[Federal Register Volume 69, Number 28 (Wednesday, February 11, 2004)]
[Rules and Regulations]
[Pages 6575-6578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-2993]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 16

[USCG-2003-16414]
RIN 1625-AA80


Chemical Testing

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is revising its chemical drug testing 
regulations to conform with the Department of Transportation's (DOT) 
final rule concerning Drug and Alcohol Management Information System 
Reporting published in the Federal Register on July 25, 2003. The DOT 
rule consolidated the 21 different Management Information System (MIS) 
forms into one single-page form for use by all DOT agencies and the 
Coast Guard. This conforming amendment

[[Page 6576]]

will change the Coast Guard regulations to conform to DOT's final rule.

DATES: This final rule is effective March 12, 2004.

ADDRESSES: Documents mentioned in this rule are available to the public 
and are part of dockets USCG-2003-16414 and OST-2002-13435. Both 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 document on the Internet at 
http://dms.dot.gov. The MIS form in Appendix H of 49 CFR part 40 may be 
downloaded from the U.S. Coast Guard Marine Safety, Security, and 
Environmental Protection Web site at http://www.uscg.mil/hq/g-m/moa/dapip.htm. This form will also be available from any Marine Safety 
Office.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Mr. Robert C. Schoening, Coast Guard, at 202-267-1430, by fax at 
202-267-1416, or by e-mail at [email protected]. If you have 
questions on the DOT final rule published on July 25, 2003, contact Mr. 
Jim Swart, Drug and Alcohol Policy Advisor (S-1), Office of Drug and 
Alcohol Policy and Compliance, at 202-366-3784, by fax at 202-366-3897 
or by e-mail at [email protected]. If you have questions on viewing 
material in the docket, call Andrea M. Jenkins, Program Manager, Docket 
Operations, telephone (202) 366-0271.

SUPPLEMENTARY INFORMATION:

Viewing Comments and Documents

    To view comments as well as documents mentioned in this rule as 
available in the docket, go to http://dms.dot.gov at anytime and 
conduct a simple search using the docket number. You may also visit the 
Docket Management Facility in 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.

Privacy Act

    Anyone can 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 the Department of 
Transportation's Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

Background

    On July 25, 2003, the Department of Transportation (DOT) published 
a final rule entitled ``Procedures for Transportation Workplace Drug 
and Alcohol Testing Programs: Drug and Alcohol Management Information 
System Reporting'' in the Federal Register (68 FR 43946). This rule 
changed the annual Management Information System (MIS) submission 
format for employee drug and alcohol testing data for all DOT agencies 
and the Coast Guard through the use of a common (MIS) data collection 
form. The Coast Guard must conform to the DOT final rule and use the 
new DOT form to avoid duplication, conflict, or confusion with the DOT 
regulatory requirements. Therefore, the Coast Guard is amending its 
drug testing regulations in 46 CFR part 16 to conform to 49 CFR part 
40.
    The DOT rule reduced the number of data elements on the MIS 
reporting form to be submitted annually by individual marine employers. 
Employers will no longer have to submit:

    1. The number of persons denied a position for a positive drug 
test;
    2. The number of employees returned to duty following a drug 
violation;
    3. Employee drug and alcohol training data;
    4. Supervisor drug and alcohol training data;
    5. Post-accident alcohol testing data; and
    6. Reasonable cause alcohol testing data.
    The DOT has stated that its agencies and the Coast Guard could 
continue to provide direction to their respective regulated employers 
regarding how, when, and where to report MIS data. This conforming rule 
is designed to correspond to the DOT MIS reporting regulations now 
contained in 49 CFR part 40. It requires the use of the new DOT MIS 
form for annual reporting. It also revises and clarifies the definition 
for ``positive rate'' in 46 CFR 16.105 to eliminate any confusion that 
reporting employers had regarding the types of tests to include in this 
calculation.

Discussion of Changes

    The Coast Guard is amending its chemical drug testing regulations 
in 46 CFR part 16 to conform to the DOT's final rule revising 49 CFR 
part 40 drug testing reporting procedures.

Management Information System Requirements

    In Sec. 16.500(b), we are changing form number CG-5573 to OMB form 
2105-0529 issued October 28, 2003, and providing information on 
obtaining the new form.
    The provisions of 49 CFR part 40 regarding alcohol testing and 
reporting of alcohol tests do not apply to the Coast Guard or to marine 
employers. Only the drug testing provisions of 49 CFR part 40 apply to 
the Coast Guard and marine employers. Therefore, alcohol testing 
information is not required or permitted to be submitted on the new 
form. Marine employers are required to submit alcohol testing 
information in accordance with 46 CFR part 4.
    We are removing Sec.Sec. 16.500 (a)(1) through (a)(10) because the 
drug testing information to be submitted is now specified in Appendix H 
to 49 CFR part 40.

Submission of Electronic Information

    Employers desiring to report MIS data electronically on the 
Internet can do so at http://www.uscg.mil/hq/g-m/moa/dapip.htm. 
Submitters must obtain a password from Mr. Robert C. Schoening, listed 
under FOR FURTHER INFORMATION CONTACT, for electronic submission.
    The MIS form in Appendix H of 49 CFR part 40 may be downloaded from 
the U.S. Coast Guard Marine Safety, Security, and Environmental 
Protection Web site at http://www.uscg.mil/hq/g-m/moa/dapip.htm. The 
form will also be available from any Marine Safety Office.

