Mr. Mark J. Dorfman
Assistant General Manager
Santa Cruz Metropolitan Transit District
230 Walnut Avenue
Santa Cruz, California 95060

RE: Definition of small operator under 49 CFR Parts 653 and 654

Dear Mr. Dorfman:

Thank you for your recent letter asking about an issue in connection with the Federal Transit Administration's (FTA) drug and alcohol testing regulations.

Background

Those rules require a recipient of funds under section 3, 9, or 18 of the Federal Transit Act, as amended, or under section 103(e)(4) of title 23 of the U.S. Code (the interstate transfer program), to implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. The regulations were published in the Federal Register on February 15, 1994, at 59 FR 7531 et seq. (49 CFR Parts 653 and 654.) Large transit operators must implement the drug and alcohol rules beginning on January 1, 1995, while States and small transit operators must begin implementation on January 1, 1996.

Issue

As noted above, the FTA's drug and alcohol rules have different implementation periods for large and small transit operators. A small operator, which is defined as a "recipient or subrecipient primarily operating in an area of less than 200,000 in population," must comply with the rules beginning on January 1, 1996, a year after large operators begin compliance. You write that the Santa Cruz Metropolitan Transit District (the District) serves two urbanized areas, Santa Cruz and Watsonville, neither of which has a population greater than 200,000, but also serves the County of Santa Cruz, which has a population over 200,000. Accordingly, you ask whether the District is a large or small operator under the FTA's drug and alcohol testing rules.

Ruling

The definitions of large and small operators under the rules were derived from our section 9 formula program, which treats urbanized areas differently on the basis of population. Urbanized areas of 200,000 or greater in population are considered large urbanized areas, while those less than 200,000 but greater than 50,000 in population are considered small urbanized areas. Each year FTA publishes a Notice in the Federal Register that apportions funds on the basis of an urbanized area's size. The most recent Notice (58 FR 59300; November 8, 1993) identifies Santa Cruz and Watsonville as small urbanized areas but does not separately identify the County of Santa Cruz, which presumably means that it is not considered an urbanized area. Accordingly, because the District serves two small urbanized areas, in addition to a non-urbanized area, it is considered a small operator under FTA's drug and alcohol testing rules, and therefore must implement a drug and alcohol testing program beginning on January 1, 1996.

Sincerely,
(Signed)
Gregory B. McBride
Acting Chief Counsel