Most Frequently Asked Questions
Do I need a chemical-testing program?
A prevailing question that smaller commercial operators (employing only one or two employees: often ask is “Do the chemical testing regulations apply to me?” The answer is “Yes”. The chemical testing regulations apply to most commercial vessel operations regardless of the number of employees and regardless of whether the vessel is inspected or un-inspected. This includes “guide services” and self-employed mariners.
Do “independent contractors: or part time crewmembers need to be part of a marine employer’s chemical testing program?
Yes. If an individual meets the definition of a crewmember, as described in 46CFR part I6.105, they must be part of the chemical-testing program, regardless of the time spent working on board a vessel.
With bareboat charters, who is responsible for ensuring a drug-testing program is in place for that chartered vessel (the hired captain, vessel owner, people who chartered the vessel, etc.)?
The marine employer is responsible. This can be played out in several ways depending on the arrangements/contracts and should probably be looked at on a case by case basis. Anyone of the people listed above can play the part of the marine employer. That person must have a chemical-testing program in place.
I change mates so frequently; do I have to obtain a pre-employment test for each mate?
The pre-employment test may be waived if one the conditions under 46CFR part 16.210 is met. Otherwise you must conduct a pre-employment test for each new-hire, and, must obtain the results of the test prior to engaging or employing the mariner aboard your vessel.
What are the penalties for violating these regulations?
The following enforcement actions may be taken for chemical testing regulations:
- Certificate of Inspection (COI) may be removed or not issued.
- Civil Penalty may be assessed of up to $5,000.00 per violation, per day.
- Suspension & Revocation (S&R) proceedings may be initiated against an individuals license, MMD, or COR.
- Captain of the Port (COTP) order may be issued (prohibiting the operation of the vessel involved until compliance is gained)
- Letter of Warning
- CG-835 (deficiency ticket) may be issued.
What about the marine employer who runs a “non-for-profit” or charity operation and the crewmember who is a “volunteer”?
In these two cases payment status is not an issue. The requirements for chemical testing still apply.
Are individuals changing positions of ships within a company’s fleet considered “new hires” and need a pre-employment test?
Are Breathalyzer devices required onboard?
Yes, but only for inspected vessels certified for unrestricted ocean or restricted overseas routes.
What happens when one of my crewmembers test positive?
Several things will need to be done by the marine employer. First and foremost, the crewmember must be removed from the “Safety Sensitive Position”. The crewmember may not return to work in that, or any other safety sensitive position, until after obtaining a “return to work” letter from the MRO.
Next, the marine employer should provide the crewmember with the hotline number for the EAP provider so that the crewmember can seek assistance.
If the crewmember is the holder of a Coast Guard issued license or merchant mariners' document, then the marine employer is required to report the positive test to the U.S. Coast Guard. (Failure to report positive test results may result in a civil penalty against the marine employer) Unlicensed/undocumented mariners are removed from safety sensitive positions and cannot return to work until they obtain a return to work letter from the MRO.
Once the coast Guard receives the report, and Investigating Officer will be assigned to investigate the drug test. This investigation will verify the validity of the test and will ensure there are no “fatal flaws” in the testing process.
If the investigation reveals there are “fatal flaws” in the case, no action will be taken against the mariner.
If the investigation confirms that the positive test result is valid, the Investigating Officer will initiate a Suspension & Revocation case against the mariner.
After being served with a complaint for Use of a Dangerous Drug, the mariner has two basic choices:
- Contest the Complaint. If the mariner contests the allegations made in the complaint, the case will be heard by an Administrative Law Judge at a formal Suspension & Revocation Hearing. If the Coast Guard proves its case at the hearing, the Administrative Law Judge will likely revoke the mariner’s document.
- Enter into a Consent Agreement. If the mariner does not wish to contest the allegations made in the complaint, the case can be settled through a consent agreement. For Use of a Dangerous Drug, the standard consent agreement has the following sanctions and conditions:
- Revocation, stayed on, 12 months suspension and completion of;
- A bona-fide rehab program
- 12 months of aftercare, consisting of documented attendance of support meetings like ANNA (avg. of 4 per month), 6 unannounced random drug tests (all must be negative), & obtain a return to work letter from the MRO.
It takes most mariners 12-18 months to complete this process. ASTS will assist you in this matter. The mariner’s license is suspended during those 12-18 months. The license is reinstated once all of the requirements of the agreement are met. Failure to complete the agreement in the specified time will result in revocation of the license.
One of my crewmembers tested positive, but he got some counseling and took another test and came up negative. Can I put him back to work on my boats?
A mariner who tests positive for a dangerous drug cannot return to work in a safety sensitive position until he or she has obtained a return to work letter from the MRO, regardless of any other treatment, counseling, or subsequent drug tests. A mariner employer that knowingly returns a mariner to duty without the return to work letter is subject to a civil penalty of up to $5,000.
What is an “adulterated” specimen?
An adulterated specimen is a urine specimen, submitted for USCG/DOT drug testing, that has been found by a DHHS/SAMHSA laboratory, to have substances in the sample, that are not normally found in human urine. This analysis is confirmed by the MRO.
Is a diluted specimen reasonable cause for a direct observation collection?
A diluted specimen can only be used as reasonable cause for a direct observation collection when there is no evidence of a medical explanation for the dilution, and the test was not performed by the lab. Mariner employers must speak with their MRO regarding diluted tests before considering any further action.
What will the Coast Guard do about a mariner who refuses a test?
