UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA 

UNITED STATES COAST GUARD 

vs. 

MERCHANT MARINER DOCUMENT 

Issued to: MICHAEL STEVEN MOORE 

DECISION OF THE 

VICE COMMANDANT 

ON APPEAL 

NO. 2652 

This appeal is taken in accordance with 46 U.S.C. § 7701 et seq., 46 C.F.R. § 5, 

and the procedures set forth in 33 C.F.R. § 20. 

By a Decision and Order (D&O) dated July 31, 2003, an Administrative Law 

Judge ("ALJ") of the United States Coast Guard at New Orleans, Louisiana, revoked 

Michael Steven Moore's (Respondent's) merchant mariner document upon finding 

proved a charge of misconduct. The charge was based on a single specification of Failure 

to Obey Law or Regulation in violation of 46 U.S.C. § 7703 and 46 C.F.R. § 5.33 for 

Respondent's refusal to submit to random drug testing requested on three separate 

occasions in September of 2002. 

PROCEDURAL HISTORY 

The Coast Guard filed its Complaint against Respondent on October 2, 2002. 

[D&O at 2; Complaint at 3]. Respondent filed his Answer to the Complaint, admitting all 

jurisdictional allegations, denying all factual allegations, and requesting that a hearing be 

held on the matter. [D&O at 2; Respondent's Answer to the Complaint at 1 ]. On 
MOORE NO. 2652 

October 18, 2002, Mr. Mr. Grover Asmus, II, entered his appearance as counsel for 

Respondent and filed a second answer to the Complaint. [D&O at 2]. In addition to . 

admitting all jurisdictional allegations and denying all factual allegations, Respondent's 

Second Answer raised five affirmative defenses: 1) the Complaint failed to state a claim 

upon which relief could be granted; 2) Respondent did not refuse to submit to a random 

drug screen; 3) Respondent was not provided with notice for all incidents alleged in the 

Complaint; 4) Respondent lacked adequate funds to pay for the drug test; and, 5) exigent 

circumstances prevented Respondent from complying with any notices he allegedly 

received to submit to a random drug screen. [D&O at 2-3]. 

A Hearing was convened on January 17, 2003, in Daphne, Alabama. Respondent 

appeared with counsel and admitted all jurisdictional allegations, denied all factual 

allegations, and raised the affirmative defenses asserted in his Second Answer. At the 

Hearing, the Coast Guard called three witnesses and introduced six exhibits into evidence 

while Respondent called two witnesses, including himself, and introduced four exhibits 

into evidence. The AU issued the D&O on July 31, 2003. 

On August 11, 2003, Respondent filed numerous post-hearing motions including 

Alternative Motions for Reconsideration, for a New Trial, and to Alter, Amend or Vacate 

the Decision and Order and a Motion to Stay Operation of the Order of Revocation 

Pending Appeal. On August 26, 2003, the Coast Guard filed its Replies to Respondent's 

post-hearing motions. Thereafter, on September 5, 2003, Respondent filed a Motion to 

Stay and Alternative Request for Issuance of a Temporary License with the AU 

Docketing Center. On September 8, 2003, the AU issued an Order denying all of 

Respondent's post-hearing motions. On September 8, 2003, Respondent filed his Notice 

2 
MOORE NO. 2652 

of Appeal. Thereafter, on September 17, 2003, the ALT issued an Order of Clarification 

to ensure that the record clearly reflected that he considered Respondent's Motion for 

Issuance of a Temporary License which had been filed only days before the ALT issued 

his order denying all of Respondent's post-hearing motions. Respondent perfected his 

appeal of the ALJ's D&O by filing a brief on October 31, 2003. Therefore, this appeal is 

properly before me. 

APPEARANCES: Mr. Grover E. Asmus, II, Armbrecht Jackson, LLP, P.O. Box 

290, Mobile, Alabama, for Respondent. The Coast Guard was represented by LT John 

Catanzaro, USCG, and Mr. Robert W. Foster, Marine Safety Office Mobile, Alabama. 

