UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs. 

WILLIAM BENNETT, 

Respondent. 

Docket Number CG S&R 01-0671 

PA No. 01001857 

DECISION AND ORDER 

Issued: August 22, 2002 

Issued by: Peter A. Fitzpatrick, Administrative Law Judge 

APPEARANCES 

FOR THE COAST GUARD 

LT Louis Luba 

LT Timothy W. Pavilonis 

LT Andrea Katsenes 

LTJG Joshua Pennington 

United States Coast Guard 

Marine Safety Office 

20 Risho A venue 

East Providence, Rhode Island 02914-1208 

FOR THE RESPONDENT 

John E. Bennett, Esq. 

Town Landing No. 2 

333 R Commercial Street 

Provincetown, MA 02656 
I. 

PRELIMINARY STATEMENT 

This case began on October 2, 2001 when the Coast Guard filed a Complaint against the 

Respondent, William Bennett, under the statutory authority contained in 46 U.S.C. § 7704(c) and 

the Coast Guard regulation codified at 46 C.F.R. 5.35. Mr. Bennett is the holder of Coast Guard 

issued license number 788197 and merchant mariner's document number 029466842. The Coast 

Guard alleged that Mr. Bennett tested positive for marijuana metabolite on a random drug test 

administered on August 21,2001. The Investigating Officer sought the revocation of Mr. 

Bennett's Coast Guard License and Document under 46 U.S.C. § 7704. 

On October 7, 2001, Respondent's counsel notified the Coast Guard Administrative Law 

Judge Docketing Center that he represented William Bennett and requested copies of recent 

appeal decisions. By letter dated October 10, 2001 he was directed to the website where those 

decisions are available. On October 12, 2001, Mr. Bennett requested an extension of time to file 

an Answer and that motion was granted by Order of the Chief Administrative Law Judge on 

October 17. The deadline was extended until December 1, 2001. The Answer was submitted on 

November 28,2001. It admitted all jurisdictional allegations but denied the factual allegations 

and offered seven affinnative defenses. Also, the Respondent requested settlement discussions 

and his counsel recommended a delay of the hearing since "the likelihood of settlement is good 

and would eliminate the necessity of a hearing." 

On November 28, 2001 the case was assigned to this Judge and the hearing was set for 

Apri125, 2002. Next, on March 1, 2002 the Coast Guard filed a Motion to Strike and a Motion 

for Discovery and Disclosure. 

2 
A pre-hearing conference was conducted on March 20, 2002 and an Order containing the 

rulings on various motions was issued the following day. The exact location of the hearing was 

set and the Coast Guard's Motion for Discovery and Disclosure was granted. Also, 

Respondent's counsel request that a different laboratory test the urine sample involved was 

granted·. On March 22, 2002 an Order and Subpoena were issued directing Clinical Reference 

Laboratory, Lenexa, K.S, the original drug testing laboratory, to send the sample to Quest 

Diagnostics, Inc., another laboratory certified to conduct United States Department of 

Transportation drug testing. 

The Coast Guard and Respondent's counsel filed their witness and exhibit lists on March 

25, 2002. On March 29, 2002, Quest Diagnostics transmitted the results ofthe second drug test 

which was positive for marijuana metabolite. Later, on April 4, 2002 the Respondent filed a 

motion for Subpoena and Order seeking to compel Quest Diagnostics to produce all 

documentation. The Coast Guard provided Respondent's counsel with the requested 

information. Three days before the hearing, on April22, 2002 Mr. Bennett filed Respondent's 

Motion to Disqualify the Administrative Law Judge and/or the Commandant. 

The hearing commenced as scheduled on April25, 2002 and the Investigating Officers, 

the Respondent, and his counsel were present. During the hearing, the Coast Guard sponsored 

three witnesses and eight exhibits which were admitted on the record. The Respondent did not 

testify or sponsor any witnesses other than an affidavit from his attorney. Respondent offered 

seven exhibits. The exhibits and witnesses are identified in Appendices A and B. 

