Attachment of B: GAO-08-600 Report, "Improvements to Drug Testing Programs Could Better Identify Illegal Drug Users and Keep Them Off the Road"

United States Government Accountability Office

GAO

Report to Congressional Requesters

May 2008

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

GAO-08-600

May 2008

MOTOR CARRIER SAFETY
Accountability Integrity Reliability

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

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

Why GAO Did This Study

What GAO Found

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

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

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

To view the full product, including the scope
and methodology, click on GAO-08-600.
For more information, contact Katherine A.
Siggerud at (202) 512-2834 or
[email protected].

GAO’s analysis identified the following options as having the greatest
potential for addressing these challenges:
•
For increasing the number of drivers tested: strengthen the
enforcement of safety audits for new carriers. Stiffer requirements
for having a testing program will likely result in more new entrants having
effective drug testing programs. DOT has begun this improvement.
•
For reducing opportunities to subvert the test: additional authority to
levy fines when collection sites do not follow federal protocols.
This could decrease the opportunity to subvert the test. Also,
congressional action to ban subversion products at the federal
level could make these products more difficult to obtain.
•
For reducing the number of drivers who test positive and continue to
drive: a national database of drug testing information. This would
allow for more thorough checking of applicants’ past test results. FMCSA
has begun to lay the groundwork for a database, but FMCSA may need
additional authority to ensure accurate reporting of information. Also,
using the database to encourage states to suspend a driver’s
commercial driver’s license after a positive drug test or refusal to test
would be a more direct way to compel drivers to complete the return-toduty process.
Any of these options would require either additional resources or a transfer of
resources that fund other safety-related initiatives, and some of the options
require federal or state legislation and rule making. A national database would
have to consider driver protections and a process by which information can
be corrected or removed.
United States Government Accountability Office

Contents

Letter

1
Results in Brief
Background
Several Factors Contribute to the Challenges in FMCSA’s Current
Drug Testing Program
Options for Addressing Challenges Involve Effectiveness and
Feasibility Trade-offs
Conclusions
Matters for Congressional Consideration
Recommendations for Executive Action
Agency Comments

24
42
44
45
45

Appendix I

Scope and Methodology

46

Appendix II

Oversight of Drug Testing Programs by Selected
DOT Administrations

51

States That Require Reporting of DOT Drug Test
Information

54

Issues to Consider in Creating a National
Database and Commercial Driver’s License
Suspension Requirement

58

GAO Contact and Staff Acknowledgments

68

Appendix III

Appendix IV

Appendix V

5
8
15

Tables
Table 1: Approaches to Improve Effectiveness of DOT’s Drug
Testing Program
Table 2: Approaches to Reduce the Number of Drivers Who Are
Not in Drug Testing Programs

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GAO-08-600 Motor Carrier Safety

Table 3: Approaches to Increase the Detection of Drivers Using
Drugs
Table 4: Approaches to Reduce the Number of Drivers Who Test
Positive or Refuse to Test Yet Continue to Drive without
Going through the Return-to-Duty Process
Table 5: List of Federal Agencies, State Agencies, and Industry
Associations Interviewed
Table 6: DOT Administration Oversight of Drug Testing Programs
Table 7: States That Have Created Databases or Note the Motor
Vehicle Record
Table 8: States That Take Action Against Drivers Who Test Positive
or Refuse to Test

29

37
49
52
54
56

Figures
Figure 1: Overview of the DOT Drug Testing Process
Figure 2: Top Five Drug and Alcohol Testing Violations and
Associated Fines in Compliance Reviews, 2007

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Abbreviations
AAMVA
CCF
CDL
CDLIS
DOT
FAA
FMCSA
FRA
FTA
HHS
MVR
ODAPC
PCP
SafeStat
SAMHSA

American Association of Motor Vehicle Administrators
Federal Drug Testing Custody and Control Form
commercial driver’s license
Commercial Driver’s License Information System
Department of Transportation
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Federal Transit Administration
Department of Health and Human Services
motor vehicle record
Office of Drug and Alcohol Policy and Compliance
phencyclidine
Motor Carrier Safety Status Measurement System
Substance Abuse and Mental Health Services
Administration

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GAO-08-600 Motor Carrier Safety

United States Government Accountability Office
Washington, DC 20548

May 15, 2008
The Honorable James L. Oberstar
Chairman
Committee on Transportation and Infrastructure
House of Representatives
The Honorable Peter A. DeFazio
Chairman
Subcommittee on Highways and Transit
Committee on Transportation and Infrastructure
House of Representatives
Every year, approximately 5,500 fatalities and 160,000 injuries result from
crashes involving large trucks and buses. While vehicle problems and
driver behaviors such as speeding or fatigue are the most frequently cited
factors involved in these crashes,1 studies indicate that operating a motor
vehicle while under the influence of drugs or alcohol, or both, can increase
crash risk anywhere from two- to six-fold.2 Since 1988, federal regulations
have required commercial drivers to be tested for drugs and alcohol in
order to reduce the number of crashes that occur as a result of illegal drug
use and alcohol misuse.3 This is a sizable undertaking since more than
700,000 commercial motor carrier companies are registered with the
federal government and thousands of new, often small, carriers enter the
industry each year. The Department of Transportation (DOT) and one of
its administrations, the Federal Motor Carrier Safety Administration
(FMCSA), publish regulations that govern the drug and alcohol testing

1

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

2

Transportation Research Board, Drugs and Traffic: A Symposium, June 20-21, 2005
(Transportation Research Circular E-C096) (Washington, D.C., 2006); and K.L.L. Movig et
al., “Psychoactive substance use and the risk of motor vehicle accidents,” Accident
Analysis & Prevention, vol. 36, issue 4 (2004).
3

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

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process for truck and motor coach drivers.4 FMCSA is responsible for
ensuring that motor carriers comply with these regulations and does so
through safety audits of carriers that have recently started operations and
compliance reviews of carriers already in the industry. FMCSA officials
and some stakeholders we met with agreed that FMCSA’s drug testing
requirements have been successful in deterring and reducing illegal drug
use among those employed in transportation safety-sensitive positions.
Drug testing results indicate that some drivers are using illegal drugs.
FMCSA data show that each year from 1994 through 2005, between 1.3
percent and 2.8 percent of drivers tested positive for the presence of illegal
drugs under random testing. However, these statistics do not indicate the
full extent of drug use among truck drivers, and the current drug testing
program does not guarantee that drivers who do test positive or refuse to
be tested are disqualified from driving until they complete the required
return-to-duty process.5 In particular, the following issues have been
identified that suggest there is reason for concern regarding the potential
extent of drug use among truck drivers:
•

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

•

An unknown number of drug users manage to avoid detection even when
they go through the testing process. For example, some drivers are
successfully adulterating or substituting their urine specimens with

4

Title 49, Code of Federal Regulations (CFR), Part 40 provides rules governing how drug
tests are to be conducted and what protocols are to be used. The tests cover alcohol as
well as drugs, but the focus of our work has been on the testing that covers five drug
categories: marijuana, cocaine, amphetamines (including methamphetamines), opiates
(including heroin), and phencyclidine (PCP). The Office of Drug and Alcohol Policy and
Compliance, within the Office of the Secretary of Transportation, publishes these rules.
FMCSA’s specific drug testing regulations are contained in 49 CFR Part 382.
5

If employees test positive, refuse to test, or otherwise violate the regulations, they are
required to complete a return-to-duty process before re-engaging in safety-sensitive duties.
The return-to-duty process is guided by a substance abuse professional and must include
education or treatment, return-to-duty testing, and follow-up testing. This process may also
include aftercare.

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products that are widely available and marketed as allowing drivers to
“beat” the test.
•

Among the drivers who test positive, an unknown number continue to
drive—primarily by “job-hopping”—without completing a required returnto-duty process guided by a substance abuse professional. There is little
data on the number of drivers who complete the return-to-duty process. A
Director of the Substance Abuse Program Administrators Association
conservatively estimates that less than half of commercial driver’s license
(CDL) holders who test positive or refuse to test successfully complete the
return-to-duty process before returning to their jobs.6 Those who do not go
through the return-to-duty process and continue to drive are called jobhoppers—job-hoppers test positive for one carrier; are fired, quit, or are
not hired; do not go through the return-to-duty process; abstain from drug
use for a short period; test negative on a pre-employment test for another
carrier; go to work for another carrier; and could continue to use drugs.
Furthermore, self-employed owner-operators are also unlikely to remove
themselves from safety-sensitive duty in the event of a positive test,
though it is not known how many truly self-employed owner-operators
exist.7
In light of these issues, this report examines (1) the factors that contribute
to the main challenges of ensuring all drivers are in a drug testing
program, limiting drivers’ ability to avoid detection by a drug test, and
keeping drivers off the road once they have tested positive; and (2) the
options that exist for addressing these challenges, the potential effect of
these options, and the challenges that would be faced in implementing
them.
To address these issues, we reviewed DOT and FMCSA regulations,
policies, and reports, and interviewed officials from FMCSA and DOT’s
Office of Drug and Alcohol Policy and Compliance (ODAPC) and the

6

Donna Smith, Substance Abuse Program Administrators Association, “Drug and Alcohol
Testing of Commercial Motor Vehicle Drivers” (a testimony presented to the Committee on
Transportation and Infrastructure’s Subcommittee on Highways and Transit, Nov. 1, 2007).
7

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

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Department of Health and Human Services’ (HHS) Substance Abuse and
Mental Health Services Administration (SAMHSA). This review focuses on
the controlled-substance portion of the drug and alcohol testing
regulations and does not address alcohol testing. We analyzed FMCSA
data on the results of compliance reviews and safety audits, as well as data
on enforcement activities. We interviewed motor carrier industry
associations representing many segments of the motor coach and trucking
industry, such as the American Trucking Association, the Owner-Operator
Independent Drivers Association, the American Bus Association, and the
National Association of Small Trucking Companies. We also interviewed
officials from unions representing truck and bus drivers and from a variety
of associations representing urine specimen collectors, medical review
officers, substance abuse professionals, consortiums/third-party
administrators, and others involved in the drug testing industry. We also
interviewed representatives from a company that manages several HHScertified laboratories that analyze DOT drug test specimens. We observed
FMCSA oversight activities, including four compliance reviews and two
new-entrant safety audits in several states. We selected states in which to
observe compliance reviews and new-entrant safety audits on the basis of
the availability of ongoing FMCSA oversight activities. We interviewed
representatives from the motor carriers being audited. In total, we
interviewed 10 motor carriers, including both large and small carriers, and
one owner-operator. We interviewed officials from motor vehicle licensing
departments in states that had passed laws to require reporting of positive
drug test results. We interviewed the state attorney general’s office of a
state that passed a law banning adulterants and substances to subvert a
drug test. We also interviewed officials involved in the drug testing
programs at other DOT modal administrations, including the Federal
Aviation Administration, the Federal Transit Administration, and the
Federal Railroad Administration, to gather information on whether these
problems are common across the administrations, how problems are
addressed by the other administrations, and how issues and circumstances
in the other modal administrations can or cannot be compared with
FMCSA’s experience.
In the course of our interviews and analyses, we identified many options
that have been suggested as possible ways to address problems or weak
points in FMCSA’s current drug testing program. We assessed the various
options for their likely effectiveness in addressing the particular problem
they were designed to address and their feasibility from the standpoint of
cost, support, and amount of effort involved in implementation. Our
assessments were based on (1) analyzing and synthesizing the views of the
various government officials and industry stakeholders we interviewed

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with regard to their estimations of the potential effectiveness and
feasibility of pursuing various options; (2) reviewing studies that have
been conducted regarding the feasibility of certain options; (3) analyzing
cost and other data; and (4) analyzing the experience of other modal
administrations or entities in implementing various options, where
applicable. Inherently there are certain limitations and variances in the
quality of data and information available about certain options. Therefore,
we used a certain amount of professional judgment in comparing options
relative to one another. We determined that the data used in this report are
sufficiently reliable for our purposes. We conducted this performance
audit from June 2007 to May 2008 in accordance with generally accepted
government auditing standards. Those standards require that we plan and
perform the audit to obtain sufficient, appropriate evidence to provide a
reasonable basis for our findings and conclusions based on our audit
objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objectives.

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

Results in Brief

•

First, factors that lead to drivers not being in a drug testing program
include limitations in FMCSA’s oversight resources for existing carriers
and limitations in FMCSA’s enforcement options when conducting safety
audits of new carriers. FMCSA’s limited oversight resources lessen the
incentive for existing carriers to follow the regulations. FMCSA and its
state partners conducted an average of approximately 13,000 compliance
reviews on carriers each year from 2001 through 2007, and these reviews
were targeted based on risk.8 However, over 700,000 carriers are registered
with DOT, and over 70 percent of those do not have a safety record and
therefore would not be targeted for a compliance review. Furthermore,
FMCSA has conducted safety audits on tens of thousands of new carriers
each year, often finding that carriers do not have a drug testing program.

