Proceedings Of The Marine

WIN 2015

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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43 Winter 2015–2016 Proceedings www.uscg.mil/proceedings though the Coast Guard must look at the reasons for the test with great scrutiny and ensure the test was accurate and defendable. Currently, the S&R NCOE receives reports of non-DOT posi- tive drug tests at a rate of two cases a week. As these are not mandatory reports, we must presume that the rate is higher to account for those positive reports handled by marine employers on their own. It's unfortunate more marine employers haven't shared non-DOT positive drug tests with the S&R NCOE. In some cases, the employer releases the mariner, who then seeks employment elsewhere. When the employer doesn't report the case to the Coast Guard, we can't establish a record, and the mariner receives a fresh start with a new employer who is left unaware of any prior or recent drug history. Dealing with Dual Systems Many cases of prescription drug use come to light via testing in tandem with Coast Guard-required testing. Since mari- time companies recognize that the scope of the required test is limited, employers may also conduct their own "expanded panel" test at the same time. When done in this manner, companies must ensure that the DOT-required test is done frst, before any other company test. There should be two different samples collected, with the frst being the DOT sample, completed start to fnish, before any other company-required test is initiated. Using a sample in a manner outside the scope of the regulations invalidates the results of the DOT test, and so the Coast Guard cannot use the test for S&R purposes. The Coast Guard requires that marine employers test any crewmember directly involved in a serious marine incident, "serious" meaning involving any injury incurred requiring treatment beyond frst aid. Some marine employers choose to conduct their expanded testing in those situations, as well. This makes good sense. Questioning the involvement of drug use is fundamental when determining whether an injury was caused by an employee's own actions, and the required fve-panel screen may not provide all the necessary information. Hospitals are a common source of non-DOT tests. When mariners are injured and crewmembers are sent to the hos- pital for care, the treating physician will often conduct fur- ther urine or blood testing. Positive results are sometimes reported back to the marine employers, then passed to the Coast Guard for potential action. Contractors for large marine employers also may require an expanded panel drug test before the mariner is allowed to work. These closely resemble a pre-employment screen and are common in the Gulf of Mexico outer continental shelf, where companies contract offshore supply vessels and crew. While the Coast Guard doesn't require testing in these situ- ations, some marine employers mandate the tests on their own to minimize risk. How the S&R NCOE Can Help These examples provide evidence of industry-wide knowl- edge and concern for the abuse of drugs beyond those iden- tifed in the Coast Guard regulations — namely prescription drugs. When unprescribed controlled substances are found through expanded non-DOT testing, the Coast Guard can and will take action on the positive result if the test was conducted in a scientifcally valid and reliable manner. The Coast Guard has jurisdictional authority under the drug use statute to take action against a merchant mariner cre- dential when it receives a positive drug test and can show that the mariner has been a user of — or is addicted to — a dangerous drug. The Commandant has also provided guid- ance that specifcally recognized that the Coast Guard may place in evidence facts (results of non-DOT drug tests) that tend to show drug use to prove the charge. 6 However, we must carefully review the tests to be sure reg- ulations have not been circumvented. At times, the S&R NCOE has rejected an investigating offcer's request to take action on a non-DOT positive test, as the test was either not collected in accordance with the marine employer's own policy, or the test was taken in an effort to circumvent the regulations. About the authors: LT Sarah E. Brennan is a 2003 graduate of Texas A&M University at Galveston with a degree in ocean and coastal resources. She also holds a master's degree in environmental policy and management. She has served more than 11 years in the Coast Guard, most recently as an investigator at the Suspension & Revocation NCOE. CDR Christopher F. Coutu is the chief of the Suspension and Revocation NCOE. He is a 1993 graduate of the University of Rhode Island and a 2001 graduate of Suffolk University Law School. He has served for 13 years in the Coast Guard in legal and prevention positions. Endnotes: 1. See 46 USC §7704(c). 2. See 46 USC §7704 notes. 3. 46 CFR Part 16 Chemical Test regulations, 49 CFR Part 40. 4. See 46 CFR §16.113(b). 5. Marine employers are only required to report results from testing pursuant to Part 16. 6. See Franks (CDOA 2704).

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