Federal Register, Volume 64 Issue 80 (Tuesday, April 27, 1999)

[Federal Register Volume 64, Number 80 (Tuesday, April 27, 1999)]
[Rules and Regulations]
[Pages 22555-22559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10553]

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DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 16

[USCG-1998-4469]
RIN 2115-AF67

Management Information System (MIS) Requirements

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the Management Information System
(MIS) annual reporting requirements for chemical drug testing. The
Office of Management and Budget (OMB) had requested that the Coast
Guard reduce its collection of information effort. This final rule will
exempt certain marine employers from submitting the annual MIS report
and will eliminate the requirement for all marine employers to notify
the Coast Guard when a consortium or other party submits the employer's
annual report.

DATES: This final rule is effective May 27, 1999.

ADDRESSES: Documents as indicated in this preamble are available for
inspection or copying at the Docket Management Facility, (USCG-1998-
4469), U.S. Department of Transportation, room PL-401, 400 Seventh
Street SW., Washington DC 20590-0001. You may also access docket
materials over the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For questions on this rule, contact
Lieutenant Jennifer Ledbetter, Coast Guard, telephone 202-267-0684. For
questions on viewing, or submitting material to the docket, contact
Dorothy Walker, Chief, Dockets, Department of Transportation, telephone
202-366-9329.

SUPPLEMENTARY INFORMATION:

Regulatory History

The Coast Guard published a notice of proposed rulemaking entitled
``Management Information System (MIS) Requirements'' in the Federal
Register on December 24, 1998 [63 FR 71257]. The Coast Guard received
five letters commenting on the proposed rulemaking. No public hearing
was requested, and none was held.
At the close of the comment period for the NPRM, we mailed a letter
to all 82 marine employers who, based on our records, would be exempt
from filing the MIS report this year if the proposal were made final.
The letter extended the MIS report-filing deadline for these employers
by 90 days, to give the Coast Guard time to publish its final rule
before these employers would be required to file their annual report.

Background and Purpose

The Office of Management and Budget (OMB) requested that the Coast
Guard reduce the amount of information collected under the Management
Information System (MIS) annual reporting requirements for chemical
testing data. The required reports provide drug and alcohol testing
information from marine employer chemical testing programs. The Coast
Guard and OMB discussed how to reduce the annual reporting requirements
for chemical drug testing information. The reductions discussed with
OMB are set out in this final rule.

Discussion of Comments

The Coast Guard received five written comments in response to the
notice of proposed rulemaking. All comments were considered in
developing the final rule.
One of the comments made suggestions concerning aspects of chemical
testing not addressed in this rulemaking. Those suggestions have been
forwarded to the program manager for consideration.

Written Notification Requirement

Four of the comments supported (the fifth comment did not address)
the proposal to eliminate the requirement for marine employers in a
drug-testing consortium to notify the Coast Guard in writing that the
consortium will submit the employer's annual MIS report.

Annual MIS Report Submission Requirement

Two of the comments supported the proposal to exempt marine
employers with 10 or fewer employees who have submitted the MIS report
for 3 consecutive years from further submissions of the report.
Three of the comments objected to the proposal to exempt these
marine employers from submitting the MIS report. The comments expressed
concern that the exemption would negatively affect the Coast Guard's
yearly calculations for determination of the random testing rate for
the next year.
The Coast Guard used three years of actual data (1995-1997) to
calculate what the random testing rate would have been if eligible
employers had not submitted reports starting with 1995. We found that
the difference in data attributable to exemption of employers with 10
or fewer employees would not have resulted in a different annual random
rate determination for any of those years. A copy of these calculations
is available in the docket for review.
We are, therefore, adopting the proposed exemption without change
in this final rule.

Discussion of Rule

Part 16 of Title 46 of the Code of Federal Regulations requires all
marine employers to collect chemical drug and alcohol testing data from
their programs. It also requires marine employers to submit this data
to the Coast Guard in an annual MIS report. Specific requirements for
collecting and submitting this data are listed in Sec. 16.500. Marine
employers must submit all chemical drug and alcohol testing data on
Form CG-5573 found in Appendix B of 46 CFR part 16. Section 16.500
allows a consortium or other employer representative to submit the
chemical drug and alcohol testing data for a marine employer. Unless
submitting their own report, marine employers must notify us in writing
each year naming the consortium or other employer representative
submitting the report.
We are incorporating the following changes to our MIS reporting
requirements:
Removing the requirement for marine employers to notify
the Coast

[[Page 22556]]

Guard in writing each year that a consortium or other employer
representative will submit the annual MIS report.
Removing the annual MIS report submission requirement for
marine employers with 10 or fewer employees subject to testing by Part
16 (covered employees) after submission of the third consecutive annual
MIS report.
Reorganizing Sec. 16.500, incorporating these changes and
revising the language for clarity.

