[House Hearing, 110 Congress] [From the U.S. Government Publishing Office] DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS ======================================================================= (110-86) HEARING BEFORE THE SUBCOMMITTEE ON HIGHWAYS AND TRANSIT OF THE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION ---------- NOVEMBER 1, 2007 ---------- Printed for the use of the Committee on Transportation and Infrastructure DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS DRUG AND ALCOHOL TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS ======================================================================= (110-86) HEARING BEFORE THE SUBCOMMITTEE ON HIGHWAYS AND TRANSIT OF THE COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS FIRST SESSION __________ NOVEMBER 1, 2007 __________ Printed for the use of the Committee on Transportation and Infrastructure U.S. GOVERNMENT PRINTING OFFICE 38-866 WASHINGTON : 2008 _____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800 Fax: (202) 512�092104 Mail: Stop IDCC, Washington, DC 20402�090001 COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE JAMES L. OBERSTAR, Minnesota, Chairman NICK J. RAHALL, II, West Virginia, JOHN L. MICA, Florida Vice Chair DON YOUNG, Alaska PETER A. DeFAZIO, Oregon THOMAS E. PETRI, Wisconsin JERRY F. COSTELLO, Illinois HOWARD COBLE, North Carolina ELEANOR HOLMES NORTON, District of JOHN J. DUNCAN, Jr., Tennessee Columbia WAYNE T. GILCHREST, Maryland JERROLD NADLER, New York VERNON J. EHLERS, Michigan CORRINE BROWN, Florida STEVEN C. LaTOURETTE, Ohio BOB FILNER, California RICHARD H. BAKER, Louisiana EDDIE BERNICE JOHNSON, Texas FRANK A. LoBIONDO, New Jersey GENE TAYLOR, Mississippi JERRY MORAN, Kansas ELIJAH E. CUMMINGS, Maryland GARY G. MILLER, California ELLEN O. TAUSCHER, California ROBIN HAYES, North Carolina LEONARD L. BOSWELL, Iowa HENRY E. BROWN, Jr., South TIM HOLDEN, Pennsylvania Carolina BRIAN BAIRD, Washington TIMOTHY V. JOHNSON, Illinois RICK LARSEN, Washington TODD RUSSELL PLATTS, Pennsylvania MICHAEL E. CAPUANO, Massachusetts SAM GRAVES, Missouri JULIA CARSON, Indiana BILL SHUSTER, Pennsylvania TIMOTHY H. BISHOP, New York JOHN BOOZMAN, Arkansas MICHAEL H. MICHAUD, Maine SHELLEY MOORE CAPITO, West BRIAN HIGGINS, New York Virginia RUSS CARNAHAN, Missouri JIM GERLACH, Pennsylvania JOHN T. SALAZAR, Colorado MARIO DIAZ-BALART, Florida GRACE F. NAPOLITANO, California CHARLES W. DENT, Pennsylvania DANIEL LIPINSKI, Illinois TED POE, Texas DORIS O. MATSUI, California DAVID G. REICHERT, Washington NICK LAMPSON, Texas CONNIE MACK, Florida ZACHARY T. SPACE, Ohio JOHN R. `RANDY' KUHL, Jr., New MAZIE K. HIRONO, Hawaii York BRUCE L. BRALEY, Iowa LYNN A WESTMORELAND, Georgia JASON ALTMIRE, Pennsylvania CHARLES W. BOUSTANY, Jr., TIMOTHY J. WALZ, Minnesota Louisiana HEATH SHULER, North Carolina JEAN SCHMIDT, Ohio MICHAEL A. ACURI, New York CANDICE S. MILLER, Michigan HARRY E. MITCHELL, Arizona THELMA D. DRAKE, Virginia CHRISTOPHER P. CARNEY, Pennsylvania MARY FALLIN, Oklahoma JOHN J. HALL, New York VERN BUCHANAN, Florida STEVE KAGEN, Wisconsin STEVE COHEN, Tennessee JERRY McNERNEY, California LAURA A. RICHARDSON, California (ii) ? SUBCOMMITTEE ON HIGHWAYS AND TRANSIT PETER A. DeFAZIO, Oregon, Chairman NICK J. RAHALL II, West Virginia JOHN J. DUNCAN, Jr., Tennessee JERROLD NADLER, New York DON YOUNG, Alaska ELLEN O. TAUSCHER, California THOMAS E. PETRI, Wisconsin TIM HOLDEN, Pennsylvania HOWARD COBLE, North Carolina MICHAEL E. CAPUANO, Massachusetts RICHARD H. BAKER, Louisiana JULIA CARSON, Indiana GARY G. MILLER, California TIMOTHY H. BISHOP, New York ROBIN HAYES, North Carolina MICHAEL H. MICHAUD, Maine HENRY E. BROWN, Jr., South BRIAN HIGGINS, New York Carolina GRACE F. NAPOLITANO, California TIMOTHY V. JOHNSON, Illinois MAZIE K. HIRONO, Hawaii TODD RUSSELL PLATTS, Pennsylvania JASON ALTMIRE, Pennsylvania JOHN BOOZMAN, Arkansas TIMOTHY J. WALZ, Minnesota SHELLEY MOORE CAPITO, West HEATH SHULER, North Carolina Virginia MICHAEL A ARCURI, New York JIM GERLACH, Pennsylvania CHRISTOPHER P. CARNEY, Pennsylvania MARIO DIAZ-BALART, Florida JERRY MCNERNEY, California CHARLES W. DENT, Pennsylvania BOB FILNER, California TED POE, Texas ELIJAH E. CUMMINGS, Maryland DAVID G. REICHERT, Washington BRIAN BAIRD, Washington CHARLES W. BOUSTANY, Jr., DANIEL LIPINSKI, Illinois Louisiana DORIS O. MATSUI, California JEAN SCHMIDT, Ohio STEVE COHEN, Tennessee CANDICE S. MILLER, Michigan ZACHARY T. SPACE, Ohio THELMA D. DRAKE, Virginia BRUCE L. BRALEY, Iowa, Vice Chair MARY FALLIN, Oklahoma HARRY E. MITCHELL, Arizona VERN BUCHANAN, Florida LAURA A. RICHARDSON, California JOHN L. MICA, Florida JAMES L. OBERSTAR, Minnesota (Ex Officio) (Ex Officio) (iii) CONTENTS Page Summary of Subject Matter........................................ vii TESTIMONY Craig, Rick, Director of Regulatory Affairs, Owner-Operator Independent Drivers Association................................ 50 Hageman, Sergeant Alan, Patrol Division Support/Logistics, Oregon State Police................................................... 30 Hill, Hon. John, Administrator, Federal Motor Carrier Safety Administration, accompanied by Jim L. Swart, Acting Director, Office of Drug and Alcohol Policy and Compliance, U.S. Department of Transportation................................... 35 Kutz, Gregory D., Managing Director, Forensic Audits and Special Investigations, U.S. Government Accountability Office.......... 5 McLuckie, Fred, Legislative Director, International Brotherhood of Teamsters................................................... 50 Siggerud, Katherine A., Director, Physical Infrastructure Team, U.S. Government Accountability Office.......................... 5 Smith, Donna R., Ed.D., Regulatory Affairs and Program Development Officer, Firstlab, Inc., Substance Abuse Program Administrators' Association.................................... 5 Stephenson II, Robert L., M.P.H., Director, Division of Workplace Programs, Substance Abuse and Mental Health Services Administration, Department of Health and Human Services........ 35 Williamson, John Wilburn, Assistant Director for Driver and Vehicle Services, North Carolina Division of Motor Vehicles.... 30 Woodruff, Greer, Senior Vice President of Corporate Safety and Security, J.B. Hunt Transport, Inc., American Trucking Associations................................................... 50 PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS Altmire, Hon. Jason, of Pennsylvania............................. 62 Carney, Hon. Christopher P., of Pennsylvania..................... 63 DeFazio, Hon. Peter A., of Oregon................................ 65 Matsui, Hon. Doris O., of California............................. 68 Mitchell, Hon. Harry E., of Arizona.............................. 69 Oberstar, Hon. James L., of Minnesota............................ 75 PREPARED STATEMENTS SUBMITTED BY WITNESSES Craig, Rick...................................................... 80 Hageman, Sergeant Alan........................................... 94 Hill, Hon. John.................................................. 112 Kutz, Gregory D.................................................. 127 McLuckie, Fred P................................................. 163 Siggerud, Katherine.............................................. 203 Smith, Donna..................................................... 234 Stephenson II, Robert L.......................................... 246 Williamson, John Wilburn......................................... 319 Woodruff, Greer.................................................. 336 SUBMISSIONS FOR THE RECORD Craig, Rick, Director of Regulatory Affairs, Owner-Operator Independent Drivers Association, reponses to questions from the Subcommittee................................................... 89 Hageman, Sergeant Alan, Patrol Division Support/Logistics, Oregon State Police, responses to questions from the Subcommittee..... 108 Hill, Hon. John, Administrator, Federal Motor Carrier Safety Administration, responses to questions from the Subcommittee... 120 Kutz, Gregory D., Managing Director, Forensic Audits and Special Investigations, U.S. Government Accountability Office, responses to questions from the Subcommittee................... 156 McLuckie, Fred, Legislative Director, International Brotherhood of Teamsters, responses to questions from the Subcommittee..... 199 Siggerud, Katherine A., Director, Physical Infrastructure Team, U.S. Government Accountability Office, responses to questions from the Subcommittee.......................................... 226 Smith, Donna R., Ed.D., Regulatory Affairs and Program Development Officer, Firstlab, Inc., Substance Abuse Program Administrators' Association, responses to questions from the Subcommittee................................................... 240 Stephenson II, Robert L., M.P.H., Director, Division of Workplace Programs, Substance Abuse and Mental Health Services Administration, Department of Health and Human Services, responses to questions from the Subcommittee................... 262 Williamson, John Wilburn, Assistant Director for Driver and Vehicle Services, North Carolina Division of Motor Vehicles, responses to questions from the Subcommittee................... 330 Woodruff, Greer, Senior Vice President of Corporate Safety and Security, J.B. Hunt Transport, Inc., American Trucking Associations, responses to questions from the Subcommittee..... 345 ADDITIONS TO THE RECORD Psychemedics Corporation: Ray Kubacki, President, written statement...................... 355 William Thistle, Senior Vice President and General Counsel, written statement............................................ 361 [GRAPHIC] [TIFF OMITTED] T8866.001 [GRAPHIC] [TIFF OMITTED] T8866.002 [GRAPHIC] [TIFF OMITTED] T8866.003 [GRAPHIC] [TIFF OMITTED] T8866.004 [GRAPHIC] [TIFF OMITTED] T8866.005 [GRAPHIC] [TIFF OMITTED] T8866.006 [GRAPHIC] [TIFF OMITTED] T8866.007 [GRAPHIC] [TIFF OMITTED] T8866.008 [GRAPHIC] [TIFF OMITTED] T8866.009 [GRAPHIC] [TIFF OMITTED] T8866.010 [GRAPHIC] [TIFF OMITTED] T8866.011 [GRAPHIC] [TIFF OMITTED] T8866.012 [GRAPHIC] [TIFF OMITTED] T8866.013 [GRAPHIC] [TIFF OMITTED] T8866.014 HEARING ON DRUG AND ALCOHOL ABUSE TESTING OF COMMERCIAL MOTOR VEHICLE DRIVERS ---------- Thursday, November 1, 2007 House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Highways and Transit, Washington, DC. The Subcommittee met, pursuant to call, at 10:04 a.m., in Room 2167, Rayburn House Office Building, the Honorable Peter A. DeFazio [Chairman of the Subcommittee] presiding. Mr. DeFazio. Sometimes around here, you have to tear up the script and that is what we are going to do today. Not being previously aware of the breadth and depth of the problems that are about to be revealed here today, I am changing the order of the witnesses because I want the principals who are involved in shaping Federal policy or implementing Federal policy in these areas to hear the testimony which is going to be absolutely devastating. I have been very critical of Mexican trucks coming across the border and raised a host of safety issues. Among the issues I have raised is the lack of certified drug testing facilities in Mexico. Well, it turns out here in the United States of America, we have no meaningful program of drug testing for commercial truck drivers, none. We are going to hear that today. The collection facilities are easily penetrated with false licenses. The facilities themselves, you could easily smuggle in devices that are readily available on the internet which we will hear about a little later today. The FMCSA has been aware of this. They, in fact, say in their testimony, in response to GAO, no, they weren't shocked at all to learn that these testing facilities were loophole- ridden and providing tests for which results were easily modified and made meaningless, but they have sent out posters. We are going to hear testimony that there is a 2004 report about the problem with job-hopping. So even when this faulty system works, which we don't know how many people are out there abusing substances. The most conservative estimate, 1.7 percent, everybody agrees on that, at least 1.7 percent. That is 170,000 truck drivers driving 80,000 pound trucks, abusing drugs. In Oregon, with the random test, it seems like maybe the number is five times higher. We don't know. There is no meaningful system, none. This is shocking. This is incredibly shocking stuff. We are going to proceed in a little different manner today. So we are going to have people listen to the people who are doing the investigations and a person representing an organization that has been critical of the system, and then we will have the other witnesses. Then I will hope for meaningful responses from the Administrator and the person representing SAMHSA because this cries for out action. If you lack legal authority to implement the program that your 2004 report said you needed to do to take care of job- hopping, tell us, but you don't say it in your testimony. You are just saying, well, yes, we got that report in 2004. We are still thinking about how we might have a national database. So that when you have a drug-abusing truck driver who doesn't complete treatment and goes to another trucking company and starts driving again, we have no idea except in the State of North Carolina and a few other places who have taken steps that we could take nationally to prevent that from happening, prevent people from being killed because there are drug-abusing truck drivers out there. Mr. Duncan. Mr. Duncan. Well, thank you, Mr. Chairman. This is a very appropriate subject about which to hold a hearing, and I thank you for calling this hearing today. The safety of truck and bus drivers on our Nation's highways is a major concern for this Committee and Subcommittee. We know that a driver's health can significantly affect his ability to drive safely while on the road with other trucks, buses, passenger cars and pedestrians. Recent news reports have called truck and bus driving safety into question, particularly with respect to driving while under the influence of drugs. In response, this Committee has exercised his oversight responsibility to review policies regarding drug testing of truck drivers. We want to know if there is actually a problem with drug use and drug testing in the trucking industry. Only when we get an accurate picture of this issue and its severity can we determine effective measures to address it. The DOT study of the causes of truck crashes found that brake problems, speeding and driver fatigue are the most common factors cited as causes. Illegal drug usage was cited as being an associated factor in 2 percent of drug crashes. There are 711,000 commercial motor carriers registered by the Federal Motor Carrier Administration. This translates to more than four million individuals who have been issued a commercial driver's license. FMCSA is charged with regulating the safety of all commercial motor vehicles engaging in interstate commerce. The Agency must focus its attention on policies and actions that will reap the greatest safety benefit. Looking to other Department of Transportation agencies like FAA, FTA or FRA for a drug and alcohol testing program structure really is probably not going to work. The trucking industry needs a safety oversight and enforcement program that fits the unique needs and size of the industry it regulates. We have to keep our eye on the main objective, protecting our citizens from unsafe drivers and vehicles. Our policy and funding decisions should be focused on the activities that will do this the most effectively. Thank you again, Mr. Chairman, for calling this hearing, and I look forward to hearing the testimony. Mr. DeFazio. I thank the gentleman. I turn to Mr. Oberstar, the Chair of the Full Committee. Mr. Oberstar. Mr. DeFazio, Chairman, I share your anger, your frustration and your fury at the state of drug and alcohol testing in the United States, especially in the light of the efforts this Committee has made on Mexican trucks and drivers and drug testing and the inadequacy of their program, but to find that ours falls so grossly short is, as you put it, shocking and makes one angry. This Committee played a significant role in the 1980s in shaping the drug and alcohol testing rules that were put in place in the late eighties, but there hasn't been any oversight over whether those rules are working and how they are working and who is being caught and how the tests are being avoided. The number of commercial drivers using drugs by official record has gone down, but the rules aren't working. They aren't working as well as they should. We know that drivers are still using drugs but getting away with it. That is the serious problem. Now this is not a hearing about morality of drug use. It is not about the character of the people who are using the drugs. It is about breaking the law, avoiding the law, skillfully using the internet to get around the law. It is about safety, about lives on the highways. Commercial motor carriers account for 13 percent of highway deaths a year. Illegal drugs, so far as is known, account for a small percentage of those crashes. But, as Mr. DeFazio said, even at 1 percent, that is 110 plus thousand, maybe as many as 200,000, deaths. I mean incidents of drivers. We know what the effects of cocaine, marijuana and speed use are on driving. They impair the driver's ability to conduct that vehicle. It is one thing to go to a pop concert and use those drugs, but it is something else to use them and get behind the wheel of a 80,000 pound vehicle. This Committee takes that seriously. The FOX News outlet in Minneapolis in February of this year conducted an investigation of drug testing facilities on some tips that they received, sites where urine is collected, where what they found shocked them about the integrity of the tests. The FOX reporter wasn't required to empty his pockets. He was sent to a public restroom that other building tenants had access to. The restroom wasn't searched first to make sure that nothing had been hidden there to help him mask the tests. Collectors who are not following protocols, facilities that don't meet Federal requirements create an opportunity, an opening for drug users to escape detection, and they will jump on the opportunity in athletics as well as in driving. The Health and Human Services Department in 2005 issued a guidance to collectors to try to deal with the cheating problem. They said a drug user who is part of a workplace drug testing program will most likely to defeat the drug test if given the opportunity. Well, that is human nature. What FOX News found, what GAO is going to tell us today is that there is plenty of opportunity, and there are products out there to make it possible to cheat, over 400 products, gadgets to help a drug user beat the drug test, products that can be added to a urine sample to mask the drug, to dilute the urine sample. Even synthetic urine, I was stunned to find out, virtually indistinguishable from human urine, with products like Whizzies, UrineLuck, a play on words, a play on the sound of words, and Stealth. They are sold on web sites called PassYourDrugTest.com, OneHourDetox.com, Whizzinator.com. Committee investigators from our Committee found human urine for sale on craigslist, adulterants available on eBay, adulterants available on Amazon. I thought you could only buy books from Amazon. These products are sold with the specific intent of defeating a drug test. There is no other use, no other beneficial use for those products. They ought to be banned, and I hope one of the outcomes of this hearing will be legislation to do exactly that. Health and Human Services admits that their tests don't pick up these products. When they do, guess what, the manufacturer simply changes the formula. It is a cat and mouse game, the manufacturer staying one step ahead of the labs. Because the products fool the labs, there is no way of knowing how widespread the cheating is. That is one of the revealing, shocking messages of and findings of the GAO report. Because they don't know how many drivers are cheating, the regulatory agencies can't tell how many drivers are using drugs. The Motor Carrier Safety Administration estimates 2 percent of drivers test positive, but there are other studies that suggest a much higher number. In Oregon, State police conducted two operations last spring and this fall where they anonymously tested 400 drivers. They found illegal drugs in nearly 10 percent of truck drivers. Health and Human Services published their occupational drug use survey finding that 7.4 percent of heavy truck drivers reported they had used illegal drugs in the prior month. At 2 percent, that is 200,000 drivers. If only half of those were using, there is still 100,000 drivers on the roads-- indefensible, unacceptable. Then there is another loophole. Drivers who have been caught using drugs can keep on driving without going through the rehab process. In May, 1999, a bus taking 43 passengers crashed in New Orleans, killing 22 passengers, and the driver tested positive for marijuana. The tragedy was it could have been prevented. When the company hired the driver, they didn't know the driver had failed four prior drug tests, two for which he was fired. Getting a job applicant's prior drug history relies on self-reporting. That is not good enough. There are no alternative sources from which employers can get that history, and there are drug-using drivers that are able to jump from job to job, leaving their drug use history behind. Now the Tour de France last year was widely criticized for drug use by cyclists, but they were all caught. There is a rigorous program of testing bicyclists by the World Anti-Doping Agency and the U.S. Anti-Doping Agency. They follow the cyclists into the testing place, into the bathroom. They stand there while the urine sample is delivered. They take blood tests. Now we have all these privacy laws that say you can't do that sort of thing. Well, there are other ways to deal with it, and we are going to explore those in the course of this hearing and we are not going to just leave it there. We are going to follow up with action by this Committee under the vigorous leadership of Chairman DeFazio. Thank you. Mr. DeFazio. Thank you, Mr. Chairman. Mr. Chairman, just on one remark you made, it is not just that the manufacturers get ahead of the tests--and I will be asking about the rationale for this because it is unfathomable to me--but Health and Human Services is apparently required to publish the list of adulterants and the tests developed for them in the Federal Register so that the manufacturers are able to change their formulas and prevent detection. That one is way beyond me, so that will be another topic I hope we cover. With that, we will turn to our first panel of witnesses. As I say, we have gotten off the script here because this is so extraordinary. I do want and hope that when the Administrator testifies later, and the Acting Director of the Office of Drug and Alcohol Policy and Compliance is with him and the person representing the Substance Abuse and Mental Health Services Administration, I would urge you to take notes and depart from your prepared testimony because you are going to need to. So, with that, I will turn first to Mr. Gregory D. Kutz, Managing Director, Forensic Audits and Special Investigations, U.S. GAO. Mr. Kutz. TESTIMONY OF GREGORY D. KUTZ, MANAGING DIRECTOR, FORENSIC AUDITS AND SPECIAL INVESTIGATIONS, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; KATHERINE A. SIGGERUD, DIRECTOR, PHYSICAL INFRASTRUCTURE TEAM, U.S. GOVERNMENT ACCOUNTABILITY OFFICE; DONNA R. SMITH, ED.D., REGULATORY AFFAIRS AND PROGRAM DEVELOPMENT OFFICER, FIRSTLAB, INC., SUBSTANCE ABUSE PROGRAM ADMINISTRATORS' ASSOCIATION Mr. Kutz. Mr. Chairman and Members of the Subcommittee, thank you for the opportunity to discuss drug testing for commercial truck drivers. Recent reports of drivers operating with controlled substances