[Federal Register Volume 61, Number 244 (Wednesday, December 18, 1996)]
[Rules and Regulations]
[Pages 66612-66613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32028]
[[Page 66612]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
46 CFR Part 16
[CGD 95-011]
RIN 2115-AF02
Programs for Chemical Drug and Alcohol Testing of Commercial
Vessel Personnel; Implementation of Drug Testing in Foreign Waters
AGENCY: Coast Guard, DOT.
ACTION: Interim rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule establishes January 2, 1997 as the effective date
for implementation of chemical drug testing of persons onboard U.S.
vessels in waters subject to the jurisdiction of a foreign country.
However, industry will have until July 1, 1997 to implement the
required testing. The rule also provides for exemption from testing
requirements when compliance would violate the domestic laws or
policies of another country. The Coast Guard is requesting public
comment on this interim rule.
DATES: This rule is effective on January 2, 1997. Section 16.207 must
be implemented on or before July 1, 1997. Comments must be received
before February 18, 1997.
ADDRESSES: Comments may be mailed or delivered to Executive Secretary,
Marine Safety Council (G-LRA/3406), U.S. Coast Guard Headquarters, 2100
Second Street SW., room 3406, Washington, DC 20593-0001. Unless
otherwise indicated, comments and other documents referred to in this
preamble are available for inspection or copying in room 3406 at the
above address between 9:30 a.m. and 2 p.m., Monday through Friday,
except Federal holidays The telephone number is (202) 267-1477.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Jennifer Ledbetter, Project Manager, Marine Investigation
Division (G-MOA-1), Office of Marine Safety, Security and Environmental
Protection, (202) 267-0684.
SUPPLEMENTARY INFORMATION:
Background and Purpose
On November 21, 1988, the Coast Guard, along with other agencies of
the Department of Transportation (DOT), promulgated regulations
requiring pre-employment, periodic, post-accident, reasonable cause,
and random drug testing of U.S. crewmembers on U.S. vessels (53 FR
47079). The final rule provided that the testing requirements of 46 CFR
part 16 did not apply to any person for whom compliance with the rules
would violate the domestic laws or policies of another country. The
effective date of part 16 with respect to any person onboard U.S.
vessels in waters subject to the jurisdiction of a foreign government
was delayed until January 1990.
The preamble to the rule stated that DOT and other agencies of the
government would enter into discussions with foreign governments to
attempt to resolve any conflict between our chemical testing rules and
foreign government laws or policies. The Coast Guard also stated that
if, as a result of those discussions, it was found that amendments to
the rule were necessary, timely amendments would be issued.
Subsequently, a rule was published on December 27, 1989 (54 FR 53286)
delaying implementation of chemical testing for persons onboard U.S.
vessels in waters subject to the jurisdiction of a foreign government
until January 2, 1992. A final rule was published on April 24, 1991,
delaying the implementation date to January 2, 1993 (56 FR 18982); a
final rule was published on July 14, 1992, delaying the implementation
date to January 2, 1995 (57 FR 31274); a final rule was published on
December 20, 1994, delaying the implementation date to January 2, 1996
(59 FR 65500); and a final rule was published on December 28, 1995,
delaying the implementation to January 2, 1997 (60 FR 67062). These
rules did not prohibit employers from conducting chemical testing of
U.S. personnel in foreign waters, they simply delayed the requirement
for such testing in those areas. Many companies continued to test
mariners in foreign waters under company policy. To this date, there
have been no reports of conflicts with foreign laws resulting from that
testing
On August 21, 1995, the Coast Guard published a Notice of Proposed
Rulemaking (NPRM) proposing to revise 46 CFR 16.207 to provide that
U.S. drug testing requirements would not apply in waters subject to the
jurisdiction of a foreign government. The proposal would have ensured
that Coast Guard drug testing regulations did not conflict with foreign
law or policy and would have resulted in no change to the then current
applicability of the drug testing requirements.
Discussion of Comments and Changes
Eight comments were received in response the NPRM. Only one comment
supported the proposal. That comment supported the proposed rule
because it would remove the conflict regarding jurisdiction within
waters that are subject to foreign government control.
The remaining seven comments opposed their proposal in the NPRM for
several reasons. One stated reason was that the proposed rule would
prevent them (employers) from testing while in foreign waters. This was
a misinterpretation common to most of the comments opposing the
proposal. Neither the original final rule, which contained, a delay of
implementation date, nor the proposed rule, which would have eliminated
the testing requirement entirely, would in any way prohibit an employer
from conducting chemical drug testing on employees. Only the
requirement to test was delayed or removed.
One comment stated that the existence of federal requirements is a
critical component in its desire to identify substance abusers. Another
comment strongly supported the goal of a drug-free workplace and viewed
testing as a key component in that effort. The proposed rule appeared
to them to exempt a substantial number of U.S. seamen from coverage
under essential elements of the testing program and was perceived as
sending a confusing message to the maritime industry, particularly
those U.S. seamen who work in foreign waters. The comments did not
support any lessening of the chemical testing requirements because
doing so would advise a substance abuser that once they go foreign they
are free of the possibility of being tested.