A refusal is handled in the same fashion as a positive test result. That does not mean a refusal is a positive, it simply means that the Coast Guard will seek the same sanctions against a licensed or documented mariner who refuses a test, as that for licensed or documented mariner who fails a drug test. The Coast Guard would initiate Suspension & Revocation proceedings against the mariner, seeking the revocation of the license or document.
What will the coast Guard do about a substituted or adulterated specimen?
The act of adulterating or substituting urine specimens submitted for drug testing, is by definition, a refusal to test. The Coast Guard would initiate Suspension & Revocation proceedings against a licensed or documented mariner that adulterates or substitutes their specimen, seeking revocation of their license or document. Marine employers must report substituted or adulterated specimen incidents to the USCG if a licensed or documented mariner is involved.
I am a self-employed fishing guide. Can I conduct my own random selection process?
No. A person subject to testing cannot conduct the random selection and still meet the definition of “unannounced” as it pertains to random test. This does not mean that you need to join a consortium. It does however mean that you need to find a disinterested third party to conduct the random selection process. This can be done through the services of a Third Party Administrator (TPA), such as a collection site manager, or by any other person that has no vested interest in the outcome of your test and can ensure that the random selection process is scientifically based.
I am a member of a TPA/consortium that holds a Letter of Substantial Compliance. Isn’t the DAPI required to skip to section 8 of the audit checklist?
No. The checklist is a tool for the auditor to use. The LORC allows the auditor to skip sections 1-7 but there is no requirement for the auditor to do so.
I belong to a TPA and noticed that only 10% of my crewmembers were selected for random tests this year. Am I subject to a civil penalty for not testing 50% of my crewmembers?
No. By being a member of a TPA, you are meeting your obligations for random testing. Your crewmembers are “pooled” together with crewmembers from many other employers. The TPA guarantees the Coast Guard that it will test that “pool” of crewmembers at 50% annually. You must however, upon demand, provide a copy of the MIS report submitted for the company, or, a letter from the TPA stating an MIS report was filed by the consortium on your company’s behalf.
Can the same crewmember be randomly tested more than once in a calendar year, and if so, will that count towards the 50%?
Yes, if your selection process is in fact random. Each crewmember must have an equal chance of being selected each time a random selection for testing is conducted. Since the selection is random, it is reasonable to expect some people to be selected more than cone, while others may not be selected at all during a given year. If you employ 100 crewmembers, you must select 50 crewmembers on a random basis for testing. You do not have to select 50 different people, you only have to ensure you randomly select 50.
Can I base the 50% random selection rate on the number of billets I’m trying to rill on my vessels?
No. The rate of random testing applies to the total number of crewmembers employed by a marine employer. Since every crewmember (not just the ones working on any given day) must be subject to random testing each time a random selection is made, the 50% must be based on the total number of crewmembers.
My company’s positive test rate has been below 1% for the last 3 years. Can we reduce the rate at which we randomly test our crewmembers?
No. 46 CFR part 16.230(t) clearly states that the random testing rate can only be lowered by the Commandant of the Coast Guard, and that the rate may only be lowered when the industry-wide positive test rate falls below 1% for two consecutive years.
What is the difference between a collection facility and a lab?
A collection facility is the location where the marine employer sends his or her personnel to provide urine samples for drug testing. A lab is a place to which the collection facility ships the specimen for testing and analysis.
Are the chemical testing regulations applicable only to inspected vessels?
No. The USCG chemical testing regulations are applicable to commercial vessel crewmembers working on both inspected and un-inspected vessels.
What are the responsibilities of a master, who is not the owner of the vessel or marine employer regarding the chemical testing regulations?
The master may be held accountable if the company policy designates the master with responsibilities regarding the marine employer’s chemical testing program. The master could be charged with misconduct for violating company policy. Therefore, you as the master should confirm that you marine employer knows about the chemical testing regulations.
Are volunteers considered crewmembers and therefore subjected to the chemical testing regulations?
Yes, if the volunteer meets the definition of “crewmember.” The payment status of an employee, whether he or she is a paid employee, or serving as a volunteer, does not change the requirement for chemical testing.
For which drugs are urine specimens being tested?
Marijuana, Cocaine, Opiates, Amphetamines, and Phencyclidine (PCP) are the five drugs tested for in a 5-panel DOT Test.
Can urine samples be tested for alcohol following a Serious Marine Incident?
No. The only acceptable SMI tests for alcohol are blood or breath.
Does the Coast Guard accept hair testing for drugs?
No. The only drug test accepted by the Coast Guard is a 5-panel DOT Test, collected and analyzed in accordance with 49 CFR 40.
What is the legal Blood Alcohol Concentration (BAC) for crewmembers aboard commercial vessels?
While that is no bottle to throttle regulation, a mariner is presumed to be intoxicated if his or her Breath Alcohol Concentration (BAC) is greater that or equal to 0.040%.
Can I count post-accident/Serious Marine Incident drug tests towards my 50% random test rate?
No. While accidents are a random occurrence, post accident tests are to be counted only as post accident/SMI tests and not as randoms.
I operate a seasonal business. My crewmembers are college students that I hire at the start of the season and employ for about 5 months. Are those crewmembers required to be chemically tested?
Yes. First, each crewmember will have to be pre-employment tested unless they meet criteria for an exemption under 46 CFR part 210. Secondly, these crewmembers must be subject to random testing during the season. You as the marine employer are then responsible for ensuring that 50% of all the deckhands you hire are randomly tested. Additionally, you as the marine employer must make sure those tests are spread reasonably throughout the operating season.