[Federal Register Volume 68, Number 40 (Friday, February 28, 2003)]
[Proposed Rules]
[Pages 9622-9627]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4809]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

46 CFR Part 4

[USCG-2001-8773]
RIN 2115-AG07


Marine Casualties and Investigations; Chemical Testing Following 
Serious Marine Incidents

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes changing the alcohol testing 
requirements for commercial vessels following a serious marine 
incident. The 1998 Coast Guard Authorization Act requires the Coast 
Guard to establish procedures ensuring alcohol testing is conducted 
within two hours of a serious marine casualty. The Coast Guard proposes 
to establish requirements for testing within the statutory time limits, 
to expand the existing requirements for commercial vessels to have 
alcohol-testing devices on board, and to authorize use of a wider 
variety of testing devices. This rulemaking would also make additional 
minor procedural changes to Part 4, including a time limit for 
conducting drug testing following a serious marine incident.

DATES: Comments and related material must reach the Docket Management 
Facility on or before June 30, 2003. Comments sent to the Office of 
Management and Budget (OMB) on collection of information must reach OMB 
on or before April 29, 2003.

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-2001-8773), 
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 Mr. Robert C. Schoening, Coast Guard, at 202-267-0684. If 
you have questions on viewing or submitting material to the docket, 
call Dorothy Beard, Chief, Dockets, Department of Transportation, 
telephone 202-366-5149.

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-2001-
8773), 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 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.
    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; pages 19477-78) or you may visit 
http://dms.dot.gov.

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 
a public meeting would be helpful to this rulemaking, we will hold one 
at a time and place announced by a later notice in the Federal 
Register.

Background and Purpose

    The current regulations in 46 CFR part 4 require marine employers 
to take all practicable steps after a serious marine incident (SMI) to 
ensure that chemical testing is conducted. The regulations do not 
specify a time requirement for completing the tests for alcohol or for 
dangerous drugs following an SMI. Without a specified timeframe to 
conduct alcohol or drug testing after an SMI, in some instances tests 
were not conducted, and in other instances tests were not completed 
soon enough for the results to provide a determination of whether 
alcohol was present in an individual's system at the time the SMI 
occurred.
    In 1998, Congress passed Public Law 105-383 which revised Title 46, 
U.S. Code, by adding a new section 2303a--``Post serious marine 
casualty alcohol testing'' (hereafter section 2303a). Section 2303a 
requires the Coast Guard to establish procedures ensuring that after a 
serious marine casualty occurs, required alcohol testing is conducted 
no later than two hours after the casualty occurred. If the alcohol 
testing cannot be conducted within that timeframe because of safety 
concerns directly related to the casualty, section 2303a requires the 
alcohol testing to be conducted as soon thereafter as the safety 
concerns have been adequately addressed to permit such testing. 
However, section 2303a prohibits us from requiring alcohol testing to 
be conducted more than eight hours after the casualty occurs.
    The Coast Guard requires that alcohol and drug testing be conducted 
after a serious marine incident. Section 2303a uses the term ``serious 
marine casualty.'' For the purpose of this rulemaking serious marine 
casualty means the same as serious marine incident (SMI) as defined in 
46 CFR 4.03-2. Section 2303a also uses the phrase ``safety concerns 
directly related to the casualty'' as the only reason the marine 
employer may postpone alcohol testing following an SMI.

