[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Rules and Regulations]
[Pages 66612-66613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32028]



[[Page 66612]]

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DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 16

[CGD 95-011]
RIN 2115-AF02


Programs for Chemical Drug and Alcohol Testing of Commercial 
Vessel Personnel; Implementation of Drug Testing in Foreign Waters

AGENCY: Coast Guard, DOT.

ACTION: Interim rule; request for comments.

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SUMMARY: This rule establishes January 2, 1997 as the effective date 
for implementation of chemical drug testing of persons onboard U.S. 
vessels in waters subject to the jurisdiction of a foreign country. 
However, industry will have until July 1, 1997 to implement the 
required testing. The rule also provides for exemption from testing 
requirements when compliance would violate the domestic laws or 
policies of another country. The Coast Guard is requesting public 
comment on this interim rule.

DATES: This rule is effective on January 2, 1997. Section 16.207 must 
be implemented on or before July 1, 1997. Comments must be received 
before February 18, 1997.

ADDRESSES: Comments may be mailed or delivered to Executive Secretary, 
Marine Safety Council (G-LRA/3406), U.S. Coast Guard Headquarters, 2100 
Second Street SW., room 3406, Washington, DC 20593-0001. Unless 
otherwise indicated, comments and other documents referred to in this 
preamble are available for inspection or copying in room 3406 at the 
above address between 9:30 a.m. and 2 p.m., Monday through Friday, 
except Federal holidays The telephone number is (202) 267-1477.

FOR FURTHER INFORMATION CONTACT:
Lieutenant Jennifer Ledbetter, Project Manager, Marine Investigation 
Division (G-MOA-1), Office of Marine Safety, Security and Environmental 
Protection, (202) 267-0684.

SUPPLEMENTARY INFORMATION:

Background and Purpose

    On November 21, 1988, the Coast Guard, along with other agencies of 
the Department of Transportation (DOT), promulgated regulations 
requiring pre-employment, periodic, post-accident, reasonable cause, 
and random drug testing of U.S. crewmembers on U.S. vessels (53 FR 
47079). The final rule provided that the testing requirements of 46 CFR 
part 16 did not apply to any person for whom compliance with the rules 
would violate the domestic laws or policies of another country. The 
effective date of part 16 with respect to any person onboard U.S. 
vessels in waters subject to the jurisdiction of a foreign government 
was delayed until January 1990.
    The preamble to the rule stated that DOT and other agencies of the 
government would enter into discussions with foreign governments to 
attempt to resolve any conflict between our chemical testing rules and 
foreign government laws or policies. The Coast Guard also stated that 
if, as a result of those discussions, it was found that amendments to 
the rule were necessary, timely amendments would be issued. 
Subsequently, a rule was published on December 27, 1989 (54 FR 53286) 
delaying implementation of chemical testing for persons onboard U.S. 
vessels in waters subject to the jurisdiction of a foreign government 
until January 2, 1992. A final rule was published on April 24, 1991, 
delaying the implementation date to January 2, 1993 (56 FR 18982); a 
final rule was published on July 14, 1992, delaying the implementation 
date to January 2, 1995 (57 FR 31274); a final rule was published on 
December 20, 1994, delaying the implementation date to January 2, 1996 
(59 FR 65500); and a final rule was published on December 28, 1995, 
delaying the implementation to January 2, 1997 (60 FR 67062). These 
rules did not prohibit employers from conducting chemical testing of 
U.S. personnel in foreign waters, they simply delayed the requirement 
for such testing in those areas. Many companies continued to test 
mariners in foreign waters under company policy. To this date, there 
have been no reports of conflicts with foreign laws resulting from that 
testing
    On August 21, 1995, the Coast Guard published a Notice of Proposed 
Rulemaking (NPRM) proposing to revise 46 CFR 16.207 to provide that 
U.S. drug testing requirements would not apply in waters subject to the 
jurisdiction of a foreign government. The proposal would have ensured 
that Coast Guard drug testing regulations did not conflict with foreign 
law or policy and would have resulted in no change to the then current 
applicability of the drug testing requirements.

Discussion of Comments and Changes

    Eight comments were received in response the NPRM. Only one comment 
supported the proposal. That comment supported the proposed rule 
because it would remove the conflict regarding jurisdiction within 
waters that are subject to foreign government control.
    The remaining seven comments opposed their proposal in the NPRM for 
several reasons. One stated reason was that the proposed rule would 
prevent them (employers) from testing while in foreign waters. This was 
a misinterpretation common to most of the comments opposing the 
proposal. Neither the original final rule, which contained, a delay of 
implementation date, nor the proposed rule, which would have eliminated 
the testing requirement entirely, would in any way prohibit an employer 
from conducting chemical drug testing on employees. Only the 
requirement to test was delayed or removed.
    One comment stated that the existence of federal requirements is a 
critical component in its desire to identify substance abusers. Another 
comment strongly supported the goal of a drug-free workplace and viewed 
testing as a key component in that effort. The proposed rule appeared 
to them to exempt a substantial number of U.S. seamen from coverage 
under essential elements of the testing program and was perceived as 
sending a confusing message to the maritime industry, particularly 
those U.S. seamen who work in foreign waters. The comments did not 
support any lessening of the chemical testing requirements because 
doing so would advise a substance abuser that once they go foreign they 
are free of the possibility of being tested.
    Another issue raised consistently by the comments was the 
discrepancy between the proposed removal of testing requirements of 
part 16, but not in part 4 (post-casualty testing requirements). The 
comments correctly noted that if a casualty occurred in waters subject 
to the jurisdiction of a foreign country that drug and alcohol testing 
was required by 46 CFR part 4.
    All the comments that supported requiring chemical testing in 
foreign waters requested that a clause be included in the regulations 
that would allow for an exemption from testing when there is an actual 
conflict with a foreign law or policy. The Coast Guard agrees. Based on 
the lack of any problems experienced by companies presently conducting 
chemical testing in foreign waters and based on the comments expressing 
a need for testing requirements wherever a vessel might be, the Coast 
Guard has decided to retain the original requirements for chemical 
testing of U.S. crewmembers onboard U.S. vessels within waters that are 
subject to the jurisdiction of a foreign government and to make this 
provision effective on January 2, 1997.

