Coast Guard Cracking Down on Fishing Guides Not Enrolled in Drug Testing Consortium

The 2018 fishing season is kicking off with a bit of anxiety for many fishing boat guides and charter vessels around the U.S.

Under the Department of Homeland Security, the U.S. Coast Guard requires crew-members performing safety sensitive duties must be in the drug and alcohol drug testing program to ensure safe passage of embarked passengers and for carriage of cargo on U.S. waterways.

Included in these regulations are single vessel fishing guides, charter vessels, and tour or cruise guides, like the Portland Spirit, who operate on any federal waters (including any bodies of water that connects to the ocean or bodies of water on federal land). These requirements apply to all US flagged vessels in commercial service, regardless of vessel size or capacities, including what are commonly known as Six Pack Charter Vessels.

Fishing guides have always been held to be a part of a drug testing consortium but it was never “heavily” enforced.

But now, in 2018, we have heard of several cases where the U.S. Coast Guard is not allowing fishing guides to operate unless they are enrolled in a drug testing consortium. If caught not being a part of a consortium, it is a $1,000 fine to fix it, according to our clients.

In the last week, the Oregon State Marine Board sent a letter to charter companies to be sure they are compliant with the drug testing regulations. It went out to over 600 fishing guides and a USCG Marine Investigator assumes 35-40% are not enrolled in a drug testing consortium.

The Coast Guard is strongly reminding the Charter Vessel Industry of their duties and obligations to meet federal drug testing regulations. Requirements for marine employers to have drug testing programs have been in effect since November 21, 1988.

According to the Coast Guard, the consequences for failing to comply with these requirements can be substantial and may involve a Letter of Warning; Do Not Sail Order; $1,000 fine each for not being enrolled in a consortium and having proof of a Pre-Employment Test within 6 month, Civil Penalty of $5,500 per day per violation; Loss of license or document; or Loss of vessel.

This is a big deal because, for example, in less than two months Buoy 10 opens in Astoria, Oregon, one of the most popular and productive salmon fisheries in Oregon and across the Lower 48. Buoy 10 draws anglers from Oregon and Washington and across the West Coast and beyond to chase still-abundant coho and chinook salmon. The Coast Guard could stop many of the charter boats from getting on the water this year.

Example Confusion if Drug Testing Rules by Charter Vessels

One company noted that they have been 6-pack licensed now for 15 years. For the first 3-4 years of so they did charter (4-5x per year). This past 2017 season they got a bigger boat and anticipate chartering again. The company couldn’t figure out “the drug testing thing”.

“When I first got my license I tested, I enrolled in the random consortium (never even got called). I’ve tested for all 3 of my renewals now. However, I have not been randomly selected? Recently a friend posted on FB he got called in for testing which prompted me to research what the deal is. So what’s the verdict on this? Actively chartering = register in consortium? Not actively chartering = just test prior to renewal? And called by who? USCG or the private consortium? This is where I am confused. I have never been called, period. I guess I’ll just enroll in the consortium but I’m just confused as to who is calling me, what do I have to do, etc?”

“You are required to be in a consortium and carry proof. The USCG does drug and alcohol audits of charter boats. The fine for not having it is astronomical and is assessed by the day. I know people that haven’t been called to pee for decades.”

What are the U.S. Coast Guard (USCG) Drug Testing Regulations?

The rule applies to all commercial service vessels required to be operated by a US Coast Guard issued licensed individual, onboard any US flagged inspected and uninspected vessel on any route, commercial fishing vessels 200 GT or greater, and towing vessels 26 feet in length or longer. All crewmembers responsible for the safe operation and navigation of the vessel or those responsible for the safe handling of passengers in the event of an emergency must be tested.

Those applying for a Captains license or other merchant mariner credential need a drug test and periodic drug testing every two years. The U.S. Coast Guard’s Drug and Alcohol Testing Program regulations promote a drug-free and safe work environment for the safe passage of embarked passengers and for carriage of cargo on U.S. waterways.

All licensed/documented personnel and unlicensed/undocumented personnel who perform “Safety Sensitive Duties” must be in the drug and alcohol drug testing program. “Safety sensitive duties” includes:

• directing and mustering passengers in emergencies,
• passing out life-jackets,
• controlling and operating lifesaving equipment,
• controlling and operating firefighting equipment,
• and more.

All crew-members, that are responsible for the safe handling of passengers, are considered to be filling safety sensitive positions as well.

