Notice2024-30966
Notice of Proposed Policy Statement Regarding the Applicability of FTA's Drug and Alcohol Testing Program to Transportation Network Companies
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Published
December 30, 2024
Issuing agencies
Transportation DepartmentFederal Transit Administration
Abstract
This notice proposes to clarify FTA's policy on the applicability of FTA's drug and alcohol testing program to transportation network companies. FTA proposes to update the Shared Mobility frequently asked questions, published in 2016 on FTA's website, to correct an error that has resulted in the misapplication of what is commonly known as the taxicab exception and clarify when the exception applies. FTA seeks comment from all interested parties. After review and consideration of the comments, FTA will issue a final notice announcing the policy statement and the revised FAQs.
Full Text
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<title>Federal Register, Volume 89 Issue 249 (Monday, December 30, 2024)</title>
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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Notices]
[Pages 106732-106737]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-30966]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
[Docket No. FTA-2024-0020]
Notice of Proposed Policy Statement Regarding the Applicability
of FTA's Drug and Alcohol Testing Program to Transportation Network
Companies
AGENCY: Federal Transit Administration (FTA), Department of
Transportation (DOT).
ACTION: Notice; request for comments.
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SUMMARY: This notice proposes to clarify FTA's policy on the
applicability of
[[Page 106733]]
FTA's drug and alcohol testing program to transportation network
companies. FTA proposes to update the Shared Mobility frequently asked
questions, published in 2016 on FTA's website, to correct an error that
has resulted in the misapplication of what is commonly known as the
taxicab exception and clarify when the exception applies. FTA seeks
comment from all interested parties. After review and consideration of
the comments, FTA will issue a final notice announcing the policy
statement and the revised FAQs.
DATES: Comments must be received by February 13, 2025. Late-filed
comments will be considered to the extent practicable.
ADDRESSES: Please submit all comments electronically to the Federal
eRulemaking Portal. Go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the
instructions for submitting comments. Instructions: All submissions
must refer to the Federal Transit Administration and the docket number
of this notice. Note that all submissions received, including any
personal information provided, will be posted without change and will
be available to the public on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. You may
review DOT's complete Privacy Act Statement in the Federal Register
published April 11, 2000 (65 FR 19477), or at <a href="https://www.transportation.gov/privacy">https://www.transportation.gov/privacy</a>.
FOR FURTHER INFORMATION CONTACT: For legal questions, Emily Jessup,
Attorney-Advisor, (202) 366-8907, or <a href="/cdn-cgi/l/email-protection#31745c585d481f7b544242444171555e451f565e47"><span class="__cf_email__" data-cfemail="abeec6c2c7d285e1ced8d8dedbebcfc4df85ccc4dd">[email protected]</span></a>. For program
questions, Iyon Rosario, Sr. Drug and Alcohol Program Manager, (202)
366-2010, or <a href="/cdn-cgi/l/email-protection#b8f1c1d7d696ead7cbd9cad1d7f8dcd7cc96dfd7ce"><span class="__cf_email__" data-cfemail="d099a9bfbefe82bfa3b1a2b9bf90b4bfa4feb7bfa6">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Introduction
As transit agencies increasingly partner with transportation
network companies (TNCs) to provide service, FTA is responding
regularly to inquiries regarding whether and when FTA's Drug and
Alcohol rule applies.
As required by Federal transit law at 49 U.S.C. 5331 and FTA's Drug
and Alcohol rule at 49 CFR part 655, recipients of funding under FTA's
Urbanized Area Formula Program, Capital Investment Grants Program, and
Rural Areas Formula Program (49 U.S.C. 5307, 5309, and 5311,
respectively) must establish and implement drug and alcohol testing
programs for employees and contractors that are designed to help
prevent accidents, injuries, and fatalities resulting from the misuse
of alcohol and use of prohibited drugs by personnel who perform safety-
sensitive functions, including vehicle operators. These testing
requirements apply to contractors who perform a safety-sensitive
function for an FTA recipient, even if the service the contractor
provides is not federally funded. This includes drivers of taxicabs and
transportation network companies (TNCs) who perform the safety-
sensitive function of operating a revenue service vehicle under
contract with transit agencies.
