[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
     DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

=======================================================================

                                (110-86)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                          HIGHWAYS AND TRANSIT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                            NOVEMBER 1, 2007

                               ----------                              

                       Printed for the use of the
             Committee on Transportation and Infrastructure

      DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

      DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

      DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

      DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

      DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

      DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS



      DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS

=======================================================================

                                (110-86)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                          HIGHWAYS AND TRANSIT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 1, 2007

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure


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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York             VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida               STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California               RICHARD H. BAKER, Louisiana
EDDIE BERNICE JOHNSON, Texas         FRANK A. LoBIONDO, New Jersey
GENE TAYLOR, Mississippi             JERRY MORAN, Kansas
ELIJAH E. CUMMINGS, Maryland         GARY G. MILLER, California
ELLEN O. TAUSCHER, California        ROBIN HAYES, North Carolina
LEONARD L. BOSWELL, Iowa             HENRY E. BROWN, Jr., South 
TIM HOLDEN, Pennsylvania             Carolina
BRIAN BAIRD, Washington              TIMOTHY V. JOHNSON, Illinois
RICK LARSEN, Washington              TODD RUSSELL PLATTS, Pennsylvania
MICHAEL E. CAPUANO, Massachusetts    SAM GRAVES, Missouri
JULIA CARSON, Indiana                BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York          JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine            SHELLEY MOORE CAPITO, West 
BRIAN HIGGINS, New York              Virginia
RUSS CARNAHAN, Missouri              JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado            MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            TED POE, Texas
DORIS O. MATSUI, California          DAVID G. REICHERT, Washington
NICK LAMPSON, Texas                  CONNIE MACK, Florida
ZACHARY T. SPACE, Ohio               JOHN R. `RANDY' KUHL, Jr., New 
MAZIE K. HIRONO, Hawaii              York
BRUCE L. BRALEY, Iowa                LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania          CHARLES W. BOUSTANY, Jr., 
TIMOTHY J. WALZ, Minnesota           Louisiana
HEATH SHULER, North Carolina         JEAN SCHMIDT, Ohio
MICHAEL A. ACURI, New York           CANDICE S. MILLER, Michigan
HARRY E. MITCHELL, Arizona           THELMA D. DRAKE, Virginia
CHRISTOPHER P. CARNEY, Pennsylvania  MARY FALLIN, Oklahoma
JOHN J. HALL, New York               VERN BUCHANAN, Florida
STEVE KAGEN, Wisconsin
STEVE COHEN, Tennessee
JERRY McNERNEY, California
LAURA A. RICHARDSON, California

                                  (ii)

?

                  SUBCOMMITTEE ON HIGHWAYS AND TRANSIT

                   PETER A. DeFAZIO, Oregon, Chairman

NICK J. RAHALL II, West Virginia     JOHN J. DUNCAN, Jr., Tennessee
JERROLD NADLER, New York             DON YOUNG, Alaska
ELLEN O. TAUSCHER, California        THOMAS E. PETRI, Wisconsin
TIM HOLDEN, Pennsylvania             HOWARD COBLE, North Carolina
MICHAEL E. CAPUANO, Massachusetts    RICHARD H. BAKER, Louisiana
JULIA CARSON, Indiana                GARY G. MILLER, California
TIMOTHY H. BISHOP, New York          ROBIN HAYES, North Carolina
MICHAEL H. MICHAUD, Maine            HENRY E. BROWN, Jr., South 
BRIAN HIGGINS, New York              Carolina
GRACE F. NAPOLITANO, California      TIMOTHY V. JOHNSON, Illinois
MAZIE K. HIRONO, Hawaii              TODD RUSSELL PLATTS, Pennsylvania
JASON ALTMIRE, Pennsylvania          JOHN BOOZMAN, Arkansas
TIMOTHY J. WALZ, Minnesota           SHELLEY MOORE CAPITO, West 
HEATH SHULER, North Carolina         Virginia
MICHAEL A ARCURI, New York           JIM GERLACH, Pennsylvania
CHRISTOPHER P. CARNEY, Pennsylvania  MARIO DIAZ-BALART, Florida
JERRY MCNERNEY, California           CHARLES W. DENT, Pennsylvania
BOB FILNER, California               TED POE, Texas
ELIJAH E. CUMMINGS, Maryland         DAVID G. REICHERT, Washington
BRIAN BAIRD, Washington              CHARLES W. BOUSTANY, Jr., 
DANIEL LIPINSKI, Illinois            Louisiana
DORIS O. MATSUI, California          JEAN SCHMIDT, Ohio
STEVE COHEN, Tennessee               CANDICE S. MILLER, Michigan
ZACHARY T. SPACE, Ohio               THELMA D. DRAKE, Virginia
BRUCE L. BRALEY, Iowa, Vice Chair    MARY FALLIN, Oklahoma
HARRY E. MITCHELL, Arizona           VERN BUCHANAN, Florida
LAURA A. RICHARDSON, California      JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota           (Ex Officio)
  (Ex Officio)

                                 (iii)

                                CONTENTS

                                                                   Page

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

                               TESTIMONY

Craig, Rick, Director of Regulatory Affairs, Owner-Operator 
  Independent Drivers Association................................    50
Hageman, Sergeant Alan, Patrol Division Support/Logistics, Oregon 
  State Police...................................................    30
Hill, Hon. John, Administrator, Federal Motor Carrier Safety 
  Administration, accompanied by Jim L. Swart, Acting Director, 
  Office of Drug and Alcohol Policy and Compliance, U.S. 
  Department of Transportation...................................    35
Kutz, Gregory D., Managing Director, Forensic Audits and Special 
  Investigations, U.S. Government Accountability Office..........     5
McLuckie, Fred, Legislative Director, International Brotherhood 
  of Teamsters...................................................    50
Siggerud, Katherine A., Director, Physical Infrastructure Team, 
  U.S. Government Accountability Office..........................     5
Smith, Donna R., Ed.D., Regulatory Affairs and Program 
  Development Officer, Firstlab, Inc., Substance Abuse Program 
  Administrators' Association....................................     5
Stephenson II, Robert L., M.P.H., Director, Division of Workplace 
  Programs, Substance Abuse and Mental Health Services 
  Administration, Department of Health and Human Services........    35
Williamson, John Wilburn, Assistant Director for Driver and 
  Vehicle Services, North Carolina Division of Motor Vehicles....    30
Woodruff, Greer, Senior Vice President of Corporate Safety and 
  Security, J.B. Hunt Transport, Inc., American Trucking 
  Associations...................................................    50

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Altmire, Hon. Jason, of Pennsylvania.............................    62
Carney, Hon. Christopher P., of Pennsylvania.....................    63
DeFazio, Hon. Peter A., of Oregon................................    65
Matsui, Hon. Doris O., of California.............................    68
Mitchell, Hon. Harry E., of Arizona..............................    69
Oberstar, Hon. James L., of Minnesota............................    75

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Craig, Rick......................................................    80
Hageman, Sergeant Alan...........................................    94
Hill, Hon. John..................................................   112
Kutz, Gregory D..................................................   127
McLuckie, Fred P.................................................   163
Siggerud, Katherine..............................................   203
Smith, Donna.....................................................   234
Stephenson II, Robert L..........................................   246
Williamson, John Wilburn.........................................   319
Woodruff, Greer..................................................   336

                       SUBMISSIONS FOR THE RECORD

Craig, Rick, Director of Regulatory Affairs, Owner-Operator 
  Independent Drivers Association, reponses to questions from the 
  Subcommittee...................................................    89
Hageman, Sergeant Alan, Patrol Division Support/Logistics, Oregon 
  State Police, responses to questions from the Subcommittee.....   108
Hill, Hon. John, Administrator, Federal Motor Carrier Safety 
  Administration, responses to questions from the Subcommittee...   120
Kutz, Gregory D., Managing Director, Forensic Audits and Special 
  Investigations, U.S. Government Accountability Office, 
  responses to questions from the Subcommittee...................   156
McLuckie, Fred, Legislative Director, International Brotherhood 
  of Teamsters, responses to questions from the Subcommittee.....   199
Siggerud, Katherine A., Director, Physical Infrastructure Team, 
  U.S. Government Accountability Office, responses to questions 
  from the Subcommittee..........................................   226
Smith, Donna R., Ed.D., Regulatory Affairs and Program 
  Development Officer, Firstlab, Inc., Substance Abuse Program 
  Administrators' Association, responses to questions from the 
  Subcommittee...................................................   240
Stephenson II, Robert L., M.P.H., Director, Division of Workplace 
  Programs, Substance Abuse and Mental Health Services 
  Administration, Department of Health and Human Services, 
  responses to questions from the Subcommittee...................   262
Williamson, John Wilburn, Assistant Director for Driver and 
  Vehicle Services, North Carolina Division of Motor Vehicles, 
  responses to questions from the Subcommittee...................   330
Woodruff, Greer, Senior Vice President of Corporate Safety and 
  Security, J.B. Hunt Transport, Inc., American Trucking 
  Associations, responses to questions from the Subcommittee.....   345

                        ADDITIONS TO THE RECORD

Psychemedics Corporation:

  Ray Kubacki, President, written statement......................   355
  William Thistle, Senior Vice President and General Counsel, 
    written statement............................................   361

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 HEARING ON DRUG AND ALCOHOL ABUSE TESTING OF COMMERCIAL MOTOR VEHICLE 
                                DRIVERS

                              ----------                              


                       Thursday, November 1, 2007

                  House of Representatives,
    Committee on Transportation and Infrastructure,
                      Subcommittee on Highways and Transit,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10:04 a.m., in 
Room 2167, Rayburn House Office Building, the Honorable Peter 
A. DeFazio [Chairman of the Subcommittee] presiding.
    Mr. DeFazio. Sometimes around here, you have to tear up the 
script and that is what we are going to do today. Not being 
previously aware of the breadth and depth of the problems that 
are about to be revealed here today, I am changing the order of 
the witnesses because I want the principals who are involved in 
shaping Federal policy or implementing Federal policy in these 
areas to hear the testimony which is going to be absolutely 
devastating.
    I have been very critical of Mexican trucks coming across 
the border and raised a host of safety issues. Among the issues 
I have raised is the lack of certified drug testing facilities 
in Mexico. Well, it turns out here in the United States of 
America, we have no meaningful program of drug testing for 
commercial truck drivers, none. We are going to hear that 
today.
    The collection facilities are easily penetrated with false 
licenses. The facilities themselves, you could easily smuggle 
in devices that are readily available on the internet which we 
will hear about a little later today.
    The FMCSA has been aware of this. They, in fact, say in 
their testimony, in response to GAO, no, they weren't shocked 
at all to learn that these testing facilities were loophole-
ridden and providing tests for which results were easily 
modified and made meaningless, but they have sent out posters.
    We are going to hear testimony that there is a 2004 report 
about the problem with job-hopping.
    So even when this faulty system works, which we don't know 
how many people are out there abusing substances. The most 
conservative estimate, 1.7 percent, everybody agrees on that, 
at least 1.7 percent. That is 170,000 truck drivers driving 
80,000 pound trucks, abusing drugs.
    In Oregon, with the random test, it seems like maybe the 
number is five times higher. We don't know. There is no 
meaningful system, none. This is shocking. This is incredibly 
shocking stuff.
    We are going to proceed in a little different manner today. 
So we are going to have people listen to the people who are 
doing the investigations and a person representing an 
organization that has been critical of the system, and then we 
will have the other witnesses. Then I will hope for meaningful 
responses from the Administrator and the person representing 
SAMHSA because this cries for out action.
    If you lack legal authority to implement the program that 
your 2004 report said you needed to do to take care of job-
hopping, tell us, but you don't say it in your testimony. You 
are just saying, well, yes, we got that report in 2004. We are 
still thinking about how we might have a national database.
    So that when you have a drug-abusing truck driver who 
doesn't complete treatment and goes to another trucking company 
and starts driving again, we have no idea except in the State 
of North Carolina and a few other places who have taken steps 
that we could take nationally to prevent that from happening, 
prevent people from being killed because there are drug-abusing 
truck drivers out there.
    Mr. Duncan.
    Mr. Duncan. Well, thank you, Mr. Chairman.
    This is a very appropriate subject about which to hold a 
hearing, and I thank you for calling this hearing today. The 
safety of truck and bus drivers on our Nation's highways is a 
major concern for this Committee and Subcommittee.
    We know that a driver's health can significantly affect his 
ability to drive safely while on the road with other trucks, 
buses, passenger cars and pedestrians. Recent news reports have 
called truck and bus driving safety into question, particularly 
with respect to driving while under the influence of drugs.
    In response, this Committee has exercised his oversight 
responsibility to review policies regarding drug testing of 
truck drivers. We want to know if there is actually a problem 
with drug use and drug testing in the trucking industry. Only 
when we get an accurate picture of this issue and its severity 
can we determine effective measures to address it.
    The DOT study of the causes of truck crashes found that 
brake problems, speeding and driver fatigue are the most common 
factors cited as causes. Illegal drug usage was cited as being 
an associated factor in 2 percent of drug crashes.
    There are 711,000 commercial motor carriers registered by 
the Federal Motor Carrier Administration. This translates to 
more than four million individuals who have been issued a 
commercial driver's license.
    FMCSA is charged with regulating the safety of all 
commercial motor vehicles engaging in interstate commerce. The 
Agency must focus its attention on policies and actions that 
will reap the greatest safety benefit. Looking to other 
Department of Transportation agencies like FAA, FTA or FRA for 
a drug and alcohol testing program structure really is probably 
not going to work. The trucking industry needs a safety 
oversight and enforcement program that fits the unique needs 
and size of the industry it regulates.
    We have to keep our eye on the main objective, protecting 
our citizens from unsafe drivers and vehicles. Our policy and 
funding decisions should be focused on the activities that will 
do this the most effectively.
    Thank you again, Mr. Chairman, for calling this hearing, 
and I look forward to hearing the testimony.
    Mr. DeFazio. I thank the gentleman.
    I turn to Mr. Oberstar, the Chair of the Full Committee.
    Mr. Oberstar. Mr. DeFazio, Chairman, I share your anger, 
your frustration and your fury at the state of drug and alcohol 
testing in the United States, especially in the light of the 
efforts this Committee has made on Mexican trucks and drivers 
and drug testing and the inadequacy of their program, but to 
find that ours falls so grossly short is, as you put it, 
shocking and makes one angry.
    This Committee played a significant role in the 1980s in 
shaping the drug and alcohol testing rules that were put in 
place in the late eighties, but there hasn't been any oversight 
over whether those rules are working and how they are working 
and who is being caught and how the tests are being avoided.
    The number of commercial drivers using drugs by official 
record has gone down, but the rules aren't working. They aren't 
working as well as they should. We know that drivers are still 
using drugs but getting away with it. That is the serious 
problem.
    Now this is not a hearing about morality of drug use. It is 
not about the character of the people who are using the drugs. 
It is about breaking the law, avoiding the law, skillfully 
using the internet to get around the law. It is about safety, 
about lives on the highways.
    Commercial motor carriers account for 13 percent of highway 
deaths a year. Illegal drugs, so far as is known, account for a 
small percentage of those crashes. But, as Mr. DeFazio said, 
even at 1 percent, that is 110 plus thousand, maybe as many as 
200,000, deaths. I mean incidents of drivers.
    We know what the effects of cocaine, marijuana and speed 
use are on driving. They impair the driver's ability to conduct 
that vehicle. It is one thing to go to a pop concert and use 
those drugs, but it is something else to use them and get 
behind the wheel of a 80,000 pound vehicle. This Committee 
takes that seriously.
    The FOX News outlet in Minneapolis in February of this year 
conducted an investigation of drug testing facilities on some 
tips that they received, sites where urine is collected, where 
what they found shocked them about the integrity of the tests.
    The FOX reporter wasn't required to empty his pockets. He 
was sent to a public restroom that other building tenants had 
access to. The restroom wasn't searched first to make sure that 
nothing had been hidden there to help him mask the tests.
    Collectors who are not following protocols, facilities that 
don't meet Federal requirements create an opportunity, an 
opening for drug users to escape detection, and they will jump 
on the opportunity in athletics as well as in driving.
    The Health and Human Services Department in 2005 issued a 
guidance to collectors to try to deal with the cheating 
problem. They said a drug user who is part of a workplace drug 
testing program will most likely to defeat the drug test if 
given the opportunity. Well, that is human nature.
    What FOX News found, what GAO is going to tell us today is 
that there is plenty of opportunity, and there are products out 
there to make it possible to cheat, over 400 products, gadgets 
to help a drug user beat the drug test, products that can be 
added to a urine sample to mask the drug, to dilute the urine 
sample.
    Even synthetic urine, I was stunned to find out, virtually 
indistinguishable from human urine, with products like 
Whizzies, UrineLuck, a play on words, a play on the sound of 
words, and Stealth. They are sold on web sites called 
PassYourDrugTest.com, OneHourDetox.com, Whizzinator.com.
    Committee investigators from our Committee found human 
urine for sale on craigslist, adulterants available on eBay, 
adulterants available on Amazon. I thought you could only buy 
books from Amazon.
    These products are sold with the specific intent of 
defeating a drug test. There is no other use, no other 
beneficial use for those products. They ought to be banned, and 
I hope one of the outcomes of this hearing will be legislation 
to do exactly that.
    Health and Human Services admits that their tests don't 
pick up these products. When they do, guess what, the 
manufacturer simply changes the formula. It is a cat and mouse 
game, the manufacturer staying one step ahead of the labs. 
Because the products fool the labs, there is no way of knowing 
how widespread the cheating is.
    That is one of the revealing, shocking messages of and 
findings of the GAO report. Because they don't know how many 
drivers are cheating, the regulatory agencies can't tell how 
many drivers are using drugs.
    The Motor Carrier Safety Administration estimates 2 percent 
of drivers test positive, but there are other studies that 
suggest a much higher number. In Oregon, State police conducted 
two operations last spring and this fall where they anonymously 
tested 400 drivers. They found illegal drugs in nearly 10 
percent of truck drivers.
    Health and Human Services published their occupational drug 
use survey finding that 7.4 percent of heavy truck drivers 
reported they had used illegal drugs in the prior month. At 2 
percent, that is 200,000 drivers. If only half of those were 
using, there is still 100,000 drivers on the roads--
indefensible, unacceptable.
    Then there is another loophole. Drivers who have been 
caught using drugs can keep on driving without going through 
the rehab process.
    In May, 1999, a bus taking 43 passengers crashed in New 
Orleans, killing 22 passengers, and the driver tested positive 
for marijuana. The tragedy was it could have been prevented. 
When the company hired the driver, they didn't know the driver 
had failed four prior drug tests, two for which he was fired.
    Getting a job applicant's prior drug history relies on 
self-reporting. That is not good enough. There are no 
alternative sources from which employers can get that history, 
and there are drug-using drivers that are able to jump from job 
to job, leaving their drug use history behind.
    Now the Tour de France last year was widely criticized for 
drug use by cyclists, but they were all caught. There is a 
rigorous program of testing bicyclists by the World Anti-Doping 
Agency and the U.S. Anti-Doping Agency. They follow the 
cyclists into the testing place, into the bathroom. They stand 
there while the urine sample is delivered. They take blood 
tests.
    Now we have all these privacy laws that say you can't do 
that sort of thing. Well, there are other ways to deal with it, 
and we are going to explore those in the course of this hearing 
and we are not going to just leave it there. We are going to 
follow up with action by this Committee under the vigorous 
leadership of Chairman DeFazio.
    Thank you.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Mr. Chairman, just on one remark you made, it is not just 
that the manufacturers get ahead of the tests--and I will be 
asking about the rationale for this because it is unfathomable 
to me--but Health and Human Services is apparently required to 
publish the list of adulterants and the tests developed for 
them in the Federal Register so that the manufacturers are able 
to change their formulas and prevent detection. That one is way 
beyond me, so that will be another topic I hope we cover.
    With that, we will turn to our first panel of witnesses. As 
I say, we have gotten off the script here because this is so 
extraordinary. I do want and hope that when the Administrator 
testifies later, and the Acting Director of the Office of Drug 
and Alcohol Policy and Compliance is with him and the person 
representing the Substance Abuse and Mental Health Services 
Administration, I would urge you to take notes and depart from 
your prepared testimony because you are going to need to.
    So, with that, I will turn first to Mr. Gregory D. Kutz, 
Managing Director, Forensic Audits and Special Investigations, 
U.S. GAO.
    Mr. Kutz.

