Chemical Testing for Dangerous Drugs of Applicants for Issuance or Renewal of Licenses, Certificates of Registry, or Merchant Mariner's Documents; Proposed Rule DEPARTMENT OF TRANSPORTATION

SUMMARY: The Coast Guard proposes to require chemical testing for use

of dangerous drugs of all applicants for issuance or renewal of

licenses, certificates of registry (CORs), or merchant mariner's

documents (MMDs). This action is necessary to implement the

requirements of the Oil Pollution Act of 1990 (OPA 90). Testing of

applicants would increase maritime safety by providing an additional

tool in the effort to promote a drug-free work place in the maritime

industry.

DATES: Comments must be received on or before May 3, 1994.

ADDRESSES: Comments may be mailed to the Executive Secretary, Marine

Safety Council (G-LRA/3406) (CGD 91-223), U.S. Coast Guard

Headquarters, 2100 Second Street SW., Washington, DC 20593-0001, or may

be delivered to room 3406 at the same address between 8 a.m. and 3

p.m., Monday through Friday, except Federal holidays. The telephone

number is (202) 267-1477.

Comments on collection of information requirements must be mailed

also to the Office of Information and Regulatory Affairs, Office of

Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN:

Desk Officer, U.S. Coast Guard.

The Executive Secretary maintains the public docket for this

rulemaking. Comments will become part of this docket and will be

available for inspection or copying at room 3406, U.S. Coast Guard

Headquarters.

FOR FURTHER INFORMATION CONTACT:

Mr. James W. Cratty, Project Manager, OPA 90 Staff, (202) 267-6740

between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION:

Request for Comments

The Coast Guard encourages interested persons to participate in

this rulemaking by submitting written data, views, or arguments.

Persons submitting comments should include their names and addresses,

identify this rulemaking (CGD 91-223) and the specific section of this

proposal to which each comment applies, and give the reason for each

comment. The Coast Guard requests that all comments and attachments be

submitted in an unbound format suitable for copying and electronic

filing. If not practical, a second copy of any bound material is

requested. Persons wanting acknowledgment of receipt of comments should

enclose a stamped, self-addressed postcard or envelope. The Coast Guard

will consider all comments received during the comment period. It may

change this proposal in view of the comments.

The Coast Guard plans no public hearing. Persons may request a

public hearing by writing to the Marine Safety Council at the address

under ADDRESSES. The request should include reasons why a hearing would

be beneficial. If it determines that the opportunity for oral

presentations will aid this rulemaking, the Coast Guard will hold a

public hearing at a time and place announced by a later notice in the

Federal Register.

Drafting Information

The principal persons involved in drafting this document are Mr.

James W. Cratty, Project Manager, and Jacqueline L. Sullivan, Project

Counsel, Oil Pollution Act (OPA 90) Staff.

Background and Purpose

In recent years, several major oil spills from ships have occurred

in waters under the jurisdiction of the United States. Among these were

the EXXON VALDEZ in Prince William Sound, Alaska, and the AMERICAN

TRADER in coastal waters of California. These spills caused extensive

damage, including the loss of fish and wildlife. In response to these

disasters and others, Congress passed the Oil Pollution Act of 1990

(OPA 90) (Pub. L. 101-380).

Among other things, OPA 90 introduces new safety measures relating

to vessel operations. This notice of proposed rulemaking (NPRM)

proposes regulations to implement sections 4101(a) and (b) of OPA 90,

which amend 46 U.S.C. 7101 and 7302, respectively, to require every

person who applies for the issuance or renewal of a license,

certificate of registry (COR), or merchant mariner's document (MMD) to

have a test for dangerous drugs.

Under 46 CFR part 10, the Coast Guard issues licenses to qualified

officers such as masters, mates, pilots, engineers, operators, and

radio officers, and issues CORs to qualified staff officers such as

pursers, medical doctors, and professional nurses.

Under the authority of 46 U.S.C. 7302, any person serving aboard

most U.S.-flag merchant vessels of more than 100 gross tons operating

on other than rivers and lakes must be issued an MMD by the Coast

Guard. This document serves as a certificate of identification and

service, authorizing work in different capacities on deck and in the

engine and steward's departments. The MMD, with an appropriate

endorsement, is also the credential issued to a qualified tankerman.

