[Senate Report 116-328]
[From the U.S. Government Publishing Office]
Calendar No. 634
116th Congress } { Report
SENATE
2d Session } { 116-328
_______________________________________________________________________
PREVENTING OPIOID AND DRUG IMPAIRMENT IN TRANSPORTATION ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2979
December 15, 2020.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
19-010 WASHINGTON : 2020
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred sixteenth congress
second session
ROGER F. WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington
ROY BLUNT, Missouri AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska TOM UDALL, New Mexico
CORY GARDNER, Colorado GARY C. PETERS, Michigan
MARSHA BLACKBURN, Tennessee TAMMY BALDWIN, Wisconsin
SHELLEY MOORE CAPITO, West Virginia TAMMY DUCKWORTH, Illinois
MIKE LEE, Utah JON TESTER, Montana
RON JOHNSON, Wisconsin KYRSTEN SINEMA, Arizona
TODD C. YOUNG, Indiana JACKY ROSEN, Nevada
RICK SCOTT, Florida
John Keast, Staff Director
David Strickland, Minority Staff Director
Calendar No. 634
116th Congress } { Report
SENATE
2d Session } { 116-328
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PREVENTING OPIOID AND DRUG IMPAIRMENT IN TRANSPORTATION ACT
_______
December 15, 2020.--Ordered to be printed
_______
Mr. Wicker, from the Committee on Commerce, Science, and
Transportation, submitted the following
R E P O R T
[To accompany S. 2979]
[Including and cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2979) to improve drug testing
for transportation-related activities, 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. 2979 is to further improve drug and
alcohol testing requirements for employees in safety-sensitive
transportation positions and initiate research that would
assist with preventing drug-impaired driving on our Nation's
roads.
BACKGROUND AND NEEDS
In recent years, Congress has undertaken efforts to prevent
opioid and other drug abuse and overdose through efforts such
as the SUPPORT for Patients and Communities Act.\1\ S. 2979
would further those efforts by better tracking drug use of
employees in safety-sensitive transportation positions,
creating improvements in drug and alcohol testing processes to
better utilize U.S. Department of Transportation (DOT)
resources, and initiating research to assist in better
identifying and preventing drug-impaired driving.
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\1\Public Law 115-271.
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Drug and alcohol testing is critical for the safety of our
Nation's roadways. DOT oversees the administration and
improvement of drug and alcohol testing for employees in
safety-sensitive transportation positions and works to reduce
impaired driving for individuals on our Nation's highways.
DOT's Office of Drug and Alcohol Policy and Compliance (ODAPC)
and its modal administrations currently require drug and
alcohol testing for more than 12 million transportation workers
in the aviation, trucking, railroad, mass transit, pipeline,
maritime, and other transportation industries.\2\ In addition,
the National Highway Traffic Safety Administration (NHTSA) is
responsible for reducing deaths and injuries from motor vehicle
crashes and works with States and law enforcement to reduce
impaired driving, both for alcohol and drugs, through grant
programs, driver behavior standards, and education campaigns.
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\2\U.S. Department of Transportation, Office of Drug and Alcohol
Policy and Compliance, ``Employees: What Are the Drug & Alcohol Testing
Rules and Where Do I Find Them?,'' updated Jul. 1, 2020 (https://
www.transportation.gov/odapc/employee#drugalcohol) (accessed Sep. 14,
2020). Note that the 12 million transportation workers includes
employees subject to regulations of the U.S. Coast Guard, which is part
of the U.S. Department of Homeland Security.
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Drug-impaired driving has been of increasing concern in
recent years, particularly given the surge in opioid abuse and
changes in State drug laws. Drug-impaired driving negatively
impacts drivers' coordination, judgement, and reaction
times.\3\ In 2016 alone, there were more than 42,000 opioid
overdose deaths,\4\ and drivers are increasingly testing
positive for marijuana.\5\ Recent post-crash test data show
significant increases in the number of operators or drivers
impaired by opioids and involved in crashes.\6\ In addition,
DOT lab-reported drug testing data for safety-sensitive
transportation workers from 2011 to 2015 showed increases in
positive drug tests for opiates and amphetamines.\7\
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\3\U.S. Department of Transportation, National Highway Traffic
Safety Administration, ``Drug-Impaired Driving'' (https://
www.nhtsa.gov/risky-driving/drug-impaired-driving#32451) (accessed Sep.
14, 2020).
\4\National Institutes of Health, National Institute on Drug Abuse,
``Nearly Half of Opioid-related Overdose Deaths Involve Fentanyl,'' May
1, 2018 (https://www.drugabuse.gov/news-events/news-releases/2018/05/
nearly-half-opioid-related-overdose-deaths-involve-fentanyl) (accessed
Sep. 14, 2020).
