Mr. Charles A. Webb
General Counsel
American Bus Association
5127 N. 27th Road
Arlington, Virginia 22207

RE: Random pools under 49 CFR Parts 382, 653, and 654.

Dear Mr. Webb:

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 were required to implement the drug and alcohol rules beginning on January 1, 1995, while small transit operators must begin implementation on January 1, 1996.

Issue

Colonial Coach lines, in addition to providing charter bus service, contracts with PACE, the suburban bus division of Chicago's Regional Transportation Authority, to provide mass transportation. Colonial Coach lines uses some of the same drivers to provide both charter and mass transportation service. In response to FTA's rules, PACE has directed that 50 percent of the drivers providing mass transportation service be randomly tested for five drugs and 25 percent for the misuse of alcohol. The remaining drivers are subject to testing under the Federal Highway Administration's rules, which cover commercial driver's license (CDL) holders. You ask whether Colonial Coach lines must separate its drivers into two pools, those that provide PACE service and those that provide only motor coach service.

Interpretation

The answer is no. The rules specifically address the situation you describe in which an employer's "safety-sensitive employees" are subject to random testing under the regulations of two or more Department of Transportation (DOT) operating administrations. The rules of both FTA and FHWA provide that an employer determines which DOT operating administration regulates more than 50 percent of the covered employee's function; the covered employee is then subject to random testing under the regulations of that DOT administration. 49 CFR 382.305(j); 653.47(h); and 654.35(j).

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

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