[[Page 9623]]

    This rule would provide that alcohol testing requirements after an 
SMI will not prevent personnel who are required to be tested for 
alcohol from performing duties in the aftermath of an SMI when their 
performance is necessary to meet safety concerns directly related to 
the casualty.
    Coast Guard regulations in 46 CFR part 4 mandating alcohol testing 
after an SMI currently require marine employers to collect blood or 
breath specimens from each individual who was directly involved in the 
SMI, and for breath specimens, to use an alcohol breath-testing device 
that can accurately determine the presence of alcohol in an 
individual's system. The regulations also require inspected vessels 
certificated for unrestricted oceans routes and inspected vessels 
certificated for restricted overseas routes to have onboard at all 
times an alcohol breath-testing device capable of determining the 
presence of alcohol in an individual's system. The voyages of 
oceangoing vessels take the vessel and its crew far from shore-based 
facilities where alcohol testing can be conducted. If an SMI were to 
occur during the voyage, the vessel would not be able to return to a 
shore-based facility soon enough to complete alcohol testing for the 
results to indicate whether alcohol was present in an individual's 
system at the time the SMI occurred. Requiring marine employers to have 
testing devices onboard these vessels at all times makes it possible 
for them to ensure that proper alcohol testing is conducted in a timely 
manner.
    Section 2303a applies to all commercial vessels. The majority of 
these vessels are not currently required to carry alcohol-testing 
devices on board the vessel. A regulatory requirement to conduct 
testing within the statutory timeframes cannot, by itself, ensure that 
alcohol testing after an SMI will be done within 2 hours. For the same 
reason we currently require oceangoing vessels to carry alcohol breath-
testing devices onboard at all times, all other commercial vessels 
should also carry testing devices onboard their vessels. Having the 
devices onboard would make it possible for a marine employer to conduct 
the required alcohol testing within two hours after the occurrence of 
an SMI.
    Given a choice between Evidential Breath Testing (EBT) devices or 
breath Alcohol Screening Devices (ASDs), we believe that most 
commercial vessel owners and operators would elect to carry breath ASDs 
for determining the presence of alcohol in an individual's system. Our 
assumption is based on the cost differential between the more expensive 
EBT and less expensive breath ASD. However, the cost of the less 
expensive breath ASD could still be too expensive for the smallest 
commercial vessel owners and operators. Providing vessel owners and 
operators with a wider variety of alcohol-testing devices to choose 
from would give them more control over the cost of compliance. 
Therefore, we are proposing to allow commercial vessel owners or 
operators to carry either breath or saliva alcohol-testing devices to 
satisfy the requirement to carry alcohol-testing devices onboard their 
vessels.

Discussion of Proposed Rule

Statutory Time Requirements for Alcohol Testing After an SMI

    The Coast Guard proposes adding Sec.  4.06-3, ``Requirements for 
alcohol and drug testing following a serious marine incident,'' which 
would require commercial vessel marine employers to conduct alcohol 
testing within two hours after an SMI, unless precluded by safety 
concerns directly related to the casualty, as mandated by section 
2303a. If alcohol testing is not completed within two hours based on 
this exception, it must be done within eight hours of the casualty. An 
explanation on the casualty report form CG-2692B would be required for 
alcohol testing that is not completed within the prescribed two-hour 
timeframe, and an additional explanation would be required when testing 
is not completed within the eight-hour timeframe.
    We also propose adding a provision in this section requiring drug 
testing be conducted as soon as possible after an SMI but no later than 
32 hours after its occurrence. We would require the same type of 
explanation on the casualty reporting form when drug testing is not 
completed within the prescribed times as when alcohol testing is not 
completed within provided timeframes.

Responsibility of Individuals Directly Involved in Serious Marine 
Incidents

    We propose amending Sec.  4.06-5, ``Responsibility of individuals 
directly involved in serious marine incidents,'' so that individuals 
subject to alcohol testing after an SMI would be prohibited from 
consuming alcoholic beverages for eight hours following the SMI, or 
until after the required alcohol testing is completed.

Adding a Requirement To Carry Alcohol-Testing Devices

    We propose adding Sec.  4.06-15, ``Availability of chemical testing 
devices,'' which would require marine employers to have sufficient 
breath- or saliva-alcohol testing devices capable of determining the 
presence of alcohol in an individual's system on board vessels. This 
requirement would make it possible for owners and operators to comply 
with the statute's two-hour timeframe for alcohol testing.
    We would also move Sec.  4.06-20(b), which requires commercial 
vessel owners and operators to have drug-testing kits readily available 
for use following an SMI, to this new section.