FACTS 

At all times relevant to this Appeal, Respondent served under the authority of the 

above captioned merchant mariner document. 

Respondent is a member of the Mississippi Charter Boat Captains Association, an 

entity comprised of self-employed charter boat captains who have joined together and 

are, as a group, subject to Department of Transportation (DOT) drug and alcohol testing. 

[D&O at 5; Tr. at 23, 33] The Mississippi Charter Boat Captains Association 

(Consortium) uses the services of Mississippi Drug Compliance (MDC) to perform drug 

screening and random drug testing of its members, to document the operation of the 

Consortium's drug and alcohol testing programs, and to maintain rosters of member 

names, social security numbers, addresses and telephone numbers of its members. [D&O 

at 5; Tr. at 23, 33; LO. Exhibits 1 and 2] 

In September 2002, Ms. Tammy Taylor, of MDC, performed a random drug 

screen selection and randomly selected 35 members from the Consortium, including 

3 
MOORE NO. 2652 

Respondent, for drug testing. [D&O at 5; Tr. at 23, 31, 33, 38] Of the 35 members 

selected for random testing, thirty members properly provided their urine for drug testing 

and 4 members were not tested because they were no longer members of the Consortium. 

[D&O at 5; Tr. at 33, 36] Respondent was the only active member of the Consortium 

who did not participate in the random drug test. [D&O at 5; Tr. at 43] 

Ms. Judy Shaw, a clerk and specimen collector for MDC, is responsible for 

contacting mariners selected for random drug testing. [D&O at 6; Tr. at 91] On 

September 10, 2002, Ms. Shaw was instructed to contact the thirty-five Consortium 

members randomly selected for drug testing. [D&O at 6; Tr. at 47, 91; LO. Exhibit 3] In 

accordance with customary procedure, Ms. Shaw contacted the selected members by 

telephone and informed them that they were required to provide a urine sample for testing 

within twenty-four hours of the call and that the mariners were responsible for paying the 

$47.00 testing fee. [D&O at 6; Tr. at 60; LO. Exhibit 1] 

Using the contact number provided by Respondent, at 11:30 a.m. on September 

10, 2002, Ms. Shaw called Respondent to inform him that he had been randomly selected 

for drug testing. [D&O at 6; Tr. at 47-48, 60, 83, 97; LO. Exhibits 1 & 3] Since there 

was no answer at Respondent's contact number, Ms. Shaw left an answering machine 

message for Respondent, informing him both that he should report for drug testing within 

24 hours of the call and that he would be required to pay the $47.00 cost of the drug test. 

[D&O at 6; Tr. at 97-98; LO Exhibit 5] Because Respondent did not report for drug 

testing within the required time period, Ms. Shaw placed additional telephone calls to 

Respondent's number ofrecord on September 11, 2002, September 12, 2002, and 

September 20, 2002, and, on each of those occasions, left answering machine messages 

4 
MOORE NO. 

2652 

informing Respondent that he was required to submit to random drug testing within 24 

hours and that he would be required to pay the cost of the test. [D&O at 7; Tr. at 97; LO. 

Exhibit 5] 

Because Respondent did not contact Ms. Shaw and failed to report for testing, she 

involved Mr. Tom Becker, the President of the MDC to assist in contacting Respondent. 

[D&O at 7; Tr. at 82-83; 101] On September 27, 2002, Mr. Becker left a message on 

Respondent's cellular telephone informing him that he should report to MDC by 

Monday, September 30, 2002, for random drug testing or the matter would be turned over 

to the Coast Guard. [D&O at 7; LO. Exhibit 5] On September 28, 2002, Respondent's 

mother, Ms. Delores Moore, informed Respondent of the telephone call received from 

MDC regarding a drug test. [D&O at 7] Respondent called MDC on that date and left a 

message on Ms. Taylor's voicemail informing her that his boat had been inoperable and, 

as a result he was "broke" and could not afford to pay for the test. [D&O at 7; Tr. at 48] 

At that time, Respondent requested that the Consortium pay the cost of his drug test and 

requested that MDC return his call to explore that option. [D&O at 7; Tr. 49-51; LO. 

