USCG – Maritime Industry Drug Testing

DRUG AND ALCOHOL TESTING IN THE MARITIME INDUSTRY -What do you need to know to perform drug and alcohol testing in the maritime industry?

What are the Federal regulations that are applicable to the US flagged vessels in the maritime industry?

The regulations are as follows and apply to all US flagged commercial vessels world-wide.  It is estimated that at any given point in time, there are over 125 US flagged commercial service vessels in a variety of locations world-wide engaged in carrying cargo or doing business with the petroleum industry.  Vessels that are owned and operated by the US Navy or the Military Sealift Command (MSC) are not in commercial service.  One regulation (46 CFR Part 4) also applies to foreign flagged commercial vessels when they are in US or US Territorial waters. The applicable regulations:

• 49 CFR part 40 – Procedures for Transportation Workplace Drug and Alcohol Testing Programs
• 46 CFR Part 16 – CHEMICAL TESTING
• 46 CFR Part 4 – MARINE CASUALTIES AND INVESTIGATIONS

There are several questions to be answered and facts that a C/TPA should be aware of if providing service to marine employers.

The first question: What is considered commercial service?  It is those vessels that charge to carry cargo and or passengers.  This can range from the large passenger vessels to tankers or freighters.  This does include US fishing vessels** who catch fish and return to shore to sell those fish or crabs as that is considered a commercial transaction.  Many of the “tall ships” are in commercial service and those captains have a sailing endorsement on their licenses.  Most of these vessels are required to have a US Licensed Captain or Master in charge of the vessel.

Vessels that carry passengers to go sport fishing on a trip lasting from a half-day to multiple days are required to meet the regulatory requirements.  There are several different types of vessels and licensees required for sport fishing vessels.  In general, these sportfishing boats carry 7 or more passengers.

A large number of vessels in commercial service are what are called 6-PAX operators.  These are uninspected vessels where the vessel owner/operator has a Captains’ License allowing that person to operate a vessel and can carry up to 6 paying passengers.  There are a great number so these on the Great Lakes, the Eastern Seaboard, along the Gulf Coast, and with a large number in Alaska.  There are a myriad of other vessel types and for an equally myriad number of purposes or uses.

The other question:  What waters are considered US waters and what are the boundary lines for US waters?  It used to be 3 miles from the coast.  That was determined in another long-ago age when that was the range of effective cannon fire and how far they could fire.  That 3-mile limit still applies to states with ocean coast lines and how far into ocean waters their state jurisdiction applies.  Per international agreement, the range for US government jurisdiction is 12 miles from the coastline.  There is also a well-known and defined Exclusive Economic Zone (EEZ) which extends 200 miles out from the coastline.

The other criteria to determine US waters subject to Federal and Coast Guard jurisdiction is all navigable waters.  This does include waters/rivers that form a boundary line between states.  All waters that are entirely within a state and do not flow into a river are not considered Federal navigable waters.  Some examples where the waters are not considered Federal or fall under Coast Guard regulations are the lakes at Disney World with the ferry boats that carry passengers. Another example is Lake George in New York State which is entirely landlocked.  There is a 1200 passenger vessel in New Hampshire that operates on state owned waters and does not fall under Coast Guard regulations.  Other examples of waters and vessels that are within USCG jurisdiction are a ferry boat that operates on the Potomac River north of Washington D.C. that operates between two states.  Lake Champlain is another example of commercial service vessels that operate between New York State and Vermont.  Lake Texoma which is the boundary between Texas and Oklahoma and is part of the Red River is another example of being a Federal navigable waterway.

To add complexity to this are vessels in commercial service that operate entirely within National Park Service lands.  Some examples of this are charter sightseeing boats that operate within the Grand Tetons or the Crater Lake.  National Park Service has jurisdiction and requires that these vessels comply with US Coast Guard regulations.

There are casino vessels that go on voyages to nowhere.  What that means is that they will leave a port, go on a voyage going more than 3 miles but staying within the 12-mile limit.  Between the 3- and 12-mile limit, they can have gambling for paying passengers as there is no Federal law against gambling. 

Let us add one other fact into this mix particularly, with the advent of states allowing the use of marijuana for medical or recreational purposes.  The use of marijuana for medical or recreation purposes is not allowable on all Federal navigable waterways.  Within the State of Washington, this was met with some dismay by the private boaters who utilize Puget Sound waters for boating.

