a deterrent. 

If you look, for example, to the Department of Health and 

Human Services household survey data, which admittedly is selfreport but nonetheless has had a standardized series of questions 

over the years, you can see that those individuals when polled 

anonymously who work in transportation industries today, who say 

they are current users of illicit drugs, is less than those who responded to that same question, workers in transportation industries, 10 years ago. 

30

You have not seen the same significant decrease in the general 

population at large. You have seen some decrease. 

I think that is but one measure, sir. Granted, it doesn’t necessarily prove my point. 

Mr. DEFAZIO. Sure, I appreciate that. 

Okay, I thank this panel for their excellent testimony. 

Here is the way I would hope to proceed. I appreciate the indulgence of time that John Hill, the Administrator, and Robert Stephenson from SAMHSA have shown. 

What I would like to do is I won’t put you last, but I think it 

would be instructive to hear from North Carolina and Oregon because I think it raises, first, we have a State that has addressed 

a lot of problems that have been laid out here today as far as I can 

tell from their testimony and then we have the question of is there 

a bigger problem from Oregon. So if you can possibly hang in, I 

would like to do it that way. Thank you. 

We would now have Mr. John Wilburn Williamson and Sergeant 

Alan Hageman. We will start with Mr. Williamson. 

I have read your testimony. You are not bound by it. If you want 

to read it, that is fine. If you want to depart from it given the preceding panel, we would be happy with that too. 

Go right ahead. You have five minutes. 

TESTIMONY OF JOHN WILBURN WILLIAMSON, ASSISTANT DIRECTOR FOR DRIVER AND VEHICLE SERVICES, NORTH 

CAROLINA DIVISION OF MOTOR VEHICLES; SERGEANT ALAN 

HAGEMAN, PATROL DIVISION SUPPORT/LOGISTICS, OREGON 

STATE POLICE 

Mr. WILLIAMSON. First of all, I would like to take the opportunity, Mr. Chairman and Members of the Committee to let you 

know how honored we are to be here today, representing the great 

State of North Carolina, Governor Mike Easley and the Department of Transportation and our Division of Motor Vehicles. 

In late 2004, we were approached by the North Carolina Public 

Transportation Association with a problem they had with transit 

drivers testing positive for drugs and alcohol, being dismissed from 

employment and a few weeks later, when the driver felt comfortable, he or she would test negative for pre-employment testing, 

be hired by another transit company and driving a passenger bus 

the next day. 

The Association and Division worked jointly on legislation which 

would address this problem. This joint effort resulted in the Positive Drug Test Reporting Law. That bill was signed by Governor 

Mike Easley and became effective on December 1 of 2005. 

The law states that an employer who has an employee, who tests 

positive for drugs or alcohol per the Federal regulation, must report the positive to the Division within five days of receiving notification from a lab that the driver had tested positive. Once the Division receives notification of the positive results, we send the driver 

a letter. 

This letter gives the effective date of the disqualification, which 

is 20 days from the date of the letter, and informs the driver that 

a preliminary hearing is allowed. If the driver requests a hearing, 

31

he or she must do so within 20 days. The hearing may only address 

the testing protocol and procedures used by the lab. 

Once the driver is disqualified, the motor vehicle record will 

show the date of the disqualification followed by the general statute number. The motor vehicle record will not indicate directly the 

reason for the CDL disqualification. 

For a driver to end the disqualification, the Division must receive 

verification from a substance abuse professional that the employee 

driver has successful completed a substance abuse assessment program. The disqualification will end on the date the completion is 

received by the Division of Motor Vehicles. The disqualification history remains on the motor vehicle report for a period of two years. 

The statistics which I am about to give you are from the positive 

tests reported to us from February, 2006, when we received our 

first positive, through October 17th of this year or about 20 

months. During that time, we have received 544 positive tests that 

have been reported to us, 357 of which remain currently active disqualifications. 

One hundred and fifty of the drivers who tested positive have 

completed the substance abuse assessment program. We have 20 

current pending disqualifications sitting there in that 20 day window. Seventeen reported positives were not disqualified due to the 

completion of the substance abuse assessment program prior to the 

disqualification going onto the record or going into effect. 

North Carolina has had 62 hearings requested and only 49 actually conducted. There were 13 that were canceled or the driver did 

not appear. 

North Carolina has had no official media campaign, and the 

motor carrier or the employers are learning from the new law by 

contact with the North Carolina Highway Patrol Motor Carrier section which conducts motor carrier audits. The North Carolina 

Trucking Association web site has information about our program. 

The North Carolina Federal Motor Carrier Safety Administration, the motor carrier auditors who go out and audit these motor 

carriers as well and the North Carolina Division of Motor Vehicles 

Commercial Driver’s License compliance officers as well are out 

there doing audits. 

With over 325,000 CDL holders and approximately 23,000 interstate carriers in North Carolina, unfortunately, we firmly believe 

we have only scratched the surface to a problem that exists statewide. 

Some key program benefits are North Carolina disqualifies the 

driver from driving legally until he or she has completed the substance abuse assessment program. WE provide an incentive to the 

drivers with a substance abuse problem who, for the first time, are 

given an incentive to receive treatment and address their problem. 

Equally as important, by placing the disqualification on the 

motor vehicle record, the Division is collecting data as it pertains 

to the positive tests. This helps the trucking industry identify problem drivers and protects the motoring public. 

An example of this is of the 544 positives, 53 have been reported 

from the school bus driver population. Of the 53 positives, we know 

that 27 tested positive for marijuana, 23 for cocaine, 1 for amphetVerDate 0ct 09 2002 11:07 Apr 08, 2008 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 P:\DOCS\38866 HTRANS1 PsN: JASON
32

amines, 1 for alcohol and 1 just flat-out refused to take the test 

which is also reportable as a positive. 

The ability to collect such data is benefit alone for North Carolina to justify the cost to the taxpayers and more than enough to 

justify our time and efforts with this highway safety initiative. 

In closing and on a personal note, I have learned a valuable lesson while working on this program. We in the highway safety field 

must keep an open ear to all private sector groups who have an 

interest in highway safety. The North Carolina Public Transportation Association had a problem. We learned the problem not only 

affected them but affected the segments of the entire commercial 

industry. 

North Carolina Division of Motor Vehicles Commissioner Bill 

Gore, Jr., and Deputy Commissioner, Wayne Hurder would like to 

publicly thank the North Carolina Public Transportation Association, the North Carolina Trucking Association and its president, 

Charlie Diehl, for all their support and the North Carolina Administrator for FMCSA, Chris Hartley, and his staff for their assistance. 

The North Carolina Division of Motor Vehicles web site has instructions and information on our law, Positive Drug Testing Reporting, and you may go there at www.ncdot.org/dmv/forms. 

Thank you for giving me the honor to be here and speak with 

you today. 

Mr. DEFAZIO. Thank you, Mr. Williamson. 

Sergeant. 

Mr. HAGEMAN. Thank you. Chairman DeFazio and distinguished 

Members of the Subcommittee, I first thank you for the honor of 

speaking before you today. 

I am Alan Hageman. I am a sergeant with the Oregon State Police assigned to the Patrol Division at general headquarters, and I 

am here today to briefly summarize Oregon’s finding in drug testing of our truck driving population and to make a single recommendation which I believe will improve our performance in reducing the number of impaired motor vehicle drivers on our highways. 

Just a brief summary of what we have found as we have been 

conducting these what we call trucker checks since the fall of 1998. 

It was the division of now retired Captain Chuck Hayes. 

Basically, what these trucker checks involve is 72 hours straight 

of operation at any of our seven ports of entry where these trucks 

come in. They are randomly chosen for enforcement of the Federal 

Motor Carrier regulations of both drivers and their equipment. We 

also have an emphasis of looking at drivers for impairment of either alcohol, drugs or fatigue. 

One of the things that Captain Hayes wanted to introduce in the 

first trucker check, which he did, was urine testing. To maximize 

the participation, he asked that it be voluntary and anonymous so 

there would be no inhibition about giving urine. He had very high 

compliance in that. He repeated it again in the fall of 1999. 

The first time we did this, we were surprised. We got results 

back that about 9.5 percent of the urine samples tested positive for 

one or more of the drug categories that were tested. 

33

Again, we repeated this in 1999, and the results were up around 

15 percent due to an increase in amphetamines. I have no explanation for what that spike is in amphetamines and we haven’t seen 

it since. 

In any case, now under the leadership of Captain Gerry Gregg, 

there was an interest in revalidating this study. So last April, we 

did another trucker check, this time in Woodburn, and we did the 

same tests. We conducted the whole trucker check under the same 

template as we did under the original ones, and we again received 

results of about 9.5 percent. 

Backing up a little bit in my testimony, our Oregon legislature 

in 1999 did take some legislative action to address what was being 

discovered then which was designed to exceed the U.S. DOT testing 

requirements found in Part 40. Unfortunately, the language is 

crated in such a way that it doesn’t have a lot of teeth. So, as I 

speak to you right now, the Oregon DOT is developing another legislative concept that will enhance the existing statutory language. 

Currently, the only two States that I could locate that have good 

legislation in this area are Washington and North Carolina. 

Oregon can become very proactive in drug testing. However, the 

interstate nature of trucking severely limits the effectiveness of Oregon’s effort unless there is interstate uniformity. That is why I am 

here to ask you to consider that we have some type of a nationwide 

clearinghouse which would report all positive tests including refusals. The interstate motor carriers should be required to contact this 

clearinghouse before employing any driver. 

It has been a privilege to speak before you today, and I hope 

what I share with you has some value in improving our safety of 

our Nation’s highways. I am honored to answer any of your questions. 

Mr. DEFAZIO. Thank you. 

Mr. Williamson, the programs, I like what you said in terms of 

it certainly would give an incentive to someone who has to make 

a living driving, that they need to get their record cleared up. Who 

established the criteria for the programs to make certain that the 

person goes through a real treatment program? Does the State 

monitor those programs? 

Mr. WILLIAMSON. Yes. Well, actually, that list comes from the 

Federal Motor Carriers. We also send a list of substance abuse assessment professionals who can handle that treatment when we 

send that letter out of notification of disqualification. Yes, sir. 

Mr. DEFAZIO. Then on the issue of your database, who can access 

that, under what conditions? 

