2004 US Code
Title 49 - TRANSPORTATION
SUBTITLE III - GENERAL AND INTERMODAL PROGRAMS
CHAPTER 53 - MASS TRANSPORTATION
Sec. 5331 - Alcohol and controlled substances testing

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§5331. Alcohol and controlled substances testing

(a) Definitions.—In this section—

(1) “controlled substance” means any substance under section 102 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802) whose use the Secretary of Transportation decides has a risk to transportation safety.

(2) “person” includes any entity organized or existing under the laws of the United States, a State, territory, or possession of the United States, or a foreign country.

(3) “mass transportation” means any form of mass transportation, except a form the Secretary decides is covered adequately, for employee alcohol and controlled substances testing purposes, under section 20140 or 31306 of this title.

(b) Testing Program for Mass Transportation Employees.—(1)(A) In the interest of mass transportation safety, the Secretary shall prescribe regulations that establish a program requiring mass transportation operations that receive financial assistance under section 5307, 5309, or 5311 of this title or section 103(e)(4) 1 of title 23 to conduct preemployment, reasonable suspicion, random, and post-accident testing of mass transportation employees responsible for safety-sensitive functions (as decided by the Secretary) 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 employees for the use of alcohol in violation of law or a United States Government regulation. The regulations shall permit such operations to conduct preemployment testing of such employees for the use of alcohol.

(B) When the Secretary of Transportation considers it appropriate in the interest of safety, the Secretary may prescribe regulations for conducting periodic recurring testing of mass transportation employees responsible for safety-sensitive functions (as decided by the Secretary) 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 such a mass transportation employee be conducted when loss of human life occurs in an accident involving mass transportation; and

(B) may require that post-accident testing of such a mass transportation employee be conducted when bodily injury or significant property damage occurs in any other serious accident involving mass transportation.

(c) Disqualifications for Use.—(1) When the Secretary of Transportation considers it appropriate, the Secretary shall require disqualification for an established period of time or dismissal of any employee referred to in subsection (b)(1) of this section who is found—

(A) to have used or been impaired by alcohol when on duty; or

(B) to have used a controlled substance, whether or not on duty, except as allowed for medical purposes by law or regulation.

(2) This section does not supersede any penalty applicable to a mass transportation employee under another law.

(d) 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;

(3) require that a laboratory involved in controlled substances testing under this section have the capability and facility, at the laboratory, of performing screening and confirmation tests;

(4) provide that all tests 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.

(e) Rehabilitation.—The Secretary of Transportation shall prescribe regulations establishing requirements for rehabilitation programs that provide for the identification and opportunity for treatment of any mass transportation employee referred to in subsection (b)(1) of this section who is found to have used alcohol or a controlled substance in violation of law or a Government regulation. The Secretary shall decide on the circumstances under which employees shall be required to participate in a program. This subsection does not prevent a mass transportation operation from establishing a program under this section in cooperation with another mass transportation operation.

(f) Relationship to Other Laws, Regulations, Standards, and Orders.—(1) A State or local government may not prescribe, issue, or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this section. However, a regulation prescribed under this section does not preempt a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury, or damage to property.

(2) In prescribing regulations under this section, the Secretary of Transportation—

(A) shall establish only requirements that are consistent with international obligations of the United States; and

(B) shall consider applicable laws and regulations of foreign countries.

(3) This section does not prevent the Secretary of Transportation from continuing in effect, amending, or further supplementing a regulation prescribed before October 28, 1991, governing the use of alcohol or a controlled substance by mass transportation employees.

(g) Ineligibility for Assistance.—A person is not eligible for financial assistance under section 5307, 5309, or 5311 of this title or section 103(e)(4) 2 of title 23 if the person is required, under regulations the Secretary of Transportation prescribes under this section, to establish a program of alcohol and controlled substances testing and does not establish the program.

(Pub. L. 103–272, §1(d), July 5, 1994, 108 Stat. 832; Pub. L. 103–429, §6(13), Oct. 31, 1994, 108 Stat. 4379; Pub. L. 104–59, title III, §342(a), Nov. 28, 1995, 109 Stat. 608.)

Historical and Revision Notes
Pub. L. 103–272

Revised Section	Source (U.S. Code)	Source (Statutes at Large)
5331(a)	49 App.:1618a(a).	Oct. 28, 1991, Pub. L. 102–143, §6, 105 Stat. 962.
5331(b)	49 App.:1618a(b).
5331(c)	49 App.:1618a(f).
5331(d)	49 App.:1618a(d).
5331(e)	49 App.:1618a(c).
5331(f)	49 App.:1618a(e).
5331(g)	49 App.:1618a(g).

In subsection (a), before clause (1), the text of 49 App.:1618a(a)(3) is omitted as surplus because the complete name of the Secretary of Transportation is used the first time the term appears in a section. In clause (3), the words “controlled substances” are substituted for “drug” for consistency in this section.

In subsection (b)(1)(B), the word “also” is omitted as surplus.

In subsection (b)(2)(B), the words “may require” are substituted for “as determined by the Secretary” for clarity and to eliminate unnecessary words.

In subsection (d), the word “samples” is omitted as surplus.

In subsection (d)(2), before subclause (A), the word “subsequent” is omitted as surplus.

In subsection (d)(3), the words “of any individual” are omitted as surplus.

In subsection (d)(4), the words “by any individual” are omitted as surplus.

In subsection (d)(5), the word “tested” is substituted for “assayed” for consistency. The words “2d confirmation test” are substituted for “independent test” for clarity and consistency.

In subsection (d)(6), the word “Secretary” is substituted for “Department” for consistency in the revised title and with other titles of the United States Code.

In subsection (f)(1), the word “prescribe” is substituted for “adopt” for consistency in the revised title and with other titles of the Code. The word “rule” is omitted as being synonymous with “regulation”. The word “ordinance” is omitted as being included in “law” and “regulation”. The words “whether the provisions apply specifically to mass transportation employees, or to the general public” are omitted as surplus.

In subsection (f)(3), the word “prevent” is substituted for “restrict the discretion of” to eliminate unnecessary words.

In subsection (g) the words “in accordance with such regulations” are omitted as surplus.

Pub. L. 103–429

This amends 49:5331(a)(3) to correct an erroneous cross-reference.

References in Text

Section 103 of title 23, referred to in subsecs. (b)(1)(A) and (g), was amended generally by Pub. L. 105–178, title I, §1106(b), June 9, 1998, 112 Stat. 131, and, as so amended, no longer contains a subsec. (e)(4).

Amendments

1995—Subsec. (b)(1)(A). Pub. L. 104–59 added subpar. (A) and struck out former subpar. (A) which read as follows: “In the interest of mass transportation safety, the Secretary of Transportation shall prescribe regulations not later than October 28, 1992, that establish a program requiring mass transportation operations that receive financial assistance under section 5307, 5309, or 5311 of this title or section 103(e)(4) of title 23 to conduct preemployment, reasonable suspicion, random, and post-accident testing of mass transportation employees responsible for safety-sensitive functions (as decided by the Secretary) for the use of alcohol or a controlled substance in violation of law or a United States Government regulation.”

1994—Subsec. (a)(3). Pub. L. 103–429 substituted “section 20140 or 31306” for “subchapter III of chapter 201 or section 31306”.

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–429 effective July 5, 1994, see section 9 of Pub. L. 103–429, set out as a note under section 321 of this title.

1 See References in Text note below.

2 See References in Text note below.