** Commercial fishing vessels under 200 gross regulatory tons are not required to be operated by a credentialed captain.

Detailed Information on What you Need to Know – USCG Testing

One of the confusing aspects about the maritime industry are the issues related to obtain and maintain a credential.  A credential, commonly referred to as a license, is required to operate or work on most vessels that are in commercial service.

Federal licenses, credentials and certificates are issued only by the US Coast Guard and the FAA who issue licenses and certificates for airmen (pilots) and mechanics.

The licensing terms that are used are as follows:

• License (Officers)
• Merchant Mariner Document (MMD) (Crew)
• Certificate of Registry (COR) (Staff Officers)

The above terms have been combined and are now called credential.

STCW (Standards of Training, Certificate and Watchkeeping) Certificate (International) was recently added.  This is a requirement as established by the International Maritime Organization (IMO) which is part of the United Nations with 133 countries signatory to the STCW requirements.  All personnel that serve on commercial service vessels on international routes are required to have a STCW certificate.

One of the requirements to be in the possession of the license applicant is to have a Transportation Worker Identification Card (TWIC).  The TWIC can be obtained through the Coast Guard or Transportation Security Administration (TSA).  This requirement is not mandatory if a mariner will be employed on a vessel that is not required to have a vessel security plan.  

A drug test, when required, must be completed in accordance with 49 CFR part 40.  The form CG-719P can be used to report the drug test to the National Maritime Center (NMC) for license application or renewal. Besides using the CG-719P, the drug test report can also be done by one of the following:

• Utilizing the Federal CCF MRO Copy; or 
• A letter on company letterhead; or 
• C/TPA letterhead.

The data to be included for letters should include the name of the mariner, Social Security Number, date of the test, test result, name and address of the SMHSHSA accredited laboratory and the name and registration number (issued by American Association of Medical Review Officers (AAMRO) or Medical Review Officer Certification Council (MROCC)) of the MRO.

All non-negative drug tests should be reported to the National Maritime Center (NMC).  The argument has been brought up before by medical professionals that reporting non-negative drug tests to Coast Guard would be a violation of Health Insurance Portability and Accountability Act (HIPAA).  It is not a violation of HIPAA as HIPAA applies to clinical medicine and not to workplace drug testing.  Workplace drug testing is not clinical but rather a fitness for duty examination as stated by the Equal Employment Opportunity Commission (EEOC) in 1992.

A periodic drug test is not required if the mariner can document they can meet one of the exemptions in 46 CFR part 16.220 stated below:

(c) An applicant need not submit evidence of passing a chemical test for dangerous drugs required by paragraph (a) or (b) of this section if he or she provides satisfactory evidence that he or she has—

(1) Passed a chemical test for dangerous drugs required by this part within the previous six months with no subsequent positive chemical tests during the remainder of the 6-month period; or

(2) During the previous 185 days been subject to a random testing program required by §16.230 for at least 60 days and did not fail or refuse to participate in a chemical test for dangerous drugs required by this part.

(d) Except as provided by paragraph (b) of this section, an applicant is required to provide the results of only one chemical test for dangerous drugs when multiple transactions are covered by or requested in a single application.

Use of the Federal CCF for periodic testing:

A Federal CCF is to be used for periodic drug test as it is a required Federal Drug Test.  Because that there is no annotation on the CCF for Periodic, the “Other” block on the Federal CCF should be checked and Periodic written in the space after the “Other” block.

There are other requirements to be completed that include an extensive medical examination (Form CG-719K Merchant Mariner Credential Medical Evaluation Report) along with a criminal background check. The criminal background check is performed using a database maintained by the FBI. A check is also made of the mariner applicant using the National Driver Registry (NDR).

There are many different licenses and grades within a license. This is due to the different vessel types and requirements to operate vessels in a safe and efficient manner. The general license categories are:

Deck Officers:

There are a variety of licenses for deck officers, some with geographic and/or tonnage restrictions.  There are licenses without any restrictions, and they are termed unlimited.  The tonnage restriction ranges from 25 tons up to 1600 tons.  After 1600 tons, the license is considered unlimited.

An example of licenses with geographic limitation would be certain licenses that permits a vessel master to operate a vessel strictly along certain stretches of the Colorado River. The license is not valid in any other geographic locale.

