[Federal Register: February 11, 2004 (Volume 69, Number 28)]
[Rules and Regulations]
[Page 6575-6578]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe04-34]
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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 Rschoening@comdt.uscg.mil. 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 Jim.Swart@ost.dot.gov. 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]
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