Allowing Use of Saliva-Alcohol Testing Devices

    To prevent a redundancy, we propose moving the specimen collection 
requirements in Sec.  4.06-10 to the specimen collection requirements 
in Sec.  4.06-20. We also propose including saliva, along with blood 
and breath, as specimens that can be collected for alcohol testing. For 
alcohol testing conducted aboard vessels, we would allow vessel owners 
and operators to choose any breath- or saliva-alcohol testing device 
that can determine the presence of alcohol in a individual's system. 
For drug testing, we will keep the current requirement for testing kits 
complying with 49 CFR part 40.

Delay of Implementation

    We propose a delayed implementation date of 180 days to ensure that 
all marine employers subject to a new carriage requirement have ample 
time to procure and learn how to use the required equipment.

Related Rulemaking

    During the comment period of a recent rulemaking, docket number 
USCG 2000-7759 Chemical Testing (66 FR 42964), we received one comment 
letter that requested several changes to the regulations in 46 CFR part 
4 requiring alcohol testing after an SMI. The comment recommended that 
we revise the regulations to allow the use of saliva-alcohol testing 
devices. The comment also requested that we remove the requirement to 
conduct alcohol or drug testing on human remains. A copy of this 
comment letter has been placed into this rulemaking docket. We have 
considered the comment and, as described in the discussion of proposed 
rule section of this notice, we are proposing to amend Sec. Sec.  4.06-
5, 4.06-10, and 4.06-20. However, at this time, we are not proposing to 
amend Sec.  4.06-30 concerning testing of human remains.

Department of Transportation Drug and Alcohol Testing Regulations

    This proposal would have no impact on any existing Department of

[[Page 9624]]

Transportation (DOT) or operating administration's drug and alcohol 
testing regulations. It is clear that the Coast Guard is not subject to 
the provisions of the Omnibus Transportation Employee Testing Act 
(OTETA) of 1991 (Pub. L. 102-143), although it does apply to other DOT 
modes. OTETA does not apply to Coast Guard required alcohol testing of 
employees in the regulated maritime industry.
    The provisions of 49 CFR part 40, the DOT's drug testing 
requirements, apply to Coast Guard required drug testing. The 
provisions in 49 CFR part 40 that relate to alcohol testing, including 
use of the DOT Alcohol Testing Form, however, do not apply to Coast 
Guard required alcohol testing.

