Ms. Alphonetta Wines
Fort Worth Transportation Authority
P.O. Box 1477
Fort Worth, Texas 76101-1477

RE: Contractors, ongoing relationship, routine maintenance under 49 CFR Parts 653 and 654.

Dear Ms. Wines:

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). Those rules require that a recipient of funds under FTA's discretionary capital grant program, formula grant programs for urbanized and nonurbanized areas, or interstate transfer program implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. Large transit operators were required to implement the drug and alcohol rules beginning on January 1, 1995, while small transit operators must begin implementation on January 1, 1996.

You write that the Fort Worth Transportation Authority ("the Authority") rotates its maintenance work among fourteen different contractors depending on their availability. You believe that this practice does not constitute an "ongoing relationship" between the Authority and each of the fourteen contractors that gives rise to coverage under the FTA drug and alcohol testing regulations. You ask for FTA's opinion on this matter.

FTA's rules cover contractors who perform a safety-sensitive function, including routine day-to-day maintenance, for a recipient or an employer subject to the rules. According to the rules, the contract may be "a written contract or an informal arrangement that reflects an ongoing relationship between the parties." 49 CFR 653.7 and 654.7.

In our view, an ongoing relationship exists when a transit provider regularly and frequently uses the same contractor to perform a specific safety-sensitive function. Choosing the first available contractor from among fourteen or so contractors does not suggest the existence of such a relationship.

We emphasize that you should consider the regularity of the maintenance work performed by a particular entity and whether the Authority has come to rely on a particular contractor. If you have any questions about this matter, please call either Daniel Duff or Nancy Zaczek of this Office at (202) 366-4011.

Finally, we enclose for your information an FTA interpretation concerning the kind of maintenance work and maintenance contractors covered by the rules.

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

Enclosure