[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2848 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 491
115th CONGRESS
  2d Session
                                S. 2848

                          [Report No. 115-286]

   To improve Department of Transportation controlled substances and 
                alcohol testing, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 15, 2018

   Mr. Thune introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

                             June 27, 2018

                Reported by Mr. Thune, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
   To improve Department of Transportation controlled substances and 
                alcohol testing, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Fighting Opioid Abuse in 
Transportation Act''.</DELETED>

<DELETED>SEC. 2. RAIL MECHANICAL EMPLOYEE CONTROLLED SUBSTANCES AND 
              ALCOHOL TESTING.</DELETED>

<DELETED>    (a) Rail Mechanical Employees.--Not later than 2 years 
after the date of enactment of this Act, the Secretary of 
Transportation shall publish a final rule in the Federal Register 
revising the regulations promulgated under section 20140 of title 49, 
United States Code, to designate a rail mechanical employee as a 
railroad employee responsible for safety-sensitive functions for 
purposes of that section.</DELETED>
<DELETED>    (b) Definition of Rail Mechanical Employee.--The Secretary 
shall define the term ``rail mechanical employee'' by regulation under 
subsection (a).</DELETED>
<DELETED>    (c) Savings Clause.--Nothing in this section may be 
construed as limiting or otherwise affecting the discretion of the 
Secretary of Transportation to set different requirements by railroad 
size or other factors, consistent with applicable law.</DELETED>

<DELETED>SEC. 3. RAIL YARDMASTER CONTROLLED SUBSTANCES AND ALCOHOL 
              TESTING.</DELETED>

<DELETED>    (a) Yardmasters.--Not later than 2 years after the date of 
enactment of this Act, the Secretary of Transportation shall publish a 
final rule in the Federal Register revising the regulations promulgated 
under section 20140 of title 49, United States Code, to designate a 
yardmaster as a railroad employee responsible for safety-sensitive 
functions for purposes of that section.</DELETED>
<DELETED>    (b) Definition of Yardmaster.--The Secretary shall define 
the term ``yardmaster'' by regulation under subsection (a).</DELETED>
<DELETED>    (c) Savings Clause.--Nothing in this section may be 
construed as limiting or otherwise affecting the discretion of the 
Secretary of Transportation to set different requirements by railroad 
size or other factors, consistent with applicable law.</DELETED>

<DELETED>SEC. 4. GAO REPORT ON DEPARTMENT OF TRANSPORTATION'S 
              COLLECTION AND USE OF DRUG TESTING DATA.</DELETED>

<DELETED>    (a) In General.--Not later than 18 months after the date 
of enactment of this Act, the Comptroller General of the United States 
shall--</DELETED>
        <DELETED>    (1) review the Department of Transportation Drug 
        and Alcohol Testing Management Information System; 
        and</DELETED>
        <DELETED>    (2) submit to the Committee on Commerce, Science, 
        and Transportation of the Senate and the Committee on 
        Transportation and Infrastructure of the House of 
        Representatives a report on the review, including 
        recommendations under subsection (c).</DELETED>
<DELETED>    (b) Contents.--The report under subsection (a) shall 
include--</DELETED>
        <DELETED>    (1) a description of the process the Department of 
        Transportation uses to collect and record drug and alcohol 
        testing data submitted by employers for each mode of 
        transportation;</DELETED>
        <DELETED>    (2) an assessment of whether and, if so, how the 
        Department of Transportation uses the data described in 
        paragraph (1) in carrying out its responsibilities;</DELETED>
        <DELETED>    (3) an assessment of the extent to which the data 
        described in paragraph (1) is distributed and available within 
        the Department of Transportation; and</DELETED>
        <DELETED>    (4) an assessment of the extent to which drug and 
        alcohol positive rates for each mode of transportation are 
        publicly available.</DELETED>
<DELETED>    (c) Recommendations.--The report under subsection (a) may 
include recommendations regarding--</DELETED>
        <DELETED>    (1) how the Department of Transportation can best 
        use the data described in subsection (b)(1);</DELETED>
        <DELETED>    (2) any improvements that could be made to the 
        process described in subsection (b)(1);</DELETED>
        <DELETED>    (3) whether and, if so, how drug and alcohol 
        positive rates for each mode of transportation should be made 
        publicly available in an easily accessible format; 
        and</DELETED>
        <DELETED>    (4) such other recommendations as the Comptroller 
        General considers appropriate.</DELETED>