At the beginning ofthe hearing, the Motion to Disqualify the Administrative Law Judge 

and/or the Commandant of the Coast Guard was addressed. In pertinent part, that motion 

asserts: 

3 
Given the fact that the Administrative Law Judge and the Commandant 

are both Coast Guard personnel and have taken oaths of allegiance to the 

Coast Guard, both are incapable of providing the Respondent with a fair 

and impartial hearing in light of the particular issues in this case involving 

the enforceability of Coast Guard regulations of the legality of same. 

That motion was denied because" ... bias is a matter which must be shown specifically. . .. 

[Y]ou have to show a personal bias against the particular respondent involved in the particular 

case." (Transcript, hereinafter Tr., 19). 

After the Coast Guard presented its case in chief and the exhibits were admitted, 

Respondent's counsel asked to be heard on a motion in which he stated," ... the Administrative 

Law Judge should disallow consideration of the test results and expert testimony and dismiss the 

case for lack of evidence and order the original licenses and document of respondent be returned 

to him forthwith." (Tr. 229-30). That motion was denied and it was held that the Investigating 

Officers had established a prima facie case of drug use by the Respondent. (Tr. 236-37). 1 

At the conclusion of the hearing, the undersigned ruled that concurrent post hearing 

submissions on the three main issues of the case should be filed by May 30, 2002. The Coast 

Guard filed a Motion for Continuance of those pleadings on May 1oth since the transcript was not 

ready. That Motion was granted by Order issued May 14, 2002. When the transcript was 

received, an Order was issued extending the filing date until July 31, 2002. The Coast Guard 

filed their Closing Brief and Proposed Findings of Fact and Conclusions of Law on July 5, 2002. 

1 The Coast Guard asserts in their Closing Brief on page 15 that " ... the couti at the conclusion 

of the hearing declared the singular charge against the respondent of Use of a Dangerous Drug in 

violation of 46 U.S.C. §7704(c) PROVED." Although it was determined that, "It does establish 

a prima fascia case," (sic) it was not stated that the case was "PROVED." (Tr. 236). The 

determination as to whether the case was proved was reserved pending a review of the record 

after the hearing. 

4 
\ I 

The Respondent, William Bennett notified this office on July 12th that his brother and 

attorney in this case died and requested a continuance until July 31st. The request was granted 

and the deadline was extended until August 21, 2002. On August 2, 2002 Mr. Bennett's 

pleading entitled Respondent's Proposed Findings ofFact and Conclusions of Law was 

submitted. This case is now ripe for decision. 

II. 

STATUTES AND REGULATIONS INVOLVED 

A. Procedural Matters 

1. This proceeding is governed by the Administrative Procedure Act , which is incorporated 

into these proceedings under 46 U.S.C. 7702, which reads: 

§ 7702. Administrative procedure 

(a) Sections 551-559 of title 5 apply to each hearing under this chapter about 

suspending or revoking a license, certificate of registry, or merchant mariner's 

document. 

2. 46 U.S.C.§§ 7701-7705 sets out the general procedures governing the suspension and 

revocation of merchant mariners' licenses and documents. 46 U.S.C. § 7704 provides in 

pertinent part: 

§ 7704. Dangerous drugs as grounds for revocation 

(c) If it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant mariner's 

document shall be revoked unless the holder provides satisfactory proof 

that the holder is cured. 

3. The regulations governing the performance of chemical tests for dangerous drugs adopted by 

the United States Department of Transportation are codified at 49 C.F.R. § 40. Specifically, 

the specimen collection procedures are set out at 49 C.F.R. § 40, subpart E. 

5 
\ ' 

4. The Coast Guard regulations governing chemical testing for dangerous drugs are codified at 

46 C.P.R.§ 16. As pertinent here, 46 C.P.R.§ 16.201(b) provides that: 

Subpart B- Required Chemical Testing 

§ 16.201 Application. 

(b) If an individual fails a chemical test for dangerous drugs under this 

part, the individual will be presumed to be a user of dangerous drugs. 