Exhibit 4] 

Because Respondent did not submit to a random drug test during the 24 hour 

period required by MDC policy, MDC informed the Coast Guard of Respondent's failure 

and, as a result, on October 2, 2002, the complaint initiating the instant proceedings was 

served on Respondent at his home of record. [D&O at 8; Tr. at 111, 136] At that time, 

although Respondent offered to submit to random drug testing, the Coast Guard informed 

him that because more than 72 hours had passed since .he was told to report for drug 

testing, it was too late for Respondent to complete the drug test. [D&O at 8; Tr. at 137] 

5 
MOORE NO. 2652 

Nonetheless, on October 8, 2002, Respondent submitted to a drug test which yielded a 

negative result. [D&O at 8; Tr. at 84, 39; Respondent's Exhibit A] 

BASES OF APPEAL 

This appeal is taken from the Decision and Order imposed by the AU finding 

proved the charge of Violation of Law or Regulation. Respondent's bases of appeal are 

summarized as follows: 

I. The ALJ erred by finding that Respondent was notified of his selection for 

random drug screening and directed to appear for drug testing and, as a 

result, the ALJ's decision is not supported by substantial evidence and 

should be vacated; 

II. The ALI erred in ruling that the notice requirement in 49 C.F.R. § 40.61(a) 

(that the Consortium/Third-Party Administrator inform Respondent that his 

failure to report for testing constitutes a rejitsal to submit to required drug 

testing) is not an indispensable element of the charge of "refusal to 

submit" and, as a result, the ALJ's decision is clearly erroneous; and, 

III. The sanction imposed by the ALJ, revocation, is clearly excessive under the 

circumstances of the case and represents an unwarranted and 

unsupportable departure from the administrative regulations. 

OPINION 

I. 

The ALI erred by finding that Respondent was notified of his selection for random drug 

screening and directed to appear for drug testing and, as a result, the ALJ's decision is 

not supported by substantial evidence and should be vacated. 

Respondent contends that he was not accorded "actual notice" that he was 

required to submit to a random drug screening in September 2002. [Brief of Respondent 

at 23-24] Respondent asserts that although the record shows that telephone calls were 

placed to the contact number that Respondent provided MDC and that several messages 

informing Respondent that he had been selected for random drug screening were left on 

the answering machine attached to that number, there is insufficient evidence in the 

6 
MOORE NO. 2652 

record to support a conclusion that Respondent "was ever made aware of these voice 

messages." [Brief of Respondent at 24] Respondent asserts: 

to the extent the ALJ' s Decision and Order in this case can be read to hold 

that voice messages left on a residential telephone answering machine 

constitute sufficient legal notice on which to predicate a charge of failure 

to report for drug testing, the Decision and Order is clearly in error and 

does not comport with the spirit and letter of the applicable regulations. 

Simply put, the applicable regulations do not contain any provision 

supporting the conclusion that a voice-mail message on a telephone 

answering machine is adequate notice. 

[Brief of Respondent at 24-25] Based upon his conclusions that "the regulations clearly 

contemplate the communication of actual notice to report for testing" and there is not 

substantial evidence in the record to support a conclusion that Respondent received this 

"actual notice," Respondent contends that the ALJ's decision should be vacated. 

[Appellate Brief of Respondent at 25 (emphasis in original)] 

A review of the applicable DOT drug testing regulations, at 49 C.F.R. Part 40, 

and Coast Guard drug testing regulations, at 46 C.F.R. Part 16, shows that while the 

regulations do expressly state the procedures required during, for example, specimen 

collection and medical review of test results, they do not address the manner of notice 

required to inform parties that they have been selected for random testing. Instead, the 

regulations simply require that a person submit to drug testing "after being directed to do 

so by the employer." 49 C.F.R. § 40.191(a)(l). Therefore, as long as an employer's 

policy with respect to notification is in accord with the applicable DOT and Coast Guard 

regulations, the form and manner of notification may be left to the employer's discretion. 