8

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

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However, a new carrier can still pass a safety audit without a drug testing
program, and FMCSA follow-up to ensure that problems were corrected
does not always occur.
•

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

•

Third, factors that contribute to drivers continuing to drive after testing
positive or refusing to test include drivers not reporting their drug testing
history, incomplete background checks by carriers, and loopholes for selfemployed drivers. For example, drivers are not likely to list on their job
application any previous employment where they tested positive or
refused to test, although they are required to include this information.
Further, a failure to conduct required background checks—which includes
checking for past positive drug tests—is one of the top violations found in
compliance reviews. Finally, self-employed drivers are not likely to
remove themselves from service after testing positive.
Our analysis and discussions with carriers, industry associations, DOT,
and others identified a number of options that could potentially address
some of the factors that contribute to the challenges in FMCSA’s drug
testing program. The options involve trade-offs between effectiveness and

9

Collectors are one of several types of “service agents” that a motor carrier can hire to
perform tasks needed to comply with DOT drug testing requirements.
10

GAO, Drug Testing: Undercover Tests Reveal Significant Vulnerabilities in DOT’s Drug
Testing Program, GAO-08-225T (Washington, D.C.: Nov. 1, 2007).
11

GAO-08-225T.

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feasibility, and no one option comprehensively addresses all three main
challenges we found. Implementing any options would require either
additional resources or a transfer of resources that fund other initiatives
related to road safety, and some options require a federal rule-making
process and legislation. Among the various options available, the following
appear to offer the greatest benefit for the additional resources that would
be needed:
•

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

•

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

•

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

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self-employed drivers. Because CDLs are issued by states, Congress would
need to take action to encourage or compel states to create or modify existing
state laws to suspend a driver’s CDL.
To improve the reliability of the drug test to detect illegal drug use, to
ensure that FMCSA has the appropriate authority over service agents in
the drug testing process, and to increase compliance with drug testing
requirements, Congress should consider (1) adopting legislation to ban
drug testing subversion products, (2) granting FMCSA oversight and
enforcement authority over service agents involved in the drug testing
process, and (3) taking action to encourage or compel states to require the
suspension of the CDLs of drivers who have tested positive or who have
refused to take a DOT drug test. To help FMCSA ensure drivers who
should be drug tested are in a drug testing program, and drivers who have
tested positive are kept off the road until they have complied with returnto-duty requirements, we recommend the Secretary of Transportation
expedite the rule-making process (1) to strengthen the requirements of
safety audits for new entrants and (2) to create a national database of
positive and refusal-to-test drug and alcohol test results.
We are making recommendations in this report that the Secretary of
Transportation take actions to assist FMCSA in ensuring drivers who
should be drug tested are in a drug testing program, and drivers who have
tested positive are kept off the road until they have complied with returnto-duty requirements. In commenting on a draft of this report, DOT and
HHS generally agreed with the findings and recommendations and
provided technical clarifications, which we incorporated as appropriate.

Background

Federal drug testing regulations require commercial motor carriers to have
a drug testing program that covers transportation safety-sensitive
employees who operate commercial motor vehicles with a gross vehicle
rating of 26,001 pounds or more; are designed to transport 16 or more
passengers, including the driver; or are of any size and are used in the
transportation of placarded quantities of hazardous materials.12 While the
largest motor carriers operate upward of 50,000 vehicles, most carriers are
small, with approximately 80 percent operating between one and six
vehicles. Carriers continually enter and exit the industry, and turnover
among small carriers is high, thereby making them harder to track. Since

12

This includes both interstate and intrastate drivers and carriers.

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1998, the industry has increased in size by an average of about 29,000
interstate carriers per year.
The Omnibus Transportation Employee Testing Act of 1991 required DOT
to implement drug testing using urine specimens. According to DOT, in
2006, there were approximately 7.32 million DOT-regulated tests
conducted. DOT’s drug testing both identifies and deters illegal drug use,
with the objective of improving road safety by preventing crashes in which
the driver’s use of illegal drugs may be a contributing factor. According to
the Substance Abuse Program Administrators Association, illegal drug use
impacts driver safety in more ways than simply “impairment.” Risk-taking
behavior, cognitive degradation, and inattention are all correlated with
illegal drug use, even when the individual is not “impaired” from a
toxicological perspective. As implemented by DOT, testing covers five
drug categories: marijuana, cocaine, amphetamines (including
methamphetamine), opiates (including codeine, morphine, and heroin13),
and phencyclidine (PCP). Motor carriers are required to obtain a negative
test result prior to employing drivers and allowing them to engage in
safety-sensitive duties. Carriers also must conduct random testing,14
postaccident testing, and reasonable suspicion testing. If employees test
positive, refuse to test, or otherwise violate the regulations, they are
required to complete a return-to-duty process before re-engaging in safetysensitive duties. The return-to-duty process is guided by a substance abuse
professional and must include education or treatment, return-to-duty
testing, follow-up testing, and possible aftercare.
Motor carriers must implement a drug testing program and may use
service agents to perform some or the majority of the tasks needed to
comply with DOT drug testing requirements. At a minimum, a motor
carrier must designate one of its employees to act as an employer
representative. A designated employer representative is authorized by the
carrier to take immediate action to remove a driver from safety-sensitive
duties after being notified of a positive or refusal-to-test result.15 Service
agents cannot act as designated employer representatives. Service agents

13

The test analyzes urine for a heroin metabolite—6-acetylmorphine.

14

FMCSA requires 50 percent random drug testing rates for CDL drivers in 2008. DOT
administrations can lower the random rate for drug testing to 25 percent when drug testing
data show that employees are testing positive at a rate of less than 1 percent for two years
in a row.
15

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

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must meet qualification requirements and are responsible for
implementing the required protocols. Figure 1 provides information about
DOT’s drug testing process and the role of service agents.
Figure 1: Overview of the DOT Drug Testing Process

Urine collection

Lab testing

Drivers report immediately to the collection
site, where they:
• Verify ID and empty pockets
• Select sealed kit & provide at least 45 ml of urine
• Watch collector check temperature and pour into
two bottles--primary and split specimen
• Watch collector seal bottles and sign paperwork
Collector sends specimens to laboratory

Analyzes primary specimen for:
• Marijuana
• Cocaine
• Amphetamines
• Opiates (focused on heroin)
• Phencyclidine (PCP)
May test for presence of
adulterants

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

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

Performed by:
Collector, who must
meet DOT requirements

Employees’ rights

Verified results

Upon notice by the
medical review officer of a
positive, adulterated, or
substituted test result, the
driver has 72 hours from the
review to request the split
specimen be tested by
another certified laboratory

Medical review officer
reports verified results to the
designated employer
representative as one of the
following:
• Negative
• Positive
• Refusal
• Canceled

Performed by:
Medical review officer
and driver

Performed by:
Medical review officer

Performed by:
Laboratory certified
by HHS

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

Source: GAO.

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GAO-08-600 Motor Carrier Safety

Service agents include the following:
•

A collector instructs drivers during the urine collection process, makes an
initial inspection of the specimen provided, divides the specimen into
primary and split specimens,16 and sends it to the laboratory for analysis. A
collection site can be any toilet in a clinic, hospital, or office building; a
toilet on site at a carrier’s place of business; or a portable toilet.

•

A laboratory analyzes the specimen. DOT is required to adhere to testing
protocols developed by HHS and to use laboratories certified by HHS; as
of April 2008, there were 42 such laboratories.

•

A medical review officer, who is a licensed physician, is responsible for
receiving and reviewing laboratory results for a carrier’s drug testing
program and evaluating medical explanations for certain drug test results.
In cases of confirmed positive, adulterated, substituted, or invalid test
results the officer must verify the laboratory results by speaking with
drivers and informing them of their right to have the split specimen tested.

•

A substance abuse professional evaluates drivers who have tested
positive or refused to take a test and makes recommendations about the
return-to-duty process, which could include education, treatment, returnto-duty testing, follow-up testing, and aftercare. Drivers are required to
complete the recommended steps before they re-engage in safety-sensitive
functions.

•

A consortium/third-party administrator is a company that can provide
or coordinate either a variety of or all of the above services for carriers
and owner-operators.17
The enormity and fluidity of the motor carrier industry and its service
agents, and FMCSA’s limited resources, do not allow for firm control over
motor carriers or service agents in following drug testing requirements. As
of September 2007, there were approximately 724,000 commercial motor

16

In DOT drug testing, the split specimen is tested at a second laboratory in the event that
the employee requests that it be tested following a verified positive, adulterated, or
substituted test result based on the primary specimen. Verified positive, adulterated, or
substituted test results are determined after laboratory analysis and medical review.
17

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

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carriers registered in FMCSA’s Motor Carrier Management Information
System.18 FMCSA partners with states to provide oversight for safety
requirements, including drug testing. In addition to FMCSA, other DOT
administrations such as the Federal Aviation Administration (FAA),
Federal Railroad Administration (FRA), Federal Transit Administration
(FTA), and Pipeline and Hazardous Materials Safety Administration
oversee safety requirements, including drug testing, in the aviation,
railroad, transit, and pipeline industries respectively.19 According to the
Substance Abuse Program Administrators Association, of these
administrations, FMCSA has the largest number of entities to oversee and
the fewest personnel, per company, to do so. See appendix II for more
detailed information on DOT administration oversight of drug testing
programs.
FMCSA has responsibility for ensuring compliance by trucking and motor
coach companies with all types of safety requirements, such as vehicle
inspections and hours of service, as well as drug and alcohol testing
requirements. FMCSA and its state partners ensure compliance through
several oversight activities, including safety audits of new entrants and
compliance reviews of existing companies—both of which cover
compliance with all types of safety requirements, including drug testing.20
Safety audits are required for all new entrants to the trucking industry and
are opportunities for FMCSA and states to provide educational and
technical assistance to new carriers, explain carriers’ responsibilities
under the federal requirements, and check for operational deficiencies.
Nearly 37,000 safety audits were conducted in 2007. FMCSA uses a riskbased approach in addressing safety priorities with compliance and
enforcement resources. For example, FMCSA targets carriers for
compliance reviews based primarily on a poor carrier safety record in
SafeStat, which assigns each carrier a priority to receive a compliance

18

This includes an unidentified number of carriers that are registered but are no longer in
business.
19
The United States Coast Guard in the Department of Homeland Security also oversees
drug and alcohol testing programs in accordance with 49 CFR Part 40 in the maritime
industry.
20

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

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review.21 FMCSA also targets carriers for compliance reviews based on a
fatal accident, a complaint against the carrier or driver, or a follow-up
investigation after violations. In 2007, FMCSA and state investigators
conducted 16,000 compliance reviews. In addition to the audits and
compliance reviews, FMCSA also makes educational materials about drug
testing available on its Web site.
Data from FMCSA’s oversight activities show that noncompliance and
poor compliance with the drug testing requirements is widespread. The
most frequently cited drug testing violation found in new-entrant safety
audits, which was found in 30 percent of safety audits conducted since
2003, was that carriers had no drug testing program at all. The two most
frequently cited drug testing violations in compliance reviews in 2007 were
that carriers have failed to adequately implement random drug testing or
pre-employment testing (see fig. 2). Over half of the 3,075 random testing
violations and 2,761 pre-employment testing violations resulted in fines,
with an average fine of $1,908 for random testing and $1,605 for preemployment testing.22 Of the 190 cases in which a carrier failed to remove
a driver with a positive drug test from service, almost 80 percent resulted
in a fine, averaging $3,141.

21
FMCSA targets compliance reviews toward those carriers that its Motor Carrier Safety
Status Measurement System (SafeStat) identifies as having a high potential for being
involved in crashes. We have recently reported that a statistical approach would better
identify commercial carriers for compliance reviews than the current approach. GAO,
Motor Carrier Safety: A Statistical Approach Will Better Identify Commercial Carriers
That Pose High Crash Risks Than Does the Current Federal Approach, GAO-07-585
(Washington, D.C.: June 11, 2007); and GAO-07-584.
22

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

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GAO-08-600 Motor Carrier Safety

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

Failure to perform
random testing

Average fine: $1,908

Failure to perform
pre-employment testing

Average fine: $1,605

No drug testing program

Average fine: $1,821

Failure to remove a driver
with a positive drug test

Average fine: $3,141

Failure to perform
postaccident testing

Average fine: $1,802
0

500

1,000

1,500

2,000

2,500

3,000

3,500

Number of violations
Violations discovered
Violations that resulted in fines
Source: GAO analysis of FMCSA data.

