Martin P. Hogan, Esq.
Gromfine and Taylor, P.C.
1727 King Street, Suite 210
Alexandria, VA 22314

Dear Mr. Hogan:

Thank you for your request for guidance on behalf of your client, Local 689 of the Amalgamated Transit Union (ATU). You ask if Washington Metropolitan Area Transit Authority's (WMATA) proposal to remove escalator and elevator mechanics from its list of employees who perform a safety-sensitive function violates the Federal Transit Administration's (FTA) drug and alcohol regulation. For the reasons below, I have determined that WMATA's proposal, if adopted, would not violate the regulation.

You state that, particularly for WMATA, elevators and escalators are the primary means that the public uses to access [rail] revenue service vehicles. You assert that WMATA should continue to classify elevator and escalator maintenance as a safety-sensitive function in the interest of public safety. Emphasizing FTA's final rule, which amended the definition of safety-sensitive function to include, "maintaining a revenue service vehicle or equipment used in revenue service," you believe that elevators and escalators are equipment used in revenue service. 64 FR 426 (January 5, 1999).

FTA proposed amending the definition of safety-sensitive function in a rulemaking published in the Federal Register. 63 FR 10183 (March 2, 1998). The preamble of the proposed rule noted that the amendment's purpose was to subject contract maintenance workers, including those engaged in engine and parts rebuilding and overhaul, to the drug and alcohol regulation. Id. The phrase you rely on, "equipment used in revenue service," which was adopted in the final rule, refers to the repair and maintenance of components and parts of a revenue service vehicle. See id. at 10184, FTA's Response, second paragraph. Since equipment such as elevators and escalators is not within the scope of the rule, WMATA's proposed reclassification would not violate FTA's drug and alcohol regulation.

FTA's longstanding policy of requiring an employer to classify which employees perform safety-sensitive functions is not affected by the amended rule. See 59 FR 7544 and 7584 (February 15, 1994). Inherent in this policy is an employer's ability to review and amend its classification of safety-sensitive functions. I note that although elevator and escalator maintenance is beyond the scope of the amended rule, it does not preclude WMATA and ATU from negotiating the issue of testing mechanics under authority other than FTA's. See 655.14 and 655.17.

If you have additional questions, please contact Bruce Walker of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Gregory B. McBride
Acting Chief Counsel