Specifically, 49 U.S.C. 5331 provides, in relevant part:
(b) Testing Program for Public Transportation Employees.--
(1)(A) In the interest of public transportation safety, the
Secretary shall prescribe regulations that establish a program
requiring public transportation operations that receive financial
assistance under section 5307, 5309, or 5311 of this title to
conduct preemployment, reasonable suspicion, random, and post-
accident testing of public transportation employees responsible for
safety-sensitive functions (as decided by the Secretary) for the use
of a controlled substance in violation of law or a United States
Government regulation, and to conduct reasonable suspicion, random,
and post-accident testing of such employees for the use of drugs and
alcohol in violation of law or a United States Government
regulation. The regulations shall permit such operations to conduct
preemployment testing of such employees for the use of drugs and
alcohol.
This language has remained substantively unchanged since 1991. FTA
applies the statute to all services of recipients of sections 5307,
5309, and 5311, including their subrecipients and contractors.
FTA's Drug and Alcohol rule, 49 CFR part 655, provides in relevant
part:
Sec. 655.3 Applicability.
(a) Except as specifically excluded in paragraphs (b) [FRA], and
(c) [USCG] of this section, this part applies to:
(1) Each recipient and subrecipient receiving Federal assistance
under 49 U.S.C. 5307, 5309, or 5311; and (2) Any contractor of a
recipient or subrecipient of Federal assistance under 49 U.S.C.
5307, 5309, 5311.
Sec. 655.4 Definitions.
Contractor means a person or organization that provides a
safety-sensitive service for a recipient, subrecipient, employer, or
operator consistent with a specific understanding or arrangement.
The understanding can be a written contract or an informal
arrangement that reflects an ongoing relationship between the
parties.
Covered employee means a person, including an applicant or
transferee, who performs or will perform a safety-sensitive function
for an entity subject to this part.
Employer means a recipient or other entity that provides public
transportation service or which performs a safety sensitive function
for such recipient or other entity. This term includes
subrecipients, operators, and contractors.
Safety-sensitive function means any of the following duties,
when performed by employees of recipients, subrecipients, operators,
or contractors:
(1) Operating a revenue service vehicle, including when not in
revenue service[.] * * *
As transit-TNC service partnerships have become more prominent,
questions have arisen over the applicability of what is generally known
as the ``taxicab exception.'' Further, as explained in detail in
Section III of this notice, an error in one of FTA's current Shared
Mobility FAQs has contributed to the exception being implemented in a
way inconsistent with the original intent of the taxicab exception. FTA
is proposing this update and clarification to the FAQs in response to
these inquiries, as well as to correct the error, to ensure recipients
and TNCs have a better understanding of when the Drug and Alcohol rule
applies and when it does not.
The taxicab exception is based on a lack of contractual or informal
arrangement between the transit agency and taxicab company and who
controls the selection of the company/driver providing the trip. In
1994, when the exception was issued, many taxicab drivers were
independent operators, providing service to any individual who hailed
them from the curb. The selection was random and non-predictable, with
the rider flagging down the next taxicab that appeared. Because of this
randomness, it would have been impractical for the transit agency to
require all the local taxicab drivers to take a ``pre-employment'' test
or be part of its random testing pool if there was even a slight
possibility that a rider might hail them using transit-agency issued
scrip or vouchers. However, if the transit agency contracted with a
taxicab company, or if there were only one or two taxicab companies
providing service in the area, then the transit agency could establish
a known pool of participating drivers and include the drivers in the
agency's testing program.
A rider-initiated vehicle selection via a rider-controlled app,
such as for first mile-last mile service with TNCs, is today's
functional equivalent of a street-corner or curbside flag-down of a
taxicab. A TNC driver providing service to the general public has no
expectation they will be selected for a transit agency subsidized trip
when they are selected by the app, and where there are two or more
providers, the transit agency has little or no control over the rider's
selection of a company/driver. In contrast, in situations where the
rider contacts a transit agency to schedule a
[[Page 106734]]
ride, and the agency has either pre-approved one or more providers or
created a pool of designated drivers, such as for ADA paratransit trips
where an agency uses taxicabs or TNCs, the transit agency has a
demonstrable measure of control over the selection of the company/
driver and therefore has the ability to include those drivers within
its testing program in the interest of public safety.
