Mullen: FMCSA considering inclusion of hair testing results in drug clearinghouse
The Federal Motor Carrier Safety Administration (FMCSA) is considering whether carriers should include positive drug tests obtained via hair follicle testing in the Drug and Alcohol Clearinghouse, according to Jim Mullen, acting administrator.
Speaking during the Truckload Carriers Association (TCA) Virtual Safety and Security Meeting last week, Mullen said the inclusion of hair follicle testing results is being debated inside the agency.
“There’s an issue with those motor carriers that use hair testing in addition to urine testing and whether those positives ought to be under the Drug and Alcohol Clearinghouse, and we’re looking very closely whether that [is] permitted and if not, ought it be permitted,” Mullen said. He noted almost 24,000 positive test results have been entered since the clearinghouse launched in January.
“It’s good news in that 24,000 individuals that have tested positive are not able to circumvent the system by not telling a future employer they tested positive at a former employer,” he added. “So, that obviously was the intent of the clearinghouse — to prevent that sort of trucking company shopping, if you will, and hiding your past.”
David Heller, vice president of government affairs for TCA, joined Mullen on the discussion. Radio personality Dave Nemo hosted the hour-plus-long conversation that touched on all the hot-button topics in the industry today.
Finishing up the drug and alcohol discussion, Mullen added that FMCSA is looking at requiring only partial versus full queries for drivers, citing an exemption that was given to the Motion Picture Association.
On the hottest topic of the moment — broker transparency — Mullen had a lot to say. FMCSA has received between five and 10 allegations of brokers not providing the necessary data to carriers required by [regulation] 371.3, and it is looking into those. At least one notice of violation has been issued at this point to a broker for an instance in which the carrier did not waive its contractual rights to receive the data, Mullen said.
“Now, there are many people that will say to us, you are missing the point, Mullen,” he said. “The brokers are trying to circumvent the process by requiring the waiver and if the motor carrier doesn’t waive it they get blackballed. I understand the concept, but the regulation says what it says, and I think most people understand that the regulation is very specific.”
Mullen told listeners to watch for a Federal Register notice soon on the topic. Both the Owner-Operator Independent Drivers Association (OOIDA) and the Small Business in Transportation Coalition have submitted similar petitions asking for a rulemaking. OOIDA has asked for two things, Mullen said: that the transfer of this data be automatic within 48 hours of the completion of the load or transaction, and that the provisions contained within 371.3 can’t be contractually waived.
“I read the trade journals,” Mullen said. “I know there are some differences in opinions on this. I know some folks are dissatisfied at the pace by which the agency is working on this. I know some folks are dissatisfied that we aren’t already taking action against those brokers that do have this in their broker agreement, and I would say this is what the process is for. Hence why we are going to do the notice of comment period.”
Mullen added that other government agencies that have jurisdictions outside the scope of FMCSA’s are also looking at the issue.
Rising insurance minimums
The general session with Mullen and Heller also touched on insurance minimums. Heller said TCA supports these, but not necessarily at the $2 million number that was added as an amendment to the five-year, $494 billion Investing in a New Vision for the Environment and Surface Transportation in America (INVEST in America) Act transportation bill unveiled earlier this month.
“We support minimum standards, but just what that minimum standard should be becomes that case in point,” Heller said. “I think if you put 10 different people in one room, there may be 10 different answers. So what justifies $2 million? Is that just an arbitrary number that is being pulled out of the sky? Or are we tying it to inflation, or the rising inflation of medical costs? And that becomes the bigger issue, what is that number, and until we can justify that, we have to continue this discussion.”
Mullen agreed, noting that while he can’t comment on any actions that Congress is considering, how to quantify what the minimum should be has “been the challenge for the agency all along.”
Mullen said that despite inclusion of a provision that would delay the changes to the hours-of-service rules set to go into effect on Sept. 29, FMCSA is moving ahead with its plans.
“We are proceeding as if there will be no delay because that’s our task at hand,” he said. “As far as we are concerned, no disrespect to the INVEST Act, or what the Hill is doing, but our agency has to proceed as if there will be no delay and we are going effective in September.”
Heller and Mullen both commented on the 30-minute break provision, saying that it has been received positively.
“There are still some that wish that it had been [total] elimination of the entire 30-minute rest break, but as you read in the final rule justification, that was a tad more than the agency felt was appropriate,” Mullen said.
Heller noted the flexibility the rule provides.
“There’s also aspects of this that say if you are checking with a receiver, checking with the shipper and that takes 30 minutes, that can be your break,” Heller said. “That can be your break in a day and it’s an effective way to deal with flexibility, perhaps deal with detention time. … It’s an opportunity to make better use of your day.”
Asked whether future changes to the split sleeper provision, which adds a 7/3 split to the existing 8/2 split, could occur, Mullen did not close off that possibility. (The split-sleeper provision allows drivers to split their required 10 hours off duty into two periods: one period of at least seven consecutive hours in the sleeper berth; and the other period of not less than two consecutive hours, either off duty or in the sleeper berth.)
“The door certainly is not shut to that,” he said. “An option is to do a pilot program and allowing 6/4 or 5/5, to study it that way. There are some sleep studies that talk about restorative sleep and six-plus hours being the bogey. But the flip side of that is truck drivers lead a very different life than your 9-to-5er. No, the door is not shut, but I don’t want to get too ahead of ourselves on anything. But a pilot program would probably be the best way to study the effects of that.”
Heller noted that a 6/4 or even a 5/5 split could happen if the data suggests it would be safe, but TCA was generally pleased with the final outcome.
“Flexibility was our big issue — that 14-hour clock and the ability to stop that,” he said. “Providing that 7/3 split and being able to break up the day was paramount. Certainly, it’s not the 6/4 split or 5/5 split that we wanted, but quite frankly, we’ve got a tool on our trucks that are tracking some of these things and we’ll know much better a year or two down the road whether that window into a 6/4 split or 5/5 split can be opened again.”
Will COVID-19 waivers become permanent?
Mullen said FMCSA is looking at which COVID-19 waivers could become permanent. Among those are the third-party testing waiver to allow driving schools to administer skills testing and one by which commercial learner’s permit (CLP) holders could make commercial runs once they passed a skills test but before they receive their credentials.
“I’ll say this about some of those waivers and the experience during COVID: Our state partners are critical on several of those waivers, and this is not a criticism but just an observation. The appetite was not as strong on some of those provisions as I thought it might have been,” Mullens said. “You had some state DMVs that were closed for 60 days-plus and unable to do credentials; I would have thought the appetite for things such as out-of-state knowledge tests might have been stronger, and [also for] some of the other waivers that we actually implemented.”