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[Senate Report 114-232]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 404
114th Congress }                                             { Report
 2d Session    }                  SENATE                     { 114-232
_____________________________________________________________________

                                     

                                                       

                DRUG FREE COMMERCIAL DRIVER ACT OF 2015

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                 S. 806

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 March 28, 2016.--Ordered to be printed
  Filed, under authority of the order of the Senate of March 17, 2016
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                    one hundred fourteenth congress
                             second session

                   JOHN THUNE, South Dakota, Chairman
 ROGER F. WICKER, Mississippi         BILL NELSON, Florida
 ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
 MARCO RUBIO, Florida                 CLAIRE McCASKILL, Missouri
 KELLY AYOTTE, New Hampshire          AMY KLOBUCHAR, Minnesota
 TED CRUZ, Texas                      RICHARD BLUMENTHAL, Connecticut
 DEB FISCHER, Nebraska                BRIAN SCHATZ, Hawaii
 JERRY MORAN, Kansas                  ED MARKEY, Massachusetts
 DAN SULLIVAN, Alaska                 CORY BOOKER, New Jersey
 RON JOHNSON, Wisconsin               TOM UDALL, New Mexico
 DEAN HELLER, Nevada                  JOE MANCHIN, West Virginia
 CORY GARDNER, Colorado               GARY PETERS, Michigan
 STEVE DAINES, Montana
                       Nick Rossi, Staff Director
                 Adrian Arnakis, Deputy Staff Director
                    Rebecca Seidel, General Counsel
                 Kim Lipsky, Democratic Staff Director
           Christopher Day, Democratic Deputy Staff Director
                 Clint Odom, Democratic General Counsel
                 
                 
                 
                 
                 
                 
                                                         Calendar No. 404
114th Congress   }                                              { Report
 2d Session      }                  SENATE                      { 114-232

======================================================================

 
                DRUG FREE COMMERCIAL DRIVER ACT OF 2015

                                _______
                                

                 March 28, 2016.--Ordered to be printed

  Filed, under authority of the order of the Senate of March 17, 2016

                                _______
                                

Mr. Thune, from the Committee on Commerce, Science, and Transportation, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 806]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 806) to amend section 31306 of 
title 49, United States Code, to recognize hair as an 
alternative specimen for preemployment and random controlled 
substances testing of commercial motor vehicle drivers and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment (in the nature of a substitute) and 
recommends that the bill (as amended) do pass.

                          Purpose of the Bill

    The purpose of the Drug Free Commercial Driver Act of 2015 
is to allow motor carriers to use hair testing as an acceptable 
alternative to urinalysis for detecting use of controlled 
substances by individuals for preemployment screening and 
random screening.

                          Background and Needs

    Current Federal law requires motor carriers to conduct 
preemployment drug testing and random drug and alcohol testing 
to help prevent accidents and injuries resulting from the 
misuse of alcohol, or use of controlled substances, by 
operators of commercial motor vehicles.\1\ Specifically, the 
Department of Transportation (DOT) requires urinalysis for 
alcohol, marijuana metabolites, cocaine metabolites, opiates 
metabolites, amphetamines, and phencyclidine (known as PCP).\2\
---------------------------------------------------------------------------
    \1\49 CFR 382 - Controlled Substances and Alcohol Use and Testing. 
Available at: 
http://www.ecfr.gov/cgi-bin/text-
idx?c=ecfr;sid=7be618c5eb56986bf8b5bd134450b9f3;
rgn=div5;view=text;node=49%3A5.1.1.2.25;idno=49;cc=ecfr#se49.5.382_1101.
 (Accessed on May 8, 2015).
    \2\Federal Motor Carrier Safety Administration: Drug and Alcohol 
Testing Brochure for Drivers Link. Available at: http://
www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Drug-and-Alcohol-
Brochure-for-Drivers.pdf. (Accessed June 12, 2015).
---------------------------------------------------------------------------
    Hair testing may be more effective than a urinalysis to 
screen for certain prohibited substances. Unlike urinalysis, 
which only detects drug use in the last two to three days, hair 
testing is able to detect drug use for up to 90 days. The Drug 
Testing Advisory Board at the Substance Abuse and Mental Health 
Services Administration, a division of the Department of Health 
and Human Services (HHS), has started collecting information 
related to hair-specimen drug testing, including the specimen, 
its collection, specimen preparation, analyses, cutoffs, 
specimen validity, and initial and confirmatory testing.\3\
---------------------------------------------------------------------------
    \3\Dept. of Health and Human Services Seeks Information on Hair 
Testing. Available at http://www.ttnews.com/articles/
basetemplate.aspx?storyid=38417. (Accessed June 12, 2015).
---------------------------------------------------------------------------
    Hair testing cannot detect alcohol, so urinalysis will 
still be required for post-accident screening.
    The results of drug tests conducted using hair testing 
would be submitted to the Commercial Driver's License Drug and 
Alcohol Clearinghouse (Clearinghouse) which maintains records 
of positive tests, and test refusals for operators required to 
take drug or alcohol tests. Established pursuant to the Moving 
Ahead for Progress in the 21st Century Act (MAP-21),\4\ the 
purpose of the Clearinghouse is to improve compliance with 
testing and enhance safety of roadways by reducing accidents 
and injuries involving the misuse of alcohol or use of 
controlled substances by commercial motor vehicle operators.
---------------------------------------------------------------------------
    \4\49 U.S.C. 31306(a).
---------------------------------------------------------------------------

