In 1995, a Coast Guard Drug and Alcohol Program Inspector (DAPI) position was established in each of the nine Coast Guard Districts in an effort to increase compliance among the marine industry in respect to the chemical testing regulations. These DAPI positions were established in the geographical center of the applicable vessel distribution in the District. The ports where DAPIs are located are Providence (Rhode Island), St. Louis (Missouri), Portsmouth (Virginia), Miami (Florida), New Orleans (Louisiana), Toledo (Ohio), San Francisco (California), Portland (Oregon), Honolulu (Hawaii), and Anchorage (Alaska). DAPI's will conduct vessel inspections and visit marine employers within the District to ensure compliance with the chemical testing regulations. The scope of the inspections will include required recordkeeping and reporting, specimen collection, Medical Review Officer activities, employee assistance programs, proper designation of crewmembers to be tested, and proper conduct of required tests.
The role of the DAPI is basically twofold. First, they are to educate and assist marine employers in developing a correct chemical testing program. Although it is unrealistic to expect a DAPI to visit each and every marine employer within his or her district, they are expected to respond to any questions or problems you may have regarding your chemical testing program.
The DAPI's second role is to enforce the chemical testing regulations. DAPI's will conduct vessel inspections and visit marine employers within the District to ensure compliance with the chemical testing regulations. The scope of the inspections will include required record keeping and reporting, specimen collection, Medical Review Officer activities, employee assistance programs, proper designation of crewmembers to be tested, and proper conduct of required tests. For your information there is a copy of the Chemical Testing Checklists used by Coast Guard Inspectors elsewhere on this web site.
DAPI's have several enforcement tools available to them in the event that they encounter noncompliance. For inspected vessels, a DAPI may pull a vessel's Certificate of Inspection or issue a civil penalty. For uninspected vessels, a DAPI may obtain a Captain of the Port Order which prevents the vessel from operating. The Coast Guard also has civil penalty authority over uninspected vessels that will allow the Coast Guard to issue civil penalties to uninspected vessels. Furthermore, individuals who hold Coast Guard licenses or merchant mariner documents may be subject to suspension and revocation proceedings.
The use of dangerous drugs and alcohol in the workplace continues to pose a significant risk to passenger and crew safety in the marine industry. The Coast Guard is seriously committed to eliminating this risk, and is actively promoting and enforcing the chemical testing regulations.
While the chemical testing regulations apply to almost all commercial vessel operations, Coast Guard resources have previously focused primarily on gaining compliance from inspected vessel operators. However, with the advent of the additional DAPI resource, all drug testing programs will be examined more closely to ensure compliance with the regulations, with equal attention given to uninspected vessel operations as well.
To better manage our risks and serve our customers, the Coast Guard is emphasizing two methods of doing business. One method is to establish partnerships with marine industry representatives and private sector organizations to work together towards achieving common goals. The second method is prevention through people, which focuses on establishing "best work practices" to eliminate "human error", the leading factor in most marine casualties. By providing your personnel with substance abuse awareness training and education, the safety risk from drug and alcohol abuse can be significantly reduced. Both of these methods are essential for achieving the goal of a drug-free marine industry.
By joining in partnership to enforce the drug regulations, and providing information that will assist personnel in refraining from drug use, we will achieve our goal of a safer, drug-free work environment for the marine industry.
If a highly technical, legal or unique problem arises, consult the regulations, the nearest Drug and Alcohol Program Inspector or the Office of Investigations and Analysis at U.S. Coast Guard Headquarters at (202) 372-1033.
Failure, on the part of a marine employer, to implement or conduct chemical testing for dangerous drugs or for evidence of alcohol may result in a civil penalty of $5,500.00 per day for each violation. Each day of a continuing violation constitutes a separate violation. (46 United States Code, Section 2115)
DRUG AND ALCOHOL TESTING OVERVIEW
This overview summarizes U.S. Coast Guard requirements for the drug and alcohol testing regulations in Title 46 Code of Federal Regulations (CFR) Parts 4 and 16. Because the Coast Guard has established minimum drug and alcohol testing requirements for the merchant marine industry, this paper is designed to simplify those regulations into a practical guide for the marine employer. If a highly technical, legal, or unique problem arises, consult the regulations, the nearest Coast Guard Marine Safety/Inspection Office, or the Office of Investigations and Analysis at U.S. Coast Guard Headquarters at (202) 372-1033.
