[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
