Ms. Jane Yeager
Transportation Services Director
Seniors' Resource Center
P.O. Box 1389
Wheat Ridge, Colorado 80034

Dear Ms. Yeager:

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 Community Wheels, which is part of a larger non-profit agency, primarily provides rural transportation services in Colorado through a program called "Mountain Wheels." The "Mountain Wheels" program, which is funded partially with an FTA formula grant for nonurbanized areas, uses 15 buses, two mountain vehicles, two vans, and private passenger vehicles owned and operated by volunteers, to provide transportation to the community. Two of the buses and the mountain vehicles must be operated by a holder of a commercial driver's license (CDL).

Community Wheels also proposes to provide Medicaid-funded transportation services using taxicabs or private passenger vehicles driven by volunteers. None of these services would be funded by the FTA, although Community Wheels would in some cases use vehicles funded through an FTA capital grant under the elderly and disabled program. Community Wheels also provides transportation services for other social service programs, such as Meals on Wheels. You ask three questions about the extent to which these transportation services and affected workers are subject to the FTA's drug and alcohol testing regulations.

Interpretation

The FTA's drug and alcohol rules apply not only to direct recipients of certain kinds of FTA funding, but also to "any entity that provides mass transportation service or which performs a safety-sensitive function for such recipient or other entity." 49 CFR 653.7 and 654.7. The ultimate provider of mass transit services funded by the FTA must comply with the drug and alcohol rules, but the direct recipient of the funding is responsible to the FTA for assuring compliance with the rules.

In response to your first question, any entity performing work on behalf of the "Mountain Wheels" program, which is funded by the FTA's nonurbanized area formula program, must implement a testing program beginning on January 1, 1996. (We presume that the "Mountain Wheels" program uses nonurbanized area formula programs operating assistance to some degree; if it does not, and only capital funds are being used, the application of the rules possibly could be limited to activities in connection with the vehicles funded by the capital grant.)

In response to your second question, the FTA rules do not apply to non-FTA funded transportation programs (e.g., Medicaid and your Meals on Wheels program) when such programs operate separately from the FTA-funded programs (i.e., separate personnel, budgets, and equipment). Incidental overlap, such as the shared use of a dispatcher, would not trigger coverage under the FTA rules.

Regarding your final question, as you know, the rules now cover some volunteers. We expect to reconsider the extent of that coverage in the coming year. If we can be of further help, please call Daniel Duff or Nancy Zaczek of this Office at (202) 366-4011.

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