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.
Issue link: http://uscgproceedings.epubxp.com/i/617100
49 Winter 2015–2016 Proceedings www.uscg.mil/proceedings proving a USCG-mandated chemical test, the Coast Guard will require the testimony of the laboratory's certifying sci- entist and/or a laboratory litigation package to prove the laboratory processes samples in substantial accordance with the requirements of 49 CFR Part 40. 12 This testimony and evidence, combined with the CCFs, should serve as proof that the chemical test was conducted in substantial accor- dance with 49 CFR Part 40 or the science is reliable and pro- bative. The Coast Guard must then prove that a medical review offcer reported the results as "positive" because the chemi- cal test indicated the presence of a dangerous drug at a level equal to or exceeding those established in 49 CFR Part 40. To this end, the Coast Guard will frst prove the MRO's qualifcation by entering into evidence his or her training certifcates. Next, the Coast Guard must put into evidence further proof that the chemical test was conducted in substantial accor- dance with 49 CFR Part 40. This is accomplished through MRO testimony that the procedures of 49 CFR Part 40, Subpart G, were followed and that the medical review off- cer — as the independent and impartial gatekeeper and advocate for the accuracy and integrity of the drug test- ing process — affrms that the process outlined by 49 CFR Part 40, Subpart G, was followed. The Test Was Conducted in Accordance With the Marine Employer's Policy. For a marine employer-mandated test, the Coast Guard requires: • testimony from the employer regarding the policy, • a copy of the marine employer's drug testing policy, • proof that the mariner knew of this policy prior to the marine employer drug test, and • that the mariner understood the test was pursuant to the marine employer's policy and not 46 CFR Part 16. In Sum When Congress enacted 46 USC §7704 with the intent of pro- moting the safety of life and property at sea, it recognized the threat posed by merchant mariners who use or pos- sess drugs and the necessity to remove them from service. The Coast Guard supports this law through its suspension and revocation program, where investigating offcers work diligently to determine the best means for moving forward when notifed of a failed drug test. With the cooperation of marine employers who also desire to promote marine safety, the Coast Guard is able to ensure a safer day at sea for all. About the authors: Mr. Eric A. Bauer retired from Coast Guard active duty in 2006. During his career, he served two tours as a senior investigating offcer, as well as tours as assistant chief and chief of regional examination centers. He was also a senior marine inspector. He has served as the senior investigating offcer at the Suspension and Revocation National Center of Expertise since 2009. LT Sara M. Ellis-Sanborn earned her commission in 2003. After a Coast Guard headquarters tour, she was assigned to Sector New Orleans, where she earned qualifcations as a marine inspector. She then served as chief of the Inspections and Investigations Division at Marine Safety Unit Cleveland before completing a year of industry training. LT Ellis-Sanborn reported to Atlantic Area in 2012. Endnotes: 1. Although periodic testing requirements are included in 46 CFR Part 16, the marine employer plays no role in periodic testing. The requirements for periodic testing rest solely upon an applicant, who must pass a chemical test for dangerous drugs when executing a merchant mariner credential transaction, as required by 46 CFR §§10.225(b)(5), 10.227(d)(5), and 10.231(c)(6). 2. All appeal decisions cited in t his article can be found at www.uscg.mil/ L ega l/C DOA/Com ma nda nt _ Dec i sion s/S_ a nd _ R _ 2580_ 2879/COM DT_ S_ and_R_2580_2879.asp. 3. See 49 CFR Part 40. 4. The Vice Commandant footnotes this passage with, "In the absence of the pre- sumption and the associated prima facie elements, as noted in section II of this opinion, it is still possible to prove the use of dangerous drugs, but any drug test used in such a case must be a non-Part 16 test." 5. See the Fourth Amendment at https://www.law.cornell.edu/constitution/fourth_ amendment. 6. This can usually be accomplished by entering into evidence a copy of the col- lector's training certifcates or training records, as described, and a copy of the federal drug testing custody and control form. 7. See the Substance Abuse and Mental Health Services Administration, HHS (SAM- HSA) website at www.samhsa.gov/workplace/lab-list. 8. As such, "…the laboratory report itself, once it [is] signed by the MRO, [constitutes] proof adequate to shift to [the mariner] the burden of going forward with evidence that the positive fnding of [dangerous drugs] metabolites in [the mariner's] urine was not the product of a wrongful use of the drug." National Transportation Safety Board in KIME v. SWEENEY (Docket ME-155). 9. 46 CFR 4.03-2 defnes a serious marine incident. 10. See CG-2692 (Report of Marine Casualty) at https://www.uscg.mil/forms/cg/ CG_2692.pdf. See CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident) at https://www.uscg.mil/forms/ cg/CG_2692B.pdf. 11. See, e.g., Appeal Decision 2675 (MILLS)(2008) (Part 16 testing requirements are the "minimum standards, procedures, and means to be used to test for the use of dangerous drugs," 46 CFR §16.101(b), and a marine employer may require further drug testing under its own rules). The Vice Commandant adds to this opinion a footnote stating that, "A complaint based on an alleged employer-required test independent of [46 CFR] Part 16 should be subjected to close scrutiny to ensure that [46 CFR] Part 16 has not been circumvented." 12. See Decision & Order in USCG v. DAIRE; Docket Number CG S&R 08-0231.