The statutory language of OPA 90 refers to the testing of an

individual for the use of dangerous drugs in violation of law or

Federal regulation. Existing Coast Guard regulations are framed around

the phrase ``chemical test,'' which is already defined in 46 CFR

16.105. For the purposes of this NPRM, the chemical testing required of

applicants for issuance or renewal of licenses, CORs, or MMDs relates

only to the use of dangerous drugs.

Section 4103(a)(2) of OPA 90 amends 46 U.S.C. 2101 by adding

``dangerous drug'' to the list of general definitions and removes the

definition of dangerous drugs from 46 U.S.C. 7503(a) and 7704(a). The

definition of ``dangerous drug'' in section 4103(a)(2) of OPA 90

includes the term ``controlled substance.'' Although ``marijuana'' is

not specifically mentioned in the new definition, marijuana is a

controlled substance under 21 U.S.C. 802, and is therefore covered by

the definition of ``dangerous drug.'' This NPRM would revise the

definition of ``dangerous drug'' in 46 CFR 16.105 to conform it to the

definition in 46 U.S.C. 2101, as amended by section 4103(a)(2) of OPA

90. This change has no substantive effect on the existing drug testing

rules in 46 CFR part 16.

Currently, 46 CFR 16.220(b) provides exceptions to the periodic

chemical test requirement when there has been a recent test for

dangerous drugs or participation in a random test program. These

exceptions were revised by a final rule published in the Federal

Register on May 28, 1993 (58 FR 31104). The revised exceptions would

apply to the new testing requirements.

Section 4102(b) and (c) of OPA 90 amends 46 U.S.C. 7107 and 7302 to

limit the terms of CORs and MMDs to 5 years. On September 16, 1993 the

Coast Guard published an NPRM in the Federal Register (58 FR 48572)

entitled ``Five-year Term of Validity for Certificates of Registry and

Merchant Mariner's Documents'' (CGD 91-211) to implement the provisions

of section 4102. Although the NPRMs for chemical testing and terms of

validity both deal with the issuance and renewal of merchant mariner's

credentials, two separate documents have been issued for ease of review

by the public. This NPRM proposes additional changes to update Coast

Guard regulations, but it does not affect the regulatory amendments

contained in the ``Five-Year Term of Validity for Certificates of

Registry and Merchant Mariner's Documents'' NPRM. In two places, 46 CFR

10.805(g) and 12.02-9(f), this NPRM contains proposed regulatory text

that would follow after additions proposed in the ``Five-Year Term of

Validity for Certificates of Registry and Merchant Mariner's

Documents'' NPRM. One final rule may be issued combining the

requirements for chemical testing and regulations for the terms of

validity for CORs and MMDs.

Discussion of Proposed Amendments

OPA 90 requires all applicants for the issuance or renewal of

licenses, CORs, or MMDs to have a chemical test for dangerous drugs.

The proposed rules would apply the requirement to (1) an original

issuance or a renewal of a license, COR, or MMD; (2) a raise in grade

of a license or a higher grade of COR; and (3) the first endorsement on

an MMD as an able seaman, qualified member of the engine department, or

tankerman. Applicants meeting either of the exceptions contained in

Sec. 16.220 would be exempt from the chemical testing requirements. A

chemical test for dangerous drugs would not be required for an MMD

endorsement that does not require a new expiration date for the MMD or

the duplicate issuance or replacement of valid licenses, CORs, or MMDs.

If an applicant applies for multiple documentation transactions at one

time, the application is treated as a single transaction and a single

drug test will satisfy the drug testing requirements for all

documentation transactions covered by the application.

In a supplemental notice of proposed rulemaking (SNPRM) published

in the Federal Register on October 17, 1989 (54 FR 42624), the Coast

Guard proposed to remove existing 46 CFR subpart 12.20 entitled

``Tankerman,'' and replace it with a new part 13, ``Tankermen and

Persons in Charge of Transfer of Dangerous Liquid and Liquefied Gas.''