in their system raise serious questions about the safety of our Nation's highways. Today's testimony highlights our covert testing of the DOT drug testing program. My testimony has two parts. First, I will discuss what we did and, second, I will discuss what we found. First, we created two fictitious companies and selected 24 publicly advertised urine collection sites that followed DOT protocols. These sites are located in Los Angeles, Dallas-Fort Worth, New York, New Jersey and the Washington, D.C. areas. We also produced 24 bogus commercial driver's licenses for 24 fictitious individuals from the States of Washington, Georgia, West Virginia and Delaware. Using bogus licenses, we visited these 24 sites, posing as drivers selected by our fictitious companies to take a drug test. At these sites, we tested 16 key DOT protocols designed to prevent an employee from beating a drug test. We also purchased synthetic urine and adulterants on the internet and used these products for eight of our tests. Moving on to the results of our work, we found breakdowns in all phases of the drug testing program. I have in my hand one of the 24 bogus driver's licenses that we used for this test. We produced this West Virginia driver's license, using commercially available hardware, software and materials. We used licenses just like this one to gain access to all 24 sites to take our drug tests. This clearly shows that a drug user could send someone else in their place to take a drug test. With respect to protocols, 22 of the 24 sites that we visited failed at least 2 of the 16 DOT protocols that we tested. For example, 75 percent of the sites failed to secure the facility from substances that could be used to adulterate or dilute the specimen. The first posterboard and the pictures on the monitor on both sides of me show pictures we took at one of the collection sites with our cell phone cameras. Notice in the first picture the potential adulterants such as Lysol outside of the collection area. The second picture shows the same Lysol container which our investigator took into the collection area and could have easily used to adulterate his urine. We also found that products designed to be a drug test are widely available for sale on the internet. The next posterboard shows some of the marketing pitches that are used to sell these products. As you can see, these products are represented to be safe, undetectable and guaranteed to beat a DOT or other drug test. We were able to easily bring these products into all eight of the sites that we tested for them. For example, I have in my hand one of the bottles and heating pads that we used to carry synthetic urine into the collection area. We also used vials like the one I have in my hand to carry adulterants into the collection area. None of the eight synthetic or adulterated urine samples that we provided were detected by the labs. Mr. Oberstar. Mr. Kutz, I want to interrupt you at that point. Mr. Kutz. Sure. Mr. Oberstar. Are you able to identify the authors of those comments? Mr. Kutz. On the posterboard there? Mr. Oberstar. Yes. Mr. Kutz. I don't have that with me, but there were lots of sites. Mr. Oberstar. You do have that information? Mr. Kutz. We could get that for you if you are interested. Mr. Oberstar. Submit that for the record, please. Mr. Kutz. Certainly. Mr. DeFazio. Mr. Chairman, we do have some slides that I was going to have the staff put up later which actually show some of these web sites and the advertisements. Mr. Oberstar. We do have that, but I wonder about these particular comments. Mr. Kutz. We could submit that for you, yes, sir. In conclusion, our covert testing clearly shows that a drug user could easily beat the DOT drug tests. Even if the collection sites followed all of the DOT protocols, our work shows that the tests can be beaten using counterfeit documents, synthetic urine or adulterants. Addressing the vulnerabilities that I have just discussed will require substantial improvements in all phases of the drug testing program. Mr. Chairman, that ends my statement. I look forward to your questions. Mr. DeFazio. Thank you. With that, I turn to Katherine Siggerud, Director of the Physical Infrastructure Team of U.S. GAO. Ms. Siggerud. Ms. Siggerud. Chairman Oberstar, Chairman DeFazio, Ranking Member Duncan and Members of the Subcommittee, we appreciate your invitation to appear at this hearing on drug testing of drivers employed in safety-sensitive positions in the motor carrier industry. My colleague, Mr. Kutz, has described the significant problems existing at collection sites that are an important component of FMCSA's drug testing program. Our ongoing work for this Subcommittee and the Chairman of the Full Committee raises issues about compliance, accountability and design of additional aspects of the drug testing program. My statement presents these preliminary results today and will focus on challenges in, first, overseeing and enforcing compliance with drug testing regulations and, second, ensuring the integrity of the drug tests and the processes for keeping drivers with identified problems off the roads. Before getting to these results, it is useful to provide some background of the program itself. As shown in this slide and in the packets you have in front of you, drug testing is a multi-step process that includes many players. Employers must, of course, design and implement a program or hire a third party to do it for them. In addition, FMCSA provides regulation and oversight. Collection sites obtain the specimens. Laboratories test the specimens under the oversight of the Department of Health and Human Services. Medical review officers review and verify lab results and report them to employers, and substance abuse professionals design programs for employees that wish to return to driving after a positive test. With regard to FMCSA's efforts to ensure that commercial motor carriers have drug testing programs in place, we found that non-compliance appears to be widespread. According to FMCSA data, more than 70 percent of compliance reviews conducted since 2001 and more than 40 percent of safety audits conducted since 2003 found violations of drug testing regulations including finding the carrier has no drug testing program at all. As shown here, the most frequently cited drug testing violations in compliance reviews are carriers having employed drivers without a pre-employment drug test or not testing them at all. About 1 percent of compliance reviews find that carriers allow drivers with a positive drug test to continue to drive. Non-compliance appears to be particularly high among small carriers and owner-operators. In addition, FMCSA's oversight is limited. While new entrant safety audits are designed to reach all new entrants, compliance reviews only reach about 2 percent of carriers each year due to the size of the industry and resources devoted to these activities. In particular, oversight activities do not address compliance by agencies and by carriers to implement drug testing programs such as collection sites because of limited resources and the lack of enforcement authority. FMCSA will investigate service agents such as collection sites as a result of a specific complaint but can only act to disqualify them from DOT's testing programs rather than using the fines that can be applied to motor carriers. Even when there is good compliance with regulations, drivers who use drugs may still be driving commercial motor vehicles. First, as Mr. Kutz explained, subversion of the drug test is still possible. The regulations do not require employees to directly observe collection nor do they require a thorough search for hidden subversion products. The extent to which subversion is occurring is unknown and is impossible to determine because when specimens are successfully adulterated or substituted, there is no record which would allow us to judge this extent. Second, there are limitations to the test itself. Drivers who use illegal substances other than the five the DOT tests for, those are amphetamines, cocaine, opiates, marijuana and PCP, or who use certain prescription medications may not be identified. Also, the urine test does not provide indications of drug use history because it can only detect the presence of drugs taken within the previous several days. Finally, lack of disclosure of past positive drug tests is a problem. DOT regulations require that an employer, in addition to testing a job applicant, inquire about that applicant's drug test history and contact the driver's recent employers. Representatives from several motor carriers told us it is easy for drivers to simply omit any previous employer for whom they tested positive or any such pre-employment drug test. Such drivers can remain drug-free for a period of time leading up to their next pre-employment test, get a negative result and get hired without their new employer knowing about any past positive tests. In our ongoing work, we are analyzing options for addressing some of these problems including their costs, advantages and disadvantages. These include publicizing information and successful practices regarding drug testing requirements to carriers, service agents and drivers, improving and expanding FMCSA oversight and enforcement, adopting Federal legislation prohibiting the sale, manufacture or use of adulterants or substitutes, testing for more and different drugs, testing alternative specimens, and developing a national reporting requirement for past positive drug test results. We will be issuing our report to the Committee in May. I will take any questions when the Committee is ready. Thank you. Mr. DeFazio. Thank you. We would now turn to Dr. Smith. Go ahead. Ms. Smith. My name is Dr. Donna Smith. I represent today, before you, the Substance Abuse Administrators' Association which is a non-profit professional group that has as its members, DOT regulated employers and service agents who assist them and support them in implementing and conducting workplace drug and alcohol testing programs. In preparation for my being here today, the organization did conduct a survey, a very thorough survey of its membership to explore the problems that the Committee is addressing. We also held a recent conference where this particular topic was discussed and where more data were provided. So, as a summary of that, I would like to present that there are probably three main things that I believe and that the association believes are roadblocks to being able to effectively implement the Department of Transportation's drug and alcohol testing program and to achieve its objectives of deterrence and detection of illegal drug use among safety- sensitive workers. Those three things, my colleagues have already mentioned. One is obviously that there are opportunities to cheat on the drug test and very, very little opportunity to detect that cheating. Secondly is that the when the rules have been successful in identifying an individual who tests positive or who refuses to test through an adulterated or substituted drug test, by our best estimates, only 40 percent of those go through any kind of rehabilitation, intervention or return to duty efforts. Now other people would say, well, that is a good thing; it is working; they aren't working in transportation any more or they aren't driving a truck any more. I am not at all convinced that that is true. The third thing that I think is the greatest impediment to the success of the Department of Transportation's drug and alcohol testing regulations is a real difficulty in implementing effective compliance monitoring, and that is particularly true in the commercial motor carrier industry. I would to take just a couple of more minutes to explain in some depth what some of the things that I think are critical. Having to do with collection sites, when I worked for five years at the U.S. Department of Transportation at the time that the Omnibus Act was being implemented and the regulations were being promulgated, we always said then that we knew that the collection of the specimen was going to be the weakest link in the process. We had a lot of tools to address the analytical issues in the laboratories. We had a lot of ways that we could address issues in terms of the training and the expertise of the physicians who would review and interpret test results. The mere scope of specimen collection for potentially hundreds of thousands of employers is mind-boggling. Our estimate in our association is that there are probably at least 10,000 collection sites that service DOT-regulated employers across the U.S. These are laboratories, patient service centers. These are urgent care centers. They are doctors' offices. They are chiropractors' offices. They are whatever. In almost all cases, collecting a forensic urine drug sample is not their core business and, in almost all cases, this task is entrusted to the lowest paid, least trained member of that staff. So I think just getting our hands around that is difficult. In terms of the return to duty process and people that circumvent that--and I think it may be as high as 50,000 people that we have caught on the drug test but who do not go through the return to duty process--I think that we need to look seriously at the opportunity for a national database. The U.S. Coast Guard, the Federal Aviation Administration and, to some extent, the Federal Railroad Administration have been much more successful because they are able to rescind or revoke licenses or documents, and people therefore cannot work in that industry again until they have been able to satisfy the return to duty requirements. So, in short, the recommendations to the Committee from SAPAA are as follows: That the Congress support and pass some form of the Drug Testing Integrity Act to try to get a handle on the proliferation of the adulterants and the other products so readily available. That they would follow what six States have tried to do. Of course, the purveyors of these products simply get around that by having the ads on their web site: We can't ship to you in North Carolina, but we can ship it to a friend or family member in any of the neighboring States. So I think we need a national piece of legislation, Mr. Chairman. I think that we also need to increase funding and resource for the Federal Motor Carrier Safety Administration. The ratio of auditor or inspector to carrier is abysmal. But we have to make those more than paper audits, more than an auditor or an inspector going in and saying: Let me see our statistical report for the year. Let me see your written policy. The inspectors must be trained and they must be held to go out into the field to do the kind of collections that Mr. Kutz's organization did in terms of seeing what is going on. I also believe that the development somehow of a national database is essential to stop the job-hopping. You have an industry where turnover rate, where availability of drivers really drives and encourages the process of being able to walk out of one trucking company or motor carrier and go down the road to the next. Finally, I think that the Department of Transportation needs to more effectively wield a club and a tool that it already has in place in the regulations which is the Public Interest Exclusionary Process so that when collection sites or when third party administrators or when medical review officers flagrantly disregard the requirements that are already there in the rule, that they are in fact posted as this service agent cannot do business with a DOT-regulated employer. Thank you for your time and your attention. Mr. DeFazio. Thank you. We would now go for a round of questions. First, a couple of questions from web sites, if I could see the slide that says, this one claims Government endorsement. Could the GAO comment on that? It says we carry FDA-approved drug test detoxification programs for passing serious drug tests. All of our products are manufactured in the U.S. I, of course, supported manufactured in the U.S., but---- [Laughter.] Mr. DeFazio. Located DHS and DEA certified facilities. Can you comment? Do you have any comment or insight into that claim? Mr. Kutz. I don't certainly. Ms. Siggerud. I don't either. Mr. DeFazio. Okay. How about then the favorite links from a DAT testing facility web site slide? No, not the Whizzinator. Yes, here we go, the last one. This is from a lab called, I think it is blacked out. They are in California. Some of the specifics are blacked out. I don't know why. I would love to publish their name right now, but I will get it later. It is something health care clinic, Commerce, California, and they administer commercial truck driver medical exams and drug testing. They have their favorite links. We all like our favorite links. Their favorite link is to--could we have the next slide please--Insider's Guide to Passing a Drug Test: What the Labs Don't Want You to Know. This is on the web site of a company that is certified to do commercial truck driver medical exams and drug testing. Ms. Siggerud. Well, I think, Chairman DeFazio, clearly that is a problem, and we have all made the case today here that these adulterants and substitutes are not regulated except by a few States and that there is an issue with oversight of these collection facilities. It is not surprising, therefore, to see a collection facility web site that would have, shall we say, questionable information on it. Mr. DeFazio. I think, Dr. Smith, this might go to your comment about the exclusionary process or the disqualification process. Maybe a company that is doing medical exams and drug testing that has a favorite link on how to beat the test, do you think they ought to be doing these tests? Ms. Smith. No, sir, and I think that is the point. It is just like what I think we have been through as a Country in terms of how did we get OSHA compliance. There has to be--there has to be some kind of threat, a risk assessment that every employer, every company is going to go through in terms of what may happen if I don't comply, and I think that it has been difficult. I think one of the fears, Mr. Chairman--and I know this was true when I was at the Department of Transportation--is if we rode these people too hard, then they will simply say: Okay, I am not going to do drug testing anymore, all right, DOT drug testing. It is not a big part of my revenue anyway and, you know what, I don't even care if I do the DOT physicals. I am going getting 25 or 35 bucks for those. So that is okay. The concern was all right, then we are simply going to make it harder for a commercial motor carrier to comply because they are not going to have very many places that they can send this driver for that random test when he is between Moose Breath and wherever. Mr. DeFazio. Okay, thank you. In the testimony by Mr. Kutz, on page 20, you say here: Corrective Action Briefing, we briefed the DOT on the results of our investigation on October 1st, 2007. DOT officials agreed with our findings and indicated they were not surprised by the results of our work, stating that they have performed similar tests themselves in prior years with similar results. Do you stand by that? They actually said that? Mr. Kutz. Yes. We do corrective action briefings all the time. Our protocols are first to brief your staff, and then we go to the agencies affected and brief them. We document what we say to us, and that is correct. Mr. DeFazio. Then it says there their response was they developed posters? Mr. Kutz. That is what it says, yes. Mr. DeFazio. Are the posters required to be posted in these facilities? Mr. Kutz. I don't believe they are required. We did see one of the best practices was one of the places that followed all the protocols actually did have posters up there. So that certainly was one of the better things we did see, and we didn't see many good things. Mr. DeFazio. Then they also said that the REAL ID Act could close a vulnerability identified, using fake driver's licenses. My recollection, and you could help me out with this, on the REAL ID Act is I believe State compliance is required in 2009 or 2010 and then States are not required until a person's license is reissued to provide a REAL ID-capable license, which could be in some States as long as 10 years. So we could be looking at 2020. Mr. Kutz. That is a long term, clearly. Mr. DeFazio. Right, right. Mr. Kutz. I agree. Mr. DeFazio. They didn't seem disturbed by the fact you were able to successfully penetrate all these facilities with fake driver's licenses today? Mr. Kutz. I think they were, but they didn't really offer a short term solution. I think that is something we can talk about at the hearing today, are there short term solutions to that issue. Mr. DeFazio. What would those be? Mr. Kutz. Well, we talked about two possibilities, either the employer faxing a copy of identification to the test sites of the person coming to take the test or actually the test site making copies of the credentials that were given to them for the person taking the test and making sure that those go back to the employer, so the employer makes sure that the person who took the test is in fact their person. That could be a short term, low cost alternative. Mr. DeFazio. Okay, we will be asking the Administrator if he would like to do that. I have a question about part of the problem with the drug testing is it is obviously ephemeral, and there is some discussion about hair and other things. Is hair testing accurate for historic drug use which might then give us probable cause to target more testing on that person? Can anybody comment on that? Ms. Smith. I can comment on that simply by the involvement that I have had with clients that utilize hair testing. Does it give a longer window of detection for illegal drug use depending on the length of hair sample? The answer to that question is yes. Is it reliable? I think again the science is divided on that. It certainly is analytically reliable. I think you have questions about whether or not single time or recreational use is as easily detected in terms of absorption into the hair as you do people who are chronic or frequent users. I think you also have some of the issues with regard to the availability of sample depending on where on the body you can get sufficient hair, so from a reliability, et cetera. I think, though, the thing that would address some of the issues that we are having here is, and I am sure Mr. Stephenson and Dr. Bush from SAMHSA will back me up, since hair testing has begun to proliferate more in the non-regulated drug testing world--that is employers doing drug tests not under Federal authority of any kind--we have seen the products, the ads and whatever increase over 300 percent for shampoos, for hair preparations that you would put on your hair to pass your hair test if your employer has gone to that. I have had collectors, who have been trained how to snip the hair and package the hair, contact me because people are showing up with weaves and with human hair wigs and all kinds of things. So I don't want you to think that by changing specimens, you can necessarily---- Mr. DeFazio. That is not exactly where I was going. Where I was going was that the hair test, since it is not real time and there is potential dispute, could be used as an indicator to give us probable cause to target that individual for more frequent urinalysis or something along those lines. Not necessarily a disqualification but say: Well, we notice the test shows you have been using drugs in the past. That means you are going to be subjected to more frequent random testing. Ms. Smith. And I can tell you that I have seen that used in other programs that I have been involved with particularly in the area of monitoring healthcare professionals who have had their licenses rescinded for substance abuse. Mr. DeFazio. Then one other, yes. Ms. Siggerud. Chairman DeFazio, we will be looking at these alternative specimens in our work, in our report that will be