Mr. Jim Gilbert
Administrator, Public Transportation Section
Planning & Research Division
Arkansas State Highway and Transportation Department
Post Office Box 2261
Little Rock, Arkansas 72203-2261

Dear Mr. Gilbert:

Thank you for your July 30, 1999, letter, in which you ask a series of questions, related to the Federal Transit Administration’s (FTA) Drug and Alcohol Testing Regulations, 49 CFR Parts 653 and 654.

Question 1. 49 CFR Section 653.25 and 654.71 makes reference to the inclusion in a policy statement of language which constitutes a "detailed discussion of" and sets forth the topical element requirements. Please explain what constitutes a "detailed discussion of" and the supporting legal basis for your answer as it relates to this subject?

Answer. The requirements of these sections is that employers provide workers performing safety-sensitive functions who will be tested under this section with detailed information about the important elements of the testing program. The legal basis for FTA’s regulation is the Omnibus Transportation Employee Testing Act of 1991, P.L. 102-143 ("Act"); in that Act, Congress directed that,"[t]he Secretary [of the U.S. Department of Transportation] shall, in the interest of mass transportation safety, issue regulations . . . establish[ing] a program which requires [FTA grantees] to conduct pre-employment, reasonable suspicion, random, and post-accident testing of [safety-sensitive] mass transportation employees . . . The Secretary may also issue regulations, as the Secretary considers appropriate in the interest of safety, for the conduct of periodic recurring testing of such employees for such use in violation of law or Federal regulation."Question 2. Has the USDOT or FTA promulgated, adopted, and published any rule, regulation, standard, or administrative order which contains specific language required to be written into the policy statements directed by 49 CFR Part 653 and 654, as amended? If so, please provide the cite for such rule, regulation, standard, or administrative order.

Answer. Neither USDOT nor FTA requires specific language in a grantee’s policy statement; we believe the grantee is in the best position to formulate the most appropriate language for its system. Please note, though, that any such language must comport with 49 CFR 653.25 and 654.71.

Question 3. Has the USDOT or FTA been a party to any judicial process or action relative to specific language required to be written into an employer’s policy statement directed by 49 CFR Part 653 and 654 as amended?

Answer. No.

Question 4. Does FTA’s Administrator have the legal capacity to render a binding opinion upon specific language contained in a public or private employer’s policy statements without offering alternate language acceptable to the Federal Government, when such language is not set forth in any rule, regulation, standard, or administrative order? If so, please provide the appropriate site references and/or explanation.

Answer. The agency has the authority to construe any regulation it duly promulgates.

Question 5. Has FTA’s Administrator delegated to any subordinate or agent the legally constituted authority by which the subordinate or agent may direct or otherwise require a private entity’s governing board to adopt, or not adopt, specific language in a drug and alcohol policy statement; or otherwise render an opinion when specific language is not set forth in Federal rule, regulation, standard, or administrative order? If so, please elaborate.

Answer. The Administrator has delegated authority to determine whether a grantee’s policy statement complies with 653.25 and 654.71 to the Office of Program Management. That office may require that a grantee adopt language consistent with 653.25 and 654.71 in order to be in compliance with FTA drug and alcohol testing rules.

Question 6. Does FTA’s Administrator or agents assume, on behalf of the Federal Government or other entity, responsibility and/or liability for resulting actions, legal or otherwise, caused as a result of binding opinions rendered by FTA, or [its] agents, requiring a change in policy language by an employer if no specific language has been directed by federal code or regulation?

Answer. FTA grantees are responsible for promulgating compliant policy statements. The only instance in which FTA would require a policy change would be if a grantee’s policy statement did not meet the requirements of 49 CFR 653.25 and 654.71.

Question 7. Attached are the applicable sections of the CFR that direct the topics and development of policy content that we have identified as pertinent. Are there other sections of the 49 CFR Parts 653 and 654, as amended, which should be followed when drafting specific language for a drug and alcohol policy? Are there other CFRs which contain regulatory guidance addressing specific content and language?

Answer. When drafting a policy, a grantee need only comply with the provisions addressing policy statements, i.e., sections 653.25 and 654.71.

Question 8. We find no provision in the USC that addresses an employer’s policy or content requirement. [Are] there any references contained in the USC specific to this requirement as set forth in the CFR for a policy and content language? Specifically, what legal or constitutional authority does FTA exercise in their actions which may impose a binding opinion upon a private employer regarding such a policy and content language?

Answer. As noted, the statute confers the authority to issue such regulations as the agency finds "appropriate in the interest of safety."

Question 9. When a drug and alcohol policy is drafted by an entity’s legal counsel, who follows the CFR criteria attached hereto, is there any position within FTA which has the legal capacity and standing to render a proper opinion of adequacy? If so, please stipulate who and cite the appropriate statutory authority they exercise in rendering such an opinion.

Answer. It is the responsibility of an entity subject to a duly adopted Federal regulation to comply with the requirements of that regulation. If such a regulation requires interpretation in a specific context, the Administrator or the Chief Counsel could provide a binding agency decision.

Finally, in the coming months, FTA will be updating its drug and alcohol testing regulations; I invite you to review that document when it is published and submit comments on areas of concern to you. In the meantime, if you have additional questions, please contact Michael Connelly of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Patrick W. Reilly
Chief Counsel