04-2993. Chemical Testing

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is revising its chemical drug testing regulations to conform with the Department of Transportation's (DOT) final rule concerning Drug and Alcohol Management Information System Reporting published in the Federal Register on July 25, 2003. The DOT rule consolidated the 21 different Management Information System (MIS) forms into one single-page form for use by all DOT agencies and the Coast Guard. This conforming amendment will change the Coast Guard regulations to conform to DOT's final rule.

DATES:

This final rule is effective March 12, 2004.

ADDRESSES:

Documents mentioned in this rule are available to the public and are part of dockets USCG-2003-16414 and OST-2002-13435. Both 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 Federal holidays. You may also find this document on the Internet at http://dms.dot.gov. The MIS form in Appendix H of 49 CFR part 40 may be downloaded from the U.S. Coast Guard Marine Safety, Security, and Environmental Protection Web site at http://www.uscg.mil/​hq/​g-m/​moa/​dapip.htm. This form will also be available from any Marine Safety Office.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call Mr. Robert C. Schoening, Coast Guard, at 202-267-1430, by fax at 202-267-1416, or by e-mail at [e-mail]. If you have questions on the DOT final rule published on July 25, 2003, contact Mr. Jim Swart, Drug and Alcohol Policy Advisor (S-1), Office of Drug and Alcohol Policy and Compliance, at 202-366-3784, by fax at 202-366-3897 or by e-mail at [e-mail]. If you have questions on viewing material in the docket, call Andrea M. Jenkins, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Viewing Comments and Documents

To view comments as well as documents mentioned in this rule as available in the docket, go to http://dms.dot.gov at anytime and conduct a simple search using the docket number. You may also visit the Docket Management Facility in Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.

Privacy Act

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

Background

On July 25, 2003, the Department of Transportation (DOT) published a final rule entitled “Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Drug and Alcohol Management Information System Reporting” in the Federal Register (68 FR 43946). This rule changed the annual Management Information System (MIS) submission format for employee drug and alcohol testing data for all DOT agencies and the Coast Guard through the use of a common (MIS) data collection form. The Coast Guard must conform to the DOT final rule and use the new DOT form to avoid duplication, conflict, or confusion with the DOT regulatory requirements. Therefore, the Coast Guard is amending its drug testing regulations in 46 CFR part 16 to conform to 49 CFR part 40.

The DOT rule reduced the number of data elements on the MIS reporting form to be submitted annually by individual marine employers. Employers will no longer have to submit:

1. The number of persons denied a position for a positive drug test;

2. The number of employees returned to duty following a drug violation;

3. Employee drug and alcohol training data;

4. Supervisor drug and alcohol training data;

5. Post-accident alcohol testing data; and

6. Reasonable cause alcohol testing data.

The DOT has stated that its agencies and the Coast Guard could continue to provide direction to their respective regulated employers regarding how, when, and where to report MIS data. This conforming rule is designed to correspond to the DOT MIS reporting regulations now contained in 49 CFR part 40. It requires the use of the new DOT MIS form for annual reporting. It also revises and clarifies the definition for “positive rate” in 46 CFR 16.105 to eliminate any confusion that reporting employers had regarding the types of tests to include in this calculation.

Discussion of Changes

The Coast Guard is amending its chemical drug testing regulations in 46 CFR part 16 to conform to the DOT's final rule revising 49 CFR part 40 drug testing reporting procedures.

Management Information System Requirements

In § 16.500(b), we are changing form number CG-5573 to OMB form 2105-0529 issued October 28, 2003, and providing information on obtaining the new form.

The provisions of 49 CFR part 40 regarding alcohol testing and reporting of alcohol tests do not apply to the Coast Guard or to marine employers. Only the drug testing provisions of 49 CFR part 40 apply to the Coast Guard and marine employers. Therefore, alcohol testing information is not required or permitted to be submitted on the new form. Marine employers are required to submit alcohol testing information in accordance with 46 CFR part 4.

We are removing §§ 16.500 (a)(1) through (a)(10) because the drug testing information to be submitted is now specified in Appendix H to 49 CFR part 40.

Submission of Electronic Information

Employers desiring to report MIS data electronically on the Internet can do so at http://www.uscg.mil/​hq/​g-m/​moa/​dapip.htm. Submitters must obtain a password from Mr. Robert C. Schoening, listed under FOR FURTHER INFORMATION CONTACT, for electronic submission.

The MIS form in Appendix H of 49 CFR part 40 may be downloaded from the U.S. Coast Guard Marine Safety, Security, and Environmental Protection Web site at http://www.uscg.mil/​hq/​g-m/​moa/​dapip.htm. The form will also be available from any Marine Safety Office.

