Sandra Tristano, Esq.
General Counsel
Pace
550 West Algonquin Road
Arlington Heights, Illinois 60005-4412

Dear Ms. Tristano:

Thank you for your letter regarding transit grantee oversight of contractor compliance with the Federal Transit Administration's (FTA) drug and alcohol testing regulations. Pace contracts for the provision of mass transit service in Chicago's suburbs by companies that also provide intercity bus service. More than half of these companies' drivers perform service that subjects them, as holders of a Commercial Driver's License, to testing under the Federal Highway Administration (FHWA) regulations. However, some of these drivers provide both intercity and transit service. The private bus companies have combined these safety-sensitive employees for the purpose of developing random testing pools. You pose several questions:

What is Pace's oversight responsibility for contractors' compliance with the FTA and FHWA drug and alcohol testing programs?

A contractor that provides transit service for Pace is subject to FTA's drug and alcohol testing rules (49 CFR Parts 653 and 654), and Pace is responsible for ensuring contractor compliance. 49 CFR 653.5, 653.81, 654.3, and 654.81. Pace has no responsibility for that contractor's compliance with the FHWA rules, if they apply.

Should contractor employees who drive both over-the-road and transit buses be randomly tested under both rules? How should the employer administer other kinds of testing required by the rules? What results does the FTA recipient report to FTA?

Pre-employment/Random Testing. A safety-sensitive employee is subject to pre-employment or random testing under the rules of the DOT agency that regulates more than fifty percent of the employee's function. 49 CFR 653.47(h) and 654.35(j). Since the Pace contract drivers operate intercity buses more than fifty percent of the time, they are subject to pre-employment testing for drugs and random testing for drugs and alcohol under the FHWA rule (49 CFR Part 382), and the results of those tests are reported to FHWA. Of course, the opposite result obtains for those employees who drive transit buses more than 50 percent of the time. 49 CFR 653.73 and 654.53.

Reasonable Suspicion and Post-accident Testing. The requirement for reasonable suspicion or post-accident testing depends on the function an employee is performing at the time. For instance, the FTA requirement for reasonable suspicion alcohol testing would apply if an employee exhibited the signs of alcohol use just before, during, or after driving a mass transit bus (49 CFR 654.37), and the FTA requirement for post-accident testing would apply to a driver involved in an accident while operating a mass transit bus (49 CFR 653.45 and 654.33). Similarly, the FHWA requirement for post-accident testing would apply to an employee involved in an accident while driving an over-the-road bus.

Return to Duty/Follow-up Testing. An employer is required to administer a return-to-duty test after a substance abuse professional has determined that the employee is able to return to work. 49 CFR 382.309, 382.311, 653.37, 653.51, 653.63, and 654.75. That testing, and any required follow-up testing, is conducted under the FTA rule if, for example, the employee originally tested positive for drugs while operating a mass transit vehicle.

Can the contractor combine FHWA and FTA safety-sensitive employees into one random testing pool? Should the FTA recipient report these random test results to FTA?

If some contractor drivers are subject to random testing under FTA's rules and others under FHWA's, the rules allow the contractor to combine its safety-sensitive employees into one random testing pool. 49 CFR 382.305(k), 653.47(i), and 654.35(k). However, it must then test at the higher of the rates set by FTA and FHWA.

Is the number of tests required to meet the random testing rate based on the number of safety-sensitive employees subject to FTA's rules or the number of safety-sensitive employees subject to FTA's random testing rate?

The number of random tests required under the FTA rules is based on the number of safety-sensitive employees subject to random testing under FTA's rules. Those drivers working for Pace's contractors who are subject to random testing under the FHWA rules would not be counted in the calculation. To illustrate compliance with the FTA rules (which require a 50 percent random testing rate for drugs and a 25 percent random testing rate for alcohol): if Pace has 100 safety-sensitive employees, and its contractors have 50 drivers who sometimes operate transit buses, but operate intercity buses more than half the time, Pace must conduct 50 random drug tests and 25 random alcohol tests.

With respect to reporting, Pace should report annually to FTA the results of tests required under FTA's rules. 49 CFR 653.47(i)(2) and 654.35(k)(2). Pace's contractors report the results of FHWA-required tests to FHWA only at FHWA's request. 49 CFR 382.403(b).

If you have additional questions, please call Nancy Zaczek of this Office, at (202) 366-4011.

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