Written Notification Requirement

We are removing the written notification requirement in
Sec. 16.500(c) for marine employers included in a consolidated annual
MIS report to inform the Coast Guard of the name of the consortium or
other representative submitting the annual MIS report. Since
consortiums must submit a list of employers included in their annual
MIS report, the individual written notifications are no longer needed.
We can use the consortium lists to determine employer compliance with
the reporting requirements. This change will apply to all marine
employers.

Annual MIS Report Submission Requirement

We are also removing the annual MIS report submission requirement
for marine employers with 10 or fewer covered employees after they have
submitted the annual MIS report (Form CG-5573) for three consecutive
years since January 1, 1996. Marine employers who have already met the
submission requirement for the three preceding years can use the new
exemption this year and each following year during which they have no
more than 10 covered employees.
This final rule will not change the recordkeeping requirement for
marine employers. All marine employers must continue collecting and
keeping the required drug testing data, making it available to the
Coast Guard if requested.

Editorial Changes

We have also made several editorial changes and clarified the
language in Sec. 16.500. We have reorganized and shortened the
paragraphs and simplified the regulatory language. None of these
editorial changes substantively change existing requirements.
The two substantive changes to the MIS reporting requirements will
reduce the reporting burden on marine employers but will still ensure
that we receive adequate chemical testing data for analysis and program
management.

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 11040; February 26, 1979).

Written Notification Requirement

This rule removes the written notification requirement for marine
employers using a consortium or other party to submit their annual MIS
reports. Marine employers using a consortium or other representative to
file annual MIS reports will no longer need to submit written
notification to the Coast Guard.
According to current MIS data, 7,150 marine employers are members
of consortiums. The cost of each written notification is approximately
$12 (15 minutes of administrative time at $45 per hour to draft the
written notification). This change will reduce the employer reporting
burden by a total of 5,361 hours and $241,313 for 3 years.

Annual MIS Report Submission Requirement

This rule removes the annual MIS report (Form CG-5573) submission
requirement for marine employers with 10 or fewer covered employees who
submit an individual annual MIS report, and who have submitted the
required MIS reports for three consecutive years since January 1, 1996.
The estimated response burden for each MIS form submitted is calculated
at $45 per hour, with each form averaging about one hour to complete.
The MIS data from 1994 through 1997 indicated an average of 885 forms
submitted annually to the Coast Guard. The forms represent 860
individual employer submissions and 25 consortium submissions
consolidating data for 7,150 employers.
The 1997 MIS data indicated that 354 of the 885 forms received were
submitted by employers with 10 or fewer covered employees. We are
removing the annual MIS report submission requirement for marine
employers with 10 or fewer covered employees who have filed the report
for three consecutive years since January 1, 1996. Of the 354
employers, 82 have filed three consecutive annual MIS reports since
January 1, 1996, and will not need to submit an annual MIS report in
1999. These marine employers will also be exempt from submitting the
annual MIS report each following year during which they have no more
than 10 covered employees. An additional 92 marine employers will be
qualified for the exemption in 2000 and the remaining 180 will be
qualified for exemption in 2001.
This exemption will result in the following costs during the first
three years for the MIS form submission for employers with 10 or fewer
covered employees: Initial year, 272 forms (354-82) x $45 = $12,240,
the second reporting year, 180 forms (272-92) x $45 = $8,100, and the
final reporting year will have no costs.
The total reporting burden for the remaining 531 forms from
consortiums (25 forms) and employers (506 forms) with 11 or more
covered employees will cost $23,895 annually. The three-year cost will
be $71,685 ($23,895 x 3 years). Combined with the costs for 10 or
fewer covered employees of $20,340, results in a cost of $92,025
($20,340 + $71,685).
The total recordkeeping costs for MIS requirements will not change
and will remain at $39,825 annually. The three-year cost will be
$119,475 ($39,825 x 3 years). The total costs to the marine industry
for the three year period will be $211,500 [$92,025 (reporting) +
$119,475 (recordkeeping)].
The following table summarizes the reporting and recordkeeping
burden for Subcategory III by the end of 3 years.