Mr. WILLIAMSON. Currently, that is strictly an in-house thing. 

Our adjudication branch, we have two hearing officers who have 

access to that system. The facility or the room where we keep these 

records that has its own fax machine, its own phone line and everything comes in there and stays in that area. So there is an area. 

We do consider that a private type situation. 

Mr. DEFAZIO. Your hook is you have taken their State license, 

but we have been talking about a different clearinghouse concept 

in the first panel where a prospective employer could get a hit, yes 

or no. You don’t allow that because you are figuring since you have 

34

taken the person’s license, no one would need to contact you. You 

don’t need to provide access to prospective employers. 

Mr. WILLIAMSON. Well, actually, what occurs when we receive 

notification and the person does not request a hearing, that disqualification goes on that individual’s motor vehicle record. It 

shows CDL disqualification. It gives the general statute number 

and being on his motor vehicle record, it is record to just that. 

Whomever, by the Driver Privacy Protection Act, who would have 

access legally to that motor vehicle record would see that on there. 

Mr. DEFAZIO. Which would be a prospective employer with a release could access that. Does it require a release? 

Mr. WILLIAMSON. That is correct, sir. 

Mr. DEFAZIO. Yes, okay. You feel that the process that you have 

put in place with the 20 days for the hearing and that because we 

had concerns earlier about someone having recourse if they felt the 

test wasn’t properly administered or whatever. 

You haven’t had people go on and appeal and then subsequently 

litigate and claim that you didn’t give them a fair hearing and the 

system wasn’t adequate to clear their name and they are unjustly 

accused. Have you had any litigation like that? 

Mr. WILLIAMSON. No, sir, we have not had any challenges as of 

this point. Just they would come to the hearing, and that is about 

it. 

Mr. DEFAZIO. Sergeant, someone mentioned Oregon earlier, saying what do we do in terms of what record. When someone is found 

to have a positive drug test, what are we doing in Oregon? 

Mr. HAGEMAN. The medical review officers are required to report 

that to Oregon DOT, more specifically, DMV. 

The problem is kind of lingers in a database that no one is required to access and no one is required to disclose. It only includes 

positives. It doesn’t include refusals. So there is this database that 

basically is, for all intents and purposes, meaningless. 

Mr. DEFAZIO. Right, and that is something the legislature or policymakers are looking at to make that more useful and more inclusive? 

Mr. HAGEMAN. Yes, Chair DeFazio, I think we are looking at 

North Carolina as sort of a template on that and do the same as 

disqualifying the driver until steps are taken to correct it. 

Mr. DEFAZIO. All right. 

Mr. Duncan. 

Mr. DUNCAN. No questions, Mr. Chairman. 

Mr. DEFAZIO. Okay. Well, I thank you. I think you contributed 

to the dialogue here and now you might hang around and hear 

what the Administrator’s response is. Thank you very much. We 

appreciate your testimony. 

With that, again, I thank Administrator Hill for his very generous allocation of time and also—I lost track of my agenda here—

he is accompanied by Mr. Jim Swart, Acting Director, Office of 

Drug and Alcohol Policy and Compliance, and then Mr. Robert L. 

Stephenson, Director, Division of Workplace Programs, Substance 

Abuse and Mental Health Services Administration. 

We would start with Administrator Hill. I have read your testimony, but you are free to do with your five minutes as you wish. 

I realize there are sometimes constraints put upon officials by their 

35

higher-ups in terms of what you can do or depart from, but go 

ahead. 

TESTIMONY OF THE HONORABLE JOHN HILL, ADMINISTRATOR, FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; ACCOMPANIED BY JIM L. SWART, ACTING DIRECTOR, 

OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE, 

U.S. DEPARTMENT OF TRANSPORTATION; ROBERT L. STEPHENSON, II, M.P.H., DIRECTOR, DIVISION OF WORKPLACE 

PROGRAMS, SUBSTANCE ABUSE AND MENTAL HEALTH 

SERVICES ADMINISTRATION, DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Mr. HILL. Thank you, Mr. Chairman and Ranking Member Duncan. I appreciate the opportunity to give the FMCSA side to this 

issue in your interest in highway safety. 

We are responsible for regulating about 4.2 million employees 

and 600,000 employers. FMCSA has an aggressive program to examine compliance with the drug and alcohol regulations through 

roadside inspections, safety audits, and compliance reviews. 

The Agency also takes every opportunity to educate the industry 

regarding the drug and alcohol testing regulations, and data indicates that CMV operators are among the safest transportation 

workers in the U.S. 

NHTSA’s Fatality Analysis Reporting System, otherwise known 

as FARS, from 1997 to 2006 showed alcohol intoxication averaged 

1 percent in crashes each year. It should also be noted that the alcohol intoxication level for a commercial vehicle operator is at .04 

percent blood alcohol compared to the higher .08 percent for passenger vehicle operators. 

During use in the same FARS report, the same 10 year period, 

drug use in that period of time for commercial vehicle operators 

was 1 percent. Our last survey, as has been mentioned today, is at 

1.7 and doesn’t show too much differentiation over the last 10 

years. 

Now while these data are positive, we acknowledge that any 

commercial vehicle that has a driver behind the wheel with controlled substances is too many. I pledge to work with the GAO and 

this Committee to take proactive initiatives that will deal with this 

problem. I want to also tell you that we have already taken some 

of those initiatives, and I want to explain some of those to you. 

We have applied limited resources for a very large carrier population, using a risk-based approach in addressing safety priorities 

that has produced some significant results. Last year, we reviewed 

compliance of more than 55,000 drug and alcohol testing programs 

during our compliance reviews and new entrant audits. 

We also see State and local roadside enforcement playing a crucial role in detecting illegal drug usage One such example was in 

Maryland earlier this year when a semi tractor-trailer driver was 

stopped for running well over the speed limit. Cocaine was found 

in the vehicle. The trooper revealed through this process that not 

only did he possess cocaine but he was under the influence at the 

time he was driving. 

36

We, as the Agency, used our authority and declared him an imminent hazard and had him disqualified. Fortunately, the State of 

Florida worked with us to have that CDL revoked. 

We have also begun to use data in which the driver tested positive for drugs and has not completed the return to duty process, 

which you have heard about today. We are following this process. 

We are removing drivers from the highways. 

I will be glad to talk more about it in the question and answer 

period and expound on it, but we also believe that the strategy that 

you just heard from North Carolina about licensing and disqualifying drivers is a positive step, and we look forward to working 

with other States in that regard. 

Our Comprehensive Safety Analysis 2010, CSA 2010, recognizes 

the need to collect more comprehensive data regarding drug and alcohol compliance. Therefore, our staff is currently developing strategies for requiring collection of drug and alcohol testing information to ensure that our new compliance model is able to identify 

drivers and carriers that do not comply with drug and alcohol regulations and to prevent their continued operation. You will be seeing 

more about that in a proposed rulemaking next year. 

As a former law enforcement official, I have seen firsthand the 

consequences of impaired driving behind CMVs and passenger vehicles. Some States have taken steps to criminalize products that 

circumvent the drug testing process, and I certainly support these 

efforts including Federal legislation to prohibit their manufacture 

and distribution. 

Most carriers use service agents to collect drug testing programs 

is what we heard about today. We reviewed compliance at these entities during our compliance review process and have found 22,000 

violations in the past 7 years. 

DOT has worked with the drug testing and transportation industries to give special emphasis to collection site integrity. We have 

also asked our inspectors and auditors to increase their scrutiny of 

collection sites. 

We will continue to find new ways to ensure comprehensive programs aimed at identifying non-compliant drivers and carriers with 

the alcohol and controlled substance regulations. I do look forward 

to working with you, Mr. Chairman, and GAO and our State partners to improve compliance in this area. 

Thank you, and I will answer your questions. 

Mr. DEFAZIO. Thank you. 

Mr. Stephenson. 

Mr. STEPHENSON. Mr. Chairman, Members of the Subcommittee, 

I am Robert Stephenson, Director of Division of workplace Programs in the Center for Substance Abuse Prevention within the 

Substance Abuse and Mental Health Services Administration, 

SAMHSA, of the United States Department of Health and Human 

Services. On behalf of our Administrator, Terry Cline, we thank 

you for holding this important hearing too. 

Following the lead of your earlier comments, I look around and 

see that most of the issues and concerns we had originally come 

prepared to testify about have already been put out on the table. 

So we have withdrawn our normal oral testimony, and I am going 

to try to respond in this limited time to some of those issues that 

37

have been raised and tell you a little bit more about who we are 

and what it is we do and try to anticipate some of the questions 

you might ask, but I know I won’t be totally successful. 

Mr. DEFAZIO. Excellent, go right ahead. 

Mr. STEPHENSON. First of all, the HHS roles, we are responsible 

for the administrative and technical standards and procedures for 

Executive Branch Federal employees. That is our authority and 

that is our responsibility. 

This was initially established by executive order back in 1986, 

and we established mandatory guidelines for testing and programs 

that needed to be set up by Executive Branch agencies back in 

1988. We have been in business ever since then. 

A lot of the capacity that we have is to test other agencies under 

their own separate authority, but they use our standards by their 

decision and by their incorporation under their rules and processes. 

Currently, we certify 46 laboratories in the United States and 

Canada. We have 114 inspectors who perform two inspections per 

year in each one of those laboratories, where they physically go 

into the places and spend at least a day and, in some cases, several 

days. 

One of the questions that was asked was: Why publish a playbook in the Federal Register with what it is about the adulterants? 

Well, the bottom line is that I am equally frustrated by that process too, but it is required under the Administrative Procedures Act. 

We need to propose things through notice and comments, and 

there was a fairly important case decision that kind of cemented 

the need to do what we are doing. That is putting out any modifications to testing protocols, procedures, cutoff levels and so forth that 

are instructions to the labs that are to be performed on specimens 

collected for Federal agency employees and, by extension, the DOTregulated industry. 

We have to put those into a Federal Register notice beforehand. 

We have to receive comments on them, and then we have to publish it. 

That puts the lead time way out in advance for anybody who 

wants to willfully manipulate their products to change it. So we 

could do this time and time again, and it will result in a blatant 

behavior of changing products and ignoring. There is no fairness in 

it. They have all the ground advantages in the process. 

