[Federal Register: December 22, 2005 (Volume 70, Number 245)]
[Rules and Regulations]
[Page 75954-75961]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de05-11]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Part 4
[USCG-2001-8773]
RIN 1625-AA27 (Formerly RIN 2115-AG07)
Marine Casualties and Investigations; Chemical Testing Following
Serious Marine Incidents
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: This final rule revises Coast Guard requirements for alcohol
testing after a serious marine incident to ensure that mariners or
their employees involved in a serious marine incident are tested for
alcohol use within 2 hours of the occurrence of the incident as
required under the Coast Guard Authorization Act of 1998. This final
rule also requires that most commercial vessels have alcohol testing
devices on board, and authorizes the use of saliva as an acceptable
specimen for alcohol testing. This rule also makes some minor
procedural changes, including a 32-hour time limit for collecting
specimens for drug testing following a serious marine incident.
DATES: This final rule is effective June 20, 2006.
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-2001-8773 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
[[Page 75955]]
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 Robert Schoening, Coast Guard, telephone 202-267-0684. If you have
questions on viewing the docket, call Renee V. Wright, Program Manager,
Docket Operations, telephone 202-493-0402. This is not a toll-free
call.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background and Purpose
II. Regulatory History
III. Discussion of Comments and Changes
A. Comments Beyond the Scope of This Rulemaking
B. Comments Generally Supporting Rulemaking
C. Who Conducts the Tests
D. Requirement To Carry Alcohol-Testing Devices
E. Lists of Conforming Products
F. When the Tests Should Be Conducted
G. Storage of Testing Devices
H. Testing for the Presence of Alcohol
I. Small Crew Testing and Self-Testing
J. Comments on Regulatory Evaluation
K. Discussion of Changes From NPRM
IV. Regulatory Analysis
A. Regulatory Evaluation
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
L. Technical Standards
M. Environment
I. Background and Purpose
This final rule modifies Coast Guard regulations requiring testing
for drug and alcohol use by persons involved in serious marine
incidents (SMIs) to require that alcohol testing be conducted within 2
hours of a serious marine incident (SMI). This final rule also requires
most commercial vessels to have alcohol testing devices on board and
authorizes the testing of saliva as an acceptable specimen for alcohol
testing. This rule also adds a 32-hour time limit for the collection of
specimens for drug testing following a serious marine incident.
Coast Guard regulations (46 CFR part 4, subpart 4.06) currently
require marine employers to take all practical steps after an SMI to
have each individual engaged or employed on board a vessel in
commercial service, who is directly involved in the incident,
chemically tested for evidence of drug and alcohol use. ``Commercial
service'' includes any type of trade or business involving the
transportation of goods or individuals, except service performed by a
combatant vessel. The regulations do not specify a time requirement
following an SMI for collecting specimens for testing or completing the
tests to determine the use of alcohol or dangerous drugs. The current
regulations also limit testing to blood and breath specimens as the
only acceptable specimens for alcohol testing.
In 1998, Congress passed the Coast Guard Appropriations Act of 1998
(the Act), 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 to ensure that required alcohol testing
is conducted no later than 2 hours after a serious marine casualty
occurs.\1\ 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 as
the safety concerns have been adequately addressed to permit such
testing, but no later than 8 hours after the incident occurs.
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\1\ For purposes of this rulemaking, ``serious marine incident''
or ``SMI'' means the same as ``serious marine casualty'' under
section 2303a.
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On February 28, 2003, the Coast Guard issued a notice of proposed
rulemaking (NPRM) that proposed revisions to 46 CFR part 4 to implement
the requirements of section 2303a. 68 FR 9622, see also 68 FR 50992
(Aug. 25, 2003), 68 FR 60073 (Oct. 21, 2003). The NPRM proposed that
alcohol testing be conducted within 2 hours of an SMI, that commercial
vessels be required to have alcohol-testing devices on board, and
authorized saliva as an acceptable specimen for alcohol testing. The
NPRM also proposed some minor procedural changes to part 4, including a
32-hour time limit for collecting drug test specimens following an SMI.
