Mr. Peter J. Varga
923 Witham Drive
North Muskegon, Michigan 49445

RE: CDL holders; large and small employers under 49 CFR Parts, 382, 653, and 654.

Dear Mr. Varga:

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.

Issue

You write that Muskegon County, which operates the Muskegon Area Transit System (MATS), employs more than 50 holders of commercial driver's licenses (CDL). You ask about the applicability of the FTA's and Federal Highway Administration's (FHWA) drug and alcohol testing rules to those employees.

Interpretation

On February 15, 1994, FHWA issued a controlled substances rule mandating that employers of drivers required to hold a CDL under Federal law or regulation implement a drug and alcohol testing program. 59 FR 7481 (1994) (to be codified at 49 CFR Part 382). FHWA specifically exempted any employer of CDL holders required to comply with FTA's rules. 49 CFR 382.103(c)(1).

Both the FTA and FHWA drug and alcohol test rules have different implementation dates based upon the size of the affected entity. Under FTA's rules, a large operator operates primarily in an urbanized area of 200,000 or greater in population; a small operator operates primarily in an area of less than 200,000 in population. 49 CFR 653.13, 654.15. Under FHWA's rule, a large employer employs 50 or more CDL holders, while a small employer employs less than 50 such holders of CDLs. 49 CFR 382.115. Under both rules, a large operator or employer must implement the rules on January 1, 1995, and a small operator or employer must implement them on January 1, 1996.

Regarding your situation, MATS, a division of Muskegon County, receives FTA funding to operate a transit system serving an area under 200,000 in population. Under both FTA's and FHWA's rules, MATS is a small operator covered by FTA's rules on drug and alcohol testing, and must implement the rule on January 1, 1996. 49 CFR 382.103, 653.3, and 654.5.

The rest of the CDL holders working for Muskegon County are subject to FHWA's rule. As noted above, FHWA differentiates between a large employer and a small employer based on the number of CDL holders employed. Because CDL holders subject to FTA's drug and alcohol program are excluded from such calculations, Muskegon County employs less than 50 CDL holders and therefore must comply with FHWA's rules with respect to those employees on January 1, 1996.

If you have any additional questions about this matter, please contact Nancy Zaczek or Daniel Duff of this Office at (202) 366-4011.

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