Ms. Carol Babington
AC Transit
Alameda-Contra Costa Transit District
1600 Franklin Street
Oakland, California 94612

Dear Ms. Babington:

Please accept my apology for our delay in responding to your letter asking about the application of FTA’s drug and alcohol rules to your transit program. You write that AC Transit contracts with the Sheriff’s Departments from Alameda and Contra Costa Counties to provide mobile security services; the contract specifies that the police officers remain under the immediate direction and control of their respective Sheriffs. Moreover, while providing mobile security service to AC Transit, these officers are required to respond to police emergencies within their jurisdiction. The police officers are not employees of AC Transit. You ask whether the contract police officers are subject to testing under FTA’s drug and alcohol rules.

We first note that FTA’s rules apply only to certain kinds of recipients of FTA funding, specifically, recipients of FTA’s discretionary capital grant program (formerly section 3), formula grant programs for urbanized and nonurbanized areas (formerly sections 9 and 18) and interstate transfer program (23 U.S.C. §103(e)(4)). Moreover, the rules apply to a recipient’s contractor, if the contractor performs a "safety-sensitive function" for the recipient. Providing security is a "safety-sensitive function," if the security personnel carry firearms.

As you state in your letter, municipal police officers frequently provide security service under contract to a recipient. The rules, however, are not intended to cover all municipal police officers providing security to the transit system and passengers, but only those under the supervision and control of the transit provider. In this case, the police officers are under the control of their respective Sheriff Departments; hence, they are not covered by the rules.

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

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