issued in May. Let me just mention a couple things to keep in mind about them. I think part of it is we need to decide what it is we are trying to accomplish. Are we looking for long term use or are we looking for recent use? The urine is useful for recent use; the hair is useful for longer term use. We have talked with motor carriers who are using hair testing as part of a pre-employment test for that very reason and then also using urine testing. The other issue to keep in mind is, of course, what Dr. Smith brought up. In deciding to go a different direction in this area, we need to look at the potential to address the two problems that Mr. Kutz found, and that is the ability to substitute or to adulterate and whether the industry that assists with that will sort of ramp up and be responsive to a new testing. Mr. DeFazio. That goes to that requirement. Are you familiar with this requirement that DHHS publish a road map on how to beat the system and can you tell me what the possible rationale for that is? Ms. Siggerud. DHHS does, in fact, publish in the Federal Register, protocols for testing and ranges within which testing will be done. My understanding is that is a Federal requirement. Dr. Smith may have some more to say about that. Ms. Smith. I would defer that, I think, for when Mr. Stephenson is here. He can tell you exactly the circumstance under which that has to be published. Mr. DeFazio. Okay, we may want to. Then, finally, on the job-hopping which was raised and the issue of a Federal registry, we had a report in 2004 and from reviewing the FMCSA testimony, it seems like they are thinking about it. Is that sort of the extent of where we are at here? They are kind of thinking about it? This is an identified problem. Did you have any discussions with FMCSA about the national database and the need for one and the job-hopping problem. Ms. Siggerud. Yes, we have had discussions with FMCSA and, in our ongoing work, we also do plan to go to the States that have a registry already. There are a number of them across the Country and two States that actually not only require reporting but connect that then to the provision of the CDL. There are a number of issues to be addressed there. Clearly, the registry would address two problems. One would be the job-hopping issue. The other would be helping employers to comply with the requirement that they do check the previous drug history. The registry addresses both of those. Clearly, in setting it up, there are a number of things to think about, the resources that would need to be devoted to the registry to make sure that it is timely and accurate and then another question of whether, at the Federal level, you want to make the connection to the CDL the way a few of the States are doing. Mr. DeFazio. Okay, we will look forward to your further thoughts on that. I do have the full name now. It is the Ross Healthcare Clinic in Commerce, California, great citizens. We might want to have FMCSA consider whether they want these people to still continue to be eligible to apply to do medical exams and drug testing given their advocacy for beating the drug test, and that isn't an advertisement for this company. Thank you. I turn now to the Ranking Member, Mr. Duncan. Mr. Duncan. Well, thank you, Mr. Chairman. Ms. Siggerud, you say in your statement that DOT estimates that approximately 4.2 million people including truck and bus drivers work in such positions, in other words, commercial driving, and that commercial motor carriers account for less than 5 percent of all highway crashes, but these crashes result in about 13 percent of all highway deaths or about 5,500 of the approximately 43,000 annual highway fatalities. A DOT study on the factors associated with large truck crashes finds that vehicle factors such as brake problems and behavioral factors such as speeding and driver fatigue are some of the most frequently cited factors involved in large truck crashes while illegal drug usage is not among the most frequently cited factors, appearing as an associated factor in only 2 percent of the crashes, which everybody would agree is 2 percent too many. I just wonder, do you have faith in that DOT study or, in your investigation of this, do you have any reason to question that? Do you think that 2 percent figure is accurate? I am just trying to learn the extent of the problem here. Ms. Siggerud. Yes, there are a lot of different ways to think about that, Mr. Duncan, but let me just make a few points. It certainly is true that the study, and this is the Large Truck Crash Causation Study. It is an ongoing study that was done to investigate crashes post hoc, and it is very comprehensive. Mr. Duncan. You say it is a long term study? Ms. Siggerud. It is called the Large Truck Crash Causation Study. Mr. Duncan. How long has it been going on? Ms. Siggerud. I would have to get that to you for the record, Mr. Duncan. Mr. Duncan. Anyway, it has been several years? Ms. Siggerud. Yes, it has. The idea of it is it goes out to crashes and investigates a number of factors related to them after the crash. It does, of course, identify that equipment failure and behavior problems are very significant causes of crashes. Of course, this Committee has looked at those issues in other hearings. With regard to the amount of illegal drug use going on, though, and its contribution to crashes, we really don't know very well what the actual percentage is of drivers that are using drugs. The bottom number is certainly the 2 percent that FMCSA identifies. The upper bound may be somewhere around the 10 percent that hair testing and other testing has shown. So it is fairly difficult to know exactly what the causes are. Another part of that Large Truck Crash Causation Study did say, however, that there is no doubt that illegal drug use does increase the likelihood and the risk of a crash occurring. Mr. Duncan. I am told by staff that of these four million truck and bus drivers that approximately half are tested every year. Is that fairly accurate? Ms. Siggerud. The Federal requirement is that 50 percent of workers be tested in a given year, yes. Mr. Duncan. So I am not sure I understood what you just said. Roughly, two million are being tested each year, is that correct? Ms. Siggerud. That is certainly what the requirement is. We have some concerns based on our work. Mr. Duncan. Well, it may be what the requirement is. What I am trying to get at is how many do you think are being tested. Ms. Siggerud. My guess is when it comes to motor carriers, it is probably less than 50 percent. We did find in our work, and FMCSA has told us this, that when they go out and do these safety audits of new companies that are just getting a DOT number and entering into the motor carrier business, that they find that 30 percent of those companies have no drug testing program at all. So my guess is less than 50 percent of motor carriers' drivers are being tested in any given year. Mr. Duncan. I am also told that roughly 2 percent of the total number of drivers test positive. Ms. Siggerud. Of those that are tested and where, in fact, the test is able to either find a positive test or an adulterated test, as Mr. Kutz has said and as we have found, we think that there is a higher number that were actually successfully substituting or adulterating and not getting caught. Mr. Duncan. Is it accurate then that 40 percent of those who have tested positive go through the return to duty process? Ms. Siggerud. I don't have those numbers in front of me, Mr. Duncan, but I have no reason to doubt what Dr. Smith said. Mr. Duncan. All right. Mr. Kutz, what is involved in the return to duty process? In your investigation of all of this, do you think that the return to duty process is sufficient in most instances? Mr. Kutz. We stopped. We actually did the test and stopped. Mr. Duncan. You didn't look into that? Mr. Kutz. No, we didn't look at that. Once we got our negative results back, we were done. Ms. Siggerud. Mr. Duncan, I can comment on that if you would like me to. Mr. Duncan. Yes, go right ahead. Ms. Siggerud. Once a positive test is reported to an employer, what is supposed to happen is the driver is supposed to be removed from that safety-sensitive position and then be allowed to go through this process which would typically involve education, treatment and a series of drug tests before being allowed to return to duty. Mr. Duncan. Well, is the main problem here not so much in the number of drivers being tested, but it is in the fact that it is so easy falsify or manipulate these tests? Is that the main problem? Ms. Siggerud. I would say there are two problems. That is one of them. The other is that there is a fair amount of non- compliance within the motor carrier community itself in terms of actually getting drivers to enroll in this drug testing program at all. Mr. Duncan. Dr. Smith, do you feel that the States are being harsh enough on the drivers that have these accidents in which drugs are involved? Secondly, do you question this return to duty process and your association, has it been trying to encourage or do something to see that the States do get a little tougher in enforcement? In other words, in our system, the Federal Government can't do everything. The State and local people have to do some things as well. Ms. Smith. Two things, I think that are of note: In the six States, and I only have data on three of them, there is a requirement that either the medical review officer or the employer report DOT violations such as a positive drug test or refusal to test where the specimen is adulterated or substituted and that that information is then put onto that driver's CDL. The substance abuse professionals that I have spoken to that operate in those States have seen higher compliance with going through the return to duty process because the driver in the State of Oregon, for example, okay, knows that positive test is on his CDL record. In order for him to work in transportation again, unless he leaves the State and is able to get a CDL elsewhere, is contingent upon him completing the return to duty process that Ms. Siggerud just mentioned with regard to a substance abuse professional evaluation, completion of education or rehabilitation and having passed a return to duty and then being subject to increased, intensified monitoring through follow-up testing in addition to taking his or her chances in the random pool. So I think that, yes, where States have taken the lead, I think that there is an effect. It is only two States I can judge it on. I don't have a lot of data, Mr. Duncan. Mr. Duncan. All right. One last question, Mr. Kutz, what do you think is the best way to stop or discourage this cheating or this manipulation of these tests that seems to be going on at this point? Mr. Kutz. Well, if you don't address the actual collection process and move towards more of a direct observation, you really have to attack these products because these products are so widespread. It is interesting that 1 or 2 percent of the people fail. I would like to meet those people because it would hard to imagine someone not being able to beat at test if they were fairly skilled and actually bring in synthetic urine. They don't check your socks, for example. So if you put synthetic urine in your sock, you potentially could beat this test 100 percent of the time. Mr. Duncan. Well, when you say address the collection process or get to the products, how do you think we should go about that? That is the question. How can we stop this cheating, do you think? Mr. Kutz. Well, certainly, with respect to the current process, better adherence to the current protocol would help. We found an average of four to five out of the sixteen tests we looked at or of the protocols we looked were not followed by the sites. So, right there, you have a problem with adherence to DOT protocols. With respect to improving that process, again, and I am not saying this is the right answer but a direct observation is one certain way to know that you are getting the person's urine. There is still potential ways to beat that, but direct observation is certainly a stronger test. Then again, the products at the end of the process, just it is a proliferation of those products. Again, since there is not a real search of the person going into the site to take the test, it is very easy to hide an adulterant or synthetic urine to get in. So it is really there is no silver bullet. I think there are a lot of pieces of this that need to be looked at. Mr. Duncan. All right, thank you very much. Mr. DeFazio. I thank the Ranking Member. I turn now to the Chairman. Mr. Oberstar. Thank you, Mr. Chairman. I want to thank this panel for your very thoughtful and in- depth review and shocking information that you have provided for us. Mr. Kutz, when you got deeply into this investigation and you found these products--Whizzies, UrineLuck, Stealth--and guidance on how to pass a drug test, and found those products on Craig's List and eBay and Amazon, what was your gut reaction? Mr. Kutz. Well, I wasn't surprised they were out there, but the number of hits you get when you put in, for example, beat drug test and pass drug test, it is hundreds of thousands or millions of hits out there. So it is just amazing the number of entities that are out there that are marketing these products. Mr. Oberstar. Hundreds of thousands and millions of hits telling the subscriber, the person checking in on the internet, this is how you can beat the DOT, flat-out telling them how to operate illegally, right? Mr. Kutz. It is the DOT and any other drug test. I mean it is much broader than that, but DOT is specified in many of the web sites. We will help you beat the DOT test, guaranteed, 200 percent money back return, all those kinds of guarantees. Mr. Oberstar. And FDA-approved, as Mr. DeFazio pointed out there. Mr. Kutz. I saw that representation. Whether that is true or not. Mr. Oberstar. Wild claim, whether it is true or not, it gets your attention right away. Mr. Kutz. Many claims like that, yes. Mr. Oberstar. But others, than drivers, would be subscribing to those list, wouldn't they? Mr. Kutz. That is correct. Mr. Oberstar. Dr. Smith, you touched on but didn't get deeply into the issue of making the products, the masking products illegal. Has your organization pursued this matter in any depth? Ms. Smith. Yes, we have, in fact. Mr. Oberstar. You did suggest a Drug Test Integrity act. Ms. Smith. Yes, that was last introduced as, I believe, H.R. 4910, and SAPAA did present testimony in a hearing on that particular bill. My understanding is it went to Committee and was not acted upon or did not go any further. Mr. Oberstar. That was in the last Congress. Ms. Smith. Yes, sir. Mr. Oberstar. That was in the Committee on Energy and Commerce. Ms. Smith. That is correct. Mr. Oberstar. We have that bill. Staff has looked at the Drug Testing Integrity Act. I have just made a cursory review of it. We need to look at that in greater depth, and we welcome your suggestions as to how we can make it more effective. Ms. Smith. We would be happy to provide that because I think it is very essential that we are as comprehensive as possible in the language. If you have something like, for example, if you have language that any product that is solely produced or distributed or sold to defraud a drug test, you will find that suddenly those labels will say a product suitable for cleaning your fine jewelry, okay, for making precision instruments operate cleanly and for detoxifying body fluids. So now it simply comes. Now, of course, the product's name may have something clever like Mary Jane Super Clean, wink wink, okay, Mary Jane, of course, the code name for marijuana. So I think it is important that there be a lot of thought placed into putting together a piece of legislation that can have some effect. I might also add that I think there are 15 States now that have some degree of legislation in this regard. Some of the most successful ones have been ones where it also makes it a criminal offense, albeit there are a lot of different levels from misdemeanor to whatever, for the person who is caught using a product. So it is really trying to get at the end user as well as the manufacturer, distributor, et cetera. I would think that that should be something the Committee or whoever would sponsor such a bill should take into account. Mr. Oberstar. I am glad you elaborated on it because you touched on all the follow-up points I was going to raise. You are very good. Once you say, okay, this is illegal because it has no other valid societal beneficial use, then some other application like it is a good pesticide can be tacked onto it. Ms. Smith. And FDA-approved. Mr. Oberstar. This anti-drug effort has to be a multilayered issue just like security. Security has to be multilayered. You cannot do just one thing. You have to have many applications, many aspects. Just as in safety in aviation, we don't do just one thing. We don't build one practice into an aircraft. We build many backups, redundancies. So there have to be backups and redundancies in this drug testing, and one of those is to go the origin. Make the product illegal so at least there is a way to catch someone doing it and potentially shut them down. Then the testing, the process of testing and then the user and then the company that is hiring the people. One of the later testimonies we will see is a suggestion for a national clearinghouse. You suggested a national database, something that I have advocated. We also have the National Driver Register which catches over 350,000, 400,000 drivers a year who lose their license in one State and are still able to get a license or try to get a license in another State. The NDR has cut those people, prevented them from getting licenses. I know a little something about that because I authored that legislation 25 years ago, and aviation uses the NDR now. Something of this nature and maybe expanding the information available through the National Driver Registry would be beneficial as well. Ms. Smith. The only response that I have there is, and I am not an attorney but having dealt for many years with this with my former colleague from the Department of Transportation, Robert Ashby, there is a difference or what would have to be adopted, a difference from DOT drug tests which are administrative employer, et cetera, as opposed to something that has been adjudicated through the criminal justice system such as a driving under the influence or a driving while intoxicated. So, I would agree. Certainly, the NDR has been extremely effective in my opinion with how FAA has used it to identify pilots and others who have DWI convictions and that is an indicator of substance abuse or an issue that needs to be dealt with. I really do think that it is possible. I know that it will be a cumbersome system because there has to be some type of avenue for correction to records that are incorrect. There has to be some way to document effectively for the driver who has gone through the return to duty process and has successfully completed rehabilitation and therefore should be eligible. All of those things are necessary. Mr. Oberstar. Thank you. Mr. Duncan asked, I think, a key question in this process that we are engaged in, that is, is the problem that the tests are easy to bypass? We don't need to rehash the answer because it was a very good answer and complete answer. But how do we deal with that? Mr. Kutz, I know your investigation was aimed at finding the issues that you raised, the problems that you have reported on, but in the process you and Ms. Siggerud surely have some ideas how testing can be made more effective. Mr. Kutz. Well, I would say again you have mentioned that you have to look at all the phases of this program. Mr. Oberstar. Yes. Mr. Kutz. From our perspective, with the covert testing we did, from the moment you walked in the door until the point in time when the lab actually tested the urine, there were issues with all phases of that. I can look at it as three phases: You walked in the door with the counterfeit ID. You were able to get in. You were able to do through the protocols. They didn't follow a lot of protocols and, even if they did, you could substitute the urine or adulterate the urine. Then when you sent it to the laboratories, the lab was unable to detect in the eight cases we did the adulterants or the synthetic urine. So you have issues even with the laboratories and what kind of testing they are doing and how effective that is. We haven't discussed that yet even. Mr. Oberstar. The driver ID was again shocking, but that is an issue that the Department of Homeland Security is dealing with for a secure identification card for transportation workers. We need to engage them in this process of accelerating their development of the TWIC and coordinating with other agencies of Federal and State Government. We have to engage the States in this process as well. Then the next is the protocols. What are your thoughts about the presence of an observer in the delivery of a sample? Mr. Kutz. Well, again, it gets into the tradeoff between privacy and other issues and having an effective drug test. Certainly, direct observation is going to be a lot harder to beat than actually going into a room and closing the door. We did have one instance where the individual actually made our agent leave the door open, and we still were able to substitute synthetic urine into the collection cup and beat the test. So it is very difficult without a direct observation to actually catch someone trying to cheat. Ms. Siggerud. Mr. Oberstar, if I could add to that. Mr. Oberstar. Yes, Ms. Siggerud. Ms. Siggerud. I think the thing to keep in mind in expanding in that direction, which would be much more labor- intensive than the current approach, of course, is that not only are we talking about motor carriers but transit workers, rail workers, aviation workers, et cetera, the vast majority of whom are not using drugs. Having a directly observed observation for people who are likely not criminals, I think, would be a very big step to take. Mr. Oberstar. And could be very hugely labor-intensive, no question about it. I know that. Look, in bridge testing, we had testimony just last week in Mr. DeFazio's hearing on legislation and we reported yesterday on a bridge safety program, that the State of Minnesota has only 77 inspectors for 14,000 bridges. They don't have enough people to do that job. Imagine trying to deal with seven million drivers in this Country. Well, we need to think this through. What about the lab test? Wouldn't that be something more amenable to management, that Federal and State Governments could actually exercise control over the labs that are doing the testing? Mr. Kutz. I think HHS does exercise some oversight of the labs, certainly. Again, getting into the issue of whether the labs are actually testing for synthetic urine or dilutants, right now for this test, the DOT test we did, we don't know whether they were checking for the synthetic urine or the adulterants. They are authorized but not required to, and so that is another thing, certainly. Mr. Oberstar. We need to close that loophole then. Mr. Kutz. That could be a loophole in addition to what Chairman DeFazio said with respect to the advertising for these people out there, what actually they are testing for and what kind of things are out there. That is something that needs to be looked at. That could be a simple fix so that these people who are out there, devising products to beat the system, don't know everything they need to know. Mr. Oberstar. We absolutely have to crack down, I think, on that advertising on the internet how to beat the DOT. That is something within our ability to do. If we have the chip for parents to prevent their kids from being exposed to bad TV, we ought to be able to do something like this. All right, I have gone on way too long, but I am exercised about this. Mr. DeFazio. Thank