\5\Jim Hedlund, Governors Highway Safety Association, Drug-Impaired
Driving: Marijuana and Opioids Raise Critical Issues for States, p. 12,
May 2018 (https://www.ghsa.org/resources/DUID18) (accessed Sep. 14,
2020); U.S. Department of Transportation, National Highway Traffic
Safety Administration, ``Drug-Impaired Driving'' (https://
www.nhtsa.gov/risky-driving/drug-
impaired-driving#32451) (accessed Sep. 14, 2020).
\6\Jim Hedlund, Governors' Highway Safety Association, Drug-
Impaired Driving: Marijuana and Opioids Raise Critical Issues for
States, May 2018 (https://www.ghsa.org/resources/DUID18) (accessed Sep.
14, 2020).
\7\U.S. Department of Transportation, Office of the Secretary of
Transportation, Office of Drug and Alcohol Policy and Compliance, ``DOT
Program Update: Federal Drug Testing Advisory Board,'' May 20, 2016,
slide 16 (https://www.samhsa.gov/sites/default/files/meeting/documents/
kelly-dot-dtab-may-2016.pdf) (accessed Sep. 14, 2020).
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For transportation employees in safety-sensitive positions,
DOT follows the Department of Health and Human Services (HHS)
Mandatory Guidelines for Federal Workplace Drug Testing
Programs (HHS Mandatory Guidelines) to determine the drug
testing panel for which drug testing is required.\8\ DOT,
however, has some discretion in how it regulates the modal
administration drug testing programs. ODAPC is responsible for
advising DOT on such issues and publishing drug and alcohol
testing regulations for the transportation industry.
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\8\Omnibus Transportation Employee Testing Act of 1991 (Pub. L.
102-143).
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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.\9\ Following revision of the HHS Mandatory Guidelines, on
November 13, 2017, DOT published a final rule adding these
synthetic opioids to its drug testing panel used for
transportation workers subject to DOT drug and alcohol testing
regulations.\10\ Notably, fentanyl, a synthetic opioid
responsible for approximately 19,000 deaths in 2016--46 percent
of all opioid overdose deaths that year--was not included on
the panel.\11\ Section 8105 of the SUPPORT for Patients and
Communities Act\12\ required HHS within 180 days of enactment
to determine whether a revision of the HHS Mandatory Guidelines
to expand the opiate category on the list of authorized
substance testing to include fentanyl, based on the reliability
and cost-effectiveness on available testing.
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\9\U.S. Department of Health and Human Services, Substance Abuse
and Mental Health Services Administration, ``Mandatory Guidelines for
Federal Workplace Drug Testing Programs,'' 82 Fed. Reg. 7920 (Jan. 23,
2017) (https://www.govinfo.gov/content/pkg/FR-2017-01-23/pdf/2017-
00979.pdf) (accessed Sep. 14, 2020).
\10\U.S. Department of Transportation, Office of the Secretary,
``Procedures for Transportation Workplace Drug and Alcohol Testing
Programs: Addition of Certain Schedule II Drugs to the Department of
Transportation's Drug-Testing Panel and Certain Minor Amendments,'' 82
Fed. Reg. 52229 (Nov. 13, 2017) (https://www.govinfo.gov/content/pkg/
FR-2017-11-13/pdf/2017-24397.pdf) (accessed Sep. 14, 2020).
\11\National Institutes of Health, National Institute on Drug
Abuse, ``Nearly Half of Opioid-related Overdose Deaths Involve
Fentanyl,'' May 1, 2018 (https://www.drugabuse.gov/news-events/news-
releases/2018/05/nearly-half-opioid-related-overdose-deaths-involve-
fentanyl) (accessed Sep. 14, 2020).
\12\Public Law 115-271.
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As a general matter, urine, oral fluid, and hair testing
are available methods of testing for concentrations of
controlled substances. However, under the HHS Mandatory
Guidelines, urine testing currently is the only form of drug
testing that may be used to test transportation employees
subject to DOT drug and alcohol testing regulations.
The Fixing America's Surface Transportation (FAST) Act of
2015\13\ required HHS to issue, within 1 year after enactment,
guidelines for hair testing as a method of detecting use of a
controlled substance.\14\ Section 8106 of the SUPPORT for
Patients and Communities Act\15\ required HHS within 60 days of
enactment to provide Congress with the current status and
expected timeline of testing guidelines. These guidelines had
not yet been released upon introduction of S. 2979.
