[Federal Register Volume 77, Number 13 (Friday, January 20, 2012)]
[Proposed Rules]
[Pages 2935-2937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1156]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 95

46 CFR Part 16

[Docket No. USCG-2010-1064]
RIN 1625-AB58


Revision to Chemical Testing Regulations for Mariners and Marine 
Employers

AGENCY: Coast Guard, DHS.

ACTION: Notice of inquiry; request for comments.

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SUMMARY: The Coast Guard is considering revising the regulations 
governing chemical (drug and alcohol) testing of mariners. In support 
of that effort, we would like input from mariners, marine employers, 
service agents, and substance abuse professionals on a number of 
questions relating to the administration of chemical testing programs 
for mariners by mariner employers.

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before March 20, 
2012 or reach the Docket Management Facility by that date.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-1064 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov, under 
docket number USCG-2010-1064.
    (2) Fax: (202) 493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is (202) 366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.
    Confidential Information, Proprietary Information and Sensitive 
Security Information (SSI): Do not submit comments that include trade 
secrets, confidential commercial or financial information, or sensitive 
security

[[Page 2936]]

information (SSI) to the public regulatory docket. Please submit such 
comments separately from other comments on the rulemaking. Comments 
containing this type of information should be appropriately marked as 
containing such information and submitted by mail to the Coast Guard 
point of contact listed in the FOR FURTHER INFORMATION CONTACT section.
    Upon receipt of such comments, the Coast Guard will not place the 
comments in the public docket and will handle them in accordance with 
applicable safeguards and restrictions on access. The Coast Guard will 
hold them in a separate file to which the public does not have access, 
and place a note in the public docket that Coast Guard has received 
such materials from the commenter. If the Coast Guard receives a 
request to examine or copy this information, we will treat it as any 
other request under the Freedom of Information Act (FOIA) (5 U.S.C. 
552).

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice, 
call or email Robert Schoening, Office of Investigations and Casualty 
Analysis, U.S. Coast Guard; telephone (202) 372-1033, email 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to respond to this request by submitting comments 
and related material on the below questions. All comments received will 
be posted, without change, to http://www.regulations.gov and will 
include any personal information you have provided.
    Submitting comments and information: If you submit a comment, 
please include the docket number for this notice (USCG-2010-1064) and 
provide a reason for each suggestion or recommendation. You may submit 
your comments and material online, or by fax, mail or hand delivery, 
but please use only one of these means. We recommend that you include 
your name and a mailing address, an email address, or a telephone 
number in the body of your document so that we can contact you if we 
have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Select document Type'' drop down menu 
select ``Notice'' and insert ``USCG-2010-1064'' in the ``Enter Keyword 
or ID'' box. Click ``Search'' then click on the balloon shape in the 
``Actions'' column. If you submit your comments 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.
    Viewing the Comments: To view the comments online, go to http://www.regulations.gov, click on the ``read comments'' box, which will 
then become highlighted in blue. In the ``Enter Keyword or ID'' box 
insert ``USCG-2010-1064'' and click ``Search.'' Click the ``Open Docket 
Folder'' in the ``Actions'' column.
    If you do not have access to the Internet, you may view the docket 
by visiting the Docket Management Facility in Room W12-140 on the 
ground floor of the Department of Transportation West Building, 1200 
New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. We have an agreement 
with the Department of Transportation to use the Docket Management 
Facility.
    Privacy Act: Anyone can search the electronic form of 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 a 
Privacy Act, system of records notice regarding our public dockets in 
the January 17, 2008, issue of the Federal Register (73 FR 3316).

Background and Purpose

    The Coast Guard is considering revising the regulations governing 
drug testing of mariners in 46 CFR part 16 and alcohol testing in 33 
CFR part 95. In support of that effort, the Coast Guard is requesting 
information from marine employers, mariners, and the public on several 
questions related to chemical testing of merchant mariners. The Coast 
Guard also seeks input from State, local, and Tribal governments and 
from small entities on issues related to administering a drug testing 
program. When responding to the questions below, please provide 
quantitative data on costs, benefits, and other relevant information, 
specifying sources of information and citations.

Request for Information

    The Coast Guard seeks information on the following questions:

A. Casualty Data Related to Drug and Alcohol Use

    Casualties involving drug and alcohol use on commercial vessels can 
cause a variety of negative impacts, including loss of life, injuries, 
and property damage. What non-Coast Guard sources of data or 
information exist detailing benefits or avoided damages that may result 
from programs which prevent drug and alcohol-related commercial vessel 
casualties?

B. Recurrent Training for Supervisors

    Currently, 46 CFR 16.401 requires Employee Assistance Program (EAP) 
training for employees subject to the chemical testing rules in 46 CFR 
part 16 and their supervisors. The next five questions focus on 
supervisors, who are required to have at least 60 minutes of EAP 
training.
    (1) Do you, as a marine employer, or consortium or third-party 
administrator (C/TPA), require recurring (annual or some other 
frequency) training for supervisors on the signs and effects of drug 
and alcohol use?
    (2) If so, what is the duration, frequency, and cost of training 
for supervisors?
    (3) What method of training do you use (e.g., classroom, online, 
written materials, etc.)?
    (5) What are the costs of your training?
    (6) Would a requirement for recurrent supervisory training impact 
your business operations? How so and by how much?
    (7) What are the benefits, if any, of training for supervisors on 
the signs and effects of drug and alcohol use? How effective is 
supervisor training in helping employers identify and prevent drug and 
alcohol use and resulting accidents?

