[Federal Register Volume 66, Number 159 (Thursday, August 16, 2001)]
[Rules and Regulations]
[Pages 42964-42968]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20425]


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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: Final rule.

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SUMMARY: The Coast Guard revises 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 amends the regulations on Marine Casualties 
and Investigations and Chemical Testing by removing obsolete sections 
and sections duplicating the DOT regulations; adding new definitions; 
and incorporating new terms and procedures contained in the DOT final 
rule.

DATES: This final rule is effective August 16, 2001.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2000-7759 and are available for inspection or 
copying at the Docket Management Facility, U.S. Department of 
Transportation, room PL-401, 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 rule, 
call LCDR Scott Budka, Coast Guard, at 202-267-2026. If you have 
questions on viewing the docket, call Dorothy Beard, Chief, Dockets, 
Department of Transportation, at 202-366-5149.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On April 30, 2001, the Coast Guard published a notice of proposed 
rulemaking NPRM entitled Chemical Testing in the Federal Register (66 
FR 21502). On the same day, DOT published a common preamble (66 FR 
21492) in the Federal Register as referred to in our NPRM. In our NPRM 
we proposed amendments that conformed our drug testing regulations with 
the Department of Transportation's (DOT) final rule entitled Procedures 
for Transportation Workplace Drug and Alcohol Testing published in the 
Federal Register (December 19, 2000 (65 FR 79462)). No public hearing 
was requested and none was held.

Background and Purpose

    As discussed above, DOT published a comprehensive revision to their 
drug and alcohol testing procedural rules (49 CFR Part 40). The DOT 
final rule makes numerous changes in the way that drug and alcohol 
testing will be conducted. The DOT final rule is effective on August 1, 
2001.
    It is important that the six DOT agency rules that cover specific 
transportation industries be consistent with the DOT final rule to 
avoid duplication, conflict, or confusion among DOT regulatory 
requirements. For these reasons, the Coast Guard is revising its drug 
testing regulations affected by Part 40. Since the DOT rule is 
effective on August 1, 2001, we are making this final rule effective on 
the date of publication to ensure that these ``conforming amendments'' 
are effective as soon as possible. For these reasons, under 5 U.S.C. 
553(b)(3) the Coast Guard finds good cause to make this rule effective 
in fewer than 30 days after publication in the Federal Register.
    This preamble discusses the revisions to Coast Guard chemical 
testing regulations to ensure consistency with the DOT final rule.

Discussion of Comments and Changes

    The Coast Guard is revising its chemical drug testing regulations 
to conform with the Department of Transportation's (DOT) final rule on 
drug testing procedures in 49 CFR part 40. We are revising 46 CFR parts 
4, 5, and 16 by removing obsolete sections and sections duplicating the 
DOT regulations; adding new definitions required by the DOT 
regulations; 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, are implemented without a revision or conforming amendment 
to our 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 rule includes new qualification and training requirements 
for Medical Review Officers (MROs) and Substance Abuse Professionals 
(SAPs). The Coast Guard is not changing the ability of the MRO to 
perform a dual MRO/SAP function 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.
    Another DOT change, the minimum number of follow-up drug tests 
required during the first year after return to work in a safety-
sensitive position, requires a conforming amendment to add this 
requirement to our existing regulatory text.
    The following is a discussion of the comments received addressing 
the Coast Guard's NPRM published in the Federal Register (April 30, 
2001 (66 FR 21502)), as well as a discussion of how the Coast Guard has 
revised its regulations to conform to DOT's final rule.
    In response to the NPRM published on April 30, 2001, we received a 
total

[[Page 42965]]

of 48 comment letters to the docket. The comment period closed on June 
29, 2001. Twenty of the 48 comment letters received are not 
specifically discussed in this final rule because they were received 
after the close of the comment period. We have reviewed the issues 
presented in those 20 letters, however, and note that they address 
substantially the same issues raised in the 28 comment letters received 
during the comment period.
    Several of the comment letters addressed issues that concern the 
requirements in 49 CFR part 40. All of these comments concentrated on 
discussions, analyses, and regulations published in DOT's final rule 
and did not address our NPRM. Copies of these comments were forwarded 
to DOT for inclusion in their docket and are discussed in the DOT 
common preamble published in Part II of the August 9, 2001 Federal 
Register.
    In addition to having received comments that directly addressed 
Part 40, we also received five comments that discussed Coast Guard 
implementation of specific DOT alcohol testing regulations. DOT alcohol 
testing requirements published in their December 19, 2000, final rule 
do not apply to the maritime industry. The alcohol testing requirements 
that the maritime industry must comply with are found in 46 CFR subpart 
4.06 and 33 CFR part 95.
    We received two comments requesting that we postpone our 
implementation date. DOT is not delaying any of their final rule 
provisions. Consequently, we are going forward with our conforming 
amendments. If there are future changes to Part 40 we will make 
appropriate revisions to our chemical testing requirements.
    We received one comment requesting clarification on who bears the 
cost of additional testing of a split specimen and return-to-duty 
testing. More specifically, the commenter wanted to know who pays for 
the additional drug tests. The Coast Guard and DOT regulations leave 
these determinations to the employee and the employer.
    Another comment requested that we allow Consortium/Third party 
administrators (C/TPAs) to make refusal to test determinations for an 
owner or operator or other self-employed individuals in accordance with 
Part 40. DOT addressed this determination issue in the common preamble. 
In 49 CFR 40.355(j)(1) DOT authorizes service agents to make refusal 
determinations with respect to owners or operators and other self-
employed individuals when the service agent scheduled the test and the 
individual fails to appear for it without a legitimate reason for 
missing the scheduled testing time. The Department's provision 
adequately meets our needs on this issue and we are not incorporating 
the suggested provision in our final rule.