5. The role ofthe Medical Review Officer in authorizing the re-employment of a mariner 

aboard a vessel who failed a required chemical test for dangerous drugs is set out at 46 

C.P.R. 16.201(e) and (f) as follows: 

(e) An individual who has failed a required chemical test for dangerous 

drugs may not be re-employed aboard a vessel until the requirements of 

paragraph (f) ofthis section and 46 C.P.R. Part 5, if applicable, have been 

satisfied. 

(f) Before an individual who has failed a required chemical test for 

dangerous drugs may return to work aboard a vessel, the MRO must 

determine that the individual is drug-free and the risk of subsequent 

use of dangerous drugs by that person is sufficiently low to justify his 

or her return to work. In addition the individual must agree to be 

subject to increased unannounced testing-

( 1) For a minimum of six ( 6) tests in the first year after the 

individual returns to work as required in 49 C.F .R. part 40; and 

(2) For any additional period as detennined by the MRO up to a 

total of 60 months. 

6. The Coast Guard Rules of Practice which apply to this proceeding are codified at 33 C.P.R. § 

20. 

6 
I I 

III. 

FINDINGS OF FACT 

A. Jurisdictional Allegations Admitted by the Respondent in the Answer 

1. The Respondent's address is 23 Nottingham Drive, East Sandwich, MA 02537-1315, 

telephone ( 508) 888-5516. 

2. Respondent holds license number 788197 and merchant mariner's document number 

029466842. 

B. Factual Allegations Admitted by the Respondent in the Answer 

1. On August 21, 2001 Respondent took a random drug test. 

2. A urine specimen was collected by Marie Weber of Outer Cape Health Service, 49 Harry 

Kemp Way, Provincetown, MA 02657. 

3. The Respondent signed a Federal Drug Testing Custody and Control Fonn. 

C. Factual Allegations Not Admitted by the Respondent in the Answer 

4. The urine specimen was collected and analyzed by Clinical Reference Laboratory, 8433 

Quivira, Lenexa, Kansas 66315 using procedures approved by the Department of 

Transportation. 

5. That specimen subsequently tested positive for Marijuana Metabolite. The Answer stated 

that "Respondent lacks sufficient knowledge or information to admit or deny the allegations 

contained in paragraphs 4 and 5." 

7 
\ I 

D. Uncontested Facts 

1. The conduct of the Collector and the procedures followed at Outer Cape Health Service were 

proper and in accord with the Department of Transportation regulations at 49 CRF 40. (Tr. 

64-65). 

2. The chain of custody of Mr. Bennett's sample was intact and no specimen contamination was 

involved. (No.3, Respondent's Proposed Findings of Fact supra at 27). (Tr. 54-55, 62-65). 

3. The identity and integrity of the specimen were verified on a Federal Drug Testing Custody 

and Control Form (DTCCF) in accordance with the procedures in 49 C.P.R. Part 40. This 

form assigned the specimen identification number of00299252729 to Respondent's urine 

sample. Respondent did not challenge the identity integrity of the specimen. (Exhibit 2). 

4. Respondent's urine sample was sent to Clinical Reference Laboratory in Lenexa, Kansas and. 

was tested on August 22, 2001 in accordance with the procedures enumerated in 49 C.F .R. 

Part 40. (No. 5, Respondent's Proposed Findings of Fact, supra at 28). 

5. The test results were positive for marijuana metabolite on both the initial screening 

(immunoassay) and the gas chromatograph/mass spectrometer tests. (Exhibit 2). 

E. Other Facts 

1. The concentration ofTHC in the Respondent's urine found on the confirmatory test at 

Clinical Reference Laboratory was 54 ng/ml. The Federal cut offlevel on that test is 15 

ng/ml. (Exhibit 2). 

2. These results were sent to the Medical Review Officer, Dr. Susan Green, who reviewed the 

test and interviewed the Respondent on August 28, 2001. Dr. Green concluded that there 

was no medical explanation for the positive test for marijuana. She signed the DTCCF 

verifying that detennination on August 28, 2001. (Exhibit 3). 

8 
3. At the request of counsel, the Court ordered a second test of Mr. William Bennett's sample. 

