Robin Hutcheson argues that federal law prevents him from accepting drug-testing waivers by some trucking companies across the country that he says will keep thousands of drug-addicted drivers out of the country. road.

The head of the Federal Motor Carrier Safety Administration said in a public filing Thursday that he was therefore forced to reject a request filed by 11 motor carrier groups seeking immunity from federal law requiring hair checks. FMCSA Drug and Alcohol. Clean room.

These tests, which carriers offer either automatically to their current drivers or as part of pre-employment screening, would have made other carriers it queries the database for information about drug testing and potential users.

But Hutcheson backed up what his agency already said in August when the carriers’ application was released for public comment: FMCSA doesn’t have the authority to change the rules.

“Plaintiff asserts that FMCSA has the legal authority to grant his request for an exemption, citing the [federal code] that requires FMCSA to adopt regulations authorizing pre-employment hair screenings for the following reasons: administered as an alternative to urine testing,” Hutcheson said. his decision. .

However, “by ignoring the requirement that FMCSA follow HHS [Health and Human Services] guidelines for hair screening … plaintiff argues that this provision must be read n This approach ignores the accepted principles of statutory interpretation, which provide that the statutory text must be interpreted as a whole.

Alliance considering HHS as next move

The decision, which will be published Friday in the Federal Register, is the second in three years that the truckers, known as the Trucking Alliance, did not convince the FMCSA to support its investigation. instructions. from HHS. These guidelines, published in September 2020, are still under review.

Asked to comment on the decision, Robert Moseley of the Moseley Marcinak Law Group, one of the firms representing the coalition, said it appears the FMCSA is underwhelmed by the proposal and will wait. HHS before authorizing hair screening. Moseley pointed out that the wording of the provision was part of the conference report that followed the statute and therefore lacked legal authority.

“I think they feel powerless to deal with anything having to do with hair testing because of that provision,” Moseley told FreightWaves.

“But I think we’re now in a position where we can take this FMCSA decision directly to HHS and ask for a temporary policy change until they come up with a rule. It’s not an acceptable response to say that the agency has all these hair tests. good, but can’t share them with anyone.

Big-carrier statistics support hair testing

Supporters of the Trucking Alliance, including the Institute for Safer Trucking (IST), argue that despite the statutory duty, the FMCSA also has a duty to make driving safer.

“With this in mind, the [FMCSA] should empower motor carriers to make the safest hiring decisions,” IST said in a joint statement filed by Road Safe America. “The Trucking Alliance and its partners have shown that hair testing can help achieve this goal by effectively preventing drug-impaired drivers from getting into their vehicles and onto our roads.

One such member, J.B. Hunt (NASDAQ: JBHT), has used hair screening as a company policy since 2006. During those 16 years, 191,972 drivers were tested for both the U.S. Department of Transportation’s current urinalysis test and hair screening. need now. , the company told FMCSA in support of the release. Its hair screening process revealed 7,159 of the applicants – 3.7% – for drug use.

“If JB Hunt had relied solely on the DOT test, we could have employed 6,443 of these drivers, with 90% of them passing the DOT urine test,” according to the agency. “And when JB Hunt fired these drivers for work, many of them were able to apply and get jobs at other trucking companies based solely on urine tests before driving. The job is required by the DOT.”

Owner-operators: Hair tests are a flawed approach

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