While FMCSA conducts oversight of motor carriers to ensure compliance
with drug testing requirements, FMCSA only conducts oversight of service
agents employed by the carrier in cases of specific allegations or
complaints. Few carriers conduct regular oversight of the service agents
they employ, and smaller carriers are less likely to conduct such oversight,
given their more limited resources. Other DOT administrations, including
FAA, FRA, and FTA, oversee service agents in various ways by conducting

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regular compliance reviews, drug testing-specific audits, service agentspecific audits, and follow-up after complaints. These administrations can
also use public interest exclusions to enforce service agent compliance.23 A
recent GAO report found that there is a lack of compliance with protocols
among service agents that collect specimens for testing. Posing as
commercial truck drivers needing DOT drug tests, GAO investigators
determined that 22 of the 24 collection sites they tested were not in
compliance with some of the protocols that guide the process of collecting
a urine specimen.24

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

A number of factors create challenges for FMCSA to ensure that all drivers
are in a drug testing program, drivers’ ability to avoid detection by a drug
test is limited, and drivers who test positive are removed from safetysensitive duties until they have completed return-to-duty requirements.
First, the factors that contribute to drivers not being subject to testing
include limitations in FMCSA’s oversight resources. Limited resources
mean many carriers have little likelihood of ever being reviewed, which
may reduce the incentive for carriers to follow the regulations. Some
carriers also report confusion about how to implement effective drug
testing programs. Second, factors that contribute to drivers’ ability to
avoid detection include the ease with which the urine specimen can be
subverted because of noncompliant collection sites and the wide
availability of products for adulterating or replacing the urine sample. In
addition, drivers could be using drugs for which DOT does not test. Third,
factors that lead to potentially thousands of drivers who test positive to
continue to drive without completing the required return-to-duty process
include the nonreporting of past positive drug tests by drivers to
prospective employers and self-employed owner-operators who fail to
remove themselves from service.

23

A public interest exclusion excludes a service agent with serious noncompliance with
drug and alcohol testing rules from participation in DOT’s drug and alcohol testing
program. After receiving a correction notice from a DOT administration or the Office of
Drug and Alcohol Policy and Compliance (ODAPC), the service agent has 60 days to make
and document changes to correct the noncompliance. If the noncompliance is not
corrected, the DOT administration or ODAPC may issue a Notice of Proposed Exclusion to
initiate the public interest exclusion. After receiving a Notice of Proposed Exclusion, the
service agent has 30 days in which to contest the public interest exclusion. The ODAPC
Director makes the final determination on whether to issue a public interest exclusion.
24

GAO-08-225T.

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

Due to the large number of motor carriers regulated, FMCSA reviews only
a small percentage of the total number of carriers. Although those
reviewed typically have been identified as having significant safety
problems, the limited number of reviews lessens the incentive for existing
carriers to comply with drug testing requirements. FMCSA and its state
partners conducted an average of over 13,000 compliance reviews
annually on carriers from 2001 through 2007, but the majority of carriers
were not visited and have little likelihood of ever being visited.25 Existing
owner-operators and small carriers are less likely than larger companies to
be selected for a compliance review, since they are less likely to have a
safety record. Several associations told us that small carriers may have
less incentive to comply with drug testing regulations since visits by
FMCSA or state investigators are rare.
New-entrant safety audits provide essential educational information to
new carriers. An FMCSA official told us the majority of new entrants are
typically visited 8 to 9 months after beginning operations. However, before
the safety audit occurs, new entrants may operate without adequately
implementing safety management regulations, including drug testing—
FMCSA data indicate 30 percent of new entrants lack a drug testing
program. The purpose of the audit is to educate and encourage
compliance; under the current rules, absence of a drug testing program
does not result in a failure of the audit. An FMCSA official estimated that
less than 1 percent of new entrants fail safety audits. After an audit, the
carrier is given a list of recommendations for corrective actions, but
follow-up to ensure these actions were taken does not always occur.
However, if certain violations are discovered during a safety audit, such as
if a carrier is found to have used a driver who had a positive drug test, the
safety audit would end and the carrier would be immediately referred for a
compliance review. FMCSA published a Notice of Proposed Rulemaking to
strengthen the safety audit pass/fail criteria to give more significance to
basic safety management requirements, including drug testing, in
December 2006. A Final Rule is expected before the end of 2008.
Several stakeholders we met with told us that for some carriers,
particularly small carriers, a poor understanding of their responsibilities to

25

As we have previously reported, as of June 2004 only 23 percent of carriers registered
with DOT had a SafeStat rating, which FMCSA uses to target carriers for compliance
reviews; the remaining 77 percent of carriers are unlikely to receive a compliance review
unless they are involved in a roadside inspection or fatal crash, or are identified by
complaint calls to FMCSA. GAO-07-585.

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implement drug testing regulations can also lead to carriers failing to
implement a drug testing program, or considerable noncompliance with
drug testing regulations. For example, one of the carriers we met with is in
the event industry and uses trucks to haul equipment. Since trucking is not
the company’s core business, the company was not aware of the
requirement to drug test its drivers. In another example, a representative
from one carrier we visited explained that the company was not sure how
to test drivers who work only periodically.
Compliance with drug testing regulations is particularly problematic for
self-employed owner-operators. Like other drivers employed by motor
carrier companies, self-employed owner-operators must follow drug
testing regulations and participate in a drug testing program. A preemployment drug test must be performed, and FMCSA requires that the
owner-operator must enroll in a consortium for random drug testing
purposes. However, it is not clear how an individual who is both the
employer and the employee would comply with drug testing reporting
requirements. If a self-employed owner-operator tests positive, there is no
one to remove the individual from safety-sensitive duties. Furthermore,
self-employed owner-operators probably have the smallest chance of
being selected for a compliance review because FMCSA will most likely
not have sufficient data available to create SafeStat ratings, unless they are
in a crash with a fatality.

Several Factors Lead to
Subversion of the Test and
Result in Drug Users
Avoiding Detection
Lack of Compliance by
Collection Sites and Other
Service Agents

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

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GAO-08-600 Motor Carrier Safety

investigators found they were given ample opportunity to have a different
individual come in and provide a sample for them.
While compliance with the regulations and collection protocols certainly
helps to reduce the opportunity for a driver to adulterate, dilute, or
substitute a specimen, as evidenced by our investigators’ findings, full
compliance with all protocols does not ensure that no cheating will occur.
In fact, our investigators were able to substitute a specimen at one site
that followed all protocols. In addition, the investigators concluded that at
any collection site they visited, they would have been able to tamper with
their specimen despite DOT protocols.
Carriers can mitigate the opportunity to cheat on a drug test by having onsite collections and limiting the opportunity drivers have to retrieve
adulterants or substitutes or to dilute their sample. One large carrier we
interviewed conducts on-site collections with its own personnel and has a
policy and protocol aimed at minimizing any opportunity a driver would
have to retrieve an adulterant or substitute. At this company, drivers are
notified in person of a random drug test and are immediately taken to have
a specimen collected, without the ability to go to a locker, a car, or
anywhere else before providing the specimen. In order to subvert the
specimen in this environment, drivers would need to carry an adulterant at
all times when in the facility. In addition to the DOT-mandated tests, this
carrier conducts more frequent drug testing. Specifically, the company
conducts unannounced tests of all drivers at least once each year. Also,
new drivers, in addition to taking a pre-employment test, are tested again,
at an unannounced time, within the first 90 days of employment. On-site
collections may not be practical for smaller companies due to their more
limited resources and the impracticality of having drivers come into the
facility without being alerted to the possibility that they are being called in
for a drug test.
In addition, other service agents, including consortiums/third-party
administrators, medical review officers, and substance abuse
professionals, may be out of compliance. For example, in one of its own
reviews, FMCSA found that a third-party administrator was not selecting
drivers at the required 50 percent rate for random tests. In other examples,
FMCSA found one unqualified individual who was acting as a medical
review officer and another unqualified individual acting as a substance
abuse professional who was issuing return-to-duty reports for drivers that
had not completed their prescribed treatment, in violation of return-toduty requirements.

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GAO-08-600 Motor Carrier Safety

Little Oversight of Service
Agents by FMCSA

Except in the case of specific allegations or complaints, FMCSA
investigators do not visit or audit collection sites or other service agents to
observe procedures and enforce compliance with drug testing
requirements.26 FMCSA and its state partners have a limited number of
staff who are currently conducting thousands of compliance reviews and
safety audits. DOT officials have stated that there are over 20,000
collection sites across the country that can be used to collect urine for
DOT drug testing, making oversight of these sites a daunting task.27
Oversight by carriers—who are ultimately responsible for compliance of
their service agents—or by other entities that employ the services of
collection sites, such as third-party administrators, is also limited. One
large carrier with whom we spoke tests and verifies that the collection
sites it uses are in compliance, but none of the small carriers we
interviewed that had a drug testing program in place conducted any
oversight. Smaller carriers are less likely to conduct such oversight, given
their more limited resources. Representatives from a consortium/thirdparty administrator with whom we spoke told us that it observes some of
the collection sites it uses, but it is not clear that this is a common
practice. In addition, representatives told us that some major collection
companies internally audit their own sites to ensure compliance with all
requirements, but again, it is not clear whether this is a widespread
practice or whether any undercover testing of protocols is occurring.
FMCSA does not have the authority to levy civil penalties on service
agents found to be out of compliance. FMCSA officials told us that, at
most, they can only fine the carrier that uses the service agent—not the
service agent itself. Several carrier and drug testing industry associations
we interviewed agreed that a lack of accountability that results from
limited oversight and enforcement leads to poor compliance or
noncompliance. FMCSA, ODAPC, and other DOT administrations can
initiate and have initiated a process known as a public interest exclusion

26

There is some oversight of collection sites by other DOT administrations, including the
Federal Aviation Administration, the Federal Railroad Administration, the Federal Transit
Administration, and the Pipeline and Hazardous Materials Safety Administration, and by
the United States Coast Guard in the Department of Homeland Security. These other
administrations inspect some collection sites used by the employers and operators they
regulate, either as part of a review of the employer, or as a separate review of service
agents. These collection sites may also be used by FMCSA-regulated carriers. In addition,
FMCSA has a service agent review initiative—focusing mostly on collection sites—along
the Southern border in the U.S. commercial zone.
27

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

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GAO-08-600 Motor Carrier Safety

to disqualify noncompliant service agents. While no public interest
exclusion has been formally issued, the process has resulted in service
agents either correcting noncompliance or going out of business. Officials
we interviewed who have been involved in initiating a public interest
exclusion stated that the process could provide a greater deterrent if it
could be fully completed and a public notification of exclusion were
issued in the Federal Register.

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

Several hundred products designed to dilute, cleanse, or substitute urine
specimens can be easily obtained. The ease with which these products are
marketed and distributed through the Internet presents formidable obstacles
to the integrity of the drug testing process. As we have previously reported,
several states have laws that prohibit the manufacture, sale, or use of
products intended to subvert drug tests.28 To our knowledge, few individuals
have been cited or convicted for violating these laws. The interstate nature of
the manufacture and sale of products intended to subvert a drug test lessens
the impact of state-based laws. In most instances, DOT drug testing protocols
do not require directly observed collection or a thorough search for hidden
subversion products.29 Drivers intent on adulterating or substituting a urine
specimen can conceal small vials in socks or other undergarments. For
example, our investigators were easily able to bring in adulterants and
synthetic urine they purchased through the Internet at eight collection sites
where they attempted to do so.
Another method for substitution is to have someone other than the
applicant or driver provide the urine specimen. Specimen collectors are
required to supervise drivers at all times and ensure that undetected
access to the collection area is not possible. Further, collectors are
required to identify the driver by looking at a photo ID issued by the
employer (other than in the case of a self-employed owner-operator) or a

28

GAO, Drug Tests: Products to Defraud Drug Use Screening Tests Are Widely Available,
GAO-05-653T (Washington, D.C.: May 17, 2005).
29
According to ODAPC officials, the decision not to require directly observed tests relates
to the need to balance individual privacy with the need for transportation safety. DOT is
required by law to protect employee collection site privacy to the maximum extent
practicable. DOT-wide protocols only require directly observed tests in certain
circumstances. For example, a collector must immediately conduct a collection under
direct observation if the collector observes materials brought to the collection site, or the
employee’s conduct clearly indicates an attempt to tamper with a specimen. See 49 CFR
§ 40.67 for further information on the circumstances in which an employer or collector
must directly observe the collection of the specimen.

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federal, state, or local government.30 However, GAO investigators found
that at some collections sites, collectors either failed to supervise drivers
or failed to ensure that access to the area was secure. GAO investigators
also were able to successfully use fake driver’s licenses to gain access to
all 24 collection sites.31 These findings demonstrate that drug users may
have opportunities to have someone else take a drug test in their place.
DOT does not require specimens to undergo validity testing, which may
detect the presence of some adulterants or substitutes, although DOT
officials stated that laboratory data show that between 98 percent and 99
percent of DOT specimens undergo such testing.32 However, because
validity testing procedures are available to the public, makers of
adulterants can use the information to formulate their products. According
to statistics from one of the largest HHS-certified laboratories, less than
0.1 percent of DOT tests are identified as adulterated and substituted.
SAMHSA officials with whom we met noted that the potential exists for
adulterated specimens to go undetected. Similarly, when urine specimens
are substituted, the test results could be negative; therefore, no data exist
on the extent to which successful substitution occurs. As a result, the rate
at which adulteration or substitution is occurring is unknown and
impossible to determine. Of the eight specimens our investigators
adulterated or substituted, the laboratory did not detect any of the
adulterants or substitutes used.