Another issue raised consistently by the comments was the
discrepancy between the proposed removal of testing requirements of
part 16, but not in part 4 (post-casualty testing requirements). The
comments correctly noted that if a casualty occurred in waters subject
to the jurisdiction of a foreign country that drug and alcohol testing
was required by 46 CFR part 4.
All the comments that supported requiring chemical testing in
foreign waters requested that a clause be included in the regulations
that would allow for an exemption from testing when there is an actual
conflict with a foreign law or policy. The Coast Guard agrees. Based on
the lack of any problems experienced by companies presently conducting
chemical testing in foreign waters and based on the comments expressing
a need for testing requirements wherever a vessel might be, the Coast
Guard has decided to retain the original requirements for chemical
testing of U.S. crewmembers onboard U.S. vessels within waters that are
subject to the jurisdiction of a foreign government and to make this
provision effective on January 2, 1997.
[[Page 66613]]
The rule also adds a provision under which the Coast Guard will
consider waivers, on a case by case basis, when an actual conflict with
a foreign law or policy is brought to our attention.
Under 5 U.S.C.(d), the Coast Guard finds good cause why this rule
should be made effective in fewer than 30 days after date of
publication. Although the effective date of the rule is January 2,
1997, the Coast Guard recognizes that there may be a need for an
implementation period. Therefore, employees will have until July 1,
1997 to implement the final rule on U.S. vessels in waters subject to
the jurisdiction of a foreign country.
Although the changes in this rule are responsive to and fully
supported by the comments received, the Coast Guard is offering a
period for submission of additional comments. This rule is being
published as an interim rule with a 60-day comment period. This action
will implement the testing requirements without further temporary
delays as in past years, but will allow the regulated employers to
review and comment on the rule before it is adopted as final. Comments
should be mailed to the Executive Secretary, Marine Safety Council, at
the address under ADDRESSES.
Regulatory Evaluation
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6 (a)(3) of
that order. It has not been reviewed by the Office of Management and
Budget under that Order. It is not significant under the regulatory
policies and procedures of the Department of Transportation (DOT) (44
FR 11034 (February 26, 1979)). The Coast Guard acknowledges that there
are companies whose current policy is not to conduct chemical testing
in waters subject to a foreign government. To implement such testing
now would increase their operating expenses. This ``increase'',
however, was part of the costs evaluated in the original rulemaking and
deferred to this time because of the numerous delays in implementing
testing in foreign waters. The economic impact of these changes is so
minimal that further evaluation is not necessary. This final rule
implements the effective date for compliance with Coast Guard
regulations governing chemical testing, insofar as those regulations
would require testing of persons onboard U.S. vessels in waters that
are subject to the jurisdiction of a foreign government.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their field and (2) governmental jurisdictions with
populations of less than 50,000. 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. If, however, you
think that your business or organization qualifies as a small entity
and that this proposal will have a significant economic impact on your
business or organization, please submit a comment (see ADDRESSES)
explaining why you think it qualifies and in what way and to what
degree this proposal will economically affect it.
Collection of Information
This rule contains no new collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule in accordance with the
principles and criteria contained in Executive Order 12612 and has
determined that it does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that, under section 2.B.2. of Commandant Instruction
M16475.1B, this rule is categorically excluded from further
environmental documentation. A ``Categorical Exclusion Determination''
is available in the docket for inspection or copying where indicated
under ADDRESSES.
List of Subjects in 46 CFR Part 16
Drug testing, Marine safety, Reporting and recordkeeping
requirements, Safety, Transportation.
For the reasons set forth in the preamble, the Coast Guard amends
46 CFR part 16 as follows:
PART 16--CHEMICAL TESTING
1. The authority citation for part 16 continues to read as follows:
Authority: 46 U.S.C. 2103, 3306, 7101, 7301, and 7701; 49 CFR
1.46.
2. Section 16.207 is revised to need as follows:
Sec. 16.207 Conflict with foreign laws.
(a) This part applies to the testing of all U.S. crewmembers
onboard U.S. vessels operating in waters that are subject to the
jurisdiction of a foreign government on and after January 2, 1997;
however, implementation may be delayed until July 1, 1997.
(b) Employers for whom compliance with this part would violate the
domestic laws or policies of another country may request an exemption
from the drug testing requirements of this part by submitting a written
request to Commandant (G-MOA), at the address listed in Sec. 16.500(a).
Dated: December 9, 1996.
J.C. Card,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Marine Safety
and Environmental Protection.
[FR Doc. 96-32028 Filed 12-17-96; 8:45 am]
BILLING CODE 4910-14-M
