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Could Better Identify Illegal Drug Users and Keep Them off the Road' 
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Report to Congressional Requesters: 

United States Government Accountability Office: 
GAO: 

May 2008: 

Motor Carrier Safety: 

Improvements to Drug Testing Programs Could Better Identify Illegal 
Drug Users and Keep Them off the Road: 

GAO-08-600: 

GAO Highlights: 

Highlights of GAO-08-600, a report to congressional requesters. 

Why GAO Did This Study: 

Federal law requires commercial drivers to submit urine specimens for 
drug testing. The Federal Motor Carrier Safety Administration (FMCSA) 
is responsible for ensuring that motor carriers comply with these 
regulations. Recent reports have raised concerns that some drivers may 
not be tested, some may be tested but avoid detection, and some may 
test positive but continue to drive. GAO was asked to look at these 
challenges. This report reviews (1) the factors that contribute to 
challenges related to drug testing and (2) the various options that 
exist to address these challenges. GAO obtained information from a wide 
variety of stakeholders in the drug testing industry, and analyzed data 
from FMCSA and others to determine the potential effectiveness of 
various options. 

What GAO Found: 

Many factors contribute to the challenges of detecting drivers who are 
using illegal drugs and keeping them off the road until they complete 
the required return-to-duty (treatment) process. Factors contributing 
to drivers not being in a drug testing program include FMCSA's limited 
oversight resources for all carriers and limited enforcement options 
for safety audits of new carriers. Although FMCSA and its state 
partners review thousands of carriers each year, these reviews touch 
about 2 percent of the industry. As a result, carriers have limited 
incentives to follow the regulations. Factors contributing to failures 
to detect drug use include the ease of subverting the urine test, 
either because collection sites are not following protocols or because 
drivers are using products that are widely available to adulterate or 
substitute urine specimens. For example, GAO investigators, posing as 
commercial truck drivers needing drug tests, found that employees at 10 
of 24 collection sites tested did not ask the investigator to empty his 
pants pockets, as they are required to do, to ensure he was not 
carrying adulterants or substitutes. Factors contributing to drivers 
testing positive yet continuing to drive include drivers not divulging 
past drug test history, carriers’ failure to conduct thorough 
background checks on a driver’s past drug testing history, and self-
employed owner-operators’ failure to remove themselves from service. 

GAO’s analysis identified the following options as having the greatest 
potential for addressing these challenges: 

* For increasing the number of drivers tested: strengthen the 
enforcement of safety audits for new carriers. Stiffer requirements for 
having a testing program will likely result in more new entrants having 
effective drug testing programs. DOT has begun this improvement. 

* For reducing opportunities to subvert the test: additional authority 
to levy fines when collection sites do not follow federal protocols. 
This could decrease the opportunity to subvert the test. Also, 
congressional action to ban subversion products at the federal level 
could make these products more difficult to obtain. 

* For reducing the number of drivers who test positive and continue to 
drive: a national database of drug testing information. This would 
allow for more thorough checking of applicants’ past test results. 
FMCSA has begun to lay the groundwork for a database, but FMCSA may 
need additional authority to ensure accurate reporting of information. 
Also, using the database to encourage states to suspend a driver’s 
commercial driver’s license after a positive drug test or refusal to 
test would be a more direct way to compel drivers to complete the 
return-to-duty process. 

Any of these options would require either additional resources or a 
transfer of resources that fund other safety-related initiatives, and 
some of the options require federal or state legislation and rule 
making. A national database would have to consider driver protections 
and a process by which information can be corrected or removed. 

What GAO Recommends: 

GAO recommends that the Secretary of Transportation expedite efforts 
related to improving safety audits and implementing a national database 
of drug testing information. GAO suggests Congress consider (1) 
adopting legislation to ban subversion products, (2) providing FMCSA 
with additional authority over entities involved in the drug testing 
process, and (3) encouraging or requiring states to suspend commercial 
driver’s licenses of drivers who fail or refuse to take a drug test. 
DOT and HHS generally agreed with the findings and recommendations in 
this report. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-600]. For more 
information, contact Katherine A. Siggerud at (202) 512-2834 or 
siggerudk@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

Several Factors Contribute to the Challenges in FMCSA's Current Drug 
Testing Program: 

Options for Addressing Challenges Involve Effectiveness and Feasibility 
Trade-offs: 

Conclusions: 

Matters for Congressional Consideration: 

Recommendations for Executive Action: 

Agency Comments: 

Appendix I: Scope and Methodology: 

Appendix II: Oversight of Drug Testing Programs by Selected DOT 
Administrations: 

Appendix III: States That Require Reporting of DOT Drug Test 
Information: 

Appendix IV: Issues to Consider in Creating a National Database and 
Commercial Driver's License Suspension Requirement: 

Appendix V: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Approaches to Improve Effectiveness of DOT's Drug Testing 
Program: 

Table 2: Approaches to Reduce the Number of Drivers Who Are Not in Drug 
Testing Programs: 

Table 3: Approaches to Increase the Detection of Drivers Using Drugs: 

Table 4: Approaches to Reduce the Number of Drivers Who Test Positive 
or Refuse to Test Yet Continue to Drive without Going through the 
Return-to-Duty Process: 

Table 5: List of Federal Agencies, State Agencies, and Industry 
Associations Interviewed: 

Table 6: DOT Administration Oversight of Drug Testing Programs: 

Table 7: States That Have Created Databases or Note the Motor Vehicle 
Record: 

Table 8: States That Take Action Against Drivers Who Test Positive or 
Refuse to Test: 

Figures: 

Figure 1: Overview of the DOT Drug Testing Process: 

Figure 2: Top Five Drug and Alcohol Testing Violations and Associated 
Fines in Compliance Reviews, 2007: 

Abbreviations: 

AAMVA: American Association of Motor Vehicle Administrators: 

CCF: Federal Drug Testing Custody and Control Form: 

CDL: commercial driver's license: 

CDLIS: Commercial Driver's License Information System: 

DOT: Department of Transportation: 

FAA: Federal Aviation Administration: 

FMCSA: Federal Motor Carrier Safety Administration: 

FRA: Federal Railroad Administration: 

FTA: Federal Transit Administration: 

HHS: Department of Health and Human Services: 

MVR: motor vehicle record: 

ODAPC: Office of Drug and Alcohol Policy and Compliance: 

PCP: phencyclidine: 

SafeStat: Motor Carrier Safety Status Measurement System: 

SAMHSA: Substance Abuse and Mental Health Services Administration: 

[End of section] 

United States Government Accountability Office: Washington, DC 20548: 

May 15, 2008: 

The Honorable James L. Oberstar: 
Chairman: 
Committee on Transportation: 
and Infrastructure House of Representatives: 

The Honorable Peter A. DeFazio: 
Chairman: 
Subcommittee on Highways and Transit: 
Committee on Transportation and Infrastructure: House of 
Representatives: 

Every year, approximately 5,500 fatalities and 160,000 injuries result 
from crashes involving large trucks and buses. While vehicle problems 
and driver behaviors such as speeding or fatigue are the most 
frequently cited factors involved in these crashes,[Footnote 1] studies 
indicate that operating a motor vehicle while under the influence of 
drugs or alcohol, or both, can increase crash risk anywhere from two-to 
six-fold.[Footnote 2] Since 1988, federal regulations have required 
commercial drivers to be tested for drugs and alcohol in order to 
reduce the number of crashes that occur as a result of illegal drug use 
and alcohol misuse.[Footnote 3] This is a sizable undertaking since 
more than 700,000 commercial motor carrier companies are registered 
with the federal government and thousands of new, often small, carriers 
enter the industry each year. The Department of Transportation (DOT) 
and one of its administrations, the Federal Motor Carrier Safety 
Administration (FMCSA), publish regulations that govern the drug and 
alcohol testing process for truck and motor coach drivers.[Footnote 4] 
FMCSA is responsible for ensuring that motor carriers comply with these 
regulations and does so through safety audits of carriers that have 
recently started operations and compliance reviews of carriers already 
in the industry. FMCSA officials and some stakeholders we met with 
agreed that FMCSA's drug testing requirements have been successful in 
deterring and reducing illegal drug use among those employed in 
transportation safety-sensitive positions. 

Drug testing results indicate that some drivers are using illegal 
drugs. FMCSA data show that each year from 1994 through 2005, between 
1.3 percent and 2.8 percent of drivers tested positive for the presence 
of illegal drugs under random testing. However, these statistics do not 
indicate the full extent of drug use among truck drivers, and the 
current drug testing program does not guarantee that drivers who do 
test positive or refuse to be tested are disqualified from driving 
until they complete the required return-to-duty process.[Footnote 5] In 
particular, the following issues have been identified that suggest 
there is reason for concern regarding the potential extent of drug use 
among truck drivers: 

* An unknown number of commercial drivers who use illegal drugs are not 
part of a drug testing program. Statistics from compliance reviews 
indicate that over 9 percent of these reviews conducted between 2001 
and 2007 found that carriers have no drug testing program at all, 
meaning that many drivers are not subject to a drug testing program. 
While most of those who are not tested would likely test negative for 
drugs, it is likely that some drivers who would test positive for drugs 
are not being tested. 

* An unknown number of drug users manage to avoid detection even when 
they go through the testing process. For example, some drivers are 
successfully adulterating or substituting their urine specimens with 
products that are widely available and marketed as allowing drivers to 
"beat" the test. 

* Among the drivers who test positive, an unknown number continue to 
drive--primarily by "job-hopping"--without completing a required return-
to-duty process guided by a substance abuse professional. There is 
little data on the number of drivers who complete the return-to-duty 
process. A Director of the Substance Abuse Program Administrators 
Association conservatively estimates that less than half of commercial 
driver's license (CDL) holders who test positive or refuse to test 
successfully complete the return-to-duty process before returning to 
their jobs.[Footnote 6] Those who do not go through the return-to-duty 
process and continue to drive are called job-hoppers--job-hoppers test 
positive for one carrier; are fired, quit, or are not hired; do not go 
through the return-to-duty process; abstain from drug use for a short 
period; test negative on a pre-employment test for another carrier; go 
to work for another carrier; and could continue to use drugs. 
Furthermore, self-employed owner-operators are also unlikely to remove 
themselves from safety-sensitive duty in the event of a positive test, 
though it is not known how many truly self-employed owner-operators 
exist.[Footnote 7] 

In light of these issues, this report examines (1) the factors that 
contribute to the main challenges of ensuring all drivers are in a drug 
testing program, limiting drivers' ability to avoid detection by a drug 
test, and keeping drivers off the road once they have tested positive; 
and (2) the options that exist for addressing these challenges, the 
potential effect of these options, and the challenges that would be 
faced in implementing them. 

To address these issues, we reviewed DOT and FMCSA regulations, 
policies, and reports, and interviewed officials from FMCSA and DOT's 
Office of Drug and Alcohol Policy and Compliance (ODAPC) and the 
Department of Health and Human Services' (HHS) Substance Abuse and 
Mental Health Services Administration (SAMHSA). This review focuses on 
the controlled-substance portion of the drug and alcohol testing 
regulations and does not address alcohol testing. We analyzed FMCSA 
data on the results of compliance reviews and safety audits, as well as 
data on enforcement activities. We interviewed motor carrier industry 
associations representing many segments of the motor coach and trucking 
industry, such as the American Trucking Association, the Owner-Operator 
Independent Drivers Association, the American Bus Association, and the 
National Association of Small Trucking Companies. We also interviewed 
officials from unions representing truck and bus drivers and from a 
variety of associations representing urine specimen collectors, medical 
review officers, substance abuse professionals, consortiums/third- 
party administrators, and others involved in the drug testing industry. 
We also interviewed representatives from a company that manages several 
HHS-certified laboratories that analyze DOT drug test specimens. We 
observed FMCSA oversight activities, including four compliance reviews 
and two new-entrant safety audits in several states. We selected states 
in which to observe compliance reviews and new-entrant safety audits on 
the basis of the availability of ongoing FMCSA oversight activities. We 
interviewed representatives from the motor carriers being audited. In 
total, we interviewed 10 motor carriers, including both large and small 
carriers, and one owner-operator. We interviewed officials from motor 
vehicle licensing departments in states that had passed laws to require 
reporting of positive drug test results. We interviewed the state 
attorney general's office of a state that passed a law banning 
adulterants and substances to subvert a drug test. We also interviewed 
officials involved in the drug testing programs at other DOT modal 
administrations, including the Federal Aviation Administration, the 
Federal Transit Administration, and the Federal Railroad 
Administration, to gather information on whether these problems are 
common across the administrations, how problems are addressed by the 
other administrations, and how issues and circumstances in the other 
modal administrations can or cannot be compared with FMCSA's 
experience. 

In the course of our interviews and analyses, we identified many 
options that have been suggested as possible ways to address problems 
or weak points in FMCSA's current drug testing program. We assessed the 
various options for their likely effectiveness in addressing the 
particular problem they were designed to address and their feasibility 
from the standpoint of cost, support, and amount of effort involved in 
implementation. Our assessments were based on (1) analyzing and 
synthesizing the views of the various government officials and industry 
stakeholders we interviewed with regard to their estimations of the 
potential effectiveness and feasibility of pursuing various options; 
(2) reviewing studies that have been conducted regarding the 
feasibility of certain options; (3) analyzing cost and other data; and 
(4) analyzing the experience of other modal administrations or entities 
in implementing various options, where applicable. Inherently there are 
certain limitations and variances in the quality of data and 
information available about certain options. Therefore, we used a 
certain amount of professional judgment in comparing options relative 
to one another. We determined that the data used in this report are 
sufficiently reliable for our purposes. We conducted this performance 
audit from June 2007 to May 2008 in accordance with generally accepted 
government auditing standards. Those standards require that we plan and 
perform the audit to obtain sufficient, appropriate evidence to provide 
a reasonable basis for our findings and conclusions based on our audit 
objectives. We believe that the evidence obtained provides a reasonable 
basis for our findings and conclusions based on our audit objectives. 

Results in Brief: 

Many factors contribute to the three main challenges FMCSA faces in 
ensuring all drivers are in a drug testing program, limiting drivers' 
ability to avoid detection by a drug test, and keeping drivers off the 
road once they have tested positive or refused-to-test. 

* First, factors that lead to drivers not being in a drug testing 
program include limitations in FMCSA's oversight resources for existing 
carriers and limitations in FMCSA's enforcement options when conducting 
safety audits of new carriers. FMCSA's limited oversight resources 
lessen the incentive for existing carriers to follow the regulations. 
FMCSA and its state partners conducted an average of approximately 
13,000 compliance reviews on carriers each year from 2001 through 2007, 
and these reviews were targeted based on risk.[Footnote 8] However, 
over 700,000 carriers are registered with DOT, and over 70 percent of 
those do not have a safety record and therefore would not be targeted 
for a compliance review. Furthermore, FMCSA has conducted safety audits 
on tens of thousands of new carriers each year, often finding that 
carriers do not have a drug testing program. However, a new carrier can 
still pass a safety audit without a drug testing program, and FMCSA 
follow-up to ensure that problems were corrected does not always occur. 

* Second, factors that create opportunities for subversion of the urine 
test and lead to drug users avoiding detection include lack of 
compliance with DOT protocols by collectors, little oversight of 
collectors and service agents by FMCSA, and the availability of 
subversion products.[Footnote 9] For example, a recent GAO 
investigation found that collectors at 10 of 24 sites tested failed to 
ask the GAO investigators, who were posing as truck drivers, to empty 
their pants pockets to ensure no items were present that could be used 
to adulterate the specimen, as required by DOT protocols.[Footnote 10] 
However, FMCSA does not conduct regular oversight over collectors and 
other service agents and does not have authority to impose civil 
penalties against service agents to enforce compliance. Furthermore, 
subversion products are widely available and marketed on the Internet 
and are not illegal under federal law. Also, GAO investigators 
purchased adulterants and synthetic urine through the Internet and used 
them in 8 of the 24 drug test specimens.[Footnote 11] The laboratories 
that analyzed the 8 specimens did not detect the adulterants or 
substitutes the investigators used. 

* Third, factors that contribute to drivers continuing to drive after 
testing positive or refusing to test include drivers not reporting 
their drug testing history, incomplete background checks by carriers, 
and loopholes for self-employed drivers. For example, drivers are not 
likely to list on their job application any previous employment where 
they tested positive or refused to test, although they are required to 
include this information. Further, a failure to conduct required 
background checks--which includes checking for past positive drug 
tests--is one of the top violations found in compliance reviews. 
Finally, self-employed drivers are not likely to remove themselves from 
service after testing positive. 