46 CFR Part 4

    We received only one comment addressing several issues in our 
proposed amendments to part 4. The comment suggested that we:
     Remove paragraph Sec. 4.06-1(f) because we no longer need 
an implementation schedule. The Coast Guard agrees and is removing the 
paragraph.
     Revise the testing requirements found in Secs. 4.06-5, 
4.06-10, 4.06-20, and 4.06-30. In the NPRM we only proposed amending 
Sec. 4.06-20. We do not agree that the recommended changes to these 
sections are appropriate at this time, but will consider making them in 
our next rulemaking on alcohol testing requirements. This rule only 
changes the cross-references in Sec. 4.06-20.
     Make a couple of changes to Sec. 4.06-40 by removing 
paragraph (a) and by removing the cross-reference to Sec. 4.06-30 in 
paragraph (b). The comment stated that Part 40 provided ample guidance 
on the custody and shipping of testing samples. We are not removing 
paragraph (a) because its provisions apply to tests not otherwise 
covered by 49 CFR Part 40. However, we concur with the suggestion to 
revise the cross-reference in paragraph (b) to conform with Part 40.
     In Sec. 4.06-50, replace paragraphs (a), (b), and (c) with 
one provision for specimen analysis and follow-up testing procedures 
that comply with Part 40. We agree that this section needed to be 
revised but only so that it meets the requirement to comply with Part 
40. We have, therefore, changed only the cross-reference in paragraph 
(b).

46 CFR Part 5

    Table 5.569. We proposed a clarification to the Table of 
Appropriate Orders in Sec. 5.569 to distinguish between a Chemical test 
for dangerous drugs and one for alcohol, because Part 40 treats them 
separately. We did not receive any comments addressing this proposed 
change and it is unchanged in this final rule.

46 CFR Part 16

    The majority of comments were directed to 46 CFR Part 16. We 
received six comments concerning the inapplicability of Part 16 to 
foreign-flagged vessels. They stated that by not applying these 
requirements to foreign-flagged vessels the Coast Guard would create an 
unfair economic advantage for those vessels over U.S.-flagged vessels. 
These issues were addressed when Part 16 was established. Foreign-
flagged vessels must meet the requirements of 46 CFR subpart 4.06 
Mandatory Chemical Testing Following Serious Marine Incidents Involving 
Vessels in Commercial Service as well as 33 CFR part 95 Operating a 
Vessel While Intoxicated.
    Definitions. We received one comment requesting a revision of our 
definition of ``Refuse to submit.'' The comment requested that we 
clarify in the definition that the specific gravity and creatinine 
levels would not be used to determine whether or not a substituted 
sample has been submitted. The Coast Guard disagrees with this request 
for clarification. Part 40 adequately prescribes the verification 
process in Sec. 40.145.
    New sections. We received two comments requesting a Coast Guard 
blanket approval for stand-downs for the marine industry. We disagree. 
DOT has determined that stand-down after a positive drug test should be 
the exception and not the industry norm. In Sec. 16.107 Waivers, we 
have established a process for employers to request approval to use 
stand-down procedures while employee drug test results are being 
verified.
    We proposed adding Sec. 16.109 describing DOT's new Public Interest 
Exclusion (PIE) in 49 CFR Part 40, subpart R. We did not receive 
comments addressing this proposed change and it is unchanged in this 
final rule.
    We are adding Sec. 16.115 Penalties. to better inform the public of 
the penalties prescribed by 46 U.S.C. 2115 for violation of dangerous 
drug and alcohol testing regulations. We did not receive any comments 
addressing the addition of this section. However, one commenter 
suggested we should include a consequence for a refusal to test. This 
suggestion is beyond the scope of this rulemaking.
    Revisions to Sec. 16.201 Application. In Sec. 16.201 we are 
revising paragraph (a) by requiring all chemical drug tests to be 
conducted in accordance with the procedures found in 49 CFR Part 40. We 
are revising paragraph (c) to require a sponsoring organization, like 
employers and prospective employers, to report a documented or licensed 
mariner's positive chemical drug test to the nearest Coast Guard 
Officer in Charge, Marine Inspection. We are updating the cross-
reference to Sec. 16.370 in paragraph (e) of this section.

