Mr. Philip A. Maurer
Chief, Employment and Labor Law Division
The Port Authority of New York
and New Jersey
One World Trade Center
New York, New York 10048

Re: Drug and Alcohol Testing under the Omnibus Transportation

Employee Testing Act of 1991 (OTETA)

Dear Mr. Maurer:

Please accept my apology for our delay in responding to your letter concerning the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations to the Port Authority of New York and New Jersey. You state that the Port Authority has been approved for an FTA grant under Section 26(b) of the Federal Transit Act (now codified at 49 U.S.C. section 5314). You ask whether the Port Authority police, who carry firearms, are required to be drug and alcohol tested as a condition of receipt of that grant. In addition, you ask if the Port Authority police personnel would be subject to testing if the Port Authority received funding under sections 3, 9, or 18 of the Federal Transit Act (now codified at 49 U.S.C. sections 5309, 5307, and 5311, respectively).

Recipient of Section 26(b) funding. The drug and alcohol rules require that a recipient of FTA’s discretionary capital grant program (formerly section 3), formula grant programs for urbanized and nonurbanized areas (formerly sections 9 and 18, respectively), and interstate transfer program (23 U.S.C. section 103(e)(4)) implement a program to test safety-sensitive employees for the use of five prohibited drugs and the misuse of alcohol. 49 CFR 653.5 and 654.3. The rules apply not only to direct recipients of the above-listed categories of FTA funding, but also to any "entity that provides mass transportation service or which performs a safety-sensitive function on behalf of the recipient." 49 CFR 653.7 and 654.7. A safety-sensitive function means, in relevant part, "carrying a firearm for security purposes." 49 CFR 653.7 and 654.7.

Because the Port Authority is not a recipient of one of the above-listed categories of FTA funding, it is not covered by the rules; therefore, the armed security personnel cannot be tested under FTA’s rules.

Recipients of Sections 3, 9, or 18 funding. As described above, the drug and alcohol rules apply to recipients of certain categories of FTA funding, among them, categories formerly known as section 3, 9, and 18 funding. If the Port Authority were to receive any of these three categories of FTA funding, it would be covered by the rules. Whether the Port Authority police would be covered, however, depends on whether the Port Authority is receiving capital or operating funds. A recipient of capital assistance may segregate FTA funding from other funding sources and thus limit the application of Federal requirements to the capital project funded by FTA. A recipient of operating assistance under FTA’s formula grant programs, however, cannot similarly segregate those funds; they generally affect the recipient's entire program. In these cases, all of a recipients’ operations would be subject to Federal requirements, including those relating to drug and alcohol testing.

If you have any further questions, please contact Nancy Zaczek of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Gregory B. McBride
Acting Chief Counsel