II 

115TH CONGRESS 

2D SESSION S. 2848 

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 

A BILL 

To improve Department of Transportation controlled 

substances and alcohol testing, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fighting Opioid Abuse 

5 in Transportation Act’’. 

6 SEC. 2. RAIL MECHANICAL EMPLOYEE CONTROLLED SUB7 STANCES AND ALCOHOL TESTING. 

8 (a) RAIL MECHANICAL EMPLOYEES.—Not later than 

9 2 years after the date of enactment of this Act, the Sec10 retary of Transportation shall publish a final rule in the 


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1 Federal Register revising the regulations promulgated 

2 under section 20140 of title 49, United States Code, to 

3 designate a rail mechanical employee as a railroad em4 ployee responsible for safety-sensitive functions for pur5 poses of that section. 

6 (b) DEFINITION OF RAIL MECHANICAL EM7 PLOYEE.—The Secretary shall define the term ‘‘rail me8 chanical employee’’ by regulation under subsection (a). 

9 (c) SAVINGS CLAUSE.—Nothing in this section may 

10 be construed as limiting or otherwise affecting the discre11 tion of the Secretary of Transportation to set different re12 quirements by railroad size or other factors, consistent 

13 with applicable law. 

14 SEC. 3. RAIL YARDMASTER CONTROLLED SUBSTANCES 

15 AND ALCOHOL TESTING. 

16 (a) YARDMASTERS.—Not later than 2 years after the 

17 date of enactment of this Act, the Secretary of Transpor18 tation shall publish a final rule in the Federal Register 

19 revising the regulations promulgated under section 20140 

20 of title 49, United States Code, to designate a yardmaster 

21 as a railroad employee responsible for safety-sensitive 

22 functions for purposes of that section. 

23 (b) DEFINITION OF YARDMASTER.—The Secretary 

24 shall define the term ‘‘yardmaster’’ by regulation under 

25 subsection (a). 


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1 (c) SAVINGS CLAUSE.—Nothing in this section may 

2 be construed as limiting or otherwise affecting the discre3 tion of the Secretary of Transportation to set different re4 quirements by railroad size or other factors, consistent 

5 with applicable law. 

6 SEC. 4. GAO REPORT ON DEPARTMENT OF TRANSPOR7 TATION’S COLLECTION AND USE OF DRUG 

8 TESTING DATA. 

9 (a) IN GENERAL.—Not later than 18 months after 

10 the date of enactment of this Act, the Comptroller General 

11 of the United States shall— 

12 (1) review the Department of Transportation 

13 Drug and Alcohol Testing Management Information 

14 System; and 

15 (2) submit to the Committee on Commerce, 

16 Science, and Transportation of the Senate and the 

17 Committee on Transportation and Infrastructure of 

18 the House of Representatives a report on the review, 

19 including recommendations under subsection (c). 

20 (b) CONTENTS.—The report under subsection (a) 

21 shall include— 

22 (1) a description of the process the Department 

23 of Transportation uses to collect and record drug 

24 and alcohol testing data submitted by employers for 

25 each mode of transportation; 


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1 (2) an assessment of whether and, if so, how 

2 the Department of Transportation uses the data de3 scribed in paragraph (1) in carrying out its respon4 sibilities; 

5 (3) an assessment of the extent to which the 

6 data described in paragraph (1) is distributed and 

7 available within the Department of Transportation; 

8 and 

9 (4) an assessment of the extent to which drug 

10 and alcohol positive rates for each mode of transpor11 tation are publicly available. 

12 (c) RECOMMENDATIONS.—The report under sub13 section (a) may include recommendations regarding— 

14 (1) how the Department of Transportation can 

15 best use the data described in subsection (b)(1); 

16 (2) any improvements that could be made to 

17 the process described in subsection (b)(1); 

18 (3) whether and, if so, how drug and alcohol 

19 positive rates for each mode of transportation should 

20 be made publicly available in an easily accessible for21 mat; and 

22 (4) such other recommendations as the Comp23 troller General considers appropriate. 


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1 SEC. 5. TRANSPORTATION WORKPLACE DRUG AND ALCO2 HOL TESTING PROGRAM; ADDITION OF 

3 FENTANYL. 

4 (a) MANDATORY GUIDELINES FOR FEDERAL WORK5 PLACE DRUG TESTING PROGRAMS.— 

6 (1) IN GENERAL.—Not later than 180 days 

7 after the date of enactment of this Act, the Sec8 retary of Health and Human Services shall deter9 mine whether a revision of the Mandatory Guidelines 

10 for Federal Workplace Drug Testing Programs to 

11 expand the opiate category on the list of authorized 

12 drug testing to include fentanyl is justified, based on 

13 the reliability and cost-effectiveness of available test14 ing. 

