Recommendation: In order to address the challenges facing FMCSA to ensure drivers are in a drug testing program, and to keep drivers off the road once they have tested positive, the Secretary of Transportation should expedite the rule-making process to improve the enforcement of safety audits for new entrants.

Agency Affected: Department of Transportation

Status: Closed - Implemented

Comments: In 2008, we reported that one of the factors that contribute to truck drivers not being in a drug testing program include FMCSA's limited enforcement options for safety audits of new carriers. New-entrant safety audits provide essential educational information to and are intended to educate and encourage compliance with safety regulations. The majority of new entrants are typically visited 8 to 9 months after beginning operations. However, before the safety audit occurs, new entrants may operate without adequately implementing safety management regulations, including drug testing. FMCSA data indicate 30 percent of new entrants lack a drug testing program. Under the rules in effect in May 2008, the absence of a drug testing program did not result in a failure of the audit. In December 2006, FMCSA had published a Notice of Proposed Rulemaking to strengthen the safety audit pass/fail criteria to give more significance to basic safety management requirements, including drug testing. As of the time of our report, the rulemaking had not been completed, and we recommended that the Secretary of Transportation expedite the rule-making process to improve the enforcement of safety audits for new entrants in order to address the challenge facing FMCSA to ensure truck drivers are in a drug testing program. In response, the Federal Motor Carrier Safety Administration moved forward and issued a final rule on the New Entrant Safety Assurance Process on December 16, 2008. The final rule amends the New Entrant Safety Assurance Program regulations to raise the standard of compliance for passing the new entrant safety audit. Through the final rule, the Agency identified 16 regulations that are essential elements of basic safety management controls necessary to operate in interstate commerce and makes a carrier's failure to comply with any one of the 16 regulations an automatic failure of the safety audit. Five of the 16 regulations are related to the drug testing regulations; making it an automatic failure if the carrier lacks a drug testing program. As a result of the rule, FMCSA will be better able to identify at-risk new entrant carriers and ensure deficiencies in basic safety management controls, including drug testing, are corrected before the new entrant is granted permanent registration.

Recommendation: In order to address the challenges facing FMCSA to ensure drivers are in a drug testing program, and to keep drivers off the road once they have tested positive, the Secretary of Transportation should expedite the rule-making process to create a national database of positive and refusal-to-test drug and alcohol test results.

Agency Affected: Department of Transportation

Status: Open

Comments: According to a Federal Motor Carrier Safety Administration (FMCSA) official, FMCSA has delayed initiating a rulemaking to establish a National Drug and Alcohol Test Results Database. The proposed database will provide the Federal and State governments with the capability to identify drivers who have refused a Department of Transportation (DOT) drug or alcohol test or have tested positive for drug(s) and/or alcohol under the established DOT drug and alcohol testing regulations. The Agency's rulemaking process has been delayed multiple times by other priorities and the need for further coordination within the agency. The previous schedule had a publication date for the rulemaking in June 2010. As of September 2011, the schedule is now that the rulemaking will be approved within the agency by the end of November 2011, and will be issued in March of 2012.

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

Agency Affected: Congress

Status: Open

Comments: On February 4, 2009, Representative Engel introduced the Drug Testing Integrity Act of 2009 in the House of Representatives. The Act would ban products designed to defraud drug tests. On February 15, 2011 Representative Engel re-introduced the bill, which was referred to the House Committee on Energy and Commerce and then to the Subcommittee on Commerce, Manufacturing, and Trade. As of September 15, 2011, no further action has been taken.

Recommendation: Taking action to address the challenges FMCSA faces to ensure that its drug testing program detects drivers who are using illegal drugs, and to keep drivers who have tested positive off the road until they have completed the return-to-duty process, provides an opportunity to improve safety on the roads. In order to assist DOT and FMCSA in addressing these challenges, and thereby improving road safety, Congress may wish to consider providing FMCSA with the ability to exert oversight and enforcement authority over service agents involved in the DOT drug testing process-- which would enable DOT to address issues related to requiring service agents to report drug testing information to FMCSA's national database and levying civil penalties on service agents that are not in compliance with DOT drug testing regulations.

Agency Affected: Congress

Status: Open

Comments: A draft of the Committee on Transportation and Infrastructure's surface transportation reauthorization proposal intended for committee mark-up on June 24, 2009 contains provisions to provide the Secretary of Transportation enforcement and civil penalty authority over service agents involved in the drug testing process, including Medical Review Officers, and collection sites. The proposal also provides for enhanced oversight of collection sites, and requires the Department of Transportation to maintain a database of violations. As of September 15, 2011 the surface transportation reauthorization bill has not yet passed.

Recommendation: Congress may wish to consider taking action to encourage or compel states to use the national database to take action to suspend the CDL of drivers who have tested positive or refused to take a DOT drug test.

Agency Affected: Congress

Status: Open

Comments: A draft of the Committee on Transportation and Infrastructure's surface transportation reauthorization proposal intended for committee mark-up on June 24, 2009 contains provisions to establish a national clearinghouse of positive drug and alcohol tests and refusals to test, which can be used by states to suspend commercial driver's licenses. The draft legislation contains provisions that allow a state's chief commercial driver's licensing official to access the database in order to take action against a driver's license. The legislation also has language related to the commercial driver's license program that requires states to, before issuing a commercial driver's license to an individual, request information pertaining to the individual from the drug and alcohol clearinghouse. Another bill - the Safe Roads Act of 2009 - was introduced in the Senate with largely the same language that would also establish a national database and expressly directs the Secretary of Transportation to consider the findings and recommendation in GAO's report in designing the clearinghouse. The Safe Roads Act was reintroduced in both the House and the Senate in 2011. As of September 15, 2011, the reauthorization bill and the Safe Roads Act have not been passed.