   TESTIMONY OF GREGORY D. KUTZ, MANAGING DIRECTOR, FORENSIC 
      AUDITS AND SPECIAL INVESTIGATIONS, U.S. GOVERNMENT 
    ACCOUNTABILITY OFFICE; KATHERINE A. SIGGERUD, DIRECTOR, 
 PHYSICAL INFRASTRUCTURE TEAM, U.S. GOVERNMENT ACCOUNTABILITY 
 OFFICE; DONNA R. SMITH, ED.D., REGULATORY AFFAIRS AND PROGRAM 
 DEVELOPMENT OFFICER, FIRSTLAB, INC., SUBSTANCE ABUSE PROGRAM 
                  ADMINISTRATORS' ASSOCIATION

    Mr. Kutz. Mr. Chairman and Members of the Subcommittee, 
thank you for the opportunity to discuss drug testing for 
commercial truck drivers.
    Recent reports of drivers operating with controlled 
substances in their system raise serious questions about the 
safety of our Nation's highways. Today's testimony highlights 
our covert testing of the DOT drug testing program. My 
testimony has two parts. First, I will discuss what we did and, 
second, I will discuss what we found.
    First, we created two fictitious companies and selected 24 
publicly advertised urine collection sites that followed DOT 
protocols. These sites are located in Los Angeles, Dallas-Fort 
Worth, New York, New Jersey and the Washington, D.C. areas. We 
also produced 24 bogus commercial driver's licenses for 24 
fictitious individuals from the States of Washington, Georgia, 
West Virginia and Delaware.
    Using bogus licenses, we visited these 24 sites, posing as 
drivers selected by our fictitious companies to take a drug 
test. At these sites, we tested 16 key DOT protocols designed 
to prevent an employee from beating a drug test. We also 
purchased synthetic urine and adulterants on the internet and 
used these products for eight of our tests.
    Moving on to the results of our work, we found breakdowns 
in all phases of the drug testing program. I have in my hand 
one of the 24 bogus driver's licenses that we used for this 
test. We produced this West Virginia driver's license, using 
commercially available hardware, software and materials.
    We used licenses just like this one to gain access to all 
24 sites to take our drug tests. This clearly shows that a drug 
user could send someone else in their place to take a drug 
test.
    With respect to protocols, 22 of the 24 sites that we 
visited failed at least 2 of the 16 DOT protocols that we 
tested. For example, 75 percent of the sites failed to secure 
the facility from substances that could be used to adulterate 
or dilute the specimen.
    The first posterboard and the pictures on the monitor on 
both sides of me show pictures we took at one of the collection 
sites with our cell phone cameras. Notice in the first picture 
the potential adulterants such as Lysol outside of the 
collection area. The second picture shows the same Lysol 
container which our investigator took into the collection area 
and could have easily used to adulterate his urine.
    We also found that products designed to be a drug test are 
widely available for sale on the internet. The next posterboard 
shows some of the marketing pitches that are used to sell these 
products. As you can see, these products are represented to be 
safe, undetectable and guaranteed to beat a DOT or other drug 
test.
    We were able to easily bring these products into all eight 
of the sites that we tested for them. For example, I have in my 
hand one of the bottles and heating pads that we used to carry 
synthetic urine into the collection area. We also used vials 
like the one I have in my hand to carry adulterants into the 
collection area.
    None of the eight synthetic or adulterated urine samples 
that we provided were detected by the labs.
    Mr. Oberstar. Mr. Kutz, I want to interrupt you at that 
point.
    Mr. Kutz. Sure.
    Mr. Oberstar. Are you able to identify the authors of those 
comments?
    Mr. Kutz. On the posterboard there?
    Mr. Oberstar. Yes.
    Mr. Kutz. I don't have that with me, but there were lots of 
sites.
    Mr. Oberstar. You do have that information?
    Mr. Kutz. We could get that for you if you are interested.
    Mr. Oberstar. Submit that for the record, please.
    Mr. Kutz. Certainly.
    Mr. DeFazio. Mr. Chairman, we do have some slides that I 
was going to have the staff put up later which actually show 
some of these web sites and the advertisements.
    Mr. Oberstar. We do have that, but I wonder about these 
particular comments.
    Mr. Kutz. We could submit that for you, yes, sir.
    In conclusion, our covert testing clearly shows that a drug 
user could easily beat the DOT drug tests. Even if the 
collection sites followed all of the DOT protocols, our work 
shows that the tests can be beaten using counterfeit documents, 
synthetic urine or adulterants.
    Addressing the vulnerabilities that I have just discussed 
will require substantial improvements in all phases of the drug 
testing program.
    Mr. Chairman, that ends my statement. I look forward to 
your questions.
    Mr. DeFazio. Thank you.
    With that, I turn to Katherine Siggerud, Director of the 
Physical Infrastructure Team of U.S. GAO.
    Ms. Siggerud.
    Ms. Siggerud. Chairman Oberstar, Chairman DeFazio, Ranking 
Member Duncan and Members of the Subcommittee, we appreciate 
your invitation to appear at this hearing on drug testing of 
drivers employed in safety-sensitive positions in the motor 
carrier industry.
    My colleague, Mr. Kutz, has described the significant 
problems existing at collection sites that are an important 
component of FMCSA's drug testing program. Our ongoing work for 
this Subcommittee and the Chairman of the Full Committee raises 
issues about compliance, accountability and design of 
additional aspects of the drug testing program.
    My statement presents these preliminary results today and 
will focus on challenges in, first, overseeing and enforcing 
compliance with drug testing regulations and, second, ensuring 
the integrity of the drug tests and the processes for keeping 
drivers with identified problems off the roads. Before getting 
to these results, it is useful to provide some background of 
the program itself.
    As shown in this slide and in the packets you have in front 
of you, drug testing is a multi-step process that includes many 
players. Employers must, of course, design and implement a 
program or hire a third party to do it for them. In addition, 
FMCSA provides regulation and oversight.
    Collection sites obtain the specimens. Laboratories test 
the specimens under the oversight of the Department of Health 
and Human Services. Medical review officers review and verify 
lab results and report them to employers, and substance abuse 
professionals design programs for employees that wish to return 
to driving after a positive test.
    With regard to FMCSA's efforts to ensure that commercial 
motor carriers have drug testing programs in place, we found 
that non-compliance appears to be widespread. According to 
FMCSA data, more than 70 percent of compliance reviews 
conducted since 2001 and more than 40 percent of safety audits 
conducted since 2003 found violations of drug testing 
regulations including finding the carrier has no drug testing 
program at all.
    As shown here, the most frequently cited drug testing 
violations in compliance reviews are carriers having employed 
drivers without a pre-employment drug test or not testing them 
at all. About 1 percent of compliance reviews find that 
carriers allow drivers with a positive drug test to continue to 
drive. Non-compliance appears to be particularly high among 
small carriers and owner-operators.
    In addition, FMCSA's oversight is limited. While new 
entrant safety audits are designed to reach all new entrants, 
compliance reviews only reach about 2 percent of carriers each 
year due to the size of the industry and resources devoted to 
these activities.
    In particular, oversight activities do not address 
compliance by agencies and by carriers to implement drug 
testing programs such as collection sites because of limited 
resources and the lack of enforcement authority. FMCSA will 
investigate service agents such as collection sites as a result 
of a specific complaint but can only act to disqualify them 
from DOT's testing programs rather than using the fines that 
can be applied to motor carriers.
    Even when there is good compliance with regulations, 
drivers who use drugs may still be driving commercial motor 
vehicles. First, as Mr. Kutz explained, subversion of the drug 
test is still possible. The regulations do not require 
employees to directly observe collection nor do they require a 
thorough search for hidden subversion products.
    The extent to which subversion is occurring is unknown and 
is impossible to determine because when specimens are 
successfully adulterated or substituted, there is no record 
which would allow us to judge this extent.
    Second, there are limitations to the test itself. Drivers 
who use illegal substances other than the five the DOT tests 
for, those are amphetamines, cocaine, opiates, marijuana and 
PCP, or who use certain prescription medications may not be 
identified.
    Also, the urine test does not provide indications of drug 
use history because it can only detect the presence of drugs 
taken within the previous several days.
    Finally, lack of disclosure of past positive drug tests is 
a problem. DOT regulations require that an employer, in 
addition to testing a job applicant, inquire about that 
applicant's drug test history and contact the driver's recent 
employers.
    Representatives from several motor carriers told us it is 
easy for drivers to simply omit any previous employer for whom 
they tested positive or any such pre-employment drug test. Such 
drivers can remain drug-free for a period of time leading up to 
their next pre-employment test, get a negative result and get 
hired without their new employer knowing about any past 
positive tests.
    In our ongoing work, we are analyzing options for 
addressing some of these problems including their costs, 
advantages and disadvantages. These include publicizing 
information and successful practices regarding drug testing 
requirements to carriers, service agents and drivers, improving 
and expanding FMCSA oversight and enforcement, adopting Federal 
legislation prohibiting the sale, manufacture or use of 
adulterants or substitutes, testing for more and different 
drugs, testing alternative specimens, and developing a national 
reporting requirement for past positive drug test results.
    We will be issuing our report to the Committee in May.
    I will take any questions when the Committee is ready. 
Thank you.
    Mr. DeFazio. Thank you.
    We would now turn to Dr. Smith. Go ahead.
    Ms. Smith. My name is Dr. Donna Smith. I represent today, 
before you, the Substance Abuse Administrators' Association 
which is a non-profit professional group that has as its 
members, DOT regulated employers and service agents who assist 
them and support them in implementing and conducting workplace 
drug and alcohol testing programs.
    In preparation for my being here today, the organization 
did conduct a survey, a very thorough survey of its membership 
to explore the problems that the Committee is addressing. We 
also held a recent conference where this particular topic was 
discussed and where more data were provided.
    So, as a summary of that, I would like to present that 
there are probably three main things that I believe and that 
the association believes are roadblocks to being able to 
effectively implement the Department of Transportation's drug 
and alcohol testing program and to achieve its objectives of 
deterrence and detection of illegal drug use among safety-
sensitive workers. Those three things, my colleagues have 
already mentioned.
    One is obviously that there are opportunities to cheat on 
the drug test and very, very little opportunity to detect that 
cheating.
    Secondly is that the when the rules have been successful in 
identifying an individual who tests positive or who refuses to 
test through an adulterated or substituted drug test, by our 
best estimates, only 40 percent of those go through any kind of 
rehabilitation, intervention or return to duty efforts.
    Now other people would say, well, that is a good thing; it 
is working; they aren't working in transportation any more or 
they aren't driving a truck any more. I am not at all convinced 
that that is true.
    The third thing that I think is the greatest impediment to 
the success of the Department of Transportation's drug and 
alcohol testing regulations is a real difficulty in 
implementing effective compliance monitoring, and that is 
particularly true in the commercial motor carrier industry.
    I would to take just a couple of more minutes to explain in 
some depth what some of the things that I think are critical.
    Having to do with collection sites, when I worked for five 
years at the U.S. Department of Transportation at the time that 
the Omnibus Act was being implemented and the regulations were 
being promulgated, we always said then that we knew that the 
collection of the specimen was going to be the weakest link in 
the process.
    We had a lot of tools to address the analytical issues in 
the laboratories. We had a lot of ways that we could address 
issues in terms of the training and the expertise of the 
physicians who would review and interpret test results.
    The mere scope of specimen collection for potentially 
hundreds of thousands of employers is mind-boggling. Our 
estimate in our association is that there are probably at least 
10,000 collection sites that service DOT-regulated employers 
across the U.S. These are laboratories, patient service 
centers. These are urgent care centers. They are doctors' 
offices. They are chiropractors' offices. They are whatever.
    In almost all cases, collecting a forensic urine drug 
sample is not their core business and, in almost all cases, 
this task is entrusted to the lowest paid, least trained member 
of that staff. So I think just getting our hands around that is 
difficult.
    In terms of the return to duty process and people that 
circumvent that--and I think it may be as high as 50,000 people 
that we have caught on the drug test but who do not go through 
the return to duty process--I think that we need to look 
seriously at the opportunity for a national database.
    The U.S. Coast Guard, the Federal Aviation Administration 
and, to some extent, the Federal Railroad Administration have 
been much more successful because they are able to rescind or 
revoke licenses or documents, and people therefore cannot work 
in that industry again until they have been able to satisfy the 
return to duty requirements.
    So, in short, the recommendations to the Committee from 
SAPAA are as follows:
    That the Congress support and pass some form of the Drug 
Testing Integrity Act to try to get a handle on the 
proliferation of the adulterants and the other products so 
readily available.
    That they would follow what six States have tried to do. Of 
course, the purveyors of these products simply get around that 
by having the ads on their web site: We can't ship to you in 
North Carolina, but we can ship it to a friend or family member 
in any of the neighboring States.
    So I think we need a national piece of legislation, Mr. 
Chairman.
    I think that we also need to increase funding and resource 
for the Federal Motor Carrier Safety Administration. The ratio 
of auditor or inspector to carrier is abysmal. But we have to 
make those more than paper audits, more than an auditor or an 
inspector going in and saying: Let me see our statistical 
report for the year. Let me see your written policy.
    The inspectors must be trained and they must be held to go 
out into the field to do the kind of collections that Mr. 
Kutz's organization did in terms of seeing what is going on.
    I also believe that the development somehow of a national 
database is essential to stop the job-hopping. You have an 
industry where turnover rate, where availability of drivers 
really drives and encourages the process of being able to walk 
out of one trucking company or motor carrier and go down the 
road to the next.
    Finally, I think that the Department of Transportation 
needs to more effectively wield a club and a tool that it 
already has in place in the regulations which is the Public 
Interest Exclusionary Process so that when collection sites or 
when third party administrators or when medical review officers 
flagrantly disregard the requirements that are already there in 
the rule, that they are in fact posted as this service agent 
cannot do business with a DOT-regulated employer.
    Thank you for your time and your attention.
    Mr. DeFazio. Thank you.
    We would now go for a round of questions.
    First, a couple of questions from web sites, if I could see 
the slide that says, this one claims Government endorsement. 
Could the GAO comment on that?
    It says we carry FDA-approved drug test detoxification 
programs for passing serious drug tests. All of our products 
are manufactured in the U.S. I, of course, supported 
manufactured in the U.S., but----
    [Laughter.]
    Mr. DeFazio. Located DHS and DEA certified facilities. Can 
you comment? Do you have any comment or insight into that 
claim?
    Mr. Kutz. I don't certainly.
    Ms. Siggerud. I don't either.
    Mr. DeFazio. Okay. How about then the favorite links from a 
DAT testing facility web site slide? No, not the Whizzinator. 
Yes, here we go, the last one.
    This is from a lab called, I think it is blacked out. They 
are in California. Some of the specifics are blacked out. I 
don't know why. I would love to publish their name right now, 
but I will get it later.
    It is something health care clinic, Commerce, California, 
and they administer commercial truck driver medical exams and 
drug testing. They have their favorite links. We all like our 
favorite links.
    Their favorite link is to--could we have the next slide 
please--Insider's Guide to Passing a Drug Test: What the Labs 
Don't Want You to Know. This is on the web site of a company 
that is certified to do commercial truck driver medical exams 
and drug testing.
    Ms. Siggerud. Well, I think, Chairman DeFazio, clearly that 
is a problem, and we have all made the case today here that 
these adulterants and substitutes are not regulated except by a 
few States and that there is an issue with oversight of these 
collection facilities. It is not surprising, therefore, to see 
a collection facility web site that would have, shall we say, 
questionable information on it.
    Mr. DeFazio. I think, Dr. Smith, this might go to your 
comment about the exclusionary process or the disqualification 
process. Maybe a company that is doing medical exams and drug 
testing that has a favorite link on how to beat the test, do 
you think they ought to be doing these tests?
    Ms. Smith. No, sir, and I think that is the point. It is 
just like what I think we have been through as a Country in 
terms of how did we get OSHA compliance. There has to be--there 
has to be some kind of threat, a risk assessment that every 
employer, every company is going to go through in terms of what 
may happen if I don't comply, and I think that it has been 
difficult.
    I think one of the fears, Mr. Chairman--and I know this was 
true when I was at the Department of Transportation--is if we 
rode these people too hard, then they will simply say: Okay, I 
am not going to do drug testing anymore, all right, DOT drug 
testing. It is not a big part of my revenue anyway and, you 
know what, I don't even care if I do the DOT physicals. I am 
going getting 25 or 35 bucks for those. So that is okay.
    The concern was all right, then we are simply going to make 
it harder for a commercial motor carrier to comply because they 
are not going to have very many places that they can send this 
driver for that random test when he is between Moose Breath and 
wherever.
    Mr. DeFazio. Okay, thank you.
    In the testimony by Mr. Kutz, on page 20, you say here: 
Corrective Action Briefing, we briefed the DOT on the results 
of our investigation on October 1st, 2007. DOT officials agreed 
with our findings and indicated they were not surprised by the 
results of our work, stating that they have performed similar 
tests themselves in prior years with similar results.
    Do you stand by that? They actually said that?
    Mr. Kutz. Yes. We do corrective action briefings all the 
time. Our protocols are first to brief your staff, and then we 
go to the agencies affected and brief them. We document what we 
say to us, and that is correct.
    Mr. DeFazio. Then it says there their response was they 
developed posters?
    Mr. Kutz. That is what it says, yes.
    Mr. DeFazio. Are the posters required to be posted in these 
facilities?
    Mr. Kutz. I don't believe they are required. We did see one 
of the best practices was one of the places that followed all 
the protocols actually did have posters up there. So that 
certainly was one of the better things we did see, and we 
didn't see many good things.
    Mr. DeFazio. Then they also said that the REAL ID Act could 
close a vulnerability identified, using fake driver's licenses.
    My recollection, and you could help me out with this, on 
the REAL ID Act is I believe State compliance is required in 
2009 or 2010 and then States are not required until a person's 
license is reissued to provide a REAL ID-capable license, which 
could be in some States as long as 10 years. So we could be 
looking at 2020.
    Mr. Kutz. That is a long term, clearly.
    Mr. DeFazio. Right, right.
    Mr. Kutz. I agree.
    Mr. DeFazio. They didn't seem disturbed by the fact you 
were able to successfully penetrate all these facilities with 
fake driver's licenses today?
    Mr. Kutz. I think they were, but they didn't really offer a 
short term solution. I think that is something we can talk 
about at the hearing today, are there short term solutions to 
that issue.
    Mr. DeFazio. What would those be?
    Mr. Kutz. Well, we talked about two possibilities, either 
the employer faxing a copy of identification to the test sites 
of the person coming to take the test or actually the test site 
making copies of the credentials that were given to them for 
the person taking the test and making sure that those go back 
to the employer, so the employer makes sure that the person who 
took the test is in fact their person. That could be a short 
term, low cost alternative.
    Mr. DeFazio. Okay, we will be asking the Administrator if 
he would like to do that.
    I have a question about part of the problem with the drug 
testing is it is obviously ephemeral, and there is some 
discussion about hair and other things. Is hair testing 
accurate for historic drug use which might then give us 
probable cause to target more testing on that person?
    Can anybody comment on that?
    Ms. Smith. I can comment on that simply by the involvement 
that I have had with clients that utilize hair testing. Does it 
give a longer window of detection for illegal drug use 
depending on the length of hair sample? The answer to that 
question is yes.
    Is it reliable? I think again the science is divided on 
that. It certainly is analytically reliable.
    I think you have questions about whether or not single time 
or recreational use is as easily detected in terms of 
absorption into the hair as you do people who are chronic or 
frequent users. I think you also have some of the issues with 
regard to the availability of sample depending on where on the 
body you can get sufficient hair, so from a reliability, et 
cetera.
    I think, though, the thing that would address some of the 
issues that we are having here is, and I am sure Mr. Stephenson 
and Dr. Bush from SAMHSA will back me up, since hair testing 
has begun to proliferate more in the non-regulated drug testing 
world--that is employers doing drug tests not under Federal 
authority of any kind--we have seen the products, the ads and 
whatever increase over 300 percent for shampoos, for hair 
preparations that you would put on your hair to pass your hair 
test if your employer has gone to that.
    I have had collectors, who have been trained how to snip 
the hair and package the hair, contact me because people are 
showing up with weaves and with human hair wigs and all kinds 
of things. So I don't want you to think that by changing 
specimens, you can necessarily----
    Mr. DeFazio. That is not exactly where I was going. Where I 
was going was that the hair test, since it is not real time and 
there is potential dispute, could be used as an indicator to 
give us probable cause to target that individual for more 
frequent urinalysis or something along those lines.
    Not necessarily a disqualification but say: Well, we notice 
the test shows you have been using drugs in the past. That 
means you are going to be subjected to more frequent random 
testing.
    Ms. Smith. And I can tell you that I have seen that used in 
other programs that I have been involved with particularly in 
the area of monitoring healthcare professionals who have had 
their licenses rescinded for substance abuse.
    Mr. DeFazio. Then one other, yes.
    Ms. Siggerud. Chairman DeFazio, we will be looking at these 
