Ms. Nancy L. Senn
Department of Public Works
Milwaukee County
Courthouse Annex
907 North 10th Street
Milwaukee, Wisconsin 53233

RE: Dispatchers, contract mechanics for paratransit service under 49 CFR Parts 653 and 654.

Dear Ms. Senn:

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 write that Milwaukee County, a recipient of an FTA formula grant for urbanized areas, contracts with fourteen van and taxicab companies, including a cooperative with 155 vehicles, to provide paratransit service to the community. Each company handles its own dispatching based on a predetermined schedule; to comply with the requirements of the Americans with Disabilities Act, each company must be able to schedule a ride on 24-hours' notice. Each company owns its own vehicles and is responsible for their upkeep, although all of the companies contract out vehicle maintenance to some degree. These maintenance contractors range from small, independent garages or auto dealerships to franchise oil, tire, and muffler shops.

You contend that a paratransit dispatcher should not be subject to the rules. You argue that, at worst, a paratransit dispatcher could send a driver to the wrong address with no safety consequences to the passenger.

You also argue that contract maintenance workers should not be covered by the rules. You note that the number of contractors involved would make it prohibitively expensive for Milwaukee County to cover the costs of testing these contractors and maintain that because the County has not entered into an agreement with the contractors, it cannot require them to comply with the rules.

Interpretation

Paratransit Dispatchers. FTA's rules apply to anyone who performs a safety-sensitive function, which includes the control of the "dispatch or movement of a revenue service vehicle." 49 CFR 653.7 and 654.7. The preamble states that "[b]ecause each recipient uses its own terminology, we have decided to define safety-sensitive based on the function performed instead of listing specific job categories. Each employer must decide for itself whether a particular employee performs any of the functions listed in this definition." 59 FR 7544 and 7584. Although each transit provider must determine which of its employees are covered by the rules, the following guidance may be helpful to you in making that determination. In some bus systems a scheduler is distinguished from a dispatcher. The scheduler determines when and where a vehicle should be driven, while the dispatcher actually assigns a driver to a particular vehicle and ensures that the vehicle is in proper working order. Such a dispatcher is performing safety-sensitive work and would be covered by the rules. If a dispatcher is doing no more than scheduling, however, he or she would not be covered by the rules. In short, the key consideration is the type of work performed rather than any particular job title.

Maintenance contractors. In general, the rules also apply to an "entity that ... performs a safety-sensitive function for [a] recipient ...," which the rules define, in part, as "[m]aintain[ing] a revenue service vehicle or equipment used in revenue service, unless the recipient receives section 18 [a formula grant for a nonurbanized area] funding and contracts out such services." 49 CFR 653.7 and 654.7. The rules also cover a contractor, which is defined as " a person ... that provides service for a recipient, subrecipient, employer, or operator consistent with a specific understanding or arrangement. The understanding can be a written contract or an informal arrangement that reflects an ongoing relationship between the parties." 49 CFR 653.7 and 654.7.

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, 7584. 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.

While the rules clearly apply to contractors, we note that a number of transit systems have raised a question concerning the applicability of the rules to maintenance subcontractors; at issue 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 or subrecipient's contractor performing maintenance work on revenue service vehicles or equipment, but do not apply to any subcontractors providing such services for the initial entity. 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.

Other recipients have questioned the applicability of the rule to contractors who maintain the taxicabs used in paratransit service, many of which are privately owned or leased automobiles. In many instances, the rules would not cover such workers; we have enclosed a copy of an interpretation involving taxicab maintenance contractors for you to apply to your particular situation.

Taxicab operators. Although you do not specifically ask whether the rules apply to the taxicab drivers, we have recently issued an opinion on this matter and have enclosed it for your information.

I understand that my staff already has discussed these issues with you. We would be pleased to discuss these issues with you further, if that would be helpful. I suggest you contact Daniel Duff or Nancy Zaczek in this Office. They may be reached at (202) 366-4011.

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

Enclosure