II. Background
Subsequent to passage of the Omnibus Transportation Employee
Testing Act of 1991 (Pub. L. 102-143, codified at 49 U.S.C. 5331), FTA
issued its first round of drug and alcohol abuse prevention rules on
February 15, 1994.\1\ In the preambles, the final rules said this about
taxicabs providing service for or on behalf of transit agencies:
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\1\ 59 FR 7531; 49 CFR parts 653 and 654, replaced with part 655
in 2001 (66 FR 41996).
User-side subsidies. A user-side subsidy refers to the practice
of providing passengers publicly subsidized scrip or vouchers, which
the passenger then uses to pay for transportation from a private
carrier such as a taxicab company. In essence, a recipient provides
transportation services indirectly through such subsidies. The
regulation applies to certain recipients of FTA funding, and to
transit operators providing service under contract or other
arrangements with those recipients. To the extent that a taxi
operator does not provide service under an arrangement with an 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. In such cases, the taxi company may wish to designate only
certain drivers to provide such service, in which case only those
designated drivers would be subject to the rule's drug and alcohol
testing program.\2\
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\2\ 59 FR 7531 at 7542 and 7582, Feb. 15, 1994.
The distinction between contracting with a taxi company to provide
service as opposed to merely providing vouchers without any sort of
contract or arrangement arises, at least in part, from the legislative
history of the Omnibus Transportation Employee Testing Act, which
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includes the following floor statement:
Drug and alcohol-testing requirements must not be circumvented
through contracting out of work. Safety-sensitive employees of
recipients of the Federal transit grant money identified in the
bill, and those safety-sensitive employees working for contractors
of such recipients must be covered exactly to the same extent and in
the same fashion. I know that I speak for all conferees when I say
that we will not tolerate a situation where employees performing
substantially the same safety-sensitive function are covered or not
covered depending on whether they work directly for a public
authority or an outside contractor. 137 Cong Rec. S14766 (daily ed.
Oct. 16, 1991). (Statement of Sen. D'Amato).
This statement demonstrates congressional intent to include in the
testing program contractors who are performing the same work as a
transit agency employee.
Since the issuance of those first drug and alcohol rules, FTA has
consistently, as a matter of policy, indicated that the drug and
alcohol rules do not apply when the transit agency has no contractual
or informal arrangement with local taxicab companies, the transit
agency provides user-side subsidies in the form of scrip or vouchers,
and the passenger chooses among more than two taxicab companies to
provide a trip. The 2016 FAQs changed this to ``two or more'' for added
flexibility. Prior to the availability of TNCs, such arrangements were
for incidental use that supports public transportation, such as
guaranteed ride home programs.
Thus, the exception is based on who controls the selection of the
company/driver providing each trip; only when there is no contract or
informal arrangement for service between the transit agency and the
taxicab company or TNC, and the passenger selects the provider for each
trip, does the Drug and Alcohol rule not apply.
In the preamble to the 2001 Drug and Alcohol final rule, FTA
stated,
FTA policy continues to recognize the practical difficulty of
administering a drug and alcohol testing program to taxi companies
that only incidentally provide transit service. Therefore, the drug
and alcohol testing rules apply when the transit provider enters
into a contract with one or more entities to provide taxi service.
The rules do not apply when the patron (using subsidized vouchers)
selects the taxi company that provides the transit service. This
guidance reflects the FTA Master Agreement, which requires
recipients to include appropriate clauses in third party contracts
requiring contractors to comply with applicable Federal
requirements. It also recognizes the practical difficulty of
administering a drug and alcohol testing program to entities that
only incidentally provide taxi service on behalf of a transportation
service provider.\3\
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\3\ 66 FR 41996, Aug. 9, 2001.
