FMCSA agrees to take public comments on hair testing

Earlier in April, the U.S. Trucking Alliance requested an exemption which would permit positive results using hair to test for drugs collected from random testing and pre-employment screening of drivers to be entered into the Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse.

Trucking Alliance has been a long-time proponent of hair testing, arguing that this procedure is significantly more accurate in determining habitual drug use compared to urine testing.

“My clients have knowledge of hundreds of thousands of positive drug tests that they’re not able to share under the current system, and those drivers are all out on the road right now,” Rob Moseley, an attorney representing the group, stated in an interview with FreightWaves. “This exemption would give motor carriers making inquiries into the clearinghouse the opportunity to have full knowledge of habitual drug users during the hiring process.”

According to the Trucking alliance, if such an exception were granted, it would “amend the definition of actual knowledge to include the employer’s knowledge of a driver’s positive hair test, which would require such results be reported to the FMCSA Drug and Alcohol Clearinghouse and to inquiring carriers as required to comply” with federal regulations.

Moreover, the results of a recent study backed by the Trucking Alliance have demonstrated that due to the exclusion of hair testing in the database, FMCSA’s Clearinghouse may be “significantly underreporting” the use of hard drugs by truck drivers, including cocaine and illegal opioids. Accordingly, the FMCSA has agreed to consider the Trucking Alliance’s exemption application after having previously declined a similar request in 2020.

Specifically, the FMSCA had previously stated that it lacked statutory authority to act on the application, and was unable to process it in accordance with federal requirements relating to official notice and comment.

In addition, the FMSCA has also stated that publishing the Trucking Alliance’s request for official notice and comment given its lack of jurisdiction “would be misleading to the agency’s stakeholders and other interested parties.”

“Although FMCSA lacks the statutory authority to grant the Trucking Alliance’s request for exemption until [HHS] has taken certain action, FMCSA requests public comment on the exemption application, as required by statute,” the agency stated regarding the most recent request.

“My experience in the past was that FMCSA would sometimes respond to exemption requests explaining why it had been denied and not released for public comment, like in the case where it didn’t have statutory authority to grant a request,” said P. Sean Garney, co-director at Scopelitis Transportation Consulting in his interview with FreightWaves.

“But putting these requests out in the public square, where it can be discussed and debated, generates important conversations in the industry, and while many of these exemptions may never be granted, they may seed important conversations that could lead to good public policy at the end of the day.”



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