Page 16: of Marine News Magazine (February 2011)

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LEGAL BEAT of hazardous substance into the environment of, the

United States occurs and is, or is likely to become, a SMI, the marine employer shall take all practicable steps to have each individual engaged or employed on board the vessel who is directly involved in the incident (defined in section 4.03-4 to include “an individual whose order, action or failure to act is determined to be, or cannot be ruled out as, a causative factor in the events leading to or causing a serious marine incident”) chemically tested for evidence of drug and alcohol use. If a law enforcement officer deter- mines additional crewmen are directly involved in the

SMI, the marine employer must have these additional individuals drug and alcohol tested too.

This section also requires the marine employer to train its crewmen on the SMI triggers and drug and alcohol test- ing requirements.

The regulations then go on, in section 4.06-3, to detail who must be drug and alcohol-tested in the event of a

SMI and the time limits/deadlines for the testing and sample collection:

Alcohol testing must be conducted on those crewmen directly involved in the SMI within two hours of the SMI, “unless precluded by safety concerns directly related to the incident,” in which case it must be performed “as soon as the safety concerns are addressed.” The regs state, though, that alcohol testing does not have to be “conducted more than eight hours after the occurrence of the SMI,” appar- ently in recognition that alcohol dissipates from the bloodstream and an inaccurate or useless test would result.

Drug testing must be conducted, through specimen col- lection, on each crewman directly involved in an SMI within 32 hours of when the SMI occurs, unless preclud- ed by safety concerns directly related to the incident, in which case, as soon as the safety concerns are addressed.

How Mariners Comply & Submit to Testing

Not unreasonably, the regulations also speak directly to vessel crewmen, stating in section 4.06–5 that any crew- man “directly involved in an SMI must provide a blood, breath, saliva, or urine specimen for chemical testing when directed to do so by the marine employer or a law enforcement officer.” This section goes on to state, how- ever, if a crewmember does not wish do comply with drug and alcohol testing, they don’t have to, but they will face consequences: “refusal to provide specimens is a violation of this subpart and may subject the individual to suspen- sion and revocation proceedings under part five of this chapter, a civil penalty, or both.”

Devices, Sample Handling, Report Submission

The regulations, in section 4.06–15, describe how the marine employer must have a sufficient number of alcohol testing devices and urine specimen collection and ship- ping kits aboard its vessels, unless the testing can be per- formed within two hours and obtaining the kits and col- lecting the urine specimen can be completed within 32 hours elsewhere, presumably ashore. This section also explains the technical specifications for testing devices.

Section 4.06–20 details the drug and alcohol testing pro- cedures required for mariners directly involved in a SMI, while sections 4.06–40 and 4.06–50 provide instructions to the marine employer on how to promptly ship the mariner’s drug and alcohol test samples to approved labo- ratories, and adherence to chain of custody rules.

After the SMI has been recognized and the crewmembers directly involved in it identified, tested, and sampled, sec- tion 4.06–60 explains how the marine employer should report the drug and alcohol test results to the Coast

Guard. The marine employer is required to use Form CG- 2692B (Report of Required Chemical Drug and Alcohol

Testing Following a Serious Marine Incident) (http://www.uscg.mil/forms/cg/CG_2692B.pdf). This section also explains where to submit the form and test results.

Civil Penalties for Failure to Comply

Failure to comply with the Coast Guard’s post-accident drug and alcohol testing regulations exposes the marine employer and mariner to significant sanctions, including civil penalties and, if applicable, license suspension and revocation proceedings. 46 C.F.R. § 4.06–70 states that violation of the drug and alcohol testing regulations sub- jects one to the civil penalties provided by federal statute, 46 U.S. Code § 2115. Section 2115 informs that failure to implement, conduct, or comply with the drug and alcohol testing regulations exposes one to a civil penalty of not more than $5,000 for each violation, and that each day of a continuing violation equals a separate violation.

MN

Fred Goldsmith, formerly general counsel of one of the coun- try’s largest tug operators, is licensed in Pa., W. Va., Ohio, and

Texas, and practices admiralty & maritime, railroad, oilfield, personal injury, motorcycle, and insurance coverage litigation with Pittsburgh-based Goldsmith & Ogrodowski, LLC (www.golawllc.com). Reach him at [email protected] or (877) 404-6529. 16 MN February 2011