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III. Current Implementation
As stated above, a rider-initiated vehicle selection via a rider-
controlled app, such as for first mile-last mile service with TNCs, is
today's functional equivalent of a street-corner or curbside flag-down
of a taxicab. In such instances, when the rider selects the provider
and the transit agency has no control over the selection, the Drug and
Alcohol rule does not apply. However, the use of TNCs has gone beyond
``incidental'' support of public transportation with first mile-last
mile and guaranteed ride home programs to regularly supplementing or
replacing public transportation service. For example, many transit
agencies are contracting with TNCs to provide same-day ADA paratransit
trips and are not including TNC drivers in an FTA/DOT-approved testing
program. Other agencies are canceling late-night fixed route service
and contracting with TNCs for demand-responsive service or adding new
demand-responsive service provided by taxicabs or TNCs and not
including those drivers in the agency's testing program. This exclusion
means passengers are exposed to drivers who are not subject to drug and
alcohol testing, raising safety concerns. Because in these situations,
the taxicabs/TNCs are supplementing or replacing transit service and
have some sort of contractual or informal arrangement with the transit
agency, the taxicab companies or TNCs should be identifying an
established group of drivers for these arrangements, and the drivers
should be included in the transit agency's drug and alcohol testing
program, or an FTA/DOT-compliant testing program conducted by the
taxicab company or TNC.
In 2016, FTA published Shared Mobility Frequently Asked Questions
(FAQs) on the applicability of the Drug and Alcohol rule to TNCs. One
of those questions included an erroneous answer that has resulted in
numerous transit agencies incorrectly concluding that the Drug and
Alcohol rule does not apply under various scenarios where there is a
contractual relationship between the transit agency and one or more
TNCs.
While the transportation industry has evolved beyond hailing
taxicabs on the corner, the basis for the inapplicability of the Drug
and Alcohol rule to some taxicab and TNC operations that provide
transit agency-subsidized trips remains the same: a lack of a
contractual or informal arrangement between the transit agency and the
TNC or taxicab operator, and the randomness of the customer choosing
the provider for each trip.
1. Lack of Contractual Relationship
In 2016, TNCs were starting up and partnering with transit agencies
to provide first mile-last mile and same-day ADA paratransit service.
Many transit agencies using TNCs for same-day ADA paratransit or other
on-demand service entered into contracts
[[Page 106735]]
or informal arrangements with TNCs to provide the service.
FTA developed FAQs related to the eligibility of such services,
requirements related to the ADA, and FTA's controlled substance and
alcohol testing requirements.\4\
---------------------------------------------------------------------------
\4\ See <a href="https://www.transit.dot.gov/regulations-and-guidance/shared-mobility-faqs-controlled-substance-and-alcohol-testing-requirements">https://www.transit.dot.gov/regulations-and-guidance/shared-mobility-faqs-controlled-substance-and-alcohol-testing-requirements</a>.
---------------------------------------------------------------------------
One of the FAQs included an erroneous answer:
Question: Does the taxicab exception apply to ridesourcing
companies?
Answer: It depends. The rationale for the taxicab exception is
the same for ridesourcing companies when a public transit agency has
a contractual or informal arrangement with two or more ridesourcing
companies or taxicab companies to provide a specific service or type
of service, and the public transit passenger chooses among the
providers. In this case, the public transit agency would have to
contract with at least two ridesourcing companies and/or taxicab
companies to ensure the passenger has a choice of which provider to
contact for a ride.
There may be some situations in which a public transit agency
contracts with two or more ridesourcing companies as well as one or
more taxicab companies in order to ensure the service is available
for all passengers. For example, the taxicab company may be the only
contractor with accessible vehicles, or may be the only contractor
able to schedule trips over the phone or accept cash payment from
passengers. While some passengers may have only one choice, this
does not change the fact that many passengers will have more than
one choice, and so the taxicab exception will apply to all of the
providers.
The answer should read, ``a public transit agency does not have a
contractual or informal arrangement . . .'' but instead reads, ``a
public transit agency has a contractual or informal arrangement . . .''
The error in the answer to this question has led to a situation in
which the regulation is applied in a manner inconsistent with its
original intent. The statement, ``is the same for ridesourcing
companies when a public transit agency has a contractual or other
arrangement with two or more ridesourcing companies or taxicab
companies'' is erroneous as the Drug and Alcohol rule does not apply
when there is a lack of a contractual or other arrangement. This answer
is inconsistent with FTA's long-standing policy related to the
applicability of the rule to taxicabs, and also is inconsistent with
other FAQs which indicate the Drug and Alcohol rule applies when there
is a contract or other arrangement, and has caused confusion in the
industry. As explained above, when a transit agency enters into a
contract or informal arrangement with another entity to provide
service, the contractor's employees must be part of an FTA/DOT-
compliant drug and alcohol testing program. See 49 CFR 655.3(a)(2).
