[Federal Register Volume 66, Number 83 (Monday, April 30, 2001)]
[Proposed Rules]
[Pages 21502-21506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9411]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Parts 4, 5, and 16
[USCG-2000-7759]
RIN 2115-AG00
Chemical Testing
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to revise its chemical drug
testing regulations to conform with the Department of Transportation's
(DOT) final rule on drug testing procedures published in the
Federal Register on December 19, 2000. The Coast Guard proposes
to amend the regulations on Marine Casualties and Investigations and
Chemical Testing by removing obsolete sections and sections duplicating
the DOT regulations; adding new definitions; and modifying existing
text to incorporate new terms and procedures contained in the DOT
procedural requirements. This rulemaking would conform Coast Guard
rules to the new requirements established by the December 19, 2000, DOT
final rule.
DATES: Comments and related material must reach the Docket
Management Facility on or before June 29, 2001.
ADDRESSES: To make sure that your comments and related material
are not entered more than once in the docket, please submit them by
only one of the following means:
(1) By mail to the Docket Management Facility (USCG-2000-7759),
U.S. Department of Transportation, room PL-401, 400 Seventh Street SW.,
Washington, DC 20590-0001.
(2) By delivery to room PL-401 on the Plaza level of the Nassif
Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
(3) By fax to the Docket Management Facility at 202-493-2251.
(4) Electronically through the Web Site for the Docket Management
System at http://dms.dot.gov.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
will become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza level of the Nassif Building, 400
Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. You may also find this docket
on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
proposed rule, call LT Jennifer Ledbetter, Coast Guard, telephone 202-
267-0684. If you have questions on viewing or submitting material to
the docket, call Dorothy Beard, Chief, Dockets, Department of
Transportation, telephone 202-366-9329.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (USCG-2000-
7759), indicate the specific section of this document to which each
comment applies, and give the reason for each comment. You may submit
your comments and material by mail, hand delivery, fax, or electronic
means to the Docket Management Facility at the address under
ADDRESSES; but please submit your comments and material by only
one means. If you submit them by mail or hand delivery, submit them in
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the Docket Management Facility at the address under
ADDRESSES explaining why one would be beneficial. If we
determine that one would aid this rulemaking, we will hold one at a
time and place announced by a later notice in the Federal
Register.
Background and Purpose
On December 19, 2000 (65 FR 79462), the Department of
Transportation (DOT) published a comprehensive revision to their drug
and alcohol testing procedural rules (49 CFR Part 40). The revised Part
40 makes numerous changes in the way that drug and alcohol testing will
be conducted in the future. While some provisions of the new rule will
be made effective more quickly, as amendments to the existing Part 40,
the entire revised part is scheduled to go into effect on August 1,
2001.
Part 40 is one element of a One-DOT set of regulations designed to
deter and detect the use of illegal drugs and the misuse of alcohol by
employees performing safety-sensitive transportation functions. DOT has
published a summary of the major changes affecting the modal drug
testing rules. These major changes include changes to the ``return to
duty'' process (49 CFR 40.21); a requirement that all modes collect
``split specimens'' for drug testing (49 CFR 40.71 and subpart H); a
new DOT process for employers to request waiver of the policy against
stand down of employees pending completion of the test verification
process (49 CFR 40.21); changes in qualifications and training
requirements for testing personnel, medical review officers, and other
technicians and substance abuse professionals (49 CFR 40.33,121 and
281); revised role of consortium/third-party administrators (C/TPA) (49
CFR 40.345 and 347); and a requirement that employers check
[[Page 21503]]
with previous employers for drug and alcohol testing results of
applicants for safety sensitive jobs (49 CFR 40.25).
It is important that the six DOT agency rules that cover specific
transportation industries be consistent with the revised Part 40 to
avoid duplication, conflict, or confusion among DOT regulatory
requirements. For these reasons, the Coast Guard is proposing revisions
to our drug and alcohol testing regulations affected by Part 40. We
intend to issue final versions of these ``conforming amendments'' in
time to be effective on August 1, 2001, the same date that the revised
Part 40 takes effect.
There are several changes that we propose to make to ensure
consistency with the revised Part 40. The next section of this preamble
discusses each of these items in turn.