                         Summary of Provisions

    The Drug Free Commercial Driver Act of 2015 would allow 
motor carriers to use hair testing in lieu of urinalysis for 
preemployment screening and random screening for the use of a 
controlled substance. The bill also would make a number of 
program adjustments and improvements to the commercial motor 
vehicle substance screening process, including--

     providing for the use of hair testing as an 
acceptable alternative to urinalysis for detecting use of drugs 
by individuals, but only for preemployment screening and random 
screening;

     allowing a motor carrier, which demonstrates it is 
able to carry out a hair testing program consistent with 
generally accepted industry standards, to apply to the 
Administrator of the Federal Motor Carrier Safety 
Administration (FMCSA) for exemption from mandatory urinalysis 
testing; and

     directing the Secretary of HHS to issue scientific 
and technical guidelines for hair testing as a method for 
detecting the use of controlled substances.

                          Legislative History

    On March 19, 2015, the Drug Free Commercial Driver Act of 
2015 was introduced by Senator Boozman and cosponsored by 
Senators Manchin, Heitkamp, and Fischer. On May 20, 2015, the 
Committee met in open Executive Session and, by a voice vote, 
ordered S. 806 to be reported favorably, with an amendment in 
the nature of a substitute, including two amendments. The 
accepted amendments would give the Secretary of Transportation 
increased flexibility and allow the Secretary of HHS, when 
issuing guidelines for hair testing, to consider 
differentiating between exposure to, and usage of, various 
controlled substances.

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 806--Drug Free Commercial Driver Act of 2015

    S. 806 would direct the Department of Transportation (DOT) 
along with the Department of Health and Human Services (HHS) to 
issue regulations that allow motor carriers to use hair testing 
as an alternative to urinalysis when conducting pre-employment 
and random substance abuse testing of their commercial drivers. 
The bill also would require HHS to establish requirements for 
laboratory protocols for hair testing.
    Under current law, motor carriers are required to test 
their drivers for substance abuse and, under DOT regulations, 
may only use urinalysis. S. 806 would require DOT to expand the 
allowable testing regimes to hair. CBO estimates that DOT would 
need two staff members for two years to complete this 
regulatory change and to review applications from motor 
carriers for exemptions until the rule is complete, which would 
cost about $500,000.
    HHS recently completed proposed guidelines on detecting 
substance abuse using a specimen of an individual's saliva. 
Based on information from the agency and its experience 
producing the proposed guidelines related to saliva testing, 
CBO estimates that producing similar guidelines for hair 
testing would cost about $3 million, mostly for subject matter 
experts and testing of protocols.
    As a result, CBO estimates that implementing the bill would 
cost $4 million over the 2016-2020 period, assuming the 
appropriation of the necessary amounts. Enacting S. 806 would 
not affect direct spending or revenues; therefore, pay-as-you-
go procedures do not apply.
    S. 806 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contacts for this estimate are Sarah Puro 
(for the Department of Transportation), and Andrea Noda and 
Ellen Werble (for the Department of Health and Human Services). 
The estimate was approved by Theresa Gullo, Assistant Director 
for Budget Analysis.