you, Mr. Chairman. Just one very quick point, I believe a lot of the airlines--I have heard complaints from the employees--do direct observation because you mentioned, Ms. Siggerud, FAA, but I think they do. No? You are shaking your head. No, okay. Ms. Smith. Under Federal authority, any employer in transportation, whether it is an airline or whether it is a motor carrier, is limited to just six very specific circumstances where they can do direct observation. Those, under the regulatory scheme, have been identified as instances where the employee or the candidate has a lowered expectation of privacy. For example, a flight attendant who has a positive test and now must undergo follow-up testing, the airline can do every single one of those follow-up tests under direct observation. Mr. DeFazio. All right, so it is sort of a probable cause thing. Okay, thank you. Mr. Boustany will go ahead with his questions. Mr. Boustany. Thank you, Mr. Chairman. Mr. Oberstar. Mr. Chairman, we have a doctor here now. Maybe he can help us get to the bottom of this. Mr. Boustany. Human ingenuity is truly amazing especially when used for devious purposes. With that having been said, it leads me to doubt whether we can actually truly regulate and eliminate the use of adulterants. That is going to be a difficult problem. In looking at this, I sort of broke it down into test integrity, looking at the collection process and looking at the lab accuracy and reporting. Then there are lab compliance and certification issues, what is the role of the State versus the Federal DOT in laying out those kinds of guidelines. Reporting, a database, then what you mentioned, a Federal database or should there be State databases with sharing of information. Then the effectiveness of the return to duty process. I guess I have so many questions, it is going to be impossible to ask them all, but I will start off with the return to duty process. How really effective is it right now? Ms. Smith. It is my opinion from being in this industry for a number of years that it is minimally effective. I think that the problem that we have of under the Department of Transportation regulations a motor carrier nor any other employer is required to give a person an opportunity for rehabilitation, hold their job open and then monitor their after-care. It is my experience that in particularly the motor carrier industry, the majority of trucking companies where a driver is positive, they terminate them. They fire them on the spot. They are required by the DOT rules to hand them with their pink slip in one hand, in the other hand, by the way, here is the name and address of a qualified substance abuse professional. Go and get thee help. Mr. Boustany. But we don't know what happens to them afterwards. Ms. Smith. Our information shows that clearly less than 40 percent of those ever follow through with that substance abuse professional referral. Mr. Boustany. So, they leave. Some of them can leave the State, go get a CDL in another State by just not revealing information, and so we have major loopholes in that system or that issue alone. Another question, I am a physician but I am not an expert on laboratory science. Is there some general agreement on standards used to detect drug use and abuse, combinations of random testing with scheduled testing? Is there some general agreement that give you 90 percent confidence, 95 percent confidence or so on? Ms. Smith. The best data that are probably available on that comes from the years of the U.S. Military's drug testing program in terms of at what percentage, for example. Ms. Siggerud mentioned that the current percentage in the motor carrier industry is 50 percent random annually. In terms of looking at a population that you make some assumption of, what percentage random testing gives you the optimal deterrence, for example? What are the odds, if you will, that a person will be found, will be identified on a pre-employment drug test when they have had two or three days notice to clean up and not use drugs and knowing the detection level, et cetera? Those kinds of data are available. I can tell you in terms of trying to estimate the scope of the problem, a formula that has long been in place is if your random testing positive rate is, let's say, 1 percent, using urine drug testing with the detection windows available, given the statistical manipulation, your best estimate is that the actual prevalence of current use is 3 and a half times that percentage. There are limited studies available, sir, but that is the best that we have been able to do. Mr. Boustany. Thank you. In terms of looking at laboratories and trying to make sure that laboratories are doing all that is necessary with regard to collection standards, accuracy reporting and so forth, what is the role of the State and State DOT versus Federal in that? Typically, labs and the practice of medicine is sort of a State-regulated issue. Could you comment on that interface? Ms. Siggerud. Mr. Boustany, this is a Federal program that we are talking about. So the collection sites are expected to follow standards and training established by the Federal Government. The medical review officers are again following standards established by the Federal Government. Mr. Boustany. Federal guidelines. Ms. Siggerud. The laboratories that test the specimens are regulated by the Department of Health and Human Services. Mr. Boustany. Okay, because clearly there is going to be a need to try to tighten all that up or do you feel that the standards are appropriate and it is just that the laboratories are not following the standards? Ms. Siggerud. I want to make a distinction here between collection sites and laboratories. Mr. Boustany. Right. Ms. Siggerud. A lot of the issues we have talked about today have been more on the collection site side and whether those protocols are being followed and whether even when they are whether they can be subverted. The laboratories then are, of course, regulated by the Department of Health and Human Services, and we have not focused as much on whether there are particular issues there. We have a later witness on that, of course, but Mr. Kutz did find the laboratories were unable to identify some of the adulterated specimens that his investigators submitted. Mr. Kutz. Right, of the eight specimens we submitted, four of them were synthetic urine and four were adulterated. The urine we adulterated was clean urine. So we don't know whether an adulterant would have actually worked for a drug user, but the synthetic urine also produced a negative test result. We didn't know whether the labs would be able to catch it or not. We weren't certain of that. Mr. Boustany. Okay. I mean we need to focus on both sides of it, the collection side and the laboratory accuracy piece. Mr. Kutz. Yes. Mr. Boustany. Thank you. That is all I have, Mr. Chairman. Mr. DeFazio. Thank you. We have only seven minutes until the vote. Do you want to do your five minutes now, Grace? Okay, go ahead, Mrs. Napolitano. Mrs. Napolitano. Very quickly because I know we have to get out, the test integrity itself is questionable, of course. Some of it is done not in labs, right? Am I correct? So their validity is in question. What about employees of the labs? My reading of the staff memo indicates that there is a high turnover. Is there a question? Have you validated the integrity of the employees themselves in the labs? Ms. Smith. I think again, if I can respond to that, that comment was intended for the collection sites, these 10,000 doctors' offices, clinics, patient service centers. There are only approximately 57 laboratories that actually do the analysis of the specimens, that are certified by the Department of Health and Human Services, but there are all of these other collection sites where the process begins. Mrs. Napolitano. There are no penalties for the employee who is found with dirty urine, am I correct? In other words, they can just be referred and hopefully they will go. Like you say, 40 percent might go. What happens? Is there a way to be able to make it mandatory referral or a penalty if they do not to be able to keep this employee from not revealing a prior dismissal based on dirty urine and then go and find another job and put people in jeopardy? My concern has been because I live in an area where the Alameda Corridor has thousands of trucks a day. Many of them come through my district. My concern is the safety of the people and how are those truck drivers able to maintain if they are on amphetamines, and I don't see anything here related to alcohol, just drugs. Ms. Siggerud. Mrs. Napolitano, there is an alcohol program. We have just really focused our statements today on the drug testing program. It may be that there are witnesses who can talk more about that, but our focus is on the drug testing. I do want to be clear that for employees that have a positive test, their employers are required to immediately move them from a safety-sensitive position. So, in other words, they are not allowed to keep driving. Then there is this referral to this rehabilitation and treatment process. Mrs. Napolitano. I know, but it is not mandatory; it is voluntary. Ms. Siggerud. The treatment process is voluntary, that is right. Mrs. Napolitano. Then they go and find another job and not refer to their prior employment. Ms. Siggerud. In fact, that appears to be quite common in that they may go and apply for another job and not ever reveal that they worked at the employer where they had the positive drug test. Mrs. Napolitano. Well, Mr. Chair, I will stop now so that we can get to the vote, but I would like to be able to have a second round. Thank you very much. Mr. DeFazio. I thank the gentlelady. I thank her for using her time so efficiently. We will now recess the hearing. There are three votes. We should hopefully be back in about 20 minutes. [Recess.] Mr. DeFazio. Let's get organized here. I would recognize the gentleman from Texas, Mr. Poe. Mr. Poe. Thank you, Mr. Chairman. I am impressed with the GAO's ability to get to the truth, and I appreciate all three of you, your candor in testimony instead of double-talk which we seem to hear a lot of down here. I have three questions. You have described, I think, and very detailed the total, in my opinion, lack of the ability to test people who are driving these 18 wheelers throughout the Country. In spite of the fact this Committee and the sense of the House is that the Administration should not move forward with bringing in Mexican trucks, of course, we got the assurance from the Transportation Department that all these truck drivers coming in from south of the border are going to be tested, drug tested. Do you have any comments at all on the ability of Mexico to test its truck drivers that are coming into the United States? Do you know anything about their labs, their sampling, their process, if it exists? Ms. Siggerud. We have not looked at that in our ongoing work in GAO. Mr. Poe. I am not sure you would be able to find any of those labs down there in Mexico. But if at some point the GAO needs another project, maybe that would be a good one to find out what is happening because now we are bringing in thousands of more truckers into the United States, and we have no control over that testing procedure. It disturbs me a great deal. When I was on the bench in Texas for forever, we had the same problem of drug testing. We found that hair samples was one of the best ways to find out if people continued to use drugs. I say that to get to the second question. What is your opinion about you can call it a national database or registry system? A truck driver goes to business one. He flunks for whatever reason, whether he is using methamphetamines, amphetamines or anything else, cocaine. So he waits it out and then he goes to the second business, another trucking company. Am I correct that the second business has no record that he flunked the test with the first business? Is that a correct statement? Ms. Siggerud. Mr. Poe, that is a correct statement as long as he did not reveal that on his job application. Mr. Poe. Well, you know some of them might even tell them but probably not. What is your opinion of having a system where a person flunks at trucking business number one and trucking business number one puts the driver's license, the social security number, something into a registry that is monitored, supervised by the Federal Government, not paid for by the taxpayers but supervised by the Federal Government, where the trucking industry itself is able to pull up individuals to find out if they flunked with one business or another? Do you have an opinion on something like that? Ms. Siggerud. Mr. Poe, we are looking at that in our ongoing work. It is important to know that there are a couple of States that are doing that. So we plan to look at those to see how those models are working in terms of getting the information out, in terms of accuracy, timeliness and the extent to which then motor carriers are able to act on that information. The Motor Carriers Administration did do a study on this concept a few years ago. It was largely a positive study, feeling that it would deal with really two problems. One being the one you mentioned of moving from job to job without revealing a past drug test. The other being that motor carriers are expected to comply with Federal requirements to actually do an inquiry in this area, and it is difficult for them to do so if they don't have the information that they need. So we will be looking into that as a concept to address several of the problems that we have outlined in our statement today. Mr. Poe. With the States that are doing this, is it paid for by the trucking industry? Ms. Siggerud. I do not have that information, Mr. Poe. Mr. Poe. It would seem to me that it would be advantageous for the trucking industry to finance that some way because as a trial lawyer, if a guy flunked one place and he goes some place else and he is in a wreck, I would be suing that company because they didn't have due diligence about the first situation. So it seems like it would be to their interest, plus highway safety, to have such a system. Lastly, do you think the system is feasible by having the trucking industry support the system? Ms. Siggerud. I really don't have a comment on that, Mr. Poe. Mr. Poe. Okay. Thank you, Mr. Chairman. Mr. DeFazio. Thank you, Mr. Poe. At this point, I think we are going to move on to the next panel. I do have just one question since he raised the issue of Mexican trucks. I was at the border 10 days ago with the Secretary, and they are doing inspecting the trucks at the border, but my understanding is that the drug testing is being done within the commercial zone but not at the border. So it is being done through collection facilities within the commercial zone. Do we have any inclination or information that those are operating in a different way than the problems we have identified here with collection facilities? Ms. Siggerud. In our discussions with FMCSA staff, they had told us that they have sent additional personnel into those zones to pay more attention to those collection sites than they typically do in other parts of the Country. Mr. DeFazio. Okay, so they will be inspecting more than 2 percent of them on an annual basis. Ms. Siggerud. That is my understanding. Mr. DeFazio. Right, but of course even if they are following the standards, as Dr. Smith has said, basically only an imbecile could not figure out how to beat the test following the standards. Ms. Siggerud. I mean, as we said in our statement, that even if you have full compliance with all aspects of the drug testing program, there are still ways that drivers that use drugs can continue to drive a motor vehicle. Mr. DeFazio. Right, okay. Thank you. I am sorry. Mr. Boozman came in. John. Mr. Boozman. Thank you very much. Very quickly, Mr. Chairman, do we have the same problem across the board with physicians when they go, when they are being monitored, airplane pilots, people that work on trains, things like that? We are really talking about two things. We are talking about the problems of the industry as a whole and the drug testing industry and then the other thing specifically as it occurs with the truck drivers. Do we see the same thing, Dr. Smith? Ms. Smith. We do not see the same thing particularly in the aviation industry or in the railroad industry. Mr. Boozman. How do they do it differently? Ms. Smith. They are different I think because, for example, in the rail industry, it is our experience that the vast majority of those specimen collections are actually done on railroad property with very well trained and dedicated teams who come in and collect the specimens. There is almost always a supervisor present from the railroad as an example. Aviation, the vast majority of random tests, et cetera, on aviation safety-sensitive personnel are also similarly conducted at airport property or aviation company property, frequently again using personnel that are trained, that do that month after month in comparison to others. Mr. Boozman. So we have a much looser process with the trucking industry. Ms. Smith. Well, certainly, because the driver that works for an over the road hauler, for example, might have a random test done in any of 48 States near any truck stop or near wherever, and so it is extraordinarily difficult for the motor carrier to control that. Mr. Boozman. Right. Mr. Kutz, under the things that you all found, under current law, was there anything that was considered criminal, the violations that you saw? Mr. Kutz. No, not necessarily. No. Mr. Boozman. Has there been any criminal prosecution of the industry for any of these things that any of you all are aware of? Ms. Siggerud. Mr. Boozman, let me take a step back and answer that a couple of different ways. I mentioned in my statement that there is still a fair amount of non-compliance found with FMCSA does compliance reviews of motor carriers themselves in terms of having a program that meets the Federal standards. In those cases, FMCSA does have the ability to use fines and compliance orders, for example, to try to get that motor carrier to get its drug testing program up to snuff. With regard to the collection site issue that we have been talking about, FMCSA does not have that same enforcement authority. What it can do is take steps to remove that particular collection site or set of collection sites from the DOT drug testing program. Mr. Boozman. So have they ever done that? Have they removed sites? Ms. Siggerud. There have been a number. It is called a public interest exclusion. There have been a number of these efforts started. To my knowledge, in most cases, either the collection site has dropped out of the program or come into compliance. Mr. Boozman. But they really haven't kicked anybody out? Ms. Siggerud. Not that I know of. Mr. Boozman. I guess the only thing I would say is it doesn't really matter what we do if there is no enforcement mechanism. It just doesn't work. See what I am saying? Ms. Siggerud. The enforcement issue with regard to collection sites is one that I think both the Motor Carrier Safety Administration and this Committee should be considering. Mr. Boozman. Okay. Thank you, Mr. Chairman. Mr. DeFazio. I thank the gentleman. Mr. Duncan. Mr. Duncan. Just very briefly, Mr. Chairman, obviously we can't really know or we don't really know at this point how many of these two million tests each year are bad or illegitimate or cheated on or whatever, but the implication or the gist of your testimony is that cheating or falsifying these tests is pretty widespread and rampant primarily because of all the goods that are being advertised over the internet and for other reasons. What I am getting at it this: Law enforcement, they know they stop just a very tiny percentage of the speeders each year. They catch a much higher percentage of the more serious crimes, but even thousands of murders go unsolved each year. What I am wondering about is this: Instead of doing two million tests that we regard as joke tests or questionable tests, would we be better off to go on the deterrence theory of most law enforcement? Most law enforcement is based on the fact that while we know we are not going to solve even a tiny fraction of these crimes, at least there is a deterrence value out there that they think stops many other people from committing the crime. So would we be better off with some much lesser number of tests but tests that would be clearly legitimate, that would be random, that would be personally observed and tests that would be thorough and authentic, 50,000 or 100,000 of those? Would we better off with something like that or are we better to stay with the system that we have? Mr. Kutz. I would just comment on that. I think everything should be on the table here. I mean everybody is looking same thing, an improved process. I don't think anybody is happy with the results of what we have had today, and certainly I wouldn't be happy with respect to us going in 24 out of 24 times and potentially beating this test. Something different has to be done, and that could be an option that should be on the table. I mean I wouldn't dismiss it necessarily. Mr. Duncan. All right. Anybody else want to comment? Ms. Smith. I honestly believe that the Department of Transportation's drug and alcohol testing program and policy is well founded and well crafted. I think that it can be effective and, despite its shortcomings that we have talked about here today, I think there are some statistics that show that it has been effective from a deterrence perspective in terms of reducing the prevalence of illicit drug use by workers in the transportation industries over the past 10 years. If we can but fine-tune the program that we have in the areas that we have talked about today, I am convinced that it can be and is an effective Federal program for the deterrence and detection of illegal drug use. I am talking about national databases to prevent going from State to State or job to job. I am talking about making mandatory specimen validity testing and giving the laboratories and HHS more bulk to be able to go after the people that produce these substances. I am talking about being able, again, to utilize the PIE and other processes to weed those providers that are not committed to following the procedures and upholding the integrity of the process. I don't think the system, in terms of the rules, the program, is broken. I think the execution in terms of its enforcement is where our problems lie. Mr. Duncan. All right. Thank you very much. Mr. DeFazio. I thank the gentleman. He provoked one last question from me, and then we will move on. You said in the last 10 years, we have seen a big improvement, but since 1997 we have the 1.6 to 2.0 percent reported problem. Oregon has the 9 percent. We have self- reporting at 7.4. Since we have had that consistency in the most conservative number over those 10 years, I don't know how we can say that we have made big progress. Ms. Smith. You are right in terms of looking if you only look at drug test positive numbers, but I would suggest that there are other barometers for measuring the effectiveness of this program as a deterrent. If you look, for example, to the Department of Health and Human Services household survey data, which admittedly is self- report but nonetheless has had a standardized series of questions over the years, you can see that those individuals when polled anonymously who work in transportation industries today, who say they are current users of illicit drugs, is less than those who responded to that same question, workers in transportation industries, 10 years ago. You have not seen the same significant decrease in the general population at large. You have seen some decrease. I think that is but one measure, sir. Granted, it doesn't necessarily prove my point. Mr. DeFazio. Sure, I appreciate that. Okay, I thank