alternative specimens in our work, in our report that will be 
issued in May.
    Let me just mention a couple things to keep in mind about 
them. I think part of it is we need to decide what it is we are 
trying to accomplish. Are we looking for long term use or are 
we looking for recent use? The urine is useful for recent use; 
the hair is useful for longer term use.
    We have talked with motor carriers who are using hair 
testing as part of a pre-employment test for that very reason 
and then also using urine testing.
    The other issue to keep in mind is, of course, what Dr. 
Smith brought up. In deciding to go a different direction in 
this area, we need to look at the potential to address the two 
problems that Mr. Kutz found, and that is the ability to 
substitute or to adulterate and whether the industry that 
assists with that will sort of ramp up and be responsive to a 
new testing.
    Mr. DeFazio. That goes to that requirement. Are you 
familiar with this requirement that DHHS publish a road map on 
how to beat the system and can you tell me what the possible 
rationale for that is?
    Ms. Siggerud. DHHS does, in fact, publish in the Federal 
Register, protocols for testing and ranges within which testing 
will be done. My understanding is that is a Federal 
requirement. Dr. Smith may have some more to say about that.
    Ms. Smith. I would defer that, I think, for when Mr. 
Stephenson is here. He can tell you exactly the circumstance 
under which that has to be published.
    Mr. DeFazio. Okay, we may want to.
    Then, finally, on the job-hopping which was raised and the 
issue of a Federal registry, we had a report in 2004 and from 
reviewing the FMCSA testimony, it seems like they are thinking 
about it. Is that sort of the extent of where we are at here? 
They are kind of thinking about it?
    This is an identified problem. Did you have any discussions 
with FMCSA about the national database and the need for one and 
the job-hopping problem.
    Ms. Siggerud. Yes, we have had discussions with FMCSA and, 
in our ongoing work, we also do plan to go to the States that 
have a registry already. There are a number of them across the 
Country and two States that actually not only require reporting 
but connect that then to the provision of the CDL.
    There are a number of issues to be addressed there. 
Clearly, the registry would address two problems. One would be 
the job-hopping issue. The other would be helping employers to 
comply with the requirement that they do check the previous 
drug history. The registry addresses both of those.
    Clearly, in setting it up, there are a number of things to 
think about, the resources that would need to be devoted to the 
registry to make sure that it is timely and accurate and then 
another question of whether, at the Federal level, you want to 
make the connection to the CDL the way a few of the States are 
doing.
    Mr. DeFazio. Okay, we will look forward to your further 
thoughts on that.
    I do have the full name now. It is the Ross Healthcare 
Clinic in Commerce, California, great citizens. We might want 
to have FMCSA consider whether they want these people to still 
continue to be eligible to apply to do medical exams and drug 
testing given their advocacy for beating the drug test, and 
that isn't an advertisement for this company.
    Thank you. I turn now to the Ranking Member, Mr. Duncan.
    Mr. Duncan. Well, thank you, Mr. Chairman.
    Ms. Siggerud, you say in your statement that DOT estimates 
that approximately 4.2 million people including truck and bus 
drivers work in such positions, in other words, commercial 
driving, and that commercial motor carriers account for less 
than 5 percent of all highway crashes, but these crashes result 
in about 13 percent of all highway deaths or about 5,500 of the 
approximately 43,000 annual highway fatalities.
    A DOT study on the factors associated with large truck 
crashes finds that vehicle factors such as brake problems and 
behavioral factors such as speeding and driver fatigue are some 
of the most frequently cited factors involved in large truck 
crashes while illegal drug usage is not among the most 
frequently cited factors, appearing as an associated factor in 
only 2 percent of the crashes, which everybody would agree is 2 
percent too many.
    I just wonder, do you have faith in that DOT study or, in 
your investigation of this, do you have any reason to question 
that?
    Do you think that 2 percent figure is accurate? I am just 
trying to learn the extent of the problem here.
    Ms. Siggerud. Yes, there are a lot of different ways to 
think about that, Mr. Duncan, but let me just make a few 
points. It certainly is true that the study, and this is the 
Large Truck Crash Causation Study. It is an ongoing study that 
was done to investigate crashes post hoc, and it is very 
comprehensive.
    Mr. Duncan. You say it is a long term study?
    Ms. Siggerud. It is called the Large Truck Crash Causation 
Study.
    Mr. Duncan. How long has it been going on?
    Ms. Siggerud. I would have to get that to you for the 
record, Mr. Duncan.
    Mr. Duncan. Anyway, it has been several years?
    Ms. Siggerud. Yes, it has. The idea of it is it goes out to 
crashes and investigates a number of factors related to them 
after the crash. It does, of course, identify that equipment 
failure and behavior problems are very significant causes of 
crashes. Of course, this Committee has looked at those issues 
in other hearings.
    With regard to the amount of illegal drug use going on, 
though, and its contribution to crashes, we really don't know 
very well what the actual percentage is of drivers that are 
using drugs. The bottom number is certainly the 2 percent that 
FMCSA identifies. The upper bound may be somewhere around the 
10 percent that hair testing and other testing has shown. So it 
is fairly difficult to know exactly what the causes are.
    Another part of that Large Truck Crash Causation Study did 
say, however, that there is no doubt that illegal drug use does 
increase the likelihood and the risk of a crash occurring.
    Mr. Duncan. I am told by staff that of these four million 
truck and bus drivers that approximately half are tested every 
year. Is that fairly accurate?
    Ms. Siggerud. The Federal requirement is that 50 percent of 
workers be tested in a given year, yes.
    Mr. Duncan. So I am not sure I understood what you just 
said. Roughly, two million are being tested each year, is that 
correct?
    Ms. Siggerud. That is certainly what the requirement is. We 
have some concerns based on our work.
    Mr. Duncan. Well, it may be what the requirement is. What I 
am trying to get at is how many do you think are being tested.
    Ms. Siggerud. My guess is when it comes to motor carriers, 
it is probably less than 50 percent. We did find in our work, 
and FMCSA has told us this, that when they go out and do these 
safety audits of new companies that are just getting a DOT 
number and entering into the motor carrier business, that they 
find that 30 percent of those companies have no drug testing 
program at all.
    So my guess is less than 50 percent of motor carriers' 
drivers are being tested in any given year.
    Mr. Duncan. I am also told that roughly 2 percent of the 
total number of drivers test positive.
    Ms. Siggerud. Of those that are tested and where, in fact, 
the test is able to either find a positive test or an 
adulterated test, as Mr. Kutz has said and as we have found, we 
think that there is a higher number that were actually 
successfully substituting or adulterating and not getting 
caught.
    Mr. Duncan. Is it accurate then that 40 percent of those 
who have tested positive go through the return to duty process?
    Ms. Siggerud. I don't have those numbers in front of me, 
Mr. Duncan, but I have no reason to doubt what Dr. Smith said.
    Mr. Duncan. All right.
    Mr. Kutz, what is involved in the return to duty process? 
In your investigation of all of this, do you think that the 
return to duty process is sufficient in most instances?
    Mr. Kutz. We stopped. We actually did the test and stopped.
    Mr. Duncan. You didn't look into that?
    Mr. Kutz. No, we didn't look at that. Once we got our 
negative results back, we were done.
    Ms. Siggerud. Mr. Duncan, I can comment on that if you 
would like me to.
    Mr. Duncan. Yes, go right ahead.
    Ms. Siggerud. Once a positive test is reported to an 
employer, what is supposed to happen is the driver is supposed 
to be removed from that safety-sensitive position and then be 
allowed to go through this process which would typically 
involve education, treatment and a series of drug tests before 
being allowed to return to duty.
    Mr. Duncan. Well, is the main problem here not so much in 
the number of drivers being tested, but it is in the fact that 
it is so easy falsify or manipulate these tests? Is that the 
main problem?
    Ms. Siggerud. I would say there are two problems. That is 
one of them. The other is that there is a fair amount of non-
compliance within the motor carrier community itself in terms 
of actually getting drivers to enroll in this drug testing 
program at all.
    Mr. Duncan. Dr. Smith, do you feel that the States are 
being harsh enough on the drivers that have these accidents in 
which drugs are involved?
    Secondly, do you question this return to duty process and 
your association, has it been trying to encourage or do 
something to see that the States do get a little tougher in 
enforcement?
    In other words, in our system, the Federal Government can't 
do everything. The State and local people have to do some 
things as well.
    Ms. Smith. Two things, I think that are of note: In the six 
States, and I only have data on three of them, there is a 
requirement that either the medical review officer or the 
employer report DOT violations such as a positive drug test or 
refusal to test where the specimen is adulterated or 
substituted and that that information is then put onto that 
driver's CDL.
    The substance abuse professionals that I have spoken to 
that operate in those States have seen higher compliance with 
going through the return to duty process because the driver in 
the State of Oregon, for example, okay, knows that positive 
test is on his CDL record.
    In order for him to work in transportation again, unless he 
leaves the State and is able to get a CDL elsewhere, is 
contingent upon him completing the return to duty process that 
Ms. Siggerud just mentioned with regard to a substance abuse 
professional evaluation, completion of education or 
rehabilitation and having passed a return to duty and then 
being subject to increased, intensified monitoring through 
follow-up testing in addition to taking his or her chances in 
the random pool.
    So I think that, yes, where States have taken the lead, I 
think that there is an effect. It is only two States I can 
judge it on. I don't have a lot of data, Mr. Duncan.
    Mr. Duncan. All right.
    One last question, Mr. Kutz, what do you think is the best 
way to stop or discourage this cheating or this manipulation of 
these tests that seems to be going on at this point?
    Mr. Kutz. Well, if you don't address the actual collection 
process and move towards more of a direct observation, you 
really have to attack these products because these products are 
so widespread.
    It is interesting that 1 or 2 percent of the people fail. I 
would like to meet those people because it would hard to 
imagine someone not being able to beat at test if they were 
fairly skilled and actually bring in synthetic urine. They 
don't check your socks, for example. So if you put synthetic 
urine in your sock, you potentially could beat this test 100 
percent of the time.
    Mr. Duncan. Well, when you say address the collection 
process or get to the products, how do you think we should go 
about that? That is the question.
    How can we stop this cheating, do you think?
    Mr. Kutz. Well, certainly, with respect to the current 
process, better adherence to the current protocol would help. 
We found an average of four to five out of the sixteen tests we 
looked at or of the protocols we looked were not followed by 
the sites. So, right there, you have a problem with adherence 
to DOT protocols.
    With respect to improving that process, again, and I am not 
saying this is the right answer but a direct observation is one 
certain way to know that you are getting the person's urine. 
There is still potential ways to beat that, but direct 
observation is certainly a stronger test.
    Then again, the products at the end of the process, just it 
is a proliferation of those products. Again, since there is not 
a real search of the person going into the site to take the 
test, it is very easy to hide an adulterant or synthetic urine 
to get in.
    So it is really there is no silver bullet. I think there 
are a lot of pieces of this that need to be looked at.
    Mr. Duncan. All right, thank you very much.
    Mr. DeFazio. I thank the Ranking Member.
    I turn now to the Chairman.
    Mr. Oberstar. Thank you, Mr. Chairman.
    I want to thank this panel for your very thoughtful and in-
depth review and shocking information that you have provided 
for us.
    Mr. Kutz, when you got deeply into this investigation and 
you found these products--Whizzies, UrineLuck, Stealth--and 
guidance on how to pass a drug test, and found those products 
on Craig's List and eBay and Amazon, what was your gut 
reaction?
    Mr. Kutz. Well, I wasn't surprised they were out there, but 
the number of hits you get when you put in, for example, beat 
drug test and pass drug test, it is hundreds of thousands or 
millions of hits out there. So it is just amazing the number of 
entities that are out there that are marketing these products.
    Mr. Oberstar. Hundreds of thousands and millions of hits 
telling the subscriber, the person checking in on the internet, 
this is how you can beat the DOT, flat-out telling them how to 
operate illegally, right?
    Mr. Kutz. It is the DOT and any other drug test. I mean it 
is much broader than that, but DOT is specified in many of the 
web sites. We will help you beat the DOT test, guaranteed, 200 
percent money back return, all those kinds of guarantees.
    Mr. Oberstar. And FDA-approved, as Mr. DeFazio pointed out 
there.
    Mr. Kutz. I saw that representation. Whether that is true 
or not.
    Mr. Oberstar. Wild claim, whether it is true or not, it 
gets your attention right away.
    Mr. Kutz. Many claims like that, yes.
    Mr. Oberstar. But others, than drivers, would be 
subscribing to those list, wouldn't they?
    Mr. Kutz. That is correct.
    Mr. Oberstar. Dr. Smith, you touched on but didn't get 
deeply into the issue of making the products, the masking 
products illegal. Has your organization pursued this matter in 
any depth?
    Ms. Smith. Yes, we have, in fact.
    Mr. Oberstar. You did suggest a Drug Test Integrity act.
    Ms. Smith. Yes, that was last introduced as, I believe, 
H.R. 4910, and SAPAA did present testimony in a hearing on that 
particular bill. My understanding is it went to Committee and 
was not acted upon or did not go any further.
    Mr. Oberstar. That was in the last Congress.
    Ms. Smith. Yes, sir.
    Mr. Oberstar. That was in the Committee on Energy and 
Commerce.
    Ms. Smith. That is correct.
    Mr. Oberstar. We have that bill. Staff has looked at the 
Drug Testing Integrity Act. I have just made a cursory review 
of it. We need to look at that in greater depth, and we welcome 
your suggestions as to how we can make it more effective.
    Ms. Smith. We would be happy to provide that because I 
think it is very essential that we are as comprehensive as 
possible in the language. If you have something like, for 
example, if you have language that any product that is solely 
produced or distributed or sold to defraud a drug test, you 
will find that suddenly those labels will say a product 
suitable for cleaning your fine jewelry, okay, for making 
precision instruments operate cleanly and for detoxifying body 
fluids. So now it simply comes.
    Now, of course, the product's name may have something 
clever like Mary Jane Super Clean, wink wink, okay, Mary Jane, 
of course, the code name for marijuana. So I think it is 
important that there be a lot of thought placed into putting 
together a piece of legislation that can have some effect.
    I might also add that I think there are 15 States now that 
have some degree of legislation in this regard. Some of the 
most successful ones have been ones where it also makes it a 
criminal offense, albeit there are a lot of different levels 
from misdemeanor to whatever, for the person who is caught 
using a product. So it is really trying to get at the end user 
as well as the manufacturer, distributor, et cetera.
    I would think that that should be something the Committee 
or whoever would sponsor such a bill should take into account.
    Mr. Oberstar. I am glad you elaborated on it because you 
touched on all the follow-up points I was going to raise. You 
are very good.
    Once you say, okay, this is illegal because it has no other 
valid societal beneficial use, then some other application like 
it is a good pesticide can be tacked onto it.
    Ms. Smith. And FDA-approved.
    Mr. Oberstar. This anti-drug effort has to be a 
multilayered issue just like security. Security has to be 
multilayered. You cannot do just one thing. You have to have 
many applications, many aspects.
    Just as in safety in aviation, we don't do just one thing. 
We don't build one practice into an aircraft. We build many 
backups, redundancies.
    So there have to be backups and redundancies in this drug 
testing, and one of those is to go the origin. Make the product 
illegal so at least there is a way to catch someone doing it 
and potentially shut them down.
    Then the testing, the process of testing and then the user 
and then the company that is hiring the people. One of the 
later testimonies we will see is a suggestion for a national 
clearinghouse. You suggested a national database, something 
that I have advocated.
    We also have the National Driver Register which catches 
over 350,000, 400,000 drivers a year who lose their license in 
one State and are still able to get a license or try to get a 
license in another State. The NDR has cut those people, 
prevented them from getting licenses. I know a little something 
about that because I authored that legislation 25 years ago, 
and aviation uses the NDR now.
    Something of this nature and maybe expanding the 
information available through the National Driver Registry 
would be beneficial as well.
    Ms. Smith. The only response that I have there is, and I am 
not an attorney but having dealt for many years with this with 
my former colleague from the Department of Transportation, 
Robert Ashby, there is a difference or what would have to be 
adopted, a difference from DOT drug tests which are 
administrative employer, et cetera, as opposed to something 
that has been adjudicated through the criminal justice system 
such as a driving under the influence or a driving while 
intoxicated.
    So, I would agree. Certainly, the NDR has been extremely 
effective in my opinion with how FAA has used it to identify 
pilots and others who have DWI convictions and that is an 
indicator of substance abuse or an issue that needs to be dealt 
with.
    I really do think that it is possible. I know that it will 
be a cumbersome system because there has to be some type of 
avenue for correction to records that are incorrect. There has 
to be some way to document effectively for the driver who has 
gone through the return to duty process and has successfully 
completed rehabilitation and therefore should be eligible. All 
of those things are necessary.
    Mr. Oberstar. Thank you.
    Mr. Duncan asked, I think, a key question in this process 
that we are engaged in, that is, is the problem that the tests 
are easy to bypass? We don't need to rehash the answer because 
it was a very good answer and complete answer. But how do we 
deal with that?
    Mr. Kutz, I know your investigation was aimed at finding 
the issues that you raised, the problems that you have reported 
on, but in the process you and Ms. Siggerud surely have some 
ideas how testing can be made more effective.
    Mr. Kutz. Well, I would say again you have mentioned that 
you have to look at all the phases of this program.
    Mr. Oberstar. Yes.
    Mr. Kutz. From our perspective, with the covert testing we 
did, from the moment you walked in the door until the point in 
time when the lab actually tested the urine, there were issues 
with all phases of that.
    I can look at it as three phases: You walked in the door 
with the counterfeit ID. You were able to get in.
    You were able to do through the protocols. They didn't 
follow a lot of protocols and, even if they did, you could 
substitute the urine or adulterate the urine.
    Then when you sent it to the laboratories, the lab was 
unable to detect in the eight cases we did the adulterants or 
the synthetic urine. So you have issues even with the 
laboratories and what kind of testing they are doing and how 
effective that is. We haven't discussed that yet even.
    Mr. Oberstar. The driver ID was again shocking, but that is 
an issue that the Department of Homeland Security is dealing 
with for a secure identification card for transportation 
workers. We need to engage them in this process of accelerating 
their development of the TWIC and coordinating with other 
agencies of Federal and State Government. We have to engage the 
States in this process as well.
    Then the next is the protocols. What are your thoughts 
about the presence of an observer in the delivery of a sample?
    Mr. Kutz. Well, again, it gets into the tradeoff between 
privacy and other issues and having an effective drug test. 
Certainly, direct observation is going to be a lot harder to 
beat than actually going into a room and closing the door.
    We did have one instance where the individual actually made 
our agent leave the door open, and we still were able to 
substitute synthetic urine into the collection cup and beat the 
test. So it is very difficult without a direct observation to 
actually catch someone trying to cheat.
    Ms. Siggerud. Mr. Oberstar, if I could add to that.
    Mr. Oberstar. Yes, Ms. Siggerud.
    Ms. Siggerud. I think the thing to keep in mind in 
expanding in that direction, which would be much more labor-
intensive than the current approach, of course, is that not 
only are we talking about motor carriers but transit workers, 
rail workers, aviation workers, et cetera, the vast majority of 
whom are not using drugs. Having a directly observed 
observation for people who are likely not criminals, I think, 
would be a very big step to take.
    Mr. Oberstar. And could be very hugely labor-intensive, no 
question about it. I know that.
    Look, in bridge testing, we had testimony just last week in 
Mr. DeFazio's hearing on legislation and we reported yesterday 
on a bridge safety program, that the State of Minnesota has 
only 77 inspectors for 14,000 bridges. They don't have enough 
people to do that job. Imagine trying to deal with seven 
million drivers in this Country.
    Well, we need to think this through.
    What about the lab test? Wouldn't that be something more 
amenable to management, that Federal and State Governments 
could actually exercise control over the labs that are doing 
the testing?
    Mr. Kutz. I think HHS does exercise some oversight of the 
labs, certainly. Again, getting into the issue of whether the 
labs are actually testing for synthetic urine or dilutants, 
right now for this test, the DOT test we did, we don't know 
whether they were checking for the synthetic urine or the 
adulterants. They are authorized but not required to, and so 
that is another thing, certainly.
    Mr. Oberstar. We need to close that loophole then.
    Mr. Kutz. That could be a loophole in addition to what 
Chairman DeFazio said with respect to the advertising for these 
people out there, what actually they are testing for and what 
kind of things are out there. That is something that needs to 
be looked at. That could be a simple fix so that these people 
who are out there, devising products to beat the system, don't 
know everything they need to know.
    Mr. Oberstar. We absolutely have to crack down, I think, on 
that advertising on the internet how to beat the DOT. That is 
something within our ability to do. If we have the chip for 
parents to prevent their kids from being exposed to bad TV, we 
ought to be able to do something like this.
    All right, I have gone on way too long, but I am exercised 
about this.
    Mr. DeFazio. Thank you, Mr. Chairman.
    Just one very quick point, I believe a lot of the 
airlines--I have heard complaints from the employees--do direct 
observation because you mentioned, Ms. Siggerud, FAA, but I 
think they do.
    No? You are shaking your head. No, okay.
    Ms. Smith. Under Federal authority, any employer in 
transportation, whether it is an airline or whether it is a 
motor carrier, is limited to just six very specific 
circumstances where they can do direct observation. Those, 