A split urine specimen was set to Quest Diagnostics on March 22, 2002. That test was 

conducted in accord with the Department of Transportation regulations and showed the 

concentration ofTHC in the Respondent's urine to be 61.54 ng/ml. (Exhibit 8). 

IV. 

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

These rulings and the proposals are set out in Appendix C. 

v. 

OPINION 

A. General. 

1. The Coast Guard has jurisdiction over Respondent and this matter pursuant to 46 U.S.C. 

7704, which states that "if it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant mariner's document shall be 

revoked unless the holder provides satisfactory proof that the holder is cured." Although 

Respondent's license has expired in the interim, I ruled that" ... the respondent was 

operating under the authority of his document at the time that this drug test was rendered." 

(Tr. 1 0). The Coast Guard has the burden of proving the allegations of the complaint by a 

preponderance of the evidence. 33 C.P.R. § 20.701. See also Appeal Decision No. 2603 

(HACKSTAFF) (1998); Dept. of Labor v. Greenwich Colleries, 512 U.S. 267 (1994); 

Steadman v. SEC, 450 U.S. 91, 100-103 (1981). It is now well established that the 

Investigating Officer must prove three elements to meet this burden in a case involving the 

use of a dangerous drug where a chemical drug test is conducted. As set out in Appeal 

Decision 2583 (WRIGHT) (p. 4) (1997) they are: 

9 
To meet this burden, as applied to the specification at hand, the 

Investigating Officer must prove three elements: 1) that the respondent 

was the individual that was tested for dangerous drugs; 2) that the 

respondent failed the test; and 3) that the test was conducted in accordance 

with 46 C.F.R Part 16. Appeal Decisions 2379 (DRUM), 2279 (LEWIS). 

See also Appeal Decision Nos. 2584 (SHAKESPEARE) (1997); 2632 (WHITE) (2002). 

Moreover, this proceeding is conducted under the Rules of Practice codified at 33 C.P.R. Part 

20. 

B. Use of or Addiction to the Use of Dangerous Drugs 

1. The first witness scheduled to be called was Marie Weber, the specimen Collector at Outer 

Cape Health Services who would have testified as to the specific collection procedures 

followed on August 21, 2001 during Williams Bennett's urine collection. However, 

Respondent's counsel urged that he filed a stipulation acknowledging that the collection was 

done in accordance with DOT regulations. That stipulation (Exhibit A) states in pertinent 

part: 

Now comes the Respondent, William Bennett, and stipulates that 

Marie Weber is professionally qualified as a collector of urine samples 

pursuant to 49 CFR Part 40 and that she followed the required 

procedures during the collection of Mr. Bennett's urine, the chain of 

custody was proper during her control of it, and Mr. Bennett's urine 

was not contaminated during the period beginning at the time it was 

collected by Marie Weber through the time she shipped the sample to 

Clinical Reference Laboratories. 

Thus, there is no question on this record that the Respondent was the individual who 

provided the urine sample involved here, that it was properly collected in accord with the 

applicable regulations, and it was shipped intact to the testing laboratory. 

2. Dr. Stanley Kammerer, Vice President and Director of Toxicology at Clinical Reference 

Laboratory described the "litigation package" offered, the laboratory's drug testing 

10 
procedures, and the lab's conclusion that a positive drug test for marijuana metabolite was 

involved. He testified that the sample was received in a sealed plastic bag and the seals on 

the sample bottle were examined for evidence of tampering. (Tr. 79-80). Next, the 

identification number on the seals (No. 029466842) was compared with the number on the 

accompanying copies ofthe drug testing forms to assure a match. (Tr. 80). Also, an internal 

accession number was assigned to the sample (No. 41940147) by the laboratory. (Tr. 80). 

Once the laboratory personnel were satisfied that the sample was acceptable for testing, 

a portion (aliquot) was poured into a test tube and inserted into the initial screening 

instrument. (Tr. 88). This test is perfonned to quickly separate the sample into preliminary 

positives and negatives. (Tr. 88). The cutofflevel on this initial screening test was 50 ng/ml. 