Discussion of Proposed Rule
The Coast Guard proposes to revise its chemical drug testing
regulations to conform with the Department of Transportation's (DOT)
final rule on drug testing procedures published on December 19, 2000
Federal Register (65 FR 79462). This NPRM would conform Coast
Guard rules to the new requirements established today by 49 CFR Part
40. The Coast Guard proposes to revise 46 CFR Parts 4, 5, and 16 by
removing obsolete sections and sections duplicating the DOT
regulations; adding new definitions; and modifying existing text to
incorporate new terms and procedures contained in the DOT procedural
requirements
Some new DOT requirements, such as the requirement for split
specimens, can be implemented without a revision or conforming
amendment to Coast Guard regulations. In this case, the requirement is
in 49 CFR Part 40, and our regulations require employers to follow the
procedures in that part when conducting required chemical tests for
dangerous drugs.
The DOT revisions include new qualification and training
requirements for Medical Review Officers (MROs) and Substance Abuse
Professionals (SAPs). The Coast Guard is not proposing to change the
current dual role of the MRO in the return-to-duty decision process.
However, where an individual performs both SAP and MRO functions, Part
40 requires the individual to meet the qualification and training
requirements for individuals performing each of these functions. We
request comments on how these changes should be implemented by the
Coast Guard. Should an MRO, in order to perform SAP functions,
separately have to meet the SAP training requirements? Should
fulfillment of the MRO training requirements satisfy the requirements
for SAP training? Should the MRO, performing what are called SAP
functions in Part 40, have to follow the same Part 40 procedures as
SAPs in the return to duty process?
Other DOT changes, such as the minimum number of follow-up drug
tests required during the first year after return to work in a safety-
sensitive position, would require a conforming amendment to add this
requirement to our existing regulatory text.
The following is a brief discussion of how the Coast Guard proposes
to amend its regulations affected by DOT's final rule.
46 CFR Part 4
Throughout this part, we propose to update cross-references to
point to the revised sections in 49 CFR Part 40 and the proposed
revisions to 46 CFR Part 16.
46 CFR Part 5
Table 5.569. We propose to clarify the Table of Appropriate Orders
in Sec. 5.569 to distinguish between a Chemical test for dangerous
drugs and for alcohol, because Part 40 treats them separately.
46 CFR Part 16
Definitions. We propose to change some definitions in Sec. 16.105
by removing terms that are no longer used in 46 CFR Part 16 or 49 CFR
Part 40; by revising terms to conform to the definitions in 49 CFR Part
40; and by adding terms found in 49 CFR Part 40 that are currently not
found in 46 CFR Part 16.
New Sections
We would add Sec. 16.107 Waivers. This section would
contain existing waivers as well as the new DOT waiver for stand-down
of crewmembers following a confirmed positive test.
We propose adding a Sec. 16.109 describing DOT's new Public
Interest Exclusion (PIE) in 49 CFR Part 40, subpart R.
We propose adding Sec. 16.115 Penalties. to inform the
public of the penalties prescribed by 46 U.S.C. 2115 for violation of
dangerous drug and alcohol testing regulations.
We also propose adding Sec. 16.203 Employer responsibilities.
to restate DOT's general requirements for employers in 49 CFR Part
40, subpart B.
Revisions
Section 16.201 Application. In Sec. 16.201 we propose
revising paragraph (a) by requiring all chemical drug tests to be
conducted as detailed in the procedures found in 49 CFR 40. We would
revise paragraph (c) to require a sponsoring organization, like
employers and prospective employers, to report a mariner's positive
chemical drug test to the nearest Coast Guard Officer in Charge, Marine
Inspection. We would update the cross-reference to Sec. 16.370 in
paragraph (e).
Section 16.207 Conflict with foreign laws. We propose to
remove the section heading and paragraph (a) of this section because it
is obsolete. The delayed date for testing vessels operating in foreign
jurisdictions has expired and this paragraph is no longer needed.
Section 16.260 Records. We propose to revise
Sec. 16.260(a) by adding a cross-reference to DOT recordkeeping
requirements in 49 CFR 40.333.
Subpart C. Most of the requirements in Subpart C are now
covered in detail by the revised 49 CFR Part 40 and these sections are
no longer needed in Part 16. In Subpart C, Sec. 16.301, Sec. 16.350(b),
and Sec. 16.370(d) are not covered in detail by 49 CFR Part 40. We
propose to redesignate these paragraphs.
Section 16.370(d) currently requires an MRO to determine when an
individual is ready to return to work after testing positive and allows
the MRO to prescribe follow-up testing for up to 60 months as
appropriate. In order to ensure intermodal consistency, DOT has
prescribed a mandatory minimum number of follow-up tests after return
to work. We propose to revise Sec. 16.370(d) to include the new DOT
requirement for a minimum of 6 follow-up drug tests during the first
year after an individual returns to work. This new requirement would be
in addition to all other Coast Guard requirements for rehabilitation
and education following a positive drug test. Revised Sec. 16.370(d)
would be redesignated and we propose to remove the remaining provisions
in Subpart C.