under the regulatory scheme, have been identified as instances 
where the employee or the candidate has a lowered expectation 
of privacy.
    For example, a flight attendant who has a positive test and 
now must undergo follow-up testing, the airline can do every 
single one of those follow-up tests under direct observation.
    Mr. DeFazio. All right, so it is sort of a probable cause 
thing. Okay, thank you.
    Mr. Boustany will go ahead with his questions.
    Mr. Boustany. Thank you, Mr. Chairman.
    Mr. Oberstar. Mr. Chairman, we have a doctor here now. 
Maybe he can help us get to the bottom of this.
    Mr. Boustany. Human ingenuity is truly amazing especially 
when used for devious purposes. With that having been said, it 
leads me to doubt whether we can actually truly regulate and 
eliminate the use of adulterants. That is going to be a 
difficult problem.
    In looking at this, I sort of broke it down into test 
integrity, looking at the collection process and looking at the 
lab accuracy and reporting. Then there are lab compliance and 
certification issues, what is the role of the State versus the 
Federal DOT in laying out those kinds of guidelines.
    Reporting, a database, then what you mentioned, a Federal 
database or should there be State databases with sharing of 
information.
    Then the effectiveness of the return to duty process. I 
guess I have so many questions, it is going to be impossible to 
ask them all, but I will start off with the return to duty 
process. How really effective is it right now?
    Ms. Smith. It is my opinion from being in this industry for 
a number of years that it is minimally effective. I think that 
the problem that we have of under the Department of 
Transportation regulations a motor carrier nor any other 
employer is required to give a person an opportunity for 
rehabilitation, hold their job open and then monitor their 
after-care.
    It is my experience that in particularly the motor carrier 
industry, the majority of trucking companies where a driver is 
positive, they terminate them. They fire them on the spot.
    They are required by the DOT rules to hand them with their 
pink slip in one hand, in the other hand, by the way, here is 
the name and address of a qualified substance abuse 
professional. Go and get thee help.
    Mr. Boustany. But we don't know what happens to them 
afterwards.
    Ms. Smith. Our information shows that clearly less than 40 
percent of those ever follow through with that substance abuse 
professional referral.
    Mr. Boustany. So, they leave. Some of them can leave the 
State, go get a CDL in another State by just not revealing 
information, and so we have major loopholes in that system or 
that issue alone.
    Another question, I am a physician but I am not an expert 
on laboratory science. Is there some general agreement on 
standards used to detect drug use and abuse, combinations of 
random testing with scheduled testing?
    Is there some general agreement that give you 90 percent 
confidence, 95 percent confidence or so on?
    Ms. Smith. The best data that are probably available on 
that comes from the years of the U.S. Military's drug testing 
program in terms of at what percentage, for example.
    Ms. Siggerud mentioned that the current percentage in the 
motor carrier industry is 50 percent random annually.
    In terms of looking at a population that you make some 
assumption of, what percentage random testing gives you the 
optimal deterrence, for example?
    What are the odds, if you will, that a person will be 
found, will be identified on a pre-employment drug test when 
they have had two or three days notice to clean up and not use 
drugs and knowing the detection level, et cetera? Those kinds 
of data are available.
    I can tell you in terms of trying to estimate the scope of 
the problem, a formula that has long been in place is if your 
random testing positive rate is, let's say, 1 percent, using 
urine drug testing with the detection windows available, given 
the statistical manipulation, your best estimate is that the 
actual prevalence of current use is 3 and a half times that 
percentage. There are limited studies available, sir, but that 
is the best that we have been able to do.
    Mr. Boustany. Thank you.
    In terms of looking at laboratories and trying to make sure 
that laboratories are doing all that is necessary with regard 
to collection standards, accuracy reporting and so forth, what 
is the role of the State and State DOT versus Federal in that?
    Typically, labs and the practice of medicine is sort of a 
State-regulated issue. Could you comment on that interface?
    Ms. Siggerud. Mr. Boustany, this is a Federal program that 
we are talking about. So the collection sites are expected to 
follow standards and training established by the Federal 
Government. The medical review officers are again following 
standards established by the Federal Government.
    Mr. Boustany. Federal guidelines.
    Ms. Siggerud. The laboratories that test the specimens are 
regulated by the Department of Health and Human Services.
    Mr. Boustany. Okay, because clearly there is going to be a 
need to try to tighten all that up or do you feel that the 
standards are appropriate and it is just that the laboratories 
are not following the standards?
    Ms. Siggerud. I want to make a distinction here between 
collection sites and laboratories.
    Mr. Boustany. Right.
    Ms. Siggerud. A lot of the issues we have talked about 
today have been more on the collection site side and whether 
those protocols are being followed and whether even when they 
are whether they can be subverted.
    The laboratories then are, of course, regulated by the 
Department of Health and Human Services, and we have not 
focused as much on whether there are particular issues there. 
We have a later witness on that, of course, but Mr. Kutz did 
find the laboratories were unable to identify some of the 
adulterated specimens that his investigators submitted.
    Mr. Kutz. Right, of the eight specimens we submitted, four 
of them were synthetic urine and four were adulterated. The 
urine we adulterated was clean urine. So we don't know whether 
an adulterant would have actually worked for a drug user, but 
the synthetic urine also produced a negative test result.
    We didn't know whether the labs would be able to catch it 
or not. We weren't certain of that.
    Mr. Boustany. Okay. I mean we need to focus on both sides 
of it, the collection side and the laboratory accuracy piece.
    Mr. Kutz. Yes.
    Mr. Boustany. Thank you. That is all I have, Mr. Chairman.
    Mr. DeFazio. Thank you.
    We have only seven minutes until the vote. Do you want to 
do your five minutes now, Grace?
    Okay, go ahead, Mrs. Napolitano.
    Mrs. Napolitano. Very quickly because I know we have to get 
out, the test integrity itself is questionable, of course. Some 
of it is done not in labs, right? Am I correct? So their 
validity is in question.
    What about employees of the labs?
    My reading of the staff memo indicates that there is a high 
turnover. Is there a question? Have you validated the integrity 
of the employees themselves in the labs?
    Ms. Smith. I think again, if I can respond to that, that 
comment was intended for the collection sites, these 10,000 
doctors' offices, clinics, patient service centers.
    There are only approximately 57 laboratories that actually 
do the analysis of the specimens, that are certified by the 
Department of Health and Human Services, but there are all of 
these other collection sites where the process begins.
    Mrs. Napolitano. There are no penalties for the employee 
who is found with dirty urine, am I correct?
    In other words, they can just be referred and hopefully 
they will go. Like you say, 40 percent might go. What happens? 
Is there a way to be able to make it mandatory referral or a 
penalty if they do not to be able to keep this employee from 
not revealing a prior dismissal based on dirty urine and then 
go and find another job and put people in jeopardy?
    My concern has been because I live in an area where the 
Alameda Corridor has thousands of trucks a day. Many of them 
come through my district. My concern is the safety of the 
people and how are those truck drivers able to maintain if they 
are on amphetamines, and I don't see anything here related to 
alcohol, just drugs.
    Ms. Siggerud. Mrs. Napolitano, there is an alcohol program. 
We have just really focused our statements today on the drug 
testing program. It may be that there are witnesses who can 
talk more about that, but our focus is on the drug testing.
    I do want to be clear that for employees that have a 
positive test, their employers are required to immediately move 
them from a safety-sensitive position. So, in other words, they 
are not allowed to keep driving. Then there is this referral to 
this rehabilitation and treatment process.
    Mrs. Napolitano. I know, but it is not mandatory; it is 
voluntary.
    Ms. Siggerud. The treatment process is voluntary, that is 
right.
    Mrs. Napolitano. Then they go and find another job and not 
refer to their prior employment.
    Ms. Siggerud. In fact, that appears to be quite common in 
that they may go and apply for another job and not ever reveal 
that they worked at the employer where they had the positive 
drug test.
    Mrs. Napolitano. Well, Mr. Chair, I will stop now so that 
we can get to the vote, but I would like to be able to have a 
second round. Thank you very much.
    Mr. DeFazio. I thank the gentlelady. I thank her for using 
her time so efficiently.
    We will now recess the hearing. There are three votes. We 
should hopefully be back in about 20 minutes.
    [Recess.]
    Mr. DeFazio. Let's get organized here.
    I would recognize the gentleman from Texas, Mr. Poe.
    Mr. Poe. Thank you, Mr. Chairman.
    I am impressed with the GAO's ability to get to the truth, 
and I appreciate all three of you, your candor in testimony 
instead of double-talk which we seem to hear a lot of down 
here.
    I have three questions. You have described, I think, and 
very detailed the total, in my opinion, lack of the ability to 
test people who are driving these 18 wheelers throughout the 
Country.
    In spite of the fact this Committee and the sense of the 
House is that the Administration should not move forward with 
bringing in Mexican trucks, of course, we got the assurance 
from the Transportation Department that all these truck drivers 
coming in from south of the border are going to be tested, drug 
tested.
    Do you have any comments at all on the ability of Mexico to 
test its truck drivers that are coming into the United States? 
Do you know anything about their labs, their sampling, their 
process, if it exists?
    Ms. Siggerud. We have not looked at that in our ongoing 
work in GAO.
    Mr. Poe. I am not sure you would be able to find any of 
those labs down there in Mexico. But if at some point the GAO 
needs another project, maybe that would be a good one to find 
out what is happening because now we are bringing in thousands 
of more truckers into the United States, and we have no control 
over that testing procedure. It disturbs me a great deal.
    When I was on the bench in Texas for forever, we had the 
same problem of drug testing. We found that hair samples was 
one of the best ways to find out if people continued to use 
drugs. I say that to get to the second question.
    What is your opinion about you can call it a national 
database or registry system?
    A truck driver goes to business one. He flunks for whatever 
reason, whether he is using methamphetamines, amphetamines or 
anything else, cocaine.
    So he waits it out and then he goes to the second business, 
another trucking company. Am I correct that the second business 
has no record that he flunked the test with the first business? 
Is that a correct statement?
    Ms. Siggerud. Mr. Poe, that is a correct statement as long 
as he did not reveal that on his job application.
    Mr. Poe. Well, you know some of them might even tell them 
but probably not.
    What is your opinion of having a system where a person 
flunks at trucking business number one and trucking business 
number one puts the driver's license, the social security 
number, something into a registry that is monitored, supervised 
by the Federal Government, not paid for by the taxpayers but 
supervised by the Federal Government, where the trucking 
industry itself is able to pull up individuals to find out if 
they flunked with one business or another?
    Do you have an opinion on something like that?
    Ms. Siggerud. Mr. Poe, we are looking at that in our 
ongoing work. It is important to know that there are a couple 
of States that are doing that. So we plan to look at those to 
see how those models are working in terms of getting the 
information out, in terms of accuracy, timeliness and the 
extent to which then motor carriers are able to act on that 
information.
    The Motor Carriers Administration did do a study on this 
concept a few years ago. It was largely a positive study, 
feeling that it would deal with really two problems. One being 
the one you mentioned of moving from job to job without 
revealing a past drug test. The other being that motor carriers 
are expected to comply with Federal requirements to actually do 
an inquiry in this area, and it is difficult for them to do so 
if they don't have the information that they need.
    So we will be looking into that as a concept to address 
several of the problems that we have outlined in our statement 
today.
    Mr. Poe. With the States that are doing this, is it paid 
for by the trucking industry?
    Ms. Siggerud. I do not have that information, Mr. Poe.
    Mr. Poe. It would seem to me that it would be advantageous 
for the trucking industry to finance that some way because as a 
trial lawyer, if a guy flunked one place and he goes some place 
else and he is in a wreck, I would be suing that company 
because they didn't have due diligence about the first 
situation. So it seems like it would be to their interest, plus 
highway safety, to have such a system.
    Lastly, do you think the system is feasible by having the 
trucking industry support the system?
    Ms. Siggerud. I really don't have a comment on that, Mr. 
Poe.
    Mr. Poe. Okay. Thank you, Mr. Chairman.
    Mr. DeFazio. Thank you, Mr. Poe.
    At this point, I think we are going to move on to the next 
panel.
    I do have just one question since he raised the issue of 
Mexican trucks. I was at the border 10 days ago with the 
Secretary, and they are doing inspecting the trucks at the 
border, but my understanding is that the drug testing is being 
done within the commercial zone but not at the border. So it is 
being done through collection facilities within the commercial 
zone.
    Do we have any inclination or information that those are 
operating in a different way than the problems we have 
identified here with collection facilities?
    Ms. Siggerud. In our discussions with FMCSA staff, they had 
told us that they have sent additional personnel into those 
zones to pay more attention to those collection sites than they 
typically do in other parts of the Country.
    Mr. DeFazio. Okay, so they will be inspecting more than 2 
percent of them on an annual basis.
    Ms. Siggerud. That is my understanding.
    Mr. DeFazio. Right, but of course even if they are 
following the standards, as Dr. Smith has said, basically only 
an imbecile could not figure out how to beat the test following 
the standards.
    Ms. Siggerud. I mean, as we said in our statement, that 
even if you have full compliance with all aspects of the drug 
testing program, there are still ways that drivers that use 
drugs can continue to drive a motor vehicle.
    Mr. DeFazio. Right, okay. Thank you.
    I am sorry. Mr. Boozman came in.
    John.
    Mr. Boozman. Thank you very much.
    Very quickly, Mr. Chairman, do we have the same problem 
across the board with physicians when they go, when they are 
being monitored, airplane pilots, people that work on trains, 
things like that?
    We are really talking about two things. We are talking 
about the problems of the industry as a whole and the drug 
testing industry and then the other thing specifically as it 
occurs with the truck drivers. Do we see the same thing, Dr. 
Smith?
    Ms. Smith. We do not see the same thing particularly in the 
aviation industry or in the railroad industry.
    Mr. Boozman. How do they do it differently?
    Ms. Smith. They are different I think because, for example, 
in the rail industry, it is our experience that the vast 
majority of those specimen collections are actually done on 
railroad property with very well trained and dedicated teams 
who come in and collect the specimens. There is almost always a 
supervisor present from the railroad as an example.
    Aviation, the vast majority of random tests, et cetera, on 
aviation safety-sensitive personnel are also similarly 
conducted at airport property or aviation company property, 
frequently again using personnel that are trained, that do that 
month after month in comparison to others.
    Mr. Boozman. So we have a much looser process with the 
trucking industry.
    Ms. Smith. Well, certainly, because the driver that works 
for an over the road hauler, for example, might have a random 
test done in any of 48 States near any truck stop or near 
wherever, and so it is extraordinarily difficult for the motor 
carrier to control that.
    Mr. Boozman. Right.
    Mr. Kutz, under the things that you all found, under 
current law, was there anything that was considered criminal, 
the violations that you saw?
    Mr. Kutz. No, not necessarily. No.
    Mr. Boozman. Has there been any criminal prosecution of the 
industry for any of these things that any of you all are aware 
of?
    Ms. Siggerud. Mr. Boozman, let me take a step back and 
answer that a couple of different ways. I mentioned in my 
statement that there is still a fair amount of non-compliance 
found with FMCSA does compliance reviews of motor carriers 
themselves in terms of having a program that meets the Federal 
standards. In those cases, FMCSA does have the ability to use 
fines and compliance orders, for example, to try to get that 
motor carrier to get its drug testing program up to snuff.
    With regard to the collection site issue that we have been 
talking about, FMCSA does not have that same enforcement 
authority. What it can do is take steps to remove that 
particular collection site or set of collection sites from the 
DOT drug testing program.
    Mr. Boozman. So have they ever done that? Have they removed 
sites?
    Ms. Siggerud. There have been a number. It is called a 
public interest exclusion. There have been a number of these 
efforts started. To my knowledge, in most cases, either the 
collection site has dropped out of the program or come into 
compliance.
    Mr. Boozman. But they really haven't kicked anybody out?
    Ms. Siggerud. Not that I know of.
    Mr. Boozman. I guess the only thing I would say is it 
doesn't really matter what we do if there is no enforcement 
mechanism. It just doesn't work. See what I am saying?
    Ms. Siggerud. The enforcement issue with regard to 
collection sites is one that I think both the Motor Carrier 
Safety Administration and this Committee should be considering.
    Mr. Boozman. Okay. Thank you, Mr. Chairman.
    Mr. DeFazio. I thank the gentleman.
    Mr. Duncan.
    Mr. Duncan. Just very briefly, Mr. Chairman, obviously we 
can't really know or we don't really know at this point how 
many of these two million tests each year are bad or 
illegitimate or cheated on or whatever, but the implication or 
the gist of your testimony is that cheating or falsifying these 
tests is pretty widespread and rampant primarily because of all 
the goods that are being advertised over the internet and for 
other reasons.
    What I am getting at it this: Law enforcement, they know 
they stop just a very tiny percentage of the speeders each 
year. They catch a much higher percentage of the more serious 
crimes, but even thousands of murders go unsolved each year.
    What I am wondering about is this: Instead of doing two 
million tests that we regard as joke tests or questionable 
tests, would we be better off to go on the deterrence theory of 
most law enforcement?
    Most law enforcement is based on the fact that while we 
know we are not going to solve even a tiny fraction of these 
crimes, at least there is a deterrence value out there that 
they think stops many other people from committing the crime. 
So would we be better off with some much lesser number of tests 
but tests that would be clearly legitimate, that would be 
random, that would be personally observed and tests that would 
be thorough and authentic, 50,000 or 100,000 of those?
    Would we better off with something like that or are we 
better to stay with the system that we have?
    Mr. Kutz. I would just comment on that. I think everything 
should be on the table here. I mean everybody is looking same 
thing, an improved process. I don't think anybody is happy with 
the results of what we have had today, and certainly I wouldn't 
be happy with respect to us going in 24 out of 24 times and 
potentially beating this test.
    Something different has to be done, and that could be an 
option that should be on the table. I mean I wouldn't dismiss 
it necessarily.
    Mr. Duncan. All right. Anybody else want to comment?
    Ms. Smith. I honestly believe that the Department of 
Transportation's drug and alcohol testing program and policy is 
well founded and well crafted. I think that it can be effective 
and, despite its shortcomings that we have talked about here 
today, I think there are some statistics that show that it has 
been effective from a deterrence perspective in terms of 
reducing the prevalence of illicit drug use by workers in the 
transportation industries over the past 10 years.
    If we can but fine-tune the program that we have in the 
areas that we have talked about today, I am convinced that it 
can be and is an effective Federal program for the deterrence 
and detection of illegal drug use.
    I am talking about national databases to prevent going from 
State to State or job to job. I am talking about making 
mandatory specimen validity testing and giving the laboratories 
and HHS more bulk to be able to go after the people that 
produce these substances. I am talking about being able, again, 
to utilize the PIE and other processes to weed those providers 
that are not committed to following the procedures and 
upholding the integrity of the process.
    I don't think the system, in terms of the rules, the 
program, is broken. I think the execution in terms of its 
enforcement is where our problems lie.
    Mr. Duncan. All right. Thank you very much.
    Mr. DeFazio. I thank the gentleman. He provoked one last 
question from me, and then we will move on.
    You said in the last 10 years, we have seen a big 
improvement, but since 1997 we have the 1.6 to 2.0 percent 
reported problem. Oregon has the 9 percent. We have self-
reporting at 7.4. Since we have had that consistency in the 
most conservative number over those 10 years, I don't know how 
we can say that we have made big progress.
    Ms. Smith. You are right in terms of looking if you only 
look at drug test positive numbers, but I would suggest that 
there are other barometers for measuring the effectiveness of 
this program as a deterrent.
    If you look, for example, to the Department of Health and 
Human Services household survey data, which admittedly is self-
report but nonetheless has had a standardized series of 
questions over the years, you can see that those individuals 
when polled anonymously who work in transportation industries 
today, who say they are current users of illicit drugs, is less 
than those who responded to that same question, workers in 
transportation industries, 10 years ago.
    You have not seen the same significant decrease in the 
general population at large. You have seen some decrease.
    I think that is but one measure, sir. Granted, it doesn't 
necessarily prove my point.
    Mr. DeFazio. Sure, I appreciate that.
    Okay, I thank this panel for their excellent testimony.
    Here is the way I would hope to proceed. I appreciate the 
indulgence of time that John Hill, the Administrator, and 
Robert Stephenson from SAMHSA have shown.
    What I would like to do is I won't put you last, but I 
think it would be instructive to hear from North Carolina and 
Oregon because I think it raises, first, we have a State that 
has addressed a lot of problems that have been laid out here 
today as far as I can tell from their testimony and then we 
have the question of is there a bigger problem from Oregon. So 
if you can possibly hang in, I would like to do it that way. 
Thank you.
    We would now have Mr. John Wilburn Williamson and Sergeant 
Alan Hageman. We will start with Mr. Williamson.
    I have read your testimony. You are not bound by it. If you 
want to read it, that is fine. If you want to depart from it 
given the preceding panel, we would be happy with that too.
    Go right ahead. You have five minutes.