Our analysis and discussions with carriers, industry associations, DOT, 
and others identified a number of options that could potentially 
address some of the factors that contribute to the challenges in 
FMCSA's drug testing program. The options involve trade-offs between 
effectiveness and feasibility, and no one option comprehensively 
addresses all three main challenges we found. Implementing any options 
would require either additional resources or a transfer of resources 
that fund other initiatives related to road safety, and some options 
require a federal rule-making process and legislation. Among the 
various options available, the following appear to offer the greatest 
benefit for the additional resources that would be needed: 

* For increasing the number of drivers that are in a drug testing 
program: strengthening the enforcement of safety audits for new 
carriers. Under this option, which DOT has already begun to implement, 
a new entrant would risk failing the safety audit if a drug testing 
program is not in place. We also considered other options, such as 
increasing oversight of carriers or conducting additional audits, but 
these options would generally require a higher level of expenditures to 
produce effective results, and such expenditures should be viewed 
relative to expenditures that can be made in other areas that may also 
have an impact on safety. 

* For ensuring better reliability of the test itself: additional 
authority over service agents and congressional action to ban 
subversion products at the federal level. FMCSA currently does not have 
authority to levy fines for service agents' noncompliance with DOT 
requirements. Such authority would likely send a message to the 
industry that there are consequences for failing to comply and could 
bring many service agents into compliance. A ban on subversion products 
at the federal level could have a deterrent effect on some sellers and 
on buyers because the banned product would be more difficult to obtain. 
Further, a federal law would allow for prosecution in any state, if an 
individual were found to be manufacturing, selling, or possessing such 
products. 

* For reducing the number of drivers who test positive and continue to 
drive: a national database of drug testing information and authority to 
suspend a commercial driver's license (CDL) for a positive drug test 
result or refusal-to-test. A national database is attractive because it 
provides information on a driver's past drug test history and helps 
ensure that a carrier will not unknowingly hire a job-hopper. 
Furthermore, FMCSA has begun to lay the groundwork for such a database. 
FMCSA may need additional authority over service agents to ensure 
reporting of information to the database. FMCSA would also need to 
consider driver protections and a process by which information can be 
corrected or removed from the database. State suspension of a driver's 
CDL for a positive test or a refusal to take the test could be an 
effective deterrent because it directly affects a driver's commercial 
license and ability to operate a commercial motor vehicle and addresses 
issues surrounding poor compliance by carriers as well as inherent 
problems with self-employed drivers. Because CDLs are issued by states, 
Congress would need to take action to encourage or compel states to 
create or modify existing state laws to suspend a driver's CDL. 

To improve the reliability of the drug test to detect illegal drug use, 
to ensure that FMCSA has the appropriate authority over service agents 
in the drug testing process, and to increase compliance with drug 
testing requirements, Congress should consider (1) adopting legislation 
to ban drug testing subversion products, (2) granting FMCSA oversight 
and enforcement authority over service agents involved in the drug 
testing process, and (3) taking action to encourage or compel states to 
require the suspension of the CDLs of drivers who have tested positive 
or who have refused to take a DOT drug test. To help FMCSA ensure 
drivers who should be drug tested are in a drug testing program, and 
drivers who have tested positive are kept off the road until they have 
complied with return-to-duty requirements, we recommend the Secretary 
of Transportation expedite the rule-making process (1) to strengthen 
the requirements of safety audits for new entrants and (2) to create a 
national database of positive and refusal-to-test drug and alcohol test 
results. 

We are making recommendations in this report that the Secretary of 
Transportation take actions to assist FMCSA in ensuring drivers who 
should be drug tested are in a drug testing program, and drivers who 
have tested positive are kept off the road until they have complied 
with return-to-duty requirements. In commenting on a draft of this 
report, DOT and HHS generally agreed with the findings and 
recommendations and provided technical clarifications, which we 
incorporated as appropriate. 

Background: 

Federal drug testing regulations require commercial motor carriers to 
have a drug testing program that covers transportation safety-sensitive 
employees who operate commercial motor vehicles 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. 
[Footnote 12] 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[Footnote 13]), 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,[Footnote 14] 
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.[Footnote 15] 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. 

Figure 1: Overview of the DOT Drug Testing Process: 

[See PDF for image] 

This figure is an illustration of an overview of the DOT drug testing 
process. The following information is depicted: 

Notification: 
Drivers are notified to submit to a drug test for one of the following 
reasons: 
* Pre-employment; 
* Reasonable suspicion; 
* Random; 
* Postaccident; 
* Return-to-duty and follow-up. 
Notification given by: Motor carrier or consortium/third party 
administrator. 

Urine collection: 
Drivers report immediately to the collection site, where they: 
* Verify ID and empty pockets; 
* Select sealed kit & provide at least 45 ml of urine; 
* Watch collector check temperature and pour into two bottles--primary 
and split specimen; 
* Watch collector seal bottles and sign paperwork; 
* Collector sends specimens to laboratory. 
Performed by: Collector, who must meet DOT requirements. 

Lab testing: 
Analyzes primary specimen for: 
* Marijuana; 
* Cocaine; 
* Amphetamines; 
* Opiates (focused on heroin); 
* Phencyclidine (PCP); 
May test for presence of adulterants. 
Performed by: Laboratory certified by HHS. 

Medical review: 
Lab results are reviewed to determine if there are legitimate medical 
reasons for positive, adulterated, or substituted result. This includes 
interviews, review of medical records, or request for an examination by 
an approved physician. 
Performed by: Medical review officer, who is nationally certified. 

Employees' rights: 
Upon notice by the medical review officer of a positive, adulterated, or
substituted test result, the driver has 72 hours from the review to 
request the split specimen be tested by another certified laboratory. 
Performed by: Medical review officer and driver. 

Verified results: 
Medical review officer reports verified results to the designated 
employer representative as one of the following: 
* Negative; 
* Positive; 
* Refusal; 
* Canceled. 
Performed by: Medical review officer. 

Action taken: 
If test is positive: 
* Driver is immediately removed from safety-sensitive functions; 
* Driver is permitted to resume duties only after evaluation, treatment 
or education, and negative drug test. 
Performed by: Designated employer representative, substance abuse 
professional, and driver. 

Source: GAO. 

[End of figure] 

Service agents include the following: 

* A collector instructs drivers during the urine collection process, 
makes an initial inspection of the specimen provided, divides the 
specimen into primary and split specimens,[Footnote 16] 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.[Footnote 17] 

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.[Footnote 18] 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.[Footnote 19] 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.[Footnote 20] 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.[Footnote 21] 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.[Footnote 22] 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. 

Figure 2: Top Five Drug and Alcohol Testing Violations and Associated 
Fines in Compliance Reviews, 2007: 

[See PDF for image] 

This figure is a horizontal bar graph depicting the following data: 

Violation: Failure to perform random testing; 
Violations discovered: 3075; 
Violations that resulted in fines: 1604 (average fine: $1,908). 

Violation: Failure to perform pre-employment testing; 
Violations discovered: 2761; 
Violations that resulted in fines: 1504 (average fine: $1,605). 

Violation: No drug testing program; 
Violations discovered: 731; 
Violations that resulted in fines: 693 (average fine: $1,821). 

Violation: Failure to remove a driver with a positive drug test; 
Violations discovered: 190; 
Violations that resulted in fines: 150 (average fine: $3,141). 

Violation: Failure to perform postaccident testing; 
Violations discovered: 172; 
Violations that resulted in fines: 128 (average fine: $1,802). 

Source: GAO analysis of FMCSA data. 

[End of figure] 

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.[Footnote 23] 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.[Footnote 24] 

Several Factors Contribute to the Challenges in FMCSA's Current Drug 
Testing Program: 

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. 

Limited Incentive for Carrier Compliance and Poor Understanding of 
Regulations by Some Carriers Can Result in Drivers Not Being Subject to 
Drug Testing: 

Due to the large number of motor carriers regulated, FMCSA reviews only 
a small percentage of the total number of carriers. Although those 
reviewed typically have been identified as having significant safety 
problems, the limited number of reviews lessens the incentive for 
existing carriers to comply with drug testing requirements. FMCSA and 
its state partners conducted an average of over 13,000 compliance 
reviews annually on carriers from 2001 through 2007, but the majority 
of carriers were not visited and have little likelihood of ever being 
visited.[Footnote 25] Existing owner-operators and small carriers are 
less likely than larger companies to be selected for a compliance 
review, since they are less likely to have a safety record. Several 
associations told us that small carriers may have less incentive to 
comply with drug testing regulations since visits by FMCSA or state 
investigators are rare. 

New-entrant safety audits provide essential educational information to 
new carriers. An FMCSA official told us the majority of new entrants 
are typically visited 8 to 9 months after beginning operations. 
However, before the safety audit occurs, new entrants may operate 
without adequately implementing safety management regulations, 
including drug testing--FMCSA data indicate 30 percent of new entrants 
lack a drug testing program. The purpose of the audit is to educate and 
encourage compliance; under the current rules, absence of a drug 
testing program does not result in a failure of the audit. An FMCSA 
official estimated that less than 1 percent of new entrants fail safety 
audits. After an audit, the carrier is given a list of recommendations 
for corrective actions, but follow-up to ensure these actions were 
taken does not always occur. However, if certain violations are 
discovered during a safety audit, such as if a carrier is found to have 
used a driver who had a positive drug test, the safety audit would end 
and the carrier would be immediately referred for a compliance review. 
FMCSA published a Notice of Proposed Rulemaking to strengthen the 
safety audit pass/fail criteria to give more significance to basic 
safety management requirements, including drug testing, in December 
2006. A Final Rule is expected before the end of 2008. 

Several stakeholders we met with told us that for some carriers, 
particularly small carriers, a poor understanding of their 
responsibilities to implement drug testing regulations can also lead to 
carriers failing to implement a drug testing program, or considerable 
noncompliance with drug testing regulations. For example, one of the 
carriers we met with is in the event industry and uses trucks to haul 
equipment. Since trucking is not the company's core business, the 
company was not aware of the requirement to drug test its drivers. In 
another example, a representative from one carrier we visited explained 
that the company was not sure how to test drivers who work only 
periodically. 

Compliance with drug testing regulations is particularly problematic 
for self-employed owner-operators. Like other drivers employed by motor 
carrier companies, self-employed owner-operators must follow drug 
testing regulations and participate in a drug testing program. A pre- 
employment drug test must be performed, and FMCSA requires that the 
owner-operator must enroll in a consortium for random drug testing 
purposes. However, it is not clear how an individual who is both the 
employer and the employee would comply with drug testing reporting 
requirements. If a self-employed owner-operator tests positive, there 
is no one to remove the individual from safety-sensitive duties. 
Furthermore, self-employed owner-operators probably have the smallest 
chance of being selected for a compliance review because FMCSA will 
most likely not have sufficient data available to create SafeStat 
ratings, unless they are in a crash with a fatality. 

Several Factors Lead to Subversion of the Test and Result in Drug Users 
Avoiding Detection: 

Lack of Compliance by Collection Sites and Other Service Agents: 

Collection sites that are out of compliance with DOT protocols for 
specimen collection make it easier for drivers to subvert a test. For 
example, GAO investigators, posing as commercial truck drivers needing 
DOT drug tests, found that employees at 10 of 24 sites the 
investigators tested failed to ask an investigator to empty his pants 
pockets to ensure no items were present that could be used to 
adulterate the specimen. One employee who did ask the investigator to 
empty his pockets did not verify that all of his pockets were empty, 
and the investigator had hidden an adulterant in his back pocket. At 
other collection sites, investigators found substances available at the 
collection site that could have been used to dilute or otherwise tamper 
with their specimen. At some sites, the investigators found they were 
given ample opportunity to have a different individual come in and 
provide a sample for them. 

While compliance with the regulations and collection protocols 
certainly helps to reduce the opportunity for a driver to adulterate, 
dilute, or substitute a specimen, as evidenced by our investigators' 
findings, full compliance with all protocols does not ensure that no 
cheating will occur. In fact, our investigators were able to substitute 
a specimen at one site that followed all protocols. In addition, the 
investigators concluded that at any collection site they visited, they 
would have been able to tamper with their specimen despite DOT 
protocols. 

Carriers can mitigate the opportunity to cheat on a drug test by having 
on-site collections and limiting the opportunity drivers have to 
retrieve adulterants or substitutes or to dilute their sample. One 
large carrier we interviewed conducts on-site collections with its own 
personnel and has a policy and protocol aimed at minimizing any 
opportunity a driver would have to retrieve an adulterant or 
substitute. At this company, drivers are notified in person of a random 
drug test and are immediately taken to have a specimen collected, 
without the ability to go to a locker, a car, or anywhere else before 
providing the specimen. In order to subvert the specimen in this 
environment, drivers would need to carry an adulterant at all times 
when in the facility. In addition to the DOT-mandated tests, this 
carrier conducts more frequent drug testing. Specifically, the company 
conducts unannounced tests of all drivers at least once each year. 
Also, new drivers, in addition to taking a pre-employment test, are 
tested again, at an unannounced time, within the first 90 days of 
employment. On-site collections may not be practical for smaller 
companies due to their more limited resources and the impracticality of 
having drivers come into the facility without being alerted to the 
possibility that they are being called in for a drug test. 

In addition, other service agents, including consortiums/third-party 
administrators, medical review officers, and substance abuse 
professionals, may be out of compliance. For example, in one of its own 
reviews, FMCSA found that a third-party administrator was not selecting 
drivers at the required 50 percent rate for random tests. In other 
examples, FMCSA found one unqualified individual who was acting as a 
medical review officer and another unqualified individual acting as a 
substance abuse professional who was issuing return-to-duty reports for 
drivers that had not completed their prescribed treatment, in violation 
of return-to-duty requirements. 

Little Oversight of Service Agents by FMCSA: 

Except in the case of specific allegations or complaints, FMCSA 
investigators do not visit or audit collection sites or other service 
agents to observe procedures and enforce compliance with drug testing 
requirements.[Footnote 26] FMCSA and its state partners have a limited 
number of staff who are currently conducting thousands of compliance 
reviews and safety audits. DOT officials have stated that there are 
over 20,000 collection sites across the country that can be used to 
collect urine for DOT drug testing, making oversight of these sites a 
daunting task.[Footnote 27] Oversight by carriers--who are ultimately 
responsible for compliance of their service agents--or by other 
entities that employ the services of collection sites, such as third- 
party administrators, is also limited. One large carrier with whom we 
spoke tests and verifies that the collection sites it uses are in 
compliance, but none of the small carriers we interviewed that had a 
drug testing program in place conducted any oversight. Smaller carriers 
are less likely to conduct such oversight, given their more limited 
resources. Representatives from a consortium/third-party administrator 
with whom we spoke told us that it observes some of the collection 
sites it uses, but it is not clear that this is a common practice. In 
addition, representatives told us that some major collection companies 
internally audit their own sites to ensure compliance with all 
requirements, but again, it is not clear whether this is a widespread 
practice or whether any undercover testing of protocols is occurring. 

FMCSA does not have the authority to levy civil penalties on service 
agents found to be out of compliance. FMCSA officials told us that, at 
most, they can only fine the carrier that uses the service agent--not 
the service agent itself. Several carrier and drug testing industry 
associations we interviewed agreed that a lack of accountability that 
results from limited oversight and enforcement leads to poor compliance 
or noncompliance. FMCSA, ODAPC, and other DOT administrations can 
initiate and have initiated a process known as a public interest 
exclusion to disqualify noncompliant service agents. While no public 
interest exclusion has been formally issued, the process has resulted 
in service agents either correcting noncompliance or going out of 
business. Officials we interviewed who have been involved in initiating 
a public interest exclusion stated that the process could provide a 
greater deterrent if it could be fully completed and a public 
notification of exclusion were issued in the Federal Register. 

Widely Available Products and Other Methods Can Be Used to Subvert the 
Test: 

Several hundred products designed to dilute, cleanse, or substitute 
urine specimens can be easily obtained. The ease with which these 
products are marketed and distributed through the Internet presents 
formidable obstacles to the integrity of the drug testing process. As 
we have previously reported, several states have laws that prohibit the 
manufacture, sale, or use of products intended to subvert drug tests. 
[Footnote 28] To our knowledge, few individuals have been cited or 
convicted for violating these laws. The interstate nature of the 
manufacture and sale of products intended to subvert a drug test 
lessens the impact of state-based laws. In most instances, DOT drug 
testing protocols do not require directly observed collection or a 
thorough search for hidden subversion products.[Footnote 29] Drivers 
intent on adulterating or substituting a urine specimen can conceal 
small vials in socks or other undergarments. For example, our 
investigators were easily able to bring in adulterants and synthetic 
urine they purchased through the Internet at eight collection sites 
where they attempted to do so. 

Another method for substitution is to have someone other than the 
applicant or driver provide the urine specimen. Specimen collectors are 
required to supervise drivers at all times and ensure that undetected 
access to the collection area is not possible. Further, collectors are 
required to identify the driver by looking at a photo ID issued by the 
employer (other than in the case of a self-employed owner-operator) or 
a federal, state, or local government.[Footnote 30] However, GAO 
investigators found that at some collections sites, collectors either 
failed to supervise drivers or failed to ensure that access to the area 
was secure. GAO investigators also were able to successfully use fake 
driver's licenses to gain access to all 24 collection sites.[Footnote 
31] These findings demonstrate that drug users may have opportunities 
to have someone else take a drug test in their place. 

