Federal drug testing regulations require commercial motor carriers to have a drug testing program that covers transportation safety-sensitive employees who operate commercial motor vehicles with a gross vehicle rating of 26,001 pounds or more; are designed to transport 16 or more passengers, including the driver; or are of any size and are used in the transportation of placarded quantities of hazardous materials. While the largest motor carriers operate upward of 50,000 vehicles, most carriers are small, with approximately 80 percent operating between one and six vehicles. Carriers continually enter and exit the industry, and turnover among small carriers is high, thereby making them harder to track. Since 1998, the industry has increased in size by an average of about 29,000 interstate carriers per year. The Omnibus Transportation Employee Testing Act of 1991 required DOT to implement drug testing using urine specimens. According to DOT, in 2006, there were approximately 7.32 million DOT-regulated tests conducted. DOT’s drug testing both identifies and deters illegal drug use, with the objective of improving road safety by preventing crashes in which the driver’s use of illegal drugs may be a contributing factor. According to the Substance Abuse Program Administrators Association, illegal drug use impacts driver safety in more ways than simply “impairment.” Risk-taking behavior, cognitive degradation, and inattention are all correlated with illegal drug use, even when the individual is not “impaired” from a toxicological perspective. As implemented by DOT, testing covers five drug categories: marijuana, cocaine, amphetamines (including methamphetamine), opiates (including codeine, morphine, and heroin), and phencyclidine (PCP). Motor carriers are required to obtain a negative test result prior to employing drivers and allowing them to engage in safety-sensitive duties. Carriers also must conduct random testing, postaccident testing, and reasonable suspicion testing. If employees test positive, refuse to test, or otherwise violate the regulations, they are required to complete a return-to-duty process before re-engaging in safety- sensitive duties. The return-to-duty process is guided by a substance abuse professional and must include education or treatment, return-to-duty testing, follow-up testing, and possible aftercare. Motor carriers must implement a drug testing program and may use service agents to perform some or the majority of the tasks needed to comply with DOT drug testing requirements. At a minimum, a motor carrier must designate one of its employees to act as an employer representative. A designated employer representative is authorized by the carrier to take immediate action to remove a driver from safety-sensitive duties after being notified of a positive or refusal-to-test result. Service agents cannot act as designated employer representatives. Service agents must meet qualification requirements and are responsible for implementing the required protocols. Figure 1 provides information about DOT’s drug testing process and the role of service agents. Service agents include the following: A collector instructs drivers during the urine collection process, makes an initial inspection of the specimen provided, divides the specimen into primary and split specimens, and sends it to the laboratory for analysis. A collection site can be any toilet in a clinic, hospital, or office building; a toilet on site at a carrier’s place of business; or a portable toilet. A laboratory analyzes the specimen. DOT is required to adhere to testing protocols developed by HHS and to use laboratories certified by HHS; as of April 2008, there were 42 such laboratories. A medical review officer, who is a licensed physician, is responsible for receiving and reviewing laboratory results for a carrier’s drug testing program and evaluating medical explanations for certain drug test results. In cases of confirmed positive, adulterated, substituted, or invalid test results the officer must verify the laboratory results by speaking with drivers and informing them of their right to have the split specimen tested. A substance abuse professional evaluates drivers who have tested positive or refused to take a test and makes recommendations about the return-to-duty process, which could include education, treatment, return- to-duty testing, follow-up testing, and aftercare. Drivers are required to complete the recommended steps before they re-engage in safety-sensitive functions. A consortium/third-party administrator is a company that can provide or coordinate either a variety of or all of the above services for carriers and owner-operators. The enormity and fluidity of the motor carrier industry and its service agents, and FMCSA’s limited resources, do not allow for firm control over motor carriers or service agents in following drug testing requirements. As of September 2007, there were approximately 724,000 commercial motor carriers registered in FMCSA’s Motor Carrier Management Information System. FMCSA partners with states to provide oversight for safety requirements, including drug testing. In addition to FMCSA, other DOT administrations such as the Federal Aviation Administration (FAA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), and Pipeline and Hazardous Materials Safety Administration