Categorized into two parts, this guide will amplify the important areas of the regulations. First Part 16 is applicable to those crewmembers who serve on U.S. Flag commercial vessels. These regulations describe the program requirements for pre-employment, random, reasonable cause, periodic, and post-casualty drug testing (serious marine incident). The requirement for an education and training program is also described.
Secondly, Part 4 discusses the chemical testing requirements for all persons, which includes foreign crewmembers who are directly involved in a serious marine incident while serving onboard any commercial vessel upon the navigable waters of the U.S., it's territories or possessions.
The Coast Guard regulations for Operating a Vessel While Intoxicated (33 CFR 95) are not addressed in this overview.
The regulations in 46 CFR Parts 4 and 16 were developed and first promulgated in 1988 as part of the Department of Transportation (DOT) program to address drug and alcohol use in the U.S. transportation system. The regulations developed by the Coast Guard set the minimum requirements for testing in the marine industry. Testing conducted under these regulations is limited to five dangerous drugs (marijuana, cocaine, opiates, amphetamines, and phencyclidine PCP)) and alcohol. All dangerous drug samples collected as part of these regulations are urine samples and must be analyzed at Substance Abuse and Mental Health Services Administration (SAMHSA) certified labs in accordance with DOT procedures contained in 49 CFR 40. A marine employer may conduct DOT tests more often than required. However, if an employer wishes to test for additional drugs, or use a different cutoff level the employer must keep such a program separate from the DOT required testing program, including separate sample collections.
Certain crewmembers are subject to the regulations of Part 16. If a license, Certificate of Registry (COR), or Merchant Mariner's Document (MMD) is required by at least one person on the vessel, then that person, and possibly more could be subject to the regulations based upon their responsibilities on the vessel. Each vessel must be evaluated independently using the definitions of "crewmember" and "operation" to determine person-specific applicability. With the exception of serious marine incident testing requirements, the regulations contained in Part 16 are not applicable to foreign flag vessels or those vessels that do not require licensed personnel. Examples of vessels where licensed personnel are not required (and therefore these regulations do not apply) are towing vessels under 26 feet in length and commercial fishing industry vessels under 200 gross tons.
DOT testing is only allowed for alcohol and the five specific drugs mentioned above. Testing for drugs is conducted through urine samples, while testing for alcohol in the marine industry may be conducted using breath or blood. If blood is tested, only a qualified medical person may collect it. Breath testing may be done by anyone trained to conduct such tests. The Coast Guard does not mandate the use of Evidential Breath Testing devices. All urine samples must be collected, handled, analyzed and results reported in accordance with DOT-wide urine collection requirements located at 49 CFR 40. For more information on these collection procedures, contact the Secretary of Transportation's Office of Drug and Alcohol Policy and Compliance at (202) 366-3784.
Urine samples collected in order to meet the requirements of the Coast Guard rules may not be tested for any other drugs. If an employer wants to test for other drugs, samples must be collected and processed separately from samples used for DOT tests.
Responsibilities of the Employee
Employees must provide a urine sample for drug testing, and a blood or breath sample for alcohol testing, when directed by their marine employer.
Responsibilities of the Marine Employer
Any one or more of the following may be considered a marine employer: the owner of a vessel, the managing operator, the charterer, the agent, the master, or other person in charge. The marine employer is responsible for administering drug and alcohol testing programs for their employees.
The marine employer will safeguard the confidentiality of the program and shall not release drug testing or other personal information except to the person who was tested, to a third party that the tested person specifies in writing, or to the Coast Guard.
The marine employer must establish an Employee Assistance Program (EAP). This EAP must include education and training.
The EAP education program must include the display and distribution of:
(1) information on drug use/abuse,
(2) the employer's drug and alcohol policy, and
(3) a community substance abuse hot-line telephone number for crewmember assistance.
The EAP training program must include:
(1) the effects of drug and alcohol use on personal health safety and the work environment,
(2) the behavioral indications of drug use/abuse, and
(3) documentation of training completed by employees.
Supervisors must be given at least sixty minutes of training.
A crewmember who holds a license, COR, or MMD who refuses to provide a test sample should be reported to the nearest Coast Guard Marine Safety/Inspection Office for the Coast Guard to take action in accordance with applicable laws and regulations.