<DELETED>SEC. 5. TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING 
              PROGRAM; ADDITION OF FENTANYL.</DELETED>

<DELETED>    (a) Mandatory Guidelines for Federal Workplace Drug 
Testing Programs.--</DELETED>
        <DELETED>    (1) In general.--Not later than 180 days after the 
        date of enactment of this Act, the Secretary of Health and 
        Human Services shall determine whether a revision of the 
        Mandatory Guidelines for Federal Workplace Drug Testing 
        Programs to expand the opiate category on the list of 
        authorized drug testing to include fentanyl is justified, based 
        on the reliability and cost-effectiveness of available 
        testing.</DELETED>
        <DELETED>    (2) Revision of guidelines.--If the expansion of 
        the opiate category is determined to be justified under 
        paragraph (1), the Secretary of Health and Human Services shall 
        publish in the Federal Register, not later than 1 year after 
        the date of the determination under that paragraph, a final 
        notice of the revision of the Mandatory Guidelines for Federal 
        Workplace Drug Testing Programs to expand the opiate category 
        on the list of authorized drug testing to include 
        fentanyl.</DELETED>
<DELETED>    (b) Department of Transportation Drug-Testing Panel.--If 
the expansion of the opiate category is determined to be justified 
under subsection (a)(1) and the Secretary of Transportation concurs 
with that determination, the Secretary of Transportation shall publish 
in the Federal Register, not later than 18 months after the date the 
final notice is published under subsection (a)(2), a final rule 
revising part 40 of title 49, Code of Federal Regulations, to include 
fentanyl in the Department of Transportation's drug-testing panel, 
consistent with the Mandatory Guidelines for Federal Workplace Drug 
Testing Programs as revised by the Secretary of Health and Human 
Services under subsection (a).</DELETED>
<DELETED>    (c) Savings Provision.--Nothing in this section may be 
construed as limiting or otherwise affecting any authority of the 
Secretary of Health and Human Services or the Secretary of 
Transportation to expand the list of authorized drug testing to include 
an additional substance.</DELETED>

<DELETED>SEC. 6. REPORT ON HAIR TESTING GUIDELINES.</DELETED>

<DELETED>    Not later than 30 days after the date of enactment of this 
Act, and every 30 days thereafter until the date that the Secretary of 
Health and Human Services publishes in the Federal Register a final 
notice of scientific and technical guidelines for hair testing in 
accordance with section 5402(b) of the Fixing America's Surface 
Transportation Act (Public Law 114-94; 129 Stat. 1312), the Secretary 
of Health and Human Services shall submit to the Committee on Commerce, 
Science, and Transportation of the Senate and the Committee on 
Transportation and Infrastructure of the House of Representatives a 
report on--</DELETED>
        <DELETED>    (1) the status of the hair testing 
        guidelines;</DELETED>
        <DELETED>    (2) an explanation for why the hair testing 
        guidelines have not been issued;</DELETED>
        <DELETED>    (3) a schedule, including benchmarks, for the 
        completion of the hair testing guidelines; and</DELETED>
        <DELETED>    (4) an estimated date of completion of the hair 
        testing guidelines.</DELETED>

<DELETED>SEC. 7. MANDATORY GUIDELINES FOR FEDERAL WORKPLACE DRUG 
              TESTING PROGRAMS USING ORAL FLUID.</DELETED>

<DELETED>    (a) Deadline.--Not later than December 31, 2018, the 
Secretary of Health and Human Services shall publish in the Federal 
Register a final notice of the Mandatory Guidelines for Federal 
Workplace Drug Testing Programs using Oral Fluid, based on the notice 
of proposed mandatory guidelines published in the Federal Register on 
May 15, 2015 (94 FR 28054).</DELETED>
<DELETED>    (b) Rule of Construction.--Nothing in this section may be 
construed as--</DELETED>
        <DELETED>    (1) limiting or otherwise affecting the discretion 
        of the Secretary of Health and Human Services to revise the 
        proposed mandatory guidelines described in subsection (a) to 
        address issues raised during rulemaking, including issues 
        involving passive exposure to marijuana use, prior to 
        publishing the final notice; or</DELETED>
        <DELETED>    (2) requiring the Secretary of Health and Human 
        Services to reissue a notice of proposed mandatory guidelines 
        to carry out subsection (a).</DELETED>