Why can’t you test and detect these adulterants? Well, when we 

had a process where we aggressively used the insight of our laboratories to look for anomalies in the specimens being tested and then 

they identified a new adulterant. Then we learned from our experience in a couple of important court cases that were, by the way, 

DOT cases, that we needed to publish these processes up front. 

What we found out was that you needed a second lab to be able 

to respond to a legal challenge that would be raised when one of 

the adulterant issues was brought up in a specific court case. In 

most situations, that worked well in the early years, but it came 

about that the only other lab that had the kind of corporate mentality and will to do this dissolved or became an asset of another 

laboratory corporation, and so we lost the capacity to have a second 

lab do this. 

38

We explored opportunities with the Department of Transportation of using perhaps a resource that they had under the FAA, 

an aerospace medical laboratory, to do some of this kind of 

superlab retesting and so forth, but that has not produced any result. 

As a result of that, what we had chosen to do and it was at the 

request of DOT is we truncated the process whenever we saw anything funky in a particular specimen being tested and as quickly 

as possible turned the results around, showing that it was an invalid test for testing. 

It was an invalid specimen and we could not do laboratory testing on it. For a variety of reasons, it just wouldn’t go through the 

process well. We didn’t identify a specific adulterant in it, but we 

knew there was something wrong. 

So the best we could do was turn the specimen result around 

very quickly and get it back and in the hands of the MRO who, in 

turn, would then suggest we need to do a direct observation recollection, maybe in a couple of days rather than chasing after an illusive adulterant that you might or might not find for four or five 

days. By then, a person has had enough time to clean their system 

out. They had enough lead warning. So that was the best we could 

do of that process. 

I would totally agree I would love to see a process where we 

didn’t have to put that playbook out in advance, but I don’t know 

how to get around that under administrative procedures rules. 

The last real thing was: What about alternative specimens? We 

published proposed rules for Federal agency employees to be used 

by Federal agencies back in April of 2004. During the internal review process, there were issues raised by other Federal agencies 

and departments about some of the issues around fairness, hair 

color bias and legal concerns that have not allowed those to go forward to a final process, but we did move forward with the urine 

portion of it to address issues around collection site concerns, certification of MROs. 

We separately published the adulterant instructions in 2004 as 

a final, and it went into effect in November of 2004 because we 

were concerned about what was going on. By 2005, we had provided testimony the first time about the problems that were going 

on in the industry that we were seeing adulterant products and 

substitute specimens. 

The last one was: What about testing for more and different 

drugs? Well, one of the issues raised, I think, in the Oregon experience was that they were doing screening tests on some of the drivers and they were finding what could have been prescription drugs. 

The comment in the testimony, I think, the oral testimony was illicit drugs or illegal drugs. Well, we don’t really know that. 

What we know is that when you come up with a prescription 

drug test result, you then need to determine whether or not the 

person has a prescription for that and whether they are using it 

in accordance with that prescription. 

If we test for more drugs, the issue is going to be resurfacing of 

a problem that we have had in the past where we test for a number of different drugs like benzodiazepines or the other opiates for 

chronic pain issues. If a person taking that drug has a prescription 

39

and medical review officer reviews that, they would say that it is 

a negative drug test for the purposes of the program. 

But I would raise an issue, a concern about the safety about 

using some of these drugs in a work environment where that kind 

of sedation or other issues could be a concern. That is an issue to 

think about when you think about expanding a panel to add other 

drugs. 

At this time, I would just like to indicate our written testimony 

talks more about what we do as a Federal agency, as HHS and 

about our role with the Federal agency programs. I am prepared 

to answer any questions I can. 

Mr. DEFAZIO. Thank you. 

Mr. Hill, on page three of your prepared testimony, talking about 

dealing with the idea of a national database or registry, the study 

concluded it is feasible to establish a national database for positive 

drug results. If a database were established, the report recommends that it be operated by the Federal Government to ensure 

consistency and uniformity. FMCSA is moving forward to address 

this problem. 

The report was in 2004. Can you tell me what you are doing to 

move forward and what kind of time line we have for a Federal 

database? 

Mr. HILL. Mr. Chairman, one of the frustrations that I have had 

in dealing with this, coming from a State in law enforcement as I 

have been aware of this problem for some time, as these gentlemen 

indicated earlier on the panel. So I began to ask questions in the 

Agency, and I was repeatedly told that the privacy concerns outweigh the ability of the Department to move forward in this regard. 

We have been working despite that. We are going to work 

through the Comprehensive Safety Analysis, CSA 2010. We are developing the structure right now and plan to publish a notice of 

proposed rulemaking in early 2008 that will deal with a requirement to have medical review officers submit positive drug tests to 

us so that we can create some kind of a database that will allow 

us to know what the performance of carriers is actually happening. 

Now I haven’t got the rule ready for prime time, but we are far 

along in this process. This isn’t an idea. This isn’t a thought process. This is something that we actually worked with our attorneys 

on. 

What we plan to do at this point is to use, as you indicated earlier in response to the North Carolina gentleman, a waiver by the 

employee that if they are going to have a safety-sensitive position, 

they are going to have to make agreement to allow this information 

to be used by those people who regulate and, if they do not, they 

will not be allowed to continue in the process. 

Now I really think, as you have seen with hours of service and 

other kinds of high priority issues in this Country involving commercial vehicles, there are a lot of different moving parts, and I 

think there will be litigation. I think, legislatively, if there was 

support for creating this database, it would make it an easier process to go through. 

But we are prepared to roll up our sleeves with your staff and 

move forward on this. In fact, we are already moving forward and 

40

are going to go forward with it because I believe it is so critical to 

public safety. 

Mr. DEFAZIO. I think you heard the Chairman earlier. I believe 

that he and—I can speak for myself—I would like to move forward 

with legislative support for this process. I think it is essential. 

In terms of the privacy concerns, we have a database to determine a person’s eligibility to legally acquire a firearm. We don’t reveal any sensitive information about the person. It is just a yes or 

a no. 

It could be a similar system which is no, you have a problem 

here and you better go contact the FMCSA if you think that is in 

error. They have an appeals process, and you can get your record 

cleaned up or whatever or if you haven’t completed your rehab program, you will have to go do it or whatever. 

It seems to me that the privacy issues have been dealt with in 

other databases, and we could certainly deal with them here. I appreciate your support for that, and I think we will try and give you 

legislative support. 

What about the whole issue of the integrity of the testing process? You certainly heard some very devastating testimony regarding that. I mean 100 percent failure rate, and I read earlier some 

comments that had been submitted to GAO in response to that. 

The future REAL ID licenses in the second decade of the 21st 

Century will help ameliorate the fake ID problem, but then it was 

suggested there was an interim to deal with that. I would be curious about your comments on that. 

Then, secondly, we have that and then we also have the process 

itself and the identified problems when it wasn’t dependent on the 

fake ID but actually the adulterants and the other issues. 

The fact that I believe GAO made a point that they felt you had 

too few people to monitor compliance, not just for drug testing but 

generally as I took their comment, which is something we have 

talked about previously. I know you are constrained by your OMB 

masters, but they pointed also to a high failure rate even with that 

small number of compliance reviews. In the drug testing area, I believe they said 40 percent and it doesn’t seem to have a consequence. 

So if you could comment on those two issues. 

Mr. HILL. Sure. Well, first of all, I don’t believe that we should 

wait on the REAL ID to start dealing with credentialing issues in 

this process. One of our frustrations as an agency is that we don’t 

have the ability to levy fines against these collection sites. 

We have to go through this process of a public interest exclusion 

called a PIE, and before we ever get to the PIE we have to give 

them a notice of a PIE. Before that, we obviously go out and gather 

the facts from the individuals and, during that process, they are 

aware that there is somebody looking into their behavior. So they 

either clean it up or they go out of business and recreate themselves. 

We have done this repeatedly, and the inference was we aren’t 

really using the PIE process. Well, the PIE process is designed to 

give advance notice. They get the advance notice, and they don’t 

really clean up their act. They just go out of business. So I think 

that is one of the frustrations. 

41

I think if we had the ability to levy a fine or some kind of penalty, it would deal with what Congressman Duncan indicated in his 

comments earlier, that there would be a sanction. There would be 

an enforcement provision to this process. 

Now the second thing, I really would like to say to you that we 

have ready-made solution for this problem. It is complex, and it is 

going to be difficult. I think during the next reauthorization, we 

are going to have to talk about how do we build in, with existing 

resources, whether at the State level or at the Federal level, to give 

the kind of monitoring that we need to do with this. 

I will tell you that we have found the States to be very agreeable 

to involving themselves in controlled substance and alcohol enforcement, and I believe that we can do a better job of giving them guidance and helping them with things like the Oregon trucker check 

program. But it is very labor-intensive, and there are going to be 

issues that we are going to have to deal with having officers. 

For example, a large contingent of the workforce in this Country 

doing commercial vehicle safety is not a law enforcement officer. 

They are a limited civilian employee who doesn’t have the authority to engage in law enforcement-related practices. So that is something that we are going to have to keep in mind, but we can work 

around that. 

That is just going to be something we have to deal with. Whether 

we do it in the forms of grants or an expanded Federal workforce, 

we are going to have to have resources to address this problem in 

the next reauthorization. I am convinced of that. 

Because, as you indicated, to really deal with fraud at the site, 

you are going to have to get somebody in there to observe that, and 

that is going to take covert monitoring. It is going to be labor-intensive. We do that now with CDL monitoring. It is very labor-intensive. It is going to be a decision, a policy call of whether that is 

the way we want to use our resources. 

Finally, I would just say in managing the risk of the commercial 

vehicle safety program, I can tell you that I would like to look at 

this Committee and say let’s save 300 lives next year by getting 

every trucker in this Country to wear a safety belt because we lose 

300 a year because they don’t wear a safety belt. We are losing 1 

percent due to some kind of controlled substance or alcohol abuse 

in commercial vehicle crashes, which is too much and I am certainly not saying we tolerate it, but in terms of addressing risk, we 

need to apply our resources where we get the most reward. 

I believe that is what we are trying to do through addressing 

more driver focus in our programs. We have seen a 9 percent increase in the number of driver-related inspections in this Country. 

That is because we are changing the focus away from vehicle-related activities to driver inspections. 

