II 115th CONGRESS 2d Session S. 2848 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. 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.