Mr. Pat Testa
Werner Drug Testing Services
523 E. Bismarck Expressway
Bismarck, ND 58504

Dear Mr. Testa:

Thank you for your letter requesting interpretation of the Federal Transit Administration's (FTA's) drug and alcohol testing regulations. (49 CFR Parts 653 and 654). You raise issues in three areas: (1) the definition of "volunteers"; (2) using previous negative drug test history in lieu of pre-employment testing; and (3) inspection for drug and alcohol testing compliance.

Volunteers. As recently amended, FTA's drug and alcohol rules require a volunteer to be tested only if he or she is required to hold a Commercial Driver's License (CDL). 60 Fed. Reg. 39618. For those volunteers not required to hold a CDL, the preamble to this amendment explained that FTA exempted from drug and alcohol testing requirements only those who perform a service as a charitable act without the expectation of receiving a benefit, whether financial or as part of a program established to relieve an obligation; other volunteers, i.e., those who provide charitable service in return for some benefit and those who operate a vehicle requiring a CDL, remain covered by the rule. 60 Fed. Reg. 39619.

The issue in the three scenarios described in your letter is whether volunteers are performing a service as a charitable act without the expectation of receiving a benefit. To make this determination, FTA believes grantees should consider two factors:

1) Does the benefit induce someone to volunteer who otherwise would not?

2) Is the potential benefit incidental to performing the charitable act?

For example, you ask whether "mileage" for transporting people in a personal vehicle is a form of compensation. If by "mileage" you are referring to reimbursement for gas and a certain allowance for wear and tear on a car, this would probably not be considered compensation because reimbursing the volunteer for expenditures incurred while performing the charitable service only restores him to the status quo. In your second example, you ask whether money or reimbursement for meals should be considered compensation. If the amount of reimbursement or money involved is not enough to induce someone to volunteer who otherwise would not, then it should not be considered compensation.

Moreover, reimbursing "mileage" and meals while providing charitable service are arguably incidental to performing a charitable act. However, free transit for the volunteer and his family is not incidental to performing the charitable act. Therefore, it is more likely that this constitutes compensation, and the person performing the service should not be exempted from drug and alcohol testing as a volunteer.

Accepting negative alcohol and drug test history in lieu of pre-employment alcohol and drug testing. You state that the Federal Highway Administration (FHWA) allows its regulated employers to accept negative drug test history as an alternative to performing a pre-employment drug test if certain conditions are met. You ask whether FTA plans to amend its regulations to allow the same substitution.

The answer is no, not at this time. The difference between the approaches taken by FHWA and FTA to the acceptance of negative drug test history in lieu of a pre-employment drug test derives from characteristics of the regulated employees in each industry. Nearly seven million CDL holders are subject to FHWA's substance abuse rule, and they tend to be much more transient than those subject to FTA's drug and alcohol rules. By permitting an employer to waive a pre-employment drug test under very limited circumstances, FHWA has lowered the overall costs of the rule. Moreover, the administrative requirements for waiving a pre-employment drug test under FHWA's rule are such that adopting a similar provision in the transit industry may not be economical. Please see 49 CFR 382.301(c) for information detailing the requirements imposed on employers that choose to waive the pre-employment drug test. Consequently, FTA does not believe that permitting negative drug test history in lieu of pre-employment testing is appropriate.

Ensuring compliance with FTA's drug and alcohol testing regulations. You ask whether FTA will ensure compliance in the same way as FHWA, by sending inspectors to various companies. In short, the answer is no. Currently, FTA ensures compliance with its rules by requiring annual reports summarizing the results of its anti-drug program (49 CFR 653.73) and its alcohol misuse prevention program (49 CFR 654.53), the triennial review process, and grantees' annual certification that they are in compliance with the drug and alcohol testing regulations. Upon FTA's request, an employer is required to disclose more detailed information pertaining to the employer's anti-drug or alcohol misuse prevention program. 49 CFR 653.75, 654.55. Non-compliance with the drug and alcohol testing regulations will result in the suspension of a grantee's eligibility for federal funding. 49 CFR 653.81(a), 654.81(a).

During fiscal year 1996, FTA will be designing and piloting an audit program. FTA expects that field audits will take place beginning in fiscal year 1997. Although the details are still being determined, we expect these audits will be triggered by results of FTA's triennial review and states' management review findings, complaints, media reports, accident statistics, and volunteering of systems that wish to be audited. FTA is also contemplating a random audit system that does not depend on the triggers listed above. These auditors will look only for compliance with the drug and alcohol rules.

I trust this responds to your inquiry. If you have further questions or comments, please contact Kristin O'Grady or Nancy Zaczek at (202) 366-4011.

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