DOT does not require specimens to undergo validity testing, which may 
detect the presence of some adulterants or substitutes, although DOT 
officials stated that laboratory data show that between 98 percent and 
99 percent of DOT specimens undergo such testing.[Footnote 32] However, 
because validity testing procedures are available to the public, makers 
of adulterants can use the information to formulate their products. 
According to statistics from one of the largest HHS-certified 
laboratories, less than 0.1 percent of DOT tests are identified as 
adulterated and substituted. SAMHSA officials with whom we met noted 
that the potential exists for adulterated specimens to go undetected. 
Similarly, when urine specimens are substituted, the test results could 
be negative; therefore, no data exist on the extent to which successful 
substitution occurs. As a result, the rate at which adulteration or 
substitution is occurring is unknown and impossible to determine. Of 
the eight specimens our investigators adulterated or substituted, the 
laboratory did not detect any of the adulterants or substitutes used. 

Drugs for Which DOT Does Not Test: 

Drivers who use illegal substances, such as ecstasy, or misuse legal 
substances, such as a prescription medication containing oxycodone or 
other synthetic opiates, may also be impaired, but they will not be 
flagged by DOT drug tests.[Footnote 33] According to a study by the 
Office of National Drug Control Policy, prescription drugs account for 
the second most commonly abused category of drugs, after marijuana, but 
ahead of cocaine, heroin, and methamphetamine.[Footnote 34] The 
Substance Abuse Program Administrators Association has stated that many 
controlled-substance medications, including painkillers, tranquilizers, 
sedatives, and stimulants can potentially impair an individual's 
ability to drive commercial vehicles, although the extent of impairment 
compared with illegal drugs depends on many factors, including the 
medication dose, the timing of the dose, the individual's tolerance to 
the medication's effects, and interactions with other factors, such as 
fatigue. 

Nonreporting of Past Positives, Incomplete Background Checks, and 
Loopholes for Self-employed Drivers Can Lead to Drivers Testing 
Positive and Continuing to Drive: 

Drivers can easily omit from a job application any previous employer 
for which they tested positive or refused to test or can easily not 
disclose an incomplete return-to-duty process.[Footnote 35] FMCSA 
officials, industry associations, and carriers with whom we spoke told 
us that employers usually terminate drivers who test positive (or do 
not hire those who test positive on a pre-employment test), rather than 
send them through the return-to-duty process, due in part to the 
expense of treatment and rehabilitation. Drivers who do not complete a 
return-to-duty process may either leave the industry or seek employment 
elsewhere in the industry. Such drivers can remain drug free for a 
period of time to pass a pre-employment test and be hired by another 
carrier. The number of drivers who engage in such job-hopping is 
unknown but could be substantial. Of the approximately 85,000 drivers 
that FMCSA data suggest test positive each year on random drug tests, 
the Substance Abuse Program Administrators Association estimates that 
less than half successfully complete the return-to-duty process. 

Noncompliance by carriers can also lead to the possibility of hiring a 
job-hopper. One of the top violations found in compliance reviews is a 
failure to conduct required background checks, which includes checking 
for past positive drug tests. If carriers do request previous drug test 
information, previous employers may not respond to them or may not 
respond in a timely fashion, which was an issue mentioned at all of the 
compliance reviews we observed. In some cases, previous employers may 
have gone out of business. Moreover, in one of the compliance reviews 
we observed, the carrier indicated that some carriers from which he 
requested information charged him for researching their 
records.[Footnote 36] In our observations of compliance reviews, FMCSA 
investigators do not target these nonresponding carriers in order to 
take action against them for noncompliance.[Footnote 37] 

Self-employed owner-operators who test positive will likely continue to 
drive without going through a return-to-duty process. Owner-operators 
are required to follow the drug testing regulations and be in a drug 
testing program like all other drivers employed by motor carrier 
companies; however, there are inherent conflicts for a self-employed 
owner-operator in complying with the requirements. Even if an owner- 
operator who participates in a consortium tests positive, there is no 
process for removing the individual from safety-sensitive duties, and 
no one beyond the owner-operator will be notified of the positive 
result. 

FMCSA is taking actions to try to target drivers who test positive and 
then test negative again within a short period of time, indicating a 
likelihood that they have not completed a return-to-duty process but 
are seeking new employment. This process involves using data from 
service agents who work with multiple companies and have noticed the 
same driver testing positive with one employer and then testing 
negative within a 2-week period for a different employer. According to 
a carrier association, in a recent investigation, FMCSA looked at 69 
positive tests that were received within a 15-day period by a service 
agent and found that 21 of the drivers tested negative in the same 
period for a different employer. According to FMCSA officials, this 
process has been streamlined and simplified and will be included in 
future training for field staff. 

Options for Addressing Challenges Involve Effectiveness and Feasibility 
Trade-offs: 

In discussions with DOT, industry experts, motor carriers, industry 
associations, and other stakeholders, and in reviews of previous 
studies, we identified many options for addressing challenges of the 
current drug testing program. Table 1 lists options that were suggested 
to us most often, have been studied in some detail, or were identified 
through our analysis. No option fully addresses the three main problems 
of drivers not being tested, drivers testing negative but using drugs, 
and drivers testing positive but continuing to drive. Each option would 
require either additional resources or diverting resources currently 
used for other road safety issues. In assessing the potential 
effectiveness and financial and operational feasibility of these 
options, several stood out. The following sections present the best 
options on a problem-by-problem basis. 

Table 1: Approaches to Improve Effectiveness of DOT's Drug Testing 
Program: 

Options to reduce the number of drivers not subject to drug testing: 

* Improve compliance by existing carriers: 
- Increase carrier compliance reviews; 
- Conduct drug testing-only audits of carriers;
- Improve dissemination of information. 

* Improve compliance by new entrants: 
- Strengthen safety audit enforcement; 
- Toughen entry requirements. 

Options to detect more drivers who are using drugs: 

* Improve compliance by service agents: 
- Conduct service-agent-only audits; 
- Visit service agents during carrier compliance reviews. 

* Increase enforcement authority over service agents; 
- Give FMCSA authority to impose civil penalties against service 
agents; 
- Increase use of the public interest exclusion process. 

* Limit ability to subvert urine tests: 
- Adopt a federal adulterant product ban; 
- Stop publishing methods for specimen validity testing; 
- Test alternative specimens; 
- Verify identification of drivers at collection sites. 

* Test for drugs not currently included in DOT tests: 
- Test for additional illegal drugs or some prescription drugs. 

Options to reduce the number of drivers who test positive or refuse to 
test and continue to drive: 

* Reduce job-hoppers: 
- Create a national database of drivers who have tested positive or 
refused to test. 

* Reduce job-hoppers and self-employed owner-operators who fail to 
remove themselves from service after testing positive: 
- Create a procedure for CDL suspension. 

Source: GAO. 

[End of table] 

Improving Carrier Awareness and Compliance with DOT Requirements May 
Reduce the Number of Drivers Not in Drug Testing Programs: 

Increasing the number of drivers who are in drug testing programs 
requires improved compliance by carriers that are already in business 
and by new entrants. There are different options for existing carriers 
and new entrants since some oversight avenues by FMCSA are available 
for new entrants but not for existing carriers. Table 2 summarizes our 
assessment of the effectiveness and feasibility of the options relevant 
to each group. In each case, we identified one option--delineated with 
a check mark--that we believe represents the best combination of 
effectiveness and feasibility. 

Table 2: Approaches to Reduce the Number of Drivers Who Are Not in Drug 
Testing Programs: 

Options: Improve compliance by existing carriers: Increase the number 
of carrier compliance reviews; 
Effectiveness: Has greatest potential impact on increasing drug testing 
compliance and overall safety; 
Feasibility: Substantial cost required for meaningful benefit. 

Options: Improve compliance by existing carriers: Conduct drug testing-
only audits of carriers; In addition to compliance reviews, begin 
reviews that focus only on carriers' drug testing compliance; 
Effectiveness: Depends on effective targeting of carriers; 
Feasibility: Less cost than full compliance reviews. 

Options: Improve compliance by existing carriers: Improve dissemination 
of information; Educate carriers through promotional materials, Web 
site, carrier conferences; 
Effectiveness: Facilitates voluntary compliance. But does not address 
systemic problems and can easily be disregarded by carriers; 
Feasibility: Relatively simple and low cost. 

Options: Improve compliance by existing carriers: Strengthen 
enforcement of new-entrant safety audits; Bolster consequences for 
failing to implement basic safety requirements; 
Effectiveness: Ensures new carriers will rectify noncompliance; 
Feasibility: DOT has begun a rule-making process; minimal additional 
costs. 
[This is the option GAO believes represents the best combination of 
effectiveness and feasibility] 

Options: Improve compliance by existing carriers: Toughen entry 
requirements; Require carriers to pass a new-entrant safety audit prior 
to obtaining a DOT number; 
Effectiveness: Ensures new carriers are aware and understand 
requirements from the start; 
Feasibility: Rule-making process required; resources needed to 
initiate. 

Source: GAO. 

[End of table] 

Options for Improving Compliance by Existing Carriers: 

Of the three options for improving compliance by existing carriers, 
increasing the number of carrier compliance reviews provides the best 
combination of effectiveness and feasibility. Conducting more reviews 
would improve overall compliance with safety requirements. The increase 
in reviews by FMCSA would provide an incentive for carriers to 
implement sound drug testing programs in order to avoid fines for 
noncompliance. FMCSA is planning some changes to the way it targets 
carriers for compliance reviews, which will include additional 
information on illegal drug use and alcohol misuse[Footnote 38]. The 
effectiveness of this option, however, is dependent on how many more 
compliance reviews would be conducted. Compliance reviews are conducted 
for only a small percentage of carriers each year. Providing a more 
meaningful incentive for carrier compliance would likely require a 
substantial increase in this percentage, which reduces the feasibility 
of this option. FMCSA and its state partners currently conduct an 
average of over 13,000 compliance reviews each year. Increasing the 
number of reviews to cover a more substantial portion of the 
approximately 724,000 carriers in the industry would require hiring, 
training, and paying additional investigators or diverting them from 
other existing safety-related tasks. 

Conducting audits specific to drug testing regulations is a second 
option, and while it may be less costly than substantially increasing 
compliance reviews, its potential effectiveness is not as great and 
depends on effectively targeting carriers. Targeting of carriers that 
have already been found to be out of compliance with drug testing 
regulations could be done based on findings of existing compliance 
reviews, but targeting additional carriers may be difficult because of 
a lack of data on drug testing programs outside of compliance reviews. 
Conducting audits specific to drug testing requirements would take less 
time than traditional oversight methods but would require additional 
resources, although not to the same degree as substantially increasing 
carrier compliance reviews. However, this option would dedicate 
resources to drug testing only at the expense of using those resources 
in other ways that could improve overall safety, such as in a full 
compliance review. The audit protocol to be used could be similar to 
the other DOT administrations that conduct drug testing audits, with 
minor changes to reflect FMCSA-specific requirements. 

A third option for improving compliance with drug testing requirements 
among existing carriers is through better education. This would be the 
easiest option to implement, would be effective for carriers and 
facilities that want to comply with regulations, but would likely yield 
fewest results for those deliberately trying to circumvent the 
regulations. Some carriers with whom we spoke, including one whose 
primary business was not transportation, told us that they either were 
not aware of the requirement to drug test their drivers or were 
confused about their responsibilities under the requirements. These 
carriers implied that if they could have more easily understood the 
guidelines, they would have complied. FMCSA already sends some 
information to carriers and provides information on its Web site, and 
officials told us they have plans to send additional materials on the 
drug testing program to carriers and to make the drug testing portion 
of the Web site more user friendly. In dealing with specific 
situational questions, FMCSA also responds to hundreds of drug and 
alcohol telephone inquires and e-mails every week that deal with 
company specific situations. In addition, ODAPC provides information on 
drug testing requirements through speaking engagements and its Web 
site, which has a Web page dedicated to employer issues. Employers and 
others who go to ODAPC's Web site have the ability to "Ask ODAPC" 
specific questions they have regarding program implementation. 
Employers also can phone and fax their inquiries. ODAPC officials 
indicate that they answer the vast majority of email and phone 
inquiries directly. 

Options for Improving Compliance by New Entrants: 

The most promising option for improving compliance by new entrants-- 
strengthening follow-up requirements on safety audits already required 
for entry into the industry--is currently under way. In December 2006, 
FMCSA published a Notice of Proposed Rulemaking to strengthen the 
safety audit pass/fail criteria to give more significance to basic 
safety management requirements, including drug testing. The proposed 
changes would require a new carrier to implement a drug testing program 
or risk failing the safety audit. Under the proposed changes, a motor 
coach or hazardous materials carrier who fails an audit will have 45 
days to correct the deficiencies. All other carriers will have 60 days. 
If the new entrant fails to respond to the notice or fails to correct 
the deficiencies within the 45-or 60-day grace period, FMCSA will issue 
an out-of-service order and revoke the new entrant's registration. 
Strengthening the audit in this way helps ensure new carriers will 
rectify noncompliance, as opposed to the current approach in which the 
carrier receives a list of requirements to implement but may not be 
subject to any follow-up. DOT expects a final rule to be published 
before the end of 2008. Strengthening safety audits requires some 
additional resources to follow up if a carrier fails the audit. 

A second option to improve compliance by new entrants is to require 
them to pass the safety audit before they begin operations. According 
to an FMCSA official, safety audits generally do not occur until 8 to 9 
months after a new entrant has begun operations; this option would make 
passing the safety audit a precondition to operating. Conducting the 
audit before carriers begin operations would help FMCSA ensure that all 
new motor carriers in operation understand their responsibility to 
comply with all safety requirements, including drug testing, but 
includes feasibility challenges. FMCSA officials told us that visiting 
a carrier before it begins operating would not provide an opportunity 
to determine how well that carrier is implementing safety requirements. 
For example, the applicant may not yet have hired drivers, and there 
would be no logs to review. Officials told us that FMCSA waits at least 
90 days after a carrier has entered the industry to get an accurate 
impression of its operations. The increased requirements to obtain a 
DOT number and begin operations would initially require more FMCSA 
resources, so that it could complete its existing backlog of safety 
audits for carriers currently in their first 9 or 18 months of 
operations. The change to entry requirements would also be time 
consuming since a rule-making process would be required. Stricter 
requirements for entering the industry might reduce the ability of 
small companies to begin operations and compete with larger, 
established carriers because they would need to spend resources 
upfront, before their business is up and running. 

Improving Detection of Drivers Using Drugs Focuses on Minimizing 
Opportunities to Subvert the Test: 

Improving efforts to detect drivers using drugs potentially involves 
four types of actions: (1) improving compliance by having service 
agents who administer the tests for many carriers use proper testing 
procedures; (2) increasing FMCSA's enforcement authority against 
noncompliant service agents; (3) limiting drivers' ability to subvert 
the current test; and (4) expanding the array of tested drugs. Table 3 
summarizes our assessment of the effectiveness and feasibility of each 
of these options. We identified several options--delineated with check 
marks--that in our view represent the best combination of effectiveness 
and feasibility. 

Table 3: Approaches to Increase the Detection of Drivers Using Drugs: 

Options: Improve compliance by service agents: Conduct service agent-
only audits; 
Effectiveness: Extends oversight to include service agents, a group 
that is not currently audited by FMCSA; 
Feasibility: Costs associated with new investigations. 

Options: Improve compliance by service agents: Visit service agents 
during carrier compliance reviews; 
Effectiveness: Extends oversight to include service agents, but review 
may not be as in-depth; 
Feasibility: Costs associated with a new step during a review. 

Options: Increase enforcement authority over service agents: Seek civil 
penalty authority; Seek authority to levy civil penalties against 
noncompliant service agents; 
Effectiveness: Provides monetary deterrent to service agent 
noncompliance; 
Feasibility: Legislation required. 
[This is an option GAO believes represents the best combination of 
effectiveness and feasibility.] 

Options: Increase enforcement authority over service agents: Use public 
interest exclusion process; No public interest exclusion has ever been 
issued; 
Effectiveness: Deterrent effect is potentially strong if issued; 
Feasibility: DOT is considering making changes to improve the process. 

Options: Limit the ability to subvert urine test: Adopt a federal 
adulterant product ban; 
Effectiveness: Deterrent effect may limit the manufacture, marketing, 
sale, and possession of products--federal statute allows for 
prosecution in any state; 
Feasibility: Unclear how to enforce; legislation required. 
[This is an option GAO believes represents the best combination of 
effectiveness and feasibility.] 

Options: Limit the ability to subvert urine test: Stop publishing 
methods for specimen validity testing; 
Effectiveness: Could limit the effectiveness of adulterants; 
Feasibility: Lack of formal publication will not keep it out of the 
public domain. 

