Mr. Eric Marx
Potomac and Rappahannock Transportation Commission
1549 Old Bridge Road
Suite 209
Woodbridge, Virginia 22192-2737

RE: Taxicab service under 49 CFR Parts 653 and 654.

Dear Mr. Marx:

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

Issue

The Potomac and Rappahannock Transportation Commission (PRTC) operates the Virginia Railway Express (VRE), which provides commuter rail service to and from various locations in Virginia and Washington, D.C. As a courtesy to its customers, PRTC also operates an "emergency ride home" program, in which PRTC makes available transportation by taxicab to those customers who may need to return home when VRE is not operating. PRTC has contracted with approximately ten cab companies to provide this service.

You note in your letter that, according to FTA's rules, recipients such as PRTC that operate railroads are subject to the Federal Railroad Administration's (FRA) drug and alcohol rule for their railroad operations and FTA's rules for their "non-railroad" operations, if any. 49 CFR 653.5 and 654.3. You then ask whether PRTC's "emergency ride home" program is such a "non-railroad" operation subject to FTA's rules on drug and alcohol testing.

Interpretation

The taxicab companies providing transportation service under PRTC's "emergency ride home" program are not subject to the rules. The preambles to the rules state that "[t]o the extent that a taxi operator does not provide service under an arrangement with the FTA recipient, but is chosen at random by the passenger, it would not be subject to the rule. If, however, the taxicab company or private operator does provide service under an arrangement with an FTA recipient, it is covered by the rule as a contractor, as defined by the rule." 59 FR at 7542-7543 and 7582.

In our view, this discussion indicates that the intent of the rules is to cover only those situations in which a transit operator has a contract or arrangement with only one or two taxi operators. In these instances, the public knows that to take advantage of certain publicly funded services it must deal with a particular taxicab company; this provides a sufficient nexus for the transit operator to require the taxi drivers to be subject to drug and alcohol testing. On the other hand, where a passenger randomly chooses among a variety of different taxicab companies the preamble discusses the practical difficulties of trying to administer a drug and alcohol testing program in connection with all of those companies; accordingly, FTA's rules on drug and alcohol testing would not cover such services. In this instance, because PRTC contracts with ten cab companies a passenger may choose among a variety of taxicab companies. Hence, FTA's rule on drug and alcohol testing would not apply to these drivers.

If you have any questions or need additional information, please contact Nancy Zaczek of this Office at (202) 366-4011.

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