II. Regulatory History
On February 28, 2003, we published a notice of proposed rulemaking
(NPRM) entitled ``Marine Casualties and Investigations; Chemical
Testing Following Serious Marine Incidents'' in the Federal Register
(68 FR 9622). The NPRM provided a 120-day comment period. In response
to requests for a public meeting, the Coast Guard published a reopening
of the comment period and a notice of public meeting on August 25, 2003
(68 FR 50992). This meeting was to be held on September 19, 2003 in
Washington, DC. Hurricane Isabel forced the closure of all Federal
Government offices in the Washington, DC, metropolitan area on
September 19, 2003 and the public meeting was not held. As a result of
the limited number of participants who had registered to attend the
public meeting, the Coast Guard decided not to reschedule the meeting.
Instead, on October 21, 2003, the Coast Guard published in the Federal
Register (68 FR 60073), a reopening of the comment period until
November 20, 2003 to allow submission of comments that might otherwise
have been presented at the public meeting.
III. Discussion of Comments and Changes
During the comment period, the Coast Guard received 121 comments in
response to the NPRM. Comments were submitted by maritime trade
associations, large and small vessel marine employers, drug and alcohol
testing service agents, manufacturers of alcohol-testing devices, and
one Federal agency. The main issues discussed in the comments were the
requirement to carry alcohol-testing devices, testing device storage,
the costs of purchasing and maintaining the alcohol-testing device, and
requests for exemptions based on size of crew and history of safety.
The comments are divided by category and discussed below.
A. Comments Beyond the Scope of the Rulemaking
The NPRM proposed that alcohol testing be conducted within 2 hours
of an SMI, that commercial vessels be required to have alcohol-testing
devices on board, and authorized saliva as an acceptable specimen for
alcohol testing. The NPRM also proposed some minor procedural changes
to part 4, including a 32-hour time limit for collecting drug test
specimens following an SMI.
Many comments raised issues that are beyond the narrow scope of
this rulemaking. Those comments raised issues about:
(1) The potential liability of marine employers if there is a false
positive on an alcohol screening test, if a positive alcohol reading
was due to an alternate source, such as mouthwash; or because the
Alcohol Screening Devices (ASDs) are not as efficient as Evidential
Breath Tests (EBTs);
(2) Whether the Coast Guard should require a ``confirmation'' test
after the initial screening to verify the presence and level of
alcohol;
(3) Whether the U.S. Coast Guard should adopt a flexible
enforcement approach that takes into consideration
[[Page 75956]]
the reasonable and good faith efforts of vessel supervisors who are
assigned specimen collection functions; and the safety and operational
needs following a serious marine incident;
(4) Whether there should be a separate part to regulate the testing
of human remains; and
(5) Whether the existing definition of an SMI in 46 CFR part 4,
subpart 4.03, is vague and should be clarified.
These comments are beyond the narrow scope of this rulemaking,
which is to implement the timing requirements of section 2302a by
ensuring that marine employers conduct alcohol testing within 2 hours
after an SMI. Although these comments are not discussed further in this
preamble, they have been referred to the appropriate Coast Guard office
for review and appropriate action separate from this rulemaking.
B. Comments Generally Supporting the Rulemaking
A few comments generally supported the proposed rule, stating that
they fully support all testing of all operators when any accident
happens or even when they appear to be operating any vessel unsafely. A
comment from a manufacturer of an alcohol-testing device stated that
the manufacturer supports this rule and believes that the technology
exists to permit implementation of the proposed rule with confidence.
The comment further stated that the manufacturer believes that the
available technology will protect the individual tested with accurate
results, as well as help to ensure public safety by providing timely
information. The manufacturer also stated that the alcohol-testing
devices include built-in quality control indicators to direct proper
use and minimize environmental impact.
C. Who Conducts the Tests
We received 40 comments primarily from small passenger vessel
operators and marine employer trade associations, including charterboat
operator associations and other interested trade associations that
addressed the question of who should be responsible for conducting the
drug or alcohol tests after a SMI. Some of these comments stated that
the Coast Guard should conduct the alcohol testing following an SMI.
Also, 34 of those comments stated that Congress intended that the Coast
Guard conduct alcohol testing after an SMI and that it is wrong to
shift the testing requirement, and its costs, onto the individual
marine employers. One marine employer stated that the Coast Guard, as
the regulator, is in the best position to determine whether a test is
necessary and whether the test should be administered at the site of a
vessel boarding, seizure, or accident investigation, or be conducted
ashore at a Coast Guard facility.
