USCG Drug and Alcohol Testing Regulations
This overview summarizes U.S. Coast Guard requirements for the drug and alcohol testing regulations in Title 46 Code of Federal Regulations (CFR) Parts 4, 5, and 16. We offer this information as supplemental material so you can understand your responsibilities as a maritime employer; as your TPA, we provide the programs and guidance that meet DOT and USCG regulations, limit liability, and increase safety for vessel personnel. For help understanding and implementing regulations for the USCG contact us.
Is My Company Subject to DOT Drug and Alcohol Testing under the USCG?
Vessels requiring a licensed master, or certificate holder of a Certificate of Registry (COR), or Merchant Mariner’s Document (MMD) could subject all safety-sensitive crewmembers on board to the comprehensive drug and alcohol testing regulations described in 46 CFR part 16. This includes all commercial fishing vessels of 200 gross tons or more. Complying with the regulations is complicated because not only does the company have to have a detailed understanding of the USCG regulations, but the company must know the regulations in 49 CFR Part 40.
The DOT and USCG regulations regarding drug and alcohol testing are precise and restrictive; penalties for noncompliance can be costly. It is best to consult with your C/TPA or program administrator to better understand the regulations when you are unsure of when or how to test.
When using the federal Custody and Control Form (CCF) for a drug test, the crewmember being tested should be able to read the CFRs and find in writing why the government is requiring the company to test them. If it is not described in the Code of Federal Regulations, then the company should be doing non-DOT testing based on company authority.
Complying with the regulations is best done with a detailed drug and alcohol policy. The policy should describe the prohibitions, violations, consequences, types of drug testing, types of drugs to be tested, and the service agents (MRO, TPA, Lab, SAP, EAP) that your company utilizes. Within your policy, you must also specify what testing will be done under DOT authority and what testing will be done under non-DOT company authority.
Often a company will hire a Consortium/Third Party Administrator (C/TPA) to help them administer their drug testing program. However, it is important to know that even when a third party administrator implements the program, the company is ultimately legally responsible for all the actions of their officials, representatives, third parties, and service agents in carrying out these requirements as dictated in CFRs listed above. It is important that any TPA associated with your program has an excellent reputation and thorough understanding of DOT and USCG regulations.
Setting up Service Agents
The second step in complying with USCG and DOT regulations is to arrange for service agents who meet the DOT requirements to provide services for drug testing (MRO, Laboratory, SAP, and C/TPA).
Unlike MROs, Laboratories, and SAPs, there is no DOT or USCG certification or requirements for C/TPAs. It is essential that you properly vet all of your service agents to make sure they provide quality services. Always check the DOT’s Public Interest Exclusion (PIE) list to make sure your service agents have not been banned from operating due to DOT violations.
The company will need to be set up with a DHHS-certified laboratory for testing at port, and will need crew members certified to do specimen collections on board their USCG-regulated vessels if they cannot reach port and complete a specimen collection at a collection facility within 32 hours. (You can request collector training for your crew here). The company must ensure that all collectors involved in their program are trained according to DOT regulations outlined in 49 CFR part 40 § 40.33. The company will typically use a local laboratory collection facility or occupational health facility for pre-employment tests. However, if your company’s vessels operate at sea, you may also need to have trained collectors on board your vessels to conduct Serious Marine Incident (SMI) testing, and we recommend random testing onboard the vessel.
All specimens need to be shipped to a DHHS-approved laboratory who will analyze the specimen for drugs, adulterants, and other elements to assure its integrity. The laboratory reports all results to a qualified Medical Review Officer (MRO). The MRO is the gatekeeper for the company’s drug testing program. If the laboratory reports anything but a negative drug test, such as a positive, adulterated, substituted, or invalid result, the MRO will interview the donor to determine if there is a legitimate reason for the result. The MRO will also give the donor the opportunity to have the split-specimen retested at a different laboratory. It is important to know that if the donor requests a retest the price of for the test could increase to $200. The added expense for retesting can be passed on to the employee so long as the employer and service agents do not delay or prevent the retesting prior to payment. We always recommend companies detail that the price for retesting a split-specimen will be the employees’ responsibility within their company drug and alcohol policy.
If a crew member tests positive, they must be provided contact information for a qualified Substance Abuse Professional (SAP). The SAP will have the ability to evaluate the crewmember’s drug and/or alcohol usage/abuse and detail what treatment or counseling is needed.
The company must also have the ability to conduct alcohol testing in the event of an SMI. Alcohol testing must occur within two hours of the incident and be conducted with a device listed on the National Highway Transportation Safety Administration’s (NHTSA) approved products list.
