Mr. Joseph E. O’Donnell
Reden & O’Donnell, LLP
135 Delaware Avenue, Suite 505
Buffalo, New York 14202

Dear Mr. O’Donnell:

Please forgive the delay in responding to your letter in which you seek clarification of the Federal Transit Administration’s (FTA) drug and alcohol testing regulations, 49 CFR Parts 653 and 654. Specifically, you ask if use of a particular random selection process (later determined to be not compliant with FTA’s rules) was so serious as to be a "fatal flaw."

Your question arose in the context of an employee terminated by the Niagara Frontier Transportation Authority (Niagara) after having tested positive for drug use. The employee had been selected using an inappropriate random process; instead of affixing random selection numbers to employees, as required by 49 CFR 653.47, Niagara had been affixing numbers to its safety-sensitive positions. I am enclosing the May 14, 1998, letter to Niagara on this point. I understand Niagara has since changed its practice and now uses a random selection process that complies with FTA rules.

While Niagara’s previous selection process did not comply with FTA’s rule on random selection, there have been no allegations of bias or fraud in the selection of particular employees, and the collection procedures were all properly followed. Therefore, Niagara’s use of an incorrect random selection process was not so egregious as to be a "fatal flaw."

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