Robert D. Falsetti, Esq.
Office of the General Counsel
Almada-Contra-Costa Transit District
1600 Franklin Street
Oakland, California 94612

Re: Condition of Post-Accident Testing and Training Requirements Under FTA Drug and Alcohol Testing Regulations

Dear Mr. Falsetti:

Thank you for your letter following up on your telephone conversation with Ms. Nancy Zaczek asking for clarification of the Federal Transit Administration's (FTA) drug and alcohol testing rules, 59 Fed. Reg. 7531 (1994) (to be codified at 49 C.F.R. Parts 653 and 654).

Those rules require that a recipient of funds under FTA's discretionary capital grant programs (section 3), formula grant programs for urbanized and nonurbanized areas (sections 9 and 18), or interstate transfer program (23 U.S.C. 103(e)(4)), implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. The rules do not apply to FTA's programs that provide special services for the elderly and disabled (section 16(b)).

Your letter raises two issues: (1) whether 49 C.F.R. 653.45 and 654.33 require the receipt of a moving traffic citation as a condition of the post-accident drug and alcohol testing of bus operators; and (2) the minimum training requirements for covered employees and supervisors.

FTA recently published a Notice of Proposed Rulemaking (NPRM) proposing to eliminate the citation requirement in the non-fatal, post-accident testing provision applicable to non-rail vehicles (49 C.F.R. 653.45(a)(2)(i) and 654.33(a)(2)(i)). A copy of the NPRM is enclosed. The citation requirement remains in effect, however, pending publication of a final rule in this matter. In the interim, a large transit agency required to implement FTA's drug and alcohol testing rules by January 1, 1995, can rely on its own inherent authority, if any, to authorize post-accident testing absent the citation requirement.

As to the second issue, you are correct that the regulations require a minimum of one hour of training for covered employees on the effects and consequences of prohibited drug use (49 C.F.R. 653.29(b)(1)). Any other topics that the employer chooses to include in the employees' training are in addition to the required minimum one-hour training. Training for covered supervisors who make reasonable suspicion determinations is a two-hour requirement: one hour of training on the physical, behavioral, speech, and performance indicators of probable alcohol misuse (49 C.F.R. 654.73); and one hour of training on the physical, behavioral, and performance indicators of probable drug use (49 C.F.R. 653.29(b)(2)). If such supervisors also perform a safety sensitive function, they would need, in addition, one hour of training on the effects and consequences of prohibited drug use (49 C.F.R. 653.29(b)(1)).

I trust this answers your question. If we can be of further help, please call Daniel Duff or Nancy Zaczek of this Office at (202) 366-4011.

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

Enclosure