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\13\Public Law 114-94.
\14\FAST Act, section 5402 (codified at 49 U.S.C. Sec. 31306 note).
\15\Public Law 115-271.
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Finally, with increased opioid abuse and the legalization
of recreational marijuana use in some States, concerns related
to drug-impaired driving on our Nation's roads have been
increasingly prevalent. In addition, roadside technology to
detect drug presence and impairment is still under development.
Despite the fact that it is illegal to drive impaired, whether
by alcohol or drugs, NHTSA's 2013-2014 National Roadside Survey
found that the number of drivers testing positive for marijuana
increased between 2007 and 2014.\16\ The survey further found
that 20 percent of nighttime weekend drivers tested positive
for drugs.\17\ Additionally, in 2016, NHTSA conducted a
comprehensive case-control study to estimate the crash risk of
alcohol-positive, drug-positive, and drug- and alcohol-positive
drivers. The study confirmed previous research indicating that
alcohol is a greater contributor to crash risk than drugs, but
hypothesized that the consumption of drugs, alone or with
alcohol, may be associated with crash severity.\18\ In 2018,
NHTSA announced the If You Feel Different, You Drive Different
education campaign to inform drivers of the dangers of drug-
impaired driving.
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\16\U.S. Department of Transportation, National Highway Traffic
Safety Administration, ``Drug-Impaired Driving'' (https://
www.nhtsa.gov/risky-driving/drug-impaired-driving#32451) (accessed Sep.
14, 2020).
\17\Amy Berning et al., U.S. Department of Transportation, National
Highway Traffic Safety Administration, Traffic Safety Facts: Results of
the 2013-2014 National Roadside Survey of Alcohol and Drug Use by
Drivers, DOT HS 812 118, Feb. 2015 (https://www.nhtsa.gov/sites/
nhtsa.dot.gov/files/812118-roadside_survey_2014.pdf) (accessed Sep. 14,
2020).
\18\John H. Lacey et al., U.S. Department of Transportation,
National Highway Traffic Safety Administration, Drug and Alcohol Crash
Risk: A Case-Control Study, DOT HS 812 335,
Dec. 2016, pp. 5-6 (https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/
documents/812355_
drugalcoholcrashrisk.pdf) (accessed Sep. 14, 2020).
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SUMMARY OF PROVISIONS
S. 2979 would do the following:
Make improvements in drug and alcohol testing for
employees in safety-sensitive transportation positions,
such as Amtrak locomotive engineers and conductors,
pipeline operators, and commercial motor vehicle
drivers.
Initiate important research to combat drug-impaired
driving on our Nation's roads.
LEGISLATIVE HISTORY
S. 2979 was introduced on December 4, 2019, by Senator
Wicker and was referred to the Committee on Commerce, Science,
and Transportation of the Senate. On December 11, 2019, the
Committee met in open Executive Session and, by voice vote,
ordered S. 2979 reported favorably with an amendment (in the
nature of a substitute).
During the 115th Congress, S. 2848, the Fighting Opioid
Abuse in Transportation Act, was reported favorably with an
amendment (in the nature of a substitute) by Senator Thune on
behalf of the Committee on Commerce, Science, and
Transportation of the Senate. That bill was enacted into law in
subtitle I of the SUPPORT for Patients and Communities Act.\19\
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\19\Public Law 115-271.
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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. 2979 would require the Department of Transportation, the
Department of Health and Human Services, and the Government
Accountability Office to undertake several studies related to
drug use and the prevention of such drug use by operators of
different modes of transportation. Those agencies would be
required to report to the Congress on the relevant findings at
varying times following enactment.
CBO assumes that the bill will be enacted in fiscal year
2020. Under that assumption, the agencies could incur some
costs in 2020, but CBO expects that most of the costs would be
incurred in 2021 and later. Any spending would be subject to
the availability of appropriated funds. Using information on
the costs of similar studies and reports, CBO estimates that
implementing S. 2979 would cost $2 million over the 2020-2025
period.
S. 2979 would impose a private-sector mandate as defined in
the Unfunded Mandates Reform Act (UMRA) on the National
Railroad Passenger Corporation (commonly known as Amtrak). The
bill would require the company to establish an electronic
database containing drug and alcohol test records for employees
in safety-sensitive positions and establish procedures for
tracking and monitoring drug and alcohol testing information
maintained in the database. The bill would require Amtrak to
complete those actions within 18 months of enactment and to
submit two reports on related safety issues to the Congress.