Regulatory Evaluation
DOT has assessed the economic impacts of this proposed rulemaking.
Because this proposed rule makes conforming changes to align Coast
Guard regulations with the revised 49 CFR Part 40, DOT determined that
it has no additional costs to industry. Their analysis is published in
their December 19, 2000, final rule, Procedures for Transportation
Workplace Drug and Alcohol Testing Programs [OST 1999-6578].
Analyses Under Other Executive Orders
DOT also found no significant impact that would warrant further
analysis of this rulemaking in accordance to the Small Business
Regulatory Enforcement
[[Page 21504]]
Fairness Act of 1996, the Paperwork Reduction Act of 1995, Federalism
impacts under Executive Order 13132, the Unfunded Mandates Reform Act
of 1995, Enhancing the Intergovernmental Partnership under Executive
Order 12875, Taking of Private Property under Executive Order 12630,
Civil Justice Reform under Executive Order 12988, and the Protection of
Children from Environmental Health Risks and Safety Risks under
Executive Order 13045.
It is well settled that States are precluded from regulation in
categories that are reserved for regulation by the Coast Guard. It is
also well settled, now, that all of the categories covered in 46 U.S.C.
3306, 3703(a), 7101 and 8101 (design, construction, repair, alteration,
maintenance, operation, equipping, personnel qualification and manning
of vessels) as well as casualty reporting and any other categories
where Congress intended the Coast Guard to be the sole source of a
vessel's obligations are within the field foreclosed from State
regulation. (See the decision of the Supreme Court in the consolidated
cases of United States v. Locke and Intertanko v.
Locke, 529 U.S. 89, 120 S.Ct 1135 (March 6, 2000). Rules
regarding drug and alcohol testing for merchant marine personnel fall
into the covered category of personnel certification rules, with the
Coast Guard intended to be the sole source of those rules, thereby
precluding States from regulation. Because States may not promulgate
rules within these categories, preemption is not an issue under
Executive Order 13132.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
rule would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please consult LT Jennifer Ledbetter, Coast
Guard, telephone 202-267-0684.
Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).
Environment
We considered the environmental impact of this proposed rule and
concluded that, under figure 2-1, paragraphs (34)(a), of Commandant
Instruction M16475.lC, this rule is categorically excluded from further
environmental documentation. The proposed rule would be promulgated to
comply with new DOT regulations. The promulgation of new regulations by
the Coast Guard would be editorial or procedural in nature. A
``Categorical Exclusion Determination'' is available in the docket
where indicated under ADDRESSES.
List of Subjects
46 CFR Part 4
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Drug testing, Investigations, Marine safety, National Transportation
Safety Board, Nuclear vessels, Reporting and recordkeeping
requirements, Safety, Transportation.
46 CFR Part 5
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Investigations, Seamen.
46 CFR Part 16
Drug testing, Marine safety, Penalties, Reporting and recordkeeping
requirements, Safety, Transportation.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 46 CFR Parts 4, 5, and 16 as follows:
PART 4--MARINE CASUALTIES AND INVESTIGATIONS
1. The citation of authority for part 4 continues to read as
follows:
Authority: 33 U.S.C. 1231; 43 U.S.C. 1333; 46 U.S.C.
2103, 2306, 6101, 6301, 6305; 50 U.S.C. 198; 49 CFR 1.46. Authority
for subpart 4.40: 49 U.S.C. 1903(a)(1)(E); 49 CFR 1.46.
Sec. 4.06 [Amended]
2. In Sec. 4.06-1(f) remove ``and 16.207''.
3. In Sec. 4.06-20(b) revise ``Sec. 16.330 of this part'' to read
``49 CFR part 40''.
4. In Sec. 4.06-40(b) revise ``Sec. 16.310'' to read
``Sec. 16.113'' and revise ``Sec. 16.320'' to read ``49 CFR part 40,
subpart D,''.
5. In Sec. 4.06-50(b) in the first sentence revise ``49 CFR 40.33''
to read ``49 CFR 40.121'' and in the second sentence revise ``49 CFR
40.33'' to read ``49 CFR part 40, subpart G,''.
PART 5--MARINE INVESTIGATION REGULATIONS--PERSONNEL ACTION
6. The citation of authority for part 5 continues to read as
follows:
Authority: 46 U.S.C. 2103, 7101, 7301, and 7701; 49 CFR
1.46.
