Ms. Sylvia Crespo-Tabak
Metro-Dade Transit Agency
Metro-Dade Center
111 N.W. 1st Street-Suite 910
Miami, Florida 33218-1999

RE: Police officers under 49 CFR Parts 653 and 654.

Dear Ms. Crespo-Tabak:

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 municipal police officers, employed and paid by the Metro County Police Department, provide protective services to the Metro-Dade Transit Agency (MDTA), and ask whether these police officers are covered employees under the rules.

Interpretation

FTA's regulations apply to those who work in certain safety-sensitive functions, which primarily involve the operation or maintenance of revenue service mass transit vehicles. In addition, the rules specifically cover transit security personnel who carry firearms. It is clear under the rules that transit police officers who carry firearms and are directly employed by a transit system are subject to the drug and alcohol testing program; less clear are situations where local police may provide special policing for a transit system but remain part of the local police force.

In our view, the intent of the rules is to cover those armed security personnel who provide security specifically for a transit operator, either directly, by contract or some other arrangement, and who report to or are supervised by that operator. For example, police officers who as part of their normal duties patrol public transit facilities would not be subject to the rules. In your case, the police officers are employed and paid by the municipality; hence, they are not under the supervision or control of MDTA, nor are their police activities limited to MDTA property. In short, we conclude that because such police officers are not supervised by and do not work exclusively for MDTA, they are not subject to the FTA's drug and alcohol testing rules.

I trust this responds to your inquiry.

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