Mr. Fernando Lievano
Ryder System, Inc.
3600 NW 82 Avenue
Miami, Florida 33166

RE: Board resolutions under 49CFR Parts 653 and 654.

Dear Mr. Lievano:

Thank you for your letter asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. 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 require safety-sensitive employees to be tested for the use of five controlled substances and for the misuse of alcohol. Large transit operators were required to 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 the rules apparently require a covered employer's governing board to adopt a policy on the use of prohibited drugs and the misuse of alcohol, although, as you indicated in a telephone conversation with an attorney in this Office, governing boards for certain entities do not normally address employment issues. You ask whether it is necessary in all cases for governing boards to adopt a drug and alcohol policy or whether some other procedure would satisfy that requirement of the rule.

Interpretation

FTA's drug and alcohol rules apply to employers, which the rules define as "a recipient or other entity that provides mass transportation service or which performs a safety-sensitive function for such recipient or other entity. This term includes subrecipients, operators, and contractors." 49 CFR 653.7 and 654.7. The rules require each employer to develop a drug and alcohol policy, which must be adopted by the employer's governing board, and the recipient is responsible for ensuring that its subrecipients and contractors comply with the rules. 49 CFR 653.5, 653.25, 654.3 and 654.71(a).

As you state in your letter, employers throughout the transit industry use many different approaches to provide mass transportation. Some FTA recipients provide mass transit service directly while others provide it indirectly by contract or some other arrangement with a mass transit provider. As you and Ms. Zaczek of this Office discussed some time ago, when the recipient does not operate a transit system directly, but does so indirectly through a contractor, the recipient may adopt a policy and require its subrecipients or contractors to follow it, or the recipient may require its subrecipients or contractors to adopt their own policy that complies with the rules. If the recipient chooses the latter option, it "adopts" the subrecipient's or contractor's policy when it certifies to FTA that it is in compliance with FTA's rules. In short, the governing board of the contractor or subrecipient is not required to formally adopt the policy statement.

If you have any questions, please contact Nancy Zaczek of this Office, at (202) 366-4011. I trust this responds to your inquiry.

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