[Federal Register Volume 64, Number 2 (Tuesday, January 5, 1999)]
[Rules and Regulations]
[Pages 425-427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-111]
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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: Final rule.
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SUMMARY: The Federal Transit Administration (FTA) is amending its
regulations 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 will 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.
EFFECTIVE DATE: February 4, 1999.
FOR FURTHER INFORMATION CONTACT: 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: On March 2, 1998, FTA published a Notice of
Proposed Rulemaking (NPRM) proposing to amend its drug and alcohol
rules to require testing all maintenance workers, including those
engaged in engine, revenue service, and parts rebuilding and overhaul.
The NPRM came in response to concern that FTA was permitting a segment
of workers who routinely performed safety-sensitive functions to evade
otherwise applicable drug and alcohol testing. FTA received 11 comments
over a three-month period.
I. ``Maintenance''
Comments
Of the 11 comments received, seven favored adoption of the proposed
amendment; four commenters opposed. Those in favor of the amendment
noted that employees performing routine repair and those performing
overhaul and rebuilding should be treated similarly. The workers
performing those tasks are drawn, generally, from the same pool of
applicants, and perform equally important tasks. Those opposed to the
amendment generally focused on a perceived increased cost in securing
contractors able to perform overhaul and rebuilding functions. Comments
on the NPRM, as well as suggestions from those generally in favor of
the amendment, include:
--Three commenters (Bloomington-Normal (Illinois) Public Transit
System (B-NPTS)), the Bay Area (California) Transit Drug Testing Task
Force, and the Los Angeles County Metropolitan Transportation Authority
(LACMTA) expressed concern that ``extending'' testing to contract
maintenance workers would increase the cost to both the grantee and the
contractor. The Task Force and LACMTA both suggest that some of their
overhaul and rebuilding
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work occurs on an irregular, ``as needed'' basis. The B-NPTS suggests
that its contractor should certify those workers who perform
maintenance and overhaul work, and subject only those workers to the
testing rules.
--New Flyer of America, Inc., an original equipment manufacturer
(OEM), believes the FTA should extend its present exemption for OEM
work performed under warranty, to any work performed by an OEM, whether
under warranty or not. New Flyer suggests that differentiating between
OEM warranty and non-warranty work is an ``artificial distinction''
posing ``substantial cost'' on OEMs that perform overhaul and
rebuilding maintenance work.
--The Washington Metropolitan Area Transit Authority (WMATA) favors
adoption of the rule. It further suggests that FTA add the phrase
``employees and contractors'' to the definition of safety-sensitive
employees and delete the word ``on-going'' before the word ``repairs.''
Discussion
When these rules were first considered in the early 1990s, and
published in February 1994, FTA's underlying assumption was that all
maintenance workers who performed a safety-sensitive function would be
subject to the rules. As noted in the March 1998 NPRM and below, the
1994 Regulatory Impact Analysis assumed all maintenance workers would
be covered by the regulation; at that time, no distinction was made
between routine and ``less routine'' maintenance. In November 1994, the
FTA, through a letter of interpretation, created an exemption to the
rules' general applicability. Under the exemption, workers performing
daily, ``routine'' maintenance would still be subject to the rule,
while those performing what the FTA described as ``less routine'' work,
such as rebuilding and overhauling, were exempt. With this final rule,
FTA reverses its position, because to do so is pro-safety (all
maintenance workers that perform safety-sensitive work should be
subject to the rules) and because similarly situated maintenance
workers will be treated equally.
FTA disagrees with the concerns expressed by the Task Force and
LACMTA. It is not acceptable that contractors, when performing safety-
sensitive work in furtherance of pubic safety, should be exempt from
the rules simply because they are contractors. As noted above, a goal
of this rule is to treat similarly situated employees equally. LACMTA
and the Task Force would have the FTA treat the grantee's own
employees, or a contractor's employees that perform routine work,
differently than a contractor's employee performing rebuilding and
overhaul work. Because both kinds of work (on-going routine maintenance
and rebuilding/overhaul) are safety-sensitive, we see no reason to
distinguish the two.
We agree, though, 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.
FTA disagrees with New Flyer's request that we exempt OEMs
completely from the rules, while requiring other maintenance and
rebuilding workers and contractors to comply with the rules. We also
decline to act on the Amalgamated Transit Union's request that FTA
remove the present OEM warranty exemption. We believe the exemption to
be a balance between the needs of OEMs to control costs, while at the
same time, promoting the safety of the riding public.
FTA intends to keep the phrase ``on-going'' in the definition, as
it appropriately describes the category of repair subject to the rules
(on-going, daily repair). As to the suggestion that the definition of
safety-sensitive include the phrase ``employees and contractors,'' we
note that the rules describe safety-sensitive functions; the rules do
not define safety-sensitive persons.
II. Regulatory Analysis 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
covered by the rules. By interpretation in 1994, 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 eliminate that
exemption. Therefore, the Department certifies that this rule will not
have a significant economic impact on a substantial number of transit
systems; this rule merely restores maintenance workers who overhaul and
rebuild engines, parts, and revenue service vehicles to the pool of
safety-sensitive workers to be 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. The agency has determined
that the requirements of Title II of the Unfunded Mandates Reform Act
of 1995 do not apply to this rulemaking; this rule will 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,
Safety-sensitive, Transportation.
For the reasons set forth in the preamble, FTA is amending Title 49
Code Federal Regulations, parts 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 revising paragraph (4) in the
definition of ``safety-sensitive function'' to read as follows:
Sec. 653.7 Definitions.
* * * * *
Safety-Sensitive Function* * *
(4) Maintaining (including repairs, overhaul, and rebuilding) a
revenue service vehicle or equipment used in revenue service, unless
the recipient receives funding under 49 U.S.C. 5309, is in an area less
than 50,000 in population and contracts out such services, or funding
under 49 U.S.C. 5311 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.
2. Section 654.7 is amended by revising paragraph (4) in the
definition of ``safety-sensitive function'' to read as follows:
Sec. 654.7 Definitions.
* * * * *
Safety-Sensitive Function* * *
(4) Maintaining (including repairs, overhaul, and rebuilding) a
revenue
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service vehicle or equipment used in revenue service, unless the
recipient receives funding under 49 U.S.C. 5309, is in an area less
than 50,000 in population and contracts out such services, or funding
under 49 U.S.C. 5311 and contracts out such services.
* * * * *
Issued on: December 23, 1998.
Gordon J. Linton,
Administrator.
[FR Doc. 99-111 Filed 1-4-99; 8:45 am]
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