UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

_______________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

Barry James Trahan 

Respondent. 

______________________________ Docket Number: CG S&R 05-0407 

CG Case No. 2426264

 

DECISION AND ORDER

Issued: November 22, 2005 

Issued by: Walter J. Brudzinski, Administrative Law Judge

Appearances:

CWO Jason A. Boyer, USCG 

 LT Elizabeth Dominy, USCG 

Marine Safety Office Morgan City, Louisiana 

For the Coast Guard

Barry J. Trahan 

 In Proper Person 

For the Respondent 
PRELIMINARY STATEMENT

This matter came to be heard by Complaint filed on July 14, 2005 by the United States Coast 

Guard (“Coast Guard” or “CG”) against the Coast Guard issued License held by Barry James 

Trahan (“Respondent”), in the discharge of its duty to promote safety of life and property at sea. 

See 46 U.S.C. 7701(a). The Coast Guard initiated this administrative action under the authority 

of 46 U.S.C. 7703 and its underlying regulations at 46 CFR Part 5. These proceedings are further 

governed by the Administrative Procedure Act, 5 U.S.C. 551, et seq. and 33 CFR Part 20. 

The Coast Guard Chief Administrative Law Judge assigned this case originally to Judge Jeffie J. 

Massey of New Orleans on July 18, 2005. Due to the disruptions caused by Hurricane Katrina, 

this matter was reassigned to the undersigned on September 13, 2005 and set for hearing on 

October 18, 2005 at Marine Safety Office Morgan City, Louisiana. 

The Coast Guard alleges that Respondent engaged in Misconduct in that 1) on 20 June 2005, he 

was requested by North Bank Towing to submit to a Random Drug Screen; and 2) a urine 

specimen was not collected. Respondent refused to submit a sample. The Coast Guard proposed 

Revocation in accordance with 46 U.S.C. 7703. 

Respondent submitted a timely Answer to the Complaint admitting all jurisdictional allegations

but denying that he refused a drug screen. He did not allege an affirmative defense but expressed 

his desire to be heard on the proposed order. 

Investigating Officers CWO Jason A. Boyer, USCG and LT Elizabeth Dominy, USCG 

represented the Coast Guard at the hearing. Respondent appeared without professional 

representation. The Coast Guard presented three witnesses and introduced 11 exhibits. The 

Respondent testified on his own behalf and introduced 2 exhibits. The undersigned made a copy 

of Respondent’s license part of the record as an ALJ exhibit. 

At the hearing’s close, the Coast Guard requested the