this panel for their excellent testimony. Here is the way I would hope to proceed. I appreciate the indulgence of time that John Hill, the Administrator, and Robert Stephenson from SAMHSA have shown. What I would like to do is I won't put you last, but I think it would be instructive to hear from North Carolina and Oregon because I think it raises, first, we have a State that has addressed a lot of problems that have been laid out here today as far as I can tell from their testimony and then we have the question of is there a bigger problem from Oregon. So if you can possibly hang in, I would like to do it that way. Thank you. We would now have Mr. John Wilburn Williamson and Sergeant Alan Hageman. We will start with Mr. Williamson. I have read your testimony. You are not bound by it. If you want to read it, that is fine. If you want to depart from it given the preceding panel, we would be happy with that too. Go right ahead. You have five minutes. TESTIMONY OF JOHN WILBURN WILLIAMSON, ASSISTANT DIRECTOR FOR DRIVER AND VEHICLE SERVICES, NORTH CAROLINA DIVISION OF MOTOR VEHICLES; SERGEANT ALAN HAGEMAN, PATROL DIVISION SUPPORT/ LOGISTICS, OREGON STATE POLICE Mr. Williamson. First of all, I would like to take the opportunity, Mr. Chairman and Members of the Committee to let you know how honored we are to be here today, representing the great State of North Carolina, Governor Mike Easley and the Department of Transportation and our Division of Motor Vehicles. In late 2004, we were approached by the North Carolina Public Transportation Association with a problem they had with transit drivers testing positive for drugs and alcohol, being dismissed from employment and a few weeks later, when the driver felt comfortable, he or she would test negative for pre- employment testing, be hired by another transit company and driving a passenger bus the next day. The Association and Division worked jointly on legislation which would address this problem. This joint effort resulted in the Positive Drug Test Reporting Law. That bill was signed by Governor Mike Easley and became effective on December 1 of 2005. The law states that an employer who has an employee, who tests positive for drugs or alcohol per the Federal regulation, must report the positive to the Division within five days of receiving notification from a lab that the driver had tested positive. Once the Division receives notification of the positive results, we send the driver a letter. This letter gives the effective date of the disqualification, which is 20 days from the date of the letter, and informs the driver that a preliminary hearing is allowed. If the driver requests a hearing, he or she must do so within 20 days. The hearing may only address the testing protocol and procedures used by the lab. Once the driver is disqualified, the motor vehicle record will show the date of the disqualification followed by the general statute number. The motor vehicle record will not indicate directly the reason for the CDL disqualification. For a driver to end the disqualification, the Division must receive verification from a substance abuse professional that the employee driver has successful completed a substance abuse assessment program. The disqualification will end on the date the completion is received by the Division of Motor Vehicles. The disqualification history remains on the motor vehicle report for a period of two years. The statistics which I am about to give you are from the positive tests reported to us from February, 2006, when we received our first positive, through October 17th of this year or about 20 months. During that time, we have received 544 positive tests that have been reported to us, 357 of which remain currently active disqualifications. One hundred and fifty of the drivers who tested positive have completed the substance abuse assessment program. We have 20 current pending disqualifications sitting there in that 20 day window. Seventeen reported positives were not disqualified due to the completion of the substance abuse assessment program prior to the disqualification going onto the record or going into effect. North Carolina has had 62 hearings requested and only 49 actually conducted. There were 13 that were canceled or the driver did not appear. North Carolina has had no official media campaign, and the motor carrier or the employers are learning from the new law by contact with the North Carolina Highway Patrol Motor Carrier section which conducts motor carrier audits. The North Carolina Trucking Association web site has information about our program. The North Carolina Federal Motor Carrier Safety Administration, the motor carrier auditors who go out and audit these motor carriers as well and the North Carolina Division of Motor Vehicles Commercial Driver's License compliance officers as well are out there doing audits. With over 325,000 CDL holders and approximately 23,000 interstate carriers in North Carolina, unfortunately, we firmly believe we have only scratched the surface to a problem that exists statewide. Some key program benefits are North Carolina disqualifies the driver from driving legally until he or she has completed the substance abuse assessment program. WE provide an incentive to the drivers with a substance abuse problem who, for the first time, are given an incentive to receive treatment and address their problem. Equally as important, by placing the disqualification on the motor vehicle record, the Division is collecting data as it pertains to the positive tests. This helps the trucking industry identify problem drivers and protects the motoring public. An example of this is of the 544 positives, 53 have been reported from the school bus driver population. Of the 53 positives, we know that 27 tested positive for marijuana, 23 for cocaine, 1 for amphetamines, 1 for alcohol and 1 just flat- out refused to take the test which is also reportable as a positive. The ability to collect such data is benefit alone for North Carolina to justify the cost to the taxpayers and more than enough to justify our time and efforts with this highway safety initiative. In closing and on a personal note, I have learned a valuable lesson while working on this program. We in the highway safety field must keep an open ear to all private sector groups who have an interest in highway safety. The North Carolina Public Transportation Association had a problem. We learned the problem not only affected them but affected the segments of the entire commercial industry. North Carolina Division of Motor Vehicles Commissioner Bill Gore, Jr., and Deputy Commissioner, Wayne Hurder would like to publicly thank the North Carolina Public Transportation Association, the North Carolina Trucking Association and its president, Charlie Diehl, for all their support and the North Carolina Administrator for FMCSA, Chris Hartley, and his staff for their assistance. The North Carolina Division of Motor Vehicles web site has instructions and information on our law, Positive Drug Testing Reporting, and you may go there at www.ncdot.org/dmv/forms. Thank you for giving me the honor to be here and speak with you today. Mr. DeFazio. Thank you, Mr. Williamson. Sergeant. Mr. Hageman. Thank you. Chairman DeFazio and distinguished Members of the Subcommittee, I first thank you for the honor of speaking before you today. I am Alan Hageman. I am a sergeant with the Oregon State Police assigned to the Patrol Division at general headquarters, and I am here today to briefly summarize Oregon's finding in drug testing of our truck driving population and to make a single recommendation which I believe will improve our performance in reducing the number of impaired motor vehicle drivers on our highways. Just a brief summary of what we have found as we have been conducting these what we call trucker checks since the fall of 1998. It was the division of now retired Captain Chuck Hayes. Basically, what these trucker checks involve is 72 hours straight of operation at any of our seven ports of entry where these trucks come in. They are randomly chosen for enforcement of the Federal Motor Carrier regulations of both drivers and their equipment. We also have an emphasis of looking at drivers for impairment of either alcohol, drugs or fatigue. One of the things that Captain Hayes wanted to introduce in the first trucker check, which he did, was urine testing. To maximize the participation, he asked that it be voluntary and anonymous so there would be no inhibition about giving urine. He had very high compliance in that. He repeated it again in the fall of 1999. The first time we did this, we were surprised. We got results back that about 9.5 percent of the urine samples tested positive for one or more of the drug categories that were tested. Again, we repeated this in 1999, and the results were up around 15 percent due to an increase in amphetamines. I have no explanation for what that spike is in amphetamines and we haven't seen it since. In any case, now under the leadership of Captain Gerry Gregg, there was an interest in revalidating this study. So last April, we did another trucker check, this time in Woodburn, and we did the same tests. We conducted the whole trucker check under the same template as we did under the original ones, and we again received results of about 9.5 percent. Backing up a little bit in my testimony, our Oregon legislature in 1999 did take some legislative action to address what was being discovered then which was designed to exceed the U.S. DOT testing requirements found in Part 40. Unfortunately, the language is crated in such a way that it doesn't have a lot of teeth. So, as I speak to you right now, the Oregon DOT is developing another legislative concept that will enhance the existing statutory language. Currently, the only two States that I could locate that have good legislation in this area are Washington and North Carolina. Oregon can become very proactive in drug testing. However, the interstate nature of trucking severely limits the effectiveness of Oregon's effort unless there is interstate uniformity. That is why I am here to ask you to consider that we have some type of a nationwide clearinghouse which would report all positive tests including refusals. The interstate motor carriers should be required to contact this clearinghouse before employing any driver. It has been a privilege to speak before you today, and I hope what I share with you has some value in improving our safety of our Nation's highways. I am honored to answer any of your questions. Mr. DeFazio. Thank you. Mr. Williamson, the programs, I like what you said in terms of it certainly would give an incentive to someone who has to make a living driving, that they need to get their record cleared up. Who established the criteria for the programs to make certain that the person goes through a real treatment program? Does the State monitor those programs? Mr. Williamson. Yes. Well, actually, that list comes from the Federal Motor Carriers. We also send a list of substance abuse assessment professionals who can handle that treatment when we send that letter out of notification of disqualification. Yes, sir. Mr. DeFazio. Then on the issue of your database, who can access that, under what conditions? Mr. Williamson. Currently, that is strictly an in-house thing. Our adjudication branch, we have two hearing officers who have access to that system. The facility or the room where we keep these records that has its own fax machine, its own phone line and everything comes in there and stays in that area. So there is an area. We do consider that a private type situation. Mr. DeFazio. Your hook is you have taken their State license, but we have been talking about a different clearinghouse concept in the first panel where a prospective employer could get a hit, yes or no. You don't allow that because you are figuring since you have taken the person's license, no one would need to contact you. You don't need to provide access to prospective employers. Mr. Williamson. Well, actually, what occurs when we receive notification and the person does not request a hearing, that disqualification goes on that individual's motor vehicle record. It shows CDL disqualification. It gives the general statute number and being on his motor vehicle record, it is record to just that. Whomever, by the Driver Privacy Protection Act, who would have access legally to that motor vehicle record would see that on there. Mr. DeFazio. Which would be a prospective employer with a release could access that. Does it require a release? Mr. Williamson. That is correct, sir. Mr. DeFazio. Yes, okay. You feel that the process that you have put in place with the 20 days for the hearing and that because we had concerns earlier about someone having recourse if they felt the test wasn't properly administered or whatever. You haven't had people go on and appeal and then subsequently litigate and claim that you didn't give them a fair hearing and the system wasn't adequate to clear their name and they are unjustly accused. Have you had any litigation like that? Mr. Williamson. No, sir, we have not had any challenges as of this point. Just they would come to the hearing, and that is about it. Mr. DeFazio. Sergeant, someone mentioned Oregon earlier, saying what do we do in terms of what record. When someone is found to have a positive drug test, what are we doing in Oregon? Mr. Hageman. The medical review officers are required to report that to Oregon DOT, more specifically, DMV. The problem is kind of lingers in a database that no one is required to access and no one is required to disclose. It only includes positives. It doesn't include refusals. So there is this database that basically is, for all intents and purposes, meaningless. Mr. DeFazio. Right, and that is something the legislature or policymakers are looking at to make that more useful and more inclusive? Mr. Hageman. Yes, Chair DeFazio, I think we are looking at North Carolina as sort of a template on that and do the same as disqualifying the driver until steps are taken to correct it. Mr. DeFazio. All right. Mr. Duncan. Mr. Duncan. No questions, Mr. Chairman. Mr. DeFazio. Okay. Well, I thank you. I think you contributed to the dialogue here and now you might hang around and hear what the Administrator's response is. Thank you very much. We appreciate your testimony. With that, again, I thank Administrator Hill for his very generous allocation of time and also--I lost track of my agenda here--he is accompanied by Mr. Jim Swart, Acting Director, Office of Drug and Alcohol Policy and Compliance, and then Mr. Robert L. Stephenson, Director, Division of Workplace Programs, Substance Abuse and Mental Health Services Administration. We would start with Administrator Hill. I have read your testimony, but you are free to do with your five minutes as you wish. I realize there are sometimes constraints put upon officials by their higher-ups in terms of what you can do or depart from, but go ahead. TESTIMONY OF THE HONORABLE JOHN HILL, ADMINISTRATOR, FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION; ACCOMPANIED BY JIM L. SWART, ACTING DIRECTOR, OFFICE OF DRUG AND ALCOHOL POLICY AND COMPLIANCE, U.S. DEPARTMENT OF TRANSPORTATION; ROBERT L. STEPHENSON, II, M.P.H., DIRECTOR, DIVISION OF WORKPLACE PROGRAMS, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN SERVICES Mr. Hill. Thank you, Mr. Chairman and Ranking Member Duncan. I appreciate the opportunity to give the FMCSA side to this issue in your interest in highway safety. We are responsible for regulating about 4.2 million employees and 600,000 employers. FMCSA has an aggressive program to examine compliance with the drug and alcohol regulations through roadside inspections, safety audits, and compliance reviews. The Agency also takes every opportunity to educate the industry regarding the drug and alcohol testing regulations, and data indicates that CMV operators are among the safest transportation workers in the U.S. NHTSA's Fatality Analysis Reporting System, otherwise known as FARS, from 1997 to 2006 showed alcohol intoxication averaged 1 percent in crashes each year. It should also be noted that the alcohol intoxication level for a commercial vehicle operator is at .04 percent blood alcohol compared to the higher .08 percent for passenger vehicle operators. During use in the same FARS report, the same 10 year period, drug use in that period of time for commercial vehicle operators was 1 percent. Our last survey, as has been mentioned today, is at 1.7 and doesn't show too much differentiation over the last 10 years. Now while these data are positive, we acknowledge that any commercial vehicle that has a driver behind the wheel with controlled substances is too many. I pledge to work with the GAO and this Committee to take proactive initiatives that will deal with this problem. I want to also tell you that we have already taken some of those initiatives, and I want to explain some of those to you. We have applied limited resources for a very large carrier population, using a risk-based approach in addressing safety priorities that has produced some significant results. Last year, we reviewed compliance of more than 55,000 drug and alcohol testing programs during our compliance reviews and new entrant audits. We also see State and local roadside enforcement playing a crucial role in detecting illegal drug usage One such example was in Maryland earlier this year when a semi tractor-trailer driver was stopped for running well over the speed limit. Cocaine was found in the vehicle. The trooper revealed through this process that not only did he possess cocaine but he was under the influence at the time he was driving. We, as the Agency, used our authority and declared him an imminent hazard and had him disqualified. Fortunately, the State of Florida worked with us to have that CDL revoked. We have also begun to use data in which the driver tested positive for drugs and has not completed the return to duty process, which you have heard about today. We are following this process. We are removing drivers from the highways. I will be glad to talk more about it in the question and answer period and expound on it, but we also believe that the strategy that you just heard from North Carolina about licensing and disqualifying drivers is a positive step, and we look forward to working with other States in that regard. Our Comprehensive Safety Analysis 2010, CSA 2010, recognizes the need to collect more comprehensive data regarding drug and alcohol compliance. Therefore, our staff is currently developing strategies for requiring collection of drug and alcohol testing information to ensure that our new compliance model is able to identify drivers and carriers that do not comply with drug and alcohol regulations and to prevent their continued operation. You will be seeing more about that in a proposed rulemaking next year. As a former law enforcement official, I have seen firsthand the consequences of impaired driving behind CMVs and passenger vehicles. Some States have taken steps to criminalize products that circumvent the drug testing process, and I certainly support these efforts including Federal legislation to prohibit their manufacture and distribution. Most carriers use service agents to collect drug testing programs is what we heard about today. We reviewed compliance at these entities during our compliance review process and have found 22,000 violations in the past 7 years. DOT has worked with the drug testing and transportation industries to give special emphasis to collection site integrity. We have also asked our inspectors and auditors to increase their scrutiny of collection sites. We will continue to find new ways to ensure comprehensive programs aimed at identifying non-compliant drivers and carriers with the alcohol and controlled substance regulations. I do look forward to working with you, Mr. Chairman, and GAO and our State partners to improve compliance in this area. Thank you, and I will answer your questions. Mr. DeFazio. Thank you. Mr. Stephenson. Mr. Stephenson. Mr. Chairman, Members of the Subcommittee, I am Robert Stephenson, Director of Division of workplace Programs in the Center for Substance Abuse Prevention within the Substance Abuse and Mental Health Services Administration, SAMHSA, of the United States Department of Health and Human Services. On behalf of our Administrator, Terry Cline, we thank you for holding this important hearing too. Following the lead of your earlier comments, I look around and see that most of the issues and concerns we had originally come prepared to testify about have already been put out on the table. So we have withdrawn our normal oral testimony, and I am going to try to respond in this limited time to some of those issues that have been raised and tell you a little bit more about who we are and what it is we do and try to anticipate some of the questions you might ask, but I know I won't be totally successful. Mr. DeFazio. Excellent, go right ahead. Mr. Stephenson. First of all, the HHS roles, we are responsible for the administrative and technical standards and procedures for Executive Branch Federal employees. That is our authority and that is our responsibility. This was initially established by executive order back in 1986, and we established mandatory guidelines for testing and programs that needed to be set up by Executive Branch agencies back in 1988. We have been in business ever since then. A lot of the capacity that we have is to test other agencies under their own separate authority, but they use our standards by their decision and by their incorporation under their rules and processes. Currently, we certify 46 laboratories in the United States and Canada. We have 114 inspectors who perform two inspections per year in each one of those laboratories, where they physically go into the places and spend at least a day and, in some cases, several days. One of the questions that was asked was: Why publish a playbook in the Federal Register with what it is about the adulterants? Well, the bottom line is that I am equally frustrated by that process too, but it is required under the Administrative Procedures Act. We need to propose things through notice and comments, and there was a fairly important case decision that kind of cemented the need to do what we are doing. That is putting out any modifications to testing protocols, procedures, cutoff levels and so forth that are instructions to the labs that are to be performed on specimens collected for Federal agency employees and, by extension, the DOT-regulated industry. We have to put those into a Federal Register notice beforehand. We have to receive comments on them, and then we have to publish it. That puts the lead time way out in advance for anybody who wants to willfully manipulate their products to change it. So we could do this time and time again, and it will result in a blatant behavior of changing products and ignoring. There is no fairness in it. They have all the ground advantages in the process. Why can't you test and detect these adulterants? Well, when we had a process where we aggressively used the insight of our laboratories to look for anomalies in the specimens being tested and then they identified a new adulterant. Then we learned from our experience in a couple of important court cases that were, by the way, DOT cases, that we needed to publish these processes up front. What we found out was that you needed a second lab to be able to respond to a legal challenge that would be raised when one of the adulterant issues was brought up in a specific court case. In most situations, that worked well in the early years, but it came about that the only other lab that had the kind of corporate mentality and will to do this dissolved or became an asset of another laboratory corporation, and so we lost the capacity to have a second lab do this. We explored opportunities with the Department of Transportation of