Regulatory Evaluation

    This proposed 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. The Office of Management and Budget has not reviewed it 
under that Order. It is, however, considered ``significant'' under the 
regulatory policies and procedures of the DOT (February 26, 1979 (44 FR 
11040)). A separate draft Regulatory Analysis is available in the 
docket as indicated under ADDRESSES. A summary of the analysis follows.
    This proposed rulemaking would affect more than 183,400 commercial 
vessels. However, of those, approximately 2,600 vessels are already 
required to carry alcohol breath-testing devices. Since these vessels 
carry alcohol-testing devices on board, these marine employers can meet 
the statutory alcohol-testing timeframe requirement without additional 
cost. Thus, the number of vessels affected by the proposed requirement 
for the first time would be approximately 180,800.
    Section 2303a of Title 46, U.S. Code, requires the Coast Guard to 
establish procedures ensuring alcohol testing is conducted within two 
hours of an SMI. This proposal would establish a requirement for all 
marine employers to have alcohol-testing devices readily available for 
use to meet the requirements for alcohol testing following an SMI.
    This proposed rule would require that alcohol testing be conducted 
within two hours of the incident, whereas the current regulation does 
not specify a time frame for testing. This proposal would help to 
ensure compliance with the alcohol testing requirements after a SMI.
    The cost of this proposal is estimated by assuming that, of the 
available ASDs, 90 percent of vessels would choose the least costly 
option of purchasing disposable saliva alcohol testing devices, while 
only 10 percent of vessels would choose a breath ASD. The lowest price 
breath ASD is more than twice as expensive as the most expensive saliva 
ASD. We also assume that no vessels would choose an EBT device because 
of its much higher initial purchase cost and ongoing maintenance and 
training costs.
    The draft Regulatory Analysis shows a $97 median price for the 
purchase of saliva ASDs and a $393 median price for a breath ASD. Using 
those median prices, this proposed rule would have an estimated total 
cost to industry of approximately $144 million throughout the 10-year 
analysis period. In the first year, affected vessels would incur 
approximately $40 million. For subsequent years, the average annual 
cost is approximately $18 million. The draft Regulatory Analysis 
available in the docket as indicated under ADDRESSES further compares 
the costs of EBT devices versus ASDs as alternatives.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises 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 proposed rule could impact about 3,500 small entities, based 
on the determination made by the Small Business Administration (SBA) in 
the North American Industry Classification System (NAICS codes 4831, 
4832, 4872, 48831, 48832, and 48833). The SBA defines small entities 
either by revenue size or by employee size for all NAICS sectors. 
Depending on the NAICS sectors, firms with revenues less than $5 
million and firms with less than 500 employees are defined as Small 
Entities. For the NAICS sectors and sub-sectors that apply to this 
analysis, SBA defined NAICS sectors 4831 (Deep Sea, Coastal, and Great 
Lakes water transportation) and 4832 (Inland Water Transportation) by 
employee size and the rest by revenue size. Those sectors defined by 
revenue size are: Scenic and Sightseeing Transportation (water), Port 
and Harbor Operations, Marine Cargo Handling, and Navigational Services 
to Shipping.
    To determine the impact of the cost of this rule on these 
companies, we made the following assumptions:
    [sbull] We assumed if a firm's revenues are less than $500,000, or 
it employs less than 20 employees, then it owns 5 vessels; and
    [sbull] We assumed if a firm's revenues are in the range of 
$500,000 to $5 million, or it employs between 20 to 500 employees, then 
it owns 10 vessels.
    With these assumptions, we calculated the cost impact of selecting 
saliva versus breath ASDs. As shown in Table below, costs will be a 
very small percentage of revenues for almost all companies.
    The initial cost burden of alcohol breath-testing devices for some 
firms owning 5 vessels is 6.12 percent. It is reasonable to assume that 
under these circumstances the companies in question would choose to use 
disposable saliva ASDs or the next lowest priced breath ASDs, which 
would be a much lower cost to them.

                        Cost Burden as a Percentage of Annual Revenues for Small Entities
----------------------------------------------------------------------------------------------------------------
                                           Using saliva ASDs                       Using breath ASDs
    For a Company that owns:    --------------------------------------------------------------------------------
                                      Initial        Recurring annual       Initial          Recurring annual
----------------------------------------------------------------------------------------------------------------
5 vessels:
    Cost.......................  $925.............  $750.............  $2,840...........  $525.
    Impact (Cost/Avg. Revenue).  0.01% to 1.99%...  0.01% to 1.62%...  0.04% to 6.12%...  0.01% to 1.13%.
10 vessels:
    Cost.......................  $1,850...........  $1,500...........  $5,680...........  $1,050.
    Impact (Cost/Avg. Revenue).  0.002% to 0.41%..  0.001% to 0.33%..  0.01% to 1.25%...  0.001 to 0.23%.
----------------------------------------------------------------------------------------------------------------


[[Page 9625]]

    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this proposed rule would not have a significant economic impact on a 
substantial number of small entities. If you think that your business, 
organization, or governmental jurisdiction qualifies as a small entity 
and that this rule would have a significant economic impact on it, 
please submit a comment to the Docket Management Facility at the 
address under ADDRESSES. In your comment, explain why you think it 
qualifies and how and to what degree this rule would economically 
affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 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 Mr. Robert C. Schoening at 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).