oversee safety requirements, including drug testing, in the aviation, railroad, transit, and pipeline industries respectively. According to the Substance Abuse Program Administrators Association, of these administrations, FMCSA has the largest number of entities to oversee and the fewest personnel, per company, to do so. See appendix II for more detailed information on DOT administration oversight of drug testing programs. FMCSA has responsibility for ensuring compliance by trucking and motor coach companies with all types of safety requirements, such as vehicle inspections and hours of service, as well as drug and alcohol testing requirements. FMCSA and its state partners ensure compliance through several oversight activities, including safety audits of new entrants and compliance reviews of existing companies—both of which cover compliance with all types of safety requirements, including drug testing. Safety audits are required for all new entrants to the trucking industry and are opportunities for FMCSA and states to provide educational and technical assistance to new carriers, explain carriers’ responsibilities under the federal requirements, and check for operational deficiencies. Nearly 37,000 safety audits were conducted in 2007. FMCSA uses a risk- based approach in addressing safety priorities with compliance and enforcement resources. For example, FMCSA targets carriers for compliance reviews based primarily on a poor carrier safety record in SafeStat, which assigns each carrier a priority to receive a compliance review. FMCSA also targets carriers for compliance reviews based on a fatal accident, a complaint against the carrier or driver, or a follow-up investigation after violations. In 2007, FMCSA and state investigators conducted 16,000 compliance reviews. In addition to the audits and compliance reviews, FMCSA also makes educational materials about drug testing available on its Web site. Data from FMCSA’s oversight activities show that noncompliance and poor compliance with the drug testing requirements is widespread. The most frequently cited drug testing violation found in new-entrant safety audits, which was found in 30 percent of safety audits conducted since 2003, was that carriers had no drug testing program at all. The two most frequently cited drug testing violations in compliance reviews in 2007 were that carriers have failed to adequately implement random drug testing or pre-employment testing (see fig. 2). Over half of the 3,075 random testing violations and 2,761 pre-employment testing violations resulted in fines, with an average fine of $1,908 for random testing and $1,605 for pre- employment testing. Of the 190 cases in which a carrier failed to remove a driver with a positive drug test from service, almost 80 percent resulted in a fine, averaging $3,141. While FMCSA conducts oversight of motor carriers to ensure compliance with drug testing requirements, FMCSA only conducts oversight of service agents employed by the carrier in cases of specific allegations or complaints. Few carriers conduct regular oversight of the service agents they employ, and smaller carriers are less likely to conduct such oversight, given their more limited resources. Other DOT administrations, including FAA, FRA, and FTA, oversee service agents in various ways by conducting regular compliance reviews, drug testing-specific audits, service agent- specific audits, and follow-up after complaints. These administrations can also use public interest exclusions to enforce service agent compliance. A recent GAO report found that there is a lack of compliance with protocols among service agents that collect specimens for testing. Posing as commercial truck drivers needing DOT drug tests, GAO investigators determined that 22 of the 24 collection sites they tested were not in compliance with some of the protocols that guide the process of collecting a urine specimen. A number of factors create challenges for FMCSA to ensure that all drivers are in a drug testing program, drivers’ ability to avoid detection by a drug test is limited, and drivers who test positive are removed from safety- sensitive duties until they have completed return-to-duty requirements. First, the factors that contribute to drivers not being subject to testing include limitations in FMCSA’s oversight resources. Limited resources mean many carriers have little likelihood of ever being reviewed, which may reduce the incentive for carriers to follow the regulations. Some carriers also report confusion about how to implement effective drug testing programs. Second, factors that contribute to drivers’ ability to avoid detection include the ease with which the urine specimen can be subverted because of noncompliant collection sites and the wide availability of products for adulterating or replacing the urine sample. In addition, drivers could be using drugs for which DOT does not test. Third, factors that lead to potentially thousands of drivers who test positive to continue to drive without completing the required return-to-duty process include the nonreporting of past positive drug tests by drivers to prospective employers and self-employed owner-operators who fail to remove themselves from service. Due to the large number of motor carriers regulated, FMCSA reviews only a small percentage of the total number of carriers.