by Captain Kirk Greiner
LCDR ROSSETTI, the "Drug Czar" of the Coast Guard chemical testing program brought to my attention the fact that readers might be mislead by our article in the last issue Alcohol and Drug Testing. We indicated that the testing program "applies to all person aboard a vessel when a serious marine accident occurs. Thus it makes no difference whether the vessel is an uninspected fishing vessel or an inspected tank ship." This was taken from 46 CFR 4.06(b).
However, LCDR ROSSETTI points out that 46 CFR 4.06(f) makes the application of all of 46 CFR 4 based on 46 CFR 16.205 and 16.207. In reading the definition of "crew member" in 46 CFR 16.105, the requirements of these sections, and thus by reference, 46 CFR 4.06, only apply to persons, whether licensed, documented or not, who are employed on a vessel requiring employment, engagement or operation by an individual holding a license or document. This interpretation is set forth in Coast Guard Commandant's (G-MMI Policy Ltr 6-92 dated December 8, 1992.
Let's put that in clear language. An uninspected towing vessel under 26' in length or a fishing vessel under 200 gross tons is not normally required to have licensed or documented personnel aboard. Thus they are exempt from the chemical testing program set forth in 46 CFR 4 and 16. However, they are not exempt from the "Operating a Vessel While Intoxicated" regulations of 33 CFR 95.
Going beyond the application of the program, what happens if an individual required to be tested refuses to comply with the request of his employer to be tested. Once the requirement for a test has been triggered, it applies to all personnel involved whether they hold Coast Guard papers or not.
A person acting under the authority of a license or document is required to take the test (46 CFR 16.201(a)). However, he cannot be physically forced to give a specimen (46 CFR 4.06-5). If he or she refuses, such refusal can result in the suspension or revocation of their Coast Guard license or document.
When the individual is not acting under the authority of a license or document, the Notice of Proposed Rule Making (FR July 8, 1988, 25929) proposed that the employer is required to terminate his employment. However, the final regulations require only removal from safety- sensitive positions if the individual fails a test (46 CFR 16.201(d)). Interestingly, it does not require the such action of the unlicensed or undocumented seaman who refuses to take a test.
It is the opinion of the author that any company who retained a person who refused to take a chemical test when requested by his employer would be exposing the company to liability should that individual be involved in any future accidents.