We disagree. Section 2303a requires the Coast Guard to establish
procedures to ensure that alcohol testing is conducted within 2 hours
after a serious marine casualty. It does not require the Coast Guard to
conduct the testing. Under the current rule, the marine employer has
the responsibility to ensure that the alcohol testing occurs. 46 CFR
4.06. We considered the option of using Coast Guard resources to ensure
alcohol testing after a serious marine incident. However, the Coast
Guard finds that this option is impracticable because it is not
possible for Coast Guard personnel to reach the scene of all serious
marine incidents within the 2 hours required by statute to conduct
alcohol testing due to the nature and location of marine industry
operations. The Coast Guard sometimes is not aware that a serious
marine incident has occurred until a report of the incident is filed by
the mariner as required under Coast Guard regulations. 46 CFR 4.06-60.
Even if Coast Guard resources could be at the scene of all serious
marine incidents in time to conduct alcohol testing with 2 hours of the
incident, it would be impracticable to require Coast Guard units to
respond to every incident to conduct required alcohol testing because
it would impermissibly burden Coast Guard resources engaged in other
functions critical to the Coast Guard's mission, such as homeland
security, search and rescue, drug interdiction, migrant interdiction,
marine safety, and environmental protection.
Although the responsibility to ensure proper alcohol testing
continues to rest on the marine employer, this final rule allows the
employer to choose the most cost effective equipment and procedures for
his or her operational circumstances. This rule also allows a marine
employer to use alcohol tests administered by Coast Guard, local law
enforcement personnel, contractors, or other third parties as long as
the test used meets the requirements of part 4. This rule will help to
ensure that required alcohol testing can be conducted by the marine
employers.
D. Requirement To Carry Alcohol-Testing Devices
We received many comments from marine employers and various trade
associations suggesting the Coast Guard allow an exemption from the
requirement to carry testing devices on board for commercial vessels
that only travel a short distance from the shore. Many of the comments
stated that these vessels could meet the 2-hour testing requirement by
using shoreside testing facilities because the vessels are always
within 2 hours of a facility. One comment suggested that vessels that
could return to shore within 4 to 6 hours should be allowed to rely on
shoreside testing facilities to meet the 2-hour testing requirement of
this rule.
We agree that vessels that can reach a testing facility and conduct
required alcohol testing within 2 hours of an SMI should have the
option of doing so. The marine employer may use alcohol testing results
from tests conducted by Coast Guard or local law enforcement personnel
if the alcohol testing meets all of the requirements of this part.
Therefore, we have modified the text of the final rule to relieve
marine employers of the requirement to carry alcohol testing devices on
board if they can receive testing from a shoreside testing facility
within 2 hours of an SMI.
Section 2303a states that alcohol tests must be administered within
2 hours of the SMI. Thus, we do not agree that vessels that can return
to shore within 4 to 6 hours should be allowed to rely on shoreside
testing facilities to meet these requirements. Vessels that cannot
return to shore and have testing conducted within 2 hours must carry
alcohol testing devices onboard the vessels.
E. Lists of Conforming Products
Several comments from marine employers and alcohol testing device
product manufacturers urged the Coast Guard to either publish a list of
alcohol-testing devices that meet the requirements of this rule or
adopt the National Highway Traffic Safety Administration's (NHTSA)
Conforming Products List (CPL) of Evidential Breath Measurement Devices
as the acceptable list of devices that meet the requirements of this
rule.
The Coast Guard agrees that a list of acceptable testing devices
would help marine employers comply with the requirements of this rule.
Accordingly, the final rule requires that marine employers carry
alcohol-testing devices listed on the most current versions of either
the NHTSA Conforming Products Lists of Evidential Breath Measurement
Devices or the NHTSA Conforming Products List of Alcohol Screening
Devices. The current Conforming Products Lists were published in the
Federal Register and are available on the Internet at the following
locations: Conforming Products Lists of Evidential Breath Measurement
Devices, at 69 FR 42237 (July 14, 2004) or http://www.nhtsa.dot.gov/people/injury/
[[Page 75957]]
alcohol/ebtcpl040714FR.pdf and Conforming Products List of Alcohol
Screening Devices at 70 FR 72502 (December 5, 2005) or http://edocket.access.gpo.gov/2005/pdf/E5-6848.pdf.