MDC informs Consortium members of their selection for random drug testing via 

telephone, using phone numbers provided by the members. [Tr. at 23-24; I.O. Exhibit 1] 

During these telephone calls, MDC informs the members that they will be required to. 

7 
MOORE NO. 2652 

report for drug testing within 24 hours of the call and that they will be required to pay for 

the required drug test. [LO. Exhibits 1 and 2] Respondent was notified of his selection 

for random drug testing in this manner; however, he never reported for testing. [Tr. at 

54-55] 

I may only reverse the ALJ' s decision if his findings are arbitrary, capricious, 

clearly erroneous, or based on inherently incredible evidence. Appeal Decisions 2333 

(AYALA), 2344 (KOHAJDA), 2363 (MANN), 2390 (PURSER), 2474 (CARMIENKE), 

2570 (HARRIS), afJ' NTSB Order No. EM-182 (1996), 2581 (DRIGGERS), and 2584 

(SHAKESPEARE). In his D&O, the ALT found that "[w]ritten notification explaining 

MDC's drug testing policies and random drug testing was provided to members of the 

Consortium at meetings, by mail, and copies were available at MDC's office" and that, in 

conjunction with those policies "[ m ]embers who are selected for random drug testing are 

contacted by telephone, instructed to provide a sample that day or within twenty-four 

hours." [D&O at 6] Since the record shows that Respondent was aware of the form of 

the notification that would be received in the event that he was selected for random drug 

testing, the key issue remaining for resolution at this time is whether the ALT was correct 

to conclude that there was sufficient evidence in the record to support a conclusion that 

Respondent was so notified. 

Although the ALT noted that the record contained "conflicting testimony 

regarding MDC's effort to notify Respondent of the random drug test selection," he 

concluded that "[ t ]he Coast Guard ... proved by a preponderance of reliable and credible 

evidence that on September 10, 11, and 12, 2002, the MDC left telephone messages 

notifying Respondent that he was selected for a random drug test." [D&O at 9] 

8 
MOORE NO. 2652 

I have long held that it is the sole purview of the ALT to determine the weight of 

evidence and to make credibility determinations as to that evidence. Appeal Decisions 

2116 (BAGGETT), 2156 (EDWARDS), and 2472 (GARDNER). I will only disturb the 

ALJ' s resolution of conflicting evidence in exceptional circumstances. The rule in this 

regard is well established: 

[w]hen ... an Administrative Law Judge must determine what events 

occurred from the conflicting testimony of several witnesses, the 

determination will not be disturbed unless it is inherently incredible. 

Appeal Decisions 2275 (ALOISE), 2302 (FRAPPIER), 2472 (GARDNER), 2333 

(AYALA), 2340 (JAFFE), 2344 (KOHAJDA), 2356 (FOSTER), and 2390 (PURSER), 

ajf'd sub nom Commandant v. Purser, NTSB Order No. EM-130 (1986). That said, I 

have also stated that the findings of the ALT need not be completely consistent with all 

the evidence in the record as long as sufficient evidence exists to reasonably justify the 

findings reached. Appeal Decisions Appeal Decision 2282 (LITTLEFIELD) and 2492 

(RATH). 

While the Coast Guard presented testimonial evidence to show that MDC called 

Respondent on September 10, 11, 12, and 20, 2002, and that the Consortium left 

answering machine messages on all four of those occasions to notify Respondent that he 

had been selected for random drug testing, Respondent presented testimonial evidence to 

show that he received only one answering machine message from MDC. That message 

was received on September 27, 2002. In addition, Respondent presented the testimony of 

his mother to show that, even if MDC had, as it asserted, called Respondent's number on 

the dates that it asserted, it was possible that Respondent did not receive those messages 

because the answering machine attached to the relevant phone line was "sensitive" and 

9 
MOORE NO. 2652 

may have lost any messages left. In his D&O, the AU weighed the conflicting factual 

testimony elicited at the hearing and determined as follows: 

... credible evidence exists that Ms. Shaw and Mr. Becker [Employees of 

MDC] did call Respondent on five occasions and left messages to report 

for a random drug test as documented on the call log. Compared to 

MDC's efforts, Mrs. Moore's testimony surmising what could have 

happened to the answering machine messages is speculative, and lacks 

supporting documentation or corroboration. In this regard her testimony 

was not credible but was self-serving to Respondent. 

