[Senate Report 115-286]
[From the U.S. Government Publishing Office]
Calendar No. 491
115th Congress} { Report
SENATE
2d Session } { 115-286
======================================================================
FIGHTING OPIOID ABUSE IN TRANSPORTATION ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2848
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
June 27, 2018.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2018
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fifteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada TOM UDALL, New Mexico
JAMES M. INHOFE, Oklahoma GARY C. PETERS, Michigan
MIKE LEE, Utah TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin TAMMY DUCKWORTH, Illinois
SHELLEY MOORE CAPITO, West Virginia MARGARETWOODHASSAN,NewHampshire
CORY GARDNER, Colorado CATHERINE CORTEZ MASTO, Nevada
TODD C. YOUNG, Indiana JON TESTER, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Calendar No. 491
115th Congress} { Report
SENATE
2d Session } { 115-286
======================================================================
FIGHTING OPIOID ABUSE IN TRANSPORTATION ACT
_______
June 27, 2018.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 2848]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2848) to improve Department of
Transportation controlled substances and alcohol testing, 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 S. 2848 is to improve drug and alcohol
testing requirements for transportation workers by doing the
following: extending testing requirements to rail mechanical
employees and yardmasters; setting a deadline for the issuance
of oral fluid testing guidelines; increasing the transparency
of drug and alcohol testing data; promoting accountability for
the issuance of regulatory actions required by prior statutes;
and requiring mandatory testing guidelines to include fentanyl
on the drug testing panel if justified.
Background and Needs
Opioid abuse has surged in recent years, with more than
42,000 opioid overdose deaths in 2016 alone.\1\ Opioid abuse
negatively affects transportation safety; recent post-accident
test data show significant increases in the number of operators
or drivers impaired by opioids and involved in accidents.\2\ In
addition, lab-reported Department of Transportation (DOT) drug
testing data for safety-sensitive transportation workers from
2011 to 2015 show increases in positive drug tests across a
range of substances, including opiates and amphetamines.\3\
DOT, through its Office of Drug and Alcohol Policy and
Compliance (ODAPC) and modal administrations, currently
requires drug and alcohol testing for more than 12 million
transportation workers in the aviation, trucking, railroad,
mass transit, pipeline, and other transportation industries.\4\
---------------------------------------------------------------------------
\1\National Institute on Drug Abuse. Nearly half of opioid-related
overdose deaths involve fentanyl. 2018. (https://www.drugabuse.gov/
news-events/news-releases/2018/05/nearly-half-opioid-related-overdose-
deaths-involve-fentanyl)
\2\Governors' Highway Safety Association. Drug-Impaired Driving:
Marijuana and Opioids Raise Critical Issues for States. 2018. (https://
www.ghsa.org/resources/DUID18)
\3\Federal Railroad Administration. MOW Final Rule Presentation;
Drug & Alcohol Regulations, Incidents, and Trends. September 15, 2016.
(https://rsac.fra.dot.gov/meetings/20160915.php)
\4\DOT. Office of Drug and Alcohol Policy and Compliance.
Employees--What are the drug & alcohol testing rules and where do I
find them? 2018. (https://www.transportation.gov/odapc/employee). Note
that this number includes employees subject to regulations of the
United States Coast Guard, which is part of the Department of Homeland
Security.
---------------------------------------------------------------------------
Pursuant to the Omnibus Transportation Employee Testing Act
of 1991 (P.L. 102-143), DOT follows the Department of Health
and Human Services (HHS) Mandatory Guidelines for Federal
Workplace Drug Testing Programs (HHS Mandatory Guidelines) to
determine the types of drugs for which DOT requires testing.\5\
DOT, however, has discretion regarding many aspects of the
regulations covering regulated modal administration programs,
and ODAPC primarily advises DOT on such issues, publishing drug
and alcohol testing regulations for the transportation industry
and issuing official interpretations of those regulations.
---------------------------------------------------------------------------
\5\See Omnibus Transportation Employee Testing Act of 1991 (P.L.
102-143).