The story that I told about Maryland is something that we are 

seeing readily. Troopers along the road are stopping vehicles with 

CMV operators, noticing some kind of paraphernalia or drug abuse, 

and then we are following up to disqualify those people using imminent hazard. We were not doing that previously, and it is something we have started using more readily in this past 12 to 15 

months. 

42

Mr. DEFAZIO. Well, thanks. I would just reflect and certainly we 

would want to be doing what we can to encourage that drivers use 

their safety belts, but that ultimately is a self-inflicted injury or 

death as opposed to a driver under the influence who takes out a 

swath of passenger cars who are totally innocent victims. So I 

would just make that little distinction there in terms of why. 

The issue of your response on the labs, I mean if you had a fining 

authority, if that were more highly valued. Ultimately, I think 

what you are going to find is we are going to end up somehow probably with fewer labs. It is probably going to be more highly valued 

product, so we are going to charge the employers more. 

Also, I would like to see a regime that you can monitor and fine 

them, and that would provide some potential revenue for the people to actually monitor the process. That seems to me to be a way 

you could begin to clean that up. 

SAMHSA now looks at the labs. I think you said there were 44 

certified labs, and you have 144 people to monitor those labs. 

Mr. STEPHENSON. Forty-six labs, 114 inspectors, they look at 

them onsite 2 times a year, each lab, every year. 

Mr. DEFAZIO. Do you have any thoughts on how we could clean 

up the problems at the collection sites given your experience in 

monitoring the labs? 

Mr. STEPHENSON. There are multiple groups that are advocates 

and specialties, professional staff that work in associations. That is 

certainly one way. 

Both internal self-policing as well as national standards, best 

practices, more aggressive understanding by the employers who 

hire these commercial services as to what their roles and responsibilities are under contract law to make sure that the work they 

are getting meets the standards and expectations. 

When you have a failed collection, it costs that employer not only 

the cost of the missed test and the time that the person was there. 

This isn’t all about pre-employment testing. This is existing random testing. A person being out of service while they go to this collection site to get a test that doesn’t work is certainly an expensive 

area. 

I would think that those are certainly things that could be done 

better. 

We spend a lot of our time on the laboratory side, training physicians as medical review officers and specialty groups within the 

American Medical Association to perform their task knowledgeably 

and understand what a drug test does and what it doesn’t do and 

what their roles and responsibilities are. We do that for the Federal agencies, and very similar programs are also established under 

the Department of Transportation and they participate too. 

But professional education for the people who have to do these 

things is certainly one major piece that I think we ought to bank 

on. 

Mr. DEFAZIO. Thank you. 

Mr. Duncan. 

Mr. DUNCAN. Thank you, Mr. Chairman. 

You know everybody, no matter what their job or position or occupation is, should always be trying to do more and do better and 

43

to improve, but let me see if I can summarize what I have learned 

from this hearing. 

Administrator Hill, you say that the truck drivers overall are the 

safest drivers in the Country, and we have been given statistics 

saying that drugs and alcohol are involved in only about 2 percent 

of the accidents and I think a similar percentage on the number 

of commercial drivers involved in the wrecks that are occurring. 

Truck companies have pressure and incentive from a monetary 

standpoint to make sure that they don’t hire drivers who are addicted to drugs because the trial lawyers are going to help a lot on 

that. I mean they are going to be sued if they hire drug addict 

truck drivers who are going to be in wrecks, in frequent wrecks. 

In addition to lawsuits for injuring other people, drug-addicted 

drivers are going to cost their employers a lot of money by damaging their trucks and so forth. So there is a lot of pressure that 

way that is very effective, I think. 

In addition, I don’t think we should give the impression that not 

much is being done because I noticed in your testimony you said 

that your inspectors are inspecting three million trucks a year, is 

that correct, and they look for drugs and alcohol at that time. 

Mr. HILL. It is three million nationwide and predominantly by 

the States, but our people also do a small percentage of those, yes, 

in controlled substances and alcohol. 

Mr. DUNCAN. Okay, three million. Then the people who are enforcing the traffic laws, the State troopers and even the local law 

enforcement people, are stopping some trucks at times. So there 

are checks that way in addition to these three million drug tests. 

Now a lot of them, apparently they could get around pretty easily 

or some of them are not legitimate, but I would assume also that 

a lot of these three million drug tests are legitimate tests because 

truck company owners would have pressures and incentives to 

make sure that those tests were legitimate. Would you agree with 

that? 

Plus, you said in your testimony also that your Agency is doing 

a lot of work with truck companies to make sure that their testing 

is legitimate. Is that correct? 

Mr. HILL. Yes, Congressman Duncan, we are doing two primary 

focus areas at this point in addition to the random roadside inspection process. 

The first one is through the safety audit. This Committee required us an agency to do new entrant audits of anyone coming 

into the business for the first time, and within 18 months we are 

required to do a safety audit. 

Now what we found, basically, during that safety audit process 

is that a lot of these companies are passing the safety audit even 

though they don’t have compliance with some of these issues. The 

program, the way it was set up initially, was primarily designed to 

be an educational outreach. 

We, as an Agency, said, look, this is not the direction we need 

to go. We need to refine this. 

So we put out a notice of proposed rulemaking in 2006 to change 

the new entrant program to make it more enforcement-based and 

to stop entry if you have certain violations that are occurring. One 

of those is drug and alcohol. 

44

That notice of proposed rulemaking is presently we have finalized the analysis of the comments. We are preparing the final rule, 

and that rule will be out hopefully in 2008 as well. 

What that will do is it will say if you have employees that you 

are using, that are testing positive for drugs, you are not going to 

be allowed to continue. We are going to revoke their operating authority and put them out of business. 

The second we will do is if they don’t have a drug and alcohol 

testing program, out of service. Until you get it fixed, you will not 

be allowed to operate. So those are major changes that we are making in the new entrant process to fix that. 

Mr. DUNCAN. All right. Then you have these major associations, 

the American Trucking Association and the Owner-Operator Independent Drivers Association, and both of them are making efforts 

to help on this problem as well. Is that correct? 

Mr. HILL. Well, they both commented to the rule, and we are 

taking their suggestion as we move forward with this process, yes. 

Mr. DUNCAN. I believe there has been a suggestion or recommendation about a national clearinghouse. Are you familiar 

with that? 

Mr. HILL. I am aware of ATA’s proposal to do that, yes, sir. 

Mr. DUNCAN. Now a lot is being done is really the point here, 

and we are making great strides here on this problem, but you do 

need some better enforcement mechanisms for these facilities when 

you find that their drug testing programs are inadequate. Is that 

correct? 

Mr. HILL. Yes. We have the ability to cite them, but then we put 

them through an administrative process to revoke their ability to 

be involved in that in the future. I really think that money, fines 

and penalties work effectively, and that is one of the things we 

have used in the motor carrier industry to deal with people who 

don’t want to comply with the regulations. So I think that would 

benefit us in dealing with the collection site issue. 

Mr. DUNCAN. Well, now let me ask you this one last question. We 

have been given statistics that drugs and alcohol are involved in 

only 2 percent of these commercial vehicle accidents and that only 

about 2 percent of these drug tests turn out positive. 

But we heard from the North Carolina official, and then have 

been given these statistics from the Oregon tests that were done 

April 10th through the 12th for 491 drivers, 487 samples. They 

found drugs in 9.7 percent of their tests. 

Now they said if you remove the opiates in half the situations because some of this could be medicine, it would move down to 8 percent. Then if you eliminate the opiates entirely, it would be 6.4 percent. 

Based on their findings in North Carolina and Oregon, do you 

think this problem is more widespread than these 2 percent figures 

that we have been given? 

Mr. HILL. I wish that I had a good answer for you because I 

would think that if we were killing more people related to controlled substance, it would show up in the crash report data that 

we have. 

I investigated hundreds, thousands of crashes when I was involved as a State policeman over 29 years. We had a lot of tools 

45

and resources to find out. In every fatal crash, you draw a blood 

sample. You find out if there is alcohol or drugs in that system. 

If you have people who are seriously injured, you pull a blood 

sample or you do some kind of analysis for reasonable suspicion or 

post-accident testing. So I think that we would find that there was 

more involvement in crashes if this were more of a widespread 

problem. 

Now I commend the Oregon State Police for doing this program. 

Mr. DUNCAN. From your 29 years in Indiana, do you think in all 

those accidents that you personally dealt with, was it roughly 2 

percent, do you think or do you have any wild guess? 

Mr. HILL. I just know that we were able to identify people involved in fatal crashes that were contributing because of controlled 

substance because the blood test, and I would say it was a very low 

percentage when I was doing it, but I can’t give you empirical data 

from my experience. 

Mr. DUNCAN. All right, thank you very much. 

Mr. DEFAZIO. I thank the gentleman. 

There was the self-reporting figure which I believe was 7.4 percent, and I don’t know that many people who would self-report they 

were abusing a substance if they weren’t, but maybe they wanted 

to make something up. 

Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chair. 

Mr. Hill, I am very interested in much of what is being discussed 

as it relates to the safety of people generally. In speaking, I wasn’t 

here for a lot of the questioning, unfortunately, because I was detained elsewhere, but you indicate that your Agency has begun a 

compliance initiative to identify the drivers to comply with the return to duty process. 

Does that initiative look at drivers who may have drug content 

in their urine that is due to medication and how does that medication impede them or is it affecting their ability to drive competently? 

Mr. HILL. Congresswoman Napolitano, I would say to you that 

the reason why we started this initiative is that there are some 

very concerned members in the industry that have been witnessing 

firsthand the movement, what we call job-hoppers, truck drivers 

testing positive and going to different carriers. They have been 

very frustrated with the fact that the driver just doesn’t have to 

self-report, and therefore they can leave their employment with 

that particular carrier and then move to another one and infect 

that carrier with the same drug habit or drug problem. 

We have sat with them and said, look, we have to figure out a 

way to begin to address this. So we asked our investigators. We 

formed a team to go into these MROs and look at people who are 

testing positive for drugs. 

Mrs. NAPOLITANO. Any drug? 

Mr. HILL. Well, the five that are required to be tested through 

the HHS process that Mr. Stephenson alluded to in his opening 

comments. 