[D&O at 10-11] While it is true that conflicting testimony exists in the record with 

respect to the notification of Respondent, I find that the testimony was sufficiently 

addressed by the ALJ in his D&O. I do not find that the ALJ' s determinations, in that 

regard, were arbitrary, capricious, clearly erroneous or an abuse of his discretion and, as a 

result, I am not persuaded by Respondent's first argument. 

II. 

The ALI erred in ruling that the notice requirement in 49 C.F.R. § 40.61(a) (that the 

Consortium/Third-Party Administrator inform Respondent that his failure to report for 

testing constitutes a refusal to submit to required drug testing) is not an indispensable 

element of the charge of "refusal to submit" and, as a result, the ALJ's decision is clearly 

erroneous. 

Respondent contends that ALJ erred in finding that "the notice requirement 

referenced in 49 C.F.R. § 40.61 is not an element of the offense of 'refusal to submit'." 

[Appellate Brief of Respondent at 29] Citing 49 C.F.R. § 40.61(a), Respondent asserts 

that the "regulations require that the person selected for testing be notified that a failure 

to report constitutes a refusal to test." [Appellate Brief of Respondent at 31] Respondent 

contends that this "additional duty" is placed on the Consortium/Third-Party 

Administrator "to ensure that the person selected for testing has, in fact, received actual 

notice that he has been so selected and to give that person an opportunity to submit to 

10 
MOORE NO. 2652 

testing." [Appellate Brief of Respondent at 30] Respondent concludes that because this 

"administrative requirement" was not met, the ALJ' s Order should be vacated. 

As I have already stated, I may only reverse the ALJ's decision if his findings are 

arbitrary, capricious, clearly erroneous, or based on inherently incredible evidence. 

Appeal Decisions 2333 (AYALA), 2344 (KOHAJDA), 2363 (MANN), 2390 (PURSER), 

2474 (CARMIENKE), 2570 (HARRIS), a(f" NTSB Order No. EM-182 (1996), 2581 

(DRIGGERS), and 2584 (SHAKESPEARE). In his D&O, the ALl discussed 

Respondent's argument that the Coast Guard failed to establish an indispensable element 

of the offense of "refusal to submit" as follows: 

Respondent argued that the Coast Guard failed to establish the offense 

"refusal to submit" because the Consortium did not notify Respondent that 

his failure to appear for the drug test was considered a "refusal to submit" 

offense under 49 CFR 40.61(a). I do not agree with Respondent's 

argument that the notice requirement referenced in 49 CFR 40.61 is an 

element of the offense of "refusal to submit". Part 40 Section 61 explains 

the steps to be taken by the urine collector. In contrast, 49 CFR 

40.191(a)(l) provides the definition ofrefuse to test, "[F]ail to appear for 

any test within a reasonable time ... This includes the failure of an 

employee to appear for a test when called by a C/TPA [Consortium/ThirdParty Administrator]. 

[D&O at 11-12] After a review of the applicable regulations and case law, I do not find 

Respondent's second assignment of error to be persuasive. 

49 C.F.R. § 40.61 is contained within Subpart E of Part 40, Title 49, Code of 

Federal Regulations, which contains regulations regarding "Urine Specimen Collections." 