(Tr. 89). The Respondent's sample tested at 90 ng/ml on this initial test and thus that result 

was positive. (Tr. 90). Next, another aliquot was poured from the original sample and a 

second test was conducted to confinn and qualify the drug in question. (Tr. 1 03). 

This so-called GC/MS test identifies the components of various drugs by a separation 

technique and detennines the amounts of those unique characteristics. (Tr. 100-04). The cut 

offlevel on this test was 15 ng/ml. (Tr. 110, 117-18, Exhibit 2). The Respondent's sample 

tested at 54 ng/ml. (Tr. 106, 117, Exhibit 2). This result too was positive for marijuana 

metabolite. (Tr. 117). That detennination was verified by the Certifying Scientist (Allision) 

on the DTCCF on August 24, 2001. (Tr. 85, Exhibit 2). 

Dr. Kammerer's testimony is supported by the laboratory's litigation package which 

includes the documentation associated with the testing of Mr. Bennett's urine sample. He 

was a very credible witness. No cross examination was conducted by Respondent's counsel. 

11 
Accordingly, I have concluded that the testing of Mr. Bennett's urine sample here by Clinical 

Reference Laboratory was proper and in accord with the DOT regulations. 

3. The laboratory sent Mr. Bennett's testing results to the Medical Review Officer, Dr. Susan 

Green. At the hearing Respondent's counsel objected to this witness as follows: 

I've already agreed to stipulate that this witness performed all of her duties 

in connection with 49-40 as an MRO with respect to the respondent, it was 

all done properly, that the forms are proper, she signed them properly. We 

have no problem with any of the fonns or documents that this witness 

dealt with in connection with her performance of her duties as the MRO in 

this particular case and accordingly, I object to spending the time to 

introduce off of these documents. 

(Tr. 127-28). 

The objection was overruled. Dr. Green testified that the laboratory results were "faxed" to 

her office directly from the laboratory. (Tr. 129). Although the laboratory does maintain a 

website and the laboratory results can be obtained from that source, she testified that the 

procedure was difficult to access and that most of the lab results were forwarded by 

facsimile. (Tr. 133, 143-44). There was only a remote chance that the results here were 

obtained via secure encryption from the website. (Tr. 133, 143-44). 

The Doctor interviewed Mr. William Bennett by telephone and, among other things, 

inquired whether he was taking any drug which could have caused the positive test result. 

(Tr. 134-38). She concluded that he did not have a valid medical reason for the presence of 

marijuana metabolite in his system and concluded that the test result was positive. (Tr. 137-

38). Dr. Green advised the Respondent of her determination and conveyed that result by 

letter to his employer, Cape Code Whale Watch, on August 28, 2001. (Exhibit 6). 

12 
' 1 

The evidence here is convincing that the Medical Review Officer properly performed 

her duties and accurately concluded that Mr. Bennett's test results were positive for 

marijuana metabolite. 

4. Later, at the pre-hearing conference in this case on March 20, 2002 Respondent's counsel 

requested that another laboratory perform a second confirmatory test on the Respondent's 

sample. I granted that motion even though the DOT rules require the employee to request a 

second test from the Medical Review Officer on the split sample within 72 hours of 

notification of a positive result. See 49 C.P.R. 40.171. No such request of the MRO had 

been made here. I ordered Clinical Reference Laboratory to send a portion of Respondent's 

sample to Quest Diagnostics, another drug testing laboratory certified by the federal 

government to engage in urine chemical testing. Counsel and the Coast Guard agreed to that 

selection. Importantly, the regulations provide that the second laboratory conduct the test 

"without regard to the cutoff concentration of 40.87 ." ( 49 C.P.R. 40.177(b )). Thus, the 

second laboratory is required to simply reconfinn the presence of the illicit drug metabolite 

in the split sample. 

