Mr. Joseph DiJohn
Executive Director
Pace
550 West Algonquin Road
Arlington Heights, Illinois 60005-4412

RE: Volunteer van pool drivers under 49 CFR Parts 653 and 654

Dear Mr. DiJohn:

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 Pace, a suburban transit agency serving a six-county area the size of Connecticut, provides vans for commuting purposes to more than 131 different groups and was recently awarded $3,200,000 in Congestion Management and Air Quality funds to purchase 200 additional vans for use in Pace's Vanpool Incentive Program. You ask whether FTA's drug and alcohol testing rules apply to van pool members who volunteer to drive these vehicles. You contend that application of the rules to such drivers would be impractical, difficult to administer, and likely to reduce substantially the number of people who would volunteer to drive van pools. Other transit agencies have raised the same issue, and similarly ask us to clarify whether the rules cover these drivers.

Discussion

The van pool programs used by Pace and other transit systems have certain characteristics in common. The transit agency usually purchases the van, but does not provide drivers. Who drives the van depends on the arrangements each van pool agrees to: in some, the responsibility rotates among all of the passengers; in others, one passenger is the primary driver, with a few others serving as substitutes as necessary. No employer-employee relationship exists between the transit agency and van pool members. The van's route is not determined by the transit agency, but rather is affected by the location of the passengers' residences and worksites. Depending on the number of van pools operating in a particular metropolitan area, vans could be located in dozens or hundreds of places during the workday. Passengers in a given van pool may change frequently, as they move residences or change jobs. Finally, most vans used in the programs carry fewer than 16 passengers, and the drivers thus are not required to hold a Commercial Driver's License (CDL). (Under Federal Highway Administration regulations (49 CFR Part 382), a CDL is required for drivers operating a vehicle designed to carry 16 or more passengers, including the driver; in excess of 26,000 pounds gross vehicle weight; or of any size vehicle used in the transportation of a placardable amount of hazardous material.)

Ruling

The FTA's drug and alcohol testing regulations apply to "covered employees" who operate or maintain revenue service vehicles, or who, in operating non-revenue service vehicles, are required to have a CDL. The rules define "covered employees" to include volunteers (49 CFR 653.7). The rules do not define "revenue service vehicle," but define "vehicle" to include vans (49 CFR 653.7). At issue is whether van pool drivers who volunteer their services in connection with a program operated by an FTA recipient are subject to drug and alcohol testing.

In our view, with but one exception, they are not. The van pool characteristics discussed above, taken together, should be distinguished from the more traditional type of mass transportation service that we believe is embodied in the term "revenue service" used in the rules. Van pool drivers are volunteers, not employees of a transit system; they determine the van's daily route, and generally have no day-to-day contact with the sponsoring transit system. No revenues are turned over to the transit system on a regular basis. The drivers begin their driving duties at their homes and end at their individual worksites, and there may be a different driver each day.

Moreover, the "volunteers" the rules intend to cover are those who act in essentially the same capacity as paid drivers, but who volunteer their services. In contrast, members of a van pool who drive the van, whether regularly or occasionally, are principally engaged in commuting to and from work. They are "commuters," not "volunteers" subject to the testing requirements.

In short, van pool programs operated by FTA recipients are not considered to be "revenue service" activities within the meaning of the FTA's rules on drug and alcohol testing, nor are the drivers for such programs considered to be volunteers under the rules.

We further note, however, that FTA's rules apply in certain instances to those who operate non-revenue service vehicles. In this connection, FHWA and FTA have agreed that the FTA rules cover certain transit workers who otherwise would be subject to FHWA's rules, i.e., operators of non-revenue service vehicles who are required to hold a CDL. Thus, for purposes of the issue under discussion, if a vehicle in an FTA recipient's van pool program is capable of carrying sixteen or more passengers (or otherwise is a commercial motor vehicle), the volunteer driver would be subject to FTA's drug and alcohol testing rules.

We therefore conclude that because of the non-revenue service nature within the meaning of the FTA's rules on drug and alcohol testing of van pool programs operated by Pace, and the fact that the drivers are not volunteers within the meaning of the rules, FTA's drug and alcohol testing regulations do not apply to a volunteer who acts as a driver for such a program unless the driver is required to hold a CDL for that purpose.

Sincerely,
(Signed)
Berle M. Schiller
Chief Counsel