These lists are also available in the docket for
this rulemaking.
F. When the Tests Should Be Conducted
One comment asked if alcohol testing results are ``acceptable up to
8 hours following an SMI, why not require alcohol testing be conducted
within 8 hours?''
Section 2303a requires that alcohol testing be conducted within 2
hours of an SMI, unless the testing can not be completed within that
time due to safety concerns directly related to the casualty. If there
are such safety concerns, then alcohol testing is to be conducted as
soon as possible after the safety concerns have been addressed.
Therefore, this rule requires testing within 2 hours after an SMI,
unless precluded by safety concerns directly related to the incident,
in which case the testing must be conducted as soon as the safety
concerns are addressed, but not more than 8 hours after the incident.
G. Storage of Testing Devices
A few comments stated that some vessels would have difficulty
storing the testing devices because of limited space on the vessel.
Several other comments stated that storing the testing devices would be
problematic because of ``hostile'' marine weather, which could lead to
an inaccurate testing result.
We disagree. A review of the specifications from actual alcohol
testing devices on the NHTSA CPL lists indicates that some of the
devices are approximately the size of a credit card and others are
slightly larger handheld devices. The smallest box, which contains 30
devices, is 10 x 4.5 x 7 and weighs
2.0 lbs. A box of these proportions should not create a storage problem
on a vessel. The acceptable temperatures for storage of the alcohol-
testing devices ranged from 0-104 [deg]F. The instructions for two of
the testing devices stated that the housing for the device was weather
resistant. There is no evidence that the testing devices are
susceptible to ``hostile'' marine weather and we believe that the
temperature ranges for the alcohol-testing devices are wide enough that
weather will not lead to an inaccurate testing result.
H. Testing for the Presence of Alcohol
We received several comments stating that the testing devices
permitted under this rule do not test the amount of alcohol in a
person's system. Instead, they only test for the presence of alcohol in
a person's system. Several of these comments also stated that such
tests are inadmissible in court. Some of the comments stated that there
could be disciplinary measures taken against mariners who test positive
for the presence of alcohol without knowing the level of alcohol in
their system.
The current alcohol testing regulations in 46 CFR part 4 require
that each individual engaged or employed on board the vessel who is
directly involved in the incident be chemically tested for evidence of
drug and alcohol use. There is no requirement that the amount of
alcohol in a mariner's system be determined after an SMI. This rule
does not change that requirement. In this rule, we require that
currently mandated alcohol testing to be conducted within 2 hours of an
SMI. However, a marine employer may choose to use any device from the
NHTSA Conforming Products Lists of Evidential Breath Measurement
Devices, all of which measure the amount of alcohol in a person's
system. This rule does not change how mariners are disciplined by the
marine employer or by the Coast Guard.
I. Small Crew Testing and Self-Testing
Several comments stated that one to five person crews would be
required to test each other, test family members, or self-test in the
event of an SMI and that, in some instances, a crew member would be
required to test the captain. Some comments questioned the integrity
and reliability of the test results under these circumstances. A few
comments suggested that crews smaller than 20 members and crews with a
history of safety be exempt from this rule.
This rule does not change the current requirements for who should
be chemically tested for alcohol use and who conducts the tests after
an SMI. Section 4.06-1(b) requires that marine employers ``take all
practicable steps to have each individual engaged or employed on board
the vessel who is directly involved in the incident chemically tested
for evidence of drug and alcohol use.'' Section 4.06-1(b) has been in
effect since 1988 and is not revised by this rule. The statute
requiring that alcohol testing be conducted within 2 hours of an SMI,
46 U.S.C. 2303a, does not provide for an exemption based on the size of
the crew or the crew's safety history.
J. Comments on Regulatory Evaluation
Several comments stated that the cost of complying with these
requirements would be excessive and would be burdensome on businesses.
