Marine Casualties and Investigations; Chemical Testing Following Serious Marine Incidents, 75954-75961 [05-24375]

Agencies

• Coast Guard
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 70, Number 245 (Thursday, December 22, 2005)]
[Rules and Regulations]
[Pages 75954-75961]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24375]


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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 
https://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.
---------------------------------------------------------------------------

    \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 https://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 https://
a257.g.akamaitech.net/7/257/2422/01jan20051800/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