C. Immediate Reporting for Testing

    The Coast Guard is considering a requirement for crewmembers who 
are selected for testing to report immediately to the testing site upon 
being notified. The current requirement is that crewmembers randomly 
selected for testing must report, but how soon they must report is not 
specified. The Coast Guard believes that requiring mariners to report 
immediately may improve the reliability and effectiveness of employers' 
drug-testing programs. Immediate reporting is currently required by the 
Federal Aviation Administration's rule at 14 CFR 120.109(b)(8), which 
regulates aviation

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employees, and the Federal Motor Carrier Safety Administration's rule 
at 49 CFR 382.305(l), which regulates commercial truck drivers. The 
following questions are related to immediate reporting.
    (1) What is the average or usual amount of time between when 
crewmembers are informed of their selection for random testing and 
their reporting for testing at the collection site?
    (2) What is your company or C/TPA's policy or practice, if any, 
regarding how much time may elapse after the crewmember is notified of 
the selection before your company or C/TPA considers the delay to be a 
refusal to submit to testing?
    (3) As a marine employer, would a requirement to report immediately 
for testing impact your business operations? If so, how and by how 
much?
    (4) Do you conduct on-site collection of specimens?
    (5) How would immediate reporting for testing improve the 
reliability and effectiveness of your drug-testing programs?
    (6) Do marine employees appear for random drug tests required by 
Coast Guard regulations during work hours or on their own time?
    (7) How effective do you believe a ``report immediately'' 
requirement would be in detecting drug use (i.e., by what percent do 
you estimate non-negative test results would increase if there was a 
``report immediately'' requirement for the industry)?
    (8) Do you think a ``report immediately'' requirement would result 
in a more effective random drug testing program?
    (9) The current requirement is that crewmembers randomly selected 
for testing must report, but how soon they must report is not 
specified. Since industry is currently incurring the costs of testing, 
the Coast Guard does not believe immediate reporting for testing poses 
significant additional costs. What costs, above and beyond current 
compliance costs, would be incurred for immediate reporting after 
notification compared to reporting within 24 hours, or even a few days?

D. Consortia Membership for Independent Owners/Operators

    (1) If you are an independent owner/operator, do you use a 
Consortium or Third Party Administrator (C/TPA) to manage the random 
testing portion of your chemical testing program? If not, how would it 
impact your business operations, including costs and burden, to use a 
consortium?
    (2) What are the benefits of using a C/TPA to manage the random 
testing portion of your chemical testing program?

E. Marine Employer Reporting of Failed Chemical Tests

    Under 46 CFR 16.201(c), marine employers who must have a random 
drug testing program are only required to report failed drug test 
results for credentialed mariners, not for non-credentialed mariners.
    (1) What would be the cost if marine employers were also required 
to report failed drug tests for non-credentialed mariners?
    (2) How many failed drug tests of non-credentialed mariners have 
you received during the last 5 years? Out of how many tests?
    (3) How many failed drug tests of non-credentialed mariners would 
you expect to see, if marine employers were required to report those 
test results to the Coast Guard.
    (4) What benefit, if any, do you see in requiring all failed drug 
tests (credentialed and non-credentialed mariners) to be reported to 
the Coast Guard?

F. Medical Review Officers (MROs) Reporting Non-Negative Test Results 
Directly to the Coast Guard

    A non-negative specimen is a urine specimen that is adulterated, 
substituted, positive (for drug(s) or drug metabolite(s)), and/or 
invalid.
    (1) For MROs, how would a requirement to report all non-negative 
test results to the Coast Guard (in addition to the marine employer) 
impact your business?
    (2) For MROs, what would be your preferred method to report non-
negative drug test results to the Coast Guard?

G. Electronic Reporting of Management Information System (MIS) Data

    Eighty percent of annual Management Information System reports are 
submitted through the internet.
    (1) If you do not submit your annual MIS data through the internet, 
what would the cost or savings be if you did?
    (2) Would you request an exemption from electronic reporting if one 
was available?

H. Exemption From Reporting

    Under 46 CFR 16.500(c), employers who must have a random drug 
testing program but who have 10 or fewer employees are exempt from 
mandatory MIS reporting after their third year of reporting.
    (1) Are you taking advantage of this exemption? If so, what would 
the impact be to you if you no longer could take advantage of this 
exemption?
    (2) What sources of data or information exist on the number of 
employers that are exempt from mandatory reporting and the cost impacts 
of requiring reporting by all entities?

I. Minimum Drug-Testing Rate

    Current regulations require that employers who must have a random 
drug testing program test their crewmembers at a rate equal to 50 
percent of their covered crewmembers annually. The Coast Guard is 
considering allowing individual companies to use a lower testing rate 
(25 percent) if they can demonstrate a positive test results rate of 1 
percent or less for 2 consecutive years.
    (1) As an employer, based on past performance, do you believe that 
you could qualify for the lower testing rate? If so, what would be the 
cost savings associated with the lower testing rate?
    (2) To C/TPAs, how would managing clients, some of whom have a 
lower testing threshold (25 percent) and others at the standard testing 
threshold (50 percent), impact your business operations?

J. Impacts on Small Entities

    Would the measures discussed in this notice have a significant 
economic impact on a substantial number of small entities? What sources 
of data or information exist detailing the economic impact on small 
entities, which may result if the measures discussed above were 
implemented?
    Any information provided in response to this request for comments 
is appreciated and will be considered by the Coast Guard. This notice 
is issued under authority of 5 U.S.C. 552(a) and 33 CFR 1.05-1.

    Dated: January 13, 2012.
Paul F. Thomas,
Captain, U.S. Coast Guard, Acting Director of Prevention Policy.
[FR Doc. 2012-1156 Filed 1-19-12; 8:45 am]
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