The Coast Guard is proposing to add chemical testing for dangerous

drugs to the requirements for obtaining a tankerman endorsement on an

MMD. Because the ``Tankerman'' rulemaking has not been finalized, the

proposal to add drug testing requirements is set out as amendment to

the existing requirements in 46 CFR subpart 12.20. The final rule will

place the drug testing requirements in subpart 12.20 or a new 46 CFR

part 13, as appropriate.

Periodic chemical testing for dangerous drugs is currently part of

the physical examinations required for some merchant mariners. Entry-

level ratings (46 CFR subpart 12.25), lifeboatmen (46 CFR subpart

12.10), and staff officers (46 CFR 10.801) do not require physical

examinations. Existing Sec. 16.220(a) states that, if a physical

examination is required, the examination must include a chemical test

for dangerous drugs. The applicant must provide the results of the

chemical test for dangerous drugs to a Coast Guard Regional Examination

Center (REC) where licensing and documentation transactions take place.

The proposed rules would revise Sec. 16.220(a) to base testing

requirements on issuance or renewal transactions. Additionally,

requirements for pilots who must undergo an annual physical examination

would be moved to a new Sec. 16.220(b) and a new reporting requirement

is proposed for that section. Pilots who are not excepted from taking a

chemical drug test as part of their annual physical would be required

to provide drug test results to the REC where their license was last

renewed.

The Coast Guard is soliciting comments specifically on two issues

raised by this expansion of chemical testing requirements. The first

issue relates to an unemployed, nonunion applicant who is required to

have a chemical test for dangerous drugs. Under 46 CFR 16.370, which

would not be amended by the proposed rules, individuals must have test

results reviewed by a Medical Review Officer (MRO) selected by the

employer or sponsoring organization. However, if an applicant does not

hold a maritime-related job or belong to a union, there may be no MRO

immediately available to the applicant for reviewing test results and

providing appropriate certification. The Coast Guard is interested in

receiving comments on whether this situation would pose a significant

problem and requests suggestions on alternatives.

The second issue relates to inactive license renewals under 46 CFR

10.209(g). Under the proposed rules, applicants for inactive license

renewals would not be required to undergo a chemical test for dangerous

drugs. The Coast Guard seeks comments on the desirability of requiring

applicants for inactive license renewals to meet the chemical testing

requirements.

Regulatory Evaluation

This proposal is not major under Executive Order 12866, but is

considered significant under the ``Department of Transportation

Regulatory Policies and Procedures'' (44 FR 11040; February 26, 1979)

because of controversy surrounding chemical drug testing, substantial

public interest, and the potential for litigation. A Regulatory

Evaluation has been prepared for this rulemaking and is available in

the docket for inspection or copying where indicated under ADDRESSES.

Costs to Government

Federal Government costs attributable to implementation of these

proposed regulations would be incurred by the 17 Coast Guard RECs. Each

applicant is responsible for submitting chemical test results verified

by a MRO during the ``evaluation'' phase of the merchant mariner

credential transaction. The additional costs, for the ``evaluation''

phase, associated with receiving and handling test results on

applicants for merchant mariner credentials will be minimal. The costs

incurred as a result of this rulemaking are a relatively small

percentage of the total costs of the ``evaluation'' phase, and do not

warrant revision of the current fees for evaluation related to MMD, COR

or licensing transactions.

Costs to Public and Respondents

Firms in the maritime industry and some individual respondents

(applicants) would bear the prospective incremental costs of this

rulemaking. These costs are addressed in the Regulatory Evaluation.

The cost projections assume that holders of MMDs will not apply for

renewals and endorsements at the same time, and that holders of

licenses will not apply for renewals and raises in grade at the same

time. This approach guards against underestimating costs. However, the

projections further assume that holders of licenses who also hold MMDs

will renew licenses and MMDs together, and that the few holders of CORs

and MMDs will apply for and renew CORs and MMDs together. The cost

projections were adjusted to reflect the percentage of merchant

mariners that will not have to take a drug test for the documentation

transaction because they already participate in a random chemical

testing program for dangerous drugs or they have passed a drug test

within the previous 185 days. Computations show that the NPRM would

subject an estimated additional 7,258 applicants for credentials each

year to chemical testing for dangerous drugs. The annual cost to the

public would total $439,000.

