DAPI 101: Outreach and Enforcement

Even as the minimum Random Drug Testing Rate is raised to 50 PCT, the Coast Guard wants its mission to consist of 90% outreach and just 10% enforcement. Really.

The domestic waterfront got some less-than-happy news when the U.S. Coast Guard announced that the calendar year 2019 minimum random drug testing rate had been set at 50 percent of covered crewmembers. It’s safe to say that nobody is happy about it, much less the Coast Guard itself.

In truth, the Coast Guard had little to say about the matter. 46 CFR part 16.230(f)(2) requires the Commandant to set the minimum random drug testing rate at 50 percent when the positivity rate for drug use is greater than one percent. Indeed, every marine employer is required by 46 CFR 16.500 to collect and maintain a record of drug testing data for each calendar year, and submit this data by March 15 of the following year to the Coast Guard in an annual MIS report.

DAPI 101
In mid-December 2018, in advance of the increased random testing announcement, we traveled to Coast Guard headquarters in Washington, DC, to learn about the Coast’ Guard’s Drug and Alcohol Prevention and Investigations (DAPI) program, and to visit with its director, Mr. Patrick Mannion. What we found out might surprise most domestic maritime stakeholders.

DAPI is the lead entity for the Anti-Drug Demand Reduction Mission of the Coast Guard. Mannion started off by explaining, “We’re responsible for ensuring that 225,000 mariners, over 5,000 marine employers, and another 300 sponsoring organizations are all acting in compliance with regulations. The DAPI program is placed under Investigations, because we have broader authority to conduct investigations on mariner drug use, and on marine employer failure to comply with enforcing the regulations. We have been operating an active drug and alcohol testing program since 1991.”

Actually, Mannion is the sole person assigned to the DAPI program. A few others, once attached to the office, have since seen those billets reallocated. Nevertheless, says Mannion, “Although the program itself has gotten smaller, we’ve become more effective. In the past two years, I have trained over 149 new investigators and inspectors on drug and alcohol inspections and investigations.”

Over a third of the American population is on some form of a narcotic – prescribed, for various reasons. Mannion addresses that reality by saying, “American citizens working on these vessels come from the general population, and they suffer the same afflictions, medical maladies and challenges as everybody else. We know that – through casualty investigations, through research done by our other DOT colleagues – that drugs and alcohol are a significant safety risk.”

Mannion knows of what he preaches. That’s because, as a civilian Coast Guard employee, he’s also a licensed mariner (1600-ton masters offshore and 1600-ton master towing, unlimited). He sailed for many years. Because career choice (finance) did not suit him, eventually he went to sea. “I started out working on deck and working my way up as fast as I could – on OSVs, fishing boats, towing vessels, passenger vessels. You name it – if they let me do it, I did it, and I was fortunate enough to move up quickly in the ranks because I was young, unattached and you can sail 365 days a year. I enjoyed it tremendously. It was probably the most satisfying job I’ve ever had in my life.”

Eventually, he found himself ashore and working very closely with the captain of the port in New York and the area maritime security committees. This led to a position as the Vessel Traffic Service Director in New York.

But, Mannion didn’t step into his current job without credentials. For example, he ran the Drug and Alcohol Testing program for New York Waterway, something that involved keeping tabs on hundreds of employees as part of that testing program. “Just by the sheer number of volumes that we were operating at that time, marine casualties were going to inevitably happen. We were carrying passengers, passengers would fall down, and we always exercised an abundance of caution in doing drug testing, even when we weren’t even sure it would turn into an issue.”

Cosco Busan: Game Changer
The infamous 2007 Cosco Busan accident – the ill-fated vessel striking the San Francisco Bay Bridge and spilling 53,000 gallons of oil into the bay – served to establish more regular, thorough and more standardized medical evaluations for mariners. And it put in place requirements for mariners, and employers, to report to the Coast Guard that a person not only has an underlying medical condition, and/or if that individual is taking medication that needs to be evaluated by the Coast Guard. But in truth, the regulatory regime had only finally caught up to the mariner population. “The Coast Guard standards for medical evaluations today are more closely-aligned with all the other transportation modes. I think that’s a very good summary,” said Mannion.

It is here where Mannion begins to show, if not a softer side of the Coast Guard, certainly one which is just as interested in helping mariners as it is in performing enforcement duties. Mannion insists, “I often say to mariners, ‘This is a protection for you. This is your opportunity; if you are using some medication, to apply, to self-disclose and to apply for medical review as to whether or not you can sail while using this medication.’” He adds, “And if the answer if no, this is also a fantastic time for you to engage with your prescribing physician, and have that physician determine whether or not there is another medication that you can take, or perhaps alter your prescription so that it would be acceptable by Coast Guard medical staff.”