5. Dr. Louis Jambor, the Director of the laboratory at Quest, testified that the results of this 

GC/MS test revealed the presence of marijuana metabolite in the Respondent's system at a 

concentration of 61 ng/ml. When asked to explain the difference between the result of 54 

ng/ml on the Clinical Reference Laboratory test and the 61 NG/ml at his laboratory, the 

Doctor stated " ... that difference of seven n,anograms is an extremely small difference. To 

me, they are essentially the same numbers." (TR 208). If the sample is not mixed properly, 

there can be" ... a slight difference in the concentration at the top ofthe sample as to the 

bottom of the sample .... " (Tr. 208-09). Dr. Jambor also testified that the chain of custody 

13 
was well-maintained and the testing instrument was properly tuned. (Tr. 198-200). Dr. 

Jambor's testimony is supported by the detailed litigation package which he sponsored and 

which was admitted as Exhibit 8. 

Reviewing the results of chemical tests at both laboratories, there is no doubt on this 

record that Mr. William Bennett had a prohibited concentration of marijuana metabolite in 

his system on the day (August 21, 2001) his urine was collected at Outer Cape Health 

Service. Accordingly at the hearing on April25, 2002 it was announced that the Coast Guard 

had successfully raised the presumption of drug usage against the Respondent in accord with 

the regulation. 2 (Tr. 236-38). 

VI. 

OTHER ISSUES RAISED AT THE HEARING 

1. Respondent asserts that the DOT rules codified at 49 C.P.R. Part 40 and the Coast Guard 

regulations at 46 C.P.R. Part 16 conflict in regard to the roles of the Substance Abuse 

Professional (SAP) and the Medical Review Officer (MRO). Specifically, Mr. Bennett 

asserts that the DOT rules allow an SAP to make a "fitness for duty" determination and allow 

the mariner to return to work 49 C.P.R. 40.307. The Coast Guard regulations require that 

determination to be made by a Medical Review Officer only. 

It is relevant to note here however that the DOT drug testing regulations specifically refer 

to the function of the MRO along with the SAP in the return to duty process. 49 C.P.R. 

40.305(c) as follows: 

2 The reference on page 236 of the transcript to 46 C.P.R. part 5 should have been 46 C.P.R. 

16.201. 

14 
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40.305 How does the return-to-duty process conclude 

XXX 

(c) As a SAP or MRO, you must not make a "fitness for duty" 

determination as part of this re-evaluation unless required to do 

so under an applicable DOT agency regulation. It is the 

employer, rather than you, who must decide whether to put the 

employee back to work in a safety-sensitive position. 

Also, under 49 C.P.R. 307(c) the DOT regulations recognize that the Substance Abuse 

Professional is the sole determiner of the number and frequency of follow up drug tests for a 

mariner who has failed an initial test" ... unless otherwise directed by the appropriate DOT 

agency regulation."3 The Coast Guard has decided that the MRO is the professional 

responsible for making the determination that the mariner is a low risk to return to drug use 

and is fit to return to work. The MRO too is the one responsible for the follow up 

requirements. 

Moreover, the recent amendment to the Coast Guard rules require the MRO to be 

qualified under the DOT rules as Substance Abuse Professionals. The DOT rules define a 

SAP as follows (49 C.P.R. 40.3): 

Substance Abuse Professional (SAP). A person who evaluates employees 

who have violated a DOT drug and alcohol regulation and makes 

recommendations concerning education, treatment, follow-up testing, and 

aftercare. 

Where the MRO is performing SAP functions, as in the return to duty area, the Coast Guard 

regulations require the MRO to meet the SAP training requirements. See 49 C.P.R. 40.203. 

3 As pointed out by the Investigating Officer, other provisions of the DOT regulations refer to 

DOT agency regulations beyond those specifically set out in these rules. See 49 C.P.R. 

40.285(a) and 49 C.P.R. 40.307(c). 

15 
Nothing in the DOT regulations prohibits a DOT agency like the Coat Guard from 

supplementing the requirements of the drug and alcohol testing programs with rules designed 

to meet specific needs in the industry it regulates. When these new changes were proposed, 

the Coast Guard announced that it was" ... not proposing to change the current dual role of 

the MRO in the return-to-duty decision process." 66 Fed. Reg. at 21503 (April30, 2001). 