Benefits

The dollar value of direct and societal benefits derived from the

proposed rule are not quantifiable, but may be substantial.

According to a 1987 report published by the National Institute of

Drug Abuse, drug-free individuals--

(a) Suffer fewer accidents;

(b) File fewer workers' compensation claims;

(c) Use less sick leave; and

(d) Experience lower medical cost than drug users.

Historical data is insufficient to quantify benefits. However,

should this program manage to save even one life per year at $2.5

million per statistical life saved (which recent research shows is a

reasonable estimate of people's willingness-to-pay for safety), its

benefits would exceed its costs. If maritime accidents were reduced

even by a small percentage, savings would accrue to the maritime

industry through lower repair and medical costs and to the public

through environmental protection.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard must consider whether this proposal, if adopted, will have

a significant economic impact on a substantial number of small

entities. ``Small entities'' include independently owned and operated

small businesses that are not dominant in their field and that

otherwise qualify as ``small business concerns'' under section 3 of the

Small Business Act (15 U.S.C. 632).

The costs to small entities will probably not be significant

because the costs of the additional chemical testing for dangerous

drugs will be borne primarily by individual applicants, and is less

than $100 per occasion. Because it expects the impact of this proposal

on small entities to be minimal, the Coast Guard certifies under 15

U.S.C. 605(b) that this proposal, if adopted, will not have a

significant economic impact on a substantial number of small entities.

Collection of Information

Under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the

Office of Management and Budget (OMB) reviews each proposed rule that

contains a collection of information requirement to determine whether

the practical value of the information is worth the burden imposed by

its collection. Collection of information requirements include

reporting, recordkeeping, notification, and other, similar

requirements.

This proposal contains collection of information requirements in

Secs. 10.201, 10.202, 10.205, 10.207, 10.209, 10.805, 12.02-4, 12.02-9,

12.05-3, 12.10-2, 12.15-3, 12.20-1, 12.25-10, 16.105, and 16.220. The

following particulars apply:

DOT No: 2115.

OMB Control No.: Formerly 2115-0574; Consolidated into 2115-0003.

Administration: U.S. Coast Guard.

Title: Collection of Commercial Vessel & Personnel Accident (Marine

Casualty) Information (Forms CG-2692/2692A) and Programs for Chemical

Drug & Alcohol Testing of Commercial Vessel Personnel, including

Required Drug & Alcohol Testing following a Serious Marine Incident

(Form CG-2692B).

Need for Information: Sections 7101 and 7302 of title 46, United

States Code mandate that the Secretary require chemical testing of each

applicant for the issuance or renewal of a license, COR, or MMD for use

of a dangerous drug.

Proposed Use of Information: An applicant must submit proof of

passing a chemical test for dangerous drugs or meet one of the

exceptions from periodic testing in order to be considered for issuance

or renewal of a license, COR, or MMD.

Frequency of Responses: This information must be collected whenever

an applicant applies for or renews a license, COR, MMD, or when

individuals (e.g., a pilot) are required to receive an annual physical

examination.

Burden Estimated: The Coast Guard estimates that the total annual

burden on merchant mariners will be $439,000. This estimate does not

include the costs to the Coast Guard of administering the program.

Again, these costs are incorporated into the ``Draft Regulatory

Evaluation and Regulatory Flexibility Assessment of Regulations

Requiring Chemical Testing for Dangerous Drugs of Applicants for

Issuance or Renewal of a license, COR, or MMD.''

Respondents: The regulatory impact will fall on the estimated 7,258

merchant mariners not yet required to undergo periodic chemical testing

for dangerous drugs.

Form(s): There are no forms applicable to this rulemaking.

Average Burden Hours Per Respondent: The average burden hours per

respondent is 1.25 hours per year. The burden hours for all respondents

total 9,072.5 hours annually.