[[Page 66613]]

The rule also adds a provision under which the Coast Guard will 
consider waivers, on a case by case basis, when an actual conflict with 
a foreign law or policy is brought to our attention.
    Under 5 U.S.C.(d), the Coast Guard finds good cause why this rule 
should be made effective in fewer than 30 days after date of 
publication. Although the effective date of the rule is January 2, 
1997, the Coast Guard recognizes that there may be a need for an 
implementation period. Therefore, employees will have until July 1, 
1997 to implement the final rule on U.S. vessels in waters subject to 
the jurisdiction of a foreign country.
    Although the changes in this rule are responsive to and fully 
supported by the comments received, the Coast Guard is offering a 
period for submission of additional comments. This rule is being 
published as an interim rule with a 60-day comment period. This action 
will implement the testing requirements without further temporary 
delays as in past years, but will allow the regulated employers to 
review and comment on the rule before it is adopted as final. Comments 
should be mailed to the Executive Secretary, Marine Safety Council, at 
the address under ADDRESSES.

Regulatory Evaluation

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and does not require an 
assessment of potential costs and benefits under section 6 (a)(3) of 
that order. It has not been reviewed by the Office of Management and 
Budget under that Order. It is not significant under the regulatory 
policies and procedures of the Department of Transportation (DOT) (44 
FR 11034 (February 26, 1979)). The Coast Guard acknowledges that there 
are companies whose current policy is not to conduct chemical testing 
in waters subject to a foreign government. To implement such testing 
now would increase their operating expenses. This ``increase'', 
however, was part of the costs evaluated in the original rulemaking and 
deferred to this time because of the numerous delays in implementing 
testing in foreign waters. The economic impact of these changes is so 
minimal that further evaluation is not necessary. This final rule 
implements the effective date for compliance with Coast Guard 
regulations governing chemical testing, insofar as those regulations 
would require testing of persons onboard U.S. vessels in waters that 
are subject to the jurisdiction of a foreign government.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this proposal will have a significant 
economic impact on a substantial number of small entities. ``Small 
entities'' may include (1) small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their field and (2) governmental jurisdictions with 
populations of less than 50,000. The Coast Guard certifies under 5 
U.S.C. 605(b) that this final rule will not have a significant economic 
impact on a substantial number of small entities. If, however, you 
think that your business or organization qualifies as a small entity 
and that this proposal will have a significant economic impact on your 
business or organization, please submit a comment (see ADDRESSES) 
explaining why you think it qualifies and in what way and to what 
degree this proposal will economically affect it.

Collection of Information

    This rule contains no new collection of information requirements 
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Federalism

    The Coast Guard has analyzed this rule in accordance with the 
principles and criteria contained in Executive Order 12612 and has 
determined that it does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that, under section 2.B.2. of Commandant Instruction 
M16475.1B, this rule is categorically excluded from further 
environmental documentation. A ``Categorical Exclusion Determination'' 
is available in the docket for inspection or copying where indicated 
under ADDRESSES.

List of Subjects in 46 CFR Part 16

    Drug testing, Marine safety, Reporting and recordkeeping 
requirements, Safety, Transportation.

    For the reasons set forth in the preamble, the Coast Guard amends 
46 CFR part 16 as follows:

PART 16--CHEMICAL TESTING

    1. The authority citation for part 16 continues to read as follows:

    Authority: 46 U.S.C. 2103, 3306, 7101, 7301, and 7701; 49 CFR 
1.46.

    2. Section 16.207 is revised to need as follows:


Sec. 16.207  Conflict with foreign laws.

    (a) This part applies to the testing of all U.S. crewmembers 
onboard U.S. vessels operating in waters that are subject to the 
jurisdiction of a foreign government on and after January 2, 1997; 
however, implementation may be delayed until July 1, 1997.
    (b) Employers for whom compliance with this part would violate the 
domestic laws or policies of another country may request an exemption 
from the drug testing requirements of this part by submitting a written 
request to Commandant (G-MOA), at the address listed in Sec. 16.500(a).

    Dated: December 9, 1996.
J.C. Card,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety 
and Environmental Protection.
[FR Doc. 96-32028 Filed 12-17-96; 8:45 am]
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