Options: Limit the ability to subvert urine test: Test alternative 
specimens; Additional drug testing of hair or oral fluids in certain 
circumstances; 
Effectiveness: Some advantages relative to urine testing; 
Feasibility: Protocol development required by SAMHSA; rule-making 
process required. 

Options: Limit the ability to subvert urine test: Verify driver 
identification at collection sites; 
Effectiveness: Reduces opportunity to substitute specimen by having 
someone else provide it; 
Feasibility: Unclear how it can effectively be accomplished. 

Options: Test for drugs not currently included in DOT tests: Test for 
additional illegal drugs, such as ecstasy or some prescription drugs 
(e.g., synthetic opiates); 
Effectiveness: Identifies use of drugs that may affect driving ability; 
Feasibility: Differentiating between use and abuse of prescriptions may 
be difficult. 

Source: GAO. 

[End of table] 

Options for Improving Compliance by Service Agents: 

All types of service agents are included in both options that aim to 
improve compliance because currently service agents are visited by 
FMCSA only as a result of specific allegations. However, improving 
compliance by collection sites in particular is central to reducing 
opportunities to undermine a drug test. Recently, in recognition of the 
importance of improving adherence to DOT protocols at collections 
sites, ODAPC developed a checklist of critical DOT protocols that was 
sent to collection sites for posting in their facilities. GAO 
investigators found that collection sites that had checklists of DOT 
protocols were in better compliance that those that did not. While this 
is a positive step that will help collection sites better follow 
protocols, the following options focus on providing a greater oversight 
presence at collection sites to ensure better compliance. As discussed 
previously, however, adhering to protocols will only minimize, not 
eliminate, the opportunity for subversion.[Footnote 39] 

The option to conduct service agent-only audits and clandestine 
inspections appears to hold the most promise since these audits and 
surprise inspections, according to stakeholders and our own analysis, 
would provide an incentive for service agents to follow proper 
protocols and comply with DOT requirements. Currently, FMCSA is testing 
a service agent-only audit. Service agent-only audits would create an 
oversight presence that previously has not existed and would identify 
noncompliance and provide corrective action. Furthermore, these types 
of audits would likely send a message to the service agent industry 
that noncompliance can be discovered and will have consequences. The 
costs associated with this option, however, affect its feasibility. The 
service agent industry is large and diverse, and covering it would 
require a large number of audits, with attendant costs for hiring, 
training, and paying new staff or transferring resources from other 
current safety-related duties. However, FMCSA officials indicated that 
their goal in testing a new service agent-only audit is to improve the 
effectiveness of their service agent compliance activities, regardless 
of how many reviews they conduct. ODAPC provides inspector and auditor 
training on issues related to drug testing requirements for service 
agents. For example, ODAPC is working with DOT's Research and 
Innovative Technology Administration to develop a video on collection- 
site security and integrity for use by inspectors, auditors, and 
collection personnel. 

While the service agent industry is large and diverse, a number of 
stakeholders suggested that even a small number of audits or 
clandestine inspections would send an initial message that 
noncompliance by service agents is serious enough to warrant FMCSA's 
attention.[Footnote 40] This option may result in increased costs for 
collection sites in particular, which might need to conduct additional 
training for collectors, and for carriers, which might have to absorb 
these costs in the form of higher fees for conducting tests. DOT is in 
the early stages of implementing efforts to address this issue. ODAPC 
officials told us they are developing a database that centralizes the 
results of all of the other DOT administrations' oversight of service 
agents, starting with collection sites and ultimately including medical 
review officers and others. Officials told us that all DOT 
administrations can use the database to determine whether collection 
sites have been visited and access the findings of the visits. The 
database could serve as a method to target service agents with a 
history of poor compliance. FMCSA officials stated that some of its 
investigators in the field have been trained on how to conduct audits 
of collection sites and that they hope to expand oversight activities 
with regard to service agents. 

A second option for ensuring compliance by service agents is visiting 
service agents or conducting clandestine inspections as part of 
carriers' compliance reviews, but this option would be less effective 
for two reasons. First, such visits would not be as thorough as a 
service agent-only audit. Second, including service agents as part of 
compliance reviews may not be practical because some carriers use 
service agents in different cities or states. FMCSA targets carrier 
compliance reviews on the basis of highway safety risk, but there 
currently are no corresponding data indicating that the service agents 
used by such carriers also carry greater risk. However, when the 
database of service agents is operational, an ODAPC official said that 
an FMCSA inspector could query the database to find out whether a 
carrier was using a service agent that had been visited by a DOT 
administration and what the findings were from such visits. This option 
would be less expensive than the first because the investigator would 
be adding a step to an existing process rather than conducting a wholly 
different audit. 

Options for Increasing FMCSA's Enforcement Authority: 

Expanding FMCSA's enforcement authority to include service agents may 
result in greater compliance by service agents. Currently, FMCSA can 
only fine the carrier that uses the service agent--not the service 
agent itself. Stakeholders told us that the ability for FMCSA to fine 
service agents would provide an effective incentive to follow 
protocols. The effectiveness of this option depends on FMCSA's ability 
to expand its oversight activities, yet stakeholders said merely having 
the authority to fine service agents would likely send a message to the 
service agent industry that there are consequences for failing to 
comply with protocols. For example, FRA officials indicated they had 
successfully warned service agents that their continued noncompliance 
could lead to civil penalty action. These warnings produced the desired 
resolution of noncompliance matters. Representatives from one of the 
drug testing industry associations that represent service agents told 
us that if FMCSA were to actually fine a service agent, many service 
agents would come into compliance. Giving FMCSA the authority to fine 
service agents would require legislation. Officials from ODAPC told us 
they have created a committee to review existing authorities of all DOT 
administrations to determine the current authority of each 
administration. Consistency in authority to impose civil penalties 
against service agents across the department may be important given 
that service agents may be used and audited by more than one DOT 
administration. 

A second but less promising option for increasing FMCSA's enforcement 
authority is to encourage greater use of the public interest exclusion 
process. Our discussions with stakeholders indicated that in instances 
where the process has been initiated, it has been an effective tool in 
addressing noncompliance. However, officials in FMCSA and elsewhere 
within DOT indicated the process is ineffective because a public 
interest exclusion has never been issued. ODAPC officials told us they 
are exploring changes to the process, such as getting an interim 
administrative injunction against service agents pending the execution 
of a public interest exclusion process, for instances when egregious 
noncompliance is found--which FMCSA officials believe would increase 
the number initiated. To make more use of the public interest exclusion 
process, FMCSA would also need to find better ways to identify 
noncompliance by service agents--either by visiting service agents 
during compliance reviews or by conducting service agent-only audits. 
Because the public interest exclusion process was designed to provide 
due process to service agents, changing the process may be difficult. 
Additional costs would depend on the extent to which improving the 
process results in additional investigations. 

Options for Limiting the Ability to Subvert the Current Test: 

Options for limiting the ability to subvert drug tests include banning 
or limiting the effectiveness of products that drivers can use to alter 
a urine specimen, testing alternative specimens, and changing protocols 
at collection sites to verify drivers' identification. 

The first option, a federal law prohibiting the sale, manufacture, or 
use of subversion products, would be an improvement over the patchwork 
of laws several states have in place, but implementation would be 
difficult given the ease with which these products can be distributed. 
[Footnote 41] SAMHSA has stated that it is critical to make the 
production and knowing use of adulterant and substitution products 
illegal under federal law. This option is also generally supported by 
representatives of the trucking and service agent industries. The 
adoption of a federal prohibition may have a deterrent effect on some 
sellers and buyers of the banned products. Sellers of these products 
may reduce marketing, and some may decide to exit the industry rather 
than face potential prosecution. Further, a federal law would allow for 
prosecution in any state, if an individual were found to be 
manufacturing, selling, or possessing such products. 

However, the deterrent effect of such a law on drivers who buy these 
products may be limited since the individuals who would purchase them 
also presumably bought and used the illegal drugs they are trying to 
mask. Some other limitations on the effectiveness and feasibility of 
this option include the following: 

* Gathering sufficient evidence to successfully prosecute makers, 
sellers, and users of these products may be difficult, and the costs in 
time and resources of enforcing the prohibition and investigating and 
prosecuting violations may be significant. Web sites, for example, may 
try to circumvent the law by posting disclaimers that their products 
are not intended to subvert federal drug tests. 

* Determining which law enforcement agencies would be responsible for 
investigating and prosecuting cases may be difficult. 

* Implementing a law to prohibit the purchase of adulterants and 
substitutes does not address other subversion methods, such as diluting 
urine by drinking large amounts of water or having someone else take a 
test in place of the applicant or driver. 

Limiting the ability to subvert drug tests might be facilitated if the 
methods used to identify adulterants are not published.[Footnote 42] 
This option has two primary limitations. First, while it might help 
detect adulterated specimens, it would not help detect substituted 
specimens. Drivers intent on not being detected by drug tests may use a 
substituted specimen instead of adulterating their own specimen. 
Second, SAMHSA officials said restricting the publication of protocols 
would at best be a short-term advantage because if validity testing 
protocols become the subject of a litigation, they will become public. 

Another option for minimizing subversion tactics is to test hair or 
oral fluids. One benefit would be that collections of these specimens 
would be directly observed, thus reducing (but not eliminating) the 
opportunity to adulterate or substitute specimens. Further, while 
products are available for subversion of such tests, it is not clear 
whether these products are effective in masking drug use.[Footnote 43] 
Some transportation companies already conduct hair tests in addition to 
urine tests, and the result has been a higher detection rate of illegal 
drug use. For example, one large carrier conducted both hair and urine 
tests on over 15,000 employees in safety-sensitive positions from May 
2006 to January 2008. The positive rate for the hair tests was 
approximately 9 percent, compared with approximately 1.6 percent for 
the urine tests. The higher positive rate for the hair tests may be a 
result of the fact that hair specimens generally retain evidence of 
drug use for a longer period of time than urine specimens.[Footnote 44] 

These alternative testing methods hold promise for certain testing 
purposes but are not suitable for others. Evidence of drug use becomes 
apparent in oral fluids almost immediately but can only be detected for 
a short time, making oral fluids suitable for postaccident tests and 
unsuitable for pre-employment tests.[Footnote 45] On the other hand, 
evidence of drug use does not become apparent in hair for several days 
after drug use but has a long detection window, making hair more 
suitable for pre-employment tests and unsuitable for postaccident 
tests. In 2004, SAMHSA published proposed revisions to mandatory 
guidelines for federal workplace drug testing programs that included 
proposals to establish scientific and technical guidelines for the 
testing of hair, sweat, and oral fluid specimens. According to SAMHSA 
officials and some stakeholders in the drug testing industry, the 
scientific issues related to hair testing--including differing 
detection based on hair length, color, and contamination of hair from 
the environment rather than from direct use of drugs--will require 
further exploration before protocols can be established. For example, 
SAMHSA officials told us that at least two scientific studies show that 
a drug will bond into hair when the hair is exposed to environmental 
drug use.[Footnote 46] 

Other unresolved issues related to adopting hair testing include 
establishing collection protocols for hair specimens,[Footnote 47] 
establishing appropriate criteria for a positive test result, and 
determining how drivers might challenge results via a specimen tested 
at a second laboratory.[Footnote 48] SAMHSA officials, who currently 
are studying hair testing, said that because of these and other issues, 
they cannot predict when a final rule on hair testing will be issued. 
Also, since DOT is obligated by statute to use SAMHSA guidelines on 
drug testing protocols, considerable work remains before hair testing 
can supplement urine testing. 

Finally, another option that can limit the ability of drivers to 
substitute their specimen by having someone else provide it would be to 
change DOT protocols at collection sites to require verification of the 
drivers' identification. However, it is not clear how verification 
could be effectively accomplished. For example, carriers could be 
required to fax a copy of an individual's CDL to the collection site 
prior to a pre-employment or random test, but there is no guarantee 
that the fax would be clear enough to reliably authenticate 
identification.[Footnote 49] 

Testing for Drugs Not Currently Included in DOT Testing: 

Testing for additional drugs, such as abused prescription drugs and 
other illegal drugs, may be worthwhile. Representatives of the drug 
testing industry, for example, generally supported testing for more and 
different drugs, including prescription drugs. SAMHSA officials agreed 
that testing for more and different drugs might have a deterrent effect 
on their use, but expanding the test presents feasibility challenges, 
such as the cost of additional laboratory analysis and increased 
medical review, to determine whether the use of prescription drugs was 
proper. ODAPC officials said they follow the lead of SAMHSA and federal 
workforce testing policies, which allows tests only for drugs for which 
HHS has established protocols. 

Reporting Positive Drug Test Information May Reduce the Number of 
Drivers Who Test Positive or Refuse to Test Yet Continue to Drive: 

Two key options have been suggested to reduce the number of drivers who 
test positive or refuse to test and continue to drive without going 
through a return-to-duty process. The options--developing a national 
database of drug and alcohol testing results that carriers could query, 
and encouraging or compelling states to suspend the commercial driver's 
license (CDL) of a driver who tests positive--differ in their potential 
effectiveness and feasibility, as shown in table 4. However, a CDL 
suspension could build on a national database. That is, if an accurate 
national database were created first, state licensing agencies could 
use the information in the database to trigger action to suspend a 
driver's CDL. 

Table 4: Approaches to Reduce the Number of Drivers Who Test Positive 
or Refuse to Test Yet Continue to Drive without Going through the 
Return-to-Duty Process: 

Options: National database; FMCSA maintains database of drug test 
positives and refusals-to-test that carriers must query prior to 
hiring; 
Effectiveness: Depends on carrier compliance with regulations; does not 
address self-employed owner-operator problem; 
Feasibility: FMCSA has a rule-making process under way. 
[This is an option GAO believes represents the best combination of 
effectiveness and feasibility.] 

Options: CDL suspension; State licensing agencies suspend the CDLs of 
drivers who test positive or refuse to test; 
Effectiveness: Independent of carrier compliance with regulations; 
addresses both job-hopper and owner-operator problem; 
Feasibility: Requires federal and state legislation; FMCSA could use a 
national database to implement. 
[This is an option GAO believes represents the best combination of 
effectiveness and feasibility.] 

Source: GAO. 

[End of table] 

National Database: 

A national database that carriers must query in screening a prospective 
employee would provide information about whether the applicant had 
previously tested positive for drugs or refused to take a DOT drug 
test, and whether the applicant had completed the required return-to- 
duty process. Applicants can easily omit previous employers for whom 
they tested positive or refused to test, and easily not disclose an 
incomplete return-to-duty process. FMCSA reported to Congress on the 
feasibility of such a database in 2004 and, as part of its 
Comprehensive Safety Analysis 2010 initiative, is working toward 
initiating a rule-making process for the creation and implementation of 
a database comprising positive test results and refusals-to-test for 
both drugs and alcohol.[Footnote 50] According to FMCSA officials, 
current plans call for medical review officers to report positive drug 
test results and refusals-to-test, but FMCSA would also solicit 
comments on obtaining the information directly from carriers and for 
carriers to report positive alcohol test results and refusals-to-test. 
[Footnote 51] While the rule-making process is being initiated, FMCSA 
officials told us that additional authority over service agents would 
be necessary to require the reporting of drug testing information. 
Carriers would be required to query the database prior to using 
drivers, which could supplement or possibly replace the current 
requirement to check with previous employers regarding past positive 
tests. FMCSA also plans to allow roadside inspectors to query the 
national database to determine whether a carrier is illegally using a 
driver who has failed a drug test. Four states already have some form 
of database of drivers' past positive drug tests, though implementation 
varies by state (see app. III).[Footnote 52] 

A national database would enhance FMCSA's ability to identify drivers 
who engage in job-hopping, and ensure compliance with return-to duty 
requirements. Since there is currently no effective way to identify job-
hoppers, a national database would make positive test information more 
readily available to carriers and to FMCSA for use in its initiative 
targeted at carriers that employ job-hoppers and job-hoppers 
themselves. A national database would also likely encourage drivers to 
go through the return-to-duty process in order to continue working in 
the trucking industry. However, a database would not be effective at 
stopping all job-hopping because not all carriers will report to or 
query the database, particularly if they are not complying with drug 
testing regulations or do not have a drug testing program in place. In 
addition, a database would not necessarily address the problem of self- 
employed owner-operators who test positive and fail to remove 
themselves from service, and fail to complete the return-to-duty 
process. 

Stakeholders generally support a national database, which FMCSA is 
considering, but several challenges would need to be addressed. Many 
stakeholders, including carriers, industry associations, and one union 
with whom we spoke are supportive of a database, particularly if 
privacy concerns and drivers' rights are adequately addressed. Some of 
these stakeholders said a national database could affect drivers' 
rights if results are reported by unauthorized entities, if 
unauthorized persons gain access to the information, if drivers are 
unable to clear inaccurate reports from their records, or if drivers 
are unable to have return-to-duty completion information posted to 
their records. 

