No matter the topic, it usually takes a substantial amount of time — typically 2-4 years — for new or revised federal regulations to slog through the rulemaking process. The federal government’s process to authorize the use of hair samples for DOT-mandated drug testing started in late 2015 President signed the FAST Act directing the U.S. Department of Health & Human Services (HHS) to issue scientific & technical guidelines for hair testing by the end of 2016. Per FMCSA’s website, after HHS issues its guidelines, FMCSA “will initiate a rulemaking to permit hair testing as an acceptable alternative to urine testing for certain drug tests.” Now, more than 7 years after Congress directed action, the trucking industry has seen only proposed scientific & technical guidelines from HHS and, as a result, the FMCSA rulemaking process hasn’t even started. How is this possible?
It’s possible because Congressional deadlines are rarely coupled with consequences for federal agencies that miss them. It’s also possible when a federal advisory board is involved, which is the case here. HHS has a Drug Testing Advisory Board, or DTAB to Washington DC types, that debates and advises HHS on emerging issues. DTAB typically meets 3 times per year, and about half of their scheduled meeting time is in “closed” sessions. The next meeting is scheduled for this week and follows a similar format. And, when interested observers like STC review the meeting minutes of these sessions, they are usually a few, non-descript sentences. Why is that? Why does DTAB even need a closed session? Are technical and scientific drug testing topics so sensitive that the public needs to be shut out? Is the information shared by DTAB members so critical the interested public doesn’t have a right to know? Why the lack of sunshine in the process?
In 2017, the Washington Post adopted its first-ever slogan—Democracy Dies in Darkness. STC wonders whether the HHS hair testing guidelines, and their subsequent authorization by FMCSA, have died in DTAB’s darkness. We hope not, and only time will tell.