Mr. Patrick J. Weidemann
Planner
Bi-State Regional Commission
1504 Third Avenue, P.O. Box 3368
Rock Island, Illinois 61204-3368

Re: Multi-modal use of consortium

Dear Mr. Weidemann:

Thank you for your letter asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. 59 FR 7531 (1994) (to be codified at 49 CFR Parts 653 and 654). Those rules require that a recipient of funds under FTA's discretionary capital grant program, formula grant programs for urbanized and nonurbanized areas, or interstate transfer program implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. Large transit operators must implement the drug and alcohol rules beginning on January 1, 1995, while small transit operators must begin implementation on January 1, 1996.

Issue

You write that there has apparently been some confusion about the composition of consortia that may be used by transit agencies to conduct drug and alcohol testing. Specifically, you ask whether the regulations permit FTA and Federal Highway Administration (FHWA) workers to be included in the same consortium.

Clarification

The answer is yes. Not only do the Department's regulations specifically permit and encourage the use of consortia to help lower the costs of drug and alcohol testing programs, but they also explicitly state that workers covered by different Department of Transportation testing programs may be combined into multi-modal pools. "To promote efficiency and reduce costs, particularly for smaller employers and employees subject to more than one [Operating Administration of the Department of Transportation] rule, we generally permit the combination of geographically-proximate employees covered by different Operating Administration rules into one random testing pool." 59 FR 7324. Consortia may be used for all types of testing, not just random. We emphasize, however, that while multi-modal pools are permitted, they must meet any other specific Operating Administration requirements, such as possible differing industry random testing rates. 59 FR 7324.

I trust this responds to your inquiry.

Very truly yours,
(Signed)
Berle M. Schiller
Chief Counsel