Driver issuesNewsTop StoriesTrucking Regulation

FMCSA takes on request to allow hair tests into drug clearinghouse

FMCSA agrees to take public comments after declining previous request

A group of big-name trucking companies is once again asking federal regulators to allow hair testing for drugs to determine if a person is fit to drive — and this time the government has agreed to consider their case.

The Trucking Alliance, with members that include J.B. Hunt Transport (NASDAQ: JBHT), U.S. Xpress (NYSE: USX) and Knight-Swift Transportation (NYSE: KNX), is seeking an exemption that would for the first time allow positive results using hair to test for drugs — taken from random testing and pre-employment screening of drivers — to be uploaded into the FMCSA Drug and Alcohol Clearinghouse.

Specifically, the exemption would “amend the definition of actual knowledge to include the employer’s knowledge of a driver’s positive hair test, which would require such results be reported to the FMCSA Drug and Alcohol Clearinghouse and to inquiring carriers as required to comply” with federal regulations, according to the Trucking Alliance’s request submitted in April.

Trucking Alliance carriers have long contended that hair testing is significantly more accurate in determining whether a person is a habitual drug user versus urine testing.

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

A recent Trucking Alliance-backed study found FMCSA’s clearinghouse may be significantly underreporting the use of harder drugs by truck drivers, such as cocaine and illegal opioids, due to the exclusion of hair testing in the database.

In a request for comments expected to be published Wednesday, the FMCSA has agreed to consider the Trucking Alliance’s exemption application — a move that seems contrary to the agency’s response to a more extensive but similar appeal made by the group in 2020.

In August of that year, the Trucking Alliance asked FMCSA, in addition to the group’s current exemption request, for an extra exemption allowing hair drug test results in lieu of 50% of the required random testing, which currently require carriers to use urine testing.

Citing jurisdiction over drug policy matters by the U.S. Department of Health and Human Services (HHS), FMCSA responded in May 2021 that because it lacked statutory authority to act on the application, the agency was unable to process it in accordance with federal requirements relating to official notice and comment.

Further, publishing the group’s request for official notice and comment given its lack of jurisdiction “would be misleading to the agency’s stakeholders and other interested parties,” FMCSA stated last year. 

Policy change at FMCSA?

FMCSA’s stance has apparently changed, however, as it plans to go forward Wednesday with a notice and comment period, even though it again notes a lack of authority.

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

FMCSA did not immediately respond for comment on why it is publishing a notice and comment period this time around and what the effect of doing so could have on stakeholders.

A trucking regulations expert sees the agency’s apparent change in how it responds to exemption requests as a welcome trend.

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

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

HHS’s Drug Testing Advisory Board (DTAB) is revising proposed mandatory guidelines for drug testing using hair, released in September 2020, based on public comments and a review of current scientific literature cited in them. DTAB plans to discuss the revisions during a closed meeting in September. Once complete, the final draft of the guidelines must be cleared by HHS and then reviewed by the Office of Management and Budget. 

Click for more FreightWaves articles by John Gallagher.

The FREIGHTWAVES TOP 500 For-Hire Carriers list includes Knight-Swift Transportation (No. 3), J.B. Hunt (No. 4) and U.S. Xpress (No. 13).

108 Comments

  1. Only after failing and paying for myself Becuase I couldn’t believe results.Had me convinced.Lied about amount used Becuase it was never.Closes was sex with one who might be cocaine user.Other was time frame my hair 12 old they can test as old as your hair which on blacks is very long time.willing to take lie detector test .Beside on fact it doesn’t show actual drug shows evidence of biproduct from what your body produce no actual drug like urine and blood does.Last all carrier and places use same lab. Which lied 3 times on me to cover.wiether it was profiling my texture or they saw something it was any illicet use or taken by me.Really detect contact an label some that had brief contact with cash or love with drugs in there system a addict .real aim is to corner market with there labs that knock off drivers on random for numbers not truth.

  2. I look forward to filling law suite regarding change for the following reasons.
    Such a test revile a positive test up to 6 months or later in such a case does not tell the complete story if such a driver still uses or had stop as l also with the legalization of marijuana a driver can used and stop before he or she comes on duty in the time period that a urine sample will deem saft.

    The removal or hair and the amount needed of time of visit.

    When such rules change many companies will make such test a common practice thus giving such a sample can be a life style burden to a driver.
    For such test are random which means a driver will have to change one habbitts in such be in a way for hair removal that may be beyond one control like when to and not shave. Such invasive test can alter looks and how they feel about them selves can have a mental effect.

  3. The hair follicle test are not accurate. I had a hair follicle test done and had a false positive and was told that the test showed that I had smoked between 3 to 12 months ago and was a constant smoker. Im not a smoker at all and any type of way and not even around anyone that smokes period. However, that made me unable to get the job I wanted. When I tried to fight it I was told that I would have to pay out of my own pocket. So if that test was put on clearinghouse I would have been dinged as a drug smoker and would had a issue getting a job and never have been a smoker.

    1. The government with to mash rules is to mash bs for that I let go be a owner operator to mash ask and not enough paying to ma mash rules sofocait people

  4. These test are not accurate and then when one comes up with a false positive, the victim is suppose to pay out of their own pocket to fight for their innocence. It will ruin someones life and career when you are looking for a job and do not have the money to take this burden on. Another way to attack drivers.

  5. It’s not the fact that no matter what anyone tries to do to prevent drug users in the industry. It’s the idiocy that it seems that the FMCSA is simply doing what they do best. Throwing at the wall yet again and looking for whatever sticks. More of the same and nothing more will change other than yet another reason to give to justify more useless BS to make it appear as if they are valid while everyone knows it only creates more problems than simply allowing companies and holding bad drivers who get caught be dealt with when they break the law. We don’t need more of the same useless crap. We need to hold bad people accountable and we sure as hell don’t need another useless hoop to jump through.

Leave a Reply

Your email address will not be published.

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.