August 22, 2003
Docket Management System
U.S. Department of Transportation
Room Plaza 401
400 7th Street, SW
Washington, DC 20590
FMCSA – 97 - 2277
This is to submit comments on the July 17, 2003 Federal Motor Carrier Safety Administration’s (FMCSA) supplemental notice of proposed rulemaking concerning safety performance history of new drivers. DATIA has identified numerous implementation problems with the proposed rule that we would like to present to the FMCSA.
The Drug and Alcohol Testing Industry Association (DATIA) is an 1,100-member national trade association representing the full spectrum of drug and alcohol testing service agents including laboratories, collection sites, C/TPAs, BATs, MROs, SAPs, mandated employers, and testing device manufacturers. DATIA’s mission includes working closely with key policy makers in Federal Agencies and in Congress to ensure that the interests of the industry are heard and taken into account when changes in drug and alcohol testing rules are proposed. In response to the FMCSA’s proposed rule, DATIA offers the following comments on behalf of its members.
The first issue that DATIA would like to address is compliance. Currently, employers are required to request drug and alcohol test records from the previous employers of new employees for their previous two years of employment in a safety sensitive position. This requirement is contained in CFR 49 Part 40.25. Reports from DATIA members and the industry show that there is little compliance with this requirement. First, the employers are not requesting the information and those that do request the information are not receiving it from the previous employers. There are many reasons for this including (1) smaller employers are not aware of the requirement, (2) employers are unsure of what format to use to request the information, (3) employers receive requests in multiple formats and are not sure of whether they should respond, etc. Employers are not complying with the requirement to investigate drug and alcohol test results for the previous two years, which makes us doubtful that they would comply with your proposal to request the information for the previous three years.
In a September 2001 Safety Recommendation to the FMCSA, the National Transportation Safety Board (NTSB) issued statements regarding the ineffectiveness of the FMCSA’s background check requirements. In the Safety Recommendation, the NTSB stated, “This investigation found that no mechanism exists for identifying drivers who have tested positive for drugs.” The background
verification provision was in effect for FMCSA at the time of the Safety Recommendation. The NTSB’s investigation of a May 22, 1999 bus accident that killed 22 passengers and injured many more revealed that: (1) When the driver applied for the position, he omitted two employers, in which he had been dismissed for testing positive for marijuana, and (2) The employer sent requests for prior drug and alcohol testing information to the two employers provided on the driver’s employment history, both of which were authorized by the bus driver. However, the employer did not receive a response from either company.
Neither of these problems was addressed in the FMCSA’s proposed rulemaking. Adding an extra year to the length of the history will not change the fact that employers do not respond to the requests and that employees omit information from their applications. The only effective solution for these problems is the establishment of a national database of drug and alcohol testing records for safety-sensitive employees. In fact, the FMCSA was tasked with studying the feasibility of such a database and to prepare and send a report with their findings to Congress. This report was due on December 31, 2001, however, we are not aware that this has been accomplished.
Until the FMCSA adequately assesses the merits of such a database and how such a system would substantially increase safety, the FMCSA should not impose additional requirements on employers and service agents that will not have sufficient benefits. DATIA appreciates this opportunity to comment on the proposed rule changes being considered by the FMCSA. Should you seek further clarification or have any questions concerning DATIA’s comments, please feel free to contact me at 703-548-0901 or info@datia.org.
Sincerely,
Laura E. Shelton
Executive Director