MIS Burden Summary
----------------------------------------------------------------------------------------------------------------
Notification Total burden hours
Year Employer category Annual MIS report letter Recordkeeping and costs
----------------------------------------------------------------------------------------------------------------
Hours: 803 hrs .................. Hours: 885 hrs Burden Hours:
Costs: $36,135 Costs: $39,825 1,688 hrs.
Costs: $75,960.
1............ 10 272 forms x $45/ Letters: 0 .................. ..................
employees. hour Requirement
Removed
11 506 forms x $45/ .................. .................. ..................
employees. hour
Consortiums...... 25 forms x $45/ .................. .................. ..................
hour

[[Page 22557]]

Hours: 711 hrs .................. Hours: 885 hrs Burden Hours:
Costs: $31,995 Costs: $39,825 1,596 hrs.
Costs: $71,820.
2............ 10 180 forms x $45/ Letters: 0 No Change ..................
employees. hour Requirement
Removed
11 506 forms x $45/ .................. .................. ..................
employees. hour
Consortiums...... 25 forms x $45/ .................. .................. ..................
hour
Hours: 531 hrs .................. Hours: 885 hrs Burden Hours:
Costs: $23,895 Costs: $39,825 1,416 hrs.
Costs: $63,720.
3............ 10 0 forms x $45/ Letters: 0 No Change ..................
employees. hour Requirement
Removed
11 506 forms x $45/ .................. .................. ..................
employees. hour
Consortiums...... 25 forms x $45/ .................. .................. ..................
hour
.................. .................. .................. 3-Year Total:
Burden Hours:
4,700 hrs.
Costs: $211,500.
----------------------------------------------------------------------------------------------------------------

The cost to the Coast Guard for each MIS report submitted is
calculated at approximately $15 per report. Each report averages about
$15 to review, collate, and file this information with the responsible
research center. This costs the Coast Guard about $30,675 (2,045
reports submitted x $15) for the 3-year period.

Summary of Benefits

This final rule removes the written notification requirement in
Sec. 16.500 for marine employers who do not submit their own annual MIS
report to inform the Coast Guard in writing the name of the consortium
or other representative submitting their annual MIS report. Marine
employers using a consortium or other representative to file annual MIS
reports will no longer need to submit written notification to the Coast
Guard. According to current MIS data, 7,150 marine employers are
members of consortiums. This final rule will reduce the employer
reporting burden by a total of 5,361 hours (1,787 hours per year) and
$241,313 ($80,438 per year). This final rule removes the annual notice
requirement for all marine employers who report through their
respective consortium. The rule will also reduce the reporting
requirement for all marine employers of 10 or fewer covered employees
to submit the annual MIS form for chemical and drug testing data.
This final rule will reduce the employer reporting burden hours by
a total of 5,715 hours (5,361 Notification Letter 43 354 MIS Report) at
$257,243 ($241,313 Notification Letter 43 $15,930 MIS Report) by the
end of 3 years.
This final rule will also benefit the marine industry by reducing
the reporting requirements for certain marine employers by 40%. By
exempting those employers with 10 or fewer covered employees who have
provided the required MIS reports for three consecutive years since
January 1, 1996, industry will save $15,930 in reporting costs for the
three-year period.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard considered whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include small businesses, not-for-profit organizations that
are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.
This rule will only affect small entities by reducing their annual
reporting burden. The MIS data indicates how many employees are subject
to chemical drug testing, not the total number of employees. However,
those marine employers with 10 or fewer employees are most likely
considered small entities. This rule will reduce the reporting burden
and will not create an additional burden for this group or any other
marine employers. This final rule will reduce the employer reporting
burden hours by a total of 5,715 hours (5,361 Notification Letter 43
354 MIS Report) at $257,243 ($241,313 Notification Letter 43 $15,930
MIS Report) by the end of 3 years.
This rule will result in a maximum savings, each year, for small
entities of one hour and 15 minutes of administrative time valued at
$57.
Therefore, the Coast Guard certifies under section 605(b) of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this final rule
will not have a significant economic impact on a substantial number of
small entities.

Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard
offered to assist small entities in understanding the rule so that they
could better evaluate its effects on them and participate in the
rulemaking process. We received no comments raising small entity
issues.
The Small Business and Agriculture Regulatory Enforcement Ombudsman
and 10 Regional Fairness Boards were established to receive comments
from small businesses about Federal agency enforcement actions. The
Ombudsman will annually evaluate the enforcement activities and rate
each agency's responsiveness to small business. If you wish to comment
on the enforcement actions of the Coast Guard, call 1-888-REG-FAIR (1-
888-734-3247).