We disagree. We expect marine employers will choose inexpensive
saliva Alcohol Screening Devices (ASDs), thereby meeting the minimum
requirements and costs to comply with this rule. The average price for
saliva ASDs is $113 per package containing 25 to 30 testing devices. A
package of testing devices can easily be separated into smaller
quantities of testing devices to accommodate marine employers that own
or operate more than one vessel, or to accommodate those marine
employers that own or operate one vessel and may want to split the cost
of one package. Our cost estimates are conservative (high) because we
assume there will be one package of 25 to 30 saliva ASDs purchased for
each vessel. We also assume there may be first-year and annual training
costs associated with saliva ASDs devices, even though manufacturers
and suppliers claim these tests can be properly completed within five
minutes, which includes the time to read the instructions.
A few comments stated that our reported prices for testing devices
and our compliance cost estimates were inaccurate.
We conducted market research of several testing devices to
determine current prices and package quantities. We calculated the
direct cost of this rule to industry by estimating the purchase cost of
the devices, the training cost, and the cost of replacing the devices
due to expiration. We used mariner wage rates to approximate the costs
associated with testing device training, and we used wage data from the
2002 National Occupation Employment and Wage Statistics for Captains,
Mates, and Pilots of Water Vessels published by the Bureau of Labor
Statistics. Our 10-year cost estimate is the discounted present value
total of the first-year implementation cost and the annual cost with
and without testing device replacement.
Some comments about the cost of ASDs stated that the NPRM
acknowledged that ``the cost of the less expensive ASDs could still be
too expensive for the smallest commercial vessel operators and
owners.''
These comments inaccurately quoted the NPRM, which actually stated
``the cost of the less expensive breath ASDs could still be too
expensive for the smallest commercial vessel operators and owners.''
Saliva ASDs are less expensive than some breath ASDs and that is why
Coast Guard will allow marine employers to use saliva ASDs. Including
saliva ASDs provides a wider variety of alcohol-testing devices, which
[[Page 75958]]
gives marine employers more control over the cost of compliance.
One comment stated that third-party alcohol screening and testing
facilities would be adversely impacted by these requirements and forced
out of business.
This rule does not disallow third-party testing, provided the
testing is conducted within 2 hours of an SMI, as required by section
2303a.
A few comments stated that the costs associated with this rule
could adversely impact small businesses.
We disagree with the comments. We estimate that the percentage
impact of annual cost on annual revenue for small businesses range from
0.00% to 0.45%, demonstrating the cost impacts of this rule are a small
percentage of revenues for small businesses. Small businesses need only
purchase inexpensive saliva ASDs to comply with the minimum
requirements of this rule. The saliva ASDs do not require extensive
training, and we expect the cost of these requirements will be
insignificant for small businesses. A Final Regulatory Flexibility
Analysis detailing the impacts on small businesses is available in the
docket as part of the Regulatory Analysis indicated under ADDRESSES.
Some comments stated that the estimated number of small entities
affected by this rulemaking is too low.
We have revised our estimates based on additional information from
industry and additional data from the Coast Guard Office of
Investigation and Analysis. See the following ``Small Entity'' section
for more about the impacts on small businesses.
K. Discussion of Changes From NPRM
The regulatory text in this rule is slightly different from the
Coast Guard to the final rule resulted from the comments:
(1) An exception to ensure alcohol testing is conducted within 2
hours of occurrence of the SMI; and
(2) A requirement that alcohol-testing devices used to meet the
requirements of this regulation must be listed on one of the current
NHTSA Conforming Products Lists.
We did not make any substantive changes to the proposed requirement
to collect drug specimens within 32 hours of an SMI because we did not
receive any comments on this provision.
IV. Regulatory Analysis
A. Regulatory Evaluation
Executive Order 12866, ``Regulatory Planning and Review'', 58 FR
51735, October 4, 1993, requires a determination whether a regulatory
action is ``significant'' and therefore subject to review by the Office
of Management and Budget (OMB) and subject to the requirements of the
Executive Order. This rule has been identified as significant under
Executive Order 12866 and has been reviewed by OMB and DHS.
The final Regulatory Analysis is available in the docket as
indicated under ADDRESSES. A summary of the Regulatory Analysis is
below.
