Ms. Susan L. Gross
Assistant County Counsel
Atlantic County
1333 Atlantic Avenue
Atlantic City, New Jersey 08401

RE: FTA/FHWA jurisdiction; revenue service vehicle.

Dear Ms. Gross:

Please accept my apology for our delay in responding to your inquiry about the application of FTA’s drug and alcohol rules to the mass transportation service operated by Atlantic County. You write that although Atlantic County receives FTA formula funding for nonurbanized areas (formerly §18 of the Federal Transit Act, as amended), only the Division of Aging and Disabled Transportation Unit actually provides mass transportation service; the County has other divisions that employ Commercial Drivers License (CDL) holders. You ask whether all the divisions of Atlantic County must comply with FTA’s rules, or whether the rules apply only to the division that actually provides transit service.

The Omnibus Transportation Employee Testing Act of 1991 (Act) directs FTA to require recipients of funding under "[s]ection 3, 9, or 18 of the Federal Transit Act, as amended (FT Act) [now codified at 49 U.S.C. §§5309, 5307, and 5311, respectively]; or . . . [s]ection 103(e)(4) of title 23 of the United States Code" to test safety-sensitive employees for the misuse of alcohol and the use of prohibited drugs. Similarly, the Act directs the Federal Highway Administration (FHWA) to require employers to conduct drug and alcohol testing of CDL holders.

FTA’s rules define an "employer" as a "recipient or other entity that provides mass transportation service or which performs a safety-sensitive function for such recipient . . . . " 49 CFR 653.7 and 654.7. Because most transit agencies employ CDL holders, FTA and FHWA agreed that FTA’s rules would cover all CDL holders providing a safety-sensitive function for an FTA recipient; most frequently, these employees are drivers and mechanics. Thus, FHWA’s substance abuse rule applies "to every person and to all employers of such persons who operate a commercial motor vehicle in commerce in any State . . .," except those covered by the FTA testing rules at 49 CFR parts 653 and 654.

When a distinct division within a municipality provides mass transportation service or a particular safety-sensitive function on behalf of an FTA recipient, that division is an "employer" within the meaning of the rules. Hence, in your case, only the Division of Aging and Disabled Transportation is covered by FTA’s drug and alcohol rules. The rest of the divisions that employ CDL holders must comply with FHWA’s substance abuse rule.

You explain that Atlantic County does not charge a fare for the mass transportation service it provides under its Aging and Disabled Transportation Program. You ask whether the vehicles used are "revenue service vehicles" and whether soliciting donations affects the status of those vehicles.

The term "revenue service vehicle" is not defined in the rules. The "Glossary of Transit Terms," however, defines a "revenue vehicle" as the "floating and rolling stock used in providing transit revenue service for passengers"; "revenue service" means "when the vehicle is available to the general public and there is a reasonable expectation of carrying passengers that directly pay fares, are subsidized by public policy, or provide payment through some contractual arrangement. Vehicles operated in 'free fare' service are considered in revenue service. Revenue service excludes deadhead, school bus and charter service." Urban Mass Transportation Administration (1991). For the purposes of the drug and alcohol rules, vans used in "van pools," i.e., by commuters in going to and from work, are not in "revenue service." Thus, in your particular case, the vehicles are "revenue service vehicles" within the meaning of FTA's drug and alcohol rules, if they were purchased with FTA funding and carry fare-paying and/or publicly subsidized passengers. Soliciting donations would not affect the status of the vehicles if they were purchased with FTA funding.

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

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