Today's proposed policy statement and updated FAQs would amend the FAQs
to be consistent with the original intent of the inapplicability of the
Drug and Alcohol rule to taxicabs providing a safety-sensitive function
for transit agencies in certain situations.
2. Customer Choice Every Ride
An additional condition that must be met for the Drug and Alcohol
rule to not apply is that customers must choose their provider for
every trip, as they would if they were hailing a cab or using a TNC
app. Some transit agencies are challenged by the ``customer choice''
component and have sought additional guidance from FTA. FTA has
consistently expressed that for the rule not to apply, the customer
must choose the TNC or taxicab provider for each trip. Some agencies
have developed apps where the passenger makes a provider selection when
signing up for the app but is not offered a choice of provider for each
ride. In this case, because the passenger is not making a provider
choice for each ride, the Drug and Alcohol rule applies. This
interpretation is consistent with the original rationale for the
inapplicability of the rule in that rider selection of a provider for
each ride is random and non-predictable.
Some transit agencies have argued this customer choice requirement
is burdensome and if the passenger is given the option to select their
provider from two or more companies when they first sign up for
service, the Drug and Alcohol rule should not apply. This argument is
inconsistent with the reasoning behind the original rationale for
inapplicability of the rule, which is that when a transit agency
provides a voucher to a passenger for use with any TNC or taxicab
provider in the area, the transit agency does not know and/or cannot
control which provider a passenger contacts for service, and thus it
would be impracticable to include the drivers of those providers in a
testing program. When the transit agency knows which entity will
provide the trip, it exercises control, and the drivers must be part of
an FTA/DOT-compliant testing program.
Some agencies have expressed concern regarding passenger choice and
how the transit agency can keep track of usage. Transit agencies need
to know who is using the TNC or taxi service and whether the trip is
within the service area in order for the TNC to be reimbursed for the
trip and to ensure only eligible trips are reimbursed. Notably, user-
side subsidies or vouchers can be electronic, such as providing a
unique code to each passenger who uses the app to request a ride from a
TNC or taxi provider. This set-up enables the transit agency to monitor
usage while maintaining the user choice element for each ride.
IV. Policy Statement
a. Background
The availability of TNCs to provide same-day ADA paratransit, late
night on-demand, first mile-last mile, and other services has been
valuable to transit agencies as they strive to provide exceptional
public transportation service. Over time, this use of TNCs to
supplement public transit has moved from incidental to regular, with
TNCs providing millions of trips per year to public transit passengers.
Transit agencies have sometimes found FTA's TNC FAQs difficult to
interpret, and this has led to findings during FTA drug and alcohol
audits. By this proposed update to the FAQs, FTA intends to remove
ambiguities and ensure transit agencies and TNCs are clear about the
applicability of FTA's Drug and Alcohol rule to TNCs.
As with everything we do at FTA, safety is paramount. The Drug and
Alcohol program combats prohibited drug use and alcohol misuse by
drivers engaged in the provision of public transit. When a taxicab or
TNC provides service on behalf of a public transit agency, the
passenger can reasonably expect the driver of that vehicle to be
subject to the same requirements as a bus or train operator.
If a transit agency has a contract or arrangement in place with
TNCs or taxicabs to transport passengers, it is critical that drivers
are not impaired while performing this safety-sensitive duty. This is
especially important when TNCs or taxicabs are providing service for
seniors, persons with disabilities, or youth, who may not have the
ability to depart a vehicle being operated by an impaired driver,
especially if the passenger needs assistance to exit the vehicle, or it
is late at night, in inclement weather, or in an unfamiliar
neighborhood. This leaves the passenger in the difficult situation of
having to complete the ride, knowing their safety is at risk. Parity in
the application of regulations intended to address drug and alcohol use
and abuse will ensure all passengers are afforded the same protections.
