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

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]

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