<DELETED>SEC. 8. ELECTRONIC RECORDKEEPING.</DELETED>

<DELETED>    Not later than December 31, 2019, the Secretary of 
Transportation shall issue a final rule revising part 40 of title 49, 
Code of Federal Regulations, to authorize, to the extent practicable, 
the use of electronic signatures or digital signatures executed to 
electronic forms instead of traditional handwritten signatures executed 
on paper forms.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fighting Opioid Abuse in 
Transportation Act''.

SEC. 2. RAIL MECHANICAL EMPLOYEE CONTROLLED SUBSTANCES AND ALCOHOL 
              TESTING.

    (a) Rail Mechanical Employees.--Not later than 2 years after the 
date of enactment of this Act, the Secretary of Transportation shall 
publish a final rule in the Federal Register revising the regulations 
promulgated under section 20140 of title 49, United States Code, to 
designate a rail mechanical employee as a railroad employee responsible 
for safety-sensitive functions for purposes of that section.
    (b) Definition of Rail Mechanical Employee.--The Secretary shall 
define the term ``rail mechanical employee'' by regulation under 
subsection (a).
    (c) Savings Clause.--Nothing in this section may be construed as 
limiting or otherwise affecting the discretion of the Secretary of 
Transportation to set different requirements by railroad size or other 
factors, consistent with applicable law.

SEC. 3. RAIL YARDMASTER CONTROLLED SUBSTANCES AND ALCOHOL TESTING.

    (a) Yardmasters.--Not later than 2 years after the date of 
enactment of this Act, the Secretary of Transportation shall publish a 
final rule in the Federal Register revising the regulations promulgated 
under section 20140 of title 49, United States Code, to designate a 
yardmaster as a railroad employee responsible for safety-sensitive 
functions for purposes of that section.
    (b) Definition of Yardmaster.--The Secretary shall define the term 
``yardmaster'' by regulation under subsection (a).
    (c) Savings Clause.--Nothing in this section may be construed as 
limiting or otherwise affecting the discretion of the Secretary of 
Transportation to set different requirements by railroad size or other 
factors, consistent with applicable law.

SEC. 4. DEPARTMENT OF TRANSPORTATION PUBLIC DRUG AND ALCOHOL TESTING 
              DATABASE.

    (a) In General.--Subject to subsection (c), the Secretary of 
Transportation shall--
            (1) not later than March 31, 2019, establish and make 
        publicly available on its website a database of the drug and 
        alcohol testing data reported by employers for each mode of 
        transportation; and
            (2) update the database annually.
    (b) Contents.--The database under subsection (a) shall include, for 
each mode of transportation--
            (1) the total number of drug and alcohol tests by type of 
        substance tested;
            (2) the drug and alcohol test results by type of substance 
        tested;
            (3) the reason for the drug or alcohol test, such as pre-
        employment, random, post-accident, reasonable suspicion or 
        cause, return-to-duty, or follow-up, by type of substance 
        tested; and
            (4) the number of individuals who refused testing.
    (c) Commercially Sensitive Data.--The Department of Transportation 
shall not release any commercially sensitive data furnished by an 
employer under this section unless the data is aggregated or otherwise 
in a form that does not identify the employer providing the data.
    (d) Savings Clause.--Nothing in this section may be construed as 
limiting or otherwise affecting the requirements of the Secretary of 
Transportation to adhere to requirements applicable to confidential 
business information and sensitive security information, consistent 
with applicable law.

SEC. 5. GAO REPORT ON DEPARTMENT OF TRANSPORTATION'S COLLECTION AND USE 
              OF DRUG AND ALCOHOL TESTING DATA.