The people who test positive for one of those five drugs, we then 

have reconfigured our IT systems that allows us to track drivers 

as opposed to just carriers. Historically, we have looked at carrier 

46

databases. Now we are refining that so that we can see where a 

driver is moving to work for different carriers. 

If we have a name of a driver who has tested positive through 

one of these facilities, been unemployed or terminated from that 

one carrier and then shows up working for a different carrier subsequent to that test, we go out and we investigate the new carrier. 

Did they do the pre-employment testing? Did they have the procedures in place? Are they doing random testing? 

Fourth, we go after that driver, and we file a driver case against 

him or her. Then we use our imminent hazard authority and say, 

look, this driver is an imminent hazard. You need to get out of the 

interstate commerce industry. 

Mrs. NAPOLITANO. I understand, sir. My question deals more 

with any individual who is driving who may be under a doctor’s orders to take certain medication whether it is for schizophrenia or 

diabetes or anything else. I am not sure what drugs might have a 

detrimental effect on the driving ability of that individual. That is 

more what I am referring to. 

Have you looked at anything that might be posing a problem in 

those particular medically prescribed drugs? That is my question. 

Mr. HILL. We have been working diligently through our medical 

review board to establish a new set of regulations that govern medical qualifications for commercial vehicle drivers. This is something 

we have been working to address and the NTSB’s Most Wanted 

Recommendations in which they think that the medical regulations 

need to be updated. So we have been in the process of doing that. 

In our medical review board, a panel of experts in the medical 

field have been addressing this particular problem, and they have 

actually given us some recommendations that we are going to be 

considering as we move ahead and we do our regulations. So we 

are doing that. 

Mrs. NAPOLITANO. Thank you. That was what I was trying to get 

to. 

I understand that the independent drivers do not necessarily 

self-report, that they are required to go to a base entity to be able 

to do self-reporting. If they are found, they may or may not go back 

to retest or be able to be cleared for driving. They may not report 

that particular job and skip and be able to go and obtain another 

job. 

That is a big question from me on independent drivers. 

Mr. HILL. It is true with independent drivers, but it is also true 

with other carriers as well. I wouldn’t just relegate it to the owner 

independent drivers. That is why we started this process that I told 

you about in these independent investigations to track these people. 

But I want to tell you it is very labor-intensive. It takes time. 

We are committed to doing it, but it is not something we just do 

thousands in a day. It is something that takes a little time to track 

them and do the investigative steps, but we are committed to doing 

it. 

Mrs. NAPOLITANO. What would help you then identify the 

amount of investment, if you will, to set up such a tracking mechanism to be able to tie in the States if they go from one State to 

47

another, so they would be able then to identify those drivers who 

are at risk? 

Then further, do we have a mechanism to be able to go after the 

damage caused? I know most of it falls upon insurance companies, 

but certainly somebody has to have liability for being able to not 

only hire but also drive a vehicle while being impaired. 

Mr. HILL. I would just say to you that this response that I gave 

to the Chairman earlier about our CSA 2010 rulemaking that we 

are developing is designed to help us track where these people are. 

That is one of our problems right now. We have to literally go out 

and find people who tested positively, and then we have to track 

them to where they go in the carriers. 

This reporting mechanism that we referred to earlier will allow 

us to have that information readily available and eliminate a lot 

of the investigate footwork that we have to do now to go and find 

them. 

Mrs. NAPOLITANO. If you had a crystal ball, what would that take 

in funding? What would be able to help you expedite your ability 

to be able to put that in place? 

Mr. HILL. That is a question I am going to have to get back with 

the record. 

Mrs. NAPOLITANO. I would appreciate it, sir. 

Mr. HILL. I am not prepared to answer that here today, but it 

is a valid question. We would like to get back with you on that. 

Mrs. NAPOLITANO. I appreciate it because the lives of a lot of people could be at stake. 

Thank you, Mr. Chair. 

Mr. DEFAZIO. Thank you. 

Mr. Platts. 

Mr. PLATTS. Thank you, Mr. Chairman. I appreciate yours and 

the Ranking Member’s efforts on the issue as well as our witnesses 

here today on all the panels. 

Mr. Hill, I wanted to follow up on your comments regarding new 

entries, and I apologize with trying to be at four places at once. If 

I cover something you have already address, I do apologize in advance. 

In your comments and in your written testimony, you talked 

about the new entrant rule for 2008. You and I have spoken before 

about the regulations being proposed and working with you. Are we 

referencing the same issue here, the same set of regulations, or is 

this something different? 

Mr. HILL. I believe that there are two issues that you and I have 

discussed. One is the training of new drivers into the marketplace. 

Mr. PLATTS. Correct. 

Mr. HILL. Then the specific new entrant is specifically about the 

new carrier itself and how the carrier complies with the regulations 

and how we monitor that process. 

Mr. PLATTS. Okay, so they are related but two separate issues 

then. 

Mr. HILL. And two separate rulemakings, yes, sir. 

Mr. PLATTS. On the one we have talked about before, my understanding is that is at OMB with the requirements for new drivers 

as far as behind the wheel training and things. 

Mr. HILL. Yes. 

48

Mr. PLATTS. Is there any new estimate? I know it is somewhat 

out of your hands because it is at OMB, but have you given any 

estimate from OMB? 

Given that this is something that started back in 2004 and with 

that 2005 court decision and now in 2007, are they giving you any 

time frame? 

Mr. HILL. They have a minimum of 90 days to review it. We are 

dialoguing with them about that, so I can assure you that we are 

expressing our interest in moving this rule along. We know that 

the court is interested as well. So we have a vital interest in making sure this notice of proposed rulemaking gets out. 

Mr. PLATTS. Do you think that will happen before the end of the 

year? 

Mr. HILL. It is our plan. 

Mr. PLATTS. Okay. On the other regs with the new entrant rule, 

in your written testimony, you talk about as part of your testimony 

that of the 40,000 new entrants that you reviewed, 42 percent of 

those programs were counseled for deficiencies and that the proposed new entry rule will help address this. Could you, one, highlight what the most common type of deficiency you found and how 

the new rule will likely address that and similar deficiencies? 

Mr. HILL. Sure. At the top of the list is that the carrier doesn’t 

have a policy in place about dealing with drugs and alcohol which 

usually implies that they don’t have a drug and alcohol testing program. Closest right after not having a policy is they don’t do drug 

and alcohol testing. So they aren’t doing pre-employment, random 

testing, post-accident or reasonable suspicion. 

What I tried to say in my comments there was that we recognized this back in 2003 and said, look, you can’t allow people to 

come into the business and just educate them and hope it gets better. You have to take some action, and that is why we put into 

place a notice of proposed rulemaking to tighten that up. 

Now what it is going to do is it is going to front-end load the 

work. Instead of catching these people after they have been in commerce and then do compliance reviews, we are hoping to deal with 

it on the front end. 

Not having a drug and alcohol program or using a driver that 

has tested positively will preclude you from continuing on in interstate commerce. That is going to be the key, and it is going to get 

people’s attention. They are either going to comply or they are 

going to be out of business. 

Mr. PLATTS. So today, without that new rule adopted, not having 

a program in place, not having the testing done doesn’t prohibit 

you from being out there? 

Mr. HILL. That is correct. Now we can do a compliance review, 

and we can go back in which we do in several cases. But in terms 

of the strict mechanism to preclude them from continuing on, that 

is not in place and we needed regulatory authority to do that. 

Mr. PLATTS. Because the way it is now it is almost like something has to happen that you are likely to do that compliance review and catch them as opposed to being an across the board requirement and they would be, in essence, certified to have that program in place? 

Mr. HILL. Yes, Congressman Platts, that is correct. 

49

Mr. PLATTS. Again, it is proactive rather than reactive. 

Mr. HILL. That is right. That is right. 

Mr. PLATTS. I think that is a very necessary and appropriate approach. I commend the Department and the Agency for promulgating that regulation, and hopefully we will get it through the 

process quickly along with the other one regarding the training requirements. 

Mr. HILL. Thank you, sir. 

Mr. PLATTS. Thank you. 

Thank you, Mr. Chairman. 

Mr. DEFAZIO. Thank you, Mr. Platts. 

Three quick questions follow up on that: As I understand, so you 

are going to have a new authority to deal with new entrants who 

don’t have programs, to prohibit them from continuing to operate. 

Mr. HILL. Yes, sir. 

Mr. DEFAZIO. What about the 70 percent of existing firms who 

are found to have violations of drug testing, who are ongoing? Do 

you have the authority to put them out of service too and has that 

ever been done? 

Mr. HILL. In the past seven years, six years, we have done about 

31,000 enforcement cases. So we bring an enforcement case against 

them, give them a penalty, but we don’t stop them from operating. 

Under the CSA 2010 initiative that I referred to earlier, what we 

plan to do, as we say, is there are certain things that are so fundamental to a carrier’s operation that you cannot be safe and not do 

them. 

Mr. DEFAZIO. Okay, so it won’t just be new entrants. It will be 

ongoing problems with compliance. 

Mr. HILL. But they are two separate rulemaking processes, and 

I want you to understand that. 

Mr. DEFAZIO. All right. 

Mr. HILL. But that is the plan, that we will actually go in and 

declare them unfit if they are a carrier involved in not having a 

drug and alcohol program or they are using a driver that tests positively. 

Mr. DEFAZIO. In the 70 percent of the compliance reviews since 

2001, where you found violations of drug testing programs, have 

you gone back and verified that those 70 percent have corrected 

those deficiencies? 

Mr. HILL. Normally, Mr. Chairman, as part of our process, we 

engage into not just giving them a notice of claim and then they 

pay their penalty, but we actually engage in settlement agreements. Our goal is to get compliance. So as a part of that settlement agreement, they have to verify with us that they have instituted a program and that we have verified that they are using a 

consortium with third party testing. 

Mr. DEFAZIO. But right now you don’t have a big club over them. 

You are going to have the big club in the future with the out of 

service. 

Mr. HILL. It will be bigger, larger, but right now we do have a 

club because if they are in that settlement agreement and they 

don’t comply, we can come back and hit them pretty hard. I 

wouldn’t discount that, but it will be much stronger with the unfit 

rating in the future. 

50

Mr. DEFAZIO. Okay, thank you. 