---------------------------------------------------------------------------
On January 23, 2017, HHS revised its HHS Mandatory
Guidelines to include synthetic opioids--specifically
oxycodone, oxymorphone, hydrocodone, and hydromorphone--on the
panel of controlled substances for which Federal agencies can
test.\6\ Following revision of the HHS Mandatory Guidelines, on
November 13, 2017, DOT published a final rule including these
synthetic opioids on its drug testing panel used for
transportation workers subject to DOT drug and alcohol testing
regulations.\7\ Notably, fentanyl, a synthetic opioid
responsible for approximately 19,000, or 46 percent, of the
opioid overdose deaths in 2016, was not included on the
panel.\8\
---------------------------------------------------------------------------
\6\SAMHSA. Mandatory Guidelines for Federal Workplace Drug Testing
Programs. 2017. (https://www.samhsa.gov/sites/default/files/workplace/
frn_vol_82_7920_.pdf)
\7\DOT. Addition of Certain Schedule II Drugs to the Department of
Transportation's Drug-Testing Panel and Certain Minor Amendments. 2017.
(https://www.federalregister.gov/
documents/2017/11/13/2017-24397/procedures-for-transportation-
workplace-drug-and-alcohol-testing-programs-addition-of-certain)
\8\Ibid. National Institute on Drug Abuse. 2018.
---------------------------------------------------------------------------
Like many transportation workers across modes, railroad
employees defined as performing safety-sensitive functions--
including engineers, conductors, brakemen, dispatching
employees, and signal employees, among other types of
employees--are subject to mandatory drug and alcohol
testing.\9\ The goal of this testing is to serve as a deterrent
for drug and alcohol use, reducing on-the-job impairment and
therefore increasing safety. However, rail mechanical employees
and yardmasters, who do not perform a dual role that otherwise
would require testing, are currently not subject to mandatory
drug and alcohol testing, despite the nexus between their work
and safety. Moreover, because transit and aviation mechanical
employees are generally subject to mandatory drug and alcohol
testing requirements, extending requirements to rail mechanical
employees and yardmasters would increase uniformity in the
types of employees tested across modes of transportation.
---------------------------------------------------------------------------
\9\Federal Railroad Administration. Drug and Alcohol. 2018.
(https://www.fra.dot.gov/Page/P0345)
---------------------------------------------------------------------------
While urine, oral fluid, and hair can also be used to test
for concentrations of controlled substances, urine testing
currently is the only form of drug testing authorized for use
under the HHS Mandatory Guidelines. Hair and oral fluid testing
may offer advantages in comparison to urine testing, including
more expedient and less invasive testing procedures, and hair
testing may offer greater visibility on use patterns. The
Fixing America's Surface Transportation (FAST) Act (P.L. 114-
94) required HHS to issue, not later than 1 year after the date
of enactment, guidelines for hair testing as a method of
detecting use of a controlled substance.\10\ However, HHS to
date has only issued a request for information on hair testing,
released in May 2015, before the enactment of the FAST Act.\11\
HHS also issued a notice of mandatory guidelines for oral fluid
testing in May 2015, but it has yet to finalize these
guidelines.\12\
---------------------------------------------------------------------------
\10\FAST Act Section 5402 (codified at 49 U.S.C. Sec. 31306 note).
\11\SAMHSA. Request for Information Regarding Specific Issues
Related to the Use of the Hair Specimen for Drug Testing. 2015.
(https://www.gpo.gov/fdsys/pkg/FR-2015-05-29/pdf/2015-12743.pdf)
\12\SAMHSA. Mandatory Guidelines for Federal Workplace Drug Testing
Programs. 2015. (https://www.gpo.gov/fdsys/pkg/FR-2015-05-15/pdf/2015-
11523.pdf)
---------------------------------------------------------------------------
Given the number of tests conducted across the
transportation industry, about 6 million tests annually, better
data collection and analysis in relation to drug and alcohol
testing provides valuable insight regarding changes in the
types of substances used and magnitude of positive test
rates.\13\ However, DOT currently does not have a consolidated,
publicly accessible database to display drug and alcohol
testing across modes of transportation and by drug type, among
other variables. Moreover, DOT does not have a national
database for regulators and employers to track drug and alcohol
violations and ensure that such drivers are identified before
operating commercial motor vehicles on public roads. To that
end, in 2012, Congress, in the Moving Ahead for Progress in the
21st Century Act (MAP-21; P.L. 112-141), directs the Secretary
of Transportation to establish a national clearinghouse
containing commercial motor vehicle operators' violations of
the Federal Motor Carrier Safety Administration's (FMCSA) drug
and alcohol testing program.\14\ On December 5, 2016, FMCSA
published the final rule pursuant to the MAP-21 mandate and set
a compliance date for January 6, 2020.\15\
---------------------------------------------------------------------------
\13\Information Provided by the Office of Drug and Alcohol Policy
and Compliance.