Section 2303a of Title 46, U.S. Code, requires the Coast Guard to
establish procedures to ensure alcohol testing is conducted within 2
hours of an SMI. This final rule will establish a requirement for all
marine employers (vessel owners and operators) to have alcohol-testing
devices readily available for use to meet the requirements for alcohol
testing following an SMI.
This rule will require alcohol testing within 2 hours of an SMI,
whereas the current regulation does not specify a time frame for
testing. In order to comply with this final rule, marine employers will
need to purchase and maintain alcohol-testing devices onboard the
vessels they own and operate if they cannot reach a shoreside facility
and conduct alcohol testing of their employees within 2 hours of an
SMI. We have delayed the implementation of this rule by 180 days from
the date of its publication in the Federal Register. We believe this
will ensure that all marine employers subject to this new requirement
will have enough time to purchase the testing devices and to train
their employees how to use these devices.
This rule requires marine employers to select testing devices
listed on the National Highway Traffic Safety Administration's (NHTSA)
Conforming Products Lists (CPL). The CPLs list Evidential Breath
Testing devices (EBTs) and Alcohol Screening Devices (ASDs). The
purchase price of EBTs range from $490 to $8,453 per device, however,
the purchase price of saliva ASDs average $113 per package of between
25 and 30 testing devices. The maintenance and training costs of EBTs
are also much higher than the saliva ASDs.
For saliva ASD's, we estimate that training will take no more than
30 minutes. For the purposes of this analysis, we use mariner wage
rates to approximate the cost associated for testing device training.
We assume the wage rate to be $37 per hour based on the 2002 National
Occupation Employment and Wage Statistics for Captains, Mates, and
Pilots of Water Vessels published by the Bureau of Labor Statistics. We
assume there will be training costs for five (four training, one
trainer) mariners in the first year of implementation and training
costs for three (two training, one trainer) mariners thereafter.
We expect marine employers will choose the less expensive saliva
ASDs thereby meeting the minimum requirements to comply with this rule.
If marine employers choose to purchase more expensive testing devices,
then they are making a decision based on other business or operating
factors, rather than this final rule. We conclude that industry need
only purchase the less expensive saliva ASDs to comply with the minimum
requirements of this rule.
This rule affects marine employers that own or operate
approximately 183,400 commercial vessels. Of these vessels,
approximately 2,600 vessels are already required to carry alcohol
breath-testing devices in accordance with 46 CFR 4.06-20(a) and will
not incur additional costs from this rule. Therefore, this rule will
require marine employers of approximately 181,000 vessels to purchase
devices, train employees how to use devices, and maintain or replace
expired devices.
We calculated the direct cost of this rule to industry by
estimating the purchase cost of the devices, the training cost, and the
cost of replacing the devices due to expiration. The average first-year
implementation cost per vessel for marine employers is $206 for the
purchase of one package of saliva ASDs and initial training. The annual
cost per vessel after the first-year implementation of the rule ranges
from approximately $56 without testing device replacement to about $169
with testing device replacement. Based on manufacturer information, we
expect marine employers to replace saliva ASDs every other year or
approximately every 12 to 18 months.
We estimate the first-year implementation cost of this rule for
marine employers to be $37 million ($113 for the device plus $93 for
training cost multiplied by the total population of 181,000 vessels) to
purchase testing devices and to provide initial training. The annual
cost for marine employers after the implementation of the rule ranges
from $10 million ($56 for training multiplied by the total population
of 181,000) without testing device replacement, to about $31 million
($113 for the device plus $56 for training cost multiplied by the total
population of 181,000 vessels) with testing device replacement.
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered
[[Page 75959]]
whether this 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.
We used data from the Coast Guard's Office of Investigations and
Analysis, the U.S. Census Bureau's data on companies in the marine
transportation industry, and the Small Business Administration's (SBA)
business size standards to determine the number of small entities
affected by this rule. The SBA size standards are based on the North
American Industry Classification System (NAICS) subsectors. We used the
following NAICS subsectors:
Deep Sea, Coastal, & Great Lakes water transportation
(sub-sector 4831), 500 employees or less;
Inland Water Transportation (sub-sector 4832), 500
employees or less;
Scenic and Sightseeing Transportation (sub-sector 4872),
annual revenue of $5,000,000 or less;
Port and Harbor Operations (sub-sector 48831), annual
revenue of $21,500,000 or less;
Marine Cargo Handling (sub-sector 48832), annual revenue
of $21,500,000 or less; and
Navigational Services to Shipping (sub-sector 48833),
annual revenue of $5,000,000 or less.