Because Amtrak already maintains the required information
in paper form and the effort to comply with the reporting
requirements would be small, CBO estimates the aggregate costs
of the private-sector mandates would fall well below the annual
threshold established in UMRA for private-sector mandates ($168
million in 2020, adjusted annually for inflation).
The bill also would require the Department of
Transportation to consider whether existing regulations that
apply to licensing locomotive engineers and conductors should
include requirements to report drug- and alcohol-related
arrests. If the department determines that the regulations
should be modified, the bill would impose a private-sector
mandate on locomotive engineers, conductors, and persons
seeking certification to operate locomotives by requiring these
individuals to report those offenses to Amtrak. Whether the
department will issue a determination that the regulations
should be modified is uncertain; however, fewer than 20,000
Amtrak employees would be affected by the new reporting
requirement. Therefore, CBO estimates the cost to comply with
the mandate would be small.
S. 2979 contains no intergovernmental mandates as defined
in the UMRA.
The CBO staff contacts for this estimate are Robert Reese
(for federal costs) and Brandon Lever (for mandates). The
estimate was reviewed by H. Samuel Papenfuss, Deputy Director
of 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
S. 2979, as reported, would direct the Secretary of
Transportation to determine whether regulations set forth in
parts 240 and 242 of title 49, Code of Federal Regulations
(CFR), should be revised to require locomotive engineers and
conductors, or personnel seeking initial certification to
become a locomotive engineer or a conductor, for Amtrak to
report arrests due to drug or alcohol offenses as soon as
practicable and before performing any safety-sensitive service
as a locomotive engineer or conductor. Currently, regulations
under 49 CFR 240.111(h) require certified locomotive engineers
or persons seeking initial certification to report certain
motor vehicle incidents within 48 hours of being convicted for,
or completed State action to cancel, revoke, suspend, or deny a
motor vehicle driver's license for, such violations. The same
is required for certified conductors or persons seeking initial
certification under 49 CFR 242.111(l). Depending on the
Secretary of Transportation's determination as to whether the
regulations in parts 240 and 242 of 49 CFR should be revised
for locomotive engineers and conductors, or persons seeking
initial certification to become a locomotive engineer or
conductor, for Amtrak, S. 2979 could increase the number of
persons covered for reporting arrests due to drug or alcohol
offenses who are either locomotive engineers or conductors, or
seeking to become locomotive engineers or conductors, for
Amtrak.
Economic Impact
S. 2979, as reported, is not expected to have an adverse
impact on the Nation's economy.
Privacy
S. 2979, as reported, does not raise any issues relating to
privacy. Section 2 of S. 2979 would require Amtrak to establish
an electronic database of all safety-sensitive positions to
record data on employee drug and alcohol tests, but such data
already is collected through paper records. The Committee
recognizes potential risks associated with the electronic
storage of this data, but believes Amtrak can take steps to
ensure the security of the database.
Paperwork
S. 2979, as reported, would increase certain paperwork
requirements. Section 2 of the bill would require Amtrak to
provide a report to Congress on methods used by Amtrak to
ensure that supervisors of employees in safety-sensitive
positions receive certain training and measures implemented to
improve safety related to employee prescription drug use. This
report would be a one-time submission with a limited scope.
Section 4 of the bill would require DOT to submit a report
to Congress on the ability of pipeline companies that operate
from Canada or Mexico into the United States to conduct drug
and alcohol testing and whether operators have sufficient
testing in place to ensure safe operations. Section 6 of the
bill would require NHTSA to study the ways in which the agency
can reduce and better detect impaired driving, and section 7 of
the bill would require DOT to study the accuracy of onsite
fluid screening for tetrahydrocannabinol (i.e., THC) and opiate
presence. Section 11 of the bill would require DOT to report on
the status of the Driver Alcohol Detection System for Safety
Program, and section 12 would require DOT, in consultation with
other Federal agencies, to report to Congress on setting
national minimum guidelines for toxicological investigations in
cases of motor vehicle crashes and drug-impaired driving cases.
These DOT studies and reports are important to ensuring the
safety of our Nation's pipelines and combating impaired driving
on our Nation's roads.
Section 9 of the bill would require HHS to provide a status
report on its determination of whether to add fentanyl to the
drug testing panel, and section 10 would require the Office of
Management and Budget (OMB) and HHS to provide status reports
to Congress on hair testing guidelines as required by section
5402(b) of the FAST Act.\20\ These two reporting requirements
are expected to result in a small increase in paperwork for HHS
and OMB.
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\20\49 U.S.C. 31306 note.
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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; table of contents.
This section would provide that the bill may be cited as
the ``Preventing Opioid and Drug Impairment in Transportation
Act''. This section also provides a table of contents for the
bill.