Drugs for Which DOT Does
Not Test

Drivers who use illegal substances, such as ecstasy, or misuse legal
substances, such as a prescription medication containing oxycodone or other
synthetic opiates, may also be impaired, but they will not be flagged by DOT
drug tests.33 According to a study by the Office of National Drug Control

30
The protocols do not require carriers to provide photographs or other identification of
drivers to validate the ID.
31
DOT officials stated that the use of fake IDs is likely not prevalent given the time frames
required to report to a collection site from the time of notification. In addition, substitution
of this kind also assumes that there is another person willing and available to participate in
the testing process on behalf of the employee, with a fake ID, and with information that
would identify the person as the driver.
32

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

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

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Policy, prescription drugs account for the second most commonly abused
category of drugs, after marijuana, but ahead of cocaine, heroin, and
methamphetamine.34 The Substance Abuse Program Administrators
Association has stated that many controlled-substance medications, including
painkillers, tranquilizers, sedatives, and stimulants can potentially impair an
individual’s ability to drive commercial vehicles, although the extent of
impairment compared with illegal drugs depends on many factors, including
the medication dose, the timing of the dose, the individual’s tolerance to the
medication’s effects, and interactions with other factors, such as fatigue.

Nonreporting of Past
Positives, Incomplete
Background Checks, and
Loopholes for Selfemployed Drivers Can
Lead to Drivers Testing
Positive and Continuing to
Drive

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

34
Office of National Drug Control Policy, Synthetic Drug Control Strategy: A Focus on
Methamphetamine and Prescription Drug Abuse (May 2006),
http://www.whitehousedrugpolicy.gov/publications/synthetic_drg_control_strat/index.html
(accessed Mar. 4, 2008).
35
Carriers are required to check with a prospective employee’s previous DOT-regulated
employers regarding past drug test history, covering the previous 3 years. If a driver tests
positive on a pre-employment test and is not hired, the driver is still required to complete a
return-to-duty process. If a previous employer does not have information about the returnto-duty process (e.g., an employer who did not hire an employee who tested positive on a
pre-employment test), a prospective employer must seek to obtain this information from
the prospective employee.

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previous employers may not respond to them or may not respond in a timely
fashion, which was an issue mentioned at all of the compliance reviews we
observed. In some cases, previous employers may have gone out of business.
Moreover, in one of the compliance reviews we observed, the carrier
indicated that some carriers from which he requested information charged
him for researching their records.36 In our observations of compliance
reviews, FMCSA investigators do not target these nonresponding carriers in
order to take action against them for noncompliance.37
Self-employed owner-operators who test positive will likely continue to
drive without going through a return-to-duty process. Owner-operators are
required to follow the drug testing regulations and be in a drug testing
program like all other drivers employed by motor carrier companies;
however, there are inherent conflicts for a self-employed owner-operator
in complying with the requirements. Even if an owner-operator who
participates in a consortium tests positive, there is no process for
removing the individual from safety-sensitive duties, and no one beyond
the owner-operator will be notified of the positive result.
FMCSA is taking actions to try to target drivers who test positive and then
test negative again within a short period of time, indicating a likelihood
that they have not completed a return-to-duty process but are seeking new
employment. This process involves using data from service agents who
work with multiple companies and have noticed the same driver testing
positive with one employer and then testing negative within a 2-week
period for a different employer. According to a carrier association, in a
recent investigation, FMCSA looked at 69 positive tests that were received
within a 15-day period by a service agent and found that 21 of the drivers
tested negative in the same period for a different employer. According to
FMCSA officials, this process has been streamlined and simplified and will
be included in future training for field staff.

36

According to ODAPC officials, no carrier may delay information relating to drug testing
history pending payment for its retrieval.
37
FMCSA officials told us that, since September 2007, the administration has mailed a
uniform warning letter to motor carriers failing to provide drug and alcohol background
information.

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Options for
Addressing
Challenges Involve
Effectiveness and
Feasibility Trade-offs

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

Table 1: Approaches to Improve Effectiveness of DOT’s Drug Testing Program
Options to reduce the number of drivers not subject to drug testing
Improve compliance by existing carriers

Increase carrier compliance reviews
Conduct drug testing-only audits of carriers
Improve dissemination of information

Improve compliance by new entrants

Strengthen safety audit enforcement
Toughen entry requirements

Options to detect more drivers who are using drugs
Improve compliance by service agents

Conduct service-agent-only audits
Visit service agents during carrier compliance reviews

Increase enforcement authority over service agents

Give FMCSA authority to impose civil penalties against service agents

Limit ability to subvert urine tests

Adopt a federal adulterant product ban

Increase use of the public interest exclusion process
Stop publishing methods for specimen validity testing
Test alternative specimens
Verify identification of drivers at collection sites
Test for drugs not currently included in DOT tests

Test for additional illegal drugs or some prescription drugs

Options to reduce the number of drivers who test positive or refuse to test and continue to drive
Reduce job-hoppers

Create a national database of drivers who have tested positive or refused
to test

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

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

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

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

Effectiveness

Feasibility

Increase the number of carrier compliance reviews

Has greatest potential impact on
increasing drug testing compliance
and overall safety

Substantial cost required
for meaningful benefit

Conduct drug testing-only audits of carriers

Depends on effective targeting of
carriers

Less cost than full
compliance reviews

Facilitates voluntary compliance. But
does not address systemic problems
and can easily be disregarded by
carriers

Relatively simple and low
cost

Ensures new carriers will rectify
noncompliance

DOT has begun a rulemaking process; minimal
additional costs

Ensures new carriers are aware and
understand requirements from the
start

Rule-making process
required; resources
needed to initiate

Improve compliance by existing carriers

In addition to compliance reviews, begin reviews that
focus only on carriers’ drug testing compliance
Improve dissemination of information
Educate carriers through promotional materials, Web
site, carrier conferences
Improve compliance by new entrants

9

Strengthen enforcement of new-entrant safety audits
Bolster consequences for failing to implement basic
safety requirements
Toughen entry requirements
Require carriers to pass a new-entrant safety audit
prior to obtaining a DOT number
Source: GAO.

9

Note: Check mark ( ) indicates the option GAO believes represents the best combination of
effectiveness and feasibility.

Options for Improving
Compliance by Existing
Carriers

Of the three options for improving compliance by existing carriers,
increasing the number of carrier compliance reviews provides the best
combination of effectiveness and feasibility. Conducting more reviews
would improve overall compliance with safety requirements. The increase
in reviews by FMCSA would provide an incentive for carriers to implement
sound drug testing programs in order to avoid fines for noncompliance.

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FMCSA is planning some changes to the way it targets carriers for
compliance reviews, which will include additional information on illegal
drug use and alcohol misuse.38 The effectiveness of this option, however, is
dependent on how many more compliance reviews would be conducted.
Compliance reviews are conducted for only a small percentage of carriers
each year. Providing a more meaningful incentive for carrier compliance
would likely require a substantial increase in this percentage, which
reduces the feasibility of this option. FMCSA and its state partners
currently conduct an average of over 13,000 compliance reviews each
year. Increasing the number of reviews to cover a more substantial portion
of the approximately 724,000 carriers in the industry would require hiring,
training, and paying additional investigators or diverting them from other
existing safety-related tasks.
Conducting audits specific to drug testing regulations is a second option,
and while it may be less costly than substantially increasing compliance
reviews, its potential effectiveness is not as great and depends on
effectively targeting carriers. Targeting of carriers that have already been
found to be out of compliance with drug testing regulations could be done
based on findings of existing compliance reviews, but targeting additional
carriers may be difficult because of a lack of data on drug testing
programs outside of compliance reviews. Conducting audits specific to
drug testing requirements would take less time than traditional oversight
methods but would require additional resources, although not to the same
degree as substantially increasing carrier compliance reviews. However,
this option would dedicate resources to drug testing only at the expense of
using those resources in other ways that could improve overall safety,
such as in a full compliance review. The audit protocol to be used could be
similar to the other DOT administrations that conduct drug testing audits,
with minor changes to reflect FMCSA-specific requirements.

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

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

Options for Improving
Compliance by New Entrants

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

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GAO-08-600 Motor Carrier Safety

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

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

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

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

Effectiveness

Feasibility

Conduct service agent-only audits

Extends oversight to include service
agents, a group that is not currently
audited by FMCSA

Costs associated with new
investigations

Visit service agents during carrier compliance
reviews

Extends oversight to include service
agents, but review may not be as indepth

Costs associated with a new step
during a review.

Provides monetary deterrent to service
agent noncompliance

Legislation required

Deterrent effect is potentially strong if
issued

DOT is considering making
changes to improve the process

Adopt a federal adulterant product ban

Deterrent effect may limit the
manufacture, marketing, sale, and
possession of products—federal statute
allows for prosecution in any state

Unclear how to enforce;
legislation required

Stop publishing methods for specimen
validity testing

Could limit the effectiveness of
adulterants

Lack of formal publication will not
keep it out of the public domain

Test alternative specimens

Some advantages relative to urine
testing

Protocol development required
by SAMHSA; rule-making
process required

Reduces opportunity to substitute
specimen by having someone else
provide it

Unclear how it can effectively be
accomplished

Identifies use of drugs that may affect
driving ability

Differentiating between use and
abuse of prescriptions may be
difficult

Improve compliance by service agents

Increase enforcement authority over service agents

9

Seek civil penalty authority
Seek authority to levy civil penalties against
noncompliant service agents.
Use public interest exclusion process
No public interest exclusion has ever been
issued.

Limit the ability to subvert urine test

9

Additional drug testing of hair or oral fluids in
certain circumstances
Verify driver identification at collection sites

Test for drugs not currently included in DOT tests
Test for additional illegal drugs, such as
ecstasy or some prescription drugs (e.g.,
synthetic opiates)
Source: GAO.

9

Note: Check marks ( ) indicate the options GAO believes represent the best combination of
effectiveness and feasibility.

Options for Improving
Compliance by Service Agents

All types of service agents are included in both options that aim to
improve compliance because currently service agents are visited by
FMCSA only as a result of specific allegations. However, improving
compliance by collection sites in particular is central to reducing
opportunities to undermine a drug test. Recently, in recognition of the

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GAO-08-600 Motor Carrier Safety

importance of improving adherence to DOT protocols at collections sites,
ODAPC developed a checklist of critical DOT protocols that was sent to
collection sites for posting in their facilities. GAO investigators found that
collection sites that had checklists of DOT protocols were in better
compliance that those that did not. While this is a positive step that will
help collection sites better follow protocols, the following options focus
on providing a greater oversight presence at collection sites to ensure
better compliance. As discussed previously, however, adhering to
protocols will only minimize, not eliminate, the opportunity for
subversion.39
The option to conduct service agent-only audits and clandestine
inspections appears to hold the most promise since these audits and
surprise inspections, according to stakeholders and our own analysis,
would provide an incentive for service agents to follow proper protocols
and comply with DOT requirements. Currently, FMCSA is testing a service
agent-only audit. Service agent-only audits would create an oversight
presence that previously has not existed and would identify
noncompliance and provide corrective action. Furthermore, these types of
audits would likely send a message to the service agent industry that
noncompliance can be discovered and will have consequences. The costs
associated with this option, however, affect its feasibility. The service
agent industry is large and diverse, and covering it would require a large
number of audits, with attendant costs for hiring, training, and paying new
staff or transferring resources from other current safety-related duties.
However, FMCSA officials indicated that their goal in testing a new service
agent-only audit is to improve the effectiveness of their service agent
compliance activities, regardless of how many reviews they conduct.
ODAPC provides inspector and auditor training on issues related to drug
testing requirements for service agents. For example, ODAPC is working
with DOT’s Research and Innovative Technology Administration to
develop a video on collection-site security and integrity for use by
inspectors, auditors, and collection personnel.
While the service agent industry is large and diverse, a number of
stakeholders suggested that even a small number of audits or clandestine
inspections would send an initial message that noncompliance by service

39

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

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GAO-08-600 Motor Carrier Safety

agents is serious enough to warrant FMCSA’s attention.40 This option may
result in increased costs for collection sites in particular, which might
need to conduct additional training for collectors, and for carriers, which
might have to absorb these costs in the form of higher fees for conducting
tests. DOT is in the early stages of implementing efforts to address this
issue. ODAPC officials told us they are developing a database that
centralizes the results of all of the other DOT administrations’ oversight of
service agents, starting with collection sites and ultimately including
medical review officers and others. Officials told us that all DOT
administrations can use the database to determine whether collection sites
have been visited and access the findings of the visits. The database could
serve as a method to target service agents with a history of poor
compliance. FMCSA officials stated that some of its investigators in the
field have been trained on how to conduct audits of collection sites and
that they hope to expand oversight activities with regard to service agents.
A second option for ensuring compliance by service agents is visiting
service agents or conducting clandestine inspections as part of carriers’
compliance reviews, but this option would be less effective for two
reasons. First, such visits would not be as thorough as a service agent-only
audit. Second, including service agents as part of compliance reviews may
not be practical because some carriers use service agents in different
cities or states. FMCSA targets carrier compliance reviews on the basis of
highway safety risk, but there currently are no corresponding data
indicating that the service agents used by such carriers also carry greater
risk. However, when the database of service agents is operational, an
ODAPC official said that an FMCSA inspector could query the database to
find out whether a carrier was using a service agent that had been visited
by a DOT administration and what the findings were from such visits. This
option would be less expensive than the first because the investigator
would be adding a step to an existing process rather than conducting a
wholly different audit.

