Jodi J. Woodruff, Esquire
Metro
1014 Vine Street, Suite 2000
Cincinnati, Ohio 45202-1122

RE: Recipient's implementation date for split sample procedure under 49 CFR Part 40.

Dear Ms. Woodruff:

Thank you for your letter asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations. 59 FR 7531 (1994) (to be codified at 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 implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. Large transit operators must 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 there has been some confusion among transit agencies and Department of Health and Human Services (DHHS) certified laboratories concerning the implementation date for the Department of Transportation's (DOT) amended testing procedures. 59 FR 7339 (1994) (to be codified at 49 CFR Part 40). The laboratories maintain that the new Part 40 testing procedures must be used immediately, whereas the transit agencies maintain that they are not required to use those procedures until either January 1, 1995 or 1996, when FTA's drug and alcohol rules must be implemented.

You ask when entities subject to FTA's drug and alcohol rules must comply with 49 CFR Part 40.

Interpretation

A recipient of FTA funding, depending on its size, is not required to implement the drug and alcohol rules until January 1, 1995 or 1996, and thus is not required to use the DOT Part 40 testing procedures until then. In contrast, an employer regulated by the Federal Railroad Administration, the Federal Highway Administration, or the Federal Aviation Administration, which have required drug testing since 1989, have been subject to Part 40 testing procedures since then. On February 14, 1994, these procedures were amended; among other things, they required new "split" sample procedures effective August 15, 1994, which may have led to some of the confusion you mentioned in your letter.

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