7. In Sec. 5.569 in Table 5.569 revise the entry for ``Violation of
Regulation:'' to read as follows:
Sec. 5.569 Selection of an appropriate order.
* * * * *
Table 5.569.--Suggested Range of an Appropriate Order
------------------------------------------------------------------------
Range of
Type of offense order (in
months)
------------------------------------------------------------------------
* * * *
* * *
Violation of Regulation:
Refusal to take chemical drug test..................... 12-24.
Refusal to take required alcohol test.................. 12-24.
* * * *
* * *
------------------------------------------------------------------------
[[Page 21505]]
PART 16--CHEMICAL TESTING
8. The citation of authority for part 16 continues to read as
follows:
Authority: 46 U.S.C. 2103, 3306, 7101, 7301, and 7701;
49 CFR 1.46.
9. In Sec. 16.105 remove the definition for ``Dangerous drug
level'', ``Intoxicant'', and ``Medical Review Officer'', revise the
definitions for ``Fails a chemical test for dangerous drugs'' and
``Refuse to submit'', and add in alphabetical order definitions for
``Consortium/Third party administrator'', ``Medical Review Officer
(MRO)'', ``Service agent'', and ``Stand down'' to read as follows:
Sec. 16.105 Definitions of terms used in this part.
* * * * *
Consortium/Third party administrator (C/TPA) means a
service agent who provides or coordinates the provision of a variety of
drug and alcohol testing services to employers. C/TPAs typically
perform administrative tasks concerning the operation of the employers'
drug and alcohol testing programs. This term includes, but is not
limited to, groups of employers who join together to administer, as a
single entity, the DOT drug and alcohol testing programs of its
members.
* * * * *
Fails a chemical test for dangerous drugs means that the
result of a chemical test conducted in accordance with 49 CFR 40 was
reported as ``positive'' by a Medical Review Officer because the
chemical test indicated the presence of a dangerous drug at a level
equal to or exceeding the levels established in 49 CFR part 40.
* * * * *
Medical Review Officer (MRO) means a person who is a
licensed physician and who is responsible for receiving and reviewing
laboratory results generated by an employer's drug testing program and
evaluating medical explanations for certain drug test results.
* * * * *
Refuse to submit means you refused to take a drug test as
set out in 49 CFR 40.191.
* * * * *
Service agent means any person or entity that provides
services specified under this part or 49 CFR part 40 to employers and/
or crewmembers in connection with DOT drug and alcohol testing
requirements. This includes, but is not limited to, collectors, BATs
and STTs, laboratories, MROs, substance abuse professionals, and C/
TPAs. To act as service agents, persons and organizations must meet the
qualifications set forth in applicable sections of 49 CFR part 40.
Service agents are not employers for purposes of this part.
* * * * *
Stand-down means the practice of temporarily removing a
crewmember from the performance of safety-sensitive functions based
only on a report from a laboratory to the MRO of a confirmed positive
test for a drug or drug metabolite, an adulterated test, or a
substituted test, before the MRO has completed verification of the test
result.
10. Add Sec. 16.107 to subpart A to read as follows:
Sec. 16.107 Waivers.
(a) To obtain a waiver from 49 CFR 40.21 or from this part you must
send your request for a waiver to the Commandant (G-MOA).
(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).
(c) An employer may request a waiver from the Coast Guard in order
to stand-down a crewmember following the Medical Review Officer's
receipt of a laboratory report of a confirmed positive test for a drug
or drug metabolite, an adulterated test, or a substituted test
pertaining to the crewmember. Consistent with 49 CFR 40.21, the request
for a waiver must include as a minimum: information about the
organization and the proposed written company policy concerning stand-
down. Specific elements required in the written waiver request are
contained in 49 CFR 40.21(c).
11. Add Sec. 16.109 to subpart A to read as follows:
Sec. 16.109 Public Interest Exclusion (PIE).
Service agents are subject to Public Interest Exclusion (PIE)
actions in accordance with 49 CFR part 40, subpart R. The PIE is an
action which excludes from participation in DOT's drug and alcohol
testing program any service agent who, by serious noncompliance with
this part or with 49 CFR part 40, has shown that it is not currently
acting in a responsible manner.
12. Add Sec. 16.115 to subpart A to read as follows:
Sec. 16.115 Penalties.