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

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Options for Increasing
FMCSA’s Enforcement
Authority

Expanding FMCSA’s enforcement authority to include service agents may
result in greater compliance by service agents. Currently, FMCSA can only
fine the carrier that uses the service agent—not the service agent itself.
Stakeholders told us that the ability for FMCSA to fine service agents
would provide an effective incentive to follow protocols. The effectiveness
of this option depends on FMCSA’s ability to expand its oversight
activities, yet stakeholders said merely having the authority to fine service
agents would likely send a message to the service agent industry that there
are consequences for failing to comply with protocols. For example, FRA
officials indicated they had successfully warned service agents that their
continued noncompliance could lead to civil penalty action. These
warnings produced the desired resolution of noncompliance matters.
Representatives from one of the drug testing industry associations that
represent service agents told us that if FMCSA were to actually fine a
service agent, many service agents would come into compliance. Giving
FMCSA the authority to fine service agents would require legislation.
Officials from ODAPC told us they have created a committee to review
existing authorities of all DOT administrations to determine the current
authority of each administration. Consistency in authority to impose civil
penalties against service agents across the department may be important
given that service agents may be used and audited by more than one DOT
administration.
A second but less promising option for increasing FMCSA’s enforcement
authority is to encourage greater use of the public interest exclusion
process. Our discussions with stakeholders indicated that in instances
where the process has been initiated, it has been an effective tool in
addressing noncompliance. However, officials in FMCSA and elsewhere
within DOT indicated the process is ineffective because a public interest
exclusion has never been issued. ODAPC officials told us they are
exploring changes to the process, such as getting an interim administrative
injunction against service agents pending the execution of a public interest
exclusion process, for instances when egregious noncompliance is
found—which FMCSA officials believe would increase the number
initiated. To make more use of the public interest exclusion process,
FMCSA would also need to find better ways to identify noncompliance by
service agents—either by visiting service agents during compliance
reviews or by conducting service agent-only audits. Because the public
interest exclusion process was designed to provide due process to service
agents, changing the process may be difficult. Additional costs would
depend on the extent to which improving the process results in additional
investigations.

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

Options for Limiting the Ability
to Subvert the Current Test

The first option, a federal law prohibiting the sale, manufacture, or use of
subversion products, would be an improvement over the patchwork of
laws several states have in place, but implementation would be difficult
given the ease with which these products can be distributed.41 SAMHSA
has stated that it is critical to make the production and knowing use of
adulterant and substitution products illegal under federal law. This option
is also generally supported by representatives of the trucking and service
agent industries. The adoption of a federal prohibition may have a
deterrent effect on some sellers and buyers of the banned products. Sellers
of these products may reduce marketing, and some may decide to exit the
industry rather than face potential prosecution. Further, a federal law
would allow for prosecution in any state, if an individual were found to be
manufacturing, selling, or possessing such products.
However, the deterrent effect of such a law on drivers who buy these
products may be limited since the individuals who would purchase them
also presumably bought and used the illegal drugs they are trying to mask.
Some other limitations on the effectiveness and feasibility of this option
include the following:
•

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

•

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

•

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

41

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

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GAO-08-600 Motor Carrier Safety

Limiting the ability to subvert drug tests might be facilitated if the methods
used to identify adulterants are not published.42 This option has two
primary limitations. First, while it might help detect adulterated
specimens, it would not help detect substituted specimens. Drivers intent
on not being detected by drug tests may use a substituted specimen
instead of adulterating their own specimen. Second, SAMHSA officials said
restricting the publication of protocols would at best be a short-term
advantage because if validity testing protocols become the subject of a
litigation, they will become public.
Another option for minimizing subversion tactics is to test hair or oral
fluids. One benefit would be that collections of these specimens would be
directly observed, thus reducing (but not eliminating) the opportunity to
adulterate or substitute specimens. Further, while products are available
for subversion of such tests, it is not clear whether these products are
effective in masking drug use.43 Some transportation companies already
conduct hair tests in addition to urine tests, and the result has been a
higher detection rate of illegal drug use. For example, one large carrier
conducted both hair and urine tests on over 15,000 employees in safetysensitive positions from May 2006 to January 2008. The positive rate for
the hair tests was approximately 9 percent, compared with approximately
1.6 percent for the urine tests. The higher positive rate for the hair tests
may be a result of the fact that hair specimens generally retain evidence of
drug use for a longer period of time than urine specimens.44
These alternative testing methods hold promise for certain testing
purposes but are not suitable for others. Evidence of drug use becomes
apparent in oral fluids almost immediately but can only be detected for a
short time, making oral fluids suitable for postaccident tests and

42
The Administrative Procedure Act requires publishing a notice and giving those being
regulated by federal agency rules and regulations an opportunity to comment. The
protocols in use were adopted by HHS, following this procedure.
43

If testing alternative specimens such as hair or oral fluids is accepted, this will create a
more lucrative market for adulterant manufacturers to create new and improved products
designed to beat the test.
44
According to an HHS-certified laboratory and a drug testing professional, hair testing
detects drug use in the previous 7 to 90 days. By contrast, urine testing detects drug use in
the previous 5 hours to 5 days (except for marijuana, which can be detected for up to 4
weeks depending on frequency of use), while oral fluid testing detects drug use in the
previous 1 to 36 hours.

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unsuitable for pre-employment tests.45 On the other hand, evidence of drug
use does not become apparent in hair for several days after drug use but
has a long detection window, making hair more suitable for preemployment tests and unsuitable for postaccident tests. In 2004, SAMHSA
published proposed revisions to mandatory guidelines for federal
workplace drug testing programs that included proposals to establish
scientific and technical guidelines for the testing of hair, sweat, and oral
fluid specimens. According to SAMHSA officials and some stakeholders in
the drug testing industry, the scientific issues related to hair testing—
including differing detection based on hair length, color, and
contamination of hair from the environment rather than from direct use of
drugs—will require further exploration before protocols can be
established. For example, SAMHSA officials told us that at least two
scientific studies show that a drug will bond into hair when the hair is
exposed to environmental drug use.46
Other unresolved issues related to adopting hair testing include
establishing collection protocols for hair specimens,47 establishing
appropriate criteria for a positive test result, and determining how drivers
might challenge results via a specimen tested at a second laboratory.48
SAMHSA officials, who currently are studying hair testing, said that

45

It is important to note that according to the Office of National Drug Control Policy, oral
fluids may be less efficient in detecting marijuana use.
46

See P. Stout, J. Ropero-Miller, M. Baylor, and J. Mitchell, “External Contamination of Hair
with Cocaine: Evaluation of External Cocaine Contamination and Development of
Performance-Testing Materials,” Journal of Analytical Toxicology, vol. 30 (2006); and G.
Romano, N. Barbera, and I. Lombardo, “Hair Testing for Drugs of Abuse: Evaluation of
External Cocaine Contamination and Risk of False Positives,” Forensic Science
International, vol. 123 (2001).
47

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

48

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

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because of these and other issues, they cannot predict when a final rule on
hair testing will be issued. Also, since DOT is obligated by statute to use
SAMHSA guidelines on drug testing protocols, considerable work remains
before hair testing can supplement urine testing.
Finally, another option that can limit the ability of drivers to substitute
their specimen by having someone else provide it would be to change DOT
protocols at collection sites to require verification of the drivers’
identification. However, it is not clear how verification could be effectively
accomplished. For example, carriers could be required to fax a copy of an
individual’s CDL to the collection site prior to a pre-employment or
random test, but there is no guarantee that the fax would be clear enough
to reliably authenticate identification.49

Testing for Drugs Not Currently
Included in DOT Testing

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

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

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

49

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

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

9

FMCSA maintains database of drug test
positives and refusals-to-test that carriers
must query prior to hiring
CDL suspension

9

State licensing agencies suspend the CDLs
of drivers who test positive or refuse to test

Effectiveness

Feasibility

Depends on carrier compliance with
regulations; does not address self-employed
owner-operator problem

FMCSA has a rule-making
process under way

Independent of carrier compliance with
regulations; addresses both job-hopper and
owner-operator problem

Requires federal and state
legislation; FMCSA could use
a national database to
implement

Source: GAO.

9

Note: Check marks ( ) indicate the options GAO believes represent the best combination of
effectiveness and feasibility.

National Database

A national database that carriers must query in screening a prospective
employee would provide information about whether the applicant had
previously tested positive for drugs or refused to take a DOT drug test, and
whether the applicant had completed the required return-to-duty process.
Applicants can easily omit previous employers for whom they tested
positive or refused to test, and easily not disclose an incomplete return-toduty process. FMCSA reported to Congress on the feasibility of such a
database in 2004 and, as part of its Comprehensive Safety Analysis 2010
initiative, is working toward initiating a rule-making process for the
creation and implementation of a database comprising positive test results
and refusals-to-test for both drugs and alcohol.50 According to FMCSA
officials, current plans call for medical review officers to report positive
drug test results and refusals-to-test, but FMCSA would also solicit
comments on obtaining the information directly from carriers and for
carriers to report positive alcohol test results and refusals-to-test.51 While
the rule-making process is being initiated, FMCSA officials told us that
additional authority over service agents would be necessary to require the

50
In 2004, FMCSA reported to Congress on the feasibility of how a national database could
work. George M. Ellis, Jr. A Report to Congress on the Feasibility and Merits of Reporting
Verified Positive Federal Controlled Substance Test Results to the States and Requiring
FMCSA-Regulated Employers to Query the State Databases Before Hiring a Commercial
Drivers License (CDL) Holder, a special report prepared at the request of the Federal
Motor Carrier Safety Administration, March 2004.
51
FMCSA is also considering requiring consortiums/third-party administrators that
administer drug testing programs for self-employed owner-operators that do not lease on to
other motor carriers to report refusals-to-test.

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reporting of drug testing information. Carriers would be required to query
the database prior to using drivers, which could supplement or possibly
replace the current requirement to check with previous employers
regarding past positive tests. FMCSA also plans to allow roadside
inspectors to query the national database to determine whether a carrier is
illegally using a driver who has failed a drug test. Four states already have
some form of database of drivers’ past positive drug tests, though
implementation varies by state (see app. III).52
A national database would enhance FMCSA’s ability to identify drivers
who engage in job-hopping, and ensure compliance with return-to duty
requirements. Since there is currently no effective way to identify jobhoppers, a national database would make positive test information more
readily available to carriers and to FMCSA for use in its initiative targeted
at carriers that employ job-hoppers and job-hoppers themselves. A
national database would also likely encourage drivers to go through the
return-to-duty process in order to continue working in the trucking
industry. However, a database would not be effective at stopping all jobhopping because not all carriers will report to or query the database,
particularly if they are not complying with drug testing regulations or do
not have a drug testing program in place. In addition, a database would not
necessarily address the problem of self-employed owner-operators who
test positive and fail to remove themselves from service, and fail to
complete the return-to-duty process.
Stakeholders generally support a national database, which FMCSA is
considering, but several challenges would need to be addressed. Many
stakeholders, including carriers, industry associations, and one union with
whom we spoke are supportive of a database, particularly if privacy
concerns and drivers’ rights are adequately addressed. Some of these
stakeholders said a national database could affect drivers’ rights if results
are reported by unauthorized entities, if unauthorized persons gain access
to the information, if drivers are unable to clear inaccurate reports from
their records, or if drivers are unable to have return-to-duty completion
information posted to their records.

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

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Other challenges to implementing this option include the following:
•

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

•

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

•

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

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

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

CDL Suspension

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

54
CDLs are issued by state licensing agencies and their issuance must adhere to minimum
federal CDL licensing requirements as stipulated in the Motor Carrier Safety Improvement
Act of 1999.
55

North Carolina and Washington already require disqualification of a driver’s CDL
following a positive or refusal-to-test result on a drug test, though implementation differs in
each state. California revokes special driver certificates for school bus and paratransit
drivers following a positive or refusal-to-test result on a drug test. See appendix III for
more information.
56
CDLIS is operated by the American Association of Motor Vehicle Administrators’s
subsidiary AAMVAnet , and facilitates the exchange of commercial driver information
among states and the District of Columbia. CDLIS contains identification information on all
commercial drivers, including an individual’s state of record for a commercial driver’s
license. Since information would be processed through FMCSA and then sent to state
licensing agencies via CDLIS, there would be a delay in suspending the driver’s CDL after a
positive or refusal-to-test result. Paperwork access issues could also result, delaying
suspension or delaying hearings for individuals who dispute the suspension, especially if
electronic document submission is not used.

