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Opinion: One loophole closed, another in need of it

Dec. 12, 2022
FMCSA fixed one reporting gap in the Drug & Alcohol Clearinghouse, but acceptance of hair-follicle testing remains a glaring omission of the clearinghouse.

Everyone knows what a loophole is—well in varying degrees and, no, I am not talking about sitting down with a child teaching them to tie their shoes. A loophole, to a certain extent, for the purpose of this column or the trucking life, refers to a gap of sorts, a mistake or omission that may not have been considered when designing an original regulation. It can be both good and bad depending on one’s point of view, but often, when identified, the fix is generally slow moving.

That said, I have often heard about and even spoken about the loophole that exists within the Federal Motor Carrier Safety Administration’s Drug & Alcohol Clearinghouse, and until recently, I hadn’t encountered the actual event in which the loophole was referring.

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In short, a compliant carrier (one could even say “beyond compliant” since it incorporates hair testing into its drug-testing program) had a driver whose queries to the clearinghouse continually showed that the driver was not prohibited from operating—until one day, when the driver had gotten into an accident, an incident in which he was rear-ended by another vehicle at a stop light.

The carrier had submitted a Request for Data Review for the purpose of determining preventability, and the response was one that was not expected. The accident was deemed preventable due to the driver operating in prohibited status, a condition in which the carrier, as compliant as they come, had zero possible clue that this had happened.

Here is where the loophole comes into play. A previous drug test had been performed by another carrier prior to the driver obtaining his CDL. While employed with the current carrier, however, the driver’s drug test results and his record had not yet been added to the clearinghouse. When the test results finally did catch up and were recorded, after several queries, the carrier had not been informed of the change. In short, the only way the carrier could have known and prevented this from happening was by submitting a daily query, a practice that would be time-consuming and expensive. The only thing the carrier would be guilty of is extreme compliance.

Now for the good news. The loophole has been closed. The agency has said that effective Oct. 14, carriers will be notified of a change to the record in the clearinghouse, thus calling for a new query to discover the change. This change incorporates a type of “push” program mentality that is needed for an industry that is constantly required to “pull” the information from databases. While I would have hoped that the above-mentioned story had a happy ending—and the decision regarding the accident preventability had changed—unfortunately, I can’t say that, but this situation should be remedied in the future for the entire industry to avoid this problem.

See also: A primer on trucking issues from an industry heavyweight

I think we can all agree that the clearinghouse is a much-needed tool to make our industry safer—and continuously improving upon that program will make it better. With that in mind, the next step that should happen in the evolution of the clearinghouse is incorporating the results of hair testing to the database. There is no room for drug and alcohol use on our nation’s roadways, and until the results of every possible test employed within the industry are uploaded to the clearinghouse, it shouldn’t be seen as complete.

A recent survey of seven large trucking companies stated that more than 88,000 drivers applied for jobs as professional truck drivers with their companies. These carriers submitted 88,021 prospective drivers, to be exact, to both hair and urine testing. The results simply speak for themselves: 403 tested positive after urinalysis, while 4,362 tested positive after hair-follicle screening. These are interesting numbers, to say the least, and results that one would think would push regulators to allow hair-testing results into the clearinghouse. Unfortunately, that’s not the case. Over 4,300 drivers are circumventing the process and potentially finding carriers that don’t test hair, creating yet another loophole that our industry must constantly endure.

As an association and industry, we cannot advocate noncompliance, but what if it is the regulators themselves who are impeding the ability to be compliant? Hair testing is an alternative compliance measure, one that at least seven large commercial carriers have demonstrated truly works. In knowing that, regulators must continue to examine the original model for changes and improvements that would close every loophole and advance the industry’s goal of reaching zero accidents.

David Heller is the senior vice president of safety and government affairs at the Truckload Carriers Association. Heller has worked for TCA since 2005, initially as director of safety and most recently as the SVP of safety and government affairs.

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