    (a) In General.--Not later than 2 years after the date the 
Department of Transportation public drug and alcohol testing database 
is established under section 4, the Comptroller General of the United 
States shall--
            (1) review the Department of Transportation Drug and 
        Alcohol Testing Management Information System; and
            (2) submit to the Committee on Commerce, Science, and 
        Transportation of the Senate and the Committee on 
        Transportation and Infrastructure of the House of 
        Representatives a report on the review, including 
        recommendations under subsection (c).
    (b) Contents.--The report under subsection (a) shall include--
            (1) a description of the process the Department of 
        Transportation uses to collect and record drug and alcohol 
        testing data submitted by employers for each mode of 
        transportation;
            (2) an assessment of whether and, if so, how the Department 
        of Transportation uses the data described in paragraph (1) in 
        carrying out its responsibilities; and
            (3) an assessment of the Department of Transportation 
        public drug and alcohol testing database under section 4.
    (c) Recommendations.--The report under subsection (a) may include 
recommendations regarding--
            (1) how the Department of Transportation can best use the 
        data described in subsection (b)(1);
            (2) any improvements that could be made to the process 
        described in subsection (b)(1);
            (3) whether and, if so, how the Department of 
        Transportation public drug and alcohol testing database under 
        section 4 could be made more effective; and
            (4) such other recommendations as the Comptroller General 
        considers appropriate.

SEC. 6. TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESTING PROGRAM; 
              ADDITION OF FENTANYL.

    (a) Mandatory Guidelines for Federal Workplace Drug Testing 
Programs.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Secretary of Health and Human 
        Services shall determine whether a revision of the Mandatory 
        Guidelines for Federal Workplace Drug Testing Programs to 
        expand the opiate category on the list of authorized drug 
        testing to include fentanyl is justified, based on the 
        reliability and cost-effectiveness of available testing.
            (2) Revision of guidelines.--If the expansion of the opiate 
        category is determined to be justified under paragraph (1), the 
        Secretary of Health and Human Services shall--
                    (A) notify the Committee on Commerce, Science, and 
                Transportation of the Senate and the Committee on 
                Transportation and Infrastructure of the House of 
                Representatives of the determination; and
                    (B) publish in the Federal Register, not later than 
                18 months after the date of the determination under 
                that paragraph, a final notice of the revision of the 
                Mandatory Guidelines for Federal Workplace Drug Testing 
                Programs to expand the opiate category on the list of 
                authorized drug testing to include fentanyl.
            (3) Report.--If the expansion of the opiate category is 
        determined not to be justified under paragraph (1), the 
        Secretary of Health and Human Services shall submit to the 
        Committee on Commerce, Science, and Transportation of the 
        Senate and the Committee on Transportation and Infrastructure 
        of the House of Representatives a report explaining, in detail, 
        the reasons the expansion of the opiate category on the list of 
        authorized drugs to include fentanyl is not justified.
    (b) Department of Transportation Drug-testing Panel.--If the 
expansion of the opiate category is determined to be justified under 
subsection (a)(1), the Secretary of Transportation shall publish in the 
Federal Register, not later than 18 months after the date the final 
notice is published under subsection (a)(2), a final rule revising part 
40 of title 49, Code of Federal Regulations, to include fentanyl in the 
Department of Transportation's drug-testing panel, consistent with the 
Mandatory Guidelines for Federal Workplace Drug Testing Programs as 
revised by the Secretary of Health and Human Services under subsection 
(a).
    (c) Savings Provision.--Nothing in this section may be construed 
as--
            (1) delaying the publication of the notices described in 
        sections 7 and 8 of this Act until the Secretary of Health and 
        Human Services makes a determination or publishes a notice 
        under this section; or
            (2) limiting or otherwise affecting any authority of the 
        Secretary of Health and Human Services or the Secretary of 
        Transportation to expand the list of authorized drug testing to 
        include an additional substance.

SEC. 7. STATUS REPORTS ON HAIR TESTING GUIDELINES.

    (a) In General.--Not later than 30 days after the date of enactment 
of this Act, and every 180 days thereafter until the date that the 
Secretary of Health and Human Services publishes in the Federal 
Register a final notice of scientific and technical guidelines for hair 
testing in accordance with section 5402(b) of the Fixing America's 
Surface Transportation Act (Public Law 114-94; 129 Stat. 1312), the 
Secretary of Health and Human Services shall submit to the Committee on 
Commerce, Science, and Transportation of the Senate and the Committee 
on Transportation and Infrastructure of the House of Representatives a 
report on--
            (1) the status of the hair testing guidelines;
            (2) an explanation for why the hair testing guidelines have 
        not been issued;
            (3) a schedule, including benchmarks, for the completion of 
        the hair testing guidelines; and
            (4) an estimated date of completion of the hair testing 
        guidelines.
    (b) Requirement.--To the extent practicable and consistent with the 
objective of the hair testing described in subsection (a) to detect 
illegal or unauthorized use of substances by the individual being 
tested, the final notice of scientific and technical guidelines under 
that subsection shall eliminate positive test results, of the 
individual being tested, caused solely by the drug use of others and 
not caused by the drug use of the individual being tested.