Other challenges to implementing this option include the following: 

* The time and technological resources required to receive, process, 
and respond to potentially thousands of queries each day could be 
significant, even though the database would only maintain records on 
the drivers who test positive or refuse to test. A 2004 FMCSA report 
estimates the number of national database users at up to 750,000 or 
more. This report also estimates the one-time cost of developing and 
implementing a national database at approximately $1.2 million and 
ongoing annual costs, including project and FMCSA staffing, at 
$994,000. FMCSA and ODAPC officials noted that the costs in this report 
were likely underestimated. FMCSA officials are estimating the initial 
cost of the database to be nearly $9 million. FMCSA plans to refine its 
cost estimate as part of its rule-making process. Funding for this 
project would come at the expense of FMCSA's other safety-related 
activities, absent additional funding from Congress. 

* Processes for authenticating and registering the enormous number of 
entities that submit to and query the database, and protecting database 
information, could be challenging. A DOT Inspector General report on 
the National Driver Register notes privacy concerns that would also 
need to be addressed in the creation of a national database of drug 
test results, including sufficient encryption of personal information 
during transmission between entities, background checks on personnel 
responsible for maintaining the database, and security of hard copy 
records storage and computer access.[Footnote 53] Procedures would need 
to be developed to ensure that only those authorized gain access to the 
database. Procedures for verifying the qualifications and credentials 
of those who report positives and refusals would need to be in place to 
maintain the integrity of the system and avoid inaccurate database 
information. 

* Federal legislation would not be required to give FMCSA authority to 
develop the database, but a 2004 report by FMCSA suggested a federal 
mandate--rather than simply changing FMCSA regulations--would help 
avoid conflicts with state laws and support DOT's rule-making process. 
Further, DOT and FMCSA will require additional authority over service 
agents to ensure service agents report information. 

There are several things to consider in developing a database, 
including (1) reporting issues such as determining who reports, what 
they report, how they report, and how reporters are verified as 
legitimate; (2) access issues such as determining who can access the 
information, what information they can obtain, how they can access the 
information, and how those who access the information are verified as 
legitimate; (3) the length of time information is maintained; and (4) 
how inaccurate information is corrected--all of which affect the 
potential effectiveness and feasibility of a database. See appendix IV 
for a detailed description of these issues. 

CDL Suspension: 

Another option would be to encourage or compel states to make a 
positive test or refusal-to-test result grounds for a suspension of a 
driver's CDL until the driver has completed the required return-to-duty 
process.[Footnote 54] This option would require congressional action to 
encourage or require states to suspend a CDL, and may require states to 
also adopt legislation (North Carolina and Washington already suspend 
CDLs following positive and refusal-to-test results).[Footnote 55] In 
order to transfer drug test information to state licensing agencies, 
medical review officers and possibly carriers could report drug test 
information to FMCSA, or they could be required to report directly to 
the state of licensing. If a national database is in place, FMCSA could 
potentially disseminate this information to the state licensing agency 
of the CDL holder through the Commercial Driver's License Information 
System (CDLIS).[Footnote 56] Carriers would then check drivers' motor 
vehicle records, as they are required to do, during the hiring process 
and annually thereafter. In doing so, they would identify drivers with 
disqualified CDLs due to a positive or refusal-to-test result. 

We consider this option to be even more effective in keeping drivers 
who test positive or refuse to test off the road, because its success 
does not depend on full compliance by carriers in reporting drug test 
results or following drug testing regulations. Most results would 
likely be submitted by medical review officers, and the CDL suspension 
would affect drivers even if their current or potential employer is not 
in compliance with the regulations. In addition, a CDL suspension would 
affect both job-hoppers and self-employed owner-operators that are 
participating in a drug testing program. Many stakeholders with whom we 
spoke said this option would better address job-hopper and owner- 
operator issues than a national database. Carriers would know whether 
drivers are eligible to drive based on drug test history when making 
inquiries into driving records, already required by regulations. Also, 
owner-operators whose CDL is suspended following a positive or refusal- 
to-test could lose their insurance.[Footnote 57] The CDL suspension 
would provide incentive for drivers to go through the return-to-duty 
process in order to have their CDL reinstated. 

Using a national database to send information on positive drug tests to 
state licensing agencies would have some advantages over having medical 
review officers or carriers report directly to each state licensing 
agency. For example, using a national database would ensure that the 
legitimacy of those who report information on positive drug tests is 
verified, such as ensuring that medical review officers reporting 
information are actually licensed physicians. If the option were to be 
implemented through direct reporting to each state, ensuring consistent 
verification efforts would be difficult. Furthermore, a single database 
would make reporting information easier for medical review officers or 
carriers compared with having to report to each state licensing agency. 

Implementing the CDL-suspension option presents a number of challenges. 
This option would require congressional action to either require or 
encourage states to suspend CDLs based on DOT drug test results, as 
well as adoption and implementation by each state, which could take 
several years. Stakeholders cited the following challenges and issues: 

* Obtaining the funding necessary for state licensing agencies and 
FMCSA to implement the requirement could be a concern. For example, 
North Carolina's initial costs for its current system included $50,000 
in one-time costs plus personnel costs for a half-time employee. 
Complying with a broader federal requirement would clearly require more 
resources from every state, potentially at the expense of other 
initiatives that can also impact safety. States could utilize their 
existing systems for recording information on motor vehicle records, 
although states would need to have personnel in place to handle the 
drug test submissions. FMCSA may also face additional costs with this 
option.[Footnote 58] 

* As with the national database, implementing processes for 
authenticating and registering entities that submit drug test 
information to FMCSA for the CDL suspension in order to avoid 
inaccurate information, or malicious intent, could be challenging. A 
CDL suspension could affect drivers' rights if results are reported by 
unauthorized entities, if drivers are unable to clear inaccurate 
suspensions from their records, or if drivers are unable to have return-
to-duty completion information posted to their records. 

* States would have to create or change their licensing procedures 
through legislation in order to suspend CDLs based on the results of 
DOT-regulated drug tests. Enacting legislation could be difficult and 
time-consuming and would occur at different times in different states, 
resulting in some states beginning to suspend CDLs later than others. 

Issues that affect the potential effectiveness and feasibility of the 
CDL suspension are similar to those for a national database in terms of 
reporting, the length of time information is maintained, and how 
inaccurate information is corrected, but also include determining how 
drivers' CDLs would be reinstated. See appendix IV for a detailed 
description of these issues. 

Conclusions: 

While drug testing in the motor carrier industry has been successful at 
identifying many drug users for nearly 20 years, the problems described 
in this report suggest that the potential exists for many drug users to 
avoid detection and continue to operate a commercial motor vehicle. 
Given the enormity and fluidity of the motor carrier industry and the 
extent of FMCSA's oversight resources, establishing a drug testing 
program that approaches 100 percent reliability in testing all drivers 
and identifying drivers who have been using illegal drugs--and keeping 
them off the road until they have complied with return-to-duty 
requirements--are unrealistic expectations. However, this report has 
described a wide range of options that can be considered to make 
incremental improvements in the ability of FMCSA's drug testing program 
to keep drivers using drugs off the road. In our view, a comprehensive 
approach that encompasses several of the identified options is needed 
to effectively address the problems we identified, to re-establish the 
importance of the program throughout the industry, and to reassert the 
federal government's interest in ensuring compliance with drug testing 
programs. 

ODAPC and FMCSA have both recently initiated a number of actions that 
are intended to address challenges to the drug testing program in the 
motor carrier industry. These actions, such as sharing information on 
compliance of service agents across modal administrations, taking steps 
to strengthen the new-entrant safety audit and the public interest 
exclusion process, and beginning a rule-making process to establish a 
national database, among others, all hold promise to improve the 
effectiveness of drug testing programs. However, several of these 
actions are only just beginning, and FMCSA may not have the authority 
it needs to pursue some of the options we identified as potentially 
having the most impact and the greatest feasibility. For example, while 
FMCSA has a rule-making process under way to improve the enforcement of 
safety audits for new entrants and has plans to initiate a rule-making 
process to implement a national database, these actions have yet to 
come to fruition, and FMCSA may have to seek additional authority to 
ensure service agents report to a database. FMCSA's rule-making process 
will also need to consider driver protections and a process by which 
information can be corrected or removed. Furthermore, the national 
database could serve as the information foundation for enforcing 
suspension of a CDL--a direct way to address issues surrounding poor 
compliance by carriers, as well as inherent problems with self-employed 
drivers who test positive but continue to drive--but requiring CDL 
suspension is beyond FMCSA's authority. Moreover, while ODAPC and FMCSA 
are working on ways to improve identification of service agent 
noncompliance, FMCSA does not have authority to levy fines against 
service agents for noncompliance with DOT requirements. 

While actions that improve compliance with DOT protocols by carriers 
and service agents would have some impact on ensuring that more drivers 
are in drug testing programs and reducing the opportunities individuals 
have to defraud a drug test, cheating on a drug test will still be 
possible. All options to reduce opportunities to cheat face feasibility 
issues. For example, while the testing of hair or oral fluid specimens, 
which can be collected by direct observation, may reduce the ability to 
subvert drug tests, additional scientific study and a rule-making 
process by SAMHSA are required; even then, products designed to mask 
the presence of drugs in specimens already exist and are likely to 
proliferate. A federal ban on subversion products also faces challenges 
in that it would be difficult to enforce and may not have a significant 
deterrent effect. However, a federal ban on subversion products would 
have advantages. Not only would a ban have wide support within the 
industry, but it also would reassert the federal government's interest 
in ensuring compliance with its drug testing programs and allow for 
prosecution in any state. 

Any of these options for improving FMCSA's drug testing program would 
require either additional resources or a transfer of resources funding 
other initiatives that also work to improve road safety. Taking steps 
to improve the program needs to be considered in the context of other 
programs that also work to achieve safety advancement, such as ensuring 
drivers are complying with hours of service regulations and that 
vehicles are maintained and inspected. 

Matters for Congressional Consideration: 

Taking action to address the challenges FMCSA faces to ensure that its 
drug testing program detects drivers who are using illegal drugs, and 
to keep drivers who have tested positive off the road until they have 
completed the return-to-duty process, provides an opportunity to 
improve safety on the roads. In order to assist DOT and FMCSA in 
addressing these challenges, and thereby improving road safety, 
Congress should consider: 

* adopting legislation to ban subversion products, and: 

* providing FMCSA with the ability to exert oversight and enforcement 
authority over service agents involved in the DOT drug testing process-
-which would enable DOT to address issues related to requiring service 
agents to report drug testing information to FMCSA's national database 
and levying civil penalties on service agents that are not in 
compliance with DOT drug testing regulations. 

In addition, Congress should consider taking action to encourage or 
compel states to use the national database to take action to suspend 
the CDL of drivers who have tested positive or refused to take a DOT 
drug test. 

Recommendations for Executive Action: 

In order to address the challenges facing FMCSA to ensure drivers are 
in a drug testing program, and to keep drivers off the road once they 
have tested positive, we recommend that the Secretary of Transportation 
expedite the rule-making process to: 

* improve the enforcement of safety audits for new entrants, and: 

* create a national database of positive and refusal-to-test drug and 
alcohol test results. 

Agency Comments: 

In commenting on a draft of this report, DOT and HHS officials 
generally agreed with the findings and recommendations and provided 
technical clarifications, which we incorporated as appropriate. 

As agreed with your offices, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies to appropriate 
congressional committees and to the Secretary and other appropriate DOT 
and HHS officials. We will also make copies available to others upon 
request. In addition, the report will be available at no charge on the 
GAO Web site at [hyperlink, http://www.gao.gov. 

If you or your staffs have any questions about this report, please 
contact me at (202) 512-2834 or siggerudk@gao.gov. Contact points for 
Offices of Congressional Relations and Public Affairs may be found on 
the last page of this report. GAO staff who made major contributions to 
this report are listed in appendix V. 

Signed by: 

Katherine A. Siggerud: 
Director, Physical Infrastructure Issues: 

[End of section] 

Appendix I: Scope and Methodology: 

To determine the factors that contribute to the challenges of ensuring 
all drivers are in a drug testing program, limiting drivers' ability to 
subvert a drug test, and keeping drivers off the road once they are 
found to test positive, we reviewed Department of Transportation (DOT) 
and Federal Motor Carrier Safety Administration (FMCSA) regulations, 
policies, and reports and conducted interviews with individuals from 
FMCSA and DOT's Office of Drug and Alcohol Policy and Compliance 
(ODAPC) and the Department of Health and Human Services' (HHS) 
Substance Abuse and Mental Health Services Administration (SAMHSA) to 
understand the drug testing process and how carrier compliance with 
drug testing regulations is evaluated and to identify the factors that 
contribute to the challenges faced by FMCSA. We also interviewed 
officials from FMCSA and its state partners that conduct compliance 
reviews and new-entrant safety audits to understand what information 
related to the drug testing requirements is covered during these 
activities and how violations with drug testing requirements are 
uncovered. 

We analyzed data on the results of compliance reviews and safety audits 
conducted by FMCSA and its state partners, as well as data on 
enforcement activities, to determine industry compliance with drug 
testing requirements and to capture the most frequently violated 
regulations related to drug testing and associated enforcement actions. 
We conducted semistructured interviews with representatives from 10 
motor carriers, including large and small carriers and an owner- 
operator. We structured the interviews to elicit the types of 
challenges that carriers face in complying with the drug testing 
requirements and in ensuring that service agents they use are also in 
compliance. In addition, two of the carriers we met with conducted on- 
site collections of urine specimens. We interviewed motor carrier 
industry associations representing many segments of the motor coach and 
trucking industry, such as the American Trucking Association, the Owner-
Operator Independent Drivers Association, the American Bus Association, 
and the National Association of Small Trucking Companies. We also 
interviewed officials from unions representing truck and bus drivers 
and from a variety of associations representing urine specimen 
collectors, medical review officers, substance abuse professionals, 
consortiums/third-party administrators, and others involved in the drug 
testing industry. We also interviewed representatives from one of the 
largest laboratories involved in the DOT drug testing industry. During 
these meetings, we discussed the factors that contribute to the 
difficulties of implementing an effective drug testing program. We 
interviewed service agents that conduct various combinations of 
background checks, collections, laboratory, and counseling activities, 
as well as an insurance entity specializing in motor carrier coverage, 
to understand the intricacies, similarities, and differences of the 
causal factors limiting the effectiveness of detecting drivers who 
drive while impaired. 

In addition, we observed FMCSA oversight activities, including four 
compliance reviews and two new-entrant safety audits in California, 
North Carolina, Oregon, and Virginia. We selected states in which to 
observe compliance reviews and new-entrant safety audits on the basis 
of the availability of ongoing oversight activities, and well as our 
visits to states that adopted laws requiring the reporting of positive 
DOT-regulated drug tests and refusals-to-test. These oversight 
activities were conducted by either FMCSA investigators; FMCSA's state 
partners, such as state or local law enforcement; or Consolidated 
Safety Services, to which FMCSA contracts new-entrant safety audits. 

Also, we conducted semistructured interviews with officials from the 
state licensing agencies of the states that have adopted laws requiring 
the reporting of positive DOT-regulated drug tests and refusals-to- 
tests including Arkansas, New Mexico, North Carolina, Oregon, Texas, 
and Washington, to understand the issues considered in creating the 
reporting requirement and to determine how the reporting requirement 
was implemented to gather information on costs and effectiveness. We 
discussed how information is currently shared between states and how a 
national reporting requirement could work. We also interviewed 
officials from a state Attorney General's Office of a state that 
adopted a law banning adulterants and substances to subvert a drug test 
to determine the issues associated with such a law, including costs, 
and the law's effectiveness. 

We used the results from our Forensic Audits and Special Investigations 
(FSI) team, which tested compliance with protocols of collection sites 
in three metropolitan areas selected for the large number of truck 
drivers residing in those areas, as well as Washington, D.C. Our 
undercover investigators posed as commercial truck drivers who needed a 
DOT drug test and, in some cases, tested whether they could 
successfully adulterate or substitute the specimens. They conducted 
their investigation from May to September 2007 in accordance with 
standards prescribed by the President's Council on Integrity and 
Efficiency. 

To identify the options that have been suggested as possible ways to 
address problems in FMCSA's current drug testing program, we reviewed 
several reports, articles, and other published information on options 
to address challenges faced in drug testing. For example, we reviewed 
FMCSA's 2004 Report to Congress on the feasibility of creating a 
national database of drug test information. We also interviewed 
officials from DOT and FMCSA, industry experts, representatives from 
motor carriers, industry associations, and other stakeholders to 
identify options and understand the issues associated with each option. 
For example, in interviews with FMCSA and other stakeholders, we 
discussed various ways to improve compliance with drug testing 
requirements by both carriers and service agents and gauged the level 
of support such options garnered. 