Collection of Information

This final rule provides for a collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). As defined in
5 CFR 1320.3(c), ``collection of information'' includes reporting,
recordkeeping, monitoring, posting, labeling, and other, similar
actions. The title and description of the information collections, a
description of the respondents, and an estimate of the total annual
burden follow. Included in the estimate is the time for reviewing
instructions, searching existing sources of data, gathering and
maintaining the data needed, and completing and reviewing the
collection.

[[Page 22558]]

Title: Collection of Commercial Vessel and Personnel Accident
(Marine Casualty) Information and Programs for Chemical Drug & Alcohol
Testing of Commercial Vessel Personnel, including Required Drug and
Alcohol Testing following a Serious Marine Accident
Summary of the Collection of Information: 46 U.S.C. 6101 authorizes
the Coast Guard to prescribe regulations for the annual MIS reporting
requirements for chemical drug testing. Section 16.500 contains the
requirement for all marine employers to collect chemical drug and
alcohol testing data for their employees. All marine employers must
submit this data to the Coast Guard in an annual MIS report. Marine
employers must submit all chemical drug and alcohol testing data on
Form CG-5573 found in Appendix B of 46 CFR Part 16. This final rule
will eliminate the annual MIS report submission requirement for
employers with 10 or fewer covered employees who have provided the
required MIS reports for three consecutive years since January 1, 1996.
The annual burden of the MIS reporting requirements to industry was
developed from employer size, employer reports, and type of submitter.
The annual burden estimates are based on data from 1994 through 1997.
In 1997 the Coast Guard received 354 individual reports from employers
with 10 or fewer covered employees. This rule will exempt these marine
employers (following their third consecutive submission) from
submitting the annual MIS report each following year during which they
have no more than 10 covered employees. This will result in a total
annual reporting burden reduction of 354 hours with a 40% reduction in
the number of forms submitted to the Coast Guard with only a 4%
reduction in data.
After employers with 10 or fewer covered employees are exempted,
the annual average reporting burden is 531 reports representing 7,656
employers. This consists of 506 reports from employers with 11 or more
employees and 25 reports from consortiums representing approximately
7,150 employers.
Need for Information: The requirement to submit MIS information
will help meet the goal of knowing the location of all marine employers
and ensuring complete compliance with drug testing regulations.
Proposed Use of Information: The Coast Guard will utilize this
information to identify significant trends of drug abuse in the marine
industry through program implementation.
Description of the Respondents: Consortia and independent marine
employers who collect and submit chemical and drug testing data for
their employees.
Number of Respondents: 7,656 marine employers who collect and
submit chemical and drug testing data for their employees.
Frequency of Response: Affected marine employers are required to
submit anti-drug program reports on an annual basis.
Burden of Response: All marine employers must submit data from
their chemical testing program to the Coast Guard in the annual MIS
report (Form CG-5573). A consortium or other employer representative
may submit the data for a marine employer. After submission of the
third annual MIS report, this rulemaking will reduce the reporting
requirement for all marine employers with 10 or fewer covered employees
by not requiring them to submit the annual MIS form for chemical drug
and alcohol testing data for succeeding years during which they had no
more than 10 covered employees.
Estimated Total Annual Burden: 7,656 marine employers.
As required by 5 U.S.C. 3507(d), the Coast Guard submitted a copy
of this rule to the Office of Management and Budget (OMB) for its
review of the collection of information. OMB has approved the
collection. The section number is 16.500, and the corresponding
approval number from OMB is OMB Control Number 2115-0003, which expires
on January 31, 2002.
Persons are not required to respond to a collection of information
unless it displays a currently valid OMB control number.

Federalism

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

Environment

The Coast Guard considered the environmental impact of this final
rule and concluded that, under figure 2-1, paragraph (34)(a) of
Commandant Instruction M16475.1C, this final rule is categorically
excluded from further environmental documentation. The final rule will
exempt certain marine employers from submitting the annual MIS report
for chemical drug testing and will eliminate the requirement for
written notification. The final rule makes only administrative changes
to a currently approved information collection for the annual MIS
report. A ``Categorical Exclusion Determination'' is available in the
docket for inspection or copying where indicated under ADDRESSES.