A special license is required for operators of vessels who do not carry more than six passengers.  These vessels are uninspected and are permitted to carry no more than 6 passengers, hence the term, 6-packs.  These vessels (approximately 25,000 nationwide) operate on rivers, lakes and near the coastline and do half to three-quarter day trips.

Sailing vessels that engage in commercial service are required to have a licensed master in charge.  In addition to the other requirements they have to earn and receive a sailing endorsement.  That implies that these masters know the names and types of sails, plus names of the riggings associated with each sail.  There are several sailing vessels in commercial service that carry passengers. An example are schooners that carry students for a semester at sea.

Engineers:

Licenses are required for personnel who work on the engines or in the engine room on board freighters and other large size vessels and includes ferries on domestic routes.  Engineers on uninspected commercial fishing vessels are required to have an engineer license.

Certificate of Registry:

Staff shipboard officers such as pursers and medical personnel, are issued a Certificate of Registry (COR).

Other Licenses:

Radio Officers and Pilots are issued special licenses in order to perform their assigned duties. Pilots are those individuals who generally pilot vessels in and out of ports.  These are special licenses which are issued to certain qualified individuals to allow them to operate vessels on rivers and or canals or in areas that may have potential navigational hazards.  A pilot is in charge of the vessel whose navigational orders will supersede that of the licensed captain on the vessel.

An important point is a mariner is responsible for having a valid license in order to be employed in a position on a vessel that requires the individual to hold a license.  A marine employer is responsible only to make sure that all personnel that working in positions have a valid license to work in that position on a vessel.  The positions that require an individual to have a credential are identified on the Certificate of Inspection (COI)*.

For most mariners’ licenses are good for five years and can be renewed.  Licenses for pilots are required to be renewed every year, includes taking an annual physical examination and taking a periodic drug test or meeting one of the drug test exemptions.

* COI is required to be displayed on all inspected vessels that can be viewed by the public.  The COI lists all positions on a vessel required to be manned when the vessel is operating.  The listed positions require mariners holding a valid credential to work in each position.

SERIOUS MARINE INCIDENT (SMI) TESTING

Alcohol testing must be completed within 2 hours following a serious marine incident (SMI), the collection of drug-test specimens of each individual must be conducted within 32 hours of when the SMI occurred

Serious Marine Incident (SMI) testing, what it means and when is this testing required.  This section will cover the collection and shipment of blood specimens when these specimens have been collected to perform a blood alcohol analysis. 

The governing regulation is 46 CFR part 4. This particular regulation has been in place since May 29, 1986 with the drug and alcohol portion added November 21, 1988.  There was a major update December 22, 2005 for required alcohol testing.

There are some terms that should be defined or clarified before proceeding further.  All marine accidents are called marine casualties.  These definitions apply to all vessels except for public vessels (vessels owned by the US Government or a foreign state).  They also have to occur upon the navigable waters of the United States or territories or possessions and also applies to US flagged vessel worldwide.   It should be noted that foreign flagged vessels are not exempt from SMI testing when they are in United States waters.  As noted in a previous article, United States territorial waters extend 12 miles out from the coastline.

There are several events that fall under the term “Marine Casualty”.  Some of them are:

Any fall overboard, injury, or loss of life of any person.  This is very important for marine casualty and can lead to a more serious type of incident. The reason why this is important is one of the primary missions of the Coast Guard is the preservation of life and the prevention of injury to passengers and/or crewmembers.

Any occurrences of injury or loss of life to any person while diving from a vessel and using any type of underwater breathing apparatus. Breathing apparatus includes Hookah, Hard Hat and SCUBA.

Besides the above type of incident there are several other occurrences involving a vessel that can result in one or more of the following (some of these are self-explanatory):

While all of the above happen frequently, they are required to be investigated by US Coast Guard Investigating Officers.  These casualties oftentimes do not involve required drug or alcohol testing but if any of these events rise to a certain level, then there is required drug and alcohol testing. That level is called Serious Marine Incident and it is when a marine casualty as stated above has one or more of the following events as cited in 46 CFR part 4.03-2:

• One or more deaths;
• An injury to a crewmember, passenger, or other person which requires professional medical treatment beyond first aid, and, in the case of a person employed on board a vessel in commercial service, which renders the individual unfit to perform routine vessel duties;
• Damage to property, this damage includes the cost of labor and material to restore the property to its condition before the occurrence, in excess of $100,000; (This does not include cost of salvage, cleaning, gas-freeing, drydocking, or demurrage.)
• Actual or constructive total loss of any vessel subject to inspection under 46 U.S.C. 3301. The type of vessels are:

• Actual or constructive total loss of any self-propelled vessel, not subject to inspection under 46 U.S.C. 3301, of 100 gross tons or more. There are certain types of fishing vessels that operate primarily in Alaska that are exempt but the conditions for exemption are strict in interpretation. If readers are interested in seeing how these exemptions are worded please Google 46 U.S.C. 3002.
• A discharge of oil of 10,000 gallons or more into the navigable waters of the United States, as defined in 33 U.S.C. 1321.  This discharge does not have to be the result of a marine casualty but can be an accident that occurs during loading or offloading of oil or petroleum products as an example.
• A discharge of a reportable quantity of a hazardous substance into the navigable waters of the United States, or a release of a reportable quantity of a hazardous substance into the environment of the United States, whether or not resulting from a marine casualty.

When one or more of the above events happen, SMI drug and alcohol is required to be done.

USCG – Maritime Required Drug Testing

Whenever a Serious Marine Incident (SMI) event occurs, there is a requirement for the marine employer to conduct drug and alcohol tests on personnel whose actions cannot be discounted as contributing to the accident or was a causal factor leading to the accident.  This can include the vessel Master/Captain and senior ship officers.

Drug Tests:

Any and all drug tests have to be conducted with all the applicable regulations in 49 CFR 40.  The CCF will be marked post-accident and shipped to the SAMHSA accredited laboratory for analysis.  That is the same as for the other DOT Modal Agencies. The results of the drug test(s) will be turned over to the Investigating Officer after review by the MRO.  Those results will become part of the Investigation Report for the SMI.

There is additional testing that may take place per USCG Authority. The Investigating Officer on scene can request that all the collected specimens to be held by the laboratory that received the drug test specimens, depending on the SMI. This request will be for all specimens with tests results that are negative or non-negative. If the SMI is high profile or if the National Transportation Safety Board (NTSB) is involved doing the accident investigation, that request will happen and will be honored by the laboratory.  The laboratory will retain the specimens until they have been authorized to be released.   The Coast Guard Drug and Alcohol Program Manager retains this authority.

If the Investigating Officer or NTSB request that additional testing be done on the retained specimens, that request is then forwarded to the Coast Guard Drug and Alcohol Program Manager.  It should be noted that NTSB does not have the authority to request that testing but they have to initiate the request through the Coast Guard Investigating Officer.

Once the request is received by the Coast Guard Drug and Alcohol Program Manager, the laboratory holding the specimens will forward only Bottle A to another federally owned laboratory to do analysis for additional drugs.  The DOT ODAPC Office will concur in this request and release the control of the specimens to Coast Guard. The laboratory receiving the specimen(s) will test for additional drugs with their report going to the Coast Guard Drug and Alcohol Program Manager.  There are no cutoff levels and a MRO will not be involved in a review of those additional tests.  Because some of the readers will be concerned about the presence of drugs, there are medical doctors available within Coast Guard that can assist in making a determination as to the cause and effect of any drugs that may be present. 

This testing is for investigative purposes and the report will be forwarded to the Investigating Officer and NTSB for inclusion in the investigation report particularly if any drugs were present. If present, a determination will be made about the presence of drugs and if those drugs were a causal factor contributing to the SMI.

Alcohol Testing:

Alcohol testing is part of the investigation into causal factors that caused or led to a SMI.  Alcohol testing has to be conducted within two hours of the time of the SMI on all crewmembers whose negligence cannot be discounted as contributing to the SMI.

The two-hour time exemption applies if there are safety concerns that have to be met for the preservation of life or property.  If any of those circumstances exist, the alcohol testing has to be conducted within 8 hours of the time of the SMI or as soon as the safety concerns have been addressed.  Examples of safety concerns would be putting out a fire onboard the vessel, preventing the vessel from sinking, or saving a life or lives.  After 8 hours have elapsed from the time of the SMI, alcohol testing is no longer required.