SEC. 8. MANDATORY GUIDELINES FOR FEDERAL WORKPLACE DRUG TESTING 
              PROGRAMS USING ORAL FLUID.

    (a) Deadline.--Not later than December 31, 2018, the Secretary of 
Health and Human Services shall publish in the Federal Register a final 
notice of the Mandatory Guidelines for Federal Workplace Drug Testing 
Programs using Oral Fluid, based on the notice of proposed mandatory 
guidelines published in the Federal Register on May 15, 2015 (94 FR 
28054).
    (b) Requirement.--To the extent practicable and consistent with the 
objective of the testing described in subsection (a) to detect illegal 
or unauthorized use of substances by the individual being tested, the 
final notice of scientific and technical guidelines under that 
subsection shall eliminate positive test results, of the individual 
being tested, caused solely by the drug use of others and not caused by 
the drug use of the individual being tested.
    (c) Rule of Construction.--Nothing in this section may be construed 
as requiring the Secretary of Health and Human Services to reissue a 
notice of proposed mandatory guidelines to carry out subsection (a).

SEC. 9. ELECTRONIC RECORDKEEPING.

    (a) Deadline.--Not later than 1 year after the date of enactment of 
this Act, the Secretary of Health and Human Services shall--
            (1) ensure that each certified laboratory that requests 
        approval for the use of completely paperless electronic Federal 
        Drug Testing Custody and Control Forms from the National 
        Laboratory Certification Program's Electronic Custody and 
        Control Form systems receives approval for those completely 
        paperless electronic forms instead of forms that include any 
        combination of electronic traditional handwritten signatures 
        executed on paper forms; and
            (2) establish a deadline for a certified laboratory to 
        request approval under paragraph (1).
    (b) Savings Clause.--Nothing in this section may be construed as 
limiting or otherwise affecting any authority of the Secretary of 
Health and Human Services to grant approval to a certified laboratory 
for use of completely paperless electronic Federal Drug Testing Custody 
and Control Forms, including to grant approval outside of the process 
under subsection (a).
    (c) Electronic Signatures.--Not later than 18 months after the date 
of the deadline under subsection (a)(2), the Secretary of 
Transportation shall issue a final rule revising part 40 of title 49, 
Code of Federal Regulations, to authorize, to the extent practicable, 
the use of electronic signatures or digital signatures executed to 
electronic forms instead of traditional handwritten signatures executed 
on paper forms.

SEC. 10. STATUS REPORTS ON COMMERCIAL DRIVER'S LICENSE DRUG AND ALCOHOL 
              CLEARINGHOUSE.

    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, and biannually thereafter until the compliance 
date, the Administrator of the Federal Motor Carrier Safety 
Administration shall submit to the Committee on Commerce, Science, and 
Transportation of the Senate and the Committee on Transportation and 
Infrastructure of the House of Representatives a status report on 
implementation of the final rule for the Commercial Driver's License 
Drug and Alcohol Clearinghouse (81 FR 87686), including--
            (1) an updated schedule, including benchmarks, for 
        implementing the final rule as soon as practicable, but not 
        later than the compliance date; and
            (2) a description of each action the Federal Motor Carrier 
        Safety Administration is taking to implement the final rule 
        before the compliance date.
    (b) Definition of Compliance Date.--In this section, the term 
``compliance date'' means the earlier of--
            (1) January 6, 2020; or
            (2) the date that the national clearinghouse required under 
        section 31306a of title 49, United States Code, is operational.
                                                       Calendar No. 491

115th CONGRESS

  2d Session

                                S. 2848

                          [Report No. 115-286]

_______________________________________________________________________

                                 A BILL

   To improve Department of Transportation controlled substances and 
                alcohol testing, and for other purposes.

_______________________________________________________________________

                             June 27, 2018

                       Reported with an amendment