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) [Pub.
L. 104-4, 109 Stat. 48] requires Federal agencies to assess the effects
of certain regulatory actions on State, local, and tribal governments,
and the private sector. UMRA requires a written statement of economic
and regulatory alternatives for rules that contain Federal mandates. A
``Federal mandate'' is a new or additional enforceable duty imposed on
any State, local, or tribal government, or the private sector. If any
Federal mandate causes those entities to spend, in the aggregate, $100
million or more in any one year, the UMRA analysis is required. This
rule does not impose Federal mandates on any State, local, or tribal
governments, or the private sector.

Other Executive Orders on the Regulatory Process

In addition to the statutes and Executive Orders already addressed
in this preamble, the Coast Guard considered the following executive
orders in developing this rule and reached the following conclusions:
E.O. 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights. This rule will not effect a
taking of private property or otherwise have taking implications under
this Order.
E.O. 12875, Enhancing the Intergovernmental Partnership. This rule
will not impose, on any State, local, or tribal government, a mandate
that is not required by statute and that is not funded by the Federal
government.
E.O. 12988, Civil Justice Reform. This rule meets applicable
standards in sections 3(a) and 3(b)(2) of this Order to minimize
litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks. This rule is not an economically significant rule and
does not concern an environmental risk to safety disproportionately
affecting children.

List of Subjects in 46 CFR Part 16

Chemical testing, Data collection, Data reporting.

[[Page 22559]]

For the reasons discussed 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. Revise Sec. 16.500 to read as follows:

Sec. 16.500 Management Information System requirements.

(a) Data collection. All marine employers must collect the
following drug and alcohol testing program data for each calendar year:
(1) Total number of employees during the calendar year that were
subject to the drug testing rules in this part.
(2) Number of employees subject to testing under the anti-drug
rules of both the Coast Guard and another DOT agency based on the
nature of their assigned duties as identified by each agency.
(3) Number of drug and alcohol tests conducted identified by test
type. Drug test types are pre-employment, periodic, random, post-
accident, and reasonable cause. Alcohol test types are post-accident
and reasonable cause.
(4) Number of positive drug test results verified by a Medical
Review Officer (MRO) by test type and types of drug(s). Number of
alcohol tests resulting in a blood alcohol concentration weight of .04
percent or more by test type.
(5) Number of negative drug and alcohol test results reported by
MRO by test type.
(6) Number of applicants denied employment based on a positive drug
test result verified by an MRO.
(7) Number of marine employees with a MRO-verified positive test
result who returned to duty in a safety-sensitive position subject to
required chemical testing, after meeting the requirements of
Sec. 16.370(d) and part 5 of this chapter.
(8) Number of marine employees with positive drug test results
verified by a MRO as positive for one drug or a combination of drugs.
(9) Number of employees required under this part to be tested who
refused to submit to a drug test.
(10) Number of covered employees and supervisory personnel who
received the required initial training.
(b) Data reporting. (1) By March 15 of the year following the
collection of the data in paragraph (a) of this section, marine
employers must submit the data on Form CG-5573 to Commandant (G-MOA),
2100 Second Street, SW, Washington, DC, 20593-0001. Marine employers
must complete all data fields on the form.
(2) Form CG-5573 is reproduced in Appendix B of this part and you
may obtain the form from any Marine Inspection Office. You may also
download a copy of Form CG-5573 from the U.S. Coast Guard Marine Safety
and Environmental Protection web site at http://www.uscg.mil/hq/g-
m.html.
(3) A consortium or other employer representative may submit data
for a marine employer. Reports may contain data for more than one
marine employer. Each report, however, must list the marine employers
included in the report.
(4) Marine employers must ensure that data submitted by a
consortium or other employer representative under paragraph (b)(3) of
this section is correct.
(c) After filing 3 consecutive annual MIS reports since January 1,
1996, required by paragraph (b) of this section, marine employers with
10 or fewer covered employees may stop filing the annual report each
succeeding year during which they have no more than 10 covered
employees.
(d) Marine employers who conduct operations regulated by another
Department of Transportation Operating Administration must submit
appropriate data to that Operating Administration for employees subject
to that Operating Administration's regulations.

Dated: April 18, 1999.
R. C. North,
Assistant Commandant for Marine Safety and Environmental Protection.
[FR Doc. 99-10553 Filed 4-26-99; 8:45 am]
BILLING CODE 4910-15-P