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thereafter. In doing so, they would identify drivers with disqualified CDLs
due to a positive or refusal-to-test result.
We consider this option to be even more effective in keeping drivers who
test positive or refuse to test off the road, because its success does not
depend on full compliance by carriers in reporting drug test results or
following drug testing regulations. Most results would likely be submitted
by medical review officers, and the CDL suspension would affect drivers
even if their current or potential employer is not in compliance with the
regulations. In addition, a CDL suspension would affect both job-hoppers
and self-employed owner-operators that are participating in a drug testing
program. Many stakeholders with whom we spoke said this option would
better address job-hopper and owner-operator issues than a national
database. Carriers would know whether drivers are eligible to drive based
on drug test history when making inquiries into driving records, already
required by regulations. Also, owner-operators whose CDL is suspended
following a positive or refusal-to-test could lose their insurance.57 The CDL
suspension would provide incentive for drivers to go through the returnto-duty process in order to have their CDL reinstated.
Using a national database to send information on positive drug tests to
state licensing agencies would have some advantages over having medical
review officers or carriers report directly to each state licensing agency.
For example, using a national database would ensure that the legitimacy
of those who report information on positive drug tests is verified, such as
ensuring that medical review officers reporting information are actually
licensed physicians. If the option were to be implemented through direct
reporting to each state, ensuring consistent verification efforts would be
difficult. Furthermore, a single database would make reporting
information easier for medical review officers or carriers compared with
having to report to each state licensing agency.
Implementing the CDL-suspension option presents a number of
challenges. This option would require congressional action to either
require or encourage states to suspend CDLs based on DOT drug test
results, as well as adoption and implementation by each state, which could
take several years. Stakeholders cited the following challenges and issues:

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

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•

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

•

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

•

States would have to create or change their licensing procedures through
legislation in order to suspend CDLs based on the results of DOT-regulated
drug tests. Enacting legislation could be difficult and time-consuming and
would occur at different times in different states, resulting in some states
beginning to suspend CDLs later than others.
Issues that affect the potential effectiveness and feasibility of the CDL
suspension are similar to those for a national database in terms of
reporting, the length of time information is maintained, and how
inaccurate information is corrected, but also include determining how
drivers’ CDLs would be reinstated. See appendix IV for a detailed
description of these issues.

Conclusions

While drug testing in the motor carrier industry has been successful at
identifying many drug users for nearly 20 years, the problems described in
this report suggest that the potential exists for many drug users to avoid

58

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

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detection and continue to operate a commercial motor vehicle. Given the
enormity and fluidity of the motor carrier industry and the extent of
FMCSA’s oversight resources, establishing a drug testing program that
approaches 100 percent reliability in testing all drivers and identifying
drivers who have been using illegal drugs—and keeping them off the road
until they have complied with return-to-duty requirements—are unrealistic
expectations. However, this report has described a wide range of options
that can be considered to make incremental improvements in the ability of
FMCSA’s drug testing program to keep drivers using drugs off the road. In
our view, a comprehensive approach that encompasses several of the
identified options is needed to effectively address the problems we
identified, to re-establish the importance of the program throughout the
industry, and to reassert the federal government’s interest in ensuring
compliance with drug testing programs.
ODAPC and FMCSA have both recently initiated a number of actions that are
intended to address challenges to the drug testing program in the motor
carrier industry. These actions, such as sharing information on compliance of
service agents across modal administrations, taking steps to strengthen the
new-entrant safety audit and the public interest exclusion process, and
beginning a rule-making process to establish a national database, among
others, all hold promise to improve the effectiveness of drug testing
programs. However, several of these actions are only just beginning, and
FMCSA may not have the authority it needs to pursue some of the options we
identified as potentially having the most impact and the greatest feasibility.
For example, while FMCSA has a rule-making process under way to improve
the enforcement of safety audits for new entrants and has plans to initiate a
rule-making process to implement a national database, these actions have yet
to come to fruition, and FMCSA may have to seek additional authority to
ensure service agents report to a database. FMCSA’s rule-making process will
also need to consider driver protections and a process by which information
can be corrected or removed. Furthermore, the national database could serve
as the information foundation for enforcing suspension of a CDL—a direct
way to address issues surrounding poor compliance by carriers, as well as
inherent problems with self-employed drivers who test positive but continue
to drive—but requiring CDL suspension is beyond FMCSA’s authority.
Moreover, while ODAPC and FMCSA are working on ways to improve
identification of service agent noncompliance, FMCSA does not have
authority to levy fines against service agents for noncompliance with DOT
requirements.
While actions that improve compliance with DOT protocols by carriers
and service agents would have some impact on ensuring that more drivers

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are in drug testing programs and reducing the opportunities individuals
have to defraud a drug test, cheating on a drug test will still be possible.
All options to reduce opportunities to cheat face feasibility issues. For
example, while the testing of hair or oral fluid specimens, which can be
collected by direct observation, may reduce the ability to subvert drug
tests, additional scientific study and a rule-making process by SAMHSA
are required; even then, products designed to mask the presence of drugs
in specimens already exist and are likely to proliferate. A federal ban on
subversion products also faces challenges in that it would be difficult to
enforce and may not have a significant deterrent effect. However, a federal
ban on subversion products would have advantages. Not only would a ban
have wide support within the industry, but it also would reassert the
federal government’s interest in ensuring compliance with its drug testing
programs and allow for prosecution in any state.
Any of these options for improving FMCSA’s drug testing program would
require either additional resources or a transfer of resources funding other
initiatives that also work to improve road safety. Taking steps to improve
the program needs to be considered in the context of other programs that
also work to achieve safety advancement, such as ensuring drivers are
complying with hours of service regulations and that vehicles are
maintained and inspected.

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

Matters for
Congressional
Consideration
•

adopting legislation to ban subversion products, and

•

providing FMCSA with the ability to exert oversight and enforcement
authority over service agents involved in the DOT drug testing process—
which would enable DOT to address issues related to requiring service
agents to report drug testing information to FMCSA’s national database
and levying civil penalties on service agents that are not in compliance
with DOT drug testing regulations.
In addition, Congress should consider taking action to encourage or compel
states to use the national database to take action to suspend the CDL of
drivers who have tested positive or refused to take a DOT drug test.

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Recommendations for
Executive Action

Agency Comments

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

•

improve the enforcement of safety audits for new entrants, and

•

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

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

As agreed with your offices, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days from the
report date. At that time, we will send copies to appropriate congressional
committees and to the Secretary and other appropriate DOT and HHS
officials. We will also make copies available to others upon request. In
addition, the report will be available at no charge on the GAO Web site at
http://www.gao.gov.
If you or your staffs have any questions about this report, please contact
me at (202) 512-2834 or [email protected]. Contact points for Offices of
Congressional Relations and Public Affairs may be found on the last page
of this report. GAO staff who made major contributions to this report are
listed in appendix V.

Katherine A. Siggerud
Director, Physical Infrastructure Issues

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Appendix I: Scope and Methodology

Appendix I: Scope and Methodology

To determine the factors that contribute to the challenges of ensuring all
drivers are in a drug testing program, limiting drivers’ ability to subvert a
drug test, and keeping drivers off the road once they are found to test
positive, we reviewed Department of Transportation (DOT) and Federal
Motor Carrier Safety Administration (FMCSA) regulations, policies, and
reports and conducted interviews with individuals from FMCSA and DOT’s
Office of Drug and Alcohol Policy and Compliance (ODAPC) and the
Department of Health and Human Services’ (HHS) Substance Abuse and
Mental Health Services Administration (SAMHSA) to understand the drug
testing process and how carrier compliance with drug testing regulations
is evaluated and to identify the factors that contribute to the challenges
faced by FMCSA. We also interviewed officials from FMCSA and its state
partners that conduct compliance reviews and new-entrant safety audits to
understand what information related to the drug testing requirements is
covered during these activities and how violations with drug testing
requirements are uncovered.
We analyzed data on the results of compliance reviews and safety audits
conducted by FMCSA and its state partners, as well as data on
enforcement activities, to determine industry compliance with drug testing
requirements and to capture the most frequently violated regulations
related to drug testing and associated enforcement actions. We conducted
semistructured interviews with representatives from 10 motor carriers,
including large and small carriers and an owner-operator. We structured
the interviews to elicit the types of challenges that carriers face in
complying with the drug testing requirements and in ensuring that service
agents they use are also in compliance. In addition, two of the carriers we
met with conducted on-site collections of urine specimens. We
interviewed motor carrier industry associations representing many
segments of the motor coach and trucking industry, such as the American
Trucking Association, the Owner-Operator Independent Drivers
Association, the American Bus Association, and the National Association
of Small Trucking Companies. We also interviewed officials from unions
representing truck and bus drivers and from a variety of associations
representing urine specimen collectors, medical review officers, substance
abuse professionals, consortiums/third-party administrators, and others
involved in the drug testing industry. We also interviewed representatives
from one of the largest laboratories involved in the DOT drug testing
industry. During these meetings, we discussed the factors that contribute
to the difficulties of implementing an effective drug testing program. We
interviewed service agents that conduct various combinations of
background checks, collections, laboratory, and counseling activities, as
well as an insurance entity specializing in motor carrier coverage, to

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Appendix I: Scope and Methodology

understand the intricacies, similarities, and differences of the causal
factors limiting the effectiveness of detecting drivers who drive while
impaired.
In addition, we observed FMCSA oversight activities, including four
compliance reviews and two new-entrant safety audits in California, North
Carolina, Oregon, and Virginia. We selected states in which to observe
compliance reviews and new-entrant safety audits on the basis of the
availability of ongoing oversight activities, and well as our visits to states
that adopted laws requiring the reporting of positive DOT-regulated drug
tests and refusals-to-test. These oversight activities were conducted by
either FMCSA investigators; FMCSA’s state partners, such as state or local
law enforcement; or Consolidated Safety Services, to which FMCSA
contracts new-entrant safety audits.
Also, we conducted semistructured interviews with officials from the state
licensing agencies of the states that have adopted laws requiring the
reporting of positive DOT-regulated drug tests and refusals-to-tests
including Arkansas, New Mexico, North Carolina, Oregon, Texas, and
Washington, to understand the issues considered in creating the reporting
requirement and to determine how the reporting requirement was
implemented to gather information on costs and effectiveness. We
discussed how information is currently shared between states and how a
national reporting requirement could work. We also interviewed officials
from a state Attorney General’s Office of a state that adopted a law
banning adulterants and substances to subvert a drug test to determine the
issues associated with such a law, including costs, and the law’s
effectiveness.
We used the results from our Forensic Audits and Special Investigations
(FSI) team, which tested compliance with protocols of collection sites in
three metropolitan areas selected for the large number of truck drivers
residing in those areas, as well as Washington, D.C. Our undercover
investigators posed as commercial truck drivers who needed a DOT drug
test and, in some cases, tested whether they could successfully adulterate
or substitute the specimens. They conducted their investigation from May
to September 2007 in accordance with standards prescribed by the
President’s Council on Integrity and Efficiency.
To identify the options that have been suggested as possible ways to
address problems in FMCSA’s current drug testing program, we reviewed
several reports, articles, and other published information on options to
address challenges faced in drug testing. For example, we reviewed

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Appendix I: Scope and Methodology

FMCSA’s 2004 Report to Congress on the feasibility of creating a national
database of drug test information. We also interviewed officials from DOT
and FMCSA, industry experts, representatives from motor carriers,
industry associations, and other stakeholders to identify options and
understand the issues associated with each option. For example, in
interviews with FMCSA and other stakeholders, we discussed various
ways to improve compliance with drug testing requirements by both
carriers and service agents and gauged the level of support such options
garnered.
We also interviewed officials involved in the drug testing programs at
other DOT modal administrations, including the Federal Aviation
Administration, the Federal Transit Administration, and the Federal
Railroad Administration to gather information on whether these problems
are common across the administrations, how problems are addressed by
the other administrations, and how issues and circumstances in the other
modal administrations can or cannot be compared with FMCSA’s
experience. For example, we gathered information on whether and how
other administrations oversee service agents. Then, we compared and
contrasted this information with FMCSA’s current oversight approach in
order to understand other ways of addressing challenges and to develop
other options.
We also interviewed representatives from American Association of Motor
Vehicle Administrators, which monitors the Commercial Driver’s License
Information System (CDLIS), in order to find out the capabilities and
challenges of the system and whether it could be used to send information
about the results of DOT drug tests. In addition, we interviewed
representatives from companies who specialize in gathering background
information for carriers and other various interested parties to determine
how easy it was to obtain privacy information, such as positive drug tests,
on individuals and how they kept the information private after they
obtained it.
In the course of our interviews and analyses, we identified many options
that have been suggested as possible ways to address problems or weak
points in the current drug testing program. We assessed the various
options for their likely effectiveness in addressing the particular problem
they were designed to address and their feasibility from the standpoint of
cost, support, and amount of effort involved in implementing them. Our
assessments were based on (1) analyzing and synthesizing the views of the
various government officials and industry stakeholders we interviewed
with regard to their estimations of the potential effectiveness and

