Ms. Robin M. Reitzes
Deputy City Attorney
City of San Francisco
1390 Market Street, 5th Floor
San Francisco, California 94102-5408

Dear Ms. Reitzes:

I write in response to your request for clarification of the Federal Transit Administration's (FTA) drug and alcohol testing regulations at 49 CFR Parts 653 and 654.

Under the Transportation Equity Act for the 21st Century ("TEA-21"), the San Francisco Municipal Railway ("MUNI"), like all grantees serving urbanized areas of 200,000 or more, will no longer receive operating assistance from the FTA. You ask how this will affect the applicability of FTA's drug and alcohol testing regulations to MUNI's contractors performing safety-sensitive functions, given that such assistance has been used to fund those contractors. Enclosed with your correspondence is a 1994 letter from this office that may be interpreted as suggesting that, in the absence of operating assistance, the FTA drug and alcohol rules do not apply.

The FTA drug and alcohol testing rules apply to recipients under 49 U.S.C. 5307, 5309, and 5311, and 23 U.S.C. 103(e)(4). 49 CFR 653.5 and 654.3. Under those rules, such a recipient is required to conduct testing of employees and contractors who perform safety-sensitive functions. The regulatory preamble that accompanied issuance of the rules on February 15, 1994 (59 Fed. Reg. 7532), notes that the rules apply to such recipients throughout the useful life of equipment purchased with FTA capital assistance. 59 Fed. Reg. at 7543 and 7582-83.

You ask three specific questions, first, whether van and lift-van operators that subcontract with MUNI’s paratransit broker are subject to FTA drug and alcohol testing regulations when no FTA-funded equipment is used. As Chief Counsel Schiller’s letter indicates, when a private operator such as a paratransit broker provides service under an arrangement with an FTA recipient, the operator and its subcontractors are subject to the rules.

As to second and third questions regarding security guards, tow truck operators, and maintenance contractors, the determining factor in deciding if they must be tested under 49 CFR Parts 653 and 654 is whether they perform safety-sensitive functions as defined at 49 CFR 653.7 and 654.7. If they perform safety-sensitive functions, such employees would be subject to testing, regardless of whether they are paid with Federal or local funds, or whether contracts for these services are Federally or locally funded.

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

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