Ms. Carole A. Pinkett
Deputy General Manager, Human Resources
Metropolitan Transit Authority
1201 Louisiana
Post Office Box 61429
Houston, Texas 77208-1429

Dear Ms. Pinkett:

Thank you for your letter of May 1, 1997, to Ms. Judy Meade, Director of our Office of Safety and Security, seeking clarification of the Federal Transit Administration's (FTA) regulations on drug and alcohol testing of safety-sensitive employees. Specifically, you ask about the applicability of the regulations to taxicab drivers involved in a voucher program in the Houston area. You also seek clarification of the regulations as they apply to Houston Metro drivers who operate buses contracted to provide service for the annual Houston Livestock Show & Rodeo.

Taxi cab service

As noted in my April 1, 1997, letter to Mr. Steven Diaz, counsel to four Houston cab companies, FTA has stated that when a passenger may choose among a variety of taxicab companies (i.e., more than two), FTA rules on drug and alcohol testing do not apply. The rationale for this interpretation rests on the practical difficulties of administering a drug and alcohol testing program for each of those companies.

You note that not all taxicab drivers participate in the Houston voucher program. The dispositive fact here, though, and the reason the regulations do not apply, is that the riding public (i.e., patrons with vouchers) may randomly choose from among several taxi companies. As you requested, we are enclosing several FTA letters of interpretation on this point.

Contracted bus service

From your letter, we understand that Houston Metro contracts with the organizers of the Houston Livestock Show to provide bus service to and from various event locations. You suggest that, because the Show occurs annually, FTA's regulations do not apply. As support for this assertion, you cite an FTA interpretation from the FTA Drug and Alcohol Regulations Updates, Spring 1996, p. 5, which notes, "where vehicles are provided on a one-time or incidental basis and there is no on-going relationship (i.e., mayor drives a bus in a parade, radio personality drives a bus during a vehicle rodeo), the regulations do not apply."

FTA's rules apply to any entity that receives funding from FTA under 49 U.S.C. §§5307, 5309, 5311, or 23 U.S.C. §103(e)(4). 49 CFR §§653.5 and 654.3. Such entities must test safety-sensitive employees, including anyone operating "a revenue service vehicle, including when not in revenue service." 49 CFR §§653.7 and 654.7. Under limited circumstances, FTA permits recipients of Federal funding to operate charter service for a private entity. 49 CFR §604.9.

The FTA Update described one-time situations, where establishing a drug and alcohol testing program would be costly and would not advance the purpose of drug and alcohol testing, which is to protect the public from safety-sensitive employees who misuse alcohol or use prohibited drugs. In your case, however, Metro, which has an FTA-approved drug and alcohol testing program, has "hired" out transit service to the Rodeo. Although Metro is not providing transportation to the general public, it is providing charter service under 49 CFR Part 604, and is obligated to provide that service subject to FTA's drug and alcohol rules.

If you have further questions regarding this matter or need additional information, please contact Nancy Zaczek or Michael Connelly of the Office of the Chief Counsel at (202) 366-4011.

Very truly yours,
(Signed)
Patrick W. Reilly
Chief Counsel

Enclosures