[Federal Register Volume 63, Number 40 (Monday, March 2, 1998)]
[Proposed Rules]
[Pages 10183-10185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5275]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Parts 653 and 654

[Docket No. FTA-98-3474]
RIN 2132-AA61


``Maintenance'' Under Definition of Safety-Sensitive Functions in 
Drug and Alcohol Rules

AGENCY: Federal Transit Administration, DOT.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: In response to a letter from an attorney representing a large 
transit system, the Federal Transit Administration (FTA) proposes to 
require drug and alcohol testing of all maintenance workers, including 
those engaged in engine, revenue service vehicle, and parts rebuilding 
and overhaul. This change would eliminate the distinction between 
maintenance workers involved in on-going, daily maintenance and repair 
work and those who, on a routine basis, perform rebuilding and 
overhauling work.

DATES: Comments on this proposed rule must be submitted by June 1, 
1998.

ADDRESSES: Written comments must refer to the docket number appearing 
above and must be submitted to the United States Department of 
Transportation, Central Dockets Office, PL-401, 400 Seventh Street SW., 
Washington, DC 20590. All comments received will be available for 
inspection at the above address from 10 a.m. to 5 p.m., Monday through 
Friday, except Federal holidays. Those desiring the agency to 
acknowledge receipt of their comments should include a self-addressed 
stamped postcard with their comments.

FOR FURTHER INFORMATION: For program issues: Judy Meade, Director of 
the Office of Safety and Security (202) 366-2896 (telephone) or (202) 
366-7951 (fax). For legal issues: Michael Connelly, Office of the Chief 
Counsel (202) 366-4011 (telephone) or (202) 366-3809 (fax). Electronic 
access to this and other rules may be obtained through FTA's Transit 
Safety Bulletin Board at 1-800-231-2061, or through the FTA World Wide 
Web home page at http://www.fta.dot.gov; both services are available 
seven days a week.

SUPPLEMENTARY INFORMATION:

I. Background

    On February 5, 1994, FTA issued 49 CFR parts 653 and 654, requiring 
recipients of certain categories of FTA funding to test safety-
sensitive employees for the use of five prohibited drugs, and for the 
misuse of alcohol. The rules defined safety-sensitive employees to 
include, among others, workers who maintain revenue service vehicles or 
equipment used in revenue service.
    In a series of interpretive letters dating from 1994, the FTA 
refined the definition of safety-sensitive maintenance workers, in 
effect creating two distinct classes of employees. On the one hand were 
those engaged in on-going and routine repair and maintenance of revenue 
service vehicles and equipment. On the other hand were those performing 
what the FTA has historically considered less routine maintenance such 
as the overhaul and rebuilding of engines, parts, and vehicles. The 
basis for the FTA's view lay in the rules' preambles (59 FR 7535 
(alcohol) and 59 FR 7575 (drugs)), which noted that ``only mechanics 
who repair (revenue service) vehicles or

[[Page 10184]]

perform routine maintenance are the types of maintenance workers 
covered by the rules.'' The FTA focused on routine maintenance, and 
excluded from coverage those workers performing other-than-routine 
repair service.
    On September 3, 1996, John Goldstein, President of the Amalgamated 
Transit Union, Local 998, Milwaukee, Wisconsin, sought clarification of 
FTA policy on random testing of employees performing less routine 
maintenance, i.e., overhauling and rebuilding engines. He noted that 
contract workers at the Milwaukee County Transit System who did such 
work were not being randomly tested, while employees of the transit 
agency performing the same work were subject to testing.
    On March 26, 1997, the FTA, in keeping with previous 
interpretations, informed Goldstein that no worker performing less than 
routine maintenance was subject to testing under FTA rules, regardless 
for whom they worked. According to FTA's previously-issued interpretive 
letters, the rules applied only to those safety-sensitive employees 
performing routine, day-to-day maintenance work.
    In response to the FTA's March 26, 1997, letter to Goldstein, Gregg 
Formella, attorney for the Milwaukee Transport Services, Inc., 
requested that FTA reconsider its position regarding the two categories 
of maintenance worker testing. Mr. Formella's letter, and that from Mr. 
Goldstein, pointed out that the transit system has repair maintenance 
units dedicated solely to rebuilding and overhaul. While individual 
revenue service vehicles are overhauled and rebuilt only occasionally 
(i.e., on a less routine basis), the employees who work on those 
vehicles do so on an on-going, daily basis. The work load is constant; 
a revenue service vehicle is always being overhauled or rebuilt.
    Mr. Formella also pointed out that the Federal Register preambles 
upon which the FTA had relied in its letters of interpretation involved 
a distinction, not between routine repair maintenance and less routine 
repair maintenance, but rather between all repair maintenance and 
cleaning maintenance; in that context, the use of the word ``routine'' 
is superfluous.
    Finally, Mr. Formella's letter suggests that rebuilding and 
overhaul repair maintenance is no less important than daily 
maintenance, and that in the interest of safety, no exception should be 
extended.