                           Regulatory Impact

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

    The Drug Free Commercial Driver Act of 2015, as reported, 
would allow, but would not require, hair testing as an 
acceptable alternative to urinalysis for any motor carrier 
operating in the United States. If a company opts to use hair 
testing, as an alternative to urinalysis, for controlled 
substances the company and its employees would then be subject 
to new regulatory requirements.

                            ECONOMIC IMPACT

    Enactment of this legislation is not expected to have any 
significant adverse impacts on the Nation's economy.

                                PRIVACY

    This bill would require all companies that choose to use 
hair testing as an alternative to urinalysis to notify the 
Clearinghouse of any positive test results or any refusal to 
the testing process. The development of the Clearinghouse is 
required by MAP-21. The Clearinghouse was established to ensure 
compliance with the DOT's alcohol and controlled substances 
testing program. The Clearinghouse would enhance the safety of 
roadways by reducing accidents and injuries involving the 
misuse of alcohol and controlled substances by commercial motor 
vehicle operators. The establishment of the Clearinghouse is 
currently in the final rulemaking phase of development.

                               PAPERWORK

    This bill would add a new reporting requirement: it would 
mandate that the Secretary of Transportation submit an annual 
report to Congress, including a summary of results of 
preemployment and random screening using hair testing and 
urinalysis, an evaluation and comparison of both methods, and a 
determination of which method is the most accurate over time.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis

Section 1. Short title.

    This section would designate the short title of this bill 
as the ``Drug Free Commercial Driver Act of 2015.''

Section 2. Authorization of hair testing as an acceptable procedure for 
        pre-employment and random controlled substance tests.

    This section would allow the use of hair testing for 
preemployment screening for the use of controlled substances 
and subsequent random screening.

Section 3. Exemption from mandatory urinalysis.

    A motor carrier would be allowed to apply to the FMCSA for 
an exemption that if granted would permit the carrier to use 
hair testing as an alternative to urinalysis for preemployment 
and subsequent random screening for the use of a controlled 
substance. To obtain the exemption, the motor carrier would 
have to demonstrate the ability to conduct hair testing 
consistent with industry standards.
    In evaluating applications for exemptions, the FMCSA would 
be required to ensure that: a company's testing procedures and 
protections are similar to those used by other fleets, have met 
the satisfaction of the Administrator of the FMCSA to carry out 
hair testing, and have used those methods for more than one 
year; the testing laboratory has received accreditation from an 
accrediting body compliant with international or Federal 
standards; and the hair testing standards used have been 
approved by the Food and Drug Administration.
    Positive test results and test refusals would be submitted 
to the Clearinghouse as they are with current urine tests.

Section 4. Guidelines for hair testing.

    Within one year of the date of enactment of the Act, the 
Secretary of HHS would be required to issue scientific and 
technical guidelines for hair testing as a way of 
differentiating between exposure to, and use of, various 
controlled substance.

Section 5. Annual report to Congress.

    The Secretary of Transportation would be required to submit 
an annual report to Congress, including a summary of results of 
preemployment and random screening using hair testing and 
urinalysis, a comparison of both methods, and a determination 
of which method would be the most accurate over time.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

