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TRANSPORTATION INST. v. USCG

December 18, 1989

TRANSPORTATION INSTITUTE, et al., Plaintiffs,
v.
UNITED STATES COAST GUARD, et al., Defendants; DISTRICT 2, MARINE ENGINEERS BENEFICIAL ASSOCIATION--ASSOCIATED MARITIME OFFICERS, AFL-CIO, Plaintiffs, v. JAMES H. BURNLEY, IV, SECRETARY OF TRANSPORTATION, et al., Defendants



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE.

 This consolidated action is before the Court on cross motions for summary judgment. Plaintiffs in both cases seek to enjoin the implementation of drug testing regulations promulgated on November 21, 1988, by the United States Coast Guard mandating urinalysis drug testing of private citizens employed aboard commercial vessels.

 In the posture of a motion for preliminary injunction, this Court has already considered the regulations at issue here. On July 21, 1989, the Court issued an Order denying plaintiffs' motion for a preliminary injunction with respect to pre-employment testing conducted by employers of more than fifty persons scheduled to take effect July 21, 1989. On August 3, 1989, the Court issued a memorandum opinion providing the basis for its ruling. At that time, the Court limited its ruling to pre-employment testing by large employers, because that category of testing was the only one scheduled to take effect on June 21, 1989. The Court declined to consider the merits of regulations addressing periodic license application or renewal testing, random testing, post-casualty testing, and reasonable cause testing since these categories of testing were not scheduled to be implemented until various dates after December 21, 1989, and no irreparable injury could be shown by the plaintiffs if the Court failed to grant a preliminary injunction barring the implementation of regulations for those categories of tests.

 Although the Court found it inappropriate to consider regulations covering all categories of testing in the posture of a motion for a preliminary injunction, consideration of the regulations covering all categories of testing is ripe in the present procedural posture: cross motions for summary judgment. In consideration of the parties' memoranda and numerous supplemental filings, the oral argument held on June 21, 1989, the entire record of the cases, and for the reasons stated below, defendants' motion for summary judgment shall be granted in part and denied in part and plaintiffs' motion for summary judgment shall be granted in part and denied in part.

 I. BACKGROUND

 A. Plaintiffs in Transportation Institute are as follows:

 (1) Transportation Institute. Transportation Institute is a private non-profit association of over 140 member companies engaged in foreign and domestic shipping trades as well as barge and tugboat operations on the Great Lakes, inland and coastal waterways. The Institute's members, which operate American-owned and American-crewed ships, include large (over 50 employees), medium (between 11-50 employees) and small (10 or fewer employees) employers of individuals who would be required to be tested. Transportation Institute represents the employers before the federal government and in their effort to effectuate a comprehensive national maritime policy.

 (2) Seafarers International Union, AFL-CIO. Seafarers is a national labor organization representing seamen employed aboard U.S. flag commercial vessels operating between the U.S. and overseas as well as on the Great Lakes and inland waterways. Seafarers also represents applicants for employment under the rotary hiring hall system, pursuant to which employers hire seafarers for shipping jobs. The Coast Guard's drug testing rules expressly supersede collective bargaining agreements negotiated by the Seafarers on behalf of its members.

 (3) Alvin Robinson. Mr. Robinson is an individual member of Seafarers employed as a chief cook. Mr. Robinson would be subject to Government compelled drug testing under the Coast Guard rules.

 (4) David T. Manzanet. Mr. Manzanet is an individual member of Seafarers employed as a bosun. Mr. Manzanet would be subject to Government compelled drug testing under the Coast Guard rules.

 B. Plaintiffs in District 2 are as follows:

 (1) District 2, Marine Engineers Beneficial Association -- Associated Maritime Officers, AFL-CIO ("MEBA"). MEBA is a labor organization comprised of deck officers, radio officers, engineers, and stewards licensed and documented to work aboard United States flagged sailing vessels. Members of MEBA hold licenses that require them to undergo periodic physical examinations under federal regulations as part of the license renewal procedures.

 (2) Herbert J. Nelson. Mr. Nelson is a licensed marine officer and a member of MEBA.

 The Court finds that the above named and described plaintiffs have standing to challenge the regulations at issue here.

 C. The Defendants in Transportation Institute and in District 2 are as follows:

 (1) Admiral Paul A. Yost, Jr. Admiral Yost is the Commandant of the United States Coast Guard, a federal agency within the Department of Transportation that promulgated the final drug-testing rules giving rise to both suits. He is being sued in his official capacity as Commandant of the Coast Guard.

 (2) James H. Burnley, IV. James Burnley is the Secretary of the Department of Transportation. He is being sued only in his official capacity as head of the Department of Transportation (the federal agency having supervisory authority over the Coast Guard and the statutory authority to promulgate rules governing maritime safety).

 D. The Regulations

 On July 8, 1988, the Coast Guard published a Notice of Proposed Rulemaking in the Federal Register proposing drug abatement programs for merchant marine personnel, including drug testing of private employees aboard commercial vessels. 53 Fed.Reg. 25,926 (July 8, 1988). The Coast Guard issued final regulations requiring private drug testing on November 21, 1988. The regulations were made effective thirty days later, on December 21, 1988. The final rules require drug testing of "crewmembers," who are defined without exception as all individuals "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." 53 Fed.Reg. at 47,079 (to be codified as 46 C.F.R. § 16.105). In addition, the rules include as "crewmembers" other individuals employed or engaged on board a U.S.-flag vessel required to be operated by one holding a license, certificate or document, except for three specified categories of excluded individuals (fish processors aboard fish processing vessels, scientific personnel aboard oceanographic research vessels, and individuals excluded under 46 C.F.R. Part 15 who have no duties directly affecting safety.) Id. at 47,079 (to be codified as 46 C.F.R. § 16.105).

 The final rules require testing at five different stages:

 (1) Pre-Employment Testing. Under the rules, employers are required to test individuals for drugs (not alcohol) prior to hiring them to serve as crewmembers. 53 Fed.Reg. at 47,067; see id. at 47,080 (to be codified as 46 C.F.R. § 16.210). This requirement applies to all prospective hires, except those who have either passed a pre-employment or periodic drug test within the past six months or have been subject to random drug testing during the past twelve months and have not failed or refused a test. Id. at 47,080 (to be codified as 46 C.F.R. § 16.210(b)).

 (3) Random Testing. Maritime employers are additionally required to institute programs for the random drug testing of crewmember employees. Id. at 47,067-68; see id. at 47,081 (to be codified as 46 C.F.R. § 16.230). Under the rule, "the frequency of testing and the development of a random selection method for testing has been left to the employer." Id. at 47,068. The rule simply requires that employers test crewmembers "at an annual rate of not less than 50 percent," id. at 47,081 (to be codified as 46 C.F.R. § 16.230(c)), and that each crewmember have "a substantially equal chance of selection on a scientifically valid basis" ...


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