Mr. Kenneth C. Scheidig
General Counsel, AC Transit
1600 Franklin Street
Oakland, California 94612

Dear Mr. Scheidig:

Thank you for your September 18, 1998, letter in which you seek clarification of the Federal Transit Administration's (FTA) regulations on drug and alcohol testing (49 CFR Parts 653 and 654) and the Department of Transportation's regulations implementing the Americans with Disabilities Act of 1990 (ADA) (49 CFR Parts 27,37, and 38). You write that when the three service providers of your paratransit broker, Intelitran, are unable to provide transportation, Intelitran uses local taxicab companies to provide service. Bob Falsetti of your staff indicated in a telephone conversation with Michael Connelly of my staff that neither AC Transit nor Intelitran has a contractual relationship with any of these taxicab companies; rather, when a situation arises where Intelitran's service providers are unable to transport a passenger, Intelitran chooses from among a variety of taxicab companies to provide service.

Your questions are:

1. Is the limited use of taxicab companies by the Consortium's broker . . . sufficient to require compliance by those companies with FTA's paratransit service criteria?

The paratransit service criteria of 49 CFR Part 37, subpart F apply only to public entities operating fixed route systems. Even if the public entity uses a private contractor or broker to provide the paratransit service, the public entity nevertheless retains the responsibility to ensure that its contractors comply with the applicable paratransit service requirements pursuant to 49 CFR section 37.23(a).

2. Is the limited use of taxicab companies by the Consortium's broker . . . considered a specific understanding or arrangement requiring the taxicab companies to comply with FTA's drug/alcohol testing requirements?

The FTA has determined that when a transit patron, or, in this limited case, an entity acting in lieu of the patron (i.e., Intelitran), randomly chooses from among a number of taxicab companies to provide service, then the testing regulations do not apply. The rationale for this view is the practical difficulties of trying to administer a drug and alcohol testing program in connection with all of those companies.

3. Considering the fraction of overall paratransit service taxicabs provide for Intelitran, is there a de minimus rule regarding contract paratransit service below which FTA paratransit service criteria do not apply?

There is no de minimis rule governing the contracting out of paratransit service. Public and private entities providing transportation to the general public must comply with the ADA and the DOT's implementing regulation, regardless of the number of rides provided.

If a private entity participates in AC Transit's ADA paratransit program under a contractual or other similar arrangement, AC Transit retains the responsibility to ensure that the service provided by the private entity complies with subpart F. The private entity, however, must still ensure that its vehicles and drivers comply with the applicable subparts of the DOT's ADA regulation, including the training and service requirements of subpart G, regardless of any contractual relationship with AC Transit.

If you have additional questions, please contact either Michael Connelly or Richard Wong of my staff at (202) 366-4011.

Sincerely yours,
(Signed)
Patrick W. Reilly
Chief Counsel