Regulatory Evaluation

This conforming amendment is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this conforming amendment to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The basis for the DOT rule was to “streamline” the (MIS) reporting requirements for all five agencies and the Coast Guard through the use of one reporting form, thereby eliminating the need for each agency to publish a separate NPRM.

The DOT issued a notice of proposed rulemaking (NPRM) in the Federal Register on September 30, 2002 (67 FR 61306), proposing the use of a new MIS form as well as a simplified explanation for form submission and completion. The majority of public comments and suggestions were in favor of the new rule. The final DOT rule mandating the use of the new MIS form was published in the Federal Register on July 25, 2003 (68 FR 43946).

Assistance for Small Entities

Under section 213(a) of the Small Business Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this conforming amendment so that they can better evaluate its effects on them. If the amendment would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, contact Mr. Robert Schoening, Coast Guard, telephone [phone].

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).

Collection of Information

This conforming amendment calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

The DOT's final rule contained information collection requirements that were submitted, as required by the Paperwork Reduction Act of 1995, (the PRA, 44 U.S.C. 3507(d)), to the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review. Therefore, the DOT agencies and the Coast Guard will remove PRA requirements for the MIS form from their next PRA submission packages. In addition, the DOT will place its entire PRA package for the MIS form on the Internet when that submission is approved by OMB.

As stated in the DOT's final MIS rule, according to OMB's regulations implementing the PRA (5 CFR 1320.8(b)(2)(vi)), an agency may not conduct or sponsor, and a person need not respond to a collection of information unless it displays a currently valid OMB control number. The OMB control number for the DOT MIS form is 2105-0529, dated October 28, 2003.

Federalism

A rule has implications 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. We have analyzed this conforming amendment under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. This conforming amendment would not result in such an expenditure.

Taking of Private Property

This conforming amendment will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This conforming amendment 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.

Protection of Children

We have analyzed this conforming amendment under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This amendment is not economically significant and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

Indian Tribal Governments

This amendment 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.

Energy Effects

We have analyzed this amendment under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have analyzed this rule under Commandant Instruction M16475.lD, 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. This rule changes the reporting requirements for submission of employee drug and alcohol testing. It is procedural in nature and therefore is categorically excluded, under figure 2-1, paragraph (34)(a), of the Instruction from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

List of Subjects in 46 CFR Part 16

• Drug testing
• Marine safety
• Penalties
• Reporting and recordkeeping requirements
• Safety
• Transportation

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR part 16 as follows:

PART 16—CHEMICAL TESTING

1. Revise the authority citation for part 16 to read as follows:

Authority: 46 U.S.C. 2103, 3306, 7101, 7301, and 7701; Department of Homeland Security Delegation No. 0170.1.

2. In § 16.105, remove the definition for “positive rate” and add, in alphabetical order, the new definition for “positive rate for random drug testing” to read as follows:

§ 16.105

Definitions of terms used in this part.

* * * * *

Positive rate for random drug testing means the number of verified positive results for random drug tests conducted under this part plus the number of refusals of random drug tests required by this part, divided by the total number of random drug test results (i.e., positives, negatives, and refusals) under this part.

* * * * *

3. In § 16.500, revise paragraphs (a), (b)(1), and (b)(2); and remove paragraph (d) to read as follows:

§ 16.500

Management Information System requirements.

(a) Data collection. (1) All marine employers must submit drug testing program data required by 49 CFR 40.26 and Appendix H to 49 CFR part 40.

(2) The provisions in 49 CFR part 40 for alcohol testing do not apply to the Coast Guard or to marine employers, and alcohol testing data is not required or permitted to be submitted by this section.

(b) * * *

(1) By March 15 of the year following the collection of the data in paragraph (a) of this section, marine employers must submit the data on the form titled U.S. Department of Transportation Drug and Alcohol Testing MIS Data Collection Form (OMB Number: 2105-0529) by mail to Commandant (G-MOA), 2100 Second Street, SW, Washington, DC 20593-0001 or by Internet at http://www.uscg.mil/​hq/​g-m/​moa/​dapip.htm.

(2) The DOT Drug and Alcohol Testing MIS form can be downloaded and printed from http://www.uscg.mil/​hq/​g-m/​moa/​dapip.htm or may be obtained from any Marine Safety Office.

* * * * *

Appendix B [Removed]

4. Remove Appendix B.

Dated: January 29, 2004.

Joseph J. Angelo,

Acting Assistant Commandant for Marine, Safety, Security and Environmental Protection.