Drug and Alcohol Program LT Peter Fransson Chief, Investigations Division Sector Northern New England

References Regulatory Authorities 46 CFR Parts 4 and 16 49 CFR Part 40 33 CFR Part 95 Commandant Instruction 16722.4 (Enforcement of the Chemical Testing Regulations, 1995) Marine Employers Drug Testing Guidance, USCG Office of Investigations & Casualty Analysis, 2009 DOT Office of Drug & Alcohol Policy & Compliance (ODAPC) website: https://www.transportation.gov/odapc/part40 2

Purpose “The intent of the regulations is to provide a means to minimize the use of intoxicants by merchant marine personnel and to promote a drug free and safe work environment.” – COMDTINST 16722.4 3

Applicability Required for vessels that require a licensed operator as well as crewmembers aboard that serve in a safety sensitive position. Safety Sensitive duties include: Directing / mustering of passengers in emergencies Passing out lifejackets Controlling / Operating lifesaving equipment Controlling / Operating firefighting equipment 4

Deciding how to run a successful program Wholly operated by the company – All work done in-house w/ dedicated personnel Burden to run the program rests on company resources Use of Consortiums & Third Party Administrators (C/TPAs) Alleviates the Marine Employer of many of the burdens involved in running a Chemical Testing Program (i.e., Consortium handles random selection of employees for testing, Third Party Administrators ensure for proper collection IAW 49 CFR 40), may also ensure for recordkeeping. Service Agents may not serve as “designated employee representatives (DER).” 5

USCG Company Audits of Drug & Alcohol Chemical Testing Program The Coast Guard is encouraged to conduct company audits to ensure companies are meeting the DOT/USCG chemical testing program requirements. Audits are voluntary in nature. Serve to identify issues with a program and make valid course correction for regulatory compliance Audits cover training, recordkeeping, evaluating valid methods for testing, evaluation of T/CPA, SAP, EAP, etc. Provide information on new threats for health and safety (abuse of prescription medications, synthetic, & designer drugs). 6

Common Issues Improperly conducting testing under wrong regulatory authority in 46 CFR 16 (i.e. improperly testing under false pretenses for periodic testing, reasonable suspicion, invalid random selections). Improper record keeping (i.e. not maintaining pre-employment negatives, not keeping positive tests for five years, not keeping negative tests for one year.) Background Checks w/ former DOT employers not conducted or attempts not kept on record. Administrative issues with Federal Drug Testing Custody & Control Form (FCC). 8

46 CFR 16 – Required Chemical Testing Requires marine employers to test with regard to the following circumstances: Pre-employment Random Reasonable Suspicion Serious Marine Incident Periodic (*Not to be used by Marine Employer) 9

46 CFR 16.210 – Pre-employment “No marine employer shall engage or employ any individual to serve as a crewmember unless the individual passes a chemical test for dangerous drugs for that employer.” Requirement may be waived by employer if: (a) participant is part of a random drug testing program within the last 185 days for at least 60 days, or, (b) passed a chemical test required by this part within the last 6 months without a subsequent positive test. 10

46 CFR 16.230 - Random Rate is 25% as per 2016 DOT Random Testing Rates As applicable by either company pool, or if in a consortium, 25% of consortium pool. Conducted by a scientifically valid random method (i.e., random number table or a computer based random number generator matched with crewmembers’ SSN#s, payroll ID #s, or other comparable ID numbers). Alternatively, random selection may be accomplished by periodically selecting one or more vessels and testing all crewmembers, provided each vessel is equally subject to selection. Tests are unannounced and are spread reasonably throughout the calendar year. 11

46 CFR 16.250 – Reasonable Suspicion “The marine employer’s decision to test must be based on a reasonable and articulable belief that the individual has used a dangerous drug based on direct observation of specific, contemporaneous physical, behavioral, or performance indicators of probable use.” “When practicable, this belief should be based on the observation of the individual by two persons in supervisory positions.” The individual shall be notified, and it shall be noted, participation or refusal, in the vessel’s official logbook, if one is required. 12

46 CFR 16.240 – Serious Marine Incident Serious Marine Incidents are marine casualties that result in: One or more deaths An injury to a crewmember, requiring medical treatment beyond first aid / renders unfit for duty Damage >$100K Actual/Constructive total loss of any self propelled vessel Discharge of oil > 10,000 gallons Discharge of a reportable quantity (RQ) of hazardous substance. 13

46 CFR 16.240 – Serious Marine Incident (continued) Casualties that require the chemical testing of individuals directly involved in a serious marine incident. Those “whose order, action or failure to act is determined to be, or cannot be ruled out as a factor” These individuals must undergo: Alcohol testing within two hours, no later than eight D.O.T. Drug testing (Post Casualty) within thirty-two hours 14

46 CFR 16.220 – Periodic Again, criteria that does not apply to marine employers, used for the following: Initial issuance of merchant mariner’s credential Upgrade or renewal of merchant marine’s credential Not required if: (a) participant is part of a random drug testing program within the last 185 days for at least 60 days, or, (b) passed a chemical test required by this part within the last 6 months without a subsequent positive test. 15

Problems in Drug Tests 49 Part 40 provides instructions when problems arise in drug testing. Examples of possible problems include use of prosthesis, dilute samples, and shy-bladder syndrome just to name a few. Designated Employee Representatives should be familiar with 49 Part 40 as they have a responsibility to ensure the proper actions are taken when problems arise. 16

Management Information System (MIS) Reporting Due every March 15th. Can be faxed, mailed, or filed electronically (preferred means). Consortiums or Third Party Administrators may file these reports on behalf of the Marine Employer. After filing 3 consecutive annual MIS reports, marine employers with less than 10 or fewer covered employees may stop filling the annual report each succeeding year during which they have no more than 10 covered employees. 17

Questions, Comments, Concerns?

Contact Info LT Peter Fransson Desk: (207) 347-5005 Fax: (207) 780-3222 E-mail: peter.j.fransson@uscg.mil secnneinvest@uscg.mil