                        TITLE 49. TRANSPORTATION

             SUBTITLE VI. MOTOR VEHICLE AND DRIVER PROGRAMS

                           PART B. COMMERCIAL

             CHAPTER 313. COMMERCIAL MOTOR VEHICLE OPERATORS

Sec. 31306. Alcohol and controlled substances testing

  (a) Definition.--In this section and section 31306a, 
``controlled substance'' means any substance under section 102 
of the Comprehensive Drug Abuse Prevention and Control Act of 
1970 (21 U.S.C. 802) specified by the Secretary of 
Transportation.
  (b) Testing Program for Operators of Commercial Motor 
Vehicles.--
          (1)(A) In the interest of commercial motor vehicle 
        safety, the Secretary of Transportation shall prescribe 
        regulations that establish a program requiring motor 
        carriers to conduct preemployment, reasonable 
        suspicion, random, and post-accident testing of 
        operators of commercial motor vehicles for the use of a 
        controlled substance in violation of law or a United 
        States Government regulation and to conduct reasonable 
        suspicion, random, and post-accident testing of such 
        operators for the use of alcohol in violation of law or 
        a United States Government regulation. [The regulations 
        shall permit such motor carriers to conduct 
        preemployment testing of such employees for the use of 
        alcohol.]
                  (B) The regulations prescribed under 
                subparagraph (A) shall permit motor carriers--
                          (i) to conduct preemployment testing 
                        of commercial motor vehicle operators 
                        for the use of alcohol; and
                          (ii) to use hair testing as an 
                        acceptable alternative to urinalysis--
                                  (I) in conducting 
                                preemployment screening for the 
                                use of a controlled substance; 
                                and
                                  (II) in conducting random 
                                screening for the use of a 
                                controlled substance by 
                                individuals who were subject to 
                                preemployment screening.
                  [(B)](C) When the Secretary of Transportation 
                considers it appropriate in the interest of 
                safety, the Secretary may prescribe regulations 
                for conducting periodic recurring testing of 
                operators of commercial motor vehicles for the 
                use of alcohol or a controlled substance in 
                violation of law or a Government regulation.
          (2) In prescribing regulations under this subsection, 
        the Secretary of Transportation--
                  (A) shall require that post-accident testing 
                of an operator of a commercial motor vehicle be 
                conducted when loss of human life occurs in an 
                accident involving a commercial motor vehicle; 
                and
                  (B) may require that post-accident testing of 
                such an operator be conducted when bodily 
                injury or significant property damage occurs in 
                any other serious accident involving a 
                commercial motor vehicle.
  (c) Testing and Laboratory Requirements.--In carrying out 
subsection (b) of this section, the Secretary of Transportation 
shall develop requirements that shall--
          (1) promote, to the maximum extent practicable, 
        individual privacy in the collection of specimens;
          (2) for laboratories and testing procedures for 
        controlled substances, incorporate the Department of 
        Health and Human Services scientific and technical 
        guidelines dated April 11, 1988, and any amendments to 
        those guidelines, including mandatory guidelines 
        establishing--
                  (A) comprehensive standards for every aspect 
                of laboratory controlled substances testing and 
                laboratory procedures to be applied in carrying 
                out this section, including standards requiring 
                the use of the best available technology to 
                ensure the complete reliability and accuracy of 
                controlled substances tests and strict 
                procedures governing the chain of custody of 
                specimens collected for controlled substances 
                testing;
                  (B) the minimum list of controlled substances 
                for which individuals may be tested; [and]
                  (C) appropriate standards and procedures for 
                periodic review of laboratories and criteria 
                for certification and revocation of 
                certification of laboratories to perform 
                controlled substances testing in carrying out 
                this section; and
                  (D) laboratory protocols and cut-off levels 
                for hair testing to detect the use of a 
                controlled substance;
          (3) require that a laboratory involved in testing 
        under this section have the capability and facility, at 
        the laboratory, of performing screening and 
        confirmation tests;
          (4) provide that any test indicating the use of 
        alcohol or a controlled substance in violation of law 
        or a Government regulation be confirmed by a 
        scientifically recognized method of testing capable of 
        providing quantitative information about alcohol or a 
        controlled substance;
          (5) provide that each specimen be subdivided, 
        secured, and labeled in the presence of the tested 
        individual and that a part of the specimen be retained 
        in a secure manner to prevent the possibility of 
        tampering, so that if the individual's confirmation 
        test results are positive the individual has an 
        opportunity to have the retained part tested by a 2d 
        confirmation test done independently at another 
        certified laboratory if the individual requests the 2d 
        confirmation test not later than 3 days after being 
        advised of the results of the first confirmation test;
          (6) ensure appropriate safeguards for testing to 
        detect and quantify alcohol in breath and body fluid 
        samples, including urine and blood, through the 
        development of regulations that may be necessary and in 
        consultation with the Secretary of Health and Human 
        Services;
          (7) provide for the confidentiality of test results 
        and medical information (except information about 
        alcohol or a controlled substance) of employees, except 
        that this clause does not prevent the use of test 
        results for the orderly imposition of appropriate 
        sanctions under this section; and
          (8) ensure that employees are selected for tests by 
        nondiscriminatory and impartial methods, so that no 
        employee is harassed by being treated differently from 
        other employees in similar circumstances.

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```