\14\P.L. 112-141.
\15\Federal Motor Carrier Safety Administration. Commercial
Driver's License Drug and Alcohol Clearinghouse. 2016. (https://
www.gpo.gov/fdsys/pkg/FR-2016-12-05/pdf/2016-27398.pdf)
---------------------------------------------------------------------------
Summary of Provisions
If enacted, S. 2848 would do the following:
Close a safety gap in railroad drug and alcohol
testing regulations by expanding testing requirements to both
rail mechanical employees and yardmasters.
Address a major on-going drug abuse issue by
requiring that HHS and DOT include fentanyl in the drug-testing
panel, subject to findings on available testing.
Advance a more expedient and less invasive testing
method by setting a deadline for HHS to issue mandatory
guidelines on oral fluid testing.
Increase transparency by requiring DOT to create a
publicly available database of drug and alcohol testing data
and requiring the Government Accountability Office (GAO) to
review DOT's collection, use, and availability of drug and
alcohol testing data.
Promote accountability by requiring FMCSA to provide
status reports on its implementation of the Commercial Driver's
License Drug and Alcohol Clearinghouse and HHS to provide
status reports on its hair testing guideline.
Legislative History
S. 2848 was introduced by Senator Thune on May 15, 2018. On
May 22, 2018, in an open Executive Session, the Committee, by
voice vote, ordered the bill to be reported favorably with an
amendment (in the nature of a substitute). Senator Thune
offered an amendment (in the nature of a substitute) to improve
the bill. The Committee accepted the bill and amendment en bloc
by voice vote.
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. 2848--Fighting Opioid Abuse in Transportation Act
The Department of Transportation (DOT) issues regulations
concerning drug and alcohol testing of workers in the
transportation industry. The Department of Health and Human
Services (HHS) issues guidelines concerning drug testing in
federal workplaces.
S. 2848 would require DOT and HHS to issue and revise
regulations regarding who is subject to drug and alcohol
testing and to report to the Congress regarding the
implementation of previous regulations. The bill also would
require DOT to establish a public database on drug and alcohol
testing of employees in the transportation industry and to
require the Governmental Accountability Office to complete a
report.
Under current law, DOT collects information from employers
about the drug and alcohol testing of employees. S. 2848 also
would require DOT to revise current rules about which
categories of railroad employees are subject to drug and
alcohol testing. CBO expects that to expand that information
into a publicly available database, the agency would have to
hire up to two employees over a three-year period (at an
average annual cost of $125,000 per employee) to develop the
database and to complete the required rulemaking and reports.
HHS establishes the scientific and technical guidelines for
federal drug-testing programs in the workplace. Current
guidelines address testing for certain opioid drugs, but do not
include testing for the synthetic opioid fentanyl. The bill
would require HHS to update its drug testing guidelines to
include fentanyl or to issue a report to the Congress that
explains its decision not to do so. Based on feedback from HHS,
CBO estimates that carrying out those activities would require
the equivalent of about two employees for two years (at an
average cost of about $125,000 per employee) and additional
work from an outside contractor if HHS updated the current
guidelines.
As a result, CBO estimates that implementing the bill would
cost about $1 million over the 2019-2023 period; such spending
would be subject to the availability of appropriated amounts.
Enacting S. 2848 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 2848 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 2848 would impose intergovernmental and private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
by requiring railroads regulated by DOT to expand drug testing
to include mechanical employees and yardmasters. Because of the
relatively small number of these employees and the fact that
many railroads already test them, CBO expects that the costs of
the mandate would be small.
In addition, the bill would impose a mandate on public and
private employers across various transportation sectors
regulated by DOT if HHS determines that drug testing guidelines
should be updated to include fentanyl. In that scenario, the
costs of the mandate would be the additional costs employers
would incur to test their employees for use of fentanyl.
According to DOT, approximately 5 million employees--including
about 4 million employees who have been issued commercial
driver's licenses--would be subject to testing. Under the
current testing system, only a fraction are randomly tested in
any given year. The costs of the mandate would vary depending
on how many variants of fentanyl HHS chooses to include in its
guidelines, and also would vary depending on the size of each
employer. Using information from DOT and transportation
industry sources, CBO estimates that the costs of the mandate
could be significant, but would not exceed the annual
thresholds for intergovernmental and private-sector mandates
established in UMRA ($80 million and $160 million in 2018,
respectively, adjusted annually for inflation).