Regulatory Evaluation

    This conforming amendment is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, 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 not 
``significant'' under the regulatory policies and procedures of the 
Department of Homeland Security (DHS). We expect the economic impact of 
this conforming amendment to be so minimal that a full Regulatory 
Evaluation under the regulatory policies and procedures of DHS is 
unnecessary. The basis for the DOT rule was to ``streamline'' the (MIS) 
reporting requirements for all five agencies and the Coast Guard 
through the use of one reporting form, thereby eliminating the need for 
each agency to publish a separate NPRM.
    The DOT issued a notice of proposed rulemaking (NPRM) in the 
Federal Register on September 30, 2002 (67 FR 61306), proposing the use 
of a new MIS form as well as a simplified explanation for form 
submission and completion.

[[Page 6577]]

The majority of public comments and suggestions were in favor of the 
new rule. The final DOT rule mandating the use of the new MIS form was 
published in the Federal Register on July 25, 2003 (68 FR 43946).

Assistance for Small Entities

    Under section 213(a) of the Small Business Fairness Act of 1996 
(Pub. L. 104-121), we want to assist small entities in understanding 
this conforming amendment so that they can better evaluate its effects 
on them. If the amendment would affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, contact Mr. Robert 
Schoening, Coast Guard, telephone (202) 267-1430.
    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

    This conforming amendment calls for no new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
    The DOT's final rule contained information collection requirements 
that were submitted, as required by the Paperwork Reduction Act of 
1995, (the PRA, 44 U.S.C. 3507(d)), to the Office of Information and 
Regulatory Affairs of the Office of Management and Budget (OMB) for 
review. Therefore, the DOT agencies and the Coast Guard will remove PRA 
requirements for the MIS form from their next PRA submission packages. 
In addition, the DOT will place its entire PRA package for the MIS form 
on the Internet when that submission is approved by OMB.
    As stated in the DOT's final MIS rule, according to OMB's 
regulations implementing the PRA (5 CFR 1320.8(b)(2)(vi)), an agency 
may not conduct or sponsor, and a person need not respond to a 
collection of information unless it displays a currently valid OMB 
control number. The OMB control number for the DOT MIS form is 2105-
0529, dated October 28, 2003.

Federalism

    A rule has implications 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 conforming amendment under 
that Order and have determined that it does not have implications for 
federalism.

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 State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. This conforming amendment would not result in such an 
expenditure.

Taking of Private Property

    This conforming amendment will not effect 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 conforming amendment 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 conforming amendment under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. This amendment is not economically significant and will 
not create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This amendment 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 amendment 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 have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. This rule changes the reporting requirements for 
submission of employee drug and alcohol testing. It is procedural in 
nature and therefore is categorically excluded, under figure 2-1, 
paragraph (34)(a), of the Instruction from further environmental 
documentation. A ``Categorical Exclusion Determination'' is available 
in the docket where indicated under ADDRESSES.

List of Subjects in 46 CFR Part 16

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


0
For the reasons discussed in the preamble, the Coast Guard amends 46 
CFR part 16 as follows:

PART 16--CHEMICAL TESTING

0
1. Revise the authority citation for part 16 to read as follows:

    Authority: 46 U.S.C. 2103, 3306, 7101, 7301, and 7701; 
Department of Homeland Security Delegation No. 0170.1.


0
2. In Sec. 16.105, remove the definition for ``positive rate'' and add, 
in alphabetical order, the new definition for ``positive rate for 
random drug testing'' to read as follows:


Sec. 16.105  Definitions of terms used in this part.

* * * * *
    Positive rate for random drug testing means the number of verified 
positive results for random drug tests conducted under this part plus 
the number of refusals of random drug tests required by this part, 
divided by the total number of random drug test results (i.e.,

[[Page 6578]]

positives, negatives, and refusals) under this part.
* * * * *

0
3. In Sec. 16.500, revise paragraphs (a), (b)(1), and (b)(2); and 
remove paragraph (d) to read as follows:


Sec. 16.500  Management Information System requirements.

    (a) Data collection. (1) All marine employers must submit drug 
testing program data required by 49 CFR 40.26 and Appendix H to 49 CFR 
part 40.
    (2) The provisions in 49 CFR part 40 for alcohol testing do not 
apply to the Coast Guard or to marine employers, and alcohol testing 
data is not required or permitted to be submitted by this section.
    (b) * * *
    (1) By March 15 of the year following the collection of the data in 
paragraph (a) of this section, marine employers must submit the data on 
the form titled U.S. Department of Transportation Drug and Alcohol 
Testing MIS Data Collection Form (OMB Number: 2105-0529) by mail to 
Commandant (G-MOA), 2100 Second Street, SW, Washington, DC 20593-0001 
or by Internet at http://www.uscg.mil/hq/g-m/moa/dapip.htm.
    (2) The DOT Drug and Alcohol Testing MIS form can be downloaded and 
printed from http://www.uscg.mil/hq/g-m/moa/dapip.htm or may be 
obtained from any Marine Safety Office.
* * * * *

Appendix B [Removed]

0
4. Remove Appendix B.

    Dated: January 29, 2004.
Joseph J. Angelo,
Acting Assistant Commandant for Marine, Safety, Security and 
Environmental Protection.
[FR Doc. 04-2993 Filed 2-10-04; 8:45 am]
BILLING CODE 4910-15-P