We also interviewed officials involved in the drug testing programs at 
other DOT modal administrations, including the Federal Aviation 
Administration, the Federal Transit Administration, and the Federal 
Railroad Administration to gather information on whether these problems 
are common across the administrations, how problems are addressed by 
the other administrations, and how issues and circumstances in the 
other modal administrations can or cannot be compared with FMCSA's 
experience. For example, we gathered information on whether and how 
other administrations oversee service agents. Then, we compared and 
contrasted this information with FMCSA's current oversight approach in 
order to understand other ways of addressing challenges and to develop 
other options. 

We also interviewed representatives from American Association of Motor 
Vehicle Administrators, which monitors the Commercial Driver's License 
Information System (CDLIS), in order to find out the capabilities and 
challenges of the system and whether it could be used to send 
information about the results of DOT drug tests. In addition, we 
interviewed representatives from companies who specialize in gathering 
background information for carriers and other various interested 
parties to determine how easy it was to obtain privacy information, 
such as positive drug tests, on individuals and how they kept the 
information private after they obtained it. 

In the course of our interviews and analyses, we identified many 
options that have been suggested as possible ways to address problems 
or weak points in the current drug testing program. We assessed the 
various options for their likely effectiveness in addressing the 
particular problem they were designed to address and their feasibility 
from the standpoint of cost, support, and amount of effort involved in 
implementing them. Our assessments were based on (1) analyzing and 
synthesizing the views of the various government officials and industry 
stakeholders we interviewed with regard to their estimations of the 
potential effectiveness and feasibility of pursuing various options; 
(2) reviewing studies that have been conducted regarding the 
feasibility of certain options; (3) analyzing cost and other data, 
where available; and (4) analyzing the experience of other modal 
administrations or other entities in implementing various options, 
where applicable. Inherently, there are certain limitations and 
variances in the quality of data and information available about 
certain options. Therefore, we used a certain amount of professional 
judgment in comparing options relative to one another. The agencies and 
other stakeholders we included in our interviews are listed in table 5; 
however, we did not include the names of the carriers or service agents 
with whom we met. We determined that the data used in this report are 
sufficiently reliable for our purposes. 

We conducted this performance audit from June 2007 to May 2008 in 
accordance with generally accepted government auditing standards. Those 
standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. 

Table 5: List of Federal Agencies, State Agencies, and Industry 
Associations Interviewed: 

DOT: 
* Federal Motor Carrier Safety Administration;
* Federal Aviation Administration;
* Federal Railroad Administration;
* Federal Transit Administration;
* Office of Drug and Alcohol Policy and Compliance. 

HHS: 
* Substance Abuse and Mental Health Services Administration. 

State agencies: 
* Arkansas Department of Licensing;
* California Highway Patrol;
* California State FMCSA;
* North Carolina Attorney General;
* North Carolina State FMCSA;
* North Carolina Department of Motor Vehicles;
* North Carolina State Highway Patrol;
* New Mexico Motor Vehicle Division;
* Oregon Driver and Motor Vehicle Services;
* Oregon State Police;
* FMCSA--Oregon Division;
* Texas Highway Patrol, Commercial Motor Vehicle Enforcement;
* Washington Department of Licensing;
* Washington State Patrol Division;
* Washington State FMCSA. 

Industry associations: 
* American Association of Motor Vehicle Administrators;
* American Bus Association;
* American Federation of Labor and Congress of Industrial Organizations;
* American Trucking Association;
* National Association of Small Trucking Companies;
* North Carolina Trucking Association;
* Owner-Operator Independent Drivers Association;
* United Motorcoach Association. 

Drug testing industry associations: 
* American Association of Medical Review Officers;
* American College of Occupational and Environmental Medicine;
* American Substance Abuse Professionals;
* Drug and Alcohol Testing Industry Association;
* Medical Review Officer Certification Council;
* Substance Abuse Program Administrators Association. 

Source: GAO. 

[End of table] 

[End of section] 

Appendix II: Oversight of Drug Testing Programs by Selected DOT 
Administrations: 

In addition to FMCSA, other DOT administrations, including the Federal 
Aviation Administration (FAA), Federal Railroad Administration (FRA), 
and Federal Transit Administration (FTA), oversee safety regulations, 
including drug testing, in the aviation, railroad, and transit 
industries, respectively.[Footnote 59] Table 6 provides a comparison of 
each administration's oversight of compliance with drug testing 
regulations by both its carriers and service agents. Each of these 
administrations, except FMCSA, conducts oversight of the majority of 
its industry either through reviews that cover all safety requirements 
or reviews that specifically cover the drug and alcohol testing 
requirements. By contrast, FMCSA has the largest and most fluid 
industry to oversee and is not able to visit the majority of its 
industry. In addition, each of these administrations, except FMCSA, 
conducts consistent oversight of service agents, including collection 
sites, medical review officers, third-party administrators, and 
substance abuse professionals.[Footnote 60] While the oversight of 
service agents is intended to cover service agents used by the 
employers and operators each administration regulates, these service 
agents may also be used by FMCSA-regulated carriers. For example, FAA, 
FRA, and FTA conduct oversight of collection sites by checking 
qualification documentation for collectors and conducting mock 
collections to determine whether collections are done according to 
protocols. In addition, if significant noncompliance is discovered at a 
collection site through these methods, FTA covertly audits collection 
sites. ODAPC officials told us that they fully support clandestine 
inspections and audits by all DOT agencies and are developing a 
training course for clandestine inspections. 

Table 6: DOT Administration Oversight of Drug Testing Programs: 

DOT administration: FAA; 
Size of industry: 6,784 carriers; 444,344 safety-sensitive employees; 
Number of inspectors: 50; 
Portion of industry covered: Large carriers are visited once every 12-
18 months, and smaller carriers every couple of years. Some smaller 
carriers may have never been visited. Conducted 1,263 drug testing-
specific inspections in fiscal year 2007; 
Oversight of industry drug testing programs: Drug testing-specific 
inspections; 
Oversight of service agents: Service agents used by carriers are 
audited as part of the carriers' drug testing-specific inspections; FAA 
also conducts service agent-specific inspections after complaints or 
during investigations of positive tests; 
Enforcement authority: Enforcement authority over carriers, but not 
service agents; can initiate public interest exclusions against service 
agents. 

DOT administration: FMCSA; 
Size of industry: 724,000 carriers; 5 million CDL holders; 
Number of inspectors: 1,357 total auditors, including 50 federal 
auditors, 277 federal investigators, 51 federal border investigators, 
440 state safety auditors, 513 state investigators, and 26 contractors. 
The majority of the 953 state personnel do not conduct oversight on a 
fulltime basis; 
Portion of industry covered: Small portion of the industry is covered 
by compliance reviews; new carriers since 2003 have received a safety 
audit. Conducted about 15,000 compliance reviews and 37,000 safety 
audits in 2007; 
Oversight of industry drug testing programs: Safety audits of new 
entrants and compliance reviews include drug testing program review; 
Oversight of service agents: Audits service agents after complaints. 
FMCSA is currently testing a service agent-specific review; 
Enforcement authority: Enforcement authority over carriers but not 
service agents; can initiate public interest exclusions against service 
agents. 

DOT administration: FRA; 
Size of industry: 650 railroad companies; 150,000 safety-sensitive 
employees; 
Number of inspectors: 150 (2 full time, 148 who spend only a portion of 
their time in this function); 
Portion of industry covered: Audits all large and medium carriers every 
3 years. Audits small carriers once every 4 years.[A]; Conducts about 
150 audits per year; 
Oversight of industry drug testing programs: Drug testing program 
reviews; 
Oversight of service agents: Service agents used by the carrier are 
audited as part of the carriers' audit; 
Enforcement authority: Enforcement authority over carriers and service 
agents; can initiate public interest exclusions against service agents 
and has warned carriers that continued noncompliance can result in 
civil penalties. 

DOT administration: FTA; 
Size of industry: 2,100 grantees and subrecipients; 270,000 safety-
sensitive employees; 
Number of inspectors: 30.[B]; 
Portion of industry covered: Audits all grantees through triennial 
reviews. Conducted about 24 drug testing-specific audit events in 2007, 
covering 99 grantees; 
Oversight of industry drug testing programs: Triennial reviews that 
include drug testing program review, as well as drug testing-specific 
audits; 
Oversight of service agents: Service agents used by grantees are 
audited as part of drug testing-specific audits; service agent-specific 
audits occasionally conducted; 
Enforcement authority: Ability to suspend funds to grantees, but not 
service agents; can initiate public interest exclusions against service 
agents. 

Source: GAO analysis of DOT administration information. 

[A] Some small carriers may only be subject to certain parts of FRA's 
drug testing regulations. 

[B] FTA uses a combination of contractors and some federal 
representatives from FTA and DOT's Research and Innovative Technology 
Administration's Volpe Center to conduct oversight of the drug and 
alcohol testing regulations. Participation by these entities varies 
widely. 

[End of table] 

[End of section] 

Appendix III: States That Require Reporting of DOT Drug Test 
Information: 

Several states already have a reporting requirement in place for 
positive drug tests, and a few states also take action to suspend a 
commercial driver's license (CDL) in the event of a positive or refusal-
to-test result on a drug test. States have chosen different ways to 
address reporting issues, access issues, and length of time information 
is maintained. Table 7 shows information for the states that have 
created databases or make notations on the motor vehicle record. Table 
8 shows information for states that have implemented a CDL suspension. 

Table 7: States That Have Created Databases or Note the Motor Vehicle 
Record: 

State: Arkansas; 
Database: Collects drug and alcohol test positives and refusals-to-test 
in database; 
Who reports: Medical review officers and carriers; 
Access to information: Employers can search database, and are required 
to have written consent from the driver; 
Removal from database: Remains in database for 3 years; 
Cost: $75,000 for database. There is a $75 annual registration fee for 
access to request searches electronically, and an additional $2.50 per 
electronic record search. Records requested by paper are $1 per record 
search and do not require registration; 
Status: Between January 2008 and March 2008, 83 positive drug tests, 
and 5 refusals-to-test for drugs have been reported. In that same time 
frame, there have been 1,890 requests for information, 25 of which 
revealed that the driver had a positive result. In Arkansas, there are 
135,990 CDL holders; 
Experiences: Reporting became effective in January 2008. 

State: New Mexico; 
Database: Once a code is created, will record drug test positives on 
motor vehicle record; 
Who reports: Medical review officers; future plans will require carrier 
reporting positives and refusals; 
Access to information: Once implemented, employers have access to this 
information through motor vehicle records; 
Removal from database: No process for removing from motor vehicle 
record; 
Cost: Undetermined, but minimal costs may be incurred; 
Status: No positive tests reported. In New Mexico, there are 60,000-
70,000 CDL holders; 
Experiences: Reporting became effective in June 2007. New Mexico does 
not currently have method for informing medical review officers of 
requirement to report. 

State: Oregon; 
Database: Records drug test positives on motor vehicle record; future 
plans include adding drug test refusals; 
Who reports: Medical review officers; future plans include changing 
reporter to carrier; 
Access to information: Employers can request drug test information 
through motor vehicle record request; 
Removal from database: Remains on driver's record for 5 years; 
Cost: One-quarter of a full-time employee's time; no database 
development costs since they are using an existing database; 
Status: 1,472 positive tests posted to motor vehicle record between 
2002-2007, 52 positive tests in first 3 months of 2008. 100-300 
carriers request drug test results each year. In Oregon, there are 
141,000 CDL holders; 
Experiences: Reporting became effective in 1999. Nonreporting by 
medical review officers is common because they may not be aware of 
requirement, or if out of state, do not believe it applies to them. 
Employers may not query the database because program has not been well 
publicized and querying is not required. 

State: Texas; 
Database: Collects drug and alcohol test positives and refusals-to-test 
in database; 
Who reports: Carrier required to report; medical review officers and 
third-party administrators may also report; 
Access to information: Employers can search database; 
Removal from database: Remain in database indefinitely; 
Cost: 4-5 employees; 
Status: Over 11,000 CDL holders in database. In 2006, there were 21,337 
requests for information; in 2007, there were 27,863; and in January - 
April 2008, there were 12,921; 
Experiences: Reporting became effective in 2001. Low reporting from 
carriers. 

Source: GAO analysis of state information. 

Note: In states that require the reporting of positive alcohol tests 
and refusals-to-test for alcohol, the carrier is required to report 
this information. 

[End of table] 

Table 8: States That Take Action Against Drivers Who Test Positive or 
Refuse to Test: 

State: California; 
CDL suspension: No effect on CDL; revokes special driver certificate 
for school bus drivers, para-transit drivers, etc., for positive drug 
tests or refusals-to-test; 
Who reports: Carrier; 
Access to information: Employers have access to CDL information through 
motor vehicle records--but personal drug test information not connected 
to CDL; 
CDL reinstatement: Certificate revoked for 3 years or until driver 
completes return-to-duty process; 
Cost: $443 for handling 32 cases; 
Effectiveness: No effect on CDL, only certificate. In 2007, 32 special 
driver certificates revoked; 
Experiences: Reporting became effective in 2005. Since 1995, third-
party administrators have been required to submit summary reports to 
Highway Patrol on positive results, but action is not taken based on 
these reports. 

State: North Carolina; 
CDL suspension: Disqualifies CDL for drug or alcohol test positive or 
refusal-to-test; 
Who reports: Carrier; there are plans to have both carriers and medical 
review officers report[A]; 
Access to information: Employers have access to CDL information through 
motor vehicle records; 
CDL reinstatement: To end CDL disqualification DMV must receive letter 
of completion from a substance abuse professional. Disqualification 
history stays in record for 2 years from date of substance abuse 
professional letter. Plans to increase to 3 years; 
Cost: Estimation of $50,000 in one-time costs, about half of a full-
time employee's time. Future upgrades include $153,000 in one-time 
costs; 
Effectiveness: As of April 2008 there were 735 positive tests reported; 
512 current active CDL disqualifications. In North Carolina, there were 
325,158 CDL holders, as of October 2007; 
Experiences: Reporting became effective in 2005. Since all carriers may 
not be reporting, there are plans to include medical review officer 
reporting in the future. Plan to increase education about requirement 
to report. Carrier and substance abuse professional submissions are not 
verified, though personal information and drug test results contained 
in the report helps to ensure accuracy and legitimacy. 

State: Washington; 
CDL suspension: Disqualifies CDL for drug or alcohol test positive or 
refusal-to-test; 
Who reports: Carrier and medical review officer[B]; 
Access to information: Employers have access to CDL information through 
motor vehicle records; 
CDL reinstatement: CDL can be reinstated after substance abuse 
professional provides information that the driver has begun education 
or treatment, but record of suspension remains on motor vehicle record 
for 15 years; 
Cost: More than 2-3 part-time employees; 
Effectiveness: Between 2002-2007, 4,100 CDLs were disqualified. In 
Washington, there are approximately 357,000 CDL holders; 
Experiences: Reporting became effective in 2002. Medical review officer 
and substance abuse professional submissions are not verified, though 
medical review officers and substance abuse professionals are required 
to affirm compliance with Part 40. There is underreporting by medical 
review officers and carriers. 

Source: GAO analysis of state information. 

[A] North Carolina officials told us that they are considering 
requiring both carriers and medical review officers to report positives 
and refusals, but they may have to deal with duplicate reports. 

[B] In Washington, breath alcohol technicians are required to report 
positive alcohol tests, and refusals-to-test for alcohol. 

[End of table] 

[End of section] 

Appendix IV: Issues to Consider in Creating a National Database and 
Commercial Driver's License Suspension Requirement: 

National Database: 

Issues to consider in developing a national database include (1) 
reporting issues such as determining who reports, what they report, how 
they report, and how reporters are verified as legitimate; (2) access 
issues such as determining who can access the information, what 
information they can obtain, how they can access the information, and 
how those who access the information are verified as legitimate; (3) 
the length of time information is maintained; and (4) how inaccurate 
information is corrected. 

Reporting to a National Database: 

Information that would be reported to the database includes, at a 
minimum, positive drug and alcohol test results, refusals-to-test for 
both drug and alcohol tests, and information regarding whether a driver 
has gone through a return-to-duty process, along with identifying 
information on the drivers and their employers. No single entity 
involved in the drug testing process has access to all of this 
information in all cases, and, therefore, a number of entities may need 
to be involved in reporting information to the database for it to be 
comprehensive. 

For positive drug tests and some refusals-to-test, medical review 
officers appear to be in the best position to report, for several 
reasons. First, they are responsible for medically verifying positive 
drug test results and the refusals-to-test that have been confirmed by 
a laboratory as adulterated or substituted and, therefore, are closest 
to drug test results and would have information on positive drug test 
results for all drivers, including self-employed owner-operators. While 
designated employer representatives would also have this information 
for drivers employed by their carriers, self-employed owner-operators 
would not be likely to report their own positive drug test results. 
Furthermore, potential underreporting problems exist with carriers 
resulting from noncompliance issues. In some states that have required 
carriers to report, state officials reported underreporting from 
carriers, and as previously discussed in this report, carriers are 
often out of compliance in conducting background checks and with drug 
testing regulations in general. There is little indication that medical 
review officers have the same issues regarding compliance with DOT 
regulations as carriers, and, therefore, reporting is likely to be more 
complete with medical review officers as opposed to designated employer 
representatives. FMCSA currently has little or no civil penalty 
authority over medical review officers and does not conduct regular 
oversight over them. This will impact its ability to enforce database 
reporting by these service agents. 