using perhaps a resource that they had under the FAA, an aerospace medical laboratory, to do some of this kind of superlab retesting and so forth, but that has not produced any result. As a result of that, what we had chosen to do and it was at the request of DOT is we truncated the process whenever we saw anything funky in a particular specimen being tested and as quickly as possible turned the results around, showing that it was an invalid test for testing. It was an invalid specimen and we could not do laboratory testing on it. For a variety of reasons, it just wouldn't go through the process well. We didn't identify a specific adulterant in it, but we knew there was something wrong. So the best we could do was turn the specimen result around very quickly and get it back and in the hands of the MRO who, in turn, would then suggest we need to do a direct observation recollection, maybe in a couple of days rather than chasing after an illusive adulterant that you might or might not find for four or five days. By then, a person has had enough time to clean their system out. They had enough lead warning. So that was the best we could do of that process. I would totally agree I would love to see a process where we didn't have to put that playbook out in advance, but I don't know how to get around that under administrative procedures rules. The last real thing was: What about alternative specimens? We published proposed rules for Federal agency employees to be used by Federal agencies back in April of 2004. During the internal review process, there were issues raised by other Federal agencies and departments about some of the issues around fairness, hair color bias and legal concerns that have not allowed those to go forward to a final process, but we did move forward with the urine portion of it to address issues around collection site concerns, certification of MROs. We separately published the adulterant instructions in 2004 as a final, and it went into effect in November of 2004 because we were concerned about what was going on. By 2005, we had provided testimony the first time about the problems that were going on in the industry that we were seeing adulterant products and substitute specimens. The last one was: What about testing for more and different drugs? Well, one of the issues raised, I think, in the Oregon experience was that they were doing screening tests on some of the drivers and they were finding what could have been prescription drugs. The comment in the testimony, I think, the oral testimony was illicit drugs or illegal drugs. Well, we don't really know that. What we know is that when you come up with a prescription drug test result, you then need to determine whether or not the person has a prescription for that and whether they are using it in accordance with that prescription. If we test for more drugs, the issue is going to be resurfacing of a problem that we have had in the past where we test for a number of different drugs like benzodiazepines or the other opiates for chronic pain issues. If a person taking that drug has a prescription and medical review officer reviews that, they would say that it is a negative drug test for the purposes of the program. But I would raise an issue, a concern about the safety about using some of these drugs in a work environment where that kind of sedation or other issues could be a concern. That is an issue to think about when you think about expanding a panel to add other drugs. At this time, I would just like to indicate our written testimony talks more about what we do as a Federal agency, as HHS and about our role with the Federal agency programs. I am prepared to answer any questions I can. Mr. DeFazio. Thank you. Mr. Hill, on page three of your prepared testimony, talking about dealing with the idea of a national database or registry, the study concluded it is feasible to establish a national database for positive drug results. If a database were established, the report recommends that it be operated by the Federal Government to ensure consistency and uniformity. FMCSA is moving forward to address this problem. The report was in 2004. Can you tell me what you are doing to move forward and what kind of time line we have for a Federal database? Mr. Hill. Mr. Chairman, one of the frustrations that I have had in dealing with this, coming from a State in law enforcement as I have been aware of this problem for some time, as these gentlemen indicated earlier on the panel. So I began to ask questions in the Agency, and I was repeatedly told that the privacy concerns outweigh the ability of the Department to move forward in this regard. We have been working despite that. We are going to work through the Comprehensive Safety Analysis, CSA 2010. We are developing the structure right now and plan to publish a notice of proposed rulemaking in early 2008 that will deal with a requirement to have medical review officers submit positive drug tests to us so that we can create some kind of a database that will allow us to know what the performance of carriers is actually happening. Now I haven't got the rule ready for prime time, but we are far along in this process. This isn't an idea. This isn't a thought process. This is something that we actually worked with our attorneys on. What we plan to do at this point is to use, as you indicated earlier in response to the North Carolina gentleman, a waiver by the employee that if they are going to have a safety-sensitive position, they are going to have to make agreement to allow this information to be used by those people who regulate and, if they do not, they will not be allowed to continue in the process. Now I really think, as you have seen with hours of service and other kinds of high priority issues in this Country involving commercial vehicles, there are a lot of different moving parts, and I think there will be litigation. I think, legislatively, if there was support for creating this database, it would make it an easier process to go through. But we are prepared to roll up our sleeves with your staff and move forward on this. In fact, we are already moving forward and are going to go forward with it because I believe it is so critical to public safety. Mr. DeFazio. I think you heard the Chairman earlier. I believe that he and--I can speak for myself--I would like to move forward with legislative support for this process. I think it is essential. In terms of the privacy concerns, we have a database to determine a person's eligibility to legally acquire a firearm. We don't reveal any sensitive information about the person. It is just a yes or a no. It could be a similar system which is no, you have a problem here and you better go contact the FMCSA if you think that is in error. They have an appeals process, and you can get your record cleaned up or whatever or if you haven't completed your rehab program, you will have to go do it or whatever. It seems to me that the privacy issues have been dealt with in other databases, and we could certainly deal with them here. I appreciate your support for that, and I think we will try and give you legislative support. What about the whole issue of the integrity of the testing process? You certainly heard some very devastating testimony regarding that. I mean 100 percent failure rate, and I read earlier some comments that had been submitted to GAO in response to that. The future REAL ID licenses in the second decade of the 21st Century will help ameliorate the fake ID problem, but then it was suggested there was an interim to deal with that. I would be curious about your comments on that. Then, secondly, we have that and then we also have the process itself and the identified problems when it wasn't dependent on the fake ID but actually the adulterants and the other issues. The fact that I believe GAO made a point that they felt you had too few people to monitor compliance, not just for drug testing but generally as I took their comment, which is something we have talked about previously. I know you are constrained by your OMB masters, but they pointed also to a high failure rate even with that small number of compliance reviews. In the drug testing area, I believe they said 40 percent and it doesn't seem to have a consequence. So if you could comment on those two issues. Mr. Hill. Sure. Well, first of all, I don't believe that we should wait on the REAL ID to start dealing with credentialing issues in this process. One of our frustrations as an agency is that we don't have the ability to levy fines against these collection sites. We have to go through this process of a public interest exclusion called a PIE, and before we ever get to the PIE we have to give them a notice of a PIE. Before that, we obviously go out and gather the facts from the individuals and, during that process, they are aware that there is somebody looking into their behavior. So they either clean it up or they go out of business and recreate themselves. We have done this repeatedly, and the inference was we aren't really using the PIE process. Well, the PIE process is designed to give advance notice. They get the advance notice, and they don't really clean up their act. They just go out of business. So I think that is one of the frustrations. I think if we had the ability to levy a fine or some kind of penalty, it would deal with what Congressman Duncan indicated in his comments earlier, that there would be a sanction. There would be an enforcement provision to this process. Now the second thing, I really would like to say to you that we have ready-made solution for this problem. It is complex, and it is going to be difficult. I think during the next reauthorization, we are going to have to talk about how do we build in, with existing resources, whether at the State level or at the Federal level, to give the kind of monitoring that we need to do with this. I will tell you that we have found the States to be very agreeable to involving themselves in controlled substance and alcohol enforcement, and I believe that we can do a better job of giving them guidance and helping them with things like the Oregon trucker check program. But it is very labor-intensive, and there are going to be issues that we are going to have to deal with having officers. For example, a large contingent of the workforce in this Country doing commercial vehicle safety is not a law enforcement officer. They are a limited civilian employee who doesn't have the authority to engage in law enforcement-related practices. So that is something that we are going to have to keep in mind, but we can work around that. That is just going to be something we have to deal with. Whether we do it in the forms of grants or an expanded Federal workforce, we are going to have to have resources to address this problem in the next reauthorization. I am convinced of that. Because, as you indicated, to really deal with fraud at the site, you are going to have to get somebody in there to observe that, and that is going to take covert monitoring. It is going to be labor-intensive. We do that now with CDL monitoring. It is very labor-intensive. It is going to be a decision, a policy call of whether that is the way we want to use our resources. Finally, I would just say in managing the risk of the commercial vehicle safety program, I can tell you that I would like to look at this Committee and say let's save 300 lives next year by getting every trucker in this Country to wear a safety belt because we lose 300 a year because they don't wear a safety belt. We are losing 1 percent due to some kind of controlled substance or alcohol abuse in commercial vehicle crashes, which is too much and I am certainly not saying we tolerate it, but in terms of addressing risk, we need to apply our resources where we get the most reward. I believe that is what we are trying to do through addressing more driver focus in our programs. We have seen a 9 percent increase in the number of driver-related inspections in this Country. That is because we are changing the focus away from vehicle-related activities to driver inspections. The story that I told about Maryland is something that we are seeing readily. Troopers along the road are stopping vehicles with CMV operators, noticing some kind of paraphernalia or drug abuse, and then we are following up to disqualify those people using imminent hazard. We were not doing that previously, and it is something we have started using more readily in this past 12 to 15 months. Mr. DeFazio. Well, thanks. I would just reflect and certainly we would want to be doing what we can to encourage that drivers use their safety belts, but that ultimately is a self-inflicted injury or death as opposed to a driver under the influence who takes out a swath of passenger cars who are totally innocent victims. So I would just make that little distinction there in terms of why. The issue of your response on the labs, I mean if you had a fining authority, if that were more highly valued. Ultimately, I think what you are going to find is we are going to end up somehow probably with fewer labs. It is probably going to be more highly valued product, so we are going to charge the employers more. Also, I would like to see a regime that you can monitor and fine them, and that would provide some potential revenue for the people to actually monitor the process. That seems to me to be a way you could begin to clean that up. SAMHSA now looks at the labs. I think you said there were 44 certified labs, and you have 144 people to monitor those labs. Mr. Stephenson. Forty-six labs, 114 inspectors, they look at them onsite 2 times a year, each lab, every year. Mr. DeFazio. Do you have any thoughts on how we could clean up the problems at the collection sites given your experience in monitoring the labs? Mr. Stephenson. There are multiple groups that are advocates and specialties, professional staff that work in associations. That is certainly one way. Both internal self-policing as well as national standards, best practices, more aggressive understanding by the employers who hire these commercial services as to what their roles and responsibilities are under contract law to make sure that the work they are getting meets the standards and expectations. When you have a failed collection, it costs that employer not only the cost of the missed test and the time that the person was there. This isn't all about pre-employment testing. This is existing random testing. A person being out of service while they go to this collection site to get a test that doesn't work is certainly an expensive area. I would think that those are certainly things that could be done better. We spend a lot of our time on the laboratory side, training physicians as medical review officers and specialty groups within the American Medical Association to perform their task knowledgeably and understand what a drug test does and what it doesn't do and what their roles and responsibilities are. We do that for the Federal agencies, and very similar programs are also established under the Department of Transportation and they participate too. But professional education for the people who have to do these things is certainly one major piece that I think we ought to bank on. Mr. DeFazio. Thank you. Mr. Duncan. Mr. Duncan. Thank you, Mr. Chairman. You know everybody, no matter what their job or position or occupation is, should always be trying to do more and do better and to improve, but let me see if I can summarize what I have learned from this hearing. Administrator Hill, you say that the truck drivers overall are the safest drivers in the Country, and we have been given statistics saying that drugs and alcohol are involved in only about 2 percent of the accidents and I think a similar percentage on the number of commercial drivers involved in the wrecks that are occurring. Truck companies have pressure and incentive from a monetary standpoint to make sure that they don't hire drivers who are addicted to drugs because the trial lawyers are going to help a lot on that. I mean they are going to be sued if they hire drug addict truck drivers who are going to be in wrecks, in frequent wrecks. In addition to lawsuits for injuring other people, drug-addicted drivers are going to cost their employers a lot of money by damaging their trucks and so forth. So there is a lot of pressure that way that is very effective, I think. In addition, I don't think we should give the impression that not much is being done because I noticed in your testimony you said that your inspectors are inspecting three million trucks a year, is that correct, and they look for drugs and alcohol at that time. Mr. Hill. It is three million nationwide and predominantly by the States, but our people also do a small percentage of those, yes, in controlled substances and alcohol. Mr. Duncan. Okay, three million. Then the people who are enforcing the traffic laws, the State troopers and even the local law enforcement people, are stopping some trucks at times. So there are checks that way in addition to these three million drug tests. Now a lot of them, apparently they could get around pretty easily or some of them are not legitimate, but I would assume also that a lot of these three million drug tests are legitimate tests because truck company owners would have pressures and incentives to make sure that those tests were legitimate. Would you agree with that? Plus, you said in your testimony also that your Agency is doing a lot of work with truck companies to make sure that their testing is legitimate. Is that correct? Mr. Hill. Yes, Congressman Duncan, we are doing two primary focus areas at this point in addition to the random roadside inspection process. The first one is through the safety audit. This Committee required us an agency to do new entrant audits of anyone coming into the business for the first time, and within 18 months we are required to do a safety audit. Now what we found, basically, during that safety audit process is that a lot of these companies are passing the safety audit even though they don't have compliance with some of these issues. The program, the way it was set up initially, was primarily designed to be an educational outreach. We, as an Agency, said, look, this is not the direction we need to go. We need to refine this. So we put out a notice of proposed rulemaking in 2006 to change the new entrant program to make it more enforcement- based and to stop entry if you have certain violations that are occurring. One of those is drug and alcohol. That notice of proposed rulemaking is presently we have finalized the analysis of the comments. We are preparing the final rule, and that rule will be out hopefully in 2008 as well. What that will do is it will say if you have employees that you are using, that are testing positive for drugs, you are not going to be allowed to continue. We are going to revoke their operating authority and put them out of business. The second we will do is if they don't have a drug and alcohol testing program, out of service. Until you get it fixed, you will not be allowed to operate. So those are major changes that we are making in the new entrant process to fix that. Mr. Duncan. All right. Then you have these major associations, the American Trucking Association and the Owner- Operator Independent Drivers Association, and both of them are making efforts to help on this problem as well. Is that correct? Mr. Hill. Well, they both commented to the rule, and we are taking their suggestion as we move forward with this process, yes. Mr. Duncan. I believe there has been a suggestion or recommendation about a national clearinghouse. Are you familiar with that? Mr. Hill. I am aware of ATA's proposal to do that, yes, sir. Mr. Duncan. Now a lot is being done is really the point here, and we are making great strides here on this problem, but you do need some better enforcement mechanisms for these facilities when you find that their drug testing programs are inadequate. Is that correct? Mr. Hill. Yes. We have the ability to cite them, but then we put them through an administrative process to revoke their ability to be involved in that in the future. I really think that money, fines and penalties work effectively, and that is one of the things we have used in the motor carrier industry to deal with people who don't want to comply with the regulations. So I think that would benefit us in dealing with the collection site issue. Mr. Duncan. Well, now let me ask you this one last question. We have been given statistics that drugs and alcohol are involved in only 2 percent of these commercial vehicle accidents and that only about 2 percent of these drug tests turn out positive. But we heard from the North Carolina official, and then have been given these statistics from the Oregon tests that were done April 10th through the 12th for 491 drivers, 487 samples. They found drugs in 9.7 percent of their tests. Now they said if you remove the opiates in half the situations because some of this could be medicine, it would move down to 8 percent. Then if you eliminate the opiates entirely, it would be 6.4 percent. Based on their findings in North Carolina and Oregon, do you think this problem is more widespread than these 2 percent figures that we have been given? Mr. Hill. I wish that I had a good answer for you because I would think that if we were killing more people related to controlled substance, it would show up in the crash report data that we have. I investigated hundreds, thousands of crashes when I was involved as a State policeman over 29 years. We had a lot of tools and resources to find out. In every fatal crash, you draw a blood sample. You find out if there is alcohol or drugs in that system. If you have people who are seriously injured, you pull a blood sample or you do some kind of analysis for reasonable suspicion or post-accident testing. So I think that we would find that there was more involvement in crashes if this were more of a widespread problem. Now I commend the Oregon State Police for doing this program. Mr. Duncan. From your 29 years in Indiana, do you think in all those accidents that you personally dealt with, was it roughly 2 percent, do you think or do you have any wild guess? Mr. Hill. I just know that we were able to identify people involved in fatal crashes that were contributing because of controlled substance because the blood test, and I would say it was a very low percentage when I was doing it, but I can't give you empirical data from my experience. Mr. Duncan. All right, thank you very much. Mr. DeFazio. I thank the gentleman. There was the self-reporting figure which I believe was 7.4 percent, and I don't know that many people who would self- report they were abusing a substance if they weren't, but maybe they wanted to make something up. Mrs. Napolitano. Mrs. Napolitano. Thank you, Mr. Chair. Mr. Hill, I am very interested in much of what is being discussed as it relates to the safety of people generally. In speaking, I wasn't here for a lot of the questioning, unfortunately, because I was detained elsewhere, but you indicate that your Agency has begun a compliance initiative to identify the drivers to comply with the return to duty process. Does that initiative look at drivers who may have drug content in their urine that is due to medication and how does that medication impede them or is it affecting their ability to drive competently? Mr. Hill. Congresswoman Napolitano, I would say to you that the reason why we started this initiative is that there are some very concerned members in the industry that have been witnessing firsthand the movement, what we call job-hoppers, truck drivers testing positive and going to different carriers. They have been very frustrated with the fact that the driver just doesn't have to self-report, and therefore they can leave their employment with that particular carrier and then move to another one and infect that carrier with the same drug habit