Collection of Information (OMB 2115-0003)

    This proposed rule would call for a collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). As defined 
in 5 CFR 1320.3(c), ``collection of information'' comprises reporting, 
recordkeeping, monitoring, posting, labeling, and other, similar 
actions. The title and description of the information collections, and 
a description of those who must collect the information follow.
    The estimate covers the time for reviewing instructions, searching 
existing sources of data, gathering and maintaining the data needed, 
and completing and reviewing the collection.
    Title: Marine Casualty Information; Chemical Drug and Alcohol 
Testing of Commercial Vessel Personnel; and Management Information 
System Requirements
    Summary of the Collection of Information: The proposed regulation 
would require marine employers to document the reason for delaying the 
alcohol test on form CG-2692B. The requirement to report this 
information would be promulgated in 46 CFR 4.06-3. We would revise form 
CG-2692B accordingly to record the results of all types of alcohol 
testing (blood, breath, and saliva).
    Need for Information: In accordance with 46 U.S.C. 2303a, the 
proposed regulation would require marine employers to document the 
reason for delaying the alcohol test on form CG-2692B if alcohol 
testing were not completed within the two-hour timeframe. If the 
alcohol test is not completed within the eight-hour timeframe, the 
marine employer must document the reason for the further delay of 
alcohol testing on form CG-2692B.
    Proposed Use of Information: The information would be used to 
document the results of alcohol tests after SMIs.
    Description of the Respondents: Marine employers whose employees, 
passengers, or vessels are involved in SMIs.
    Number of Respondents: Currently, the approved OMB collection, 
estimates that 5,703 respondents fill out an accident report. This 
rulemaking would not change the number of incidents or accidents that 
trigger a response therefore the increase in respondents would be zero.
    Frequency of Response: Continues to be once per incident.
    Burden of Response: The possible additional burden imposed by this 
proposed rule is estimated to be so minimal that it does not merit 
changing the approved collection (a couple of additional minutes 
whenever documentation is needed). OMB approved, on previous 
submissions, the one-hour burden of completing each form CG-2692B.
    Estimate of Total Annual Burden: The currently approved annual 
burden is 5,703 hours. Because the possible additional burden imposed 
by this proposed rule is estimated to be so minimal, it does not merit 
changing the approved annual burden.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), we have submitted a copy of this proposed rule to the Office 
of Management and Budget (OMB) for its review of the collection of 
information.
    We ask for public comment on the proposed collection of information 
to help us determine how useful the information is; whether it can help 
us perform our functions better; whether it is readily available 
elsewhere; how accurate our estimate of the burden of collection is; 
how valid our methods for determining burden are; how we can improve 
the quality, usefulness, and clarity of the information; and how we can 
minimize the burden of collection.
    If you submit comments on the collection of information, submit 
them both to OMB and to the Docket Management Facility where indicated 
under ADDRESSES, by the date under DATES.
    You need not respond to a collection of information unless it 
displays a currently valid control number from OMB. Before the 
requirements for this collection of information become effective, we 
will publish notice in the Federal Register of OMB's decision to 
approve, modify, or disapprove the collection.

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this proposed rule 
under that Order and have determined that it does not have implications 
for federalism. It is well settled that States may not regulate in 
categories 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, 7101, and 8101 (design, construction, alteration, repair, 
maintenance, operation, equipping, personnel qualification, and manning 
of vessels), as well as the reporting of casualties and any other 
category in which Congress intended the Coast Guard to be the sole 
source of a vessel's obligations, are within the field foreclosed from 
regulation by the States. (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 on testing merchant 
marine personnel for drugs and alcohol fall into the category of 
personnel qualification. Because the States may not regulate within 
this category, preemption under Executive Order 13132 is not an issue.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a

[[Page 9626]]

State, local, or tribal government, in the aggregate, or by the private 
sector of $100,000,000 or more in any one year. Though this proposed 
rule would not result in such an expenditure, we do discuss the effects 
of this rule elsewhere in this preamble.