In the end, says Mannion, the Coast Guard’s going to find out whether or not you have a prescription for these drugs. He continued, “Our very last alternative is putting you on the beach. Industry is very clear that we already suffer from having too few qualified personnel. As a mariner, I know how hard it was and how much time and effort went into getting my license. And I treat that higher than just about any document I’ve ever received in my life. It still hangs on my wall with great pride. So when a mariner comes to me and we find out he has a positive drug test, or he chooses to self-disclose, he is treated with great respect and is offered the opportunity to get back onto the water as soon as possible, while not jeopardizing safety.

“It’s difficult enough. But, every person I talk to has the opportunity to be part of the solution. And by that, I mean if you’re not happy with a regulation, if you think it doesn’t work, there’s a process in place – petition for rule-making. They can write to their congressman, their senator, or the Commandant of the Coast Guard, requesting a change, outlining their position. And then make that an issue for debate at federal advisory committee meetings.”

Apples & Oranges: Fishing & Passenger Vessels
It’s been a few years since U.S. Coast Guard Chief Administrative Law Judge Walt Brudzinski penned an exhaustive study on the implications of drug and alcohol testing on board domestic passenger vessels and fishing vessels. In a nutshell, the study sought to define if the use of random drug testing had any impact of post-accident ‘positive’ tests. It turns out that it does. That much was easy to see since one group of mariners (passenger vessels) participates in the random testing program and the other (fishing) does not.

Mariners won’t do what you expect them to do – they will do what you ‘inspect.’ We reminded Mannion that the domestic passenger vessel industry is one of the most highly regulated of any on the water. He responded quickly, “I will agree with you, depending on the size of the vessel. The 6-pack operators; it’s very hard to be aware of who or where they are. They can put their boat onto a trailer and go to a different location. We’ve had surge audits and investigations in certain ports, and the results of those haven’t always been as good as we would hope, but it gives the Coast Guard the opportunity – and industry – to refocus. As we start moving up, the ‘T’ boats, you start to see far greater oversight and requirements for performance. That’s not only Coast Guard-driven; industry associations like the Passenger Vessel Association are putting in place stringent standards for their members. Moving further up into the larger passenger vessels, they’re as heavily-regulated as any industry you will find in the United States today.”

Brudzinski’s data unequivocally shows that post-casualty investigations which involve drug and alcohol testing for fishing vessels were much higher than post-casualty positive readings for passenger vessel situations. We asked Mannion about this reality, and what was being done to level the playing field.

“We’re looking real hard at changing that. We’re taking a look at the data that leads us to the conclusion that perhaps we need to initiate a rule-making to encompass all of the marine industry in the United States and not to leave certain carve-outs unattended.” But, concedes Mannion, “More than anything, it would take an authorizing statute from Congress to allow us to do that.”

Mannion says that the Coast Guard tries to balance out audits to target those most at risk. “We find time and time again that the smaller the operation, the more potential there is for non-compliance. Not because they’re trying to cut corners or even willfully making decisions to skirt the regulation, it’s just a matter of they’re not aware of the nuances of the regulations. Perhaps they’ve entered into what they understand to be ‘contracts’ with third party service providers that are sold to them with the impression that it’ll meet all their compliance needs. Sometimes, that’s not the case.”

Random … Logic
Historically, and since the drug testing program started in 1991, the random test rate had always been set a 50%. But, in 2014, the drug test positivity rates went down. The regulations state that if industry’s positivity rate is less than 1 percent of all mariners tested, the Commandant of the Coast Guard can reduce the random testing rate to 25%. “And, we did that,” explained Mannion, adding, “In that timeframe, we actually continued to go down, to as low as 0.7 percent. Sadly, starting in 2015, we started to see numbers coming up dramatically. And regrettably, we see that the national trends of increased drug use are also reflected in the marine industry. We closed out our number at 1.08 percent.”

While that number seems quite small, the data is telling. It speaks to the effectiveness of the program. Mannion also concedes that while the Coast Guard tests to 5 classes of drugs, industry will often test far more than that. In corporate America, a 12-panel drug test seems to be more standard. “Of course, because you’re testing for more substances, the positivity rate will be higher. But I’ve seen national drug testing rates in the 5, 6, 7 percent range. So I think it’s a real strong testament to the success of the Coast Guard’s program that we were able to push it down, in partnership with industry, to 0.7 percent.”

It is that very kind of logic that the Coast Guard can bring to the table when it is time to make the argument that drug testing regimens on board domestic fishing vessels need to be brought into line with all other classes of domestic vessels. Mannion agrees. “I think that’s a fair assessment. It’s consistent with the data that we’ve seen across the marine industry, and there’s no reason that I’m aware of that would call into question the integrity of expanding the drug testing to the commercial fishing vessel fleet and achieving the same result.”