Violation of this part is subject to the civil penalties set forth
in 46 U.S.C. 2115. Any person who fails to implement or conduct, or who
otherwise fails to comply with the requirements for chemical testing
for dangerous drugs as prescribed under this part, is liable to the
United States Government for a civil penalty of not more than $5,000
for each violation. Each day of a continuing violation will constitute
a separate violation.
13. In Sec. 16.201 revise paragraphs (a), (c), and (e), and add
paragraph (f) to read as follows:
Sec. 16.201 Application.
(a) Chemical testing of personnel must be conducted as required by
this subpart and in accordance with the procedures detailed in 49 CFR
part 40.
* * * * *
(c) If an individual holding a license, certificate of registry, or
merchant mariner's document fails a chemical test for dangerous drugs,
the individual's employer, prospective employer, or sponsoring
organization must report the test results in writing to the nearest
Coast Guard Officer in Charge, Marine Inspection (OCMI). The individual
must be denied employment as a crewmember or must be removed from
duties which directly affect the safe operation of the vessel as soon
as practicable and is subject to suspension and revocation proceedings
against his or her license, certificate of registry, or merchant
mariner's document under 46 CFR part 5.
* * * * *
(e) An individual who has failed a required chemical test for
dangerous drugs may not be re-employed aboard a vessel until the
requirements of paragraph (g) of this section and 46 CFR Part 5, if
applicable, have been satisfied.
(f) Medical Review Officers (MRO) may report positive test results
of unemployed, self-employed, or individual mariners to the Coast
Guard.
14. Add Sec. 16.203 to read as follows:
Sec. 16.203 Employer responsibilities.
(a) Employers must ensure that they and their crewmembers meet the
requirements of this part.
(b) Employers are responsible for all the actions of their
officials, representatives, and agents in carrying out the requirements
of this part.
(c) All agreements and arrangements, written or unwritten, between
and among employers and service agents concerning the implementation of
DOT drug testing requirements are deemed, as a matter of law, to
require compliance with all applicable provisions of this part and DOT
agency drug testing regulations. Compliance with these provisions is a
material term of all such agreements and arrangements.
[[Page 21506]]
Sec. 16.207 [Removed]
15. Remove Sec. 16.207.
16. In Sec. 16.260 revise paragraph (a) to read as follows:
Sec. 16.260 Records.
(a) Employers must maintain records of chemical tests as provided
in 49 CFR 40.333 and must make these records available to Coast Guard
officials upon request.
* * * * *
Sec. 16.301 [Redesignated as Sec. 16.113]
17. Redesignate Sec. 16.301 as Sec. 16.113 and transfer it to
subpart A.
Sec. 16.310 [Removed]
18. Remove Sec. 16.310.
Sec. 16.320 [Removed]
19. Remove Sec. 16.320.
Sec. 16.330 [Removed]
20. Remove Sec. 16.330.
Sec. 16.340 [Removed]
21. Remove Sec. 16.340.
22. In newly redesignated Sec. 16.113, revise the section heading,
designate the existing text as paragraph (a), and add paragraph (b) to
read as follows:
Sec. 16.113 Chemical drug testing.
* * * * *
(b) Each specimen collected in accordance with this part will be
tested, as provided in 49 CFR 40.85, for the following:
(1) Marijuana;
(2) Cocaine;
(3) Opiates;
(4) Phencyclidine (PCP); and
(5) Amphetamines.
Sec. 16.350 [Removed]
23. Remove Sec. 16.350.
Sec. 16.360 [Removed]
24. Remove Sec. 16.360.
25. Redesignate Sec. 16.370(d) as Sec. 16.201(g) and revise it to
read as follows:
Sec. 16.201 Application.
* * * * *
(g) Before an individual who has failed a required chemical test
for dangerous drugs may return to work aboard a vessel, the MRO must
determine that the individual is drug-free and the risk of subsequent
use of dangerous drugs by that person is sufficiently low to justify
his or her return to work. In addition, the individual must agree to be
subject to increased unannounced testing--
(1) For a minimum of six (6) tests in the first year after the
individual returns to work as required in 49 CFR part 40; and
(2) For any additional period as determined by the MRO up to a
total of 60 months.
Sec. 16.370 [Removed]
26. Remove Sec. 16.370.
Sec. 16.380 [Removed]
27. Remove Sec. 16.380.
28. Remove and reserve subpart C.
Dated: November 22, 2000.
Joseph J. Angelo,
Director of Standards, Acting Assistant Commandant for Marine Safety
and Environmental Protection.
[FR Doc. 01-9411 Filed 4-27-01; 8:45 am]
BILLING CODE 4910-15-U