Mr. Eugene Freidus
Executive Assistant General Counsel
New York City Transit Authority
Metropolitan Transportation Authority
130 Livingston Street
Brooklyn, New York 11201

Re: Maintenance contractors, subcontractors, maintenance-of-way under 49 CFR Parts 653 and 654

Dear Mr. Freidus:

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 about the applicability of the FTA's rules on drug and alcohol testing to those who maintain transit vehicles or equipment, including subcontractors, as well as those who overhaul vehicles or maintain right-of-way on rail systems.

Interpretation

The FTA's rules on drug and alcohol testing apply to an employer, which is defined as a recipient of FTA funding, or one who provides mass transit services for such a recipient, and includes subrecipients, operators, and contractors. 49 CFR 653.7. A "covered employee" performs a "safety-sensitive function," which includes "[m]aintaining a revenue service vehicle or equipment used in revenue service, unless the recipient receives section 18 funding and contracts out such services." 49 CFR 653.7. Regarding the type of maintenance workers 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. In response to your specific question, the rules thus would not apply to those workers overhauling revenue service vehicles or equipment.

You also ask about the applicability of the rules in general to subcontractors performing maintenance work, a question raised by a number of other transit systems as well; at issue here is how far, if at all, the rules extend beyond the contractor performing maintenance work for a recipient of FTA funds. A number of recipients contend that it would be difficult, if not impossible, for them to require drug and alcohol testing of anyone other than the maintenance contractor with whom they have a contract or arrangement. We agree. A recipient's contractor is solely responsible to the recipient for the maintenance work performed, and in our view the intent of the rules was to cover only that contractor. In short, the rules apply to a recipient's or subrecipient's contractor performing maintenance work on revenue service vehicles or equipment, but do not apply to any subcontractors providing such services for 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.

Finally, you ask about the applicability of the rules to those dealing generally with maintenance-of-way on a rail system. As noted above, the rules apply to those who maintain revenue service vehicles or equipment. Rail tracks clearly would be considered revenue service equipment; any maintenance work done on such revenue service trackage would come within the scope of the rules.

I trust this responds to your inquiry.

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