Ms. Arlene S. Doren
Personnel and Risk Manager
C-TRAN
P.O. Box 2529
Vancouver, Washington 98668-2529

Re: Identification of safety-sensitive contract employees under 49 CFR Parts 653 and 654

Dear Ms. Doren:

Thank you for your letter asking about the application of the Federal Transit Administration's (FTA) drug and alcohol testing regulations (59 FR 7531 (1994) (to be codified at 49 CFR Parts 653 and 654)) to contractors. You ask for FTA's assistance in determining which of C-TRAN's contractors perform a safety-sensitive function under these rules.

Sections 653.7 and 654.7 define a covered employee as one "who performs a safety-sensitive function for an entity subject to this part." In the preamble to the rule, we stated that "[b]ecause each recipient uses its own terminology, we have decided to define safety-sensitive based on the function performed instead of listing specific job categories. Each employer must decide for itself whether a particular employee performs any of the functions listed in this definition." 59 FR 7544 and 7584. FTA therefore does not determine whether a particular job is safety-sensitive.

We have, however, provided guidance on the kinds of maintenance contractors covered by the rules. The preambles to the rules state that "only mechanics who repair [revenue service] vehicles or perform routine maintenance are the types of maintenance workers covered by the rules." 59 FR 7535; February 15, 1994. A key criterion in terms of the rules' applicability is the routine and ongoing nature of the repair or maintenance work performed. In our view, the rules thus apply to workers engaged in routine, day-to-day, ongoing repair or maintenance work, but do not apply to workers engaged in less routine maintenance activities such as warranty, overhaul, or rehabilitation work.

Moreover, in response to other inquires we have received, we have exempted maintenance subcontractors from the rules. Hence, a recipient's contractor is solely responsible to the recipient for the maintenance work performed, and the rules cover only that contractor. We emphasize, however, that this ruling would not apply if a subcontractor was used to perform maintenance work solely for the purpose of circumventing the FTA's drug and alcohol testing rules.

Please contact Nancy Zaczek of my staff at (202) 366-4011, if you would like to discuss this matter further.

Very truly yours,
(Signed)
Berle M. Schiller
Chief Counsel