Moreover, the Secretary ofTransportation has delegated to the Commandant of the Coast 

Guard the authority to: 

(uu) Carry out the functions and exercise the authorities vested in 

the Secretary by subtitle II of Title 46, United States Code, 

"Vessels and Seaman" as amended through Public Law 105-394, 

112 Stat. 3627, ... 

(49 C.P.R. 1.46 uu). 

That authority specifically includes "Part 7101 to end, without exception." 46 U.S.C. 

7101 (i), and requires the testing of individuals for use of dangerous drugs who apply for or 

hold a license. 

In sum, the use of MRO' s to perform SAP return to duty functions is a legitimate 

exercise of the Coast Guard's regulatory authority. It does not conflict with the DOT rules at 

49 C.P.R. 40. 

2. The next issue raised at the hearing is whether the Vice Commandant's Decision on Appeal 

No. 2535 (SWEENEY) (1992) which sets out the so called "cure" requirements for a mariner 

who has failed a chemical test for dangerous drugs conflicts with the amended DOT 

regulations assigning that determination to the Substance Abuse Professional under 49 C.P.R. 

40.291-313. The duel role of the MRO as both MRO and SAP under the Coast Guard 

regulations is discussed above and will not be repeated here. The Congressional mandate 

16 
governing mariners who have failed a chemical test for dangerous drugs is set out at 46 

U.S.C. § 7704(c). That provision reads as follows: 

§ 7704. Dangerous drugs as grounds for revocation 

(c) If it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license, certificate of registry, or merchant 

mariner's document shall be revoked unless the holder provides 

satisfactory proof that the holder is cured. 

The statute does not define cure and the Commandant in the exercise ofhis delegated 

authority from the Secretary of the Department of Transportation under 49 C.F .R. 1.454 and 

1.46 has interpreted that tenn as it applies to license and merchant mariner document holders. 

In SWEENEY the Commandant announced (pp. 7-8 ): 

XXX 

A sound, reasonable basis upon which to craft a viable definition of 

cure exists in 46 CFR §5.90l(d). Using that regulation as a foundation, I 

consider the following factors to satisfy the definition of cure where drug 

use is an issue: 

1. The Respondent must have successfully completed a bonafide drug abuse 

rehabilitation program designed to eliminate physical and psychological 

dependence. This is interpreted to mean a program certified by a governmental 

agency, such as a state drug/alcohol abuse administration, or in the alternative, 

certified by an accepted independent professional association ... 

2. The Respondent must have successfully demonstrated a complete nonassociation with drugs for a minimum period of one year following successful 

completion of the rehabilitation program. This includes participation in an active 

drug abuse monitoring program which incorporates random, unannounced testing 

during that year. 

Appeal Decision No. 2535 (SWEENEY). 

4 The term "Administrator" used in 49 C.P.R. 1.45 includes the Commandant ofthe Coast Guard. 

See 49 C.F .R. 1.2. 

17 
That decision set the st~ndard which has been followed in later decisions and affirmed by the 

National Transportation Safety Board. See NTSB Order EM~186 (WRIGHT) (1999). See 

also Appeal Decision No. 2626 (DRESSER) (2001); Appeal Decision No. 2632 (WHITE) 

(2002). 

That is the standard which is applicable to this case and it has not been altered or 

superceded by the recently amended DOT drug testing regulations. 

3. Another issued raised at the hearing involves the question of whether the judge can order a 

sanction of less than revocation when the Respondent has been charged with use of a 

dangerous drug. The governing statute 46 U.S.C. § 7704(c) mandates that if a mariner has 

been shown to be the user of a dangerous drug, the license or document must be revoked 

unless the holder is cured. As pointed out by the Investigating Officer (Closing Brief, p 10~ 

11) this issue has been raised in a number of cases. See NTSB Order No. EM~ 186 

(WRIGHT); Appeal Decision Nos. 2632 (WHITE); 2626 (DRESSER); 2555 

(LA VALLAIS); 2529 (WILLIAMS); 2527 (GEORGE); 2526 (WILCOX); 2476 (BLAKE). 

