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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 [www.gpo.gov]
[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 https://www.regulations.gov 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 https://www.regulations.gov. You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published April 11, 2000 (65 FR 19477), or at https://www.transportation.gov/privacy.

FOR FURTHER INFORMATION CONTACT: For legal questions, Emily Jessup, 
Attorney-Advisor, (202) 366-8907, or [email protected]. For program 
questions, Iyon Rosario, Sr. Drug and Alcohol Program Manager, (202) 
366-2010, or [email protected].

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\
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    \4\ See https://www.transit.dot.gov/regulations-and-guidance/shared-mobility-faqs-controlled-substance-and-alcohol-testing-requirements.
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    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 ([email protected]), 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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