II. FTA's Response

    The FTA proposes to adopt Mr. Formella's suggestion that all 
revenue service repair maintenance workers be subject to FTA's drug and 
alcohol testing requirements, including random testing. Such a proposal 
would eliminate considerable confusion over what constitutes routine 
and less routine maintenance work.
    A closer review of the history of the rules, and specifically that 
portion of the preamble upon which the FTA relied when creating the two 
categories of repair maintenance workers, is instructive. When the 
regulations were first proposed in 1992, some commenters were concerned 
that considering as safety-sensitive any employee who ``maintain(s) a 
revenue service vehicle'' might be too broad; the commenters were 
concerned that employees who clean such vehicles might also fall under 
the definition of safety-sensitive maintenance. In 1994, when the final 
rules were promulgated, the FTA used that opportunity to note that only 
mechanics, and not cleaning crews, would be subject to the rules' 
coverage. Significantly, we noted that the rules applied to all 
mechanics ``who repair vehicles.'' Also, in the rules' preambles (59 FR 
7584 (drugs) and 59 FR 7544 (alcohol)), we noted that ``(m)aintaining a 
revenue service vehicle includes any act which repairs, provides upkeep 
to a vehicle, or any other process which keeps the vehicle 
operational''--a definition which, in retrospect, surely includes 
employees who rebuild and overhaul engines, parts, and revenue service 
vehicles.
    In a November 2, 1994, letter to the New York City Transit 
Authority, the FTA stressed that the routine and on-going nature of the 
maintenance work was a ``key criterion'' in determining when the rules 
applied. The FTA stated that because rebuilding and overhauling parts, 
engines, and revenue service vehicles were done on only an occasional 
basis, the rules ought not apply.
    However, experience over the last four years has shown, in fact, 
that some workers who overhaul and rebuild do so on a regular, on-going 
basis. In light of this new understanding, the FTA has re-evaluated its 
earlier position to consider whether overhauling and rebuilding 
engines, parts, and vehicles that is performed routinely should be 
included in the rules. While overhaul and rebuilding is not performed 
every day on each piece of equipment, the workers who do such work do 
so daily and on a routine basis. We seek comment on changing the 
interpretation of ``maintaining a revenue service vehicle or equipment 
used in revenue service'' to include overhauling and rebuilding 
engines, parts, and revenue service vehicles.
    In addition, there is now reason to believe that repair maintenance 
personnel experience greater substance abuse problems than other 
categories of safety-sensitive workers. Statistics provided by the 
transit industry, as summarized in the Drug and Alcohol Testing 
Results, 1995 Annual Report (FTA-MA-18X018-97-1; DOT-VNTSC-FTA-97-2, 
available from the FTA Office of Safety and Security) indicate that, 
for both drugs and alcohol, the revenue vehicle and equipment 
maintenance personnel had the highest percentage of random and 
reasonable suspicion positives:

    ``3.2.2.  Random Drug Test Results * * * In addition, within the 
random testing category, one job category (revenue vehicle and 
equipment maintenance) consistently had the highest percentage of 
positive drug test results.
    3.3  Results of Drug Tests Presented by Employee Category * * *
    The category with the highest percentage of positive results was 
revenue vehicle and equipment maintenance with 2.05.
    3.11  Comparison of Transit System and Contractor Positive 
Random Drug Test Results * * * In four out of five job categories, 
contractors had a higher percentage of positive random drug test 
results than did transit systems * * * The largest differential was 
in revenue vehicle and equipment maintenance category, where 
contractors had 2.99 percent positive and transit systems had 2.01 
percent positive.
    4.2.2  Random Alcohol Test Results * * * For random alcohol 
tests, the revenue vehicle and equipment maintenance employee 
category had the highest percentage of positive alcohol test 
results.''