Section 2. Amtrak employee controlled substances and alcohol testing
records.
This section would direct Amtrak to report to Congress, not
later than 1 year after the date of enactment, on methods used
to ensure supervisors of employees in safety-sensitive
positions receive the required training on how to detect drug
and alcohol use, as well as measures implemented to improve
compliance with self-reporting of employee prescription drug
use. Amtrak would also be required to establish an electronic
database for employee drug and alcohol tests records, as well
as effective procedures to track and monitor such testing,
within 18 months after the date of enactment. Finally, Amtrak
would be required to report to Congress on the measures
implemented to improve safety related to employee prescription
drug use, within 18 months after the date of enactment.
Section 3. Alcohol and controlled substance reporting of Amtrak
locomotive engineers and conductors.
This section would direct DOT to make a determination, not
later than 1 year after the date of enactment, as to whether
existing regulations should be updated to require Amtrak
locomotive engineers and conductors to report arrests due to
drug or alcohol offenses as soon as practicable, and before any
safety-sensitive service is performed. If the Secretary of
Transportation determines that these regulations should be
revised, the Secretary shall advise appropriate committees of
jurisdiction of that determination and, not later than 18
months after the determination, publish a proposed rule
revision in the Federal Register that would require engineers
and conductors (including those seeking initial certification)
to report drug and alcohol offense arrests as soon as possible,
define the scope of the reportable drug or alcohol offenses,
and set the timeframe for which offenses are considered
reportable prior to initial certification.
Section 4. Safety-sensitive personnel study.
This section would require DOT to report to Congress, not
later than 180 days after the date of enactment, on the ability
of pipeline companies to require drug and alcohol testing of
safety-sensitive personnel that are located outside of the
United States but operate infrastructure within the United
States, and indicate whether such operators have sufficient
drug and alcohol testing procedures in place to ensure safe
operations.
Section 5. Interstate drug and alcohol oversight.
This section would require DOT to amend its pipeline
auditing program, not later than 18 months after the date of
enactment, to improve the efficiency of certain drug and
alcohol regulations as applied to pipeline contractors working
in multiple States or for multiple pipeline operators.
Section 6. Impaired driving study.
This section would require NHTSA to report to Congress, not
later than 2 years after the date of enactment, and biennially
for the following 4 years, on the ways in which NHTSA can
reduce and detect impaired driving, including marijuana- and
opioid-impaired driving.
Section 7. Roadside oral fluid drug screening.
This section would require DOT to study the accuracy of
onsite oral fluid screening as a method to detect THC and
opiate presence in drivers. Not later than 4 years after the
date of enactment, the Secretary would be required to submit a
report to Congress with the findings of the study and
recommendations on the potential use of roadside oral fluid
drug screening by law enforcement.
Section 8. GAO report on Department of Transportation drug testing
panel.
This section would direct the U.S. Government
Accountability Office (GAO) to review, not later than 2 years
after the date of enactment, interactions between HHS and DOT
in adding and removing categories of drugs from the testing
panel and assess whether such process addresses the needs of
the transportation industry for drug and alcohol testing to
prevent drug and alcohol-related incidents.
Section 9. Transportation workplace drug and alcohol testing program;
status reports on addition of fentanyl.
This section would amend the requirement established under
section 8105 of subtitle I of the SUPPORT for Patients and
Communities Act and require HHS to report to Congress, within
30 days after the date of enactment, on the status of
determining whether to add fentanyl to the drug panel.
Section 10. Status reports on scientific and technical guidelines for
hair testing of transportation employees.
This section would require OMB, within 30 days after the
date of enactment, and HHS, within 60 days after the date of
enactment, to report to Congress on the status of the
guidelines for hair testing to follow up on section 8106 of
subtitle I of the SUPPORT for Patients and Communities Act. The
Committee does not intend for this provision to change any of
the requirements or considerations set forth in section 8106 of
Public Law 115-271.
Section 11. Report on alcohol detection technology.
This section would require DOT to submit a report to
Congress, not later than 90 days after the date of enactment,
that details the current status and operational potential of
the Driver Alcohol Detection System for Safety Program's drunk-
driving detection technology.
Section 12. Report on collection of drug-impaired driving data.
This section would require DOT, in consultation with
appropriate Federal agencies, State highway safety offices, and
other interested parties, to submit to Congress a report, not
later than 3 years after the date of enactment, that identifies
the barriers states face in submitting toxicology results of
fatally injured drivers and provides recommendations to address
those barriers and to establish minimum guidelines for
toxicological investigations.
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.