The marine employer must collect drug and alcohol testing program data for input to the Management Information System (MIS). This data is collected for each calendar year, January 1 to December 31, and must be submitted to Commandant (CG-INV-1), U.S. Coast Guard, by March 15 of the following year on Form CG-5573. The form and its instructions may be obtained at any Marine Safety/Inspection Office. Data may be submitted by a drug testing consortium, if used, on behalf of a marine employer. If a marine employer uses a drug testing consortium, the marine employer must notify Commandant (G-MOA) in writing of the consortium or representative that will submit the employer's data, and remains responsible for ensuring that the data is submitted and is accurate.
The following drug and alcohol data is required to be submitted:
- Number of covered employees.
- Number of covered employees subject to testing under the anti-drug rules of more than one DOT agency because of the nature of their assigned duties, identified by each agency.
- Number of drug and alcohol tests by test type.
- Number of positive drug test results verified by a Medical Review Officer (MRO) by test type and type of drug(s), and number of alcohol tests resulting in a blood alcohol concentration of .04 percent by weight or more by test type.
- Number of negatives reported by a MRO by type of test.
- Number of applicants denied employment based on a positive drug test result verified by an MRO.
- Number of marine employees with a positive drug test result verified by an MRO, who were returned to duty in a covered position, having met the requirements of 46 CFR 16.370(d) and 46 CFR Part 5.
- Number of marine employee drug test results that MROs verify positive for more than one drug or combination of drugs.
- Number of covered employees who refused to submit to a Coast Guard required drug test.
- Marine employee training and education information.
Occasions for Drug and Alcohol Testing
The regulations require five types of testing:
Pre-employment: A crewmember must pass a drug test before an employer may employ him/her. A prospective crewmember who submits a urine sample cannot be employed until a negative test result is confirmed.
Periodic: Periodic tests are the responsibility of the individual mariner, not the marine employer, for transactions involving licenses, CORs, or MMDs. Drug test results must be submitted to the Coast Guard Regional Exam Center at the time of the license, COR, or MMD transaction.
Random: An employer must conduct random drug testing of certain crewmembers at an annual rate of not less than 25%.
Reasonable cause: An employer shall require any crewmember who is reasonably suspected of using drugs to be tested for drugs and/or alcohol.
Post accident: A person (not necessarily a crewmember) who is directly involved in a serious marine incident must be tested for drugs and alcohol. Post-accident testing applies to all serious marine incidents involving commercial vessels regardless of flag of origin. More specifically, this includes crewmembers aboard foreign flag vessels who are directly involved in serious marine incidents occurring in U.S. waters.
Definition of a "positive" drug test result
A positive drug test of a urine sample is one which a designated Medical Review Officer (MRO) verifies as positive. The MRO is a licensed physician with knowledge of substance abuse, chemical testing, and related subjects. The marine employer must ensure that all of the test results are sent from the lab to the employer's designated MRO. Only when the MRO verifies a person's confirmed positive test result from the lab and reports the test as positive to the marine employer has that person then failed the drug test. The MRO evaluates and investigates the confirmed positive reports from the lab to determine if there is any legitimate explanation for the positive test (prescriptions, etc.). The MRO also reviews the chain-of-custody and other procedures to insure that there is no possibility of error or "mix-up." If there is a legitimate explanation or a possibility of error, the MRO will not verify the test as positive.
Consequences of a Positive Test
Any crewmember who fails any required drug test must be removed from duties which directly affect the safe operation of the vessel as soon as practicable (or denied employment in the case of a pre-employment test). That person may not return to work aboard a vessel until the MRO determines that person is drug free and at low risk to return to drug use and any administrative hearing concerning their license, COR, or MMD has been resolved.
Marine employers must report positive tests to the Coast Guard for persons holding licenses, CORs, or MMDs. Those personnel should expect revocation of their Coast Guard papers for drug use, and revocation or suspension of their Coast Guard papers for alcohol intoxication.
Marine employers must make a written report to the Coast Guard of all positive drug tests resulting from any required testing of any individual who has a license, COR, or MMD issued by the Coast Guard. Positive test results must be reported both for present and prospective employees. The marine employer must make this report whether or not the individual was hired or not hired, and regardless if the position was one where a license, COR, or MMD is required. As long as the person has credentials issued by the Coast Guard, and if they test positive, a report must be made to the Coast Guard.