For those TNCs operating service under contract or informal
arrangement with a transit agency, it is likely not
[[Page 106736]]
necessary to include every driver in a drug and alcohol testing
program. TNCs are welcome to identify a subset of drivers that serve
the transit agency contract. TNCs may wish to require all new drivers
joining their platforms participate in the drug and alcohol testing
program as a means of building the number of drivers eligible to drive
for the public transit agency contract. TNCs may not have to create a
separate random testing pool; the identified subset of drivers may be
placed into the transit agency's random testing pool at the discretion
of the transit agency and the TNC. If the TNC creates its own testing
program, the testing program must meet FTA/DOT requirements. In either
case, drivers will be subject to all testing requirements of 49 CFR
parts 40 and 655.
b. Proposed Policy
FTA proposes modifying its Shared Mobility Controlled Substance and
Alcohol Testing Requirements FAQs to clarify when the exception applies
and to fix the existing error. FTA proposes the relevant set of FAQs
would read as follows:
Shared Mobility Controlled Substance and Alcohol Testing Requirements
Under Federal transit law (49 U.S.C. 5331), public transportation
recipients that receive financial assistance under the FTA's Urbanized
Area, Capital Investment Grant, and Rural Area programs must conduct
controlled substance and alcohol testing of public transportation
employees responsible for safety-sensitive functions, including
operating, dispatching, and maintaining revenue service vehicles. These
FAQs describe the extent to which ridesourcing companies are subject to
the drug and alcohol testing requirements. For questions, contact Iyon
Rosario (<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="2c45554342025e435f4d5e45436c484358024b435a">[email protected]</a>), FTA's Senior Drug and Alcohol Program
Manager.
When does the Drug and Alcohol rule apply?
The Federal Transit Administration (FTA) Drug and Alcohol rule (49
CFR part 655) provides that the rule applies to recipients and
subrecipients of Urbanized Area (section 5307), Capital Investment
Grant (section 5309), and Rural Area (section 5311) funds, as well as
their contractors and subcontractors. A ridesourcing company may be a
contractor. Under the rule, a contractor is any entity providing a
safety-sensitive function for a recipient or subrecipient. The contract
may be a written contract or an informal arrangement ``that reflects an
ongoing relationship between the parties.''
The intent of the Drug and Alcohol rule is to cover only those
situations in which a transit operator has a contract or arrangement
with taxicab or TNC operators. In these instances, the public knows
that to take advantage of services funded in part by a transit agency,
it must deal with a particular taxicab or TNC. On the other hand, where
there is no contract or informal arrangement and a passenger randomly
chooses among a variety of different taxi and/or TNC companies, these
FAQs recognize the practical difficulties of trying to administer a
drug and alcohol testing program in connection with all of those
companies; accordingly, FTA's rule on drug and alcohol testing would
not cover such services.
Does the testing requirement apply to employees and independent drivers
of contractors not otherwise providing public transportation?
Yes. The Drug and Alcohol rule (49 CFR part 655) extends the
controlled substance and alcohol testing requirement to employees of
contractors performing a safety-sensitive function. This includes the
independent drivers of a ridesourcing company contracting with a public
transportation agency. FTA has consistently interpreted the regulation
(49 CFR part 655) to include contractors who do not directly engage in
public transportation operations, including taxicab operators and TNCs
unless there is no contractual or informal arrangement, the transit
agency merely provides user-side vouchers, and the passenger chooses
the provider for each trip.
Are private companies like ridesourcing companies required to comply
with DOT drug and alcohol testing requirements?
Recipients of Urbanized Area (section 5307), Capital Investment
Grant (section 5309), and Rural Area (section 5311) funds must conduct
drug and alcohol testing of all employees or contractors performing
safety-sensitive functions. Ridesourcing companies are subject to the
testing requirement to the extent they are a contractor of a recipient
and perform a safety-sensitive function. However, as described below,
in some situations, the Drug and Alcohol rule may not apply to
ridesourcing companies.
Under what circumstances must TNC drivers be included in a drug and
alcohol testing program?
TNC and taxicab drivers who provide or may provide transportation
service under a contract or informal arrangement with a transit agency
must be included in an FTA/DOT compliant drug and alcohol testing
program. Further, when a passenger does not choose the TNC or taxicab
company providing the service for each trip, the TNC and taxicab
drivers must be included in an FTA/DOT compliant drug and alcohol
testing program. TNC and taxicab drivers may be added to a transit
agency's existing testing pool or the TNC or taxicab company may
establish its own FTA/DOT compliant testing program that includes
drivers for the transit agency contract. For example, some transit
agencies contract with TNCs, taxicab companies, and other entities to
provide ADA paratransit service to eligible passengers. In those
situations, the Drug and Alcohol rule applies to the TNC or taxicab
company providing the service. Similarly, if a public transit agency
provides vouchers to passengers to use with only one TNC or taxicab
company, the passenger does not have a choice of which company to
contact, so the Drug and Alcohol rule applies.