Then just quickly for entertainment value, Mr. Stephenson, since 

PassYourDrugTest.com says they carry FDA-approved drug test detoxification programs for passing serious drug tests, are you aware 

if there are any FDA-approved drug test detoxification programs 

for passing tests? I can imagine there are detoxification drugs for 

people trying to kick a habit, but did you ever hear of such a thing? 

Mr. STEPHENSON. Absolutely not. It is a wild claim that is on the 

internet, and I would love to have someone show me to the contrary because I would be like a pit bull. I would be more than glad 

to follow up on it. 

Mr. DEFAZIO. We would love to have you do that. That would be 

good. 

Then, Mr. Administrator, just given the other site we mentioned 

here with the Ross Healthcare clinic which apparently does driver 

medical exams and drug testing, which refers people to a favorite 

link on a site on how to beat the test. Is there some action you 

could take regarding their status since they are doing commercial 

truck driver medical exams and drug testing? 

Mr. HILL. If the information that you have is accurate, someone 

will be knocking at their door very shortly. I will take the appropriate action commensurate with my authority to deal with that 

problem, and I will get back with the Committee on the results. 

Mr. DEFAZIO. Excellent, thank you. 

Mr. HILL. You are welcome. 

Mr. DEFAZIO. No further questions. 

Again, I realize this was an unusual procedure, but I thought the 

GAO and the other information was so startling that it was necessary for you to hear it. I appreciate your indulgence of time. 

Thank you very much. 

Mr. HILL. You are welcome, sir. 

Mr. DEFAZIO. Acronyms are flying like snow. There will be QFRs, 

questions for the record. 

If we could now, we will call the final witnesses. I have a group 

of parliamentarians from Britain here. I have to step out. Mrs. 

Napolitano will take the Chair. Thank you. 

Mrs. NAPOLITANO. [Presiding.] Good afternoon, gentlemen, and 

welcome. I believe we will start the questioning of the third panel 

with Mr. Woodruff. Sorry, I didn’t give you a chance to clear. 

TESTIMONY OF GREER WOODRUFF, SENIOR VICE PRESIDENT 

OF CORPORATE SAFETY AND SECURITY, J.B. HUNT TRANSPORT, INC., AMERICAN TRUCKING ASSOCIATIONS; RICK 

CRAIG, DIRECTOR OF REGULATORY AFFAIRS, OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION; FRED 

MCLUCKIE, LEGISLATIVE DIRECTOR, INTERNATIONAL 

BROTHERHOOD OF TEAMSTERS 

Mr. WOODRUFF. Thank you. Chairman DeFazio, Ranking Member Duncan and other Members of the Subcommittee, thank you for 

the opportunity to communicate ATA’s recommendations on drug 

and alcohol testing. 

I am Greer Woodruff, Senior Vice President of Corporate Safety 

and Security for J.B. Hunt Transport and active member of ATA. 

51

J.B. Hunt is a large motor carrier operating in the contiguous 48 

States and Canada. We have approximately 11,700 power units, 

56,000 trailers and containers and employ over 13,500 truck drivers. In the last year, J.B. Hunt has performed more than 39,000 

DOT drug tests, more than 1,700 DOT alcohol tests and over 

14,000 non-DOT tests using hair specimens. 

ATA has long been a proponent of alcohol and drug testing for 

truck drivers and actively supported the Omnibus Transportation 

Employee Testing Act of 1991. 

My comments are aimed at improving drug and alcohol testing 

in the trucking industry, and I will cover two of the five recommendations provided in written testimony: number one, the 

need for a national clearinghouse for positive drug and alcohol test 

results and, secondly, the industry’s desire to use alternative specimen testing methods such as hair testing. 

Concerning the national clearinghouse, this recommendation is 

aimed at closing a serious loophole in the Federal drug and alcohol 

testing regulations which is being exploited by too many drug-abusing drivers. 

The loophole is as follows: A driver applies for a job at a trucking 

company and tests positive for drugs on the DOT-required pre-employment drug test. As a result of testing positive, the driver is not 

hired. In many cases, the driver simply waits a short amount of 

time to cleanse his system, a few days or perhaps a few weeks, and 

applies for a job at a different trucking company and passes the 

DOT-required pre-employment test. 

The driver does not self-report the previous positive test result 

on the employment application, and therefore the second trucking 

company is not aware of the driver’s previous positive test result. 

This loophole exists because a driver is supposed to self-report 

since there is no current method of centrally capturing positive test 

results. ATA made Congress aware of this loophole in the late 

1990s when it first began advocating for a national clearinghouse. 

FMCSA studied this issue and submitted a report to Congress in 

May of 2004. This report found that a centralized clearinghouse for 

positive results to be queried by motor carriers during the hiring 

process was feasible, cost effective and, more importantly, could improve safety. 

Currently, five States have positive drug test results reporting 

laws. However, drug and alcohol testing in trucking is done in compliance with Federal regulations, and it is a national program. In 

order to close the loophole I described, ATA urges Congress to pass 

legislation to authorize and fund a centralized national clearinghouse for positive drug and alcohol test results. 

The final issue I will address is the need for alternative specimen 

testing. ATA seeks Congressional support to encourage the Substance Abuse and Mental health Services Administration and the 

U.S. Department of Transportation to move forward with rulemaking that will allow the use of alternative specimen testing 

methods such as hair. These alternative methods have shown great 

promise in applied situations to detect lifestyle drug users and 

those that seek to evade the current urine collection method of controlled substance testing. 

52

Information from ATA’s membership indicates that the typical 

chronic user is more likely to show a positive drug test result when 

a hair specimen is employed. ATA is eager to work with Congress 

and DOT to allow for the addition of specimen options beyond urine 

such as hair. 

In summary, Mr. Chairman, ATA urges Congress to enhance 

drug and alcohol testing in the trucking industry by establishing 

a national clearinghouse for drug and alcohol test results, directing 

SAMHSA and DOT to complete rulemaking to allow alternative 

specimen testing methods, banning the sale of adulterant and substitution devices and providing for enforcement and penalties for 

their use, encouraging the DOT to better focus their random testing rate requirements and, finally, ensuring good practices are followed by drug and alcohol collection sites. 

Thank you for the opportunity for ATA to offer its recommendations. I will be happy to answer questions at the appropriate time. 

Mrs. NAPOLITANO. Thank you, Mr. Woodruff. That kind of tickles 

the imagination about other ways of providing material for the 

testing. Thank you. 

Mr. WOODRUFF. Thank you. 

Mrs. NAPOLITANO. Mr. Craig. 

Mr. CRAIG. Congresswoman Napolitano, Ranking Member Duncan, thank you for inviting me to testify this afternoon on behalf 

of our Nation’s small business trucking professionals. 

My name is Rick Craig. I currently serve as Director of Regulatory Affairs for OOIDA. 

The members of OOIDA believe that drug and alcohol testing for 

commercial vehicle operators has played an important role in raising the level of safety on our national highways. However, there 

are problems with existing regulations, procedures and enforcement that should be addressed to ensure that testing programs are 

effectively employed while also mindful of the significant harm that 

may be caused to a trucker’s life and livelihood by errant administration. 

The sheer volume and complexity of State and Federal drug and 

alcohol testing regulations make it extremely difficult for motor 

carriers to run their own testing programs. Thus, nearly all carriers rely on service agents to administer various aspects of their 

programs. 

Of the benefit programs and services offered to our members, 

OOIDA administers a drug and alcohol testing consortium and 

third party administrator program or C/TPA. Our C/TPA provides 

a full range of services to keep its motor carrier clients and their 

commercial drivers in compliance with Federal drug and alcohol 

testing requirements including dissemination of extensive educational information related to testing and reporting requirements. 

I have provided copies of these materials to the Committee. 

OOIDA C/TPA has experienced a multitude of problems with existing drug and alcohol testing regulations and procedures. Most 

problems are relatively minor and correctable but nonetheless may 

serve to illustrate the various reasons why certain carriers and 

drivers fail to comply. Certain other problems are much more serious and may substantially impact or even destroy a trucker’s driving career. 

53

Examples of problems commonly encountered by OOIDA are outlined in my written testimony. Many of these same problems have 

been echoed by other witnesses. 

One area I would like to highlight is the collection process has 

always been and remains to be the weakest link in the DOT testing 

program. The findings of the GAO are indeed alarming. We absolutely agree that problems identified by the GAO and this Committee must be addressed as soon as possible. 

However, speaking on behalf of the vast majority of men and 

women who operate trucks and who do not abuse drugs or misuse 

alcohol, I ask that the Committee be careful not to draw the assumption that problems with specimen collection and testing procedures equate to our Nation’s highways being filled by drug-crazed 

truckers. That scenario is certainly not reality. 

At the core of OOIDA’s membership are owner-operators. These 

small business trucking professionals commonly lease their equipment and their driving services to motor carriers that operate multiple trucks within their fleet. 

Any carrier that leases an owner-operator assumes the responsibility for compliance for all safety regulations no differently than 

their employee drivers. In fact, the Federal Motor Carrier safety 

regulations specifically include independent contractors or owneroperators in the definition of an employee. 

Motor carriers primarily contract with service agents to administer drug and alcohol testing programs. However, carriers are ultimately responsible for ensuring that service agents meet the qualifications set forth in the rules. While a service agent may provide 

educational materials to the carrier, it is the responsibility of the 

carrier to provide the materials to its drivers that explain the rules 

as well as the carrier’s policies and procedures. 

More and more owner-operators are obtaining operating authority while continuing to perform driver duties. A one truck-one driver motor carrier must comply with both the requirements that 

apply to employers and the requirements that apply to drivers. 

Since the driver and carrier management are one in the same 

and the carrier must establish the testing program and carrier policies, it is likely that as the driver this individual has a greater 

awareness of drug and alcohol testing requirements than many 

others in the industry. 

All carriers, regardless of size, are required to remove a driver 

from performing safety-sensitive functions in the event of a positive 

or equivalent test result. Each carrier must assign a designated 

employer representative to oversee this function and various other 

aspects of the carrier’s testing program. Reliance upon a single employee carrier to remove him or herself from duty is little different 

than simply accepting that any other designated employer representative will remove a much needed employee from safety-sensitive duty. 