The specific regulation upon which Respondent's second assignment of error is based, 

49 C.F.R. § 40.6l(a), is contained in Subpart E and discusses the preliminary steps in the 

collection process, focusing particularly on the responsibilities of the urine collector after 

a person has been scheduled for testing. As such, the direction contained within 

11 
MOORE NO. 2652 

49 C.F.R. § 40.61(a) that "where a C/TPA [Consortium/Third-Party Administrators] has 

notified an owner/operator or other individual employee to report for testing and the 

employee does not appear, the C/TPA must notify the employee that he or she has 

refused to test" is not an element of the offense or "refusal to submit" but, rather, a 

requirement placed on the C/TP A. This conclusion has been upheld in the federal courts. 

See Duchek v. National Transp. Safety Bd., 364 F.3d. 311, 313 (D.C. Cir. 2004) (stating 

that 49 C.F.R. § 40.61(a) is "a provision addressed to C/TPAs and other service agents 

who collect drug testing specimens."). Therefore, I find the ALJ's conclusion with 

respect to Respondent's second assertion of error was in accordance with law and is 

neither arbitrary nor capricious. 

III. 

The sanction imposed by the ALI, revocation, is clearly excessive under the 

circumstances of the case and represents an unwarranted and unsupportable departure 

from the administrative regulations. 

As Respondent correctly stated in his appellate brief, 46 C.F.R. Table 5.569 

indicates that the typical sanction for a "Violation of Regulation" for "Refusal to take [a] 

chemical drug test" is 12-24 months. Respondent contends that the ALJ's departure from 

that suggested range of suspension is in error and should be vacated. I do not agree. 

The sanction imposed in a particular case is exclusively within the authority and 

discretion of the ALT. 46 C.F.R. § 5.569(a); Appeal Decisions 1998 (LEBOEUF), 2543 

(SHORT), 2609 (DOMANGUE), 2618 (SINN), and 2622 (NITKIN). While the ALT 

may look to 46 C.F.R. Table 5.569 for information and guidance as to the typical order 

associated with a charge, he may increase or decrease the sanction as he sees fit. 46 

C.F.R. § 5.569(d); Appeal Decisions 2173 (PIERCE), 2362 (ARNOLD), 2391 

12 
MOORE NO. 2652 

(STUMES), 2455 (WARDELL), 2618 (SINN), and 2622 (NITKIN). As a result, on 

appeal the sanction imposed by the Al.J will only be modified if it is clearly excessive or 

involves an abuse of discretion. Appeal Decisions 2245 (MATHISON), 2256 (BURKE), 

2313 (STAPLES), 2362 (ARNOLD), 2366 (MONAGHAN), 2391(STUMES),2422 

(GIBBONS), 2423 (WESSELS), and 2618 (SINN). 

In his D&O, the Al.J spent considerable time addressing his departure from the 

sanction suggested in 46 C.F.R. Table 5.569: 

Here, the suggested range of an appropriate order for refusal to submit to a 

drug test is 12-24 month suspension. See 46 CFR Table- 5.569. The 

Coast Guard is seeking revocation of Respondent's Merchant Mariners 

License .. .In support of revocation, the Coast Guard has requested that the 

undersigned take judicial notice of Appeal Decision 2624 (Downs). In 

DOWNS, the Commandant affirmed the ALJ' s sanction revoking 

respondent's license for refusal to take a reasonable cause drug test. Id. at 

19. See also Appeal Decision 2578 (CALLAHAN) (ALJ's decision to 

revoke license for refusal to test held not excessive or abuse of discretion). 

The Commandant has recognized the ALJ' s discretion to formulate an 

appropriate order in an effort to deter appellant from repeating a violation. 

Id. at 18 (quoting (CALLAHAN), 5). 

Based upon my review of the facts presented at the hearing, I conclude a 

sanction of revocation is appropriate. The Coast Guard proved it 

contacted Respondent for a random drug test on September 10, 11, 12, and 

20, 2003. Further, Respondent admits to receiving a telephone message 

from the Consortium on September 27, 2003, but he still waited six days 

to submit to a "random" drug test. I do not consider Respondent's drug 

test on October 8, 2003 as complying with 46 C.F.R. 16.230. Respondent 

has undermined the purpose of random drug testing by failing to comply 

with federal regulations and Consortium policies within 24 hours. 

