Mr. Chuck Ferguson
Assistant Director
Johnson County Transportation Department
Public Works Office/Transit
1800 W. 56 Highway
Olathe, Kansas 66061

RE: Incidental overlap under 49 CFR Parts 653 and 654.

Dear Mr. Ferguson:

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

Issue

You write that Johnson County funds two programs providing transportation to the elderly, disabled, and low-income residents of your County: Special Services, a demand response door-to-door service, and the Volunteer Wheels Program. A private provider, unnamed in your letter, operates the Special Services program in addition to a fixed route service and is funded both by the local FTA recipient, Kansas City Area Transportation Authority, and by the County's tax supported general revenue fund.

The Volunteer Wheels Program, operated by the Volunteer Center of Johnson County, provides transportation for County residents not within the geographic area served by Special Services. It is funded by the County's Transportation Department and uses volunteer drivers who use their own vehicles to transport the Program's customers. You note that these drivers are not required to hold a Commercial Driver's License (CDL) under Federal law or regulation. You ask to what extent these activities are subject to FTA's drug and alcohol testing regulations.

Ruling

FTA's drug and alcohol rules apply not only to direct recipients of certain kinds of FTA funding, but also to "any entity that provides mass transportation service ... for such recipient or other entity." 49 CFR 653.7 and 654.7. Moreover, entities providing transportation service on behalf of an FTA recipient may operate non-FTA funded programs as well. Some of these entities keep the FTA-funded programs separate from non-FTA funded programs, while others may combine operations and activities to varying degrees.

When the funding sources are separate, the FTA's rules apply only to the FTA-funded programs. From your letter this is apparently the case in Johnson County, which funds two separate entities to provide transportation for the community. One of those entities, the private provider, uses FTA funds received from the Kansas City Transportation Authority via the County, and would be required to comply with the FTA's drug and alcohol rules. The Volunteer Wheels program operated by the Volunteer Center of Johnson County would not be required to comply, however, because it appears to receive funding only from the County's Department of Transportation, and not from any FTA source.

We note that the rules of the Federal Highway Administration would not apply to the Volunteer Wheels Program if the drivers are not required to hold a CDL under Federal law or regulation.

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