I am about to run out of time. I think I will skip ahead just a 

little bit. I would like to take a moment to comment on ATA’s national clearinghouse proposal. 

While OOIDA fully supports the goal of striving to make the 

trucking industry free of drug and alcohol abuse, we remain unconvinced of the need for a national clearinghouse for positive drug 

54

and alcohol testing results. The national database, as described in 

ATA’s proposal, does not ensure that a carrier removes a violating 

driver from performing safety-sensitive functions nor does it otherwise enhance the existing drug testing requirements. 

I have outlined several questions and concerns raised by the 

clearinghouse proposal in my written testimony. Until privacy, 

operational security and logistical oversight complications have 

been adequately addressed, the proposal has the real potential to 

negatively impact drivers far beyond the scope of those who abuse 

drugs and misuse alcohol. 

Thank you. I will be happy to answer any questions. 

Mrs. NAPOLITANO. Thank you, Mr. Craig. I do have the greatest 

respect for the truck drivers. The job they have is very critical to 

the Nation’s economy. I worked in the industry for quite a while, 

so I understand a lot of the issues that they have. 

We also have some that do not follow the rules and, because of 

them, we continue to implement laws to protect the whole Country. 

Mr. CRAIG. I agree, Congresswoman. 

Mrs. NAPOLITANO. Thank you. 

Mr. McLuckie, welcome. 

Mr. MCLUCKIE. Thank you, Congresswoman Napolitano and 

Ranking Member Duncan. Thank you for the opportunity to testify 

here today on drug and alcohol testing for drivers. 

Testimony this morning was quite shocking, but I do not think 

that drug and alcohol abuse in the trucking industry is rampant. 

I hope that conclusion is not reached by the Committee. Most of 

our members are hardworking, law-abiding citizens who perform a 

very difficult task every day. 

The Teamsters Union has a long history of being proactive in deterring the abuse of controlled substances and alcohol in the trucking industry. For well over two decades, we have negotiated drug 

and alcohol testing programs with virtually all of our larger trucking employers. The language in our collective bargaining agreements ensures that the testing programs comply with both provisions of the agreements and FMCSA regulations. 

The agreements outline the process that must followed to allow 

workers who have substance abuse issues the opportunity to obtain 

treatment and rehabilitation prior to returning to work in safetysensitive functions. Almost all of those members testing positive 

take advantage of treatment and rehabilitation and return to duty. 

We have a once in a lifetime second chance that most of our members take advantage of. 

The results of the recent Oregon State Police roadside testing 

were potentially skewed. The almost 10 percent positive rate could 

be attributed to several issues. The OSP included three additional 

drugs, all of which are not included in the FMCSA five-panel drug 

screen for which analyses were conducted that contributed to the 

higher overall rate of positive test results. 

For example, commercial motor vehicle operators are not prohibited from using propoxyphene, provided that such use is monitored 

and approved by the driver’s physician. These opiates and synthetic 

opiates accounted for 19 of the 47 tests for which a controlled substance was identified. 

55

Also, drug testing results not validated by a medical review officer leave open the strong possibility that some of the positives were 

due to legitimate medical explanation. For example, the driver had 

a valid prescription from his physician. 

Occupational injury data provided by the U.S. Bureau of Labor 

Statistics shows that truck drivers are among the group of workers 

who experience the most work-related injuries and illnesses with 

days away from work. Therefore, it is not unusual that these workers would use painkillers, some of which may contain opiates to 

mitigate discomfort resulting from work-related injuries. Many 

drivers have legitimate prescriptions for these painkillers and consequently may be allowed in some instances to operate commercial 

motor vehicles without violating FMCSA regulations. 

Because there was no positive test result validation process incorporated in the OSP study, the assumption is that all positive 

opiate test results were due to illegal or improper use of controlled 

substances which may be an erroneous assumption. 

There are also cases where drivers have legal prescriptions for 

amphetamines and may drive while using the controlled substance. 

For example, the use of the prescription drug Adderall, which is 

often times used to control attention deficit hyperactivity or treatment-resistant depression, can cause a positive test result. However, a driver who has been properly prescribed the drug is not 

automatically disqualified from operating a commercial motor vehicle. 

Further validation of even lower positive drug testing rates for 

drivers can be found in unionized large, less than truckload carriers. The IBT reviewed the random drug testing results for large 

LTL carriers for the period 2003 to 2006. 

During this period, the union LTL companies conducted 64,477 

random drug trusts of which 395 were validated by medical review 

officers as being positive, for a positive test rate of 0.6 percent. 

That is six tenths of 1 percent, much lower than the FMCSA survey rate of around 2 percent. 

This lower rate may be attributable to an older workforce with 

low turnover rate. I am told also that in those 64,000 plus drug 

tests, only 5 cases were found to use adulterated substances. 

We have significant concerns about the creation of a national 

clearinghouse for positive testing results especially with respect to 

issues related to driver privacy. However, when we consider the 

fact that certain States such as North Carolina have moved forward in collecting this data, we are of the opinion that a national 

clearinghouse operated by the Federal Government may be preferable to these data being collected on a State by State basis. 

The IBT could support the implementation of a centralized reporting and inquiry system and believes such a system could have 

positive safety benefits provided, however, that such requirements 

should only be imposed if and when the FMCSA is able to devise 

a system that would adequately protect the driver’s confidentiality, 

provide a reasonable mechanism for drivers to learn of and report 

reporting errors and devise a uniform, and fair method for 

expunging the records of drivers that have undergone treatment 

and are rehabilitated. 

56

Finally, I would be remiss if I did not reiterate our concern about 

drug and alcohol testing procedures for Mexican drivers. Still, after 

more than a decade of negotiations, there is no lab in Mexico to 

certify samples. Random drug testing is non-existent with drivers 

knowing that they will be tested at the border because collection 

procedures and chain of custody practices are questionable and 

there appears to be little, if any, enforcement against the use of 

drugs and alcohol by drivers on the Mexican side of the border. 

This concludes my testimony, and I am happy to answer any 

questions you may have. 

Mrs. NAPOLITANO. Thank you, Mr. McLuckie, and I am lucky I 

get all three of you. 

I have a very, very open mind about the issues because I did 

work in my prior life in the transportation department and I did 

have an opportunity to ask a lot of questions of the State transportation, California Transportation Commission. 

We have heard a lot of the issues continually being brought up. 

In working through some of these things, and I understand, Mr. 

McLuckie, the issue. That is why I brought up the medical concept 

of it because there are some things that will affect the analysis, the 

final analysis of the urine as regards drugs that they have to take 

to continue being able to work, whether it is back problem, whether 

it is schizophrenia, whatever it is. 

My concern is that we are not balancing them to be able to allow 

that employee the opportunity to continue making a living and operating safely. Do you want to address that? 

Mr. MCLUCKIE. Well, I think it is very important that the employee have the opportunity to have any positive result reviewed by 

the medical review officer in the instance especially where he is on 

a prescription drug. As you say, in the trucking industry, the rate 

of injury and illness is very high, and these drivers take these 

drugs to stay on the road and to be able to make a living. So we 

encourage the continued examination of that issue. 

Mrs. NAPOLITANO. Especially for long haul. 

Mr. MCLUCKIE. Yes. 

Mrs. NAPOLITANO. Mr. Woodruff, the current drug and alcohol 

regulations require new employers to contact former employers regarding the job’s application, especially for drug history. How responsive have former employers been to the requests and what enforcement actions, if any, or penalties for those employers who are 

non-responsive and, if there are not, should there be? 

Mr. WOODRUFF. A very good question; in October of 2004, 

FMCSA implemented a safety performance history regulation and, 

following implementation of that particular regulation, the responsiveness of former motor carrier employers has greatly improved. 

I cannot speak for the whole ATA membership population, but 

for J.B. Hunt, we would encounter perhaps one to two employers 

per month. We hire five to six hundred drivers a month, and only 

one to two employers that would not supply the information that 

they are required to supply under the regulations. We do report 

those to the associate administrator of FMCSA when they fail to 

meet their regulatory obligation to provide drug and alcohol data. 

57

We often find ourselves in a role of educating the other motor 

carriers as to what their regulatory responsibilities are. So we work 

through that. We normally get those. 

Really, a bigger issue that I believe we encounter with regards 

to having the information that we need to have available and the 

regulations require us to obtain is with carriers that go out of business, that are bankrupt or no longer able to be contacted. In 2004, 

2005 and 2006, those three years total, there were over 4,700 

trucking company bankruptcies of carriers with more than 10 

trucks. 

So the number is even more significant when you consider the 

number of bankruptcies or closures of companies with less than 10 

trucks. But in that three year period, 4,700 motor carriers with 

more than 10 trucks whose drug and alcohol data is not available 

to future motor carriers that need that data. 

With regards to J.B. Hunt, we experience about 20 percent of the 

driver applicants have one more driving jobs in the past three 

years that we are unable to verify because that employer is no 

longer available for us to talk to. So we believe through having a 

central repository, that that data would be in the repository and 

whether or not the company closes business or moves or changes 

their phone number, that that data would still be available for future motor carriers to access. 

Mrs. NAPOLITANO. The ATA is recommending the national clearinghouse be set up for positive and refused drug and alcohol tests. 

Why does this have to be on a national level and can that be something that will be helpful to identify those repeat offender who 

should not be driving? 

Mr. WOODRUFF. That is another very good question. The drug 

and alcohol regulations that the trucking industry must comply 

with is a national program, and it becomes very problematic for the 

industry when they have to begin to start to comply with potentially 50 different State rules and regulations. 

As we have heard in the testimony, there is somewhere between 

five and seven different States that have positive results reporting 

requirements, and many of those are different. So that becomes 

very complicated for a motor carrier doing business throughout the 

United States to identify how to comply with a varied set of regulatory requirements, where a national clearinghouse would have 

one standard for us to comply with. 

Mrs. NAPOLITANO. Gentlemen? 

Mr. CRAIG. Yes, if I may. You know, certainly, we see that there 

are obviously some drug users out there that slip through the 

cracks, and I was rather surprised by some of the comments I 

heard today as well. 

With this national clearinghouse, we do have some real concerns. 

Obviously, privacy is very obvious. 

Mrs. NAPOLITANO. Sir, how would you address the privacy issue? 

