[Federal Register: February 28, 2003 (Volume 68, Number 40)]
[Proposed Rules]
[Page 9622-9627]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe03-50]
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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%.
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[[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