When to Test
After all elements of the program are established, USCG regulations require companies to test in a variety of situations:
- Random testing at a rate of no less than 25% (through scientifically-valid randomized selections by your company or a C/TPA)
- Each marine employer shall ensure that random drug tests are unannounced and that the dates for administering random tests are spread reasonably throughout the calendar year or operating season. The goal of random testing is to have the crew members believe that they can be selected at any time to deter drug use. If the random testing only occurs when the vessel is off-loading or back-loading this violates the goal.
- Post-accident testing after any Serious Marine Incident.
- All vessels, regardless of size are required to comply with USCG Serious Marine Incident testing.
- Alcohol testing must occur within two hours and specimen collection within 32 hours. The company should test any crew member that cannot be ruled out as being a causative factor in that incident. It is important that vessels have at least two individuals trained in specimen collections as if the collector is involved in the incident another individual would have to do that collection. An individual cannot collect their own specimen.
- Follow-up testing
- Return to duty testing
- Prior to a crew member performing a safety-sensitive function, they have to pass a pre-employment test and complete all pre-employment requirements.
- This provision often gets unintentionally violated, such as when a deckhand leaves the vessel unexpectedly and another crew member performs the deckhand’s duties. The new deckhand is usually someone from the processing area. However, this new deckhand should have met all pre-employment requirements, including having a negative drug test result prior to working in a safety-sensitive position.
- Testing on the basis of Reasonable Cause
- When the company believes that a crewmember is under the influence of illegal drugs, they are required to conduct reasonable cause testing. The decision must be made by a supervisor or vessel officer who has received a minimum of one hour of training on the manifestations and indicators of drug use. (To learn more about supervisor training, see our training.)
A company must never place vessel personnel who are not required to be tested in a DOT-random selection pool as crew members who fall into this category. The DOT specifically prohibits employers from falsely representing that a test is required by DOT regulations when it is not. Including non-DOT personnel into a DOT regulated pool is clearly against regulations.
Reporting and Record Retention Requirements
You must ask the crew member if they have ever tested positive on a DOT pre-employment test within the last two years. Your company must send inquiries to all of the past DOT-employers that the crew member worked for during the last two years. This inquiry must determine if the crew member ever tested positive, refused to test, or violated the USCG drug testing prohibitions. This must be done with written authorization from the crewmember. Your company is also are required to immediately respond to requests from other companies asking for drug and alcohol testing information from their previous employees.
If a crewmember ever tests positive, refuses to test, or violates the regulations, the company is required to notify the USCG in writing of the violation. The USCG will initiate administrative actions against the crewmember’s document(s) if possessed. The crewmember will have to complete an SAP evaluation, treatment or counseling, and other elements dictated by the SAP prior to returning to duty.
Companies must also keep detailed records showing compliance with the regulations detailed in 49 CFR Part 40, and 46 CFR Parts 4, 5, and 16. Record retention times for various records range from one, two and five years. (Learn more about record retention requirements here.)
The USCG also requires companies to submit annual Management Information Systems (MIS) reports detailing their drug testing and results. MIS reports must be submitted annually online, you may find the instructions on how to do so at the USCG site. You may also choose to send them via the mail to the USCG Headquarters in Washington, D.C.. To save time and resources, KGA and other C/TPA services can conduct MIS reporting on your behalf. Contact us today to get assistance with MIS report completion.
Return-to-Duty and Follow-Up Procedures
Any worker found to have violated DOT drug and alcohol regulations must complete return-to-duty and follow-up testing as detailed by a qualified SAP. The regulations require that all of these tests are conducted under direct observation, where the collector observes the donor throughout the collection process to ensure they are not in possession of devices that conceal clean urine.
The final hurdle the crew member must meet prior to returning to work is obtaining a letter from the MRO stating “that the individual is drug-free and the risk of subsequent use of dangerous drugs by that person is sufficiently low to justify his or her return to work”.
Often companies are unprepared for USCG audits of their company and their vessels. To better understand what specifically the USCG will look for when auditing your program, review their Chemical Testing Program Compliance Audit Checklist.
If you need help preparing for a USCG audit, please contact us.
What are the Penalties for Violating These Regulations?
The following enforcement actions may be taken for noncompliance with the Coast Guard chemical testing regulations:
- Letter of Warning
- CG-835 (deficiency ticket) may be issued
- Certificate of Inspection (COI) may be removed or not issued
- Civil Penalty for first-time violators may be assessed of up to $5,500.00 per violation, per day
- Suspension and Revocation (S & R) proceedings may be initiated against an individual’s license, MMD, or COR
- Captain of the Port (COTP) order may be issued (prohibiting the operation of the vessels involved until compliance is gained)