 TESTIMONY OF JOHN WILBURN WILLIAMSON, ASSISTANT DIRECTOR FOR 
 DRIVER AND VEHICLE SERVICES, NORTH CAROLINA DIVISION OF MOTOR 
   VEHICLES; SERGEANT ALAN HAGEMAN, PATROL DIVISION SUPPORT/
                 LOGISTICS, OREGON STATE POLICE

    Mr. Williamson. First of all, I would like to take the 
opportunity, Mr. Chairman and Members of the Committee to let 
you know how honored we are to be here today, representing the 
great State of North Carolina, Governor Mike Easley and the 
Department of Transportation and our Division of Motor 
Vehicles.
    In late 2004, we were approached by the North Carolina 
Public Transportation Association with a problem they had with 
transit drivers testing positive for drugs and alcohol, being 
dismissed from employment and a few weeks later, when the 
driver felt comfortable, he or she would test negative for pre-
employment testing, be hired by another transit company and 
driving a passenger bus the next day.
    The Association and Division worked jointly on legislation 
which would address this problem. This joint effort resulted in 
the Positive Drug Test Reporting Law. That bill was signed by 
Governor Mike Easley and became effective on December 1 of 
2005.
    The law states that an employer who has an employee, who 
tests positive for drugs or alcohol per the Federal regulation, 
must report the positive to the Division within five days of 
receiving notification from a lab that the driver had tested 
positive. Once the Division receives notification of the 
positive results, we send the driver a letter.
    This letter gives the effective date of the 
disqualification, which is 20 days from the date of the letter, 
and informs the driver that a preliminary hearing is allowed. 
If the driver requests a hearing, he or she must do so within 
20 days. The hearing may only address the testing protocol and 
procedures used by the lab.
    Once the driver is disqualified, the motor vehicle record 
will show the date of the disqualification followed by the 
general statute number. The motor vehicle record will not 
indicate directly the reason for the CDL disqualification.
    For a driver to end the disqualification, the Division must 
receive verification from a substance abuse professional that 
the employee driver has successful completed a substance abuse 
assessment program. The disqualification will end on the date 
the completion is received by the Division of Motor Vehicles. 
The disqualification history remains on the motor vehicle 
report for a period of two years.
    The statistics which I am about to give you are from the 
positive tests reported to us from February, 2006, when we 
received our first positive, through October 17th of this year 
or about 20 months. During that time, we have received 544 
positive tests that have been reported to us, 357 of which 
remain currently active disqualifications.
    One hundred and fifty of the drivers who tested positive 
have completed the substance abuse assessment program. We have 
20 current pending disqualifications sitting there in that 20 
day window. Seventeen reported positives were not disqualified 
due to the completion of the substance abuse assessment program 
prior to the disqualification going onto the record or going 
into effect.
    North Carolina has had 62 hearings requested and only 49 
actually conducted. There were 13 that were canceled or the 
driver did not appear.
    North Carolina has had no official media campaign, and the 
motor carrier or the employers are learning from the new law by 
contact with the North Carolina Highway Patrol Motor Carrier 
section which conducts motor carrier audits. The North Carolina 
Trucking Association web site has information about our 
program.
    The North Carolina Federal Motor Carrier Safety 
Administration, the motor carrier auditors who go out and audit 
these motor carriers as well and the North Carolina Division of 
Motor Vehicles Commercial Driver's License compliance officers 
as well are out there doing audits.
    With over 325,000 CDL holders and approximately 23,000 
interstate carriers in North Carolina, unfortunately, we firmly 
believe we have only scratched the surface to a problem that 
exists statewide.
    Some key program benefits are North Carolina disqualifies 
the driver from driving legally until he or she has completed 
the substance abuse assessment program. WE provide an incentive 
to the drivers with a substance abuse problem who, for the 
first time, are given an incentive to receive treatment and 
address their problem.
    Equally as important, by placing the disqualification on 
the motor vehicle record, the Division is collecting data as it 
pertains to the positive tests. This helps the trucking 
industry identify problem drivers and protects the motoring 
public.
    An example of this is of the 544 positives, 53 have been 
reported from the school bus driver population. Of the 53 
positives, we know that 27 tested positive for marijuana, 23 
for cocaine, 1 for amphetamines, 1 for alcohol and 1 just flat-
out refused to take the test which is also reportable as a 
positive.
    The ability to collect such data is benefit alone for North 
Carolina to justify the cost to the taxpayers and more than 
enough to justify our time and efforts with this highway safety 
initiative.
    In closing and on a personal note, I have learned a 
valuable lesson while working on this program. We in the 
highway safety field must keep an open ear to all private 
sector groups who have an interest in highway safety. The North 
Carolina Public Transportation Association had a problem. We 
learned the problem not only affected them but affected the 
segments of the entire commercial industry.
    North Carolina Division of Motor Vehicles Commissioner Bill 
Gore, Jr., and Deputy Commissioner, Wayne Hurder would like to 
publicly thank the North Carolina Public Transportation 
Association, the North Carolina Trucking Association and its 
president, Charlie Diehl, for all their support and the North 
Carolina Administrator for FMCSA, Chris Hartley, and his staff 
for their assistance.
    The North Carolina Division of Motor Vehicles web site has 
instructions and information on our law, Positive Drug Testing 
Reporting, and you may go there at www.ncdot.org/dmv/forms.
    Thank you for giving me the honor to be here and speak with 
you today.
    Mr. DeFazio. Thank you, Mr. Williamson.
    Sergeant.
    Mr. Hageman. Thank you. Chairman DeFazio and distinguished 
Members of the Subcommittee, I first thank you for the honor of 
speaking before you today.
    I am Alan Hageman. I am a sergeant with the Oregon State 
Police assigned to the Patrol Division at general headquarters, 
and I am here today to briefly summarize Oregon's finding in 
drug testing of our truck driving population and to make a 
single recommendation which I believe will improve our 
performance in reducing the number of impaired motor vehicle 
drivers on our highways.
    Just a brief summary of what we have found as we have been 
conducting these what we call trucker checks since the fall of 
1998. It was the division of now retired Captain Chuck Hayes.
    Basically, what these trucker checks involve is 72 hours 
straight of operation at any of our seven ports of entry where 
these trucks come in. They are randomly chosen for enforcement 
of the Federal Motor Carrier regulations of both drivers and 
their equipment. We also have an emphasis of looking at drivers 
for impairment of either alcohol, drugs or fatigue.
    One of the things that Captain Hayes wanted to introduce in 
the first trucker check, which he did, was urine testing. To 
maximize the participation, he asked that it be voluntary and 
anonymous so there would be no inhibition about giving urine. 
He had very high compliance in that. He repeated it again in 
the fall of 1999.
    The first time we did this, we were surprised. We got 
results back that about 9.5 percent of the urine samples tested 
positive for one or more of the drug categories that were 
tested.
    Again, we repeated this in 1999, and the results were up 
around 15 percent due to an increase in amphetamines. I have no 
explanation for what that spike is in amphetamines and we 
haven't seen it since.
    In any case, now under the leadership of Captain Gerry 
Gregg, there was an interest in revalidating this study. So 
last April, we did another trucker check, this time in 
Woodburn, and we did the same tests. We conducted the whole 
trucker check under the same template as we did under the 
original ones, and we again received results of about 9.5 
percent.
    Backing up a little bit in my testimony, our Oregon 
legislature in 1999 did take some legislative action to address 
what was being discovered then which was designed to exceed the 
U.S. DOT testing requirements found in Part 40. Unfortunately, 
the language is crated in such a way that it doesn't have a lot 
of teeth. So, as I speak to you right now, the Oregon DOT is 
developing another legislative concept that will enhance the 
existing statutory language.
    Currently, the only two States that I could locate that 
have good legislation in this area are Washington and North 
Carolina.
    Oregon can become very proactive in drug testing. However, 
the interstate nature of trucking severely limits the 
effectiveness of Oregon's effort unless there is interstate 
uniformity. That is why I am here to ask you to consider that 
we have some type of a nationwide clearinghouse which would 
report all positive tests including refusals. The interstate 
motor carriers should be required to contact this clearinghouse 
before employing any driver.
    It has been a privilege to speak before you today, and I 
hope what I share with you has some value in improving our 
safety of our Nation's highways. I am honored to answer any of 
your questions.
    Mr. DeFazio. Thank you.
    Mr. Williamson, the programs, I like what you said in terms 
of it certainly would give an incentive to someone who has to 
make a living driving, that they need to get their record 
cleared up. Who established the criteria for the programs to 
make certain that the person goes through a real treatment 
program? Does the State monitor those programs?
    Mr. Williamson. Yes. Well, actually, that list comes from 
the Federal Motor Carriers. We also send a list of substance 
abuse assessment professionals who can handle that treatment 
when we send that letter out of notification of 
disqualification. Yes, sir.
    Mr. DeFazio. Then on the issue of your database, who can 
access that, under what conditions?
    Mr. Williamson. Currently, that is strictly an in-house 
thing. Our adjudication branch, we have two hearing officers 
who have access to that system. The facility or the room where 
we keep these records that has its own fax machine, its own 
phone line and everything comes in there and stays in that 
area. So there is an area. We do consider that a private type 
situation.
    Mr. DeFazio. Your hook is you have taken their State 
license, but we have been talking about a different 
clearinghouse concept in the first panel where a prospective 
employer could get a hit, yes or no. You don't allow that 
because you are figuring since you have taken the person's 
license, no one would need to contact you. You don't need to 
provide access to prospective employers.
    Mr. Williamson. Well, actually, what occurs when we receive 
notification and the person does not request a hearing, that 
disqualification goes on that individual's motor vehicle 
record. It shows CDL disqualification. It gives the general 
statute number and being on his motor vehicle record, it is 
record to just that. Whomever, by the Driver Privacy Protection 
Act, who would have access legally to that motor vehicle record 
would see that on there.
    Mr. DeFazio. Which would be a prospective employer with a 
release could access that. Does it require a release?
    Mr. Williamson. That is correct, sir.
    Mr. DeFazio. Yes, okay. You feel that the process that you 
have put in place with the 20 days for the hearing and that 
because we had concerns earlier about someone having recourse 
if they felt the test wasn't properly administered or whatever.
    You haven't had people go on and appeal and then 
subsequently litigate and claim that you didn't give them a 
fair hearing and the system wasn't adequate to clear their name 
and they are unjustly accused. Have you had any litigation like 
that?
    Mr. Williamson. No, sir, we have not had any challenges as 
of this point. Just they would come to the hearing, and that is 
about it.
    Mr. DeFazio. Sergeant, someone mentioned Oregon earlier, 
saying what do we do in terms of what record. When someone is 
found to have a positive drug test, what are we doing in 
Oregon?
    Mr. Hageman. The medical review officers are required to 
report that to Oregon DOT, more specifically, DMV.
    The problem is kind of lingers in a database that no one is 
required to access and no one is required to disclose. It only 
includes positives. It doesn't include refusals. So there is 
this database that basically is, for all intents and purposes, 
meaningless.
    Mr. DeFazio. Right, and that is something the legislature 
or policymakers are looking at to make that more useful and 
more inclusive?
    Mr. Hageman. Yes, Chair DeFazio, I think we are looking at 
North Carolina as sort of a template on that and do the same as 
disqualifying the driver until steps are taken to correct it.
    Mr. DeFazio. All right.
    Mr. Duncan.
    Mr. Duncan. No questions, Mr. Chairman.
    Mr. DeFazio. Okay. Well, I thank you. I think you 
contributed to the dialogue here and now you might hang around 
and hear what the Administrator's response is. Thank you very 
much. We appreciate your testimony.
    With that, again, I thank Administrator Hill for his very 
generous allocation of time and also--I lost track of my agenda 
here--he is accompanied by Mr. Jim Swart, Acting Director, 
Office of Drug and Alcohol Policy and Compliance, and then Mr. 
Robert L. Stephenson, Director, Division of Workplace Programs, 
Substance Abuse and Mental Health Services Administration.
    We would start with Administrator Hill. I have read your 
testimony, but you are free to do with your five minutes as you 
wish. I realize there are sometimes constraints put upon 
officials by their higher-ups in terms of what you can do or 
depart from, but go ahead.

 TESTIMONY OF THE HONORABLE JOHN HILL, ADMINISTRATOR, FEDERAL 
  MOTOR CARRIER SAFETY ADMINISTRATION; ACCOMPANIED BY JIM L. 
 SWART, ACTING DIRECTOR, OFFICE OF DRUG AND ALCOHOL POLICY AND 
   COMPLIANCE, U.S. DEPARTMENT OF TRANSPORTATION; ROBERT L. 
    STEPHENSON, II, M.P.H., DIRECTOR, DIVISION OF WORKPLACE 
     PROGRAMS, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES 
    ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES

    Mr. Hill. Thank you, Mr. Chairman and Ranking Member 
Duncan. I appreciate the opportunity to give the FMCSA side to 
this issue in your interest in highway safety.
    We are responsible for regulating about 4.2 million 
employees and 600,000 employers. FMCSA has an aggressive 
program to examine compliance with the drug and alcohol 
regulations through roadside inspections, safety audits, and 
compliance reviews.
    The Agency also takes every opportunity to educate the 
industry regarding the drug and alcohol testing regulations, 
and data indicates that CMV operators are among the safest 
transportation workers in the U.S.
    NHTSA's Fatality Analysis Reporting System, otherwise known 
as FARS, from 1997 to 2006 showed alcohol intoxication averaged 
1 percent in crashes each year. It should also be noted that 
the alcohol intoxication level for a commercial vehicle 
operator is at .04 percent blood alcohol compared to the higher 
.08 percent for passenger vehicle operators.
    During use in the same FARS report, the same 10 year 
period, drug use in that period of time for commercial vehicle 
operators was 1 percent. Our last survey, as has been mentioned 
today, is at 1.7 and doesn't show too much differentiation over 
the last 10 years.
    Now while these data are positive, we acknowledge that any 
commercial vehicle that has a driver behind the wheel with 
controlled substances is too many. I pledge to work with the 
GAO and this Committee to take proactive initiatives that will 
deal with this problem. I want to also tell you that we have 
already taken some of those initiatives, and I want to explain 
some of those to you.
    We have applied limited resources for a very large carrier 
population, using a risk-based approach in addressing safety 
priorities that has produced some significant results. Last 
year, we reviewed compliance of more than 55,000 drug and 
alcohol testing programs during our compliance reviews and new 
entrant audits.
    We also see State and local roadside enforcement playing a 
crucial role in detecting illegal drug usage One such example 
was in Maryland earlier this year when a semi tractor-trailer 
driver was stopped for running well over the speed limit. 
Cocaine was found in the vehicle. The trooper revealed through 
this process that not only did he possess cocaine but he was 
under the influence at the time he was driving.
    We, as the Agency, used our authority and declared him an 
imminent hazard and had him disqualified. Fortunately, the 
State of Florida worked with us to have that CDL revoked.
    We have also begun to use data in which the driver tested 
positive for drugs and has not completed the return to duty 
process, which you have heard about today. We are following 
this process. We are removing drivers from the highways.
    I will be glad to talk more about it in the question and 
answer period and expound on it, but we also believe that the 
strategy that you just heard from North Carolina about 
licensing and disqualifying drivers is a positive step, and we 
look forward to working with other States in that regard.
    Our Comprehensive Safety Analysis 2010, CSA 2010, 
recognizes the need to collect more comprehensive data 
regarding drug and alcohol compliance. Therefore, our staff is 
currently developing strategies for requiring collection of 
drug and alcohol testing information to ensure that our new 
compliance model is able to identify drivers and carriers that 
do not comply with drug and alcohol regulations and to prevent 
their continued operation. You will be seeing more about that 
in a proposed rulemaking next year.
    As a former law enforcement official, I have seen firsthand 
the consequences of impaired driving behind CMVs and passenger 
vehicles. Some States have taken steps to criminalize products 
that circumvent the drug testing process, and I certainly 
support these efforts including Federal legislation to prohibit 
their manufacture and distribution.
    Most carriers use service agents to collect drug testing 
programs is what we heard about today. We reviewed compliance 
at these entities during our compliance review process and have 
found 22,000 violations in the past 7 years.
    DOT has worked with the drug testing and transportation 
industries to give special emphasis to collection site 
integrity. We have also asked our inspectors and auditors to 
increase their scrutiny of collection sites.
    We will continue to find new ways to ensure comprehensive 
programs aimed at identifying non-compliant drivers and 
carriers with the alcohol and controlled substance regulations. 
I do look forward to working with you, Mr. Chairman, and GAO 
and our State partners to improve compliance in this area.
    Thank you, and I will answer your questions.
    Mr. DeFazio. Thank you.
    Mr. Stephenson.
    Mr. Stephenson. Mr. Chairman, Members of the Subcommittee, 
I am Robert Stephenson, Director of Division of workplace 
Programs in the Center for Substance Abuse Prevention within 
the Substance Abuse and Mental Health Services Administration, 
SAMHSA, of the United States Department of Health and Human 
Services. On behalf of our Administrator, Terry Cline, we thank 
you for holding this important hearing too.
    Following the lead of your earlier comments, I look around 
and see that most of the issues and concerns we had originally 
come prepared to testify about have already been put out on the 
table. So we have withdrawn our normal oral testimony, and I am 
going to try to respond in this limited time to some of those 
issues that have been raised and tell you a little bit more 
about who we are and what it is we do and try to anticipate 
some of the questions you might ask, but I know I won't be 
totally successful.
    Mr. DeFazio. Excellent, go right ahead.
    Mr. Stephenson. First of all, the HHS roles, we are 
responsible for the administrative and technical standards and 
procedures for Executive Branch Federal employees. That is our 
authority and that is our responsibility.
    This was initially established by executive order back in 
1986, and we established mandatory guidelines for testing and 
programs that needed to be set up by Executive Branch agencies 
back in 1988. We have been in business ever since then.
    A lot of the capacity that we have is to test other 
agencies under their own separate authority, but they use our 
standards by their decision and by their incorporation under 
their rules and processes.
    Currently, we certify 46 laboratories in the United States 
and Canada. We have 114 inspectors who perform two inspections 
per year in each one of those laboratories, where they 
physically go into the places and spend at least a day and, in 
some cases, several days.
    One of the questions that was asked was: Why publish a 
playbook in the Federal Register with what it is about the 
adulterants? Well, the bottom line is that I am equally 
frustrated by that process too, but it is required under the 
Administrative Procedures Act.
    We need to propose things through notice and comments, and 
there was a fairly important case decision that kind of 
cemented the need to do what we are doing. That is putting out 
any modifications to testing protocols, procedures, cutoff 
levels and so forth that are instructions to the labs that are 
to be performed on specimens collected for Federal agency 
employees and, by extension, the DOT-regulated industry.
    We have to put those into a Federal Register notice 
beforehand. We have to receive comments on them, and then we 
have to publish it.
    That puts the lead time way out in advance for anybody who 
wants to willfully manipulate their products to change it. So 
we could do this time and time again, and it will result in a 
blatant behavior of changing products and ignoring. There is no 
fairness in it. They have all the ground advantages in the 
process.
    Why can't you test and detect these adulterants? Well, when 
we had a process where we aggressively used the insight of our 
laboratories to look for anomalies in the specimens being 
tested and then they identified a new adulterant. Then we 
learned from our experience in a couple of important court 
cases that were, by the way, DOT cases, that we needed to 
publish these processes up front.
    What we found out was that you needed a second lab to be 
able to respond to a legal challenge that would be raised when 
one of the adulterant issues was brought up in a specific court 
case. In most situations, that worked well in the early years, 
but it came about that the only other lab that had the kind of 
corporate mentality and will to do this dissolved or became an 
asset of another laboratory corporation, and so we lost the 
capacity to have a second lab do this.
    We explored opportunities with the Department of 
Transportation of using perhaps a resource that they had under 
the FAA, an aerospace medical laboratory, to do some of this 
kind of superlab retesting and so forth, but that has not 
produced any result.
    As a result of that, what we had chosen to do and it was at 
the request of DOT is we truncated the process whenever we saw 
anything funky in a particular specimen being tested and as 
quickly as possible turned the results around, showing that it 
was an invalid test for testing.
    It was an invalid specimen and we could not do laboratory 
testing on it. For a variety of reasons, it just wouldn't go 
through the process well. We didn't identify a specific 
adulterant in it, but we knew there was something wrong.
    So the best we could do was turn the specimen result around 
very quickly and get it back and in the hands of the MRO who, 
in turn, would then suggest we need to do a direct observation 
recollection, maybe in a couple of days rather than chasing 
after an illusive adulterant that you might or might not find 
for four or five days. By then, a person has had enough time to 
clean their system out. They had enough lead warning. So that 
was the best we could do of that process.
    I would totally agree I would love to see a process where 
we didn't have to put that playbook out in advance, but I don't 
know how to get around that under administrative procedures 
rules.
    The last real thing was: What about alternative specimens? 
We published proposed rules for Federal agency employees to be 
used by Federal agencies back in April of 2004. During the 
internal review process, there were issues raised by other 
Federal agencies and departments about some of the issues 
around fairness, hair color bias and legal concerns that have 
not allowed those to go forward to a final process, but we did 
move forward with the urine portion of it to address issues 
around collection site concerns, certification of MROs.
    We separately published the adulterant instructions in 2004 
as a final, and it went into effect in November of 2004 because 
we were concerned about what was going on. By 2005, we had 
provided testimony the first time about the problems that were 
going on in the industry that we were seeing adulterant 
products and substitute specimens.
    The last one was: What about testing for more and different 
drugs? Well, one of the issues raised, I think, in the Oregon 
experience was that they were doing screening tests on some of 
the drivers and they were finding what could have been 
prescription drugs. The comment in the testimony, I think, the 
oral testimony was illicit drugs or illegal drugs. Well, we 
don't really know that.
    What we know is that when you come up with a prescription 
drug test result, you then need to determine whether or not the 
person has a prescription for that and whether they are using 
it in accordance with that prescription.
    If we test for more drugs, the issue is going to be 
resurfacing of a problem that we have had in the past where we 
test for a number of different drugs like benzodiazepines or 
the other opiates for chronic pain issues. If a person taking 
that drug has a prescription and medical review officer reviews 
that, they would say that it is a negative drug test for the 
purposes of the program.
    But I would raise an issue, a concern about the safety 
about using some of these drugs in a work environment where 
that kind of sedation or other issues could be a concern. That 
is an issue to think about when you think about expanding a 
panel to add other drugs.
    At this time, I would just like to indicate our written 
testimony talks more about what we do as a Federal agency, as 
HHS and about our role with the Federal agency programs. I am 
prepared to answer any questions I can.
    Mr. DeFazio. Thank you.
    Mr. Hill, on page three of your prepared testimony, talking 
about dealing with the idea of a national database or registry, 
the study concluded it is feasible to establish a national 
database for positive drug results. If a database were 
established, the report recommends that it be operated by the 
Federal Government to ensure consistency and uniformity. FMCSA 
is moving forward to address this problem.
    The report was in 2004. Can you tell me what you are doing 
to move forward and what kind of time line we have for a 
Federal database?
    Mr. Hill. Mr. Chairman, one of the frustrations that I have 
had in dealing with this, coming from a State in law 
enforcement as I have been aware of this problem for some time, 
as these gentlemen indicated earlier on the panel. So I began 
to ask questions in the Agency, and I was repeatedly told that 
the privacy concerns outweigh the ability of the Department to 
move forward in this regard.
    We have been working despite that. We are going to work 
through the Comprehensive Safety Analysis, CSA 2010. We are 
developing the structure right now and plan to publish a notice 
of proposed rulemaking in early 2008 that will deal with a 
requirement to have medical review officers submit positive 
drug tests to us so that we can create some kind of a database 
that will allow us to know what the performance of carriers is 
actually happening.
    Now I haven't got the rule ready for prime time, but we are 
far along in this process. This isn't an idea. This isn't a 
thought process. This is something that we actually worked with 
our attorneys on.
    What we plan to do at this point is to use, as you 
indicated earlier in response to the North Carolina gentleman, 
a waiver by the employee that if they are going to have a 
safety-sensitive position, they are going to have to make 
agreement to allow this information to be used by those people 
who regulate and, if they do not, they will not be allowed to 
continue in the process.
    Now I really think, as you have seen with hours of service 
and other kinds of high priority issues in this Country 
involving commercial vehicles, there are a lot of different 
moving parts, and I think there will be litigation. I think, 
legislatively, if there was support for creating this database, 
it would make it an easier process to go through.
    But we are prepared to roll up our sleeves with your staff 
and move forward on this. In fact, we are already moving 
forward and are going to go forward with it because I believe 
it is so critical to public safety.
    Mr. DeFazio. I think you heard the Chairman earlier. I 
believe that he and--I can speak for myself--I would like to 
move forward with legislative support for this process. I think 
it is essential.
    In terms of the privacy concerns, we have a database to 
determine a person's eligibility to legally acquire a firearm. 
We don't reveal any sensitive information about the person. It 
is just a yes or a no.
    It could be a similar system which is no, you have a 
problem here and you better go contact the FMCSA if you think 
that is in error. They have an appeals process, and you can get 
your record cleaned up or whatever or if you haven't completed 
your rehab program, you will have to go do it or whatever.
    It seems to me that the privacy issues have been dealt with 
in other databases, and we could certainly deal with them here. 
I appreciate your support for that, and I think we will try and 
give you legislative support.
    What about the whole issue of the integrity of the testing 
process? You certainly heard some very devastating testimony 
regarding that. I mean 100 percent failure rate, and I read 
earlier some comments that had been submitted to GAO in 
response to that.
    The future REAL ID licenses in the second decade of the 
21st Century will help ameliorate the fake ID problem, but then 
it was suggested there was an interim to deal with that. I 
would be curious about your comments on that.
    Then, secondly, we have that and then we also have the 
process itself and the identified problems when it wasn't 
dependent on the fake ID but actually the adulterants and the 
other issues.
    The fact that I believe GAO made a point that they felt you 
had too few people to monitor compliance, not just for drug 
testing but generally as I took their comment, which is 
something we have talked about previously. I know you are 
constrained by your OMB masters, but they pointed also to a 
high failure rate even with that small number of compliance 
reviews. In the drug testing area, I believe they said 40 
percent and it doesn't seem to have a consequence.
    So if you could comment on those two issues.
    Mr. Hill. Sure. Well, first of all, I don't believe that we 
should wait on the REAL ID to start dealing with credentialing 
issues in this process. One of our frustrations as an agency is 
that we don't have the ability to levy fines against these 
collection sites.
    We have to go through this process of a public interest 
exclusion called a PIE, and before we ever get to the PIE we 
have to give them a notice of a PIE. Before that, we obviously 
go out and gather the facts from the individuals and, during 
that process, they are aware that there is somebody looking 
into their behavior. So they either clean it up or they go out 
of business and recreate themselves.
    We have done this repeatedly, and the inference was we 
aren't really using the PIE process. Well, the PIE process is 
designed to give advance notice. They get the advance notice, 
and they don't really clean up their act. They just go out of 
business. So I think that is one of the frustrations.
    I think if we had the ability to levy a fine or some kind 
of penalty, it would deal with what Congressman Duncan 
indicated in his comments earlier, that there would be a 
sanction. There would be an enforcement provision to this 
process.
    Now the second thing, I really would like to say to you 
that we have ready-made solution for this problem. It is 
complex, and it is going to be difficult. I think during the 
next reauthorization, we are going to have to talk about how do 
we build in, with existing resources, whether at the State 
level or at the Federal level, to give the kind of monitoring 
that we need to do with this.
    I will tell you that we have found the States to be very 
agreeable to involving themselves in controlled substance and 
alcohol enforcement, and I believe that we can do a better job 
of giving them guidance and helping them with things like the 
Oregon trucker check program. But it is very labor-intensive, 
and there are going to be issues that we are going to have to 
deal with having officers.
    For example, a large contingent of the workforce in this 
Country doing commercial vehicle safety is not a law 
enforcement officer. They are a limited civilian employee who 
doesn't have the authority to engage in law enforcement-related 
practices. So that is something that we are going to have to 
keep in mind, but we can work around that.
    That is just going to be something we have to deal with. 
Whether we do it in the forms of grants or an expanded Federal 
workforce, we are going to have to have resources to address 
this problem in the next reauthorization. I am convinced of 
that.
    Because, as you indicated, to really deal with fraud at the 
site, you are going to have to get somebody in there to observe 
that, and that is going to take covert monitoring. It is going 
to be labor-intensive. We do that now with CDL monitoring. It 
is very labor-intensive. It is going to be a decision, a policy 
call of whether that is the way we want to use our resources.
    Finally, I would just say in managing the risk of the 
commercial vehicle safety program, I can tell you that I would 
like to look at this Committee and say let's save 300 lives 
next year by getting every trucker in this Country to wear a 
safety belt because we lose 300 a year because they don't wear 
a safety belt. We are losing 1 percent due to some kind of 
controlled substance or alcohol abuse in commercial vehicle 
crashes, which is too much and I am certainly not saying we 
tolerate it, but in terms of addressing risk, we need to apply 
our resources where we get the most reward.
    I believe that is what we are trying to do through 
addressing more driver focus in our programs. We have seen a 9 
percent increase in the number of driver-related inspections in 
this Country. That is because we are changing the focus away 
from vehicle-related activities to driver inspections.
    The story that I told about Maryland is something that we 
are seeing readily. Troopers along the road are stopping 
vehicles with CMV operators, noticing some kind of 
paraphernalia or drug abuse, and then we are following up to 
disqualify those people using imminent hazard. We were not 
doing that previously, and it is something we have started 
using more readily in this past 12 to 15 months.
    Mr. DeFazio. Well, thanks. I would just reflect and 
certainly we would want to be doing what we can to encourage 
that drivers use their safety belts, but that ultimately is a 
self-inflicted injury or death as opposed to a driver under the 
influence who takes out a swath of passenger cars who are 
totally innocent victims. So I would just make that little 
distinction there in terms of why.
    The issue of your response on the labs, I mean if you had a 
fining authority, if that were more highly valued. Ultimately, 
I think what you are going to find is we are going to end up 
somehow probably with fewer labs. It is probably going to be 
more highly valued product, so we are going to charge the 
employers more.
    Also, I would like to see a regime that you can monitor and 
fine them, and that would provide some potential revenue for 
the people to actually monitor the process. That seems to me to 
be a way you could begin to clean that up.
    SAMHSA now looks at the labs. I think you said there were 
44 certified labs, and you have 144 people to monitor those 
labs.
    Mr. Stephenson. Forty-six labs, 114 inspectors, they look 
at them onsite 2 times a year, each lab, every year.
    Mr. DeFazio. Do you have any thoughts on how we could clean 
up the problems at the collection sites given your experience 
in monitoring the labs?
    Mr. Stephenson. There are multiple groups that are 
advocates and specialties, professional staff that work in 
associations. That is certainly one way.
    Both internal self-policing as well as national standards, 
best practices, more aggressive understanding by the employers 
who hire these commercial services as to what their roles and 
responsibilities are under contract law to make sure that the 
work they are getting meets the standards and expectations.
    When you have a failed collection, it costs that employer 
not only the cost of the missed test and the time that the 
person was there. This isn't all about pre-employment testing. 
This is existing random testing. A person being out of service 
while they go to this collection site to get a test that 
doesn't work is certainly an expensive area.
    I would think that those are certainly things that could be 
done better.
    We spend a lot of our time on the laboratory side, training 
physicians as medical review officers and specialty groups 
within the American Medical Association to perform their task 
knowledgeably and understand what a drug test does and what it 