We estimate that this rule will impact over 13,000 small entities
that will comply with this rule by selecting saliva ASDs. We estimate
that the percentage impact of cost on revenue for these small entities
range from 0.00% to 0.45%, demonstrating the cost impacts of this rule
are a small percentage of revenues for these small entities. Therefore,
the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule
will not have a significant economic impact on a substantial number of
small entities. A Final Regulatory Flexibility Analysis explaining the
analysis in more detail is available in the docket as part of the
Regulatory Analysis indicated under ADDRESSES.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking.
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).
D. Collection of Information
This rule revises an existing collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We received no
comments related to the collection of information and no changes were
made that affect this collection.
Title: Marine Casualty Information and Periodic Chemical, Drug, and
Alcohol Testing on Commercial Vessel Personnel (OMB 1625-0001, formerly
OMB 2115-0003).
Summary of the Collection of Information: This regulation requires
marine employers to document the reason for delaying the alcohol test
on form CG-2692B. The requirement to report this information is found
in 46 CFR 4.06-3. We revised form CG-2692B accordingly to record the
results of all types of alcohol testing (blood, breath, and saliva).
Need for Information: According to 46 U.S.C. 2303a, this regulation
requires marine employers to document the reason for delaying the
alcohol test on form CG-2692B if alcohol testing is not completed
within the 2-hour timeframe. If the alcohol test is not completed
within the 8-hour timeframe, the marine employer must document the
reason for the further delay of alcohol testing on form CG-2692B.
Use of Information: The Coast Guard will use the information 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 will not change the number of incidents or accidents that
trigger a response; therefore the increase in respondents would be
zero.
Frequency of Response: The frequency of response continues to be
once per incident.
Burden of Response: The possible additional burden imposed by this
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 1-
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 rule is estimated to be so minimal, it does not merit changing
the approved annual burden.
As required by 44 U.S.C. 3507(d), we submitted a copy of this rule
to the Office of Management and Budget (OMB) for its review of the
collection of information. OMB has approved the revised collection. The
section number is 46 CFR 4.06-3, and the corresponding approval number
from OMB is OMB Control Number 1625-0001.
You are not required to respond to a collection of information
unless it displays a currently valid OMB control number.
E. 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.
The law is well settled that States may not regulate in categories
reserved for regulation by the Coast Guard. The law also well settled
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 United States v. Locke and Intertanko v. Locke, 529 U.S.
89, 120 S.Ct. 1135 (March 6, 2000). Rules on testing marine personnel
for drugs and alcohol fall into the category of personnel qualification
and rules on carrying alcohol-testing devices fall into the category of
equipping. Because the States may not regulate within these categories,
this rule does not raise new preemption issues under Executive Order
13132.
F. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-
1538) requires Federal agencies to assess the effects of their
discretionary regulatory actions. In particular, UMRA addresses actions
that may result in the expenditure by a State, local, or tribal
government, in the aggregate, or by the
[[Page 75960]]
private sector of $100,000,000 or more in any one year. Though this
rule will not result in such an expenditure, we do discuss the effects
of this rule elsewhere in this preamble.
G. Taking of Private Property
This rule will 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.
H. Civil Justice Reform
This 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.
I. Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
J. 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.
K. Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. Although this rulemaking has been determined to
be a ``significant regulatory action'' under Executive Order 12866, we
have determined that it is not a ``significant energy action'' under
that order because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The Administrator
of the Office of Information and Regulatory Affairs has not designated
it as a significant energy action. Therefore, it does not require a
Statement of Energy Effects under Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
M. Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
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. Therefore, this rule is categorically excluded from
further environmental documentation under figure 2-1, paragraph (34)(a)
and (c) of the Instruction. This final rule establishes testing
procedures which are administrative in nature and could be used in
disciplining maritime personnel. An ``Environmental Analysis Check
List'' and a ``Categorical Exclusion Determination'' are 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.
