Robert D. Elder, Director
Ports and Marine
Maine Department of Transportation
State House Station 16
Augusta, Maine 04333-0016

RE: Application of continuing Federal interest Under 49 CFR Parts 653 and 654; effective date

Dear Mr. Elder:

Thank you for your recent letter asking about an issue in connection with the Federal Transit Administration's (FTA) drug and alcohol testing regulations.

Background

Those rules require a recipient of funds under section 3, 9, or 18 of the Federal Transit Act, as amended, or under section 103(e)(4) of title 23 of the U.S. Code (the interstate transfer program), to implement a program requiring safety-sensitive employees to be tested for five controlled substances and for the misuse of alcohol. The regulations were published in the Federal Register on February 15, 1994, at 59 FR 7531 et seq. (49 CFR Parts 653 and 654.) Large transit operators must implement the drug and alcohol rules beginning on January 1, 1995, while small transit operators must begin implementation on January 1, 1996.

Issue

In your letter you state that the Maine Department of Transportation recently purchased, with an FTA section 3 grant, several ferry vessels that have a useful life of thirty years. In a subsequent phone conversation with an attorney in this office, you indicated that the vessels were purchased several years ago, specifically in 1987, 1991, and 1992. Because the vessels were purchased before the implementation date of the rules, you ask whether the regulations apply to this particular grant.

Ruling

The FTA's drug and alcohol testing regulations apply to relevant funds obligated by the agency on or after March 17, 1994, the effective date of the rules. On the basis of the facts you have provided, the regulations do not apply to this particular grant because FTA obligated the grant funds before March 17, 1994. This is the case even though the useful life of the vessels extends well beyond that date.

It is important to note, however, that the ferry operator would be required to comply with the rules if, after March 16, 1994, FTA were to obligate capital or operating assistance funds for the project under section 3, 9, or 18 of the Federal Transit Act, as amended.

We further note that the United States Coast Guard also has jurisdiction over ferry operators and has drug and alcohol regulations currently in effect. These regulations, found in 33 CFR part 95 and 46 CFR parts 4, 5, and 16, may apply to the State of Maine.

Sincerely,
(Signed)
Berle M. Schiller
Chief Counsel