Mr. Andy Henry
Guilford County
Planning and Development Department
Post Office Box 3427
Greensboro, NC 27402

RE: Continuing federal interest; coverage of subcontractors; safety-sensitive functions

Dear Mr. Henry:

Thank you for your letter requesting a determination concerning coverage of the County's Human Service Agency Motorpool under the Federal Transit Administration's (FTA) drug and alcohol testing regulations (49 CFR Parts 653 and 654). You raise the following question: where a recipient purchases vehicles using FTA Section 18 funds and places those vehicles in a motorpool under the supervision of a transportation authority for the use of human service agencies, who, if anyone, is subject to FTA's drug and alcohol testing requirements? The short answer is that the human service agencies using the vehicles purchased with FTA capital funds must comply with FTA's drug and alcohol testing requirements.

According to the preambles to FTA's drug and alcohol testing regulations, "once a recipient has received an FTA capital grant . . . it must comply with the rule (and other Federal requirements) during the useful life of the equipment or facility funded under the grant." 59 FR 7543 and 7582. This requirement only ends after the vehicle or other capital asset has reached its useful life or no longer is used for the purposes for which the grant was made, a circumstance that requires prior FTA approval.

FTA's drug and alcohol testing 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. This includes a contractor, which is defined as "a person or organization that provides a 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." 49 CFR 653.7 and 654.7.

"Safety-sensitive function" means any of the following duties: (1) operating a revenue service vehicle, including when not in revenue service; (2) operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver's License; (3) controlling dispatch or movement of a revenue service vehicle; (4) maintaining a revenue service vehicle or equipment used in revenue service, unless the recipient receives section 18 funding and contracts out such services; or (5) carrying a firearm for security purposes. 49 CFR 653.7 and 654.7.

Some of the human services agencies may be performing safety-sensitive functions for Guilford County, and so would be required to administer drug and alcohol testing. If a human service agency employee is (1) operating a revenue service vehicle; (2) operating a nonrevenue service vehicle which requires a Commercial Driver's license; or (3) controlling dispatch or movement of a revenue service vehicle, then that employee is performing a safety-sensitive function and must be tested. As for volunteers, they must be tested only if they operate vehicles that require the operator to hold a Commercial Driver's License. 60 FR 39618, August 2, 1995.

Please note that if Guilford County receives only capital assistance, drug and alcohol testing requirements may be limited to those vehicles funded by FTA's capital grant.

I trust this responds to your inquiry. Please contact Nancy Zaczek or Kristin O'Grady of this office if you have further questions; they may be reached at (202) 366-4011.

Very truly yours,
Berle M. Schiller
Chief Counsel