Ms. Bonnie Wright
Executive Director
American Red Cross - Central Arizona Chapter
1510 E. Flower Street
P.O. Box 17090
Phoenix, Arizona 85011

Re: Coverage of volunteers under FTA drug and alcohol testing regulations

Dear Ms. Wright:

Thank you for your letter to Administrator Gordon Linton asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing rules to volunteers who drive vans for the Central Arizona Chapter of the American Red Cross (Red Cross).

FTA's drug and alcohol regulations, 59 Fed. Reg. 7531 (1994) (to be codified at 49 C.F.R. Parts 653 and 654), require that a recipient of funds under FTA's discretionary capital grant program (formerly section 3), formula grant programs for urbanized and nonurbanized areas (formerly sections 9 and 18), or interstate transfer program (23 U.S.C. 103(e)(4)) implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol.

Issue

In addition to the information you provided, Mr. Rich Marshall, Director of Maricopa County's Division of Human Service, also wrote to Mr. Linton about the special needs transportation services you provide to residents of Maricopa County. I understand that the Red Cross leases approximately 20 passenger vans and 50 wheelchair accessible vehicles from Maricopa County to transport low-income, elderly and disabled persons to medical and social services appointments and seniors centers. Approximately 300 volunteer drivers and dispatchers are involved in the program on a daily basis; a number of the vehicles in the program have been purchased with FTA capital funds. Your letter raises two issues: (1) whether the drug and alcohol testing rules apply to the volunteers; and (2) if so, when must you comply with the rules.

Ruling

Regarding your first question, FTA recently published a Notice of Proposed Rulemaking (NPRM) proposing to exempt volunteers from the application of its drug and alcohol testing rules. A copy of the NPRM is enclosed. FTA will issue a final regulation on this matter sometime after the NPRM comment period closes on April 7, 1995. You are certainly free to submit a written comment on the proposed rule, and we would welcome your views.

In the meantime, if the FTA capital, formula or nonurbanized area funds used to purchase the vehicles were obligated after the rules' effective date and implementation dates discussed below, the volunteers who drive such vehicles would be covered by the rules. As you correctly note, however, the rules do not apply to FTA's programs that provide special services for the elderly and disabled (formerly section 16(b)(2)).

FTA also has ruled that commuters who volunteer as drivers for van pool programs are not subject to its drug and alcohol testing program. This ruling applies only to commuters, however, not to those who act in essentially the same capacity as paid drivers, but who volunteer their services, which appears to be the case here. We enclose a copy of that interpretation for your review.

As to the second issue, 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. Under FTA's rules, a large operator operates primarily in an urbanized area of 200,000 or greater in population; a small operator operates primarily in an area of less than 200,000 in population. 49 C.F.R. 653.13, 654.15.

We note, moreover, that the drug and alcohol testing rules apply to FTA funds obligated on or after March 17, 1994, the rules' effective date, not the implementation dates indicated above. Thus, if you are using vehicles purchased with FTA funds that were obligated before March 17, 1994, the drug and alcohol testing requirement would not be triggered until such time as new FTA funds are obligated for your program.

Finally, we also note that any volunteer drivers required to hold a Commercial Drivers License would be subject to the drug and alcohol testing program of the Federal Highway Administration.

I trust this answers your question. 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

Enclosures