Regulatory Text
0
For the reasons discussed in the preamble, the Coast Guard amends 46
CFR part 4 as follows:
PART 4--MARINE CASUALTIES AND INVESTIGATIONS
0
1. The authority citation 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; Department of
Homeland Security Delegation No. 0170.1. Subpart 4.40 issued under
49 U.S.C. 1903(a)(1)(E).
0
2. In Sec. 4.06-1, in paragraph (b), at the end of the sentence, add
the phrase ``as required in this part'' and revise paragraphs (c) and
(d) to read as follows:
Sec. 4.06-1 Responsibilities of the marine employer.
* * * * *
(c) The marine employer determines which individuals are directly
involved in a serious marine incident (SMI). A law enforcement officer
may determine that additional individuals are directly involved in the
SMI. In these cases, the marine employer must take all practical steps
to have these additional individuals tested according to 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 an
SMI when their performance is necessary to respond to safety concerns
directly related to the incident.
* * * * *
0
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 that
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
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 prevent the
alcohol testing from being conducted within 2 hours of the occurrence
of the incident, then alcohol testing must be completed as soon as the
safety concerns are addressed.
(iii) Alcohol testing is not required to be conducted more than 8
hours after the occurrence of the SMI.
(2) Alcohol-testing devices must be used according to the
procedures specified by the manufacturer of the testing device and by
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 why the testing 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
[[Page 75961]]
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 collection of drug-test specimens of each individual must
be conducted within 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 prevent the
collection of drug-test specimens from being conducted within 32 hours
of the occurrence of the incident, then the collection of drug-test
specimens must be conducted as soon as the safety concerns are
addressed.
(2) If the drug-test specimens required in paragraphs (b)(1)(i) and
(b)(1)(ii) of this section were not collected, the marine employer must
document on form CG-2692B the reason why the specimens were not
collected.
0
4. Revise Sec. 4.06-5 to read as follows:
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 an SMI must provide a blood,
breath, saliva, or urine specimen for chemical testing when directed to
do so by the marine employer or a law enforcement officer.
(b) If the individual refuses to provide a blood, breath, saliva,
or urine specimen, this refusal must be noted on form CG-2692B and in
the vessel's official log book, if a log book is required. The marine
employer must remove the individual as soon as practical from duties
that directly affect the safe operation of the vessel.
(c) Individuals subject to alcohol testing after an SMI are
prohibited from consuming alcohol beverages for 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 to provide
specimens is a violation of this subpart and may subject the individual
to suspension and revocation proceedings under part 5 of this chapter,
a civil penalty, or both.
Sec. 4.06-10 [Removed]
0
5. Remove Sec. 4.06-10.
0
6. Add Sec. 4.06-15 to read as follows:
Sec. 4.06-15 Accessibility of chemical testing devices.
(a) Alcohol testing. (1) The marine employer must have a sufficient
number of alcohol testing devices readily accessible on board the
vessel to determine the presence of alcohol in the system of each
individual who was directly involved in the SMI.
(2) All alcohol testing devices used to meet the requirements of
this part must be currently listed on either the Conforming Products
List (CPL) titled ``Modal Specifications for Devices To Measure Breath
Alcohol'' or ``Conforming Products List of Screening Devices To Measure
Alcohol in Bodily Fluids,'' which are published periodically in the
Federal Register by National Highway Traffic Safety Administration
(NHTSA).
(3) The alcohol testing devices need not be carried on board each
vessel if obtaining the devices and conducting the required alcohol
tests can be accomplished within 2 hours from the time of occurrence of
the SMI.
(b) Drug testing. (1) The marine employer must have a sufficient
number of urine-specimen collection and shipping kits meeting the
requirements of 49 CFR part 40 that are readily accessible for use
following SMIs.
(2) The specimen collection and shipping kits need not be carried
on board each vessel if obtaining the kits and collecting the specimen
can be completed within 32 hours from the time of the occurrence of the
SMI.
0
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 according to this
subpart.
(b) Drug testing. (1) 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
according to 46 CFR part 16 and 49 CFR part 40.
(2) Specimen collection and shipping kits used to conduct drug
testing must be used according to 49 CFR part 40.
0
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: December 15, 2005.
Thomas H. Collins,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 05-24375 Filed 12-21-05; 8:45 am]
BILLING CODE 4910-15-P