Marine employers are not required to report positive pre-employment drug test results to the Coast Guard for persons who do not have licenses, CORs, or MMDs. However, these individuals still may not be employed.
All drug and alcohol test results must be reported for persons tested, regardless of citizenship, following a serious marine incident, whether or not they hold Coast Guard issued credentials.
Yearly MIS reports are required. See the discussion under "Responsibilities of the Marine Employer".
Required Record Keeping
For tests reported positive by the MRO, the marine employer is to keep the records for at least five years. All negative test results are to be kept for at least one year.
A marine employer must have test records that will permit an individual to obtain confirmation that he/she has passed a pre-employment test and has been subject to random testing. A marine employer must also have records which reflect:
(1) The total number of individuals chemically tested annually for dangerous drugs in each of the categories of testing required, and
(2) The number of individuals who tested positive and for what types of drugs.
Citations to the Code of Federal Regulations.
46 CFR 4.06 Coast Guard - Mandatory Chemical Testing Following Serious Marine Incidents Involving Vessels in Commercial Service
46 CFR 16 Coast Guard - Chemical Testing: types of testing required and procedures for the marine employer (when and who to test).
49 CFR 40 DOT - Procedures for Transportation Workplace Drug Testing Programs: procedures for all DOT-regulated drug testing, includes technical regulations for collection and testing (how to test).
33 CFR 95 Coast Guard - Operating a Vessel While Intoxicated: sets the standard for alcohol intoxication and contains authority for chemical testing, primarily for alcohol. 33 CFR 95 is not discussed in this guide.
PRE-EMPLOYMENT DRUG TESTING
A marine employer must conduct a drug test prior to employing any crewmember. The prospective employee must pass the test before employed, not merely take the test.
A prospective employee need not be tested if that person has proof that, within the previous six months, he/she passed any Coast Guard-required drug test, or has, during the previous six months, been subject to Coast Guard required random testing for at least 60 days and has not failed or refused a test. "Being subject to random testing" does not mean the individual has to have actually been tested, but has been eligible to be tested. An employer is not required to exempt prospective employees from pre-employment testing.
RANDOM DRUG TESTING
A marine employer must establish a program for random drug testing of:
(1) crewmembers on inspected vessels who:
a. occupy a position, or perform the duties and functions of a position, required by the vessel's Certificate of Inspection;
b. perform the duties and functions of patrolmen or watchmen required by Coast Guard regulations; or,
c. are specifically assigned the duties of warning, mustering, assembling, assisting, or controlling the movement of passengers during emergencies.
(2) crewmembers on uninspected vessels who:
a. are required by law or regulation to hold a Coast Guard issued license to perform their duties;
b. perform duties and functions directly related to the safe operation of the vessel,
c. perform the duties and functions of patrolmen or watchmen required by Coast Guard regulations; or,
d. are specifically assigned the duties of warning, mustering, assembling, assisting, or controlling the movement of passengers during emergencies.
Definition of random
Random, for these regulations, means that each of the crewmembers have a substantially equal chance of being selected. An employer may randomly select vessels, rather than individuals, testing all applicable crewmembers. A crewmember's substantially equal chance of selection must remain throughout their employment. This means that you cannot allow periods when an employee is "free" from chance of selection, or allow high-risk/low-risk selection periods to exist. The dates of testing must also be random. For example: randomly picking names each payday is not acceptable, because the date is predictable and the employees could "beat" the test.
The annual rate of testing must not be less than 25%. No other tests, such as post accident, can be counted toward the 25%.
REASONABLE CAUSE DRUG TESTING
A marine employer shall require any crewmember who is reasonably suspected of using a dangerous drug to be chemically tested for dangerous drugs. When the marine employer determines that reasonable cause exists, the individual must be informed of that fact and directed to test as soon as practicable. An entry concerning the basis of reasonable cause, the direction to test given the crewmember and any refusal or other response should be documented. A log entry must be made whenever an official ship's log is required to be carried.
Definition of "reasonable cause"
Reasonable cause means a probability exists, based on some evidence, that a crewmember is intoxicated by or has used drugs. Generally the following elements must be present to have "reasonable cause" to require drug testing:
(1) Direct observation of the suspected crewmember and/or any physical evidence by two persons in supervisory positions. This means the supervisors must personally see the evidence for themselves.