or drug problem. We have sat with them and said, look, we have to figure out a way to begin to address this. So we asked our investigators. We formed a team to go into these MROs and look at people who are testing positive for drugs. Mrs. Napolitano. Any drug? Mr. Hill. Well, the five that are required to be tested through the HHS process that Mr. Stephenson alluded to in his opening comments. The people who test positive for one of those five drugs, we then have reconfigured our IT systems that allows us to track drivers as opposed to just carriers. Historically, we have looked at carrier databases. Now we are refining that so that we can see where a driver is moving to work for different carriers. If we have a name of a driver who has tested positive through one of these facilities, been unemployed or terminated from that one carrier and then shows up working for a different carrier subsequent to that test, we go out and we investigate the new carrier. Did they do the pre-employment testing? Did they have the procedures in place? Are they doing random testing? Fourth, we go after that driver, and we file a driver case against him or her. Then we use our imminent hazard authority and say, look, this driver is an imminent hazard. You need to get out of the interstate commerce industry. Mrs. Napolitano. I understand, sir. My question deals more with any individual who is driving who may be under a doctor's orders to take certain medication whether it is for schizophrenia or diabetes or anything else. I am not sure what drugs might have a detrimental effect on the driving ability of that individual. That is more what I am referring to. Have you looked at anything that might be posing a problem in those particular medically prescribed drugs? That is my question. Mr. Hill. We have been working diligently through our medical review board to establish a new set of regulations that govern medical qualifications for commercial vehicle drivers. This is something we have been working to address and the NTSB's Most Wanted Recommendations in which they think that the medical regulations need to be updated. So we have been in the process of doing that. In our medical review board, a panel of experts in the medical field have been addressing this particular problem, and they have actually given us some recommendations that we are going to be considering as we move ahead and we do our regulations. So we are doing that. Mrs. Napolitano. Thank you. That was what I was trying to get to. I understand that the independent drivers do not necessarily self-report, that they are required to go to a base entity to be able to do self-reporting. If they are found, they may or may not go back to retest or be able to be cleared for driving. They may not report that particular job and skip and be able to go and obtain another job. That is a big question from me on independent drivers. Mr. Hill. It is true with independent drivers, but it is also true with other carriers as well. I wouldn't just relegate it to the owner independent drivers. That is why we started this process that I told you about in these independent investigations to track these people. But I want to tell you it is very labor-intensive. It takes time. We are committed to doing it, but it is not something we just do thousands in a day. It is something that takes a little time to track them and do the investigative steps, but we are committed to doing it. Mrs. Napolitano. What would help you then identify the amount of investment, if you will, to set up such a tracking mechanism to be able to tie in the States if they go from one State to another, so they would be able then to identify those drivers who are at risk? Then further, do we have a mechanism to be able to go after the damage caused? I know most of it falls upon insurance companies, but certainly somebody has to have liability for being able to not only hire but also drive a vehicle while being impaired. Mr. Hill. I would just say to you that this response that I gave to the Chairman earlier about our CSA 2010 rulemaking that we are developing is designed to help us track where these people are. That is one of our problems right now. We have to literally go out and find people who tested positively, and then we have to track them to where they go in the carriers. This reporting mechanism that we referred to earlier will allow us to have that information readily available and eliminate a lot of the investigate footwork that we have to do now to go and find them. Mrs. Napolitano. If you had a crystal ball, what would that take in funding? What would be able to help you expedite your ability to be able to put that in place? Mr. Hill. That is a question I am going to have to get back with the record. Mrs. Napolitano. I would appreciate it, sir. Mr. Hill. I am not prepared to answer that here today, but it is a valid question. We would like to get back with you on that. Mrs. Napolitano. I appreciate it because the lives of a lot of people could be at stake. Thank you, Mr. Chair. Mr. DeFazio. Thank you. Mr. Platts. Mr. Platts. Thank you, Mr. Chairman. I appreciate yours and the Ranking Member's efforts on the issue as well as our witnesses here today on all the panels. Mr. Hill, I wanted to follow up on your comments regarding new entries, and I apologize with trying to be at four places at once. If I cover something you have already address, I do apologize in advance. In your comments and in your written testimony, you talked about the new entrant rule for 2008. You and I have spoken before about the regulations being proposed and working with you. Are we referencing the same issue here, the same set of regulations, or is this something different? Mr. Hill. I believe that there are two issues that you and I have discussed. One is the training of new drivers into the marketplace. Mr. Platts. Correct. Mr. Hill. Then the specific new entrant is specifically about the new carrier itself and how the carrier complies with the regulations and how we monitor that process. Mr. Platts. Okay, so they are related but two separate issues then. Mr. Hill. And two separate rulemakings, yes, sir. Mr. Platts. On the one we have talked about before, my understanding is that is at OMB with the requirements for new drivers as far as behind the wheel training and things. Mr. Hill. Yes. Mr. Platts. Is there any new estimate? I know it is somewhat out of your hands because it is at OMB, but have you given any estimate from OMB? Given that this is something that started back in 2004 and with that 2005 court decision and now in 2007, are they giving you any time frame? Mr. Hill. They have a minimum of 90 days to review it. We are dialoguing with them about that, so I can assure you that we are expressing our interest in moving this rule along. We know that the court is interested as well. So we have a vital interest in making sure this notice of proposed rulemaking gets out. Mr. Platts. Do you think that will happen before the end of the year? Mr. Hill. It is our plan. Mr. Platts. Okay. On the other regs with the new entrant rule, in your written testimony, you talk about as part of your testimony that of the 40,000 new entrants that you reviewed, 42 percent of those programs were counseled for deficiencies and that the proposed new entry rule will help address this. Could you, one, highlight what the most common type of deficiency you found and how the new rule will likely address that and similar deficiencies? Mr. Hill. Sure. At the top of the list is that the carrier doesn't have a policy in place about dealing with drugs and alcohol which usually implies that they don't have a drug and alcohol testing program. Closest right after not having a policy is they don't do drug and alcohol testing. So they aren't doing pre-employment, random testing, post-accident or reasonable suspicion. What I tried to say in my comments there was that we recognized this back in 2003 and said, look, you can't allow people to come into the business and just educate them and hope it gets better. You have to take some action, and that is why we put into place a notice of proposed rulemaking to tighten that up. Now what it is going to do is it is going to front-end load the work. Instead of catching these people after they have been in commerce and then do compliance reviews, we are hoping to deal with it on the front end. Not having a drug and alcohol program or using a driver that has tested positively will preclude you from continuing on in interstate commerce. That is going to be the key, and it is going to get people's attention. They are either going to comply or they are going to be out of business. Mr. Platts. So today, without that new rule adopted, not having a program in place, not having the testing done doesn't prohibit you from being out there? Mr. Hill. That is correct. Now we can do a compliance review, and we can go back in which we do in several cases. But in terms of the strict mechanism to preclude them from continuing on, that is not in place and we needed regulatory authority to do that. Mr. Platts. Because the way it is now it is almost like something has to happen that you are likely to do that compliance review and catch them as opposed to being an across the board requirement and they would be, in essence, certified to have that program in place? Mr. Hill. Yes, Congressman Platts, that is correct. Mr. Platts. Again, it is proactive rather than reactive. Mr. Hill. That is right. That is right. Mr. Platts. I think that is a very necessary and appropriate approach. I commend the Department and the Agency for promulgating that regulation, and hopefully we will get it through the process quickly along with the other one regarding the training requirements. Mr. Hill. Thank you, sir. Mr. Platts. Thank you. Thank you, Mr. Chairman. Mr. DeFazio. Thank you, Mr. Platts. Three quick questions follow up on that: As I understand, so you are going to have a new authority to deal with new entrants who don't have programs, to prohibit them from continuing to operate. Mr. Hill. Yes, sir. Mr. DeFazio. What about the 70 percent of existing firms who are found to have violations of drug testing, who are ongoing? Do you have the authority to put them out of service too and has that ever been done? Mr. Hill. In the past seven years, six years, we have done about 31,000 enforcement cases. So we bring an enforcement case against them, give them a penalty, but we don't stop them from operating. Under the CSA 2010 initiative that I referred to earlier, what we plan to do, as we say, is there are certain things that are so fundamental to a carrier's operation that you cannot be safe and not do them. Mr. DeFazio. Okay, so it won't just be new entrants. It will be ongoing problems with compliance. Mr. Hill. But they are two separate rulemaking processes, and I want you to understand that. Mr. DeFazio. All right. Mr. Hill. But that is the plan, that we will actually go in and declare them unfit if they are a carrier involved in not having a drug and alcohol program or they are using a driver that tests positively. Mr. DeFazio. In the 70 percent of the compliance reviews since 2001, where you found violations of drug testing programs, have you gone back and verified that those 70 percent have corrected those deficiencies? Mr. Hill. Normally, Mr. Chairman, as part of our process, we engage into not just giving them a notice of claim and then they pay their penalty, but we actually engage in settlement agreements. Our goal is to get compliance. So as a part of that settlement agreement, they have to verify with us that they have instituted a program and that we have verified that they are using a consortium with third party testing. Mr. DeFazio. But right now you don't have a big club over them. You are going to have the big club in the future with the out of service. Mr. Hill. It will be bigger, larger, but right now we do have a club because if they are in that settlement agreement and they don't comply, we can come back and hit them pretty hard. I wouldn't discount that, but it will be much stronger with the unfit rating in the future. Mr. DeFazio. Okay, thank you. Then just quickly for entertainment value, Mr. Stephenson, since PassYourDrugTest.com says they carry FDA-approved drug test detoxification programs for passing serious drug tests, are you aware if there are any FDA-approved drug test detoxification programs for passing tests? I can imagine there are detoxification drugs for people trying to kick a habit, but did you ever hear of such a thing? Mr. Stephenson. Absolutely not. It is a wild claim that is on the internet, and I would love to have someone show me to the contrary because I would be like a pit bull. I would be more than glad to follow up on it. Mr. DeFazio. We would love to have you do that. That would be good. Then, Mr. Administrator, just given the other site we mentioned here with the Ross Healthcare clinic which apparently does driver medical exams and drug testing, which refers people to a favorite link on a site on how to beat the test. Is there some action you could take regarding their status since they are doing commercial truck driver medical exams and drug testing? Mr. Hill. If the information that you have is accurate, someone will be knocking at their door very shortly. I will take the appropriate action commensurate with my authority to deal with that problem, and I will get back with the Committee on the results. Mr. DeFazio. Excellent, thank you. Mr. Hill. You are welcome. Mr. DeFazio. No further questions. Again, I realize this was an unusual procedure, but I thought the GAO and the other information was so startling that it was necessary for you to hear it. I appreciate your indulgence of time. Thank you very much. Mr. Hill. You are welcome, sir. Mr. DeFazio. Acronyms are flying like snow. There will be QFRs, questions for the record. If we could now, we will call the final witnesses. I have a group of parliamentarians from Britain here. I have to step out. Mrs. Napolitano will take the Chair. Thank you. Mrs. Napolitano. [Presiding.] Good afternoon, gentlemen, and welcome. I believe we will start the questioning of the third panel with Mr. Woodruff. Sorry, I didn't give you a chance to clear. TESTIMONY OF GREER WOODRUFF, SENIOR VICE PRESIDENT OF CORPORATE SAFETY AND SECURITY, J.B. HUNT TRANSPORT, INC., AMERICAN TRUCKING ASSOCIATIONS; RICK CRAIG, DIRECTOR OF REGULATORY AFFAIRS, OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION; FRED MCLUCKIE, LEGISLATIVE DIRECTOR, INTERNATIONAL BROTHERHOOD OF TEAMSTERS Mr. Woodruff. Thank you. Chairman DeFazio, Ranking Member Duncan and other Members of the Subcommittee, thank you for the opportunity to communicate ATA's recommendations on drug and alcohol testing. I am Greer Woodruff, Senior Vice President of Corporate Safety and Security for J.B. Hunt Transport and active member of ATA. J.B. Hunt is a large motor carrier operating in the contiguous 48 States and Canada. We have approximately 11,700 power units, 56,000 trailers and containers and employ over 13,500 truck drivers. In the last year, J.B. Hunt has performed more than 39,000 DOT drug tests, more than 1,700 DOT alcohol tests and over 14,000 non-DOT tests using hair specimens. ATA has long been a proponent of alcohol and drug testing for truck drivers and actively supported the Omnibus Transportation Employee Testing Act of 1991. My comments are aimed at improving drug and alcohol testing in the trucking industry, and I will cover two of the five recommendations provided in written testimony: number one, the need for a national clearinghouse for positive drug and alcohol test results and, secondly, the industry's desire to use alternative specimen testing methods such as hair testing. Concerning the national clearinghouse, this recommendation is aimed at closing a serious loophole in the Federal drug and alcohol testing regulations which is being exploited by too many drug-abusing drivers. The loophole is as follows: A driver applies for a job at a trucking company and tests positive for drugs on the DOT- required pre-employment drug test. As a result of testing positive, the driver is not hired. In many cases, the driver simply waits a short amount of time to cleanse his system, a few days or perhaps a few weeks, and applies for a job at a different trucking company and passes the DOT-required pre- employment test. The driver does not self-report the previous positive test result on the employment application, and therefore the second trucking company is not aware of the driver's previous positive test result. This loophole exists because a driver is supposed to self- report since there is no current method of centrally capturing positive test results. ATA made Congress aware of this loophole in the late 1990s when it first began advocating for a national clearinghouse. FMCSA studied this issue and submitted a report to Congress in May of 2004. This report found that a centralized clearinghouse for positive results to be queried by motor carriers during the hiring process was feasible, cost effective and, more importantly, could improve safety. Currently, five States have positive drug test results reporting laws. However, drug and alcohol testing in trucking is done in compliance with Federal regulations, and it is a national program. In order to close the loophole I described, ATA urges Congress to pass legislation to authorize and fund a centralized national clearinghouse for positive drug and alcohol test results. The final issue I will address is the need for alternative specimen testing. ATA seeks Congressional support to encourage the Substance Abuse and Mental health Services Administration and the U.S. Department of Transportation to move forward with rulemaking that will allow the use of alternative specimen testing methods such as hair. These alternative methods have shown great promise in applied situations to detect lifestyle drug users and those that seek to evade the current urine collection method of controlled substance testing. Information from ATA's membership indicates that the typical chronic user is more likely to show a positive drug test result when a hair specimen is employed. ATA is eager to work with Congress and DOT to allow for the addition of specimen options beyond urine such as hair. In summary, Mr. Chairman, ATA urges Congress to enhance drug and alcohol testing in the trucking industry by establishing a national clearinghouse for drug and alcohol test results, directing SAMHSA and DOT to complete rulemaking to allow alternative specimen testing methods, banning the sale of adulterant and substitution devices and providing for enforcement and penalties for their use, encouraging the DOT to better focus their random testing rate requirements and, finally, ensuring good practices are followed by drug and alcohol collection sites. Thank you for the opportunity for ATA to offer its recommendations. I will be happy to answer questions at the appropriate time. Mrs. Napolitano. Thank you, Mr. Woodruff. That kind of tickles the imagination about other ways of providing material for the testing. Thank you. Mr. Woodruff. Thank you. Mrs. Napolitano. Mr. Craig. Mr. Craig. Congresswoman Napolitano, Ranking Member Duncan, thank you for inviting me to testify this afternoon on behalf of our Nation's small business trucking professionals. My name is Rick Craig. I currently serve as Director of Regulatory Affairs for OOIDA. The members of OOIDA believe that drug and alcohol testing for commercial vehicle operators has played an important role in raising the level of safety on our national highways. However, there are problems with existing regulations, procedures and enforcement that should be addressed to ensure that testing programs are effectively employed while also mindful of the significant harm that may be caused to a trucker's life and livelihood by errant administration. The sheer volume and complexity of State and Federal drug and alcohol testing regulations make it extremely difficult for motor carriers to run their own testing programs. Thus, nearly all carriers rely on service agents to administer various aspects of their programs. Of the benefit programs and services offered to our members, OOIDA administers a drug and alcohol testing consortium and third party administrator program or C/TPA. Our C/TPA provides a full range of services to keep its motor carrier clients and their commercial drivers in compliance with Federal drug and alcohol testing requirements including dissemination of extensive educational information related to testing and reporting requirements. I have provided copies of these materials to the Committee. OOIDA C/TPA has experienced a multitude of problems with existing drug and alcohol testing regulations and procedures. Most problems are relatively minor and correctable but nonetheless may serve to illustrate the various reasons why certain carriers and drivers fail to comply. Certain other problems are much more serious and may substantially impact or even destroy a trucker's driving career. Examples of problems commonly encountered by OOIDA are outlined in my written testimony. Many of these same problems have been echoed by other witnesses. One area I would like to highlight is the collection process has always been and remains to be the weakest link in the DOT testing program. The findings of the GAO are indeed alarming. We absolutely agree that problems identified by the GAO and this Committee must be addressed as soon as possible. However, speaking on behalf of the vast majority of men and women who operate trucks and who do not abuse drugs or misuse alcohol, I ask that the Committee be careful not to draw the assumption that problems with specimen collection and testing procedures equate to our Nation's highways being filled by drug-crazed truckers. That scenario is certainly not reality. At the core of OOIDA's membership are owner-operators. These small business trucking professionals commonly lease their equipment and their driving services to motor carriers that operate multiple trucks within their fleet. Any carrier that leases an owner-operator assumes the responsibility for compliance for all safety regulations no differently than their employee drivers. In fact, the Federal Motor Carrier safety regulations specifically include independent contractors or owner-operators in the definition of an employee. Motor carriers primarily contract with service agents to administer drug and alcohol testing programs. However, carriers are ultimately responsible for ensuring that service agents meet the qualifications set forth in the rules. While a service agent may provide educational materials to the carrier, it is the responsibility of the carrier to provide the materials to its drivers that explain the rules as well as the carrier's policies and procedures. More and more owner-operators are obtaining operating authority while continuing to perform driver duties. A one truck-one driver motor carrier must comply with both the requirements that apply to employers and the requirements that apply to drivers. Since the driver and carrier management are one in the same and the carrier must establish the testing program and carrier policies, it is likely that as the driver this individual has a greater awareness of drug and alcohol testing requirements than many others in the industry. All carriers, regardless of size, are required to remove a driver from performing safety-sensitive functions in the event of a positive or equivalent test result. Each carrier must assign a designated employer representative to oversee this function and various other aspects of the carrier's testing program. Reliance upon a single employee carrier to remove him or herself from duty is little different than simply accepting that any other designated employer representative will remove a much needed employee from safety-sensitive duty. I am about to run out of time. I think I will skip ahead