While medical review officers have knowledge about some refusals-to- 
test, they do not have knowledge of others, such as when an employee 
fails to show up at a collection site for a random test. These types of 
refusals would be known only to the designated employer representative, 
or in the case of self-employed owner-operators, these refusals would 
only be known to the consortia/third-party administrators. Furthermore, 
medical review officers do not verify positive alcohol tests, and, 
similarly, this information would only be known to designated employer 
representatives or third-party administrators. Therefore, for these 
refusals-to-test for drug tests, and alcohol positives and 
refusals,[Footnote 61] the designated employer representatives would 
need to report this information for drivers employed by their carriers, 
and third-party administrators would need to report for self-employed 
owner-operators. Including both positives and refusals is an important 
component to the database since refusals-to-test are treated the same 
as positive tests in the drug testing regulations. 

Once a driver has tested positive or refused to test, a substance abuse 
professional is required to guide the driver through the return-to-duty 
process. As such, substance abuse professionals would have information 
regarding when a driver has completed the recommended course of 
education or treatment the substance abuse professional prescribed, 
which indicates that the driver is eligible to drive following a 
negative return-to-duty/pre-employment drug test. Similar to medical 
review officers in reporting testing information, FMCSA currently has 
little or no civil penalty authority over substance abuse professionals 
and does not conduct regular oversight over them. This will impact its 
ability to enforce database reporting by these service agents. 

Carriers often terminate an employee after a positive drug test result. 
If another carrier wishes to hire that employee after a negative return-
to-duty test, that employer would be responsible for ensuring that all 
follow-up tests required by the substance abuse professional are 
completed. The new employer could be required to report a negative 
return-to-duty test in order for that notation to be made in the 
database, so that the database indicates the driver is eligible to 
drive. While medical review officers are required to review all 
laboratory drug test results, including positives, negatives, and other 
nonnegatives, requiring medical review officers to report information 
on the results of the return-to-duty process may not be a viable option 
because they may not be aware that a return-to-duty test is being taken 
and would not be aware of the number of follow-up tests prescribed. 
Current regulations do not require substance abuse professionals to 
verify and report successful completion of a negative return-to-duty 
test or completion of all required follow-up tests. 

Another issue that would need to be carefully considered is whether non-
DOT tests would be appropriate to report to the database. For example, 
some carriers conduct hair testing in addition to DOT-mandated urine 
tests, which results in a higher number of positive drug tests. 
Moreover, drug tests may be required by courts for other purposes, but 
carriers may not be privy to that information. Some have argued that 
any positive drug test is an indication that a driver should not be 
allowed to operate in safety-sensitive duties and that carriers should 
have access to this information. However, under current regulations, 
this would not appear to be appropriate for several reasons. For 
results of hair or other types of tests, there are no SAMHSA guidelines 
on testing protocols or on cutoff levels for what constitutes a 
positive test, as there are for urine tests, and therefore these tests 
are not a valid basis for removing a driver from service under federal 
regulations. Drug tests required by courts or for other purposes may 
not include procedures comparable to DOT's collection, laboratory 
analysis, and medical review procedures and, therefore, would also not 
be valid under the regulations for removing a driver from service. 

As with any database, consideration would need to be given to how the 
information would be reported, what type of documentation would be 
required, and how entities reporting information to the database would 
be verified as legitimate. 

* Reporting of drug test information could occur through a Web portal 
directly from reporters but could also be entered manually from fax and 
mail submissions. In order to maintain timely records, decisions would 
need to be made regarding the time frames within which reporters would 
be required to submit information (e.g., within 3 days of confirmed 
laboratory results or completion of the prescribed treatment). 

* Documentation required to support the information entered into the 
database--such as the Federal Drug Testing Custody and Control Form 
(CCF),[Footnote 62] which includes identifying information on the 
driver, test information, and verified test results,[Footnote 63] or 
information from substance abuse professionals on drivers' completion 
of prescribed treatment--could be submitted electronically, could be 
mailed or faxed to FMCSA, or could be retained by the reporting 
entities as is currently required under DOT regulations. FMCSA could 
review documentation for all submitted information before it is 
released into the database or could conduct regular audits of entities 
reporting information to the database to ensure compliance with 
documentation requirements. 

* Prior to gaining access to the database, entities would need to be 
verified as legitimate submitters of drug test results.[Footnote 64] To 
do so, basic identification information would need to be required from 
all potential reporting entities, which could include practitioner 
license numbers for medical review officers and substance abuse 
professionals, DOT numbers for carriers, and affirmations that 
reporting entities meet the requirements of the drug testing 
regulations. 

In order for drivers to be fully aware that their drug test results are 
in a database and what measures are available to them to challenge 
information or be removed, consideration may need to be given to 
whether reporters should be required to (1) notify drivers that their 
information is being reported to the database and (2) provide drivers 
with information on how they can challenge the accuracy of the 
information or specific steps they need to take to have their status in 
the database changed or their name removed from the database. 

Accessing Information from a National Database: 

The primary purpose of the database is for carriers to query to find 
out whether an applicant had previously tested positive for drugs or 
refused to take a DOT drug test and whether the applicant is eligible 
to participate in safety-sensitive duties, given the difficulties in 
getting this information through current background-check requirements 
and driver disclosure. To accomplish this, carriers would need to be 
required to query the database prior to hiring a new driver, which 
would require a rule-making process to change the regulations. This 
would then obviate the requirement for carriers to conduct background 
checks related to drug testing through inquiries to previous employers; 
however, the database would need to be in place for a minimum of 3 
years before the change could be made, in order for the same extent of 
information to be made available to carriers.[Footnote 65] Since some 
carriers outsource their background checks, some third-party 
administrators may potentially also need access to query the database 
to fulfill this requirement. Similar to verifying and registering the 
reporters of drug test information, carriers and third-party 
administrators would also need to register with FMCSA to verify their 
legitimacy to access the database and affirm legitimate use of the 
database.[Footnote 66] Carriers and third-party administrators would 
then query the database before hiring a new employee, using identifying 
information, such as a driver's CDL number and state of licensure. The 
automated query response to the carrier would include information such 
as past positive and refusal test information, information on 
completion of prescribed treatment, and information on completion of 
return-to-duty and follow-up testing, if that information is maintained 
in the database. 

To ensure that drivers have given their permission to search the 
database for their drug test history, carriers would need to obtain 
permission from a driver to query the database for a driver's drug test 
history, similar to current background-check requirements. Since it is 
not practical for FMCSA to review documentation on release of 
information prior to every query, with each query, carriers and third- 
party administrators would need to affirm they have obtained permission 
from the driver and would need to retain a signed, written release of 
information in their files. This release could be subject to audit 
during compliance reviews or as part of specific audits of database 
usage. 

Careful consideration may also need to be given to whether any 
additional entities should have access to the database, either now or 
in the future. Some have proposed that drivers have access to their own 
records, in order to be aware of information that may be used against 
them in hiring decisions. However, verification and registration of 
potentially millions of individual drivers, and ensuring that their 
access is restricted to their own records, may be difficult to achieve. 
In order to address concerns about drivers' access to their own 
information in the database, when a driver is reported to the database, 
the reporter could be required to inform the driver, and when a driver 
is denied employment because of information in the database, the 
carrier could be required to inform the driver. 

Other access issues that may need consideration include whether law 
enforcement officials should be able to query the database and how they 
may use the information in the database. FMCSA plans to make the 
database available to law enforcement officials during roadside 
inspections in order to target carriers that may employ drivers that 
have tested positive and have not gone through the return-to-duty 
process. However, it is not clear what actions an officer can take 
during a roadside inspection against a driver who is in the database 
and has not gone through a return-to-duty process--for example, whether 
an officer can or should take the driver out of service for not 
complying with DOT regulations, even if the driver is not currently 
impaired. 

Length of Time Drivers Remain in the Database: 

The length of time a driver's record is in the database merits 
consideration. In reality, a positive drug test generally results in 
carriers firing the driver. Few carriers will send a driver through a 
return-to-duty process. Further, some employers will not hire a driver 
with a past positive test, even if the driver has completed the return- 
to-duty process, since they may not wish to hire individuals with a 
history of positive drug tests, regardless of what treatment they have 
undergone. At least one large carrier we interviewed indicated that 
this is their policy. Therefore, while a driver's name is in the 
database, obtaining employment will be more difficult, regardless of 
whether the driver has completed the return-to-duty process. 

A number of options exist for how long records may be retained in the 
database: 

* Records could remain in the database for a period of 3 years, 
corresponding to the length of employment history that carriers are 
required to check for prospective drivers. 

* Records could remain in the database for up to 5 years, corresponding 
to the length of time required for record retention of positive drug 
tests. 

* Records could remain indefinitely for drivers who do not complete the 
return-to-duty process, since regulations prohibit those drivers from 
returning to safety-sensitive positions until that process is complete. 

* Records could also remain indefinitely for drivers that complete 
treatment, and return-to-duty and follow-up tests, with a notation in 
the database that they have completed the return-to-duty process. 
However, this option may impede future hiring for drivers who have 
completed the return-to-duty process since some carriers may still be 
unwilling to hire them. 

How a driver may be removed from the database prior to the expiration 
of a retention period also warrants consideration. One option would be 
for potential removal from the database once a substance abuse 
professional reports that a driver has completed prescribed treatment 
and is eligible for a return-to-duty test. However, because the 
driver's next employers are responsible for conducting return-to-duty 
and follow-up tests in accordance with the substance abuse 
professional's recommendations, it may not be appropriate to remove a 
driver from the database at this point and rely on the driver to convey 
this information to prospective employers. Another option would be to 
remove a driver from the database once all follow-up tests prescribed 
by the substance abuse professional are completed (specifically, a 
minimum of six follow-up tests in a 12-month period, according to DOT 
regulations). This information, under current regulations, would need 
to be reported by a driver's current employer. However, consideration 
could be given to whether substance abuse professionals should conduct 
an additional evaluation to determine that their follow-up testing plan 
and any other prescribed education or treatment program have been 
successfully completed before the driver may be removed from the 
database; this would require changes to the regulations, since 
currently only a driver's current employer would be aware of completion 
of the substance abuse professional's follow-up testing plan and any 
other prescribed education or treatment program. 

Refuting Inaccurate Information in the Database: 

In order to ensure that drivers' rights are protected, consideration 
would need to be given to a process for drivers to refute inaccurate 
information in the database regarding names and CDL numbers. Amending 
the CCF to include CDL number, CDL state, and DOT number, and using the 
CDL number as an identifier, as opposed to a driver's name, would 
minimize inaccuracies in reporting, but administrative mistakes may 
still occur. Since drug testing regulations include a medical officer 
review verification process for all positives and some refusals, it 
would seem to be redundant to allow a process for refuting whether a 
driver tested positive or refused to test. 

CDL Suspension: 

Issues to consider for a CDL suspension are similar to those for a 
national database but also include determining how drivers are able to 
have their CDLs reinstated. 

Reporting to State Licensing Agencies: 

Issues surrounding the reporters of information, the types of 
information reported for a CDL suspension, and methods for verifying 
reporters as legitimate are the same as for a national database. 
However, there are several options for how information could be 
reported by medical review officers, carriers, third-party 
administrators, and substance abuse professionals to state licensing 
agencies: 

* Entities could report directly to the state licensing agency in the 
state in which they are located. The state licensing agency could then 
send out-of-state CDL information to other states through CDLIS, using 
a procedure similar to current reporting of out-of-state convictions to 
the state in which the driver is licensed. 

* Entities could report directly to the states where a driver holds a 
CDL. Although this option would reduce the delay in suspending a 
driver's CDL that would exist with the first option since information 
would go directly to the state of issuance, it may require reporters to 
report to many different states. 

* Entities could report directly to FMCSA through a national database. 
FMCSA would verify the information and then transfer it to the state of 
licensure through CDLIS. This option builds on the national database 
that FMCSA is planning and allows FMCSA to review and verify 
information before state licensing agencies suspend the CDL. 

Accessing Information from State Licensing Agencies: 

After receiving information on positives and refusals, the state 
licensing agency of the CDL holder, using the CDL number and CDL state 
to identify the driver, would suspend the driver's CDL until the driver 
goes through a return-to-duty process in accordance with drug testing 
regulations. Additional querying by carriers or third-party 
administrators and the associated registration and verification may not 
be necessary since carriers are already required to pull the motor 
vehicle record (MVR) of a prospective driver prior to hiring and 
periodically thereafter. Use of the information in the MVR by other 
entities would be subject to current state laws regarding access to 
MVRs. 

Length of Time Driver's CDL Is Suspended: 

States that currently have CDL suspensions have different policies 
about reinstating licenses and removing records after a certain period 
of time, as shown in appendix III. In Washington state, a substance 
abuse professional must present information that drivers have begun 
treatment or education for drivers to have their license reinstated. 
Reinstatement of the CDL does not indicate that drivers are necessarily 
eligible to return to duty. Washington sends a reinstatement letter to 
drivers stating that reinstatement does not release the drivers to 
return to duty and that the drivers must check with their employer. 
After licenses are reinstated in Washington, the motor vehicle record 
retains the license suspension information and the reason for the 
suspension for as long as information is retained by the licensing 
agency. In North Carolina, as part of getting their license reinstated, 
drivers need to present a letter from a substance abuse professional 
stating that initial treatment is complete and they are eligible for a 
return-to-duty test. After the licensing agency receives the letter in 
North Carolina, the motor vehicle record retains the information that 
the license was disqualified and the reason for its disqualification 
for 2 years. 

Consideration may be warranted for whether there should be a single 
standard for how a CDL is reinstated and the length of time a driver's 
motor vehicle record retains information of a positive drug test. The 
issues are similar to those discussed previously regarding record 
retention and removal from a national database. However, although CDLs 
should not be reinstated prior to completion of the prescribed 
education or treatment program when a driver is eligible to take a 
return-to-duty or pre-employment test, drivers will need a valid CDL to 
seek new employment if they have been fired. CDLs should therefore be 
able to be reinstated prior to completion of return-to-duty and follow- 
up tests with notations in the motor vehicle record that inform 
employers of the need to consult with the driver's substance abuse 
professional for further information on follow-up testing. If a driver 
does not go through a return-to-duty process, suspension could remain 
in effect and on the motor vehicle record for a period of 3 years, 5 
years, or indefinitely. 

Refuting Inaccurate Information Leading to a CDL Suspension: 

Considerations for a process to refute inaccurate information are 
similar to those for a national database. Consideration may be 
warranted for whether the establishment of a consistent petition 
process across states would be necessary. 

[End of section] 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Katherine A. Siggerud, (202) 512-2834 or siggerudk@gao.gov: 

Staff Acknowledgments: 

In addition to the contact named above, Andrew Von Ah (Assistant 
Director), Susannah Bloch, Andrea Chinchilla, Paul Desaulniers, 
Michelle Everett, Bert Japikse, Sara Ann Moessbauer, Jim Ratzenberger, 
Sandra Sokol, Stan Stenersen, and Rebecca Kuhlmann Taylor also made key 
contributions to this report. 

[End of section] 

Footnotes: 

[1] DOT, Federal Motor Carrier Safety Administration, Large Truck Crash 
Causation Study, Publication No: FMCSA-RRA-07-017 (July 2007). 

[2] Transportation Research Board, Drugs and Traffic: A Symposium, June 
20-21, 2005 (Transportation Research Circular E-C096) (Washington, 
D.C., 2006); and K.L.L. Movig et al., "Psychoactive substance use and 
the risk of motor vehicle accidents," Accident Analysis & Prevention, 
vol. 36, issue 4 (2004). 

[3] Similar requirements are in place for other industries, such as the 
aviation, rail, and transit industries, that employ individuals in 
transportation safety sensitive positions. 

[4] Title 49, Code of Federal Regulations (CFR), Part 40 provides rules 
governing how drug tests are to be conducted and what protocols are to 
be used. The tests cover alcohol as well as drugs, but the focus of our 
work has been on the testing that covers five drug categories: 
marijuana, cocaine, amphetamines (including methamphetamines), opiates 
(including heroin), and phencyclidine (PCP). The Office of Drug and 
Alcohol Policy and Compliance, within the Office of the Secretary of 
Transportation, publishes these rules. FMCSA's specific drug testing 
regulations are contained in 49 CFR Part 382. 

[5] 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, and follow-up testing. 
This process may also include aftercare. 

[6] Donna Smith, Substance Abuse Program Administrators Association, 
"Drug and Alcohol Testing of Commercial Motor Vehicle Drivers" (a 
testimony presented to the Committee on Transportation and 
Infrastructure's Subcommittee on Highways and Transit, Nov. 1, 2007). 