The alcohol test can be conducted using an alcohol screen test device that is on the current conforming products list published in the Federal Register by National Highway traffic safety administration (NHTSA).  The list is published on an irregular basis but can be found at http://www.dot.gov/odapc/documents.  Click on the link titled “Conforming Product list for Alcohol Screening Devices” which will take you to the current list.  You will also see a link titled “Conforming Products List for Evidential Breath Testing Devices”.

Two of the listed devices are commonly used in the maritime industry on small passenger vessels because they are inexpensive and easy to us.  The two are:

• Q.E.D. A150 Saliva Alcohol Test, manufactured by Orasure Technologies, Inc., Bethlehem, PA; and
• ALCO-SCREEN .02 Detection System, manufactured by Chematics, Inc., North Webster, IN.

These are not the only listed alcohol screen devices but are the ones most frequently found in the maritime industry.

Some important facts about the use of these alcohol testing devices are:

1. These devices expire so the marine employer or if supplied by the C/TPA, should pay attention to the expiration dates so they can have devices on hand that are within their useful dates of use.  This item will be checked by a Coast Guard Investigating Officer at the time of the incident. If expired the marine employer can face law enforcement action.
2. The marine employer needs to keep these units in storage places that are not subject to temperature extremes, it is recommended that they be kept at room temperature.
3. If these devices are stored in a refrigerator, the devices need to be brought to room temperature prior to being used.
4. No formal training is required to use these devices. If the marine employer/captain can read a nautical map chart, they can read the directions for use on the device.
5. If the test result shows the presence of alcohol, that result is to be recorded on the CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serous Marine Incident).
6. No confirmation test is required.  This test is a tool for investigation with the results contributing to the accident determinations and findings.  If the test result shows the presence of alcohol, the Investigating Officer will conduct an investigation and look for other signs of alcohol use on board the vessel by the crewmember or crewmembers.

More on Serious Marine Incident (SMI)

Whenever a Serious Marine Incident (SMI) event occurs as described in the previous article, there is a requirement for the marine employer to conduct drug and alcohol tests on personnel whose actions cannot be discounted as contributing to the accident or was a causal factor leading to the accident.  This can include the vessel Master/Captain and senior ship officers.

There are required reports to be submitted to the area Coast Guard Investigating Officer.  These reports are designed to aid in the investigation of a Serious Marine Incident (SMI).

There are three different forms with two of them required for all SMI events.  The first form titled CG-2692 (Report of Marine Casualty) is required to be completed within 5 days and reported within 5 days to the nearest Coast Guard Marine Safety Unit or Activity.  The Form is two pages in length with 3 pages of instructions on how to correctly complete the form.  This particular form asks general logistical questions, (Vessel name and type, location, weather, and other pertinent information).  A description of how the accident occurred and damage plus other information is required to be competed.  Lastly the person making the report is required to sign and give contact information.

Another form is the CG-2692A (Barge Addendum) and is used in conjunction with the previous form when there is involvement with barge(s) that have caused damage or have sustained damage as described in CG-2692.  It is never to be completed by itself.

The other required form is the CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident).  As described in a previous article, drug and alcohol tests are required to be conducted within certain time frames. Those test results also become part of the investigation into the SMI.

Information required on the CG-2692B includes basic vessel identification information with the name of the vessel master along with the name and address of the marine employer.   There are 8 boxes listing the reasons why SMI testing is required.  One or more of these boxes are to be completed along with the incident location. Other required information is:

• Name of personnel involved in the SMI;
• Are these personnel licensed or hold a certification;
• A checkbox for each listed mariner to attest if the drug test was provided within 32 hours;
• Was an alcohol test provided within two hours with the type of specimen provided (saliva, breath, or blood)? 
• This should be accompanied with the test results.  The test results can be a numerical value or a negative or positive response.
• The name and address of the SAMHSA accredited is required along with the name of the laboratory conducting blood alcohol tests (if blood was used) or the name of the individual conducting the breath of saliva alcohol testing.

The name and contact information of the person making this report is required along with a signature.  A date is required to annotate when the form was completed and signed.

If the required testing was not completed within the required time frames, there is a block to be completed specific to the circumstances.  This can also be used if there is a test refusal or unusual circumstances for testing.  It should be noted that additional paper can be used as needed to complete this report.

This report is reviewed by the Coast Guard Investigative Officer and by NTSB, if they involved in the investigation.

An accident investigation can take months to complete depending upon the causal factors to be investigated.

Learn more about Maritime and United States Coast Guard (USCG) required drug testing.