Under what circumstances does the Drug and Alcohol rule not apply to
ridesourcing companies?
TNCs and taxicab companies are not required to include their
drivers in an FTA/DOT compliant drug and alcohol testing program when
all of the following apply:
--There are two or more providers available to provide the service, and
--There is no contractual or informal arrangement between the TNC or
taxicab company and the FTA recipient to provide service and
--The passenger randomly selects a provider for each trip from two or
more available providers.
If the transit agency does not contract or have an informal
arrangement with the TNC or taxicab company but only provides user-side
subsidies to the passenger and the passenger contacts the TNC or
taxicab company directly for each ride and has a choice of two or more
providers, the Drug and Alcohol rule will not apply. In this case, the
public transit agency would have to inform its passengers of which TNCs
or taxicab companies they may contact for a ride, and the passenger
would schedule their own rides with their preferred provider for each
trip. NOTE: A passenger who does not have a smartphone or other means
to contact a provider directly may contact the transit agency to assist
in scheduling the trip, even though the transit agency has no
contractual relationship with any
[[Page 106737]]
provider. FTA expects this to be rare and to not occur where there is a
provider that will schedule trips over the phone.
There may be some situations in which a public transit agency
permits passengers to schedule trips with a choice of two or more
ridesourcing companies as well as one or more taxicab companies in
order to ensure the service is available for all passengers. In some
cases, the taxicab company may be the only provider able to schedule
trips over the phone or accept cash payment from passengers without a
smart phone or credit card. As long as there is no contract or informal
arrangement, the Drug and Alcohol rule does not apply to situations
where there are multiple providers but only one provider that accepts
phone reservations and/or accepts cash. While some passengers may have
only one choice, this does not change the fact that many passengers
will have more than one choice, so the Drug and Alcohol rule will not
apply to these providers.
May a transit agency develop an App for users to schedule rides with
TNCs?
A transit agency may develop an app for passenger convenience to
schedule unsubsidized rides with the TNCs and taxicab companies in its
area. Such an app does not constitute a contractual or informal
arrangement for purposes of the drug and alcohol testing requirement. A
shared app, on its own, without a link to a transit-agency subsidized
TNC or taxicab trip, is not a safety-sensitive function. However, if
the transit agency is subsidizing trips (e.g., with vouchers) scheduled
with the app, the Drug and Alcohol rule applies unless there are two or
more providers available with the same app, with no contractual or
informal arrangement for the transportation service, and passengers can
choose the provider for each trip.
If my project is funded with Public Transportation Innovation (Section
5312) research funds, does the drug and alcohol testing requirement
apply?
No. If the project is funded with research dollars, the law permits
the Secretary to prescribe terms and conditions for the grant award.
FTA has determined the Drug and Alcohol rule does not apply to these
funds, even if the recipient of Public Transportation Innovation
(Section 5312) research funds is also a recipient of Urbanized Area
(Section 5307), Capital Investment Grant (Section 5309) or Rural Area
(Section 5311) funds.
Does the Drug and Alcohol rule apply to pilot programs that do not use
any FTA funds?
Yes. If a transit agency receiving FTA funds under 49 U.S.C. 5307,
5309, or 5311 subsidizes ridesourcing services under a pilot program
that does not use FTA funds, the transit agency must incorporate the
ridesourcing company drivers into an FTA/DOT compliant drug and alcohol
testing program, unless there are two or more providers, there is no
contractual or informal arrangement for the transportation service, and
passengers can choose the provider for each trip. Drivers may be
included in a transit agency's testing pool or a TNC's or taxicab
company's testing pool, as long as the testing program complies with
FTA's drug and alcohol testing regulation.
FTA seeks comment from all interested parties. After consideration
of the comments, FTA will issue a second Federal Register notice with a
final set of Frequently Asked Questions.
Veronica Vanterpool,
Deputy Administrator.
[FR Doc. 2024-30966 Filed 12-27-24; 8:45 am]
BILLING CODE 4910-57-P
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</html>Indexed from Federal Register on December 30, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.