(2) There must be some physical, behavioral, or performance indication of use or intoxication. Indicators include but are not limited to an individual's speech, behavior or appearance. Drugs and drug paraphernalia in clothing and personal property, or concealed in staterooms or elsewhere may also provide reasonable cause since these too are physical indicators. Smoke, breath and body odors may provide evidence. Slurred and incoherent speech, lack of coordination and balance, nodding and dozing off on watch, inability to report for duty, frequent or extended unexplained absences from assigned duties, sudden and wide changes of mood or attitude and many other observable variables are examples of some conditions which could constitute reasonable cause. Since these circumstances and conditions could be caused by illness, injury, or other factors, as well as drugs, the decision to test for reasonable cause must be made with prudence and common sense.
POST-ACCIDENT DRUG AND ALCOHOL TESTING
(Serious Marine Incidents)
Post-accident drug and alcohol testing regulations apply to all U.S. commercial vessels operating anywhere in the world and all foreign vessels operating upon the navigable waters of the U.S. When a marine casualty occurs, the marine employer needs to make a timely, good faith determination as to whether the occurrence is or is likely to become a serious marine incident.(See 46 CFR 4.06.) A marine employer shall require all persons (not limited to crewmembers) on board the vessel(s) whom the employer determines to be directly involved in a serious marine incident to be chemically tested for dangerous drugs and alcohol. Note: This regulation also applies to crewmembers aboard foreign flag vessels involved in a serious marine incident which occurs in U.S. waters.
Definition of a serious marine incident
A serious marine incident, as defined by 46 CFR 4.03-2, includes but is not limited to the following events:
(1) A discharge of 10,000 gallons or more of oil into the navigable waters of the United States, whether or not resulting from a marine casualty,
(2) A discharge of a reportable quantity of a hazardous substance into the navigable waters or into the environment of the United States, whether or not resulting from a marine casualty, or
(3) A marine casualty or accident as defined in 46 CFR 4.03-1 which is required by 46 CFR 4.05-1 to be reported to the Coast Guard and which results in any of the following:
a. One or more deaths,
b. An injury to any person (including passengers) which requires medical treatment beyond first aid, and, in the case of a person employed on board a commercial vessel, which renders the person unable to perform routine vessel duties;
c. Damage to property in excess of $100,000;
d. Actual or constructive total loss of any inspected vessel; or
e. Actual or constructive total loss of any uninspected, self-propelled vessel of 100 gross tons or more.
Collection of samples
The regulations do not set a specific time limit but require collections "as soon as practicable." They also state that the regulations shall not prevent a person from performing duties in the aftermath of an accident to protect lives, property, or the environment. Each case will be different. However it should be noted that evidence of alcohol can leave the body quite quickly.
The marine employer must make a good faith determination of whether or not a certain incident is likely to become a serious marine incident. Some information, such as the cost of property damage or the amount of oil spilled, may not be available for days or months. If the employer determines that something is likely to become a serious marine incident, the employer shall determine who was directly involved and order testing. Also, an employee often will report that he/she had an accident some time ago and now wants to see a doctor. There is no precise time limit in the regulations to guide an employer as to when it is "too late" to test.
"Directly involved" in a serious marine incident
An individual whose order, action, or failure to act is determined to have, or cannot be ruled out as having caused or contributed to a serious marine incident is "directly involved". A law enforcement officer, such as a Coast Guard officer or a state or local police officer may also determine that a person was directly involved in a serious marine incident. If this happens, the marine employer shall then take all practicable steps to collect a sample.
Urine collection and shipping kits must be maintained aboard vessels unless they can be obtained within 24 hours of an incident. Inspected vessels certificated for unrestricted ocean routes must have a breath testing device on board to test for alcohol.
Post-Accident Reporting Requirements
A Coast Guard form CG-2692B, Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident, must be submitted to the appropriate Officer in Charge, Marine Inspection following any serious marine incident. This form should be submitted along with a form CG-2692, Report of Marine Accident, Injury or Death. The drug test results will not always be available when the CG-2692 and CG-2692B are submitted. The marine employer must report the test results, positive or negative, when they receive them.
Specimen Collection Equipment
Determination of a serious marine incident some time after the incident
Pre-employment testing waivers