Ms. Linda C. Wilbanks
Kern Regional Transit
Transportation Management Department
2700 "M" Street, Suite 400
Bakersfield, California 93301

RE: FHWA/FTA jurisdiction; post-accident testing

Dear Ms. Wilbanks:

Thank you for your letter asking about the application of FTA’s drug and alcohol rules to the Kern County Regional Transit Authority, a division of Kern County Road Department (road department). You write that in addition to maintaining road department vehicles, six of the road department’s twenty shop employees maintain transit vehicles. Because all twenty employees hold Commercial Driver's Licenses, they are subject to the Federal Highway Administration's (FHWA) substance abuse rule. You ask when the six employees are subject to FTA’s drug and alcohol rules instead of FHWA’s. You further ask whether an employee should be given a post-accident drug and alcohol test under FTA’s rules if the employee maintained a revenue service vehicle more than 32 or eight hours, respectively, prior to the accident.

FTA’s and FHWA’s rules require employers to conduct six types of testing: pre-employment drug testing for five prohibited drugs, reasonable suspicion, post-accident, random, return-to-duty, and follow-up testing. Whether an employee is covered by FTA’s or FHWA’s drug and alcohol rules depends on the type of testing to be conducted.

Pre-employment/random testing. A safety-sensitive employee is subject to pre-employment drug testing or random testing under the rules of the DOT agency that regulates more than fifty percent of the employee’s function. 49 CFR 382.305(n), 653.47(h), and 654.35(j). Therefore, you must determine for each employee whether he or she maintains revenue service vehicles more than fifty percent of the time. If so, the employee is subject to pre-employment drug testing and random drug and alcohol testing under FTA’s rules, and the results of those tests are reported to FTA. If not, the employee is subject to pre-employment drug testing and random drug and alcohol testing under FHWA’s rule, and the results are reported to FHWA.

Reasonable suspicion. The requirement for reasonable suspicion 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 the employee exhibited the signs of alcohol use just before, during, or just after maintaining a revenue service vehicle. 49 CFR 654.37. In general, a safety-sensitive employee is subject to reasonable suspicion drug testing anytime he or she is on duty. 49 CFR 653.43. Because these six employees are subject to reasonable suspicion drug testing under FHWA’s and FTA’s rules, however, they should be tested under FTA’s rules just before, during, or just after maintaining a revenue service vehicle; they should be tested under FHWA’s rules any other time they are on duty.

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 and/or alcohol while maintaining a revenue service vehicle.

Post-accident testing. A mechanic is tested under FTA’s rules if he or she is involved in a fatal accident while driving a "mass transit vehicle." 49 CFR 653.45(a)(1) and 654.33(a)(1). This would include moving a bus from location to location, even when the bus is not in "revenue service." 49 CFR 653.7 and 654.7. In this case, you are required to conduct a post-accident alcohol test within eight hours of the accident and a post-accident drug test within 32 hours of the accident. 49 CFR 653.45(b) and 654.33(b).

When a mass transit vehicle not operated by a mechanic is involved in a fatal or a nonfatal accident, you would test the mechanic if, using the best information available at the time of the decision, you determine that the mechanic’s conduct could have contributed to the accident. 49 CFR 653.33(a)(1) and 654.45(a)(1). In making this determination, some of the factors you should consider are whether a particular mechanic recently worked on the mass transit vehicle involved in the accident and whether negligent maintenance may have been a causal factor in the accident. Because alcohol is metabolized quickly, if you determine that the mechanic should be tested, he or she should be tested within eight hours of the accident for alcohol and within 32 hours for drugs.

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

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