15 (2) REVISION OF GUIDELINES.—If the expan16 sion of the opiate category is determined to be justi17 fied under paragraph (1), the Secretary of Health 

18 and Human Services shall publish in the Federal 

19 Register, not later than 1 year after the date of the 

20 determination under that paragraph, a final notice 

21 of the revision of the Mandatory Guidelines for Fed22 eral Workplace Drug Testing Programs to expand 

23 the opiate category on the list of authorized drug 

24 testing to include fentanyl. 

25 (b) DEPARTMENT OF TRANSPORTATION DRUG-TEST26 ING PANEL.—If the expansion of the opiate category is 


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1 determined to be justified under subsection (a)(1) and the 

2 Secretary of Transportation concurs with that determina3 tion, the Secretary of Transportation shall publish in the 

4 Federal Register, not later than 18 months after the date 

5 the final notice is published under subsection (a)(2), a 

6 final rule revising part 40 of title 49, Code of Federal Reg7 ulations, to include fentanyl in the Department of Trans8 portation’s drug-testing panel, consistent with the Manda9 tory Guidelines for Federal Workplace Drug Testing Pro10 grams as revised by the Secretary of Health and Human 

11 Services under subsection (a). 

12 (c) SAVINGS PROVISION.—Nothing in this section 

13 may be construed as limiting or otherwise affecting any 

14 authority of the Secretary of Health and Human Services 

15 or the Secretary of Transportation to expand the list of 

16 authorized drug testing to include an additional substance. 

17 SEC. 6. REPORT ON HAIR TESTING GUIDELINES. 

18 Not later than 30 days after the date of enactment 

19 of this Act, and every 30 days thereafter until the date 

20 that the Secretary of Health and Human Services pub21 lishes in the Federal Register a final notice of scientific 

22 and technical guidelines for hair testing in accordance 

23 with section 5402(b) of the Fixing America’s Surface 

24 Transportation Act (Public Law 114–94; 129 Stat. 1312), 

25 the Secretary of Health and Human Services shall submit 


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1 to the Committee on Commerce, Science, and Transpor2 tation of the Senate and the Committee on Transportation 

3 and Infrastructure of the House of Representatives a re4 port on— 

5 (1) the status of the hair testing guidelines; 

6 (2) an explanation for why the hair testing 

7 guidelines have not been issued; 

8 (3) a schedule, including benchmarks, for the 

9 completion of the hair testing guidelines; and 

10 (4) an estimated date of completion of the hair 

11 testing guidelines. 

12 SEC. 7. MANDATORY GUIDELINES FOR FEDERAL WORK13 PLACE DRUG TESTING PROGRAMS USING 

14 ORAL FLUID. 

15 (a) DEADLINE.—Not later than December 31, 2018, 

16 the Secretary of Health and Human Services shall publish 

17 in the Federal Register a final notice of the Mandatory 

18 Guidelines for Federal Workplace Drug Testing Programs 

19 using Oral Fluid, based on the notice of proposed manda20 tory guidelines published in the Federal Register on May 

21 15, 2015 (94 FR 28054). 

22 (b) RULE OF CONSTRUCTION.—Nothing in this sec23 tion may be construed as— 

24 (1) limiting or otherwise affecting the discretion 

25 of the Secretary of Health and Human Services to 


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1 revise the proposed mandatory guidelines described 

2 in subsection (a) to address issues raised during 

3 rulemaking, including issues involving passive expo4 sure to marijuana use, prior to publishing the final 

5 notice; or 

6 (2) requiring the Secretary of Health and 

7 Human Services to reissue a notice of proposed 

8 mandatory guidelines to carry out subsection (a). 

9 SEC. 8. ELECTRONIC RECORDKEEPING. 

10 Not later than December 31, 2019, the Secretary of 

11 Transportation shall issue a final rule revising part 40 of 

12 title 49, Code of Federal Regulations, to authorize, to the 

13 extent practicable, the use of electronic signatures or dig14 ital signatures executed to electronic forms instead of tra15 ditional handwritten signatures executed on paper forms. 

Æ 


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