Taking of Private Property

    This proposed rule would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications, will not 
impose substantial direct compliance costs on Indian tribal 
governments, and will not preempt tribal law. Therefore, it is exempt 
from the consultation requirements of Executive Order 13175. If tribal 
implications are identified during the comment period, we will 
undertake appropriate consultations with the affected Indian tribal 
officials.

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, paragraph (34)(c), of Commandant 
Instruction M16475.lC, this rule is categorically excluded from further 
environmental documentation. A ``Categorical Exclusion Determination'' 
is available in the docket where indicated under ADDRESSES.

List of Subjects in 46 CFR Part 4

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Drug testing, Investigations, Marine safety, National Transportation 
Safety Board, Reporting and recordkeeping requirements, Safety, 
Transportation.

    For the reasons discussed in the preamble, the Coast Guard proposes 
amending 46 CFR part 4 as follows:

PART 4--MARINE CASUALTIES AND INVESTIGATIONS

    1. The citation of authority for Part 4 is revised to read as 
follows:

    Authority: 33 U.S.C. 1231; 43 U.S.C. 1333; 46 U.S.C. 2103, 
2303a, 2306, 6101, 6301, and 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.

    2. In Sec.  4.06-1, in paragraph (b) add the phrase ``as required 
in this part'' at the end of the sentence, and revise paragraphs (c) 
and (d) as follows:


Sec.  4.06-1  Responsibilities of the marine employer.

* * * * *
    (c) The determination of which individuals are directly involved in 
a serious marine incident (SMI) is to be made by the marine employer. A 
law enforcement officer may determine that additional individuals are 
directly involved in the SMI. In such cases, the marine employer shall 
take all practicable steps to have these additional individuals tested 
in accordance with this part.
    (d) The requirements of this subpart do not prevent personnel who 
are required to be tested from performing duties in the aftermath of a 
SMI when their performance is necessary to respond to safety concerns 
directly related to the incident.
* * * * *
    3. Add Sec.  4.06-3 to read as follows:


Sec.  4.06-3  Requirements for alcohol and drug testing following a 
serious marine incident.

    When a marine employer determines that a casualty or incident is, 
or is likely to become, an SMI, the marine employer must ensure the 
following alcohol and drug testing is conducted:
    (a) Alcohol testing. (1) Alcohol testing must be conducted on each 
individual engaged or employed on board the vessel who is directly 
involved in the SMI.
    (i) The alcohol testing of each individual must be conducted within 
two (2) hours of when the SMI occurred, unless precluded by safety 
concerns directly related to the incident.
    (ii) If safety concerns directly related to the SMI prevented the 
alcohol testing from being conducted within 2 hours of the occurrence 
of the incident, then alcohol testing must be conducted as soon as the 
safety concerns are addressed.
    (iii) Alcohol testing is not required to be conducted more than 
eight (8) hours after the occurrence of the SMI.
    (2) Alcohol-testing devices must be used in accordance with 
procedures specified by the manufacturer of the testing device and this 
part.
    (3) If the alcohol testing required in paragraphs (a)(1)(i) and 
(a)(1)(ii) of this section is not conducted, the marine employer must 
document on form CG-2692B the reason the test(s) was not conducted.
    (4) The marine employer may use alcohol testing results from tests 
conducted by Coast Guard or local law enforcement personnel to satisfy 
the alcohol-testing requirements of this part only if the alcohol 
testing meets all of the requirements of this part.
    (b) Drug testing. (1) Drug testing must be conducted on each 
individual engaged or employed on board the vessel who is directly 
involved in the SMI.
    (i) The drug testing of each individual must be conducted within 
thirty-two (32) hours of when the SMI occurred, unless precluded by 
safety concerns directly related to the incident.
    (ii) If safety concerns directly related to the SMI prevented the 
drug testing from being conducted within 32 hours of the occurrence of 
the incident, then drug testing must be conducted as soon as the safety 
concerns are addressed.
    (2) Specimen collection and shipping kits used to conduct drug 
testing must be used in accordance with 49 CFR part 40.
    (3) If the drug test required in paragraphs (b)(1)(i) and 
(b)(1)(ii) of this section is not conducted, the marine employer must 
document on form CG-2692B the reason the drug test was not conducted.
    4. Revise Sec.  4.06-5 to read as follows:

[[Page 9627]]

Sec.  4.06-5  Responsibility of individuals directly involved in 
serious marine incidents.

    (a) Any individual engaged or employed on board a vessel who is 
determined to be directly involved in a SMI must provide blood, breath, 
saliva, or urine specimens for chemical testing required by Sec.  4.06-
20 when directed to do so by the marine employer or a law enforcement 
officer.
    (b) If the individual refuses to provide blood, breath, saliva, or 
urine specimens, this refusal must be noted on form CG-2692B and in the 
vessel's official log book, if one is required. The marine employer 
must remove the individual from duties that directly affect the safe 
operation of the vessel as soon as practicable.
    (c) Individuals subject to alcohol testing after an SMI are 
prohibited from consuming alcohol beverages for eight (8) hours 
following the occurrence of the SMI, or until after the alcohol testing 
required by this part is completed.
    (d) No individual may be compelled to provide specimens for alcohol 
and drug testing required by this part; however, refusal is a violation 
of regulations and may subject the individual's to suspension and 
revocation proceedings under part 5 of this chapter and/or a civil 
penalty.


Sec.  4.06-10  [Removed]

    5. Remove Sec.  4.06-10.
    6. Add Sec.  4.06-15 to read as follows:


Sec.  4.06-15  Availability of chemical testing devices.

    (a) Alcohol testing. The marine employer must have sufficient 
devices capable of determining the presence of alcohol in an 
individual's system onboard the vessel for use to meet the alcohol 
testing requirements found under Sec.  4.06-3 of this part.
    (b) Drug testing. The marine employer must have urine specimen 
collection and shipping kits meeting the requirements of 49 CFR part 40 
that are readily available for use following SMIs. The specimen 
collection and shipping kits need not be carried aboard each vessel if 
obtaining the kits and conducting the required drug tests can be 
completed within 32 hours from the time of the occurrence of the SMI.
    7. Revise Sec.  4.06-20 to read as follows:


Sec.  4.06-20  Specimen collection requirements.

    (a) Alcohol testing. (1) When conducting alcohol testing required 
in Sec.  4.06-3(a), an individual determined under this part to be 
directly involved in the SMI must provide a specimen of their breath, 
blood, or saliva to the marine employer as required in this subpart.
    (2) Collection of an individual's blood to comply with Sec.  4.06-
3(a) must be taken only by qualified medical personnel.
    (3) Collection of an individual's saliva or breath to comply with 
Sec.  4.06-3(a) must be taken only by personnel trained to operate the 
alcohol-testing device in use and must be conducted in accordance with 
this subpart.
    (b) Drug testing. When conducting drug testing required in Sec.  
4.06-3(b), an individual determined under this part to be directly 
involved in the SMI must provide a specimen of their urine in 
accordance with 46 CFR part 16 and 49 CFR part 40.
    8. Add Sec.  4.06-70 to read as follows:


Sec.  4.06-70  Penalties.

    Violation of this part is subject to the civil penalties set forth 
in 46 U.S.C. 2115.

    Dated: February 24, 2003.
Thomas H. Collins,
Admiral, U.S. Coast Guard, Commandant.
[FR Doc. 03-4809 Filed 2-27-03; 8:45 am]
BILLING CODE 4910-15-P