Ms. Andrea Ravas
Acting Associate General Counsel
San Francisco Bay Area Rapid Transit District
800 Madison Street – Lake Merritt Station
Post Office Box 12668
Oakland, California 94604-2688

Dear Ms. Ravas:

This is in response to your letter, in which you ask about the applicability of the Federal Transit Administration’s (FTA) drug and alcohol testing regulations. 49 CFR Parts 653 and 654. Specifically, you ask if the rules apply to DaimlerChrysler Rail Systems, Inc. ("Adtranz"), an entity with which the Bay Area Rapid Transit District has contracted for the remanufacture of over 400 older transit vehicles.

In January 1999, FTA amended the definition of safety-sensitive function at 49 CFR 653.7 and 654.7 to include persons (contractors as well as direct employees) that overhaul and/or rebuild engines, parts, and vehicles for FTA grant recipients; previously, persons that overhauled and/or rebuilt were not covered by the rules. The general rule, then, is that contractors that perform overhaul and/or rebuilding maintenance for a FTA grant recipient must comply with the drug and alcohol testing regulations.

In the preamble to the amendment, FTA stated that "if the overhaul/rebuilding work is done on an ad hoc or one-time basis, where there is no long-term contract between the grantee and its contractors, subjecting the contractor’s employees to the rules would be unduly burdensome." (Emphasis added.) In other words, if the overhauling and rebuilding were to be performed only once and there was no long-term contract between the grantee and its contractor, only then would the rules not apply. This was meant to avoid the situation where a contractor would have to comply with the rules, even though the scope of the contract and/or work was short-term and only occurred once.

In the case you present, where there is a long-term contract, the rules apply, even though the work to be performed is on a "one-time basis." The FTA amended its rules to encompass precisely the type of overhaul and rebuilding envisioned in your contract.

If you have additional questions, please contact Michael Connelly of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Patrick W. Reilly
Chief Counsel