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FMCSA’s Hutcheson tells senators she wants to close ‘loopholes’ in trucker drug testing

At nomination hearing, agency’s acting administrator also testified on status of broker guidance, carrier safety-score rulemaking

Hutcheson testifying in the Senate on June 8. (Photo: Senate Commerce Committee)

Acting Federal Motor Carrier Safety Administration chief Robin Hutcheson testified Wednesday her agency is committed to closing what some in the trucking industry believe are major loopholes in the FMCSA’s oversight of testing truck drivers for drug use.

“We are working with [the Department of] Health and Human Services; they are completing a study and when it is complete we stand ready to implement their recommendations,” Hutcheson told Senate Commerce Committee lawmakers at her nomination hearing to be FMCSA administrator. As the current deputy administrator, she also serves as the agency’s acting administrator.

“If confirmed, I will continue to work with you in closing those loopholes.”

Issued in September 2020, proposed federal guidelines for using hair to test for drugs within the trucking industry are highly controversial. Supporters — major trucking companies that are already screening drivers using this method and want uniformity and a level playing field — said the proposal was not strict enough. Those who oppose using hair testing — labor unions and small-business truckers — said it went too far merely by introducing the use of hair into the drug-testing equation.

“We’ve been pursuing through the appropriations process hair testing, and yet we can’t seem to get it to occur,” Sen. Jerry Moran, R-Kan., told Hutcheson. “Federal adoption of hair testing would allow motor carriers to report positive hair test results to DOT’s Drug and Alcohol Clearinghouse, closing the current loophole and creating a safer environment for the traveling public.”

HHS’s Drug Testing Advisory Board reported in March that it is revising the proposed guidelines based on public comments and on a review of current scientific literature cited in those comments. Once complete, the final draft of the guidelines must be cleared by HHS and then reviewed by the Office of Management and Budget.

The American Trucking Associations, which supports using hair as an alternate drug testing method, endorsed Hutcheson’s nomination.

“Her leadership comes at a critical time for the agency,” ATA President and CEO Chris Spear wrote in a support letter. “The pandemic, supply chain challenges, workforce shortages, and other factors are continuing to impact freight transportation in ways never seen before.”

Hutcheson faces questions from lawmakers

In addition to addressing supply chain workforce challenges — including the status of the FMCSA’s pilot program for 18- to 20-year-old drivers — Hutcheson said FMCSA would be promptly publishing major rulemakings in response to questions from lawmakers.

“Right now there is no requirement for shippers or freight brokers to check any FMCSA data prior to hiring motor carriers, which can adversely impact safety when unauthorized motor carriers continue to get offered business — despite FMCSA trying to shut them down,” said Sen. Deb Fischer, R-Neb.

“If shippers and brokers had a standard due diligence process, would it improve safety and help remove these unauthorized carriers from the road?”

“We are working to clarify the definition of broker,” Hutcheson responded, referring to a guidance authorized under the infrastructure bill signed into law last year. The law requires that FMCSA’s guidance also examine the role of trucking dispatch services and the extent to which dispatchers could be considered brokers or bonafide agents.

“We believe this will be effective in solving some of the problems that we are seeing as you are. We are very close to asking for comments on it.”

Hutcheson also briefed the committee on a pending Advanced Notice of Proposed Rulemaking, which according to FMCSA’s rulemaking calendar was to be issued in late May. The rulemaking will request information on how the agency might use its data and resources to better identify unfit motor carriers within its Compliance, Safety, Accountability program.  

Fischer asked if FMCSA had implemented recommendations on improving carrier safety measurements issued in 2017 by the National Academy of Sciences.

“I’ve reviewed the studies. There are a few updates to the framework, and there are four conditions that need to be met before any new prioritization system can be put in place,” Hutcheson testified. “We’ll be seeking input from stakeholders and [congressional] member offices.” 

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John Gallagher

Based in Washington, D.C., John specializes in regulation and legislation affecting all sectors of freight transportation. He has covered rail, trucking and maritime issues since 1993 for a variety of publications based in the U.S. and the U.K. John began business reporting in 1993 at Broadcasting & Cable Magazine. He graduated from Florida State University majoring in English and business.