28 DECEMBER 2018 • FOGHORN LEGISLATIVEREPORT By Ed Welch, PV A Legislative Director You Don’t Have to Report Passenger’s Possession of Marijuana D uring PVA’s region meetings across the county this fall, it became apparent that there is still confusion, both among vessel operators and Coast Guard officials, about the question of whether a vessel operator who becomes aware that a passenger possesses marijuana has a duty to report this to the Coast Guard or law enforcement officials. As more states decriminalize simple possession of marijuana, such instances can only increase in frequency. Simply stated, there is no duty to report a passenger’s simple pos- session of marijuana, and the Coast Guard can impose no consequences on the vessel operator or a credentialed mariner for failure to report. Coast Guard Headquarters in Washington, DC, has confirmed this in writing to the Passenger Vessel Association. “There is no federal law or regu- lation that currently requires vessel operators to make any notification or report to law enforcement authori- ties regarding passengers possessing marijuana.” That is the written advice from Coast Guard Headquarters directed to then-PVA President Margo Marks in a December 20, 2016, letter from Captain J. D. Neubauer, former Chief of the Coast Guard’s Office of Investigation and Analysis. Margo had asked for written clari- fication from the Coast Guard what a vessel operator is legally required to do in a situation in which crew members become aware that a passenger possesses marijuana in “personal use” amounts. Margo sought written guidance because PVA felt this to be a “gray area” in which there was no clearly- articulated Coast Guard policy. In fact, various PVAoperators who inquired of local Coast Guard officials had received varying and contradictory answers, without reference to specific statutes, regulations, or policy statements. PVA asked: “Do Coast Guard regu- lations expressly prohibit possession of marijuana in personal-use amounts by a passenger on a passenger-carrying vessel? Is the operator of the vessel obligated by law or regulation to notify the Coast Guard or federal and/or state law enforcement authorities of such possession? Is a vessel operator who does not report such possession subject to potential discipline or penalty from the Coast Guard? May a company owning a passenger vessel establish a company-specific policy addressing what should be done in the event of a passenger’s possession of marijuana?” Possession of and use of marijuana for any purpose remains illegal under federal law, even in those jurisdic- tions that have decriminalized it for purposes of state or local statutes. State and local does not provide a legal defense to a violation of federal law, including the Controlled Substances Act. It is important to remember that a vessel crew member who tests positive for marijuana cannot serve on board a U.S. passenger vessel, even in a state which allows marijuana use for medical or recreational purposes. The Coast Guard continues to enforce and PVA members must continue to comply with federal rules regarding pre-employment, random, post-acci- dent, and for-cause drug testing of crew members. Incidentally, the Coast Guard is soon expected to announce that the minimum random drug testing rate of covered crew members will go up to 50 percent for the year 2019. To summarize Captain Neubauer’s letter: • A vessel operator who learns that a passenger possesses small amounts of marijuana has no legal obliga- tion to report that knowledge to the Coast Guard or anyone else; • There is no basis for the Coast Guard to suspend or revoke the credential of a mariner for failing to report an instance of passenger marijuana pos- session; • Personal use or possession of marijuana by a crew member remains a violation of federal law and exposes the individual to potential suspension or revocation of a Coast Guard-issued credential; and • The Coast Guard retains the ability to take law enforcement action under federal law against any in- dividual who possesses marijuana on a vessel, even if the vessel is operating in a state that has legalized or decriminalized marijuana. Even in a state with fewer or no re- strictions on personal use of marijuana, a vessel operator is free to impose its own policy of banning possession on its vessel. This can be done by posting notice to the effect that “possession of federally-controlled substances, including marijuana, is strictly pro- hibited.” This policy can be buttressed by a strict “no smoking” policy on the vessel. n