U.S. Coast Guard and DOT: Is they is, or is they ain’t?

On July 13, 2017 the Office of Drug and Alcohol Policy Compliance (ODAPC) published a new Part 40 Question and Answer regarding the United States Coast Guard.  With apologies to the movie Oh Brother Where Art Thou, the Q&A answered the question “Is they is, or is they ain’t… a DOT agency?”

Was there ever any confusion whether the US Coast Guard was a DOT agency?  Yes!  Here’s why we are confused.  The Coast Guard is not included anywhere on the DOT website’s list of operating agencies.  In fact, the US Coast guard is a branch of the US Armed Forces and operates under the Dept. of Homeland Security.

The new Part 40 Q&A attempts to clarify this issue.  The Answer begins with:

“Although included in the definition of a DOT Agency [see §40.3], the USCG is a DOT

Agency with respect to Part 40 only when the USCG regulation [e.g., 46 CFR Part 16 or

46 CFR Part 4] incorporates Part 40 to carry out its chemical testing regulation.”

The Q&A goes on to point out that the USCG regulation 46 CFR §16.113(a) states, “Drug testing programs required by this part must be conducted in accordance with 49 CFR part 40, Procedures for Transportation Workplace Testing Programs.”

The Q&A continues by reminding readers that the Coast Guard does not follow the alcohol testing procedures in 49 CFR Part 40.

We were still a little confused after reading this.  We know that the Coast Guard is not a part of the Department of Transportation.  Was there a typo?  Did they mean to say “Although not included in the definition of a DOT agency…?” So we looked up the relevant part of 49 CFR Part 40.3, which defines the terms used in the regulation.  It’s not a typo.  The regulation reads “DOT, The Department, DOT Agency: These terms encompass all DOT agencies, including, but not limited to, the United States Coast Guard (USCG) …” 

We think that including the US Coast Guard in the definition of a DOT Agency is confusing, and we’re glad that DOT wrote this most recent Q&A to try to clear up the confusion.  But we also think it would be much less confusing if the US Coast Guard was not included in 40.3 in the definition of a DOT Agency.  Perhaps ODAPC will consider making this change the next time they revise Part 40.

So, is they is, or is they ain’t, a DOT agency?  Our answer is no, the US Coast Guard is not a DOT agency.  The USCG must follow the Part 40 procedures for drug testing, but that doesn’t make the Coast Guard a DOT agency.