doesn't do and what their roles and responsibilities are. We do 
that for the Federal agencies, and very similar programs are 
also established under the Department of Transportation and 
they participate too.
    But professional education for the people who have to do 
these things is certainly one major piece that I think we ought 
to bank on.
    Mr. DeFazio. Thank you.
    Mr. Duncan.
    Mr. Duncan. Thank you, Mr. Chairman.
    You know everybody, no matter what their job or position or 
occupation is, should always be trying to do more and do better 
and to improve, but let me see if I can summarize what I have 
learned from this hearing.
    Administrator Hill, you say that the truck drivers overall 
are the safest drivers in the Country, and we have been given 
statistics saying that drugs and alcohol are involved in only 
about 2 percent of the accidents and I think a similar 
percentage on the number of commercial drivers involved in the 
wrecks that are occurring.
    Truck companies have pressure and incentive from a monetary 
standpoint to make sure that they don't hire drivers who are 
addicted to drugs because the trial lawyers are going to help a 
lot on that. I mean they are going to be sued if they hire drug 
addict truck drivers who are going to be in wrecks, in frequent 
wrecks. In addition to lawsuits for injuring other people, 
drug-addicted drivers are going to cost their employers a lot 
of money by damaging their trucks and so forth. So there is a 
lot of pressure that way that is very effective, I think.
    In addition, I don't think we should give the impression 
that not much is being done because I noticed in your testimony 
you said that your inspectors are inspecting three million 
trucks a year, is that correct, and they look for drugs and 
alcohol at that time.
    Mr. Hill. It is three million nationwide and predominantly 
by the States, but our people also do a small percentage of 
those, yes, in controlled substances and alcohol.
    Mr. Duncan. Okay, three million. Then the people who are 
enforcing the traffic laws, the State troopers and even the 
local law enforcement people, are stopping some trucks at 
times. So there are checks that way in addition to these three 
million drug tests.
    Now a lot of them, apparently they could get around pretty 
easily or some of them are not legitimate, but I would assume 
also that a lot of these three million drug tests are 
legitimate tests because truck company owners would have 
pressures and incentives to make sure that those tests were 
legitimate. Would you agree with that?
    Plus, you said in your testimony also that your Agency is 
doing a lot of work with truck companies to make sure that 
their testing is legitimate. Is that correct?
    Mr. Hill. Yes, Congressman Duncan, we are doing two primary 
focus areas at this point in addition to the random roadside 
inspection process.
    The first one is through the safety audit. This Committee 
required us an agency to do new entrant audits of anyone coming 
into the business for the first time, and within 18 months we 
are required to do a safety audit.
    Now what we found, basically, during that safety audit 
process is that a lot of these companies are passing the safety 
audit even though they don't have compliance with some of these 
issues. The program, the way it was set up initially, was 
primarily designed to be an educational outreach.
    We, as an Agency, said, look, this is not the direction we 
need to go. We need to refine this.
    So we put out a notice of proposed rulemaking in 2006 to 
change the new entrant program to make it more enforcement-
based and to stop entry if you have certain violations that are 
occurring. One of those is drug and alcohol.
    That notice of proposed rulemaking is presently we have 
finalized the analysis of the comments. We are preparing the 
final rule, and that rule will be out hopefully in 2008 as 
well.
    What that will do is it will say if you have employees that 
you are using, that are testing positive for drugs, you are not 
going to be allowed to continue. We are going to revoke their 
operating authority and put them out of business.
    The second we will do is if they don't have a drug and 
alcohol testing program, out of service. Until you get it 
fixed, you will not be allowed to operate. So those are major 
changes that we are making in the new entrant process to fix 
that.
    Mr. Duncan. All right. Then you have these major 
associations, the American Trucking Association and the Owner-
Operator Independent Drivers Association, and both of them are 
making efforts to help on this problem as well. Is that 
correct?
    Mr. Hill. Well, they both commented to the rule, and we are 
taking their suggestion as we move forward with this process, 
yes.
    Mr. Duncan. I believe there has been a suggestion or 
recommendation about a national clearinghouse. Are you familiar 
with that?
    Mr. Hill. I am aware of ATA's proposal to do that, yes, 
sir.
    Mr. Duncan. Now a lot is being done is really the point 
here, and we are making great strides here on this problem, but 
you do need some better enforcement mechanisms for these 
facilities when you find that their drug testing programs are 
inadequate. Is that correct?
    Mr. Hill. Yes. We have the ability to cite them, but then 
we put them through an administrative process to revoke their 
ability to be involved in that in the future. I really think 
that money, fines and penalties work effectively, and that is 
one of the things we have used in the motor carrier industry to 
deal with people who don't want to comply with the regulations. 
So I think that would benefit us in dealing with the collection 
site issue.
    Mr. Duncan. Well, now let me ask you this one last 
question. We have been given statistics that drugs and alcohol 
are involved in only 2 percent of these commercial vehicle 
accidents and that only about 2 percent of these drug tests 
turn out positive.
    But we heard from the North Carolina official, and then 
have been given these statistics from the Oregon tests that 
were done April 10th through the 12th for 491 drivers, 487 
samples. They found drugs in 9.7 percent of their tests.
    Now they said if you remove the opiates in half the 
situations because some of this could be medicine, it would 
move down to 8 percent. Then if you eliminate the opiates 
entirely, it would be 6.4 percent.
    Based on their findings in North Carolina and Oregon, do 
you think this problem is more widespread than these 2 percent 
figures that we have been given?
    Mr. Hill. I wish that I had a good answer for you because I 
would think that if we were killing more people related to 
controlled substance, it would show up in the crash report data 
that we have.
    I investigated hundreds, thousands of crashes when I was 
involved as a State policeman over 29 years. We had a lot of 
tools and resources to find out. In every fatal crash, you draw 
a blood sample. You find out if there is alcohol or drugs in 
that system.
    If you have people who are seriously injured, you pull a 
blood sample or you do some kind of analysis for reasonable 
suspicion or post-accident testing. So I think that we would 
find that there was more involvement in crashes if this were 
more of a widespread problem.
    Now I commend the Oregon State Police for doing this 
program.
    Mr. Duncan. From your 29 years in Indiana, do you think in 
all those accidents that you personally dealt with, was it 
roughly 2 percent, do you think or do you have any wild guess?
    Mr. Hill. I just know that we were able to identify people 
involved in fatal crashes that were contributing because of 
controlled substance because the blood test, and I would say it 
was a very low percentage when I was doing it, but I can't give 
you empirical data from my experience.
    Mr. Duncan. All right, thank you very much.
    Mr. DeFazio. I thank the gentleman.
    There was the self-reporting figure which I believe was 7.4 
percent, and I don't know that many people who would self-
report they were abusing a substance if they weren't, but maybe 
they wanted to make something up.
    Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chair.
    Mr. Hill, I am very interested in much of what is being 
discussed as it relates to the safety of people generally. In 
speaking, I wasn't here for a lot of the questioning, 
unfortunately, because I was detained elsewhere, but you 
indicate that your Agency has begun a compliance initiative to 
identify the drivers to comply with the return to duty process.
    Does that initiative look at drivers who may have drug 
content in their urine that is due to medication and how does 
that medication impede them or is it affecting their ability to 
drive competently?
    Mr. Hill. Congresswoman Napolitano, I would say to you that 
the reason why we started this initiative is that there are 
some very concerned members in the industry that have been 
witnessing firsthand the movement, what we call job-hoppers, 
truck drivers testing positive and going to different carriers. 
They have been very frustrated with the fact that the driver 
just doesn't have to self-report, and therefore they can leave 
their employment with that particular carrier and then move to 
another one and infect that carrier with the same drug habit or 
drug problem.
    We have sat with them and said, look, we have to figure out 
a way to begin to address this. So we asked our investigators. 
We formed a team to go into these MROs and look at people who 
are testing positive for drugs.
    Mrs. Napolitano. Any drug?
    Mr. Hill. Well, the five that are required to be tested 
through the HHS process that Mr. Stephenson alluded to in his 
opening comments.
    The people who test positive for one of those five drugs, 
we then have reconfigured our IT systems that allows us to 
track drivers as opposed to just carriers. Historically, we 
have looked at carrier databases. Now we are refining that so 
that we can see where a driver is moving to work for different 
carriers.
    If we have a name of a driver who has tested positive 
through one of these facilities, been unemployed or terminated 
from that one carrier and then shows up working for a different 
carrier subsequent to that test, we go out and we investigate 
the new carrier. Did they do the pre-employment testing? Did 
they have the procedures in place? Are they doing random 
testing?
    Fourth, we go after that driver, and we file a driver case 
against him or her. Then we use our imminent hazard authority 
and say, look, this driver is an imminent hazard. You need to 
get out of the interstate commerce industry.
    Mrs. Napolitano. I understand, sir. My question deals more 
with any individual who is driving who may be under a doctor's 
orders to take certain medication whether it is for 
schizophrenia or diabetes or anything else. I am not sure what 
drugs might have a detrimental effect on the driving ability of 
that individual. That is more what I am referring to.
    Have you looked at anything that might be posing a problem 
in those particular medically prescribed drugs? That is my 
question.
    Mr. Hill. We have been working diligently through our 
medical review board to establish a new set of regulations that 
govern medical qualifications for commercial vehicle drivers. 
This is something we have been working to address and the 
NTSB's Most Wanted Recommendations in which they think that the 
medical regulations need to be updated. So we have been in the 
process of doing that.
    In our medical review board, a panel of experts in the 
medical field have been addressing this particular problem, and 
they have actually given us some recommendations that we are 
going to be considering as we move ahead and we do our 
regulations. So we are doing that.
    Mrs. Napolitano. Thank you. That was what I was trying to 
get to.
    I understand that the independent drivers do not 
necessarily self-report, that they are required to go to a base 
entity to be able to do self-reporting. If they are found, they 
may or may not go back to retest or be able to be cleared for 
driving. They may not report that particular job and skip and 
be able to go and obtain another job.
    That is a big question from me on independent drivers.
    Mr. Hill. It is true with independent drivers, but it is 
also true with other carriers as well. I wouldn't just relegate 
it to the owner independent drivers. That is why we started 
this process that I told you about in these independent 
investigations to track these people.
    But I want to tell you it is very labor-intensive. It takes 
time. We are committed to doing it, but it is not something we 
just do thousands in a day. It is something that takes a little 
time to track them and do the investigative steps, but we are 
committed to doing it.
    Mrs. Napolitano. What would help you then identify the 
amount of investment, if you will, to set up such a tracking 
mechanism to be able to tie in the States if they go from one 
State to another, so they would be able then to identify those 
drivers who are at risk?
    Then further, do we have a mechanism to be able to go after 
the damage caused? I know most of it falls upon insurance 
companies, but certainly somebody has to have liability for 
being able to not only hire but also drive a vehicle while 
being impaired.
    Mr. Hill. I would just say to you that this response that I 
gave to the Chairman earlier about our CSA 2010 rulemaking that 
we are developing is designed to help us track where these 
people are. That is one of our problems right now. We have to 
literally go out and find people who tested positively, and 
then we have to track them to where they go in the carriers.
    This reporting mechanism that we referred to earlier will 
allow us to have that information readily available and 
eliminate a lot of the investigate footwork that we have to do 
now to go and find them.
    Mrs. Napolitano. If you had a crystal ball, what would that 
take in funding? What would be able to help you expedite your 
ability to be able to put that in place?
    Mr. Hill. That is a question I am going to have to get back 
with the record.
    Mrs. Napolitano. I would appreciate it, sir.
    Mr. Hill. I am not prepared to answer that here today, but 
it is a valid question. We would like to get back with you on 
that.
    Mrs. Napolitano. I appreciate it because the lives of a lot 
of people could be at stake.
    Thank you, Mr. Chair.
    Mr. DeFazio. Thank you.
    Mr. Platts.
    Mr. Platts. Thank you, Mr. Chairman. I appreciate yours and 
the Ranking Member's efforts on the issue as well as our 
witnesses here today on all the panels.
    Mr. Hill, I wanted to follow up on your comments regarding 
new entries, and I apologize with trying to be at four places 
at once. If I cover something you have already address, I do 
apologize in advance.
    In your comments and in your written testimony, you talked 
about the new entrant rule for 2008. You and I have spoken 
before about the regulations being proposed and working with 
you. Are we referencing the same issue here, the same set of 
regulations, or is this something different?
    Mr. Hill. I believe that there are two issues that you and 
I have discussed. One is the training of new drivers into the 
marketplace.
    Mr. Platts. Correct.
    Mr. Hill. Then the specific new entrant is specifically 
about the new carrier itself and how the carrier complies with 
the regulations and how we monitor that process.
    Mr. Platts. Okay, so they are related but two separate 
issues then.
    Mr. Hill. And two separate rulemakings, yes, sir.
    Mr. Platts. On the one we have talked about before, my 
understanding is that is at OMB with the requirements for new 
drivers as far as behind the wheel training and things.
    Mr. Hill. Yes.
    Mr. Platts. Is there any new estimate? I know it is 
somewhat out of your hands because it is at OMB, but have you 
given any estimate from OMB?
    Given that this is something that started back in 2004 and 
with that 2005 court decision and now in 2007, are they giving 
you any time frame?
    Mr. Hill. They have a minimum of 90 days to review it. We 
are dialoguing with them about that, so I can assure you that 
we are expressing our interest in moving this rule along. We 
know that the court is interested as well. So we have a vital 
interest in making sure this notice of proposed rulemaking gets 
out.
    Mr. Platts. Do you think that will happen before the end of 
the year?
    Mr. Hill. It is our plan.
    Mr. Platts. Okay. On the other regs with the new entrant 
rule, in your written testimony, you talk about as part of your 
testimony that of the 40,000 new entrants that you reviewed, 42 
percent of those programs were counseled for deficiencies and 
that the proposed new entry rule will help address this. Could 
you, one, highlight what the most common type of deficiency you 
found and how the new rule will likely address that and similar 
deficiencies?
    Mr. Hill. Sure. At the top of the list is that the carrier 
doesn't have a policy in place about dealing with drugs and 
alcohol which usually implies that they don't have a drug and 
alcohol testing program. Closest right after not having a 
policy is they don't do drug and alcohol testing. So they 
aren't doing pre-employment, random testing, post-accident or 
reasonable suspicion.
    What I tried to say in my comments there was that we 
recognized this back in 2003 and said, look, you can't allow 
people to come into the business and just educate them and hope 
it gets better. You have to take some action, and that is why 
we put into place a notice of proposed rulemaking to tighten 
that up.
    Now what it is going to do is it is going to front-end load 
the work. Instead of catching these people after they have been 
in commerce and then do compliance reviews, we are hoping to 
deal with it on the front end.
    Not having a drug and alcohol program or using a driver 
that has tested positively will preclude you from continuing on 
in interstate commerce. That is going to be the key, and it is 
going to get people's attention. They are either going to 
comply or they are going to be out of business.
    Mr. Platts. So today, without that new rule adopted, not 
having a program in place, not having the testing done doesn't 
prohibit you from being out there?
    Mr. Hill. That is correct. Now we can do a compliance 
review, and we can go back in which we do in several cases. But 
in terms of the strict mechanism to preclude them from 
continuing on, that is not in place and we needed regulatory 
authority to do that.
    Mr. Platts. Because the way it is now it is almost like 
something has to happen that you are likely to do that 
compliance review and catch them as opposed to being an across 
the board requirement and they would be, in essence, certified 
to have that program in place?
    Mr. Hill. Yes, Congressman Platts, that is correct.
    Mr. Platts. Again, it is proactive rather than reactive.
    Mr. Hill. That is right. That is right.
    Mr. Platts. I think that is a very necessary and 
appropriate approach. I commend the Department and the Agency 
for promulgating that regulation, and hopefully we will get it 
through the process quickly along with the other one regarding 
the training requirements.
    Mr. Hill. Thank you, sir.
    Mr. Platts. Thank you.
    Thank you, Mr. Chairman.
    Mr. DeFazio. Thank you, Mr. Platts.
    Three quick questions follow up on that: As I understand, 
so you are going to have a new authority to deal with new 
entrants who don't have programs, to prohibit them from 
continuing to operate.
    Mr. Hill. Yes, sir.
    Mr. DeFazio. What about the 70 percent of existing firms 
who are found to have violations of drug testing, who are 
ongoing? Do you have the authority to put them out of service 
too and has that ever been done?
    Mr. Hill. In the past seven years, six years, we have done 
about 31,000 enforcement cases. So we bring an enforcement case 
against them, give them a penalty, but we don't stop them from 
operating.
    Under the CSA 2010 initiative that I referred to earlier, 
what we plan to do, as we say, is there are certain things that 
are so fundamental to a carrier's operation that you cannot be 
safe and not do them.
    Mr. DeFazio. Okay, so it won't just be new entrants. It 
will be ongoing problems with compliance.
    Mr. Hill. But they are two separate rulemaking processes, 
and I want you to understand that.
    Mr. DeFazio. All right.
    Mr. Hill. But that is the plan, that we will actually go in 
and declare them unfit if they are a carrier involved in not 
having a drug and alcohol program or they are using a driver 
that tests positively.
    Mr. DeFazio. In the 70 percent of the compliance reviews 
since 2001, where you found violations of drug testing 
programs, have you gone back and verified that those 70 percent 
have corrected those deficiencies?
    Mr. Hill. Normally, Mr. Chairman, as part of our process, 
we engage into not just giving them a notice of claim and then 
they pay their penalty, but we actually engage in settlement 
agreements. Our goal is to get compliance. So as a part of that 
settlement agreement, they have to verify with us that they 
have instituted a program and that we have verified that they 
are using a consortium with third party testing.
    Mr. DeFazio. But right now you don't have a big club over 
them. You are going to have the big club in the future with the 
out of service.
    Mr. Hill. It will be bigger, larger, but right now we do 
have a club because if they are in that settlement agreement 
and they don't comply, we can come back and hit them pretty 
hard. I wouldn't discount that, but it will be much stronger 
with the unfit rating in the future.
    Mr. DeFazio. Okay, thank you.
    Then just quickly for entertainment value, Mr. Stephenson, 
since PassYourDrugTest.com says they carry FDA-approved drug 
test detoxification programs for passing serious drug tests, 
are you aware if there are any FDA-approved drug test 
detoxification programs for passing tests? I can imagine there 
are detoxification drugs for people trying to kick a habit, but 
did you ever hear of such a thing?
    Mr. Stephenson. Absolutely not. It is a wild claim that is 
on the internet, and I would love to have someone show me to 
the contrary because I would be like a pit bull. I would be 
more than glad to follow up on it.
    Mr. DeFazio. We would love to have you do that. That would 
be good.
    Then, Mr. Administrator, just given the other site we 
mentioned here with the Ross Healthcare clinic which apparently 
does driver medical exams and drug testing, which refers people 
to a favorite link on a site on how to beat the test. Is there 
some action you could take regarding their status since they 
are doing commercial truck driver medical exams and drug 
testing?
    Mr. Hill. If the information that you have is accurate, 
someone will be knocking at their door very shortly. I will 
take the appropriate action commensurate with my authority to 
deal with that problem, and I will get back with the Committee 
on the results.
    Mr. DeFazio. Excellent, thank you.
    Mr. Hill. You are welcome.
    Mr. DeFazio. No further questions.
    Again, I realize this was an unusual procedure, but I 
thought the GAO and the other information was so startling that 
it was necessary for you to hear it. I appreciate your 
indulgence of time. Thank you very much.
    Mr. Hill. You are welcome, sir.
    Mr. DeFazio. Acronyms are flying like snow. There will be 
QFRs, questions for the record.
    If we could now, we will call the final witnesses. I have a 
group of parliamentarians from Britain here. I have to step 
out. Mrs. Napolitano will take the Chair. Thank you.
    Mrs. Napolitano. [Presiding.] Good afternoon, gentlemen, 
and welcome. I believe we will start the questioning of the 
third panel with Mr. Woodruff. Sorry, I didn't give you a 
chance to clear.