Respondent has provided several explanations for his failure to test. 

Respondent cites his inability to pay the $47.00 fee, severe weather 

consisting of tropical storms and a hurricane. Finally, Respondent claims 

maintenance on his boats rendered them inoperable. All of these 

explanations do not excuse Respondent of his responsibility as a member 

of the Consortium and licensed mariner, to participate in random drug 

testing. I conclude revocation of Respondent's Coast Guard an 

appropriate sanction. 

13 
MOORE NO. 2652 

[D&O at 13-14] In this case, the record shows that the ALT considered the evidence 

presented, including the evidence in mitigation submitted by Respondent and the Table of 

Suggested Sanctions before ordering the revocation of Respondent's mariner credential. 

Though Respondent asserts that the ALT did not accord proper weight to the mitigating 

evidence that he presented, I do not find that the ALT erred, under the facts of this case, in 

revoking Respondent's mariner credential. 

Past Commandant Decisions on Appeal have articulated a clear rationale as to 

why revocation of a mariner's credential is appropriate in cases involving the mariner's 

refusal to submit to a required drug test: "if mariners could refuse to submit to chemical 

testing and face a lesser Order, it is difficult to imagine why anyone that may have used 

drugs would ever consent to be tested." Appeal Decisions 2578 (CALLAHAN) and 2624 

(DOWNS). Respondent contends that those past appeal decisions are not on point to the 

instant case because they did not involve random drug testing; Appeal Decision 2578 

(CALLAHAN) applied the principal to a post incident drug test, while Appeal Decision 

2624 (DOWNS) applied it to a reasonable cause drug test. I do not find Respondent's 

assertion persuasive. 

In order for the integrity of the Coast Guard's drug testing regulations to be 

maintained, revocation must be an available, if not predictable, consequence for those 

who refuse to submit to drug testing, regardless of the reason that the test is required. Cf 

Exxon Shipping Co. v. Exxon Seaman's Union, 73 F.3d 1287, 1294 (3d. Cir. 1996). If 

that were not the case, individuals could routinely escape accountability for drug use by 

simply refusing to be tested. Appeal Decisions 2578 (CALLAHAN) and 2624 

(DOWNS); Cf Administrator v. Krumpter, NTSB Order No. EA-4724 (1998) (if 

14 
MOORE NO. 2652 

revocation were not the predictable consequence for airmen who refuse to submit to 

required drug testing, individuals could routinely escape accountability for drug use by 

simply refusing to be tested). The final rule implementing the Coast Guard's drug and 

alcohol testing regulations made clear that the regulations were meant to ensure that 

"[ d]rug users and abusers will either be deterred from continued drug use or will be faced 

with sufficient probability of being identified in the workplace and precluded from 

employment in the industry when such use is detected through chemical testing." 

[Programs for Chemical Drug and Alcohol Testing of Commercial Vessel Personnel, 53 

Fed. Reg. 47,064 (1988) (to be codified at 46 C.F.R. Parts 4, 5, and 16).] If mariners 

were allowed to refuse to submit to random drug tests and face any order less than 

revocation, the intent of the Coast Guard's drug testing regulations would undoubtedly be 

thwarted. Accordingly, I find that the AU did not err in assessing a sanction of 

revocation in this case. 

CONCLUSION 

The actions of the AU had a legally sufficient basis and his decision was not 

arbitrary, capricious, or clearly erroneous. Competent, reliable, probative, and substantial 

evidence existed to support the findings and order of the Administrative Law Judge. 

Therefore, I find Respondent's bases of appeal to be without merit. 

ORDER 

+;., 

Signed at Washington, D.C., this jl__ day of~ 2005. 

15 

TERRY M. CROSS 

Vice Admiral, U.S. Coast Gua1 J 

Vice Commandant