[[Page 42966]]

    We are adding paragraph Sec. 16.201(f) to this section, which was 
formerly found at Sec. 16.370(d). Paragraph (f) 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 are revising this paragraph 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 will be 
in addition to all other Coast Guard requirements for rehabilitation 
and education following a positive drug test.
    Revisions to Sec. 16.203 Employer, MRO, and SAP responsibilities. 
We are adding Sec. 16.203 to set out the Coast Guard's requirements 
that maritime employers, MROs, and SAPs comply with 49 CFR Part 40.
    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. In our 
NPRM, we specifically requested that comments address how we should 
implement this change in our rule. We also asked if an MRO should, in 
order to perform SAP functions, meet both the SAP and MRO training 
requirements or should the MRO training requirements satisfy the 
requirements for SAP training. We received five comments on this 
question. The comments recommended that the MRO meet the training and 
qualification standards of a SAP if the MRO is to be responsible for 
filling the role of a SAP. We agree and have added paragraphs (d) and 
(f) accordingly. Paragraph (d) sets out the Coast Guard's training and 
procedure requirements for MROs whereas paragraph (f) sets out the same 
requirements for SAPs. We also are adding a new definition for 
``Substance Abuse Professionals (SAP)'' in section Sec. 16.105.
    We are adding paragraph (e) to this section to clarify our position 
on Medical Review Officer (MRO) reporting of test results. Medical 
Review Officers are not prohibited from reporting positive test results 
to the Coast Guard. Some MROs are currently doing so. The Coast Guard 
affirms that MROs are encouraged to report positive test results 
especially for unemployed or self-employed mariners.
    Deletion of 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. We have removed the unnecessary 
sections and moved the remaining paragraphs to appropriate locations in 
Subparts A and B. Subpart C is removed and reserved.

Regulatory Evaluation

    DOT has assessed the economic impacts of this proposed rulemaking. 
Because this final 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 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 final 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 LCDR Scott Budka, Coast Guard, 
telephone 202-267-2026.
    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).

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

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

[[Page 42967]]

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 amends 
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. 4.06-1  [Amended]

    2. In Sec. 4.06-1 remove paragraph (f).


Sec. 4.06-20  [Amended]

    3. In Sec. 4.06-20(b) remove the phrase ``Sec. 16.330 of this 
part'' and add in its place ``49 CFR part 40''.


Sec. 4.06-40  [Amended]

    4. In Sec. 4.06-40(b) revise the cross-reference ``Sec. 16.310 of 
this part'' to read as ``Sec. 16.113 of this chapter'', and revise the 
cross-reference ``Sec. 16.320'' to read as ``49 CFR part 40, subpart 
D,''.


Sec. 4.06-50  [Amended]

    5. In Sec. 4.06-50(b) in the first sentence revise the cross-
reference ``49 CFR 40.33'' to read as ``49 CFR 40.121'' and in the 
second sentence revise the cross-reference ``49 CFR 40.33'' to read as 
``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
 
                  *        *        *        *        *
------------------------------------------------------------------------

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 definitions 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 (C/TPA)'', ``Medical Review 
Officer (MRO)'', ``Service agent'', ``Stand-down'', and ``Substance 
Abuse Professional (SAP)'' 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.
    Substance Abuse Professional (SAP) means a person who evaluates 
employees who have violated a DOT drug and alcohol regulation and makes 
recommendations concerning education, treatment, follow-up testing, and 
aftercare.
* * * * *

    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

[[Page 42968]]

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. 16.113 to Subpart A to read as follows:


Sec. 16.113  Chemical drug testing.

    (a) Drug testing programs required by this part must be conducted 
in accordance with 49 CFR part 40, Procedures for Transportation 
Workplace Testing Programs. This subpart summarizes the 
responsibilities of documented and licensed mariners, marine employers, 
MRO, SAP and other chemical testing service providers in 49 CFR part 
40. The regulations in 49 CFR part 40 should be consulted to determine 
the specific procedures which must be established and utilized. Drug 
testing programs required by this part must use only drug testing 
laboratories certified by the Department of Health and Human Services 
(DHHS).
    (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.

    13. 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.

    14. 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 (f) of this section and 46 CFR Part 5, if 
applicable, have been satisfied.
    (f) 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.

    15. Add Sec. 16.203 to read as follows:


Sec. 16.203  Employer, MRO, and SAP responsibilities.

    (a) Employers. (1) Employers must ensure that they and their 
crewmembers meet the requirements of this part.
    (2) Employers are responsible for all the actions of their 
officials, representatives, and agents in carrying out the requirements 
of this part.
    (3) 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.
    (b) Medical Review Officer (MRO). (1) Individuals performing MRO 
functions must meet the training requirements and follow the procedures 
in 49 CFR Part 40.
    (2) MROs may report chemical drug test results to the Coast Guard 
for unemployed, self-employed, or individual mariners.
    (c) Substance Abuse Professional (SAP). Individuals performing SAP 
functions must meet the training requirements and follow the procedures 
in 49 CFR Part 40.


Sec. 16.207  [Removed]

    16. Remove Sec. 16.207.
    17. 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.
* * * * *

Subpart C--[Removed and Reserved]

    18. Remove and reserve Subpart C.

    Dated: August 1, 2001.
Paul J. Pluta,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety 
and Environmental Protection.
[FR Doc. 01-20425 Filed 8-15-01; 8:45 am]
BILLING CODE 4910-15-P