just a little bit. I would like to take a moment to comment on ATA's national clearinghouse proposal. While OOIDA fully supports the goal of striving to make the trucking industry free of drug and alcohol abuse, we remain unconvinced of the need for a national clearinghouse for positive drug and alcohol testing results. The national database, as described in ATA's proposal, does not ensure that a carrier removes a violating driver from performing safety- sensitive functions nor does it otherwise enhance the existing drug testing requirements. I have outlined several questions and concerns raised by the clearinghouse proposal in my written testimony. Until privacy, operational security and logistical oversight complications have been adequately addressed, the proposal has the real potential to negatively impact drivers far beyond the scope of those who abuse drugs and misuse alcohol. Thank you. I will be happy to answer any questions. Mrs. Napolitano. Thank you, Mr. Craig. I do have the greatest respect for the truck drivers. The job they have is very critical to the Nation's economy. I worked in the industry for quite a while, so I understand a lot of the issues that they have. We also have some that do not follow the rules and, because of them, we continue to implement laws to protect the whole Country. Mr. Craig. I agree, Congresswoman. Mrs. Napolitano. Thank you. Mr. McLuckie, welcome. Mr. McLuckie. Thank you, Congresswoman Napolitano and Ranking Member Duncan. Thank you for the opportunity to testify here today on drug and alcohol testing for drivers. Testimony this morning was quite shocking, but I do not think that drug and alcohol abuse in the trucking industry is rampant. I hope that conclusion is not reached by the Committee. Most of our members are hardworking, law-abiding citizens who perform a very difficult task every day. The Teamsters Union has a long history of being proactive in deterring the abuse of controlled substances and alcohol in the trucking industry. For well over two decades, we have negotiated drug and alcohol testing programs with virtually all of our larger trucking employers. The language in our collective bargaining agreements ensures that the testing programs comply with both provisions of the agreements and FMCSA regulations. The agreements outline the process that must followed to allow workers who have substance abuse issues the opportunity to obtain treatment and rehabilitation prior to returning to work in safety-sensitive functions. Almost all of those members testing positive take advantage of treatment and rehabilitation and return to duty. We have a once in a lifetime second chance that most of our members take advantage of. The results of the recent Oregon State Police roadside testing were potentially skewed. The almost 10 percent positive rate could be attributed to several issues. The OSP included three additional drugs, all of which are not included in the FMCSA five-panel drug screen for which analyses were conducted that contributed to the higher overall rate of positive test results. For example, commercial motor vehicle operators are not prohibited from using propoxyphene, provided that such use is monitored and approved by the driver's physician. These opiates and synthetic opiates accounted for 19 of the 47 tests for which a controlled substance was identified. Also, drug testing results not validated by a medical review officer leave open the strong possibility that some of the positives were due to legitimate medical explanation. For example, the driver had a valid prescription from his physician. Occupational injury data provided by the U.S. Bureau of Labor Statistics shows that truck drivers are among the group of workers who experience the most work-related injuries and illnesses with days away from work. Therefore, it is not unusual that these workers would use painkillers, some of which may contain opiates to mitigate discomfort resulting from work- related injuries. Many drivers have legitimate prescriptions for these painkillers and consequently may be allowed in some instances to operate commercial motor vehicles without violating FMCSA regulations. Because there was no positive test result validation process incorporated in the OSP study, the assumption is that all positive opiate test results were due to illegal or improper use of controlled substances which may be an erroneous assumption. There are also cases where drivers have legal prescriptions for amphetamines and may drive while using the controlled substance. For example, the use of the prescription drug Adderall, which is often times used to control attention deficit hyperactivity or treatment-resistant depression, can cause a positive test result. However, a driver who has been properly prescribed the drug is not automatically disqualified from operating a commercial motor vehicle. Further validation of even lower positive drug testing rates for drivers can be found in unionized large, less than truckload carriers. The IBT reviewed the random drug testing results for large LTL carriers for the period 2003 to 2006. During this period, the union LTL companies conducted 64,477 random drug trusts of which 395 were validated by medical review officers as being positive, for a positive test rate of 0.6 percent. That is six tenths of 1 percent, much lower than the FMCSA survey rate of around 2 percent. This lower rate may be attributable to an older workforce with low turnover rate. I am told also that in those 64,000 plus drug tests, only 5 cases were found to use adulterated substances. We have significant concerns about the creation of a national clearinghouse for positive testing results especially with respect to issues related to driver privacy. However, when we consider the fact that certain States such as North Carolina have moved forward in collecting this data, we are of the opinion that a national clearinghouse operated by the Federal Government may be preferable to these data being collected on a State by State basis. The IBT could support the implementation of a centralized reporting and inquiry system and believes such a system could have positive safety benefits provided, however, that such requirements should only be imposed if and when the FMCSA is able to devise a system that would adequately protect the driver's confidentiality, provide a reasonable mechanism for drivers to learn of and report reporting errors and devise a uniform, and fair method for expunging the records of drivers that have undergone treatment and are rehabilitated. Finally, I would be remiss if I did not reiterate our concern about drug and alcohol testing procedures for Mexican drivers. Still, after more than a decade of negotiations, there is no lab in Mexico to certify samples. Random drug testing is non-existent with drivers knowing that they will be tested at the border because collection procedures and chain of custody practices are questionable and there appears to be little, if any, enforcement against the use of drugs and alcohol by drivers on the Mexican side of the border. This concludes my testimony, and I am happy to answer any questions you may have. Mrs. Napolitano. Thank you, Mr. McLuckie, and I am lucky I get all three of you. I have a very, very open mind about the issues because I did work in my prior life in the transportation department and I did have an opportunity to ask a lot of questions of the State transportation, California Transportation Commission. We have heard a lot of the issues continually being brought up. In working through some of these things, and I understand, Mr. McLuckie, the issue. That is why I brought up the medical concept of it because there are some things that will affect the analysis, the final analysis of the urine as regards drugs that they have to take to continue being able to work, whether it is back problem, whether it is schizophrenia, whatever it is. My concern is that we are not balancing them to be able to allow that employee the opportunity to continue making a living and operating safely. Do you want to address that? Mr. McLuckie. Well, I think it is very important that the employee have the opportunity to have any positive result reviewed by the medical review officer in the instance especially where he is on a prescription drug. As you say, in the trucking industry, the rate of injury and illness is very high, and these drivers take these drugs to stay on the road and to be able to make a living. So we encourage the continued examination of that issue. Mrs. Napolitano. Especially for long haul. Mr. McLuckie. Yes. Mrs. Napolitano. Mr. Woodruff, the current drug and alcohol regulations require new employers to contact former employers regarding the job's application, especially for drug history. How responsive have former employers been to the requests and what enforcement actions, if any, or penalties for those employers who are non-responsive and, if there are not, should there be? Mr. Woodruff. A very good question; in October of 2004, FMCSA implemented a safety performance history regulation and, following implementation of that particular regulation, the responsiveness of former motor carrier employers has greatly improved. I cannot speak for the whole ATA membership population, but for J.B. Hunt, we would encounter perhaps one to two employers per month. We hire five to six hundred drivers a month, and only one to two employers that would not supply the information that they are required to supply under the regulations. We do report those to the associate administrator of FMCSA when they fail to meet their regulatory obligation to provide drug and alcohol data. We often find ourselves in a role of educating the other motor carriers as to what their regulatory responsibilities are. So we work through that. We normally get those. Really, a bigger issue that I believe we encounter with regards to having the information that we need to have available and the regulations require us to obtain is with carriers that go out of business, that are bankrupt or no longer able to be contacted. In 2004, 2005 and 2006, those three years total, there were over 4,700 trucking company bankruptcies of carriers with more than 10 trucks. So the number is even more significant when you consider the number of bankruptcies or closures of companies with less than 10 trucks. But in that three year period, 4,700 motor carriers with more than 10 trucks whose drug and alcohol data is not available to future motor carriers that need that data. With regards to J.B. Hunt, we experience about 20 percent of the driver applicants have one more driving jobs in the past three years that we are unable to verify because that employer is no longer available for us to talk to. So we believe through having a central repository, that that data would be in the repository and whether or not the company closes business or moves or changes their phone number, that that data would still be available for future motor carriers to access. Mrs. Napolitano. The ATA is recommending the national clearinghouse be set up for positive and refused drug and alcohol tests. Why does this have to be on a national level and can that be something that will be helpful to identify those repeat offender who should not be driving? Mr. Woodruff. That is another very good question. The drug and alcohol regulations that the trucking industry must comply with is a national program, and it becomes very problematic for the industry when they have to begin to start to comply with potentially 50 different State rules and regulations. As we have heard in the testimony, there is somewhere between five and seven different States that have positive results reporting requirements, and many of those are different. So that becomes very complicated for a motor carrier doing business throughout the United States to identify how to comply with a varied set of regulatory requirements, where a national clearinghouse would have one standard for us to comply with. Mrs. Napolitano. Gentlemen? Mr. Craig. Yes, if I may. You know, certainly, we see that there are obviously some drug users out there that slip through the cracks, and I was rather surprised by some of the comments I heard today as well. With this national clearinghouse, we do have some real concerns. Obviously, privacy is very obvious. Mrs. Napolitano. Sir, how would you address the privacy issue? Mr. Craig. Well certainly, and I have read the draft language of the legislation that came from ATA, and they talk about the privacy issues. It is certainly difficult to deal with that, but one thing that would have to certainly be done is that the system be very secure, that the access to the system be limited to only those who have authorization, a real right to know. Of course, one of the problems you get into there is how do you know that these individuals really have authorization, really have the right to know over time and then who is going to catch these folks that violate the system and enter the system when they don't really have authorization. Then we also question who is going to enforce against anyone who violates the requirements. Mrs. Napolitano. That would go back to, I guess, a funded mandate for the States to be able to establish such a network with the clearinghouse and be able to do it with the trucking companies to be able to ensure that their drivers were complying. Am I not correct? Mr. Craig. Well, certainly, and if I might also add, as I started to say earlier, we also see some other problems with the process. We certainly agree that collection sites are by far the weakest link in the whole system. We have had some experiences with the collection sites that have given the drivers, who came in to test, erroneous information. A good example of that and a repeated example of that is a driver who goes in and for whatever reason cannot provide an adequate amount of specimen the first try. They are supposed to be required and instructed to drink water and stay there for at least three hours and attempt again. Many times, we have heard of instances where the collection site personnel simply say, oh, it is okay. Come back tomorrow. The problem is once that driver leaves, that is determined a refusal which, as you know, is equivalent to a positive result. That is a very big issue. Also, another problem that we have is even with MROs, and they haven't really been addressed. That is the medical review officers. They really are the last word in this whole process. If there is an MRO, and we have experienced a couple of cases at least of MROs who have made wrong judgments on whether or not a test result should be confirmed as positive and entered that as positive. There is very, very little recourse for drivers to clear their names after that has happened. Mrs. Napolitano. Shouldn't it be then part of what they should be looking at is how the drivers may be able to clear their record if they can prove or through further testing be able to clarify? Mr. Craig. Absolutely. Possibly there could be, as anyone would do when they get a medical opinion, get a second opinion. Maybe they should be able to dispute the first MRO's determination of a confirmed positive. Another thing is we have had several members who were very adamant that, to their knowledge, they could not possibly have tested positive for drugs. The MRO confirms that it is positive, and they have been very adamant and wanted to have these samples, DNA tested. Well, we have to tell them, you can go to that trouble and expense if you like. The problem is it will do no good because it is not allowed under the rules. Mrs. Napolitano. Mr. McLuckie? Mr. McLuckie. Two points, Congresswoman: One is we would prefer a national system with national standards, uniform standards versus 50 State systems that all might have different criteria and different requirements. Secondly, we would be concerned about devising a method for expunging the records of drivers who have undergone treatment and rehabilitation. Employers and medical review officers only keep records for a certain period of time. We would have to look at how long a person might be on this register if they have gone through a rehab process and would it be fair to keep them on this, keep their violation on that list forever. Mrs. Napolitano. What would you consider adequate? Mr. McLuckie. I would say somewhere in the period of three to five years. Mrs. Napolitano. If they had no further violations? Mr. McLuckie. Right, correct. Mrs. Napolitano. Very interesting, there is a lot of substance in that. Mr. Craig, the NTSB has said that the owner-operators are in the precarious position of overseeing their own substance abuse program. The protections are in place to ensure that all of the drug and alcohol program requirements are enforced including those that mean putting a driver out of service after a positive test. How do you feel on that? Mr. Craig. Well, certainly, as I have mentioned earlier, we do have a consortium that OOIDA runs, and we have seen that as being a problem. Really, under the rules as they are right now, if someone refuses to test, there are certain exceptions where the C/TPA, in an instance where you have a one truck-one driver motor carrier, will enter that information as a refusal in the system, but the rules allow us to go no further. It takes the designated employer representative to order that driver out of service for safety-sensitive duties and go through the SAP process. Under those rules, the consortium has no method of doing that. Mrs. Napolitano. But in the reality of things, not all the independent truck drivers belong to the association. Mr. Craig. No, the don't. Basically, for a one truck-one driver motor carrier, though, they would have to participate in a random selection pool of two or more drivers. Obviously, as a single one, you can't do a random selection. So that is how the vast majority. I don't know of anyone who could not participate with a consortium or a third party administrator or some sort so they could participate within their drug testing pool. Mrs. Napolitano. Thank you. Mr. Boozman. Mr. Boozman. Thank you, Madam Chair. Mr. Woodruff, would you describe how hair testing, how that method sometimes is more advantageous over the urine test? Mr. Woodruff. Yes, Congressman Boozman. J.B. Hunt has been conducting hair testing of drivers for about a year now, and we are conducting hair testing along with urine testing. We have to do urine testing to comply with the Federal regulations. We do hair testing under a company policy test. We test for the same five-panel drugs that the DOT urine test requires. We also use a medical review officer review of those results as well, involving the interview of any drivers who have a positive result. So we are trying to follow the best that we can a similar protocol as DOT in terms of the drugs we test for, the cutoff levels and the process. We are finding a higher rate of positive drug use when we use a hair specimen. Hair specimens are very difficult to adulterate and to substitute, so we would like to see that as an alternative specimen for complying with the Federal requirements. Mr. Boozman. I guess the follow-up would be what steps should be taken by Congress and Government agencies to encourage the use of alternative specimen testing? Do you have any? Mr. Woodruff. We would like to see Congress direct SAMHSA and DOT to finalize rules that would permit alternative specimens to be used by motor carriers if they so choose. Mr. Boozman. Thank you very much. Mr. Woodruff. Thank you. Mr. Boozman. Let me ask all of you. I am going to start with Mr. Woodruff. The current legislation authorizing transportation drug and alcohol testing has been in existence for several years. If Congress was to advocate a study of the effectiveness of the Government-mandated drug and alcohol programs, what are some of the areas that you all feel like should be examined? Mr. Woodruff. I will begin and say that we have heard a lot of numbers here today as to what the real positive rate is for drug use, illegal drug use among truck drivers. Probably the low end is 2 percent which is the positive random rate that FMCSA reports, and then we have heard numbers as high as maybe 10 percent and some others in between. The reality is that the positive rate for drivers is probably somewhere in the middle there. In terms of studying effectiveness, I think it would be a good idea that we do look at these alternative specimens to determine whether or not they could provide us a better result and a more accurate result. So that would be where I would start. Then, of course, we feel like the national repository would give the motor carriers the tools that they need to help be part of the solution to this as opposed to putting this data into an FMCSA database that only enforcement people have access to. This is currently a requirement of the driver to disclose, the motor carrier to inquire with other prior motor carriers and a requirement for other former motor carriers to provide that data, but we should be making rules that make it easier for us to do what the regulations require of us. Mr. Boozman. Mr. Craig? Mr. Craig. Yes, thank you, Congressman Boozman. One thing, obviously, the rules are designed all across the board to prevent accidents and injuries and fatalities certainly. What we would like to see is take a closer look at how the testing rates really correlate with accidents. We have heard some statistics thrown around there, but I don't know if the Agency has really been taking, FMCSA has really been taking a close enough look at that. I don't know just how much. I guess you could take a look at post-accident, obviously, statistics and see how they compare with the random selection rate. Obviously, another area too is the collection sites. As I mentioned, we see problems on one side and on the other, and they definitely need to be cleaned up. There is one other thing too that we have considered that might work quite well, that would have a dual effect. The vast majority of truckers or commercial drivers in general do not use drugs. However, they are painted with the same brush and must participate in the same program, the same random selection rate and everything. Currently, the selection rate for random drug testing is at 50 percent. What we would kind of like to see is a system whereby those individuals who have passed a certain number of tests with negative results, pick a number, four or five, and have proven themselves to be non-drug users, to be placed into a lower random selection pool, a lower percentage selection rate of, say, 25 percent. That would reward the non-drug users and, at the same time, it would help out because they wouldn't be diluting the 50 percent testing pool. We think that that would have a very good effect on the random selection process in the future. Mr. Boozman. Thank you. I know we have to go, Madam Chair. We have a vote on. Do you have anything in one minute that you would like to add? Mr. McLuckie. Certainly, Congressman. I think the testimony today supports collection facility oversight, the possible licensing of laboratory personnel, and getting these adulterating products off the market. We would certainly look at the use of alternative specimens. It might relieve some of the privacy issues related to urine samples, and we would certainly be receptive to looking at those kinds of things. Mr. Boozman. Thank you very much. Thank you, Madam Chair. Mrs. Napolitano. Thank you to the panel. I think we do have to go and vote, and I don't think you want to sit here until next week because we are leaving after that. I appreciate your testimony. There will be some questions sent to you. We would appreciate a prompt reply. The record will remain open for 10 work days for additional input from the panel, Members and anybody who has an interest in this matter. With that, this hearing is adjourned. Thank you, gentlemen. 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