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Chemical Testing
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: August 16, 2001 (Volume 66, Number 159)]
[Rules and Regulations]
[Page 42964-42968]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16au01-13]
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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