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Appendix I: Scope and Methodology

feasibility of pursuing various options; (2) reviewing studies that have
been conducted regarding the feasibility of certain options; (3) analyzing
cost and other data, where available; and (4) analyzing the experience of
other modal administrations or other entities in implementing various
options, where applicable. Inherently, there are certain limitations and
variances in the quality of data and information available about certain
options. Therefore, we used a certain amount of professional judgment in
comparing options relative to one another. The agencies and other
stakeholders we included in our interviews are listed in table 5; however,
we did not include the names of the carriers or service agents with whom
we met. We determined that the data used in this report are sufficiently
reliable for our purposes.
We conducted this performance audit from June 2007 to May 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain sufficient,
appropriate evidence to provide a reasonable basis for our findings and
conclusions based on our audit objectives. We believe that the evidence
obtained provides a reasonable basis for our findings and conclusions
based on our audit objectives.
Table 5: List of Federal Agencies, State Agencies, and Industry Associations
Interviewed
DOT
Federal Motor Carrier Safety Administration
Federal Aviation Administration
Federal Railroad Administration
Federal Transit Administration
Office of Drug and Alcohol Policy and Compliance
HHS
Substance Abuse and Mental Health Services Administration
State agencies
Arkansas Department of Licensing
California Highway Patrol
California State FMCSA
North Carolina Attorney General
North Carolina State FMCSA
North Carolina Department of Motor Vehicles
North Carolina State Highway Patrol
New Mexico Motor Vehicle Division

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Appendix I: Scope and Methodology

Oregon Driver and Motor Vehicle Services
Oregon State Police
FMCSA—Oregon Division
Texas Highway Patrol, Commercial Motor Vehicle Enforcement
Washington Department of Licensing
Washington State Patrol Division
Washington State FMCSA
Industry associations
American Association of Motor Vehicle Administrators
American Bus Association
American Federation of Labor and Congress of Industrial Organizations
American Trucking Association
National Association of Small Trucking Companies
North Carolina Trucking Association
Owner-Operator Independent Drivers Association
United Motorcoach Association
Drug testing industry associations
American Association of Medical Review Officers
American College of Occupational and Environmental Medicine
American Substance Abuse Professionals
Drug and Alcohol Testing Industry Association
Medical Review Officer Certification Council
Substance Abuse Program Administrators Association
Source: GAO.

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

Appendix II: Oversight of Drug Testing
Programs by Selected DOT Administrations
In addition to FMCSA, other DOT administrations, including the Federal
Aviation Administration (FAA), Federal Railroad Administration (FRA),
and Federal Transit Administration (FTA), oversee safety regulations,
including drug testing, in the aviation, railroad, and transit industries,
respectively.1 Table 6 provides a comparison of each administration’s
oversight of compliance with drug testing regulations by both its carriers
and service agents. Each of these administrations, except FMCSA,
conducts oversight of the majority of its industry either through reviews
that cover all safety requirements or reviews that specifically cover the
drug and alcohol testing requirements. By contrast, FMCSA has the largest
and most fluid industry to oversee and is not able to visit the majority of
its industry. In addition, each of these administrations, except FMCSA,
conducts consistent oversight of service agents, including collection sites,
medical review officers, third-party administrators, and substance abuse
professionals.2 While the oversight of service agents is intended to cover
service agents used by the employers and operators each administration
regulates, these service agents may also be used by FMCSA-regulated
carriers. For example, FAA, FRA, and FTA conduct oversight of collection
sites by checking qualification documentation for collectors and
conducting mock collections to determine whether collections are done
according to protocols. In addition, if significant noncompliance is
discovered at a collection site through these methods, FTA covertly audits
collection sites. ODAPC officials told us that they fully support clandestine
inspections and audits by all DOT agencies and are developing a training
course for clandestine inspections.

1

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

2

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

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

Table 6: DOT Administration Oversight of Drug Testing Programs

DOT
administration
FAA

Size of industry
6,784 carriers;
444,344 safetysensitive
employees.

Number of
inspectors
50.

Portion of
industry
covered

Oversight of
industry drug
testing
programs

Large carriers are Drug testingvisited once every specific
12-18 months,
inspections.
and smaller
carriers every
couple of years.
Some smaller
carriers may have
never been
visited.
Conducted 1,263
drug testingspecific
inspections in
fiscal year 2007.

FMCSA

724,000 carriers;
5 million CDL
holders.

1,357 total
auditors,
including 50
federal auditors,
277 federal
investigators, 51
federal border
investigators, 440
state safety
auditors, 513
state
investigators, and
26 contractors.
The majority of
the 953 state
personnel do not
conduct oversight
on a fulltime
basis.

Page 52

Small portion of
the industry is
covered by
compliance
reviews; new
carriers since
2003 have
received a safety
audit.

Safety audits of
new entrants and
compliance
reviews include
drug testing
program review.

Oversight of
service agents

Enforcement
authority

Service agents
used by carriers
are audited as
part of the
carriers’ drug
testing-specific
inspections; FAA
also conducts
service agentspecific
inspections after
complaints or
during
investigations of
positive tests.

Enforcement
authority over
carriers, but not
service agents;
can initiate public
interest
exclusions
against service
agents.

Audits service
agents after
complaints.
FMCSA is
currently testing a
service agentspecific review.

Enforcement
authority over
carriers but not
service agents;
can initiate public
interest
exclusions
against service
agents.

Conducted about
15,000
compliance
reviews and
37,000 safety
audits in 2007.

GAO-08-600 Motor Carrier Safety

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

DOT
administration
FRA

Size of industry

Number of
inspectors

650 railroad
companies;
150,000 safetysensitive
employees.

150 (2 full time,
148 who spend
only a portion of
their time in this
function).

Portion of
industry
covered
Audits all large
and medium
carriers every
3 years. Audits
small carriers
once every
4 years.a

Oversight of
industry drug
testing
programs

Oversight of
service agents

Drug testing
Service agents
program reviews. used by the
carrier are
audited as part of
the carriers’ audit.

Enforcement
authority over
carriers and
service agents;
can initiate public
interest
exclusions
against service
agents and has
warned carriers
that continued
noncompliance
can result in civil
penalties.

Triennial reviews
that include drug
testing program
review, as well as
drug testingspecific audits.

Ability to suspend
funds to grantees,
but not service
agents; can
initiate public
interest
exclusions
against service
agents.

Conducts about
150 audits per
year.

FTA

2,100 grantees
and
subrecipients;
270,000 safetysensitive
employees.

30.b

Audits all
grantees through
triennial reviews.
Conducted about
24 drug testingspecific audit
events in 2007,
covering 99
grantees.

Enforcement
authority

Service agents
used by grantees
are audited as
part of drug
testing-specific
audits; service
agent-specific
audits
occasionally
conducted.

Source: GAO analysis of DOT administration information.
a

Some small carriers may only be subject to certain parts of FRA’s drug testing regulations.

b

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

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

Appendix III: States That Require Reporting
of DOT Drug Test Information
Several states already have a reporting requirement in place for positive
drug tests, and a few states also take action to suspend a commercial
driver’s license (CDL) in the event of a positive or refusal-to-test result on
a drug test. States have chosen different ways to address reporting issues,
access issues, and length of time information is maintained. Table 7 shows
information for the states that have created databases or make notations
on the motor vehicle record. Table 8 shows information for states that
have implemented a CDL suspension.
Table 7: States That Have Created Databases or Note the Motor Vehicle Record

State

Database

Who reports

Arkansas

Collects
drug and
alcohol test
positives
and
refusals-totest in
database.

Medical review
officers and
carriers.

New
Mexico

Once a
code is
created, will
record drug
test
positives on
motor
vehicle
record.

Medical review
officers; future
plans will require
carrier reporting
positives and
refusals.

Access to
information

Removal
from
database

Remains in
Employers can
database for
search
3 years.
database, and
are required to
have written
consent from the
driver.

Once
implemented,
employers have
access to this
information
through motor
vehicle records.

Page 54

No process
for removing
from motor
vehicle
record.

Cost

Status

Experiences

$75,000 for
database.
There is a $75
annual
registration fee
for access to
request
searches
electronically,
and an
additional
$2.50 per
electronic
record search.
Records
requested by
paper are $1
per record
search and do
not require
registration.

Between January
2008 and March
2008, 83 positive
drug tests, and 5
refusals-to-test
for drugs have
been reported. In
that same time
frame, there
have been 1,890
requests for
information, 25 of
which revealed
that the driver
had a positive
result.

Reporting
became
effective in
January 2008.

Undetermined,
but minimal
costs may be
incurred.

No positive tests
reported.

In Arkansas,
there are
135,990 CDL
holders.
Reporting
became
effective in June
In New Mexico,
there are 60,000- 2007. New
Mexico does not
70,000 CDL
currently have
holders.
method for
informing
medical review
officers of
requirement to
report.

GAO-08-600 Motor Carrier Safety

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

Access to
information

State

Database

Who reports

Oregon

Records
drug test
positives on
motor
vehicle
record;
future plans
include
adding drug
test
refusals.

Medical review
officers; future
plans include
changing reporter
to carrier.

Texas

Collects
drug and
alcohol test
positives
and
refusals-totest in
database.

Carrier required
Employers can
to report; medical search
review officers
database.
and third-party
administrators
may also report.

Employers can
request drug test
information
through motor
vehicle record
request.

Removal
from
database

Cost

Status

Remains on
driver’s
record for 5
years.

One-quarter of
a full-time
employee’s
time; no
database
development
costs since
they are using
an existing
database.

1,472 positive
tests posted to
motor vehicle
record between
2002-2007, 52
positive tests in
first 3 months of
2008. 100-300
carriers request
drug test results
each year.

Remain in
database
indefinitely.

4-5 employees. Over 11,000 CDL
holders in
database. In
2006, there were
21,337 requests
for information; in
2007, there were
27,863; and in
January -April
2008, there were
12,921.

Experiences

Reporting
became
effective in
1999.
Nonreporting by
medical review
officers is
common
because they
may not be
aware of
In Oregon, there requirement, or
are 141,000 CDL if out of state, do
not believe it
holders.
applies to them.
Employers may
not query the
database
because
program has not
been well
publicized and
querying is not
required.
Reporting
became
effective in
2001. Low
reporting from
carriers.

Source: GAO analysis of state information.

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

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

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

Who
reports

Access to
information

CDL
reinstatement

Cost

Effectiveness

Experiences

California

No effect on
CDL; revokes
special driver
certificate for
school bus
drivers, paratransit drivers,
etc., for
positive drug
tests or
refusals-totest.

Carrier.

Employers
have access
to CDL
information
through motor
vehicle
records—but
personal drug
test
information not
connected to
CDL.

Certificate
revoked for 3
years or until
driver completes
return-to-duty
process.

$443 for
handling 32
cases.

No effect on CDL,
only certificate. In
2007, 32 special
driver certificates
revoked.

Reporting
became effective
in 2005. Since
1995, third-party
administrators
have been
required to
submit summary
reports to
Highway Patrol
on positive
results, but
action is not
taken based on
these reports.

North
Carolina

Disqualifies
CDL for drug
or alcohol test
positive or
refusal-to-test.

Carrier;
there are
plans to
have both
carriers
and
medical
review
officers
report.a

Employers
have access
to CDL
information
through motor
vehicle
records.

To end CDL
disqualification
DMV must
receive letter of
completion from a
substance abuse
professional.
Disqualification
history stays in
record for 2 years
from date of
substance abuse
professional
letter. Plans to
increase to 3
years.

Estimation of
$50,000 in
one-time
costs, about
half of a fulltime
employee’s
time. Future
upgrades
include
$153,000 in
one-time
costs.

As of April 2008
there were 735
positive tests
reported; 512
current active CDL
disqualifications.

State

Page 56

Reporting
became effective
in 2005. Since all
carriers may not
be reporting,
there are plans
In North Carolina, to include
there were 325,158 medical review
CDL holders, as of officer reporting
in the future.
October 2007.
Plan to increase
education about
requirement to
report. Carrier
and substance
abuse
professional
submissions are
not verified,
though personal
information and
drug test results
contained in the
report helps to
ensure accuracy
and legitimacy.

GAO-08-600 Motor Carrier Safety

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

State
Washington

CDL
suspension

Who
reports

Access to
information

CDL
reinstatement

Disqualifies
CDL for drug
or alcohol test
positive or
refusal-to-test.

Carrier
and
medical
review
officer.b

Employers
have access
to CDL
information
through motor
vehicle
records.