So, if you are asking yourself, “Do the chemical testing regulations apply to me?”, the answer is “Yes”. The chemical testing regulations apply to most commercial vessel operations regardless of the number of employees and regardless of whether the vessel is inspected or uninspected. This includes “guide services”.

Required USCG Testing:

Detailed USCG Testing Regulations, as per Marine Inspector training can be found here. 

• Pre-employment:A crew-member must pass a drug test before an employer may employ him/her.
  (All licensed/documented personnel and unlicensed/undocumented personnel who perform “Safety Sensitive Duties”. If you have had a pre-employment test within the last 6 months and being hired by a new company, you do not need this test.)
• Periodic:Periodic tests are the responsibility of the individual mariner, not the marine employer, for transactions involving licenses, CORs, or MMDs.
  (This is the test every 5 years that many assume is all they need for drug testing, but this is not the case.)
• Random:An employer must conduct random drug testing of certain crew-members at an annual rate of not less than 25%.
  (This is part of being enrolled in a drug testing consortium so you can be randomly tested from a “pool” of other people.)
• Post-accident:A person who is directly involved in a serious marine incident must be tested for drugs and alcohol.
• Reasonable cause:An employer shall require any crew-member who is reasonably suspected of using drugs to be tested for drugs and/or alcohol.

What Marine Inspectors are looking for: 

• Contract with consortium (if used)
• List of Covered Employees
• Latest MIS Report
• OCMI notified of positive tests
• Copy of Company’s Drug and Alcohol policy for employees
• EAP material available to crew
• Breath Testing Devices maintained for inspected vessels certified for overseas & unrestricted ocean routes. (46 CFR 4.06-20)
• Urine Collection Kits maintained onboard if collection can not be readily obtained within 32 hrs of a Serious Marine Incident. (46 CFR 4.06-15)

Why use a Drug Testing Consortium like CleanFleet?

When running charters, the boat has to either be a member of a consortium or have a random program in place. It is much easier to just have the boat enrolled than try to set up a program yourself. Federal drug testing regulations are complicated, from managing when and how employees are drug tested, what type of drugs tested for, managing the chain-of-custody chain in the process, and requirements of saving documented drug tests for a specific length of time.

CleanFleet can make sure you stay in compliance with the regulations, so you can focus on the fishing business. Other benefits include:

• Managing multiple vendor relationship (such as collection sites, labs, and Medical Review Officers)
• Chasing paperwork and chain-of-custody forms
• Data entry and storing documents
• Managing the random testing employee pool
• Staying up-to-date on new state or federal guidelines (like how legal recreation or medical marijuana may affect you company’s testing policy)
  And more.
• Results can be reviewed by a Medical Review Office upon request to verify valid prescriptions
• DATIA Certified collection sites

Save $25.00 this Season for first-time set-up with CleanFleet! 

Interested in joining out consortium or want to find out more info? Fill out the form below or give us a call.

Pre-employment Testing Requirements.

• All licensed/documented personnel and unlicensed/undocumented personnel who perform “Safety Sensitive Duties”.
• Must be tested with negative results prior to beginning work.
• Exemptions: (1) passed a chemical test required by 46CFR16 within the previous 6 months or (2) Been subject to random testing for at least 60 of the previous 185 days and has never refused to test or failed a test.

Do “independent contractors” or part-time crew need to be part of an employer’s drug testing program?

Simply, “yes”. If an individual meets the definition of a crewmember, as described in 46CFR16.105, they must be part of the chemical testing program, regardless of how short the time period they work on board the vessel. Enclosure 6 has been included in this guide in order to assist with the problem of having part time crewmembers in the chemical testing program.

Crewmember means an individual who is:
(a) On board a vessel acting under the authority of a license, certificate of registry, or merchant mariner’s document issued under this subchapter, whether or not the individual is a member of the vessel’s crew; or
(b) Engaged or employed on board a vessel owned in the United States that is required by law or regulation to engage, employ, or be operated by an individual holding a license, certificate of registry, or merchant mariner’s document issued under this subchapter,
except the following:
(1) Individuals on fish processing vessels who are primarily employed in the preparation of fish or fish products, or in a support position, and who have no duties that directly affect the safe operation of the vessel;
(2) Scientific personnel on an oceanographic research vessel;
(3) Individuals on industrial vessels who are industrial personnel, as defined in this chapter; and
(4) Individuals not required under part 15 of this subchapter who have no duties that directly affect the safe operation of the vessel.