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

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

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

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] BILLING CODE 4910-57-M