The 1996 data (soon to be available in the FTA's 1996 drug and alcohol 
testing results annual report) reinforce this view. These statistics 
demonstrate the need to be all-inclusive when testing employees who 
perform maintenance functions.
    There is great similarity between the actual job functions of 
employees performing on-going repairs, and those working exclusively on 
engine, parts, and vehicle overhaul and rebuilding. In retrospect, any 
distinction between the two categories is an artificial construct, and 
there now appears no basis to treat them differently. To consider all 
safety-sensitive repair maintenance employees as falling under the 
regulations' rubric is consistent, and pro-safety. In larger systems, 
the workers in each of these two categories are generally drawn from 
the same technical pool, with the same skills and responsibilities. In 
smaller

[[Page 10185]]

systems, the employees who perform the on-going maintenance may often 
be the same people rebuilding and overhauling.
    This proposal is intended to apply to all transit systems, their 
contractors that perform safety-sensitive functions, and all 
maintenance repair employees; it is not meant to be limited to those 
transit systems with units dedicated to engine, parts, and vehicle 
overhaul and rebuilding. Such an inclusive view is consistent with the 
regulatory intent to test all safety-sensitive repair maintenance 
workers in the interest of public safety.
    Nothing in this proposal is intended to affect the present 
exemption of repair maintenance workers of newly manufactured equipment 
or equipment under the manufacturer's warranty, the exemption extended 
to contractors of section 5311 (formerly section 18) systems, or 
contractors of section 5309 (formerly section 3) recipients in an area 
under 50,000 in population.

III. Regulatory Analyses and Notices

    This is not a significant rule under Executive Order 12866 or under 
the Department's Regulatory Policies and Procedures. There are no 
significant Federalism implications to warrant preparation of a 
Federalism Assessment. The Regulatory Impact Analysis used for the 
original 1994 rules assumed that all maintenance workers would be 
randomly tested for drug and alcohol misuse. In 1994, the FTA created a 
limited exemption from testing for safety-sensitive workers who 
performed ``less routine'' maintenance such as rebuilding and 
overhauling engines, parts, and revenue service vehicles. We now 
propose to eliminate that exemption, and restore all maintenance 
workers to the original assumption (i.e., that all safety-sensitive 
workers would be tested). Therefore, the Department certifies that this 
rule will not have a significant economic impact on a substantial 
number of transit systems; this rule will merely restore maintenance 
workers who overhaul and rebuild engines, parts, and revenue service 
vehicles to the pool of safety-sensitive workers to be randomly tested. 
This rule does not contain new information collection requirements for 
purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. 
This is not an unfunded mandate because this rule, if adopted, would 
cost State, local, and tribal governments less than $100 million 
annually.

List of Subjects in 49 CFR Parts 653 and 654

    Alcohol testing, Drug testing, Grant programs-transportation, Mass 
transportation, Reporting and recordkeeping requirements, Safety and 
transportation, Safety-sensitive.
    For the reasons set forth in the preamble, FTA proposes to amend 
Title 49 Code of Federal Regulations, part 653 and 654 as follows:

PART 653--PREVENTION OF PROHIBITED DRUG USE IN TRANSIT OPERATIONS

    1. The authority citation for part 653 continues to read as 
follows:

    Authority: 49 U.S.C. 5331, 49 CFR 1.51.


Sec. 653.7  [Amended]

    2. Section 653.7 is amended by adding the definition of safety-
sensitive function to read as follows:
* * * * *
    Safety-sensitive function means any of the following duties: 
Maintaining (including on-going repairs and overhaul and rebuilding) a 
revenue service vehicle or equipment used in revenue service, unless 
the recipient receives section 5309 (formerly section 3) funding, is in 
an area less than 50,00 in population, and contracts out such services, 
or section 5311 (formerly section 18) funding and contracts out such 
services.
* * * * *

PART 654--PREVENTION OF ALCOHOL MISUSE IN TRANSIT OPERATIONS

    1. The authority citation for part 654 continues to read as 
follows:

    Authority: 49 U.S.C. 5331, 49 CFR 1.52.


Sec. 654.7  [Amended]

    2. Section 654.7 is amended by adding the definition of safety-
sensitive function to read as follows:
* * * * *
    Safety-sensitive function means any of the following duties: 
Maintaining (including on-going repairs and overhaul and rebuilding) a 
revenue service vehicle or equipment used in revenue service, unless 
the recipient receives section 5309 (formerly section 3) funding, is in 
an area less than 50,00 in population, and contracts out such services, 
or section 5311 (formerly section 18) funding and contracts out such 
services.
* * * * *
    Issued on: February 25, 1998.
Gordon J. Linton,
Administrator.
[FR Doc. 98-5275 Filed 2-27-98; 8:45 am]
BILLING CODE 4910-57-U