The Coast Guard has submitted the requirements to OMB for review

under section 3504(h) of the Paperwork Reduction Act. Persons

submitting comments on the requirements should submit their comments

both to OMB and to the Coast Guard where indicated under ADDRESSES.

Federalism

The Coast Guard has analyzed this proposal under the principles and

criteria contained in Executive Order 12612 and has determined that

this proposal does not have sufficient federalism implications to

warrant the preparation of a Federalism Assessment.

Environment

The Coast Guard considered the environmental impact of this

proposal and concluded that, under section 2.B.2 of Commandant

Instruction M16475.1B, this proposal is categorically excluded from

further environmental documentation. This proposal is a procedural

regulation without any direct environmental impact. A Categorical

Exclusion Determination is available in the docket for inspection or

copying where indicated under ADDRESSES.

List of Subjects

46 CFR Part 10

Fees, Reporting and recordkeeping requirements, Schools, Seamen.

46 CFR Part 12

Fees, Reporting and recordkeeping requirements, Seamen.

46 CFR Part 16

Drug testing, Marine safety, Reporting and recordkeeping

requirements. Safety, Transportation.

For the reasons set out in the preamble, the Coast Guard proposes

to amend 46 CFR parts 10, 12, and 16 as follows:

PART 10--LICENSING OF MARITIME PERSONNEL

1. The authority citation for part 10 continues to read as follows:

Authority: 14 U.S.C. 633, 31 U.S.C. 9701, 46 U.S.C. 2103, 7101;

49 CFR 1.45, 1.46; Section 10.107 also issued under the authority of

44 U.S.C. 3507.

2. Section 10.201(a) is revised to read as follows:

Sec. 10.201 Eligibility for licenses and certificates of registry,

general.

(a) In order to receive a license or certificate of registry, each

applicant shall establish to the satisfaction of the Officer in Charge,

Marine Inspection (OCMI), that he or she meets all the qualifications

(respecting age, experience, training, citizenship, character

references, recommendations, physical health, chemical testing for

dangerous drugs, and professional competence) required by this part

before the OCMI issues a license or certificate of registry.

* * * * *

3. Section 10.202 is amended by revising the section heading and

adding paragraph (i) to read as follows:

Sec. 10.202 Issuance of licenses and certificates of registry.

* * * * *

(i) Each applicant for an original issuance or a renewal of a

license or a certificate of registry, for a raise in grade of a

license, or for a higher grade of certificate of registry shall produce

evidence of having passed a chemical test for dangerous drugs or

qualifying for an exception from testing in Sec. 16.220 of this

subchapter. Any applicant who fails a chemical test for dangerous drugs

will not be issued a license or certificate of registry.

4. Section 10.205 is amended by adding paragraph (j) to read as

follows:

Sec. 10.205 Requirements for original licenses and certificates of

registry.

* * * * *

(j) Chemical testing for dangerous drugs. Each applicant shall

produce evidence of having passed a chemical test for dangerous drugs

or qualifying for an exception from testing in Sec. 16.220 of this

subchapter. An applicant who fails a chemical test for dangerous drugs

will not be issued a license or certificate of registry.

5. Section 10.207 is amended by adding paragraph (g) to read as

follows:

Sec. 10.207 Requirements for raise of grade of license.

* * * * *

(g) Chemical testing for dangerous drugs. Each applicant for a

raise in grade shall produce evidence of having passed a chemical test

for dangerous drugs or qualifying for an exception from testing in

Sec. 16.220 of this subchapter. An applicant who fails a chemical test

for dangerous drugs will not be issued a license.

6. Section 10.209 is amended by revising the section heading and

adding paragraph (h) to read as follows:

Sec. 10.209 Requirements for renewal of licenses and certificates of

registry.

* * * * *

(h) Chemical testing for dangerous drugs. Each applicant for the

renewal of a license or of a certificate of registry shall produce

evidence of having passed a chemical test for dangerous drugs or

qualifying for an exception from testing in Sec. 16.220 of this

subchapter. An applicant who fails a chemical test for dangerous drugs

will not be issued a license or certificate of registry.

