II Calendar No. 491 115th CONGRESS 2d Session S. 2848 [Report No. 115–286] 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.

1. Short title This Act may be cited as the Fighting Opioid Abuse in Transportation Act . 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. 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. 4. GAO report on Department of Transportation’s collection and use of drug testing data (a) In general Not later than 18 months after the date of enactment of this Act, 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; (3) an assessment of the extent to which the data described in paragraph (1) is distributed and available within the Department of Transportation; and (4) an assessment of the extent to which drug and alcohol positive rates for each mode of transportation are publicly available. (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 drug and alcohol positive rates for each mode of transportation should be made publicly available in an easily accessible format; and (4) such other recommendations as the Comptroller General considers appropriate. 5. 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 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. (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). (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. 6. Report on hair testing guidelines 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— (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. 7. 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) Rule of construction Nothing in this section may be construed as— (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 (2) requiring the Secretary of Health and Human Services to reissue a notice of proposed mandatory guidelines to carry out subsection (a). 8. Electronic recordkeeping 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.

1. Short title This Act may be cited as the Fighting Opioid Abuse in Transportation Act . 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. 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. 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. 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. 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. 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. 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). 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. 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.

June 27, 2018 Reported with an amendment