The CBO staff contact for this estimate are Sarah Puro (for
DOT programs), Andrea Noda (for HHS programs) and Jon Sperl
(for mandates). The estimate was reviewed by Theresa Gullo,
Assistant Director for Budget Analysis.
Regulatory Impact Statement
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
Sections 2 and 3 of S. 2848, as reported, would expand to
both rail mechanical employees and yardmasters the drug testing
requirements applicable to other types of rail employees that
have safety responsibilities. The Bureau of Labor Statistics
(BLS) estimates that approximately 39,000 yardmasters and
conductors and approximately 35,000 rail installation, repair,
and maintenance workers are employed in the United States.\16\
The majority of employees included in these BLS estimates--
including conductors and rail signal employees--are already
covered under existing DOT drug testing requirements, meaning
the number of additional persons covered would likely be a
small fraction of those 64,000 employees.
---------------------------------------------------------------------------
\16\Bureau of Labor Statistics. National Industry-Specific
Occupational Employment and Wage Estimates 482100--Rail Transportation.
May 2017. (https://www.bls.gov/oes/current/naics4_482100.htm#00-0000)
---------------------------------------------------------------------------
Section 6 of S. 2848 also would require HHS and DOT to
include fentanyl in the drug testing panel if justified, and
section 7 would set a deadline for HHS to issue mandatory
guidelines on oral fluid testing. The promulgation of these
guidelines by HHS and subsequent adoption by DOT through
rulemaking would affect the approximately 12 million workers
performing safety-sensitive transportation occupations in the
United States.\17\ However, the changes made are not expected
to substantially increase burden on affected employees, given
that they are already subject to drug testing using the
existing panel. In fact, both oral fluid and hair testing
methods are considered to be less invasive and more expedient
than urine testing. If hair and oral fluid samples become
widely used in drug testing as a result of HHS's issuance,
cumulative burden on transportation employees could foreseeably
be reduced.
---------------------------------------------------------------------------
\17\DOT. Office of Drug and Alcohol Policy and Compliance.
Employees--What are the drug & alcohol testing rules and where do I
find them?. 2018 (https://www.transportation.gov/odapc/employee). Note
that this number includes employees subject to regulations of the
United States Coast Guard, which is part of the Department of Homeland
Security.
---------------------------------------------------------------------------
economic impact
S. 2848, as reported, is not expected to have a negative
impact on the Nation's economy.
privacy
S. 2848, as reported, is expected to have an impact on the
personal privacy of a small number of individuals, since the
bill would subject rail mechanical employees and yardmasters--
currently not covered under drug testing requirements unless
they perform a dual role that otherwise would require testing--
to mandatory drug testing. With respect to the oral testing
provision in section 7, in addition to increasing the
expediency of testing, this provision is intended to quicken
the adoption of an oral sampling method for drug testing, which
would advance the same objective as urine testing with a
smaller impact on the privacy of individuals.
paperwork
S. 2848, as reported, would reduce paperwork requirements
for regulated entities. Section 9 of the bill would require HHS
to approve all certified laboratories requesting use of
paperless electronic chain of custody forms used in the course
of drug testing. As major laboratories responsible for the
majority of drug testing in the United States transition to
completely paperless electronic chain of custody systems, the
paperwork burden on employers, collectors, and laboratories
would significantly decrease. In addition, section 10 would
require FMCSA to provide status reports on its implementation
of the Commercial Driver's License Drug and Alcohol
Clearinghouse, and section 8 would require HHS to provide
status reports on its hair testing guidelines. These two
reporting requirements are expected to result in a very small
increase in paperwork for those agencies, as necessary for the
status reports, up until the date of full implementation or
compliance with the underlying statutory requirements.
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 provide that the bill may be cited as
the ``Fighting Opioid Abuse in Transportation Act.''
Section 2. Rail mechanical employee controlled substances and alcohol
testing.
This section would require the Secretary of Transportation
to publish a final rule to designate rail mechanical employees
as employees responsible for safety-sensitive functions for the
purposes of railroad drug and alcohol testing requirements. In
effect, this section would make such requirements applicable to
rail mechanical employees, similar to other types of railroad
employees with safety responsibilities, such as engineers or
conductors. The section would require the Secretary of
Transportation to define the term ``rail mechanical employee''
by regulation.
Section 3. Rail yardmaster controlled substances and alcohol testing.