TESTIMONY OF GREER WOODRUFF, SENIOR VICE PRESIDENT OF CORPORATE 
   SAFETY AND SECURITY, J.B. HUNT TRANSPORT, INC., AMERICAN 
   TRUCKING ASSOCIATIONS; RICK CRAIG, DIRECTOR OF REGULATORY 
 AFFAIRS, OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION; FRED 
 MCLUCKIE, LEGISLATIVE DIRECTOR, INTERNATIONAL BROTHERHOOD OF 
                           TEAMSTERS

    Mr. Woodruff. Thank you. Chairman DeFazio, Ranking Member 
Duncan and other Members of the Subcommittee, thank you for the 
opportunity to communicate ATA's recommendations on drug and 
alcohol testing.
    I am Greer Woodruff, Senior Vice President of Corporate 
Safety and Security for J.B. Hunt Transport and active member 
of ATA.
    J.B. Hunt is a large motor carrier operating in the 
contiguous 48 States and Canada. We have approximately 11,700 
power units, 56,000 trailers and containers and employ over 
13,500 truck drivers. In the last year, J.B. Hunt has performed 
more than 39,000 DOT drug tests, more than 1,700 DOT alcohol 
tests and over 14,000 non-DOT tests using hair specimens.
    ATA has long been a proponent of alcohol and drug testing 
for truck drivers and actively supported the Omnibus 
Transportation Employee Testing Act of 1991.
    My comments are aimed at improving drug and alcohol testing 
in the trucking industry, and I will cover two of the five 
recommendations provided in written testimony: number one, the 
need for a national clearinghouse for positive drug and alcohol 
test results and, secondly, the industry's desire to use 
alternative specimen testing methods such as hair testing.
    Concerning the national clearinghouse, this recommendation 
is aimed at closing a serious loophole in the Federal drug and 
alcohol testing regulations which is being exploited by too 
many drug-abusing drivers.
    The loophole is as follows: A driver applies for a job at a 
trucking company and tests positive for drugs on the DOT-
required pre-employment drug test. As a result of testing 
positive, the driver is not hired. In many cases, the driver 
simply waits a short amount of time to cleanse his system, a 
few days or perhaps a few weeks, and applies for a job at a 
different trucking company and passes the DOT-required pre-
employment test.
    The driver does not self-report the previous positive test 
result on the employment application, and therefore the second 
trucking company is not aware of the driver's previous positive 
test result.
    This loophole exists because a driver is supposed to self-
report since there is no current method of centrally capturing 
positive test results. ATA made Congress aware of this loophole 
in the late 1990s when it first began advocating for a national 
clearinghouse.
    FMCSA studied this issue and submitted a report to Congress 
in May of 2004. This report found that a centralized 
clearinghouse for positive results to be queried by motor 
carriers during the hiring process was feasible, cost effective 
and, more importantly, could improve safety.
    Currently, five States have positive drug test results 
reporting laws. However, drug and alcohol testing in trucking 
is done in compliance with Federal regulations, and it is a 
national program. In order to close the loophole I described, 
ATA urges Congress to pass legislation to authorize and fund a 
centralized national clearinghouse for positive drug and 
alcohol test results.
    The final issue I will address is the need for alternative 
specimen testing. ATA seeks Congressional support to encourage 
the Substance Abuse and Mental health Services Administration 
and the U.S. Department of Transportation to move forward with 
rulemaking that will allow the use of alternative specimen 
testing methods such as hair. These alternative methods have 
shown great promise in applied situations to detect lifestyle 
drug users and those that seek to evade the current urine 
collection method of controlled substance testing.
    Information from ATA's membership indicates that the 
typical chronic user is more likely to show a positive drug 
test result when a hair specimen is employed. ATA is eager to 
work with Congress and DOT to allow for the addition of 
specimen options beyond urine such as hair.
    In summary, Mr. Chairman, ATA urges Congress to enhance 
drug and alcohol testing in the trucking industry by 
establishing a national clearinghouse for drug and alcohol test 
results, directing SAMHSA and DOT to complete rulemaking to 
allow alternative specimen testing methods, banning the sale of 
adulterant and substitution devices and providing for 
enforcement and penalties for their use, encouraging the DOT to 
better focus their random testing rate requirements and, 
finally, ensuring good practices are followed by drug and 
alcohol collection sites.
    Thank you for the opportunity for ATA to offer its 
recommendations. I will be happy to answer questions at the 
appropriate time.
    Mrs. Napolitano. Thank you, Mr. Woodruff. That kind of 
tickles the imagination about other ways of providing material 
for the testing. Thank you.
    Mr. Woodruff. Thank you.
    Mrs. Napolitano. Mr. Craig.
    Mr. Craig. Congresswoman Napolitano, Ranking Member Duncan, 
thank you for inviting me to testify this afternoon on behalf 
of our Nation's small business trucking professionals.
    My name is Rick Craig. I currently serve as Director of 
Regulatory Affairs for OOIDA.
    The members of OOIDA believe that drug and alcohol testing 
for commercial vehicle operators has played an important role 
in raising the level of safety on our national highways. 
However, there are problems with existing regulations, 
procedures and enforcement that should be addressed to ensure 
that testing programs are effectively employed while also 
mindful of the significant harm that may be caused to a 
trucker's life and livelihood by errant administration.
    The sheer volume and complexity of State and Federal drug 
and alcohol testing regulations make it extremely difficult for 
motor carriers to run their own testing programs. Thus, nearly 
all carriers rely on service agents to administer various 
aspects of their programs.
    Of the benefit programs and services offered to our 
members, OOIDA administers a drug and alcohol testing 
consortium and third party administrator program or C/TPA. Our 
C/TPA provides a full range of services to keep its motor 
carrier clients and their commercial drivers in compliance with 
Federal drug and alcohol testing requirements including 
dissemination of extensive educational information related to 
testing and reporting requirements. I have provided copies of 
these materials to the Committee.
    OOIDA C/TPA has experienced a multitude of problems with 
existing drug and alcohol testing regulations and procedures. 
Most problems are relatively minor and correctable but 
nonetheless may serve to illustrate the various reasons why 
certain carriers and drivers fail to comply. Certain other 
problems are much more serious and may substantially impact or 
even destroy a trucker's driving career.
    Examples of problems commonly encountered by OOIDA are 
outlined in my written testimony. Many of these same problems 
have been echoed by other witnesses.
    One area I would like to highlight is the collection 
process has always been and remains to be the weakest link in 
the DOT testing program. The findings of the GAO are indeed 
alarming. We absolutely agree that problems identified by the 
GAO and this Committee must be addressed as soon as possible.
    However, speaking on behalf of the vast majority of men and 
women who operate trucks and who do not abuse drugs or misuse 
alcohol, I ask that the Committee be careful not to draw the 
assumption that problems with specimen collection and testing 
procedures equate to our Nation's highways being filled by 
drug-crazed truckers. That scenario is certainly not reality.
    At the core of OOIDA's membership are owner-operators. 
These small business trucking professionals commonly lease 
their equipment and their driving services to motor carriers 
that operate multiple trucks within their fleet.
    Any carrier that leases an owner-operator assumes the 
responsibility for compliance for all safety regulations no 
differently than their employee drivers. In fact, the Federal 
Motor Carrier safety regulations specifically include 
independent contractors or owner-operators in the definition of 
an employee.
    Motor carriers primarily contract with service agents to 
administer drug and alcohol testing programs. However, carriers 
are ultimately responsible for ensuring that service agents 
meet the qualifications set forth in the rules. While a service 
agent may provide educational materials to the carrier, it is 
the responsibility of the carrier to provide the materials to 
its drivers that explain the rules as well as the carrier's 
policies and procedures.
    More and more owner-operators are obtaining operating 
authority while continuing to perform driver duties. A one 
truck-one driver motor carrier must comply with both the 
requirements that apply to employers and the requirements that 
apply to drivers.
    Since the driver and carrier management are one in the same 
and the carrier must establish the testing program and carrier 
policies, it is likely that as the driver this individual has a 
greater awareness of drug and alcohol testing requirements than 
many others in the industry.
    All carriers, regardless of size, are required to remove a 
driver from performing safety-sensitive functions in the event 
of a positive or equivalent test result. Each carrier must 
assign a designated employer representative to oversee this 
function and various other aspects of the carrier's testing 
program. Reliance upon a single employee carrier to remove him 
or herself from duty is little different than simply accepting 
that any other designated employer representative will remove a 
much needed employee from safety-sensitive duty.
    I am about to run out of time. I think I will skip ahead 
just a little bit. I would like to take a moment to comment on 
ATA's national clearinghouse proposal.
    While OOIDA fully supports the goal of striving to make the 
trucking industry free of drug and alcohol abuse, we remain 
unconvinced of the need for a national clearinghouse for 
positive drug and alcohol testing results. The national 
database, as described in ATA's proposal, does not ensure that 
a carrier removes a violating driver from performing safety-
sensitive functions nor does it otherwise enhance the existing 
drug testing requirements.
    I have outlined several questions and concerns raised by 
the clearinghouse proposal in my written testimony. Until 
privacy, operational security and logistical oversight 
complications have been adequately addressed, the proposal has 
the real potential to negatively impact drivers far beyond the 
scope of those who abuse drugs and misuse alcohol.
    Thank you. I will be happy to answer any questions.
    Mrs. Napolitano. Thank you, Mr. Craig. I do have the 
greatest respect for the truck drivers. The job they have is 
very critical to the Nation's economy. I worked in the industry 
for quite a while, so I understand a lot of the issues that 
they have.
    We also have some that do not follow the rules and, because 
of them, we continue to implement laws to protect the whole 
Country.
    Mr. Craig. I agree, Congresswoman.
    Mrs. Napolitano. Thank you.
    Mr. McLuckie, welcome.
    Mr. McLuckie. Thank you, Congresswoman Napolitano and 
Ranking Member Duncan. Thank you for the opportunity to testify 
here today on drug and alcohol testing for drivers.
    Testimony this morning was quite shocking, but I do not 
think that drug and alcohol abuse in the trucking industry is 
rampant. I hope that conclusion is not reached by the 
Committee. Most of our members are hardworking, law-abiding 
citizens who perform a very difficult task every day.
    The Teamsters Union has a long history of being proactive 
in deterring the abuse of controlled substances and alcohol in 
the trucking industry. For well over two decades, we have 
negotiated drug and alcohol testing programs with virtually all 
of our larger trucking employers. The language in our 
collective bargaining agreements ensures that the testing 
programs comply with both provisions of the agreements and 
FMCSA regulations.
    The agreements outline the process that must followed to 
allow workers who have substance abuse issues the opportunity 
to obtain treatment and rehabilitation prior to returning to 
work in safety-sensitive functions. Almost all of those members 
testing positive take advantage of treatment and rehabilitation 
and return to duty. We have a once in a lifetime second chance 
that most of our members take advantage of.
    The results of the recent Oregon State Police roadside 
testing were potentially skewed. The almost 10 percent positive 
rate could be attributed to several issues. The OSP included 
three additional drugs, all of which are not included in the 
FMCSA five-panel drug screen for which analyses were conducted 
that contributed to the higher overall rate of positive test 
results.
    For example, commercial motor vehicle operators are not 
prohibited from using propoxyphene, provided that such use is 
monitored and approved by the driver's physician. These opiates 
and synthetic opiates accounted for 19 of the 47 tests for 
which a controlled substance was identified.
    Also, drug testing results not validated by a medical 
review officer leave open the strong possibility that some of 
the positives were due to legitimate medical explanation. For 
example, the driver had a valid prescription from his 
physician.
    Occupational injury data provided by the U.S. Bureau of 
Labor Statistics shows that truck drivers are among the group 
of workers who experience the most work-related injuries and 
illnesses with days away from work. Therefore, it is not 
unusual that these workers would use painkillers, some of which 
may contain opiates to mitigate discomfort resulting from work-
related injuries. Many drivers have legitimate prescriptions 
for these painkillers and consequently may be allowed in some 
instances to operate commercial motor vehicles without 
violating FMCSA regulations.
    Because there was no positive test result validation 
process incorporated in the OSP study, the assumption is that 
all positive opiate test results were due to illegal or 
improper use of controlled substances which may be an erroneous 
assumption.
    There are also cases where drivers have legal prescriptions 
for amphetamines and may drive while using the controlled 
substance. For example, the use of the prescription drug 
Adderall, which is often times used to control attention 
deficit hyperactivity or treatment-resistant depression, can 
cause a positive test result. However, a driver who has been 
properly prescribed the drug is not automatically disqualified 
from operating a commercial motor vehicle.
    Further validation of even lower positive drug testing 
rates for drivers can be found in unionized large, less than 
truckload carriers. The IBT reviewed the random drug testing 
results for large LTL carriers for the period 2003 to 2006.
    During this period, the union LTL companies conducted 
64,477 random drug trusts of which 395 were validated by 
medical review officers as being positive, for a positive test 
rate of 0.6 percent. That is six tenths of 1 percent, much 
lower than the FMCSA survey rate of around 2 percent.
    This lower rate may be attributable to an older workforce 
with low turnover rate. I am told also that in those 64,000 
plus drug tests, only 5 cases were found to use adulterated 
substances.
    We have significant concerns about the creation of a 
national clearinghouse for positive testing results especially 
with respect to issues related to driver privacy. However, when 
we consider the fact that certain States such as North Carolina 
have moved forward in collecting this data, we are of the 
opinion that a national clearinghouse operated by the Federal 
Government may be preferable to these data being collected on a 
State by State basis.
    The IBT could support the implementation of a centralized 
reporting and inquiry system and believes such a system could 
have positive safety benefits provided, however, that such 
requirements should only be imposed if and when the FMCSA is 
able to devise a system that would adequately protect the 
driver's confidentiality, provide a reasonable mechanism for 
drivers to learn of and report reporting errors and devise a 
uniform, and fair method for expunging the records of drivers 
that have undergone treatment and are rehabilitated.
    Finally, I would be remiss if I did not reiterate our 
concern about drug and alcohol testing procedures for Mexican 
drivers. Still, after more than a decade of negotiations, there 
is no lab in Mexico to certify samples. Random drug testing is 
non-existent with drivers knowing that they will be tested at 
the border because collection procedures and chain of custody 
practices are questionable and there appears to be little, if 
any, enforcement against the use of drugs and alcohol by 
drivers on the Mexican side of the border.
    This concludes my testimony, and I am happy to answer any 
questions you may have.
    Mrs. Napolitano. Thank you, Mr. McLuckie, and I am lucky I 
get all three of you.
    I have a very, very open mind about the issues because I 
did work in my prior life in the transportation department and 
I did have an opportunity to ask a lot of questions of the 
State transportation, California Transportation Commission.
    We have heard a lot of the issues continually being brought 
up. In working through some of these things, and I understand, 
Mr. McLuckie, the issue. That is why I brought up the medical 
concept of it because there are some things that will affect 
the analysis, the final analysis of the urine as regards drugs 
that they have to take to continue being able to work, whether 
it is back problem, whether it is schizophrenia, whatever it 
is.
    My concern is that we are not balancing them to be able to 
allow that employee the opportunity to continue making a living 
and operating safely. Do you want to address that?
    Mr. McLuckie. Well, I think it is very important that the 
employee have the opportunity to have any positive result 
reviewed by the medical review officer in the instance 
especially where he is on a prescription drug. As you say, in 
the trucking industry, the rate of injury and illness is very 
high, and these drivers take these drugs to stay on the road 
and to be able to make a living. So we encourage the continued 
examination of that issue.
    Mrs. Napolitano. Especially for long haul.
    Mr. McLuckie. Yes.
    Mrs. Napolitano. Mr. Woodruff, the current drug and alcohol 
regulations require new employers to contact former employers 
regarding the job's application, especially for drug history. 
How responsive have former employers been to the requests and 
what enforcement actions, if any, or penalties for those 
employers who are non-responsive and, if there are not, should 
there be?
    Mr. Woodruff. A very good question; in October of 2004, 
FMCSA implemented a safety performance history regulation and, 
following implementation of that particular regulation, the 
responsiveness of former motor carrier employers has greatly 
improved.
    I cannot speak for the whole ATA membership population, but 
for J.B. Hunt, we would encounter perhaps one to two employers 
per month. We hire five to six hundred drivers a month, and 
only one to two employers that would not supply the information 
that they are required to supply under the regulations. We do 
report those to the associate administrator of FMCSA when they 
fail to meet their regulatory obligation to provide drug and 
alcohol data.
    We often find ourselves in a role of educating the other 
motor carriers as to what their regulatory responsibilities 
are. So we work through that. We normally get those.
    Really, a bigger issue that I believe we encounter with 
regards to having the information that we need to have 
available and the regulations require us to obtain is with 
carriers that go out of business, that are bankrupt or no 
longer able to be contacted. In 2004, 2005 and 2006, those 
three years total, there were over 4,700 trucking company 
bankruptcies of carriers with more than 10 trucks.
    So the number is even more significant when you consider 
the number of bankruptcies or closures of companies with less 
than 10 trucks. But in that three year period, 4,700 motor 
carriers with more than 10 trucks whose drug and alcohol data 
is not available to future motor carriers that need that data.
    With regards to J.B. Hunt, we experience about 20 percent 
of the driver applicants have one more driving jobs in the past 
three years that we are unable to verify because that employer 
is no longer available for us to talk to. So we believe through 
having a central repository, that that data would be in the 
repository and whether or not the company closes business or 
moves or changes their phone number, that that data would still 
be available for future motor carriers to access.
    Mrs. Napolitano. The ATA is recommending the national 
clearinghouse be set up for positive and refused drug and 
alcohol tests. Why does this have to be on a national level and 
can that be something that will be helpful to identify those 
repeat offender who should not be driving?
    Mr. Woodruff. That is another very good question. The drug 
and alcohol regulations that the trucking industry must comply 
with is a national program, and it becomes very problematic for 
the industry when they have to begin to start to comply with 
potentially 50 different State rules and regulations.
    As we have heard in the testimony, there is somewhere 
between five and seven different States that have positive 
results reporting requirements, and many of those are 
different. So that becomes very complicated for a motor carrier 
doing business throughout the United States to identify how to 
comply with a varied set of regulatory requirements, where a 
national clearinghouse would have one standard for us to comply 
with.
    Mrs. Napolitano. Gentlemen?
    Mr. Craig. Yes, if I may. You know, certainly, we see that 
there are obviously some drug users out there that slip through 
the cracks, and I was rather surprised by some of the comments 
I heard today as well.
    With this national clearinghouse, we do have some real 
concerns. Obviously, privacy is very obvious.
    Mrs. Napolitano. Sir, how would you address the privacy 
issue?
    Mr. Craig. Well certainly, and I have read the draft 
language of the legislation that came from ATA, and they talk 
about the privacy issues. It is certainly difficult to deal 
with that, but one thing that would have to certainly be done 
is that the system be very secure, that the access to the 
system be limited to only those who have authorization, a real 
right to know.
    Of course, one of the problems you get into there is how do 
you know that these individuals really have authorization, 
really have the right to know over time and then who is going 
to catch these folks that violate the system and enter the 
system when they don't really have authorization. Then we also 
question who is going to enforce against anyone who violates 
the requirements.
    Mrs. Napolitano. That would go back to, I guess, a funded 
mandate for the States to be able to establish such a network 
with the clearinghouse and be able to do it with the trucking 
companies to be able to ensure that their drivers were 
complying. Am I not correct?
    Mr. Craig. Well, certainly, and if I might also add, as I 
started to say earlier, we also see some other problems with 
the process. We certainly agree that collection sites are by 
far the weakest link in the whole system.
    We have had some experiences with the collection sites that 
have given the drivers, who came in to test, erroneous 
information. A good example of that and a repeated example of 
that is a driver who goes in and for whatever reason cannot 
provide an adequate amount of specimen the first try. They are 
supposed to be required and instructed to drink water and stay 
there for at least three hours and attempt again.
    Many times, we have heard of instances where the collection 
site personnel simply say, oh, it is okay. Come back tomorrow.
    The problem is once that driver leaves, that is determined 
a refusal which, as you know, is equivalent to a positive 
result. That is a very big issue.
    Also, another problem that we have is even with MROs, and 
they haven't really been addressed. That is the medical review 
officers. They really are the last word in this whole process. 
If there is an MRO, and we have experienced a couple of cases 
at least of MROs who have made wrong judgments on whether or 
not a test result should be confirmed as positive and entered 
that as positive. There is very, very little recourse for 
drivers to clear their names after that has happened.
    Mrs. Napolitano. Shouldn't it be then part of what they 
should be looking at is how the drivers may be able to clear 
their record if they can prove or through further testing be 
able to clarify?
    Mr. Craig. Absolutely. Possibly there could be, as anyone 
would do when they get a medical opinion, get a second opinion. 
Maybe they should be able to dispute the first MRO's 
determination of a confirmed positive.
    Another thing is we have had several members who were very 
adamant that, to their knowledge, they could not possibly have 
tested positive for drugs. The MRO confirms that it is 
positive, and they have been very adamant and wanted to have 
these samples, DNA tested.
    Well, we have to tell them, you can go to that trouble and 
expense if you like. The problem is it will do no good because 
it is not allowed under the rules.
    Mrs. Napolitano. Mr. McLuckie?
    Mr. McLuckie. Two points, Congresswoman: One is we would 
prefer a national system with national standards, uniform 
standards versus 50 State systems that all might have different 
criteria and different requirements.
    Secondly, we would be concerned about devising a method for 
expunging the records of drivers who have undergone treatment 
and rehabilitation. Employers and medical review officers only 
keep records for a certain period of time. We would have to 
look at how long a person might be on this register if they 
have gone through a rehab process and would it be fair to keep 
them on this, keep their violation on that list forever.
    Mrs. Napolitano. What would you consider adequate?
    Mr. McLuckie. I would say somewhere in the period of three 
to five years.
    Mrs. Napolitano. If they had no further violations?
    Mr. McLuckie. Right, correct.
    Mrs. Napolitano. Very interesting, there is a lot of 
substance in that.
    Mr. Craig, the NTSB has said that the owner-operators are 
in the precarious position of overseeing their own substance 
abuse program. The protections are in place to ensure that all 
of the drug and alcohol program requirements are enforced 
including those that mean putting a driver out of service after 
a positive test. How do you feel on that?
    Mr. Craig. Well, certainly, as I have mentioned earlier, we 
do have a consortium that OOIDA runs, and we have seen that as 
being a problem.
    Really, under the rules as they are right now, if someone 
refuses to test, there are certain exceptions where the C/TPA, 
in an instance where you have a one truck-one driver motor 
carrier, will enter that information as a refusal in the 
system, but the rules allow us to go no further. It takes the 
designated employer representative to order that driver out of 
service for safety-sensitive duties and go through the SAP 
process. Under those rules, the consortium has no method of 
doing that.
    Mrs. Napolitano. But in the reality of things, not all the 
independent truck drivers belong to the association.
    Mr. Craig. No, the don't. Basically, for a one truck-one 
driver motor carrier, though, they would have to participate in 
a random selection pool of two or more drivers. Obviously, as a 
single one, you can't do a random selection. So that is how the 
vast majority.
    I don't know of anyone who could not participate with a 
consortium or a third party administrator or some sort so they 
could participate within their drug testing pool.
    Mrs. Napolitano. Thank you.
    Mr. Boozman.
    Mr. Boozman. Thank you, Madam Chair.
    Mr. Woodruff, would you describe how hair testing, how that 
method sometimes is more advantageous over the urine test?
    Mr. Woodruff. Yes, Congressman Boozman. J.B. Hunt has been 
conducting hair testing of drivers for about a year now, and we 
are conducting hair testing along with urine testing. We have 
to do urine testing to comply with the Federal regulations.
    We do hair testing under a company policy test. We test for 
the same five-panel drugs that the DOT urine test requires. We 
also use a medical review officer review of those results as 
well, involving the interview of any drivers who have a 
positive result. So we are trying to follow the best that we 
can a similar protocol as DOT in terms of the drugs we test 
for, the cutoff levels and the process.
    We are finding a higher rate of positive drug use when we 
use a hair specimen. Hair specimens are very difficult to 
adulterate and to substitute, so we would like to see that as 
an alternative specimen for complying with the Federal 
requirements.
    Mr. Boozman. I guess the follow-up would be what steps 
should be taken by Congress and Government agencies to 
encourage the use of alternative specimen testing? Do you have 
any?
    Mr. Woodruff. We would like to see Congress direct SAMHSA 
and DOT to finalize rules that would permit alternative 
specimens to be used by motor carriers if they so choose.
    Mr. Boozman. Thank you very much.
    Mr. Woodruff. Thank you.
    Mr. Boozman. Let me ask all of you. I am going to start 
with Mr. Woodruff.
    The current legislation authorizing transportation drug and 
alcohol testing has been in existence for several years. If 
Congress was to advocate a study of the effectiveness of the 
Government-mandated drug and alcohol programs, what are some of 
the areas that you all feel like should be examined?
    Mr. Woodruff. I will begin and say that we have heard a lot 
of numbers here today as to what the real positive rate is for 
drug use, illegal drug use among truck drivers. Probably the 
low end is 2 percent which is the positive random rate that 
FMCSA reports, and then we have heard numbers as high as maybe 
10 percent and some others in between. The reality is that the 
positive rate for drivers is probably somewhere in the middle 
there.
    In terms of studying effectiveness, I think it would be a 
good idea that we do look at these alternative specimens to 
determine whether or not they could provide us a better result 
and a more accurate result. So that would be where I would 
start.
    Then, of course, we feel like the national repository would 
give the motor carriers the tools that they need to help be 
part of the solution to this as opposed to putting this data 
into an FMCSA database that only enforcement people have access 
to.
    This is currently a requirement of the driver to disclose, 
the motor carrier to inquire with other prior motor carriers 
and a requirement for other former motor carriers to provide 
that data, but we should be making rules that make it easier 
for us to do what the regulations require of us.
    Mr. Boozman. Mr. Craig?
    Mr. Craig. Yes, thank you, Congressman Boozman. One thing, 
obviously, the rules are designed all across the board to 
prevent accidents and injuries and fatalities certainly. What 
we would like to see is take a closer look at how the testing 
rates really correlate with accidents.
    We have heard some statistics thrown around there, but I 
don't know if the Agency has really been taking, FMCSA has 
really been taking a close enough look at that. I don't know 
just how much. I guess you could take a look at post-accident, 
obviously, statistics and see how they compare with the random 
selection rate.
    Obviously, another area too is the collection sites. As I 
mentioned, we see problems on one side and on the other, and 
they definitely need to be cleaned up.
    There is one other thing too that we have considered that 
might work quite well, that would have a dual effect. The vast 
majority of truckers or commercial drivers in general do not 
use drugs. However, they are painted with the same brush and 
must participate in the same program, the same random selection 
rate and everything. Currently, the selection rate for random 
drug testing is at 50 percent.
    What we would kind of like to see is a system whereby those 
individuals who have passed a certain number of tests with 
negative results, pick a number, four or five, and have proven 
themselves to be non-drug users, to be placed into a lower 
random selection pool, a lower percentage selection rate of, 
say, 25 percent. That would reward the non-drug users and, at 
the same time, it would help out because they wouldn't be 
diluting the 50 percent testing pool.
    We think that that would have a very good effect on the 
random selection process in the future.
    Mr. Boozman. Thank you.
    I know we have to go, Madam Chair. We have a vote on.
    Do you have anything in one minute that you would like to 
add?
    Mr. McLuckie. Certainly, Congressman. I think the testimony 
today supports collection facility oversight, the possible 
licensing of laboratory personnel, and getting these 
adulterating products off the market.
    We would certainly look at the use of alternative 
specimens. It might relieve some of the privacy issues related 
to urine samples, and we would certainly be receptive to 
looking at those kinds of things.
    Mr. Boozman. Thank you very much.
    Thank you, Madam Chair.
    Mrs. Napolitano. Thank you to the panel. I think we do have 
to go and vote, and I don't think you want to sit here until 
next week because we are leaving after that.
    I appreciate your testimony. There will be some questions 
sent to you. We would appreciate a prompt reply. The record 
will remain open for 10 work days for additional input from the 
panel, Members and anybody who has an interest in this matter.
    With that, this hearing is adjourned. Thank you, gentlemen.
    [Whereupon, at 2:05 p.m., the Subcommittee was adjourned.]

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