Recently in Appeal Decision 2626 (DRESSER) (2001) the Vice Commandant held: 

The Appellant produced no evidence that he was cured. The only 

sanction authorized by Congress is revocation of Appellant's 

license and document. 46 U.S.C. § 7704(c). The sanction is 

remedial in nature and reasonably related to the purpose of 

maintaining standards for competence and conduct essential to the 

promotion of safety as sea. 46 C.P.R. § 5.5. 

(Appeal Decision 2626 (DRESSER) at p. 19). 

The Complaint here was brought under 46 U.S.C. § 7704(c) and involves "Use or Addiction 

to the Use of Dangerous Drugs." The DRESSER decision and the cases cited above are the 

controlling precedents. Accordingly, unless the Respondent has shown that he is cured of his 

use of marijuana, his license must be revoked. 

18 
The evidence submitted by the Respondent on this issue includes the affidavit of John E. 

Bennett, Respondent's Attorney, asserting that William Bennett successfully completed a 

program of rehabilitation and has been certified by his SAP as " ... ready for drug re-testing 

to return to safety-sensitive duties." (Exhibits B and E). Also, a letter dated February 5, 

2002 from Dennis Asselin, Outpatient Clinician, and Leslie J. Linder, Outpatient Director, 

ADCARE Outpatient Services, to Attorney Bennett notifying him that the Respondent began 

substance abuse treatment at ACDARE on January 28, 2002, was submitted. (Exhibit C). 

The letter indicates that the program consists of six weekly group meetings and at least three 

individual sessions. Two "urine tox screens" were to be administered. (Exhibit C). Another 

letter from the same individuals, dated April 11, 2002, stated that William Bennett completed 

treatment at ADCARE and that "[i]t is likely at this time that he will be able to remain drug 

free." (Exhibit D). Finally, in a letter dated Apri117, 2002 to LT Kallen, Jason Nirenberg, 

LICSW, SAP at Substance Abuse Assessment Services, New Bedford, MA, stated that 

William Bennett: 

... has completed a certified treatment program for substance abuse. Please note 

that Mr. William Bennett will be required to have a follow-up testing program. 

He has met the SAP requirement and is ready for drug retesting to return to safety 

sensitive duties. 

(Exhibit E). 

A Substance Abuse Assessment Report is attached to the letter indicating that Mr. Bennett is 

fit to return to duty with the following comment: 

Mr. Bennett has completed a certified treatment program for 

substance abuse. He will be required to have 6 follow-up tests 

over the next 12 months. These follow-up tests will be 

independent of any random testing program. 

19 
Turning now to the SWEENEY requirements for cure, it is clear that Mr. Bennett has not 

met those standards. First, he has not been certified by the Medical Review Officer (Dr. 

Green) as drug free and that his risk of subsequent use is sufficiently low to justify his return 

to work. No such determination has been made by Dr. Green. Second, even if the 

Respondent completed a bonafide drug rehabilitation program by a qualified agency, he has 

not "demonstrated a complete non-association with drugs for a minimum period of one year 

following successful completion of the rehabilitation program." (SWEENEY). The 

ADCARE program was completed on Aprilll, 2002. The hearing in this case was 

conducted two weeks later on Apri125, 2002. It could not have been shown that Mr. Bennett 

has been drug-free for one year following completion of the ADCARE program. There is no 

evidence of an active drug abuse monitoring program which incorporates random, 

unannounced tests over the one year period. Accordingly, he cannot be considered "cured" 

within the meaning of 46 U.S.C. § 7704(c) and (SWEENEY) infra. His license and 

merchant mariner's document must be revoked. 

VII. 

ORDER 

For all ofthe foregoing reasons, IT IS ORDERED THAT license number 788197 and 

merchant mariner's document number 029466842 are hereby REVOKED. 

Done and Dated on August 22, 2002 at 

Norfolk, Virginia 

~a:JL:H;;td PETER A. FITZPATRI;[p~"' Administrative Law Judge 

United States Coast Guard 

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