This section would require the Secretary of Transportation
to publish a final rule to designate yardmasters as employees
responsible for safety-sensitive functions for the purpose of
railroad drug and alcohol testing requirements. In effect, this
section would make such requirements applicable to yardmasters,
similar to other types of railroad employees with safety
responsibilities, such as engineers or conductors. The section
would require the Secretary of Transportation to define the
term ``yardmaster'' by regulation.
Section 4. Department of Transportation public drug and alcohol testing
database.
This section would require the Secretary of Transportation
to establish and make publicly available on its website a
database of drug and alcohol testing data reported by employers
for each mode of transportation and to update the database
annually. This section would require the database to include,
for each mode of transportation, the following: the number of
tests by substance tested; results of the tests by substance;
the reasons for the tests; and the number of individuals who
refused testing. This database is intended to provide greater
transparency of drug and alcohol testing data by making it
available in a more consolidated and easily accessible format.
This section would include protections for commercially
sensitive data and for ensuring individual employers and
employees are not identified.
Section 5. GAO report on department of transportation's collection and
use of drug testing data.
This section would require GAO to review DOT's Drug and
Alcohol Testing Information Management System and to submit a
report on the review to relevant congressional committees. The
report would include a description of data collection
processes, an assessment of data use, and an assessment of the
public database, along with potential recommendations for how
the management of drug and alcohol testing data could be
improved.
Section 6. Transportation workplace drug and alcohol testing program;
addition of fentanyl.
This section would require the Secretary of Health and
Human Services to determine, within 6 months, whether the
inclusion of fentanyl on the panel of drugs authorized for
testing is justified, based on the reliability and cost-
effectiveness of available testing. If the Secretary does find
that the inclusion of fentanyl is justified, the agency would
be required to issue a revision to the mandatory guidelines to
include fentanyl on the panel within 18 months of the date of
the determination. If the Secretary finds that the inclusion of
fentanyl is not justified, the agency would be required to
submit a report to Congress explaining, in detail, the reasons
for its determination.
Within 18 months of the Secretary of Health and Human
Services publishing the final notice to revise the mandatory
guidelines to include fentanyl, pursuant to this section, the
Secretary of Transportation would be required to publish a
final rule adding fentanyl to DOT's drug testing panel.
Section 7. Status reports on hair testing guidelines.
This section would require the Secretary of Health and
Human Services to report to Congress on the status of the final
notice for the statutorily-required scientific and technical
guidelines for hair testing, within 30 days of enactment of
this bill and every 6 months thereafter, until the agency
publishes a final notice of guidelines for hair testing. The
section would require the report to include the following: an
explanation of why the guidelines have not been issued; a
schedule, including benchmarks, for the completion of the
guidelines; and an estimated date of completion for the
guidelines. The section would include a provision to address
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.
In addition, the Committee directs HHS to conduct, every 60
days starting from the date of enactment of this bill and until
the issuance of the final notice of guidelines for hair
testing, staff-level briefings with the Committee on Commerce,
Science, and Transportation of the Senate and the Committee on
Transportation and Infrastructure of the House of
Representatives. The briefings should include an explanation of
why the guidelines have not been issued; a schedule, including
benchmarks, for the completion of the guidelines; and an
estimated date of completion for the guidelines.
Section 8. Mandatory guidelines for Federal workplace drug testing
programs using oral fluid.
This section would require the Secretary of Health and
Human Services to publish a final notice of mandatory
guidelines for oral fluid testing not later than December 31,
2018, based on the notice of proposed mandatory guidelines
published in 2015. The section would include a provision to
address 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.
Section 9. Electronic recordkeeping.
This section would require the Secretary of Health and
Human Services, not later than 1 year from the date of
enactment of this bill, to ensure each certified laboratory
that requests the use of paperless electronic chain of custody
forms receives approval. This section also would require the
Secretary of Transportation, not later than 30 months from the
date of enactment of this bill, to issue a final rule
authorizing the use of electronic signatures for all paperless
chain of custody forms under part 40 of title 49, Code of
Federal Regulations.
Section 10. Status reports on Commercial Driver's License Drug and
Alcohol Clearinghouse.
This section would require FMCSA to submit a report to
Congress biannually on the implementation of the final rule for
the Commercial Driver's Drug and Alcohol Clearinghouse, until
such rule is fully implemented. The report would include an
updated schedule for implementation of the rule as soon as
practicable and a description of actions taken by FMCSA to
implement the rule before the compliance date of January 6,
2020.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
bill as reported would make no change to existing law.
[all]