[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
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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\
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\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).
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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.
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\4\49 U.S.C. 31306(a).
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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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