[7] Owner-operators own their own vehicles and hold a valid commercial 
driver's license. An owner-operator may be self-employed and act as 
both an employer and a driver at certain times, or may act as a driver 
for another employer at other times. Little data exist about the number 
of self-employed owner-operators. According to DOT, recent statistics 
indicate that there are nearly 143,000 owner-operators; however, many 
of these may be leased to other larger motor carriers but continue to 
maintain their own operating authority, or DOT number. 

[8] FMCSA targets carriers for compliance reviews based primarily on a 
poor carrier safety record in its Motor Carrier Safety Status 
Measurement System (SafeStat). SafeStat is an automated, data-driven 
analysis system that uses data on crashes, vehicle and driver 
violations, and other information to develop numerical scores for 
carriers. SafeStat then assigns each carrier a priority to receive a 
compliance review. FMCSA will also target carriers for compliance 
reviews based on a fatal accident, a complaint against the carrier or 
driver, or a follow-up investigation after violations. 

[9] Collectors are one of several types of "service agents" that a 
motor carrier can hire to perform tasks needed to comply with DOT drug 
testing requirements. 

[10] GAO, Drug Testing: Undercover Tests Reveal Significant 
Vulnerabilities in DOT's Drug Testing Program, [hyperlink, 
http://www.gao.gov/cgi-bin/getrpt?GAO-08-225T] (Washington, D.C.: Nov. 
1, 2007). 

[11] [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-225T]. 

[12] This includes both interstate and intrastate drivers and carriers. 

[13] The test analyzes urine for a heroin metabolite--6-acetylmorphine. 

[14] FMCSA requires 50 percent random drug testing rates for CDL 
drivers in 2008. DOT administrations can lower the random rate for drug 
testing to 25 percent when drug testing data show that employees are 
testing positive at a rate of less than 1 percent for two years in a 
row. 

[15] Refusals-to-test include specimens that have been adulterated or 
substituted. 

[16] In DOT drug testing, the split specimen is tested at a second 
laboratory in the event that the employee requests that it be tested 
following a verified positive, adulterated, or substituted test result 
based on the primary specimen. Verified positive, adulterated, or 
substituted test results are determined after laboratory analysis and 
medical review. 

[17] The regulations require owner-operators to implement a random 
controlled-substances testing program. To comply, owner-operators must 
be enrolled in a random testing pool that includes other drivers. The 
random testing pool is managed by a consortium/third-party 
administrator. 

[18] This includes an unidentified number of carriers that are 
registered but are no longer in business. 

[19] The United States Coast Guard in the Department of Homeland 
Security also oversees drug and alcohol testing programs in accordance 
with 49 CFR Part 40 in the maritime industry. 

[20] Ninety-five percent of FMCSA compliance reviews in fiscal years 
2001 to 2006 included a review of drug and alcohol testing compliance. 
GAO, Motor Carrier Safety: Federal Safety Agency Identifies Many High- 
Risk Carriers but Does Not Assess Maximum Fines as Often as Required by 
Law, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-584] 
(Washington, D.C.: Aug. 28, 2007). 

[21] FMCSA targets compliance reviews toward those carriers that its 
Motor Carrier Safety Status Measurement System (SafeStat) identifies as 
having a high potential for being involved in crashes. We have recently 
reported that a statistical approach would better identify commercial 
carriers for compliance reviews than the current approach. GAO, Motor 
Carrier Safety: A Statistical Approach Will Better Identify Commercial 
Carriers That Pose High Crash Risks Than Does the Current Federal 
Approach, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-585] 
(Washington, D.C.: June 11, 2007); and [hyperlink, 
http://www.gao.gov/cgi-bin/getrpt?GAO-07-584]. 

[22] Some violations do not result in fines due to inspector 
discretion, supervisory review, or a carrier refuting the violation. 

[23] A public interest exclusion excludes a service agent with serious 
noncompliance with drug and alcohol testing rules from participation in 
DOT's drug and alcohol testing program. After receiving a correction 
notice from a DOT administration or the Office of Drug and Alcohol 
Policy and Compliance (ODAPC), the service agent has 60 days to make 
and document changes to correct the noncompliance. If the noncompliance 
is not corrected, the DOT administration or ODAPC may issue a Notice of 
Proposed Exclusion to initiate the public interest exclusion. After 
receiving a Notice of Proposed Exclusion, the service agent has 30 days 
in which to contest the public interest exclusion. The ODAPC Director 
makes the final determination on whether to issue a public interest 
exclusion. 

[24] [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-225T]. 

[25] As we have previously reported, as of June 2004 only 23 percent of 
carriers registered with DOT had a SafeStat rating, which FMCSA uses to 
target carriers for compliance reviews; the remaining 77 percent of 
carriers are unlikely to receive a compliance review unless they are 
involved in a roadside inspection or fatal crash, or are identified by 
complaint calls to FMCSA. [hyperlink, http://www.gao.gov/cgi-
bin/getrpt?GAO-07-585]. 

[26] There is some oversight of collection sites by other DOT 
administrations, including the Federal Aviation Administration, the 
Federal Railroad Administration, the Federal Transit Administration, 
and the Pipeline and Hazardous Materials Safety Administration, and by 
the United States Coast Guard in the Department of Homeland Security. 
These other administrations inspect some collection sites used by the 
employers and operators they regulate, either as part of a review of 
the employer, or as a separate review of service agents. These 
collection sites may also be used by FMCSA-regulated carriers. In 
addition, FMCSA has a service agent review initiative--focusing mostly 
on collection sites--along the Southern border in the U.S. commercial 
zone. 

[27] Collection sites can be located anywhere--for example, a portable 
toilet or any toilet in a clinic, hospital, or office building--and can 
operate at various times. 

[28] GAO, Drug Tests: Products to Defraud Drug Use Screening Tests Are 
Widely Available, [hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-05-
653T] (Washington, D.C.: May 17, 2005). 

[29] According to ODAPC officials, the decision not to require directly 
observed tests relates to the need to balance individual privacy with 
the need for transportation safety. DOT is required by law to protect 
employee collection site privacy to the maximum extent practicable. DOT-
wide protocols only require directly observed tests in certain 
circumstances. For example, a collector must immediately conduct a 
collection under direct observation if the collector observes materials 
brought to the collection site, or the employee's conduct clearly 
indicates an attempt to tamper with a specimen. See 49 CFR § 40.67 for 
further information on the circumstances in which an employer or 
collector must directly observe the collection of the specimen. 

[30] The protocols do not require carriers to provide photographs or 
other identification of drivers to validate the ID. 

[31] DOT officials stated that the use of fake IDs is likely not 
prevalent given the time frames required to report to a collection site 
from the time of notification. In addition, substitution of this kind 
also assumes that there is another person willing and available to 
participate in the testing process on behalf of the employee, with a 
fake ID, and with information that would identify the person as the 
driver. 

[32] DOT issued a Notice of Proposed Rulemaking in 2005 to require 
specimen validity testing to test for the presence of adulterants, 
consistent with requirements for federal workplace testing, and as of 
April 2008, the rule is in final review. 

[33] An example of a prescription medication containing oxycodone is 
OxyContin®, which is a prescription painkiller used for moderate to 
high pain relief associated with various injuries, and pain associated 
with cancer. OxyContin contains oxycodone, the medication's active 
ingredient, in a timed-release tablet. 

[34] Office of National Drug Control Policy, Synthetic Drug Control 
Strategy: A Focus on Methamphetamine and Prescription Drug Abuse (May 
2006), [hyperlink, 
http://www.whitehousedrugpolicy.gov/publications/synthetic_drg_control_s
trat/index.html] (accessed Mar. 4, 2008). 

[35] Carriers are required to check with a prospective employee's 
previous DOT-regulated employers regarding past drug test history, 
covering the previous 3 years. If a driver tests positive on a pre- 
employment test and is not hired, the driver is still required to 
complete a return-to-duty process. If a previous employer does not have 
information about the return-to-duty process (e.g., an employer who did 
not hire an employee who tested positive on a pre-employment test), a 
prospective employer must seek to obtain this information from the 
prospective employee. 

[36] According to ODAPC officials, no carrier may delay information 
relating to drug testing history pending payment for its retrieval. 

[37] FMCSA officials told us that, since September 2007, the 
administration has mailed a uniform warning letter to motor carriers 
failing to provide drug and alcohol background information. 

[38] FMCSA's initiative under the Comprehensive Safety Analysis 2010 is 
to achieve a greater reduction in large truck and bus crashes, 
injuries, and fatalities though measurement, intervention, safety 
evaluation, and information technology. Under the new measurement 
system, the safety performance data is grouped into Behavioral Analysis 
Safety Improvement Categories. These categories are (1) unsafe driving, 
(2) fatigued driving, (3) driver fitness, (4) drugs/alcohol, (5) 
vehicle maintenance, (6) cargo securement, and (7) crash history. These 
data will be scored and weighed based on their relationship to crashes. 
For more information, see GAO, Motor Carrier Safety: The Federal Motor 
Carrier Safety Administration Has Developed a Reasonable Framework for 
Managing and Testing Its Comprehensive Safety Analysis 2010 Initiative, 
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-242R] (Washington, 
D.C.: Dec. 20, 2007). 

[39] There are several other ways FMCSA could increase its oversight of 
service agents, such as visiting service agents as part of drug testing-
only audits. This option is similar in its effectiveness and 
feasibility, as visiting service agents--as part of a carrier 
compliance reviews--only focused on compliance with the drug testing 
regulations. 

[40] The Substance Abuse Program Administrators Association, for 
example, supports increased efforts to ensure that specimen collectors 
are diligent in following the current DOT specimen collection 
procedures. According to a Substance Abuse Program Administrators 
Association representative, the auditing and inspection of collection 
facilities is an essential component of enforcement and compliance, an 
element that has been lacking in order to evaluate, assess, and enforce 
compliance with the DOT drug testing regulations. Further, the 
representative stated that auditors and inspectors must physically go 
to collection sites used by employers and interview and observe 
collection site personnel. 

[41] Legislation that would have prohibited the manufacture, marketing, 
sale, or shipment of such products was introduced in Congress in 2005 
and 2006 but was not enacted. 

[42] The Administrative Procedure Act requires publishing a notice and 
giving those being regulated by federal agency rules and regulations an 
opportunity to comment. The protocols in use were adopted by HHS, 
following this procedure. 

[43] If testing alternative specimens such as hair or oral fluids is 
accepted, this will create a more lucrative market for adulterant 
manufacturers to create new and improved products designed to beat the 
test. 

[44] According to an HHS-certified laboratory and a drug testing 
professional, hair testing detects drug use in the previous 7 to 90 
days. By contrast, urine testing detects drug use in the previous 5 
hours to 5 days (except for marijuana, which can be detected for up to 
4 weeks depending on frequency of use), while oral fluid testing 
detects drug use in the previous 1 to 36 hours. 

[45] It is important to note that according to the Office of National 
Drug Control Policy, oral fluids may be less efficient in detecting 
marijuana use. 

[46] See P. Stout, J. Ropero-Miller, M. Baylor, and J. Mitchell, 
"External Contamination of Hair with Cocaine: Evaluation of External 
Cocaine Contamination and Development of Performance-Testing 
Materials," Journal of Analytical Toxicology, vol. 30 (2006); and G. 
Romano, N. Barbera, and I. Lombardo, "Hair Testing for Drugs of Abuse: 
Evaluation of External Cocaine Contamination and Risk of False 
Positives," Forensic Science International, vol. 123 (2001). 

[47] The collection of hair specimens can be complicated. According to 
a stakeholder, the correct collection and processing of a hair specimen 
may require greater skill and care than the correct collection and 
processing of a urine specimen. Collection of hair is complicated when 
sufficient quantities of head hair are not available, and the collector 
may have to shave or cut hair from other areas of the body. For 
example, individuals who are bald, shave their heads or have short 
hair, or with hair-loss medical conditions may not be able to provide 
an adequate hair specimen. In addition, there may be objections to 
cutting head hair for testing purposes because of cosmetic or religious 
reasons. 

[48] In DOT drug testing, split specimens are used to corroborate test 
results when they are disputed. Urine specimens are divided into a 
primary and split specimen. The split specimen is tested at a second 
laboratory in the event the employee requests it be tested following a 
verified positive, adulterated, or substituted test result based on the 
primary specimen. Verified positive, adulterated, or substituted test 
results are determined after laboratory analysis and medical review. 

[49] According to ODAPC, such a requirement would put a tremendous 
paperwork burden on employers and service agents. 

[50] In 2004, FMCSA reported to Congress on the feasibility of how a 
national database could work. George M. Ellis, Jr. A Report to Congress 
on the Feasibility and Merits of Reporting Verified Positive Federal 
Controlled Substance Test Results to the States and Requiring FMCSA- 
Regulated Employers to Query the State Databases Before Hiring a 
Commercial Drivers License (CDL) Holder, a special report prepared at 
the request of the Federal Motor Carrier Safety Administration, March 
2004. 

[51] FMCSA is also considering requiring consortiums/third-party 
administrators that administer drug testing programs for self-employed 
owner-operators that do not lease on to other motor carriers to report 
refusals-to-test. 

[52] Currently ODAPC is working on an Interim Final Rule to clarify the 
ability of motor carriers and consortiums/third-party administrators to 
share information on positive drug tests with states. 

[53] Department of Transportation, Office of the Secretary of 
Transportation, Office of Inspector General, Audit of Security and 
Controls Over the National Driver Register (2007). 

[54] CDLs are issued by state licensing agencies and their issuance 
must adhere to minimum federal CDL licensing requirements as stipulated 
in the Motor Carrier Safety Improvement Act of 1999. 

[55] North Carolina and Washington already require disqualification of 
a driver's CDL following a positive or refusal-to-test result on a drug 
test, though implementation differs in each state. California revokes 
special driver certificates for school bus and paratransit drivers 
following a positive or refusal-to-test result on a drug test. See 
appendix III for more information. 

[56] CDLIS is operated by the American Association of Motor Vehicle 
Administrators's subsidiary AAMVAnet , and facilitates the exchange of 
commercial driver information among states and the District of 
Columbia. CDLIS contains identification information on all commercial 
drivers, including an individual's state of record for a commercial 
driver's license. Since information would be processed through FMCSA 
and then sent to state licensing agencies via CDLIS, there would be a 
delay in suspending the driver's CDL after a positive or refusal-to- 
test result. Paperwork access issues could also result, delaying 
suspension or delaying hearings for individuals who dispute the 
suspension, especially if electronic document submission is not used. 

[57] Insurance companies generally check motor vehicle records when 
insuring a new driver and periodically thereafter. Allowable reasons 
for canceling insurance policies vary by state, and not all states 
would permit policy termination as a result of a positive drug test. 

[58] Since FMCSA is moving forward with plans for a national database, 
FMCSA's additional costs for implementing a CDL suspension could 
include costs for additional software to give FMCSA the ability to send 
information using CDLIS and additional FMCSA personnel. In comparison 
to a national database, however, a CDL suspension requirement may 
require fewer personnel and technology resources in the long run since 
carriers may not need to query the database. 

[59] The Pipeline and Hazardous Materials Safety Administration also 
oversees compliance of drug and alcohol testing regulations. 

[60] There is also some oversight of collection sites by the United 
States Coast Guard in the Department of Homeland Security. 

[61] The reporting of alcohol positives and refusals is outside the 
scope of our work; however, FMCSA plans to have carriers report alcohol 
positives and refusals to the database. 

[62] The CCF is an HHS form used for federal drug testing that 
accompanies the urine specimen to verify the identity of the donor and 
document the custody path of the urine specimen and test results from 
collector to laboratory to medical review officer. 

[63] A change to the CCF to include the driver's state of CDL licensure 
and CDL number would effectively identify the driver when a query is 
received. Inclusion of the DOT number of the carrier on the CCF would 
also allow FMCSA to follow up with carriers who have high incidences of 
positive drivers. FMCSA has indicated that it would prefer the CCF to 
be updated to include the DOT number. Any change would require action 
by HHS to amend its form. If these changes are not possible, an 
accompanying cover sheet to the CCF with this information could be 
used. This cover sheet could include identifying information for the 
driver, including name, CDL number, CDL state, name of employer, 
employer's address, and employer's DOT number. 

[64] In Washington, state licensing officials told us that while 
reporting forms are not verified--and there is a possibility that 
someone who is not qualified could be sending the forms--the form asks 
for the reporter to affirm compliance with 49 CFR Part 40. In North 
Carolina, officials reported that, although they do not verify the 
legitimacy of carriers for reporting information, the personal 
information and drug test results contained in the report help to 
ensure accuracy and legitimacy. 

[65] Currently, carriers are required to check with a prospective 
employee's previous DOT-regulated employers regarding past drug test 
history, covering the previous 3 years. The database would not have 
this historical information until it was in place for 3 years. 

[66] An example of legitimate use by a carrier would be querying drug 
testing histories only on drivers for whom they have a release of 
information on file. 

[End of section] 

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