More than 2-3
CDL can be
part-time
reinstated after
substance abuse employees.
professional
provides
information that
the driver has
begun education
or treatment, but
record of
suspension
remains on motor
vehicle record for
15 years.

Cost

Effectiveness

Experiences

Between 20022007, 4,100 CDLs
were disqualified.

Reporting
became effective
in 2002. Medical
review officer
and substance
abuse
professional
submissions are
not verified,
though medical
review officers
and substance
abuse
professionals are
required to affirm
compliance with
Part 40. There is
underreporting
by medical
review officers
and carriers.

In Washington,
there are
approximately
357,000 CDL
holders.

Source: GAO analysis of state information.
a

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

b

In Washington, breath alcohol technicians are required to report positive alcohol tests, and refusalsto-test for alcohol.

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

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

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

Reporting to a National
Database

Information that would be reported to the database includes, at a
minimum, positive drug and alcohol test results, refusals-to-test for both
drug and alcohol tests, and information regarding whether a driver has
gone through a return-to-duty process, along with identifying information
on the drivers and their employers. No single entity involved in the drug
testing process has access to all of this information in all cases, and,
therefore, a number of entities may need to be involved in reporting
information to the database for it to be comprehensive.
For positive drug tests and some refusals-to-test, medical review officers
appear to be in the best position to report, for several reasons. First, they
are responsible for medically verifying positive drug test results and the
refusals-to-test that have been confirmed by a laboratory as adulterated or
substituted and, therefore, are closest to drug test results and would have
information on positive drug test results for all drivers, including selfemployed owner-operators. While designated employer representatives
would also have this information for drivers employed by their carriers,
self-employed owner-operators would not be likely to report their own
positive drug test results. Furthermore, potential underreporting problems
exist with carriers resulting from noncompliance issues. In some states
that have required carriers to report, state officials reported
underreporting from carriers, and as previously discussed in this report,
carriers are often out of compliance in conducting background checks and
with drug testing regulations in general. There is little indication that
medical review officers have the same issues regarding compliance with
DOT regulations as carriers, and, therefore, reporting is likely to be more
complete with medical review officers as opposed to designated employer
representatives. FMCSA currently has little or no civil penalty authority
over medical review officers and does not conduct regular oversight over
them. This will impact its ability to enforce database reporting by these
service agents.
While medical review officers have knowledge about some refusals-to-test,
they do not have knowledge of others, such as when an employee fails to

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

show up at a collection site for a random test. These types of refusals
would be known only to the designated employer representative, or in the
case of self-employed owner-operators, these refusals would only be
known to the consortia/third-party administrators. Furthermore, medical
review officers do not verify positive alcohol tests, and, similarly, this
information would only be known to designated employer representatives
or third-party administrators. Therefore, for these refusals-to-test for drug
tests, and alcohol positives and refusals,1 the designated employer
representatives would need to report this information for drivers
employed by their carriers, and third-party administrators would need to
report for self-employed owner-operators. Including both positives and
refusals is an important component to the database since refusals-to-test
are treated the same as positive tests in the drug testing regulations.
Once a driver has tested positive or refused to test, a substance abuse
professional is required to guide the driver through the return-to-duty
process. As such, substance abuse professionals would have information
regarding when a driver has completed the recommended course of
education or treatment the substance abuse professional prescribed,
which indicates that the driver is eligible to drive following a negative
return-to-duty/pre-employment drug test. Similar to medical review
officers in reporting testing information, FMCSA currently has little or no
civil penalty authority over substance abuse professionals and does not
conduct regular oversight over them. This will impact its ability to enforce
database reporting by these service agents.
Carriers often terminate an employee after a positive drug test result. If
another carrier wishes to hire that employee after a negative return-to-duty
test, that employer would be responsible for ensuring that all follow-up
tests required by the substance abuse professional are completed. The
new employer could be required to report a negative return-to-duty test in
order for that notation to be made in the database, so that the database
indicates the driver is eligible to drive. While medical review officers are
required to review all laboratory drug test results, including positives,
negatives, and other nonnegatives, requiring medical review officers to
report information on the results of the return-to-duty process may not be
a viable option because they may not be aware that a return-to-duty test is
being taken and would not be aware of the number of follow-up tests

1

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

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

prescribed. Current regulations do not require substance abuse
professionals to verify and report successful completion of a negative
return-to-duty test or completion of all required follow-up tests.
Another issue that would need to be carefully considered is whether nonDOT tests would be appropriate to report to the database. For example,
some carriers conduct hair testing in addition to DOT-mandated urine
tests, which results in a higher number of positive drug tests. Moreover,
drug tests may be required by courts for other purposes, but carriers may
not be privy to that information. Some have argued that any positive drug
test is an indication that a driver should not be allowed to operate in
safety-sensitive duties and that carriers should have access to this
information. However, under current regulations, this would not appear to
be appropriate for several reasons. For results of hair or other types of
tests, there are no SAMHSA guidelines on testing protocols or on cutoff
levels for what constitutes a positive test, as there are for urine tests, and
therefore these tests are not a valid basis for removing a driver from
service under federal regulations. Drug tests required by courts or for
other purposes may not include procedures comparable to DOT’s
collection, laboratory analysis, and medical review procedures and,
therefore, would also not be valid under the regulations for removing a
driver from service.
As with any database, consideration would need to be given to how the
information would be reported, what type of documentation would be
required, and how entities reporting information to the database would be
verified as legitimate.
•

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

•

Documentation required to support the information entered into the
database—such as the Federal Drug Testing Custody and Control Form
(CCF),2 which includes identifying information on the driver, test

2

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

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

information, and verified test results,3 or information from substance
abuse professionals on drivers’ completion of prescribed treatment—
could be submitted electronically, could be mailed or faxed to FMCSA, or
could be retained by the reporting entities as is currently required under
DOT regulations. FMCSA could review documentation for all submitted
information before it is released into the database or could conduct
regular audits of entities reporting information to the database to ensure
compliance with documentation requirements.
•

Prior to gaining access to the database, entities would need to be verified
as legitimate submitters of drug test results.4 To do so, basic identification
information would need to be required from all potential reporting entities,
which could include practitioner license numbers for medical review
officers and substance abuse professionals, DOT numbers for carriers, and
affirmations that reporting entities meet the requirements of the drug
testing regulations.
In order for drivers to be fully aware that their drug test results are in a
database and what measures are available to them to challenge
information or be removed, consideration may need to be given to
whether reporters should be required to (1) notify drivers that their
information is being reported to the database and (2) provide drivers with
information on how they can challenge the accuracy of the information or
specific steps they need to take to have their status in the database
changed or their name removed from the database.

3
A change to the CCF to include the driver’s state of CDL licensure and CDL number would
effectively identify the driver when a query is received. Inclusion of the DOT number of the
carrier on the CCF would also allow FMCSA to follow up with carriers who have high
incidences of positive drivers. FMCSA has indicated that it would prefer the CCF to be
updated to include the DOT number. Any change would require action by HHS to amend its
form. If these changes are not possible, an accompanying cover sheet to the CCF with this
information could be used. This cover sheet could include identifying information for the
driver, including name, CDL number, CDL state, name of employer, employer’s address,
and employer’s DOT number.
4

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

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

Accessing Information from a
National Database

The primary purpose of the database is for carriers to query to find out
whether an applicant had previously tested positive for drugs or refused to
take a DOT drug test and whether the applicant is eligible to participate in
safety-sensitive duties, given the difficulties in getting this information
through current background-check requirements and driver disclosure. To
accomplish this, carriers would need to be required to query the database
prior to hiring a new driver, which would require a rule-making process to
change the regulations. This would then obviate the requirement for
carriers to conduct background checks related to drug testing through
inquiries to previous employers; however, the database would need to be
in place for a minimum of 3 years before the change could be made, in
order for the same extent of information to be made available to carriers.5
Since some carriers outsource their background checks, some third-party
administrators may potentially also need access to query the database to
fulfill this requirement. Similar to verifying and registering the reporters of
drug test information, carriers and third-party administrators would also
need to register with FMCSA to verify their legitimacy to access the
database and affirm legitimate use of the database.6 Carriers and thirdparty administrators would then query the database before hiring a new
employee, using identifying information, such as a driver’s CDL number
and state of licensure. The automated query response to the carrier would
include information such as past positive and refusal test information,
information on completion of prescribed treatment, and information on
completion of return-to-duty and follow-up testing, if that information is
maintained in the database.
To ensure that drivers have given their permission to search the database
for their drug test history, carriers would need to obtain permission from a
driver to query the database for a driver’s drug test history, similar to
current background-check requirements. Since it is not practical for
FMCSA to review documentation on release of information prior to every
query, with each query, carriers and third-party administrators would need
to affirm they have obtained permission from the driver and would need to
retain a signed, written release of information in their files. This release

5
Currently, carriers are required to check with a prospective employee’s previous DOTregulated employers regarding past drug test history, covering the previous 3 years. The
database would not have this historical information until it was in place for 3 years.
6

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

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

could be subject to audit during compliance reviews or as part of specific
audits of database usage.
Careful consideration may also need to be given to whether any additional
entities should have access to the database, either now or in the future.
Some have proposed that drivers have access to their own records, in
order to be aware of information that may be used against them in hiring
decisions. However, verification and registration of potentially millions of
individual drivers, and ensuring that their access is restricted to their own
records, may be difficult to achieve. In order to address concerns about
drivers’ access to their own information in the database, when a driver is
reported to the database, the reporter could be required to inform the
driver, and when a driver is denied employment because of information in
the database, the carrier could be required to inform the driver.
Other access issues that may need consideration include whether law
enforcement officials should be able to query the database and how they
may use the information in the database. FMCSA plans to make the
database available to law enforcement officials during roadside
inspections in order to target carriers that may employ drivers that have
tested positive and have not gone through the return-to-duty process.
However, it is not clear what actions an officer can take during a roadside
inspection against a driver who is in the database and has not gone
through a return-to-duty process—for example, whether an officer can or
should take the driver out of service for not complying with DOT
regulations, even if the driver is not currently impaired.

Length of Time Drivers Remain
in the Database

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

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National Database and Commercial Driver’s
License Suspension Requirement

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

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

•

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

•

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

•

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

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

Refuting Inaccurate
Information in the Database

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

CDL Suspension

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

Reporting to State Licensing
Agencies

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

Accessing Information from
State Licensing Agencies

•

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

•

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

•

Entities could report directly to FMCSA through a national database.
FMCSA would verify the information and then transfer it to the state of
licensure through CDLIS. This option builds on the national database that
FMCSA is planning and allows FMCSA to review and verify information
before state licensing agencies suspend the CDL.
After receiving information on positives and refusals, the state licensing
agency of the CDL holder, using the CDL number and CDL state to identify

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GAO-08-600 Motor Carrier Safety

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

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

Length of Time Driver’s CDL Is
Suspended

States that currently have CDL suspensions have different policies about
reinstating licenses and removing records after a certain period of time, as
shown in appendix III. In Washington state, a substance abuse
professional must present information that drivers have begun treatment
or education for drivers to have their license reinstated. Reinstatement of
the CDL does not indicate that drivers are necessarily eligible to return to
duty. Washington sends a reinstatement letter to drivers stating that
reinstatement does not release the drivers to return to duty and that the
drivers must check with their employer. After licenses are reinstated in
Washington, the motor vehicle record retains the license suspension
information and the reason for the suspension for as long as information is
retained by the licensing agency. In North Carolina, as part of getting their
license reinstated, drivers need to present a letter from a substance abuse
professional stating that initial treatment is complete and they are eligible
for a return-to-duty test. After the licensing agency receives the letter in
North Carolina, the motor vehicle record retains the information that the
license was disqualified and the reason for its disqualification for 2 years.
Consideration may be warranted for whether there should be a single
standard for how a CDL is reinstated and the length of time a driver’s
motor vehicle record retains information of a positive drug test. The issues
are similar to those discussed previously regarding record retention and
removal from a national database. However, although CDLs should not be
reinstated prior to completion of the prescribed education or treatment
program when a driver is eligible to take a return-to-duty or preemployment test, drivers will need a valid CDL to seek new employment if
they have been fired. CDLs should therefore be able to be reinstated prior
to completion of return-to-duty and follow-up tests with notations in the
motor vehicle record that inform employers of the need to consult with
the driver’s substance abuse professional for further information on
follow-up testing. If a driver does not go through a return-to-duty process,
suspension could remain in effect and on the motor vehicle record for a
period of 3 years, 5 years, or indefinitely.

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GAO-08-600 Motor Carrier Safety

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

Refuting Inaccurate
Information Leading to a CDL
Suspension

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

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GAO-08-600 Motor Carrier Safety

Appendix V: GAO Contact and Staff
Acknowledgments

Appendix V: GAO Contact and Staff
Acknowledgments
GAO Contact

Katherine A. Siggerud, (202) 512-2834 or [email protected]

Staff
Acknowledgments

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

(542125)

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GAO-08-600 Motor Carrier Safety

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