Mr. Karl M. Johanson
Council on Aging & Human Services
P.O. Box 107, South 210 Main
Colfax, Washington 99111-0107

RE: Volunteers under 49 CFR Parts 653 and 654.

Dear Mr. Johanson:

Thank you for your letter following up on our meeting of October 7, 1994, when you, Nancy Zaczek of my staff, and I met to discuss the application of the Federal Transit Administration's (FTA) drug and alcohol testing rules to volunteers who drive vans and private automobiles for rural and small urbanized area transit systems.

The Council on Aging and Human Services (the Council), the Community Transportation Association of America (CTAA), and rural and small urbanized area transit providers are concerned about the applicability of FTA's rules to volunteers. Under the rules, volunteers who perform a safety-sensitive function are subject to drug and alcohol testing; a safety-sensitive function includes operating a revenue service vehicle or a non-revenue service vehicle if required to be operated by a Commercial Driver's License (CDL) holder. 49 CFR 653.5 and 654.5. (A CDL holder is required to operate a commercial motor vehicle, which includes any vehicle capable of transporting 16 or more passengers including the driver.) Many transit providers in rural and small urbanized areas use volunteer drivers, some of whom use their own automobiles to carry passengers, and you believe that many such volunteers will no longer provide these services if they are subject to drug and alcohol testing.

We discussed the Council's operations as representative of a small transit system. It receives funding under various programs of the Department of Health and Human Services (DHHS), and under the FTA elderly and persons with disabilities program and nonurbanized area formula program (49 U.S.C. §§5310, 5311, formerly section 16(b)(2)) and section 18 of the Federal Transit Act, as amended, respectively). Originally, the Council provided transportation only to senior citizens, but in 1982 expanded that service to the general public, thereby becoming eligible to receive funding under FTA's nonurbanized area formula grant program. Transportation is provided by accessible vans, purchased with funds from DHHS and FTA's elderly and persons with disabilities program, and private automobiles. The vans are driven by professional staff or volunteers, some of whom are trained to drive lift vans; none of the vans are commercial motor vehicles. The private automobiles are driven exclusively by volunteers. The Council uses FTA funding to organize, dispatch, and insure the volunteer drivers, using almost one-half of its FTA nonurbanized area formula grant to reimburse them for mileage costs alone. The Council does not charge a fare for the transportation services it provides.

While such volunteers generally are covered by the rules, we discussed several ways the Council and similar transit providers might minimize the effect of the rules on their systems. For example, if the Council could separate the public transportation service from the DHHS funded service, the rules would only apply to the FTA funded service. Moreover, volunteer drivers of private automobiles would not be subject to the rules if they are reimbursed for mileage and insurance costs from non-FTA funded sources.

We also discussed using a new concept, "incidental overlap," which may apply when a non-FTA funded program, such as Medicaid, overlaps with an FTA funded program (i.e., drivers who operate vehicles for both programs). When this happens, generally the drug and alcohol rules would also apply to the non-FTA funded programs, unless the FTA funded program only incidentally overlaps the other program. An example of an "incidental overlap" would be the shared use of a dispatcher paid with FTA funds.

We also suggested that the Council could consider using the FTA elderly and persons with disabilities program (which is not covered by the rules), and other non-FTA funding services, to purchase some or all of its vehicles, in which case the rules would not apply so long as the drivers were not reimbursed from FTA sources.

Because of these different issues, however, you strongly recommended that we exempt volunteers from coverage under the FTA's drug and alcohol rules. We appreciate your concern about this matter and will carefully consider your recommendation.

Thank you for your interest in this matter.

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