Mr. CRAIG. Well certainly, and I have read the draft language of 

the legislation that came from ATA, and they talk about the privacy issues. It is certainly difficult to deal with that, but one thing 

that would have to certainly be done is that the system be very secure, that the access to the system be limited to only those who 

have authorization, a real right to know. 

58

Of course, one of the problems you get into there is how do you 

know that these individuals really have authorization, really have 

the right to know over time and then who is going to catch these 

folks that violate the system and enter the system when they don’t 

really have authorization. Then we also question who is going to 

enforce against anyone who violates the requirements. 

Mrs. NAPOLITANO. That would go back to, I guess, a funded mandate for the States to be able to establish such a network with the 

clearinghouse and be able to do it with the trucking companies to 

be able to ensure that their drivers were complying. Am I not correct? 

Mr. CRAIG. Well, certainly, and if I might also add, as I started 

to say earlier, we also see some other problems with the process. 

We certainly agree that collection sites are by far the weakest link 

in the whole system. 

We have had some experiences with the collection sites that have 

given the drivers, who came in to test, erroneous information. A 

good example of that and a repeated example of that is a driver 

who goes in and for whatever reason cannot provide an adequate 

amount of specimen the first try. They are supposed to be required 

and instructed to drink water and stay there for at least three 

hours and attempt again. 

Many times, we have heard of instances where the collection site 

personnel simply say, oh, it is okay. Come back tomorrow. 

The problem is once that driver leaves, that is determined a refusal which, as you know, is equivalent to a positive result. That 

is a very big issue. 

Also, another problem that we have is even with MROs, and they 

haven’t really been addressed. That is the medical review officers. 

They really are the last word in this whole process. If there is an 

MRO, and we have experienced a couple of cases at least of MROs 

who have made wrong judgments on whether or not a test result 

should be confirmed as positive and entered that as positive. There 

is very, very little recourse for drivers to clear their names after 

that has happened. 

Mrs. NAPOLITANO. Shouldn’t it be then part of what they should 

be looking at is how the drivers may be able to clear their record 

if they can prove or through further testing be able to clarify? 

Mr. CRAIG. Absolutely. Possibly there could be, as anyone would 

do when they get a medical opinion, get a second opinion. Maybe 

they should be able to dispute the first MRO’s determination of a 

confirmed positive. 

Another thing is we have had several members who were very 

adamant that, to their knowledge, they could not possibly have 

tested positive for drugs. The MRO confirms that it is positive, and 

they have been very adamant and wanted to have these samples, 

DNA tested. 

Well, we have to tell them, you can go to that trouble and expense if you like. The problem is it will do no good because it is 

not allowed under the rules. 

Mrs. NAPOLITANO. Mr. McLuckie? 

Mr. MCLUCKIE. Two points, Congresswoman: One is we would 

prefer a national system with national standards, uniform standVerDate 0ct 09 2002 11:07 Apr 08, 2008 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 P:\DOCS\38866 HTRANS1 PsN: JASON
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ards versus 50 State systems that all might have different criteria 

and different requirements. 

Secondly, we would be concerned about devising a method for 

expunging the records of drivers who have undergone treatment 

and rehabilitation. Employers and medical review officers only 

keep records for a certain period of time. We would have to look 

at how long a person might be on this register if they have gone 

through a rehab process and would it be fair to keep them on this, 

keep their violation on that list forever. 

Mrs. NAPOLITANO. What would you consider adequate? 

Mr. MCLUCKIE. I would say somewhere in the period of three to 

five years. 

Mrs. NAPOLITANO. If they had no further violations? 

Mr. MCLUCKIE. Right, correct. 

Mrs. NAPOLITANO. Very interesting, there is a lot of substance in 

that. 

Mr. Craig, the NTSB has said that the owner-operators are in 

the precarious position of overseeing their own substance abuse 

program. The protections are in place to ensure that all of the drug 

and alcohol program requirements are enforced including those 

that mean putting a driver out of service after a positive test. How 

do you feel on that? 

Mr. CRAIG. Well, certainly, as I have mentioned earlier, we do 

have a consortium that OOIDA runs, and we have seen that as 

being a problem. 

Really, under the rules as they are right now, if someone refuses 

to test, there are certain exceptions where the C/TPA, in an instance where you have a one truck-one driver motor carrier, will 

enter that information as a refusal in the system, but the rules 

allow us to go no further. It takes the designated employer representative to order that driver out of service for safety-sensitive 

duties and go through the SAP process. Under those rules, the consortium has no method of doing that. 

Mrs. NAPOLITANO. But in the reality of things, not all the independent truck drivers belong to the association. 

Mr. CRAIG. No, the don’t. Basically, for a one truck-one driver 

motor carrier, though, they would have to participate in a random 

selection pool of two or more drivers. Obviously, as a single one, 

you can’t do a random selection. So that is how the vast majority. 

I don’t know of anyone who could not participate with a consortium or a third party administrator or some sort so they could participate within their drug testing pool. 

Mrs. NAPOLITANO. Thank you. 

Mr. Boozman. 

Mr. BOOZMAN. Thank you, Madam Chair. 

Mr. Woodruff, would you describe how hair testing, how that 

method sometimes is more advantageous over the urine test? 

Mr. WOODRUFF. Yes, Congressman Boozman. J.B. Hunt has been 

conducting hair testing of drivers for about a year now, and we are 

conducting hair testing along with urine testing. We have to do 

urine testing to comply with the Federal regulations. 

We do hair testing under a company policy test. We test for the 

same five-panel drugs that the DOT urine test requires. We also 

use a medical review officer review of those results as well, involvVerDate 0ct 09 2002 11:07 Apr 08, 2008 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 P:\DOCS\38866 HTRANS1 PsN: JASON
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ing the interview of any drivers who have a positive result. So we 

are trying to follow the best that we can a similar protocol as DOT 

in terms of the drugs we test for, the cutoff levels and the process. 

We are finding a higher rate of positive drug use when we use 

a hair specimen. Hair specimens are very difficult to adulterate 

and to substitute, so we would like to see that as an alternative 

specimen for complying with the Federal requirements. 

Mr. BOOZMAN. I guess the follow-up would be what steps should 

be taken by Congress and Government agencies to encourage the 

use of alternative specimen testing? Do you have any? 

Mr. WOODRUFF. We would like to see Congress direct SAMHSA 

and DOT to finalize rules that would permit alternative specimens 

to be used by motor carriers if they so choose. 

Mr. BOOZMAN. Thank you very much. 

Mr. WOODRUFF. Thank you. 

Mr. BOOZMAN. Let me ask all of you. I am going to start with 

Mr. Woodruff. 

The current legislation authorizing transportation drug and alcohol testing has been in existence for several years. If Congress was 

to advocate a study of the effectiveness of the Government-mandated drug and alcohol programs, what are some of the areas that 

you all feel like should be examined? 

Mr. WOODRUFF. I will begin and say that we have heard a lot 

of numbers here today as to what the real positive rate is for drug 

use, illegal drug use among truck drivers. Probably the low end is 

2 percent which is the positive random rate that FMCSA reports, 

and then we have heard numbers as high as maybe 10 percent and 

some others in between. The reality is that the positive rate for 

drivers is probably somewhere in the middle there. 

In terms of studying effectiveness, I think it would be a good idea 

that we do look at these alternative specimens to determine whether or not they could provide us a better result and a more accurate 

result. So that would be where I would start. 

Then, of course, we feel like the national repository would give 

the motor carriers the tools that they need to help be part of the 

solution to this as opposed to putting this data into an FMCSA 

database that only enforcement people have access to. 

This is currently a requirement of the driver to disclose, the 

motor carrier to inquire with other prior motor carriers and a requirement for other former motor carriers to provide that data, but 

we should be making rules that make it easier for us to do what 

the regulations require of us. 

Mr. BOOZMAN. Mr. Craig? 

Mr. CRAIG. Yes, thank you, Congressman Boozman. One thing, 

obviously, the rules are designed all across the board to prevent accidents and injuries and fatalities certainly. What we would like to 

see is take a closer look at how the testing rates really correlate 

with accidents. 

We have heard some statistics thrown around there, but I don’t 

know if the Agency has really been taking, FMCSA has really been 

taking a close enough look at that. I don’t know just how much. I 

guess you could take a look at post-accident, obviously, statistics 

and see how they compare with the random selection rate. 

61

Obviously, another area too is the collection sites. As I mentioned, we see problems on one side and on the other, and they 

definitely need to be cleaned up. 

There is one other thing too that we have considered that might 

work quite well, that would have a dual effect. The vast majority 

of truckers or commercial drivers in general do not use drugs. However, they are painted with the same brush and must participate 

in the same program, the same random selection rate and everything. Currently, the selection rate for random drug testing is at 

50 percent. 

What we would kind of like to see is a system whereby those individuals who have passed a certain number of tests with negative 

results, pick a number, four or five, and have proven themselves 

to be non-drug users, to be placed into a lower random selection 

pool, a lower percentage selection rate of, say, 25 percent. That 

would reward the non-drug users and, at the same time, it would 

help out because they wouldn’t be diluting the 50 percent testing 

pool. 

We think that that would have a very good effect on the random 

selection process in the future. 

Mr. BOOZMAN. Thank you. 

I know we have to go, Madam Chair. We have a vote on. 

Do you have anything in one minute that you would like to add? 

Mr. MCLUCKIE. Certainly, Congressman. I think the testimony 

today supports collection facility oversight, the possible licensing of 

laboratory personnel, and getting these adulterating products off 

the market. 

We would certainly look at the use of alternative specimens. It 

might relieve some of the privacy issues related to urine samples, 

and we would certainly be receptive to looking at those kinds of 

things. 

Mr. BOOZMAN. Thank you very much. 

Thank you, Madam Chair. 

Mrs. NAPOLITANO. Thank you to the panel. I think we do have 

to go and vote, and I don’t think you want to sit here until next 

week because we are leaving after that. 

I appreciate your testimony. There will be some questions sent 

to you. We would appreciate a prompt reply. The record will remain open for 10 work days for additional input from the panel, 

Members and anybody who has an interest in this matter. 

With that, this hearing is adjourned. Thank you, gentlemen. 

[Whereupon, at 2:05 p.m., the Subcommittee was adjourned.]

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