§ 5331. — Alcohol and controlled substances testing.
[Laws in effect as of January 7, 2003]
[Document not affected by Public Laws enacted between
January 7, 2003 and December 19, 2003]
[CITE: 49USC5331]
TITLE 49--TRANSPORTATION
SUBTITLE III--GENERAL AND INTERMODAL PROGRAMS
CHAPTER 53--MASS TRANSPORTATION
Sec. 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.
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(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.
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(Pub. L. 103-272, Sec. 1(d), July 5, 1994, 108 Stat. 832; Pub. L. 103-
429, Sec. 6(13), Oct. 31, 1994, 108 Stat. 4379; Pub. L. 104-59, title
III, Sec. 342(a), Nov. 28, 1995, 109 Stat. 608.)
Historical and Revision Notes
Pub. L. 103-272
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Revised Section Source (U.S. Code) Source (Statutes at Large)
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5331(a)............................... 49 App.:1618a(a). Oct. 28, 1991, Pub. L. 102-143, Sec.
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).
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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, Sec. 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.