Testing Schemes Evolve
Today, the sophistication of the drug market and the ubiquity of prescription narcotics used by the general public have given rise to new challenges. Part of the challenge involves deciding who gets tested, when and why. In the wake of a marine casualty, that’s the million dollar question. Mannion puts it in perspective: “Is the individual who’s asleep in their rack to be dragged out and tested? What did they have to do with the casualty? But perhaps that engineer who just stood that 4-hour watch, who did that fuel filter change one half hour before getting off watch and went into bed, and then that fuel filter, maybe he forgot to turn the valve open … fully. And it choked out the plant. And this is why it’s important that we have employers and trained investigators from the Coast Guard working together to understand exactly what occurred.”

Mannion continues, “It’s very tempting for all involved to just have everybody on the boat tested. You have a compressed time window to do that test – whether it’s drugs or alcohol. And if you choose not to do it, you don’t get a second bite of the apple – you can’t go back. And then maybe only later on in the course of the investigation do you find that the engineer who was on watch or changed out the filters didn’t open the valve fully.”

The U.S. Coast Guard is a data-driven organization. Audits and investigations are based upon credible evidence of serious non-compliance. That said; it’s not just the mariner and his/her employer under scrutiny. For example, the Coast Guard not only regulates the marine industry. It also regulates the chemical testing industry – the doctors, the medical review officers, the collectors, and the laboratories.

On this point, Mannion is dead serious. “We have a duty, to not only the mariners, but to the American people, to make sure that the integrity of that test, the rights of the individual mariner, and the rights of the public – for safety – are assured. And we want to make sure that the mariner can be assured that that sample tested was actually his sample – it wasn’t a mix-up.”

The Coast spends a great amount of effort auditing collection sites, via ‘clandestine audits,’ where Coast Guard personnel will walk in to a collection site and say that they are there for a Coast Guard DOT test. “We find great adherence,” reports Mannion, adding, “For the most part, you’re finding a professional, organized, well-managed staff. You have some large, publicly-traded companies who own these sites and have a very active internal auditing program to make sure they are following standard procedures. What we do find is minor issues that can be corrected on the spot, or might require additional training.”

Looking Ahead
In the end, the same test that the pilot takes, the aviation, railroad or trucking employee takes; it’s the same test the Coast Guard mariner is going to take. “And it should be,” says Mannion, continuing, “It’s efficient, it keeps cost down, and there are few other tests out there that afford so much protection for the individual donor, the mariner.”

Finally, Mannion projected out to what the Coast Guard’s Drug and Alcohol Testing Program might look like in 5 or 10 years. One thing will likely remain the same. The process that’s been in place for over 25 years – the DOT 5-panel – insists Mannion, is a very good process. “We have no intent on leaving it. However, there are new technologies that are coming out that are already in place, well-established. Things like oral fluid testing where you no longer have to urinate into a cup and that sample is sent off to a lab – they’ll just do an oral swipe.”

The advent of legalized marijuana has to be considered and the technologies to do just that are already on the way. To that end, Mannion says, “The testing function of today may look totally different in the future. Of course, anything we want to do – the Coast Guard – to promote drug and alcohol testing, it has to be mandated by Congress.”

Today, the Coast Guard uses DOT testing protocols. DOT, at the same time, is looking at implementing very soon, once it’s approved by the Drug Testing Advisory Board (among others), using oral fluid and hair testing. Mannion adds, “These are fascinating technologies that are going to make it a lot easier for marine employers, and for individual mariners to be able to meet these requirements.”

90 / 10: No Pipe Dream
Mannion defines the mission of his office as one which detects, deters, and mitigates the risk of drug use on the water. “If we can identify the problem, we can get that individual out of the safety sensitive role, and we begin the healing process of getting them the medical care they need. Nobody’s looking to punish a mariner by taking their credential away. What we try to do is find that balance to promote safety while still respecting the rights of the individual.

“My personal goal always is to be 90% outreach, 10% enforcement. If we have ten conversations, I want nine of those conversations to be about education, outreach and awareness.” As to the change in random testing rates, Mannion laments, “We saw the data coming from the laboratories long before the marine employers reported them to us. I made sure that we communicated that up the chain of command, and also reached out to industry.”

When we left Coast Guard headquarters in December, Mannion was preparing to attend the PVA’s Annual Convention in New Orleans, just a few short weeks away. The mission for that trip was outreach, but because of the 35-day government shutdown, he didn’t get to deliver his message. Perhaps this article will serve the very same purpose.