Mr. Elton W. Gogolin, Jr.
MARTA
2424 Piedmont Road, N.E.
Atlanta, Georgia 30324-3324

RE: Safety-sensitive function; overhaul contractors; bus manufacturers under 49 CFR Parts 653 and 654.

Dear Mr. Gogolin:

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 must implement the drug and alcohol rules beginning on January 1, 1995, while small transit operators must begin implementation on January 1, 1996.

Issue

You ask whether employees who perform major overhaul or reconstruction work or who conduct test drives on public highways and deliver vehicles to the transit provider are covered employees under the rules.

Interpretation

The rules cover employees who "maintain a revenue service vehicle or equipment used in revenue service." 49 CFR 653.7 and 654.7. In the preamble discussion of this provision, we stated 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. In response to your specific question, the rules thus would not apply to those workers overhauling or reconstructing revenue service vehicles or equipment.

Moreover, in our view, activities involved in connection with the pickup, delivery, or testing of a vehicle for warranty work is inherently part of the warranty process and would not be covered by the rules. We note, however, that any driver required to hold a Commercial Driver's License under Federal law or regulation is subject to drug and alcohol testing under the Federal Highway Administration's rules.

I trust this responds to your inquiry.

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