7. Section 10.805 is amended by adding paragraph (g) to read as

follows:

Sec. 10.805 General requirements.

* * * * *

(g) Each applicant for an original certificate of registry or a

higher grade of certificate of registry, as described by paragraph (c)

of this section, shall produce evidence of having passed a chemical

test for dangerous drugs or qualifying for an exception from testing in

Sec. 16.220 of this subchapter. An applicant who fails a chemical test

for dangerous drugs will not be issued a certificate of registry.

PART 12--CERTIFICATION OF SEAMEN

8. The authority citation for part 12 continues to read as follows:

Authority: 14 U.S.C. 633, 31 U.S.C. 9701, 46 U.S.C. 2103, 2110,

7301, 7701, 49 CFR 1.46.

9. Section 12.02-4 is amended by adding paragraph (c) to read as

follows:

Sec. 12.02-4 Basis for denial of documents.

* * * * *

(c) An applicant who fails a chemical test for dangerous drugs

required by Sec. 12.02-9 will not be issued a merchant mariner's

document.

10. Section 12.02-9 is amended by adding paragraph (f) to read as

follows:

Sec. 12.02-9 Application for documents.

* * * * *

(f) Each applicant for an original issuance of a merchant mariner's

document, the first endorsement as an able seaman, qualified member of

the engine department, or tankerman, or a reissuance of a merchant

mariner's document with a new expiration date shall present evidence of

having passed a chemical test for dangerous drugs or qualifying for an

exception from testing in Sec. 16.220 of this subchapter.

PART 16--CHEMICAL TESTING

11. The authority citation for part 16 is revised to read as

follows:

Authority: 46 U.S.C. 2103, 3306, 7101, 7301, and 7701; 49 CFR

1.46.

12. Section 16.105 is amended by revising the definition of

``dangerous drug'' to read as follows:

Sec. 16.105 Definitions of terms used in this part.

* * * * *

Dangerous drug means a narcotic drug, a controlled substance, or a

controlled-substance analog (as defined in section 102 of the

Comprehensive Drug Abuse and Control Act of 1970 (21 U.S.C. 802)).

* * * * *

13. Section 16.220 is revised to read as follows:

Sec. 16.220 Periodic testing requirements.

(a) Except as provided by paragraph (c) of this section, an

applicant for an original issuance or a renewal of a license or a

certificate of registry (COR), a raise in grade of a license, a higher

grade of COR, an original issuance of a merchant mariner's document

(MMD), the first endorsement as an able seaman, qualified member of the

engine department, or tankerman, or a reissuance of an MMD with a new

expiration date shall be required to pass a chemical test for dangerous

drugs. The applicant shall provide the results of the test to the Coast

Guard Regional Examination Center (REC) at the time of submitting an

application. The test results must be completed and dated not more than

185 days prior to submission of the application.

(b) Unless excepted under paragraph (c) of this section, each pilot

required by this subchapter to receive an annual physical examination

must pass a chemical test for dangerous drugs as a part of that

examination. The individual shall provide the results of each test

required by this section to the REC where the license was last renewed.

(c) An applicant need not submit evidence of passing a chemical

test for dangerous drugs required by paragraph (a) or (b) of this

section if he or she provides satisfactory evidence that he or she

has--

(1) Passed a chemical test for dangerous drugs required by this

part within the previous six months with no subsequent positive drug

tests during the remainder of the six-month period; or

(2) During the previous 185 days been subject to a random testing

program required by Sec. 16.230 for at least 60 days and did not fail

or refuse to participate in a chemical test for dangerous drugs

required by this part.

(d) An applicant is required to provide the results of only one

chemical test for dangerous drugs when multiple documentation

transactions are covered by or requested in a single application.

14. Section 16.260(b)(1) is revised to read as follows:

Sec. 16.260 Records.

* * * * *

(b) * * *

(1) Satisfy the requirements of Secs. 16.210(b) and 16.220(c) of

this part.

* * * * *

Dated: February 23, 1994.

J.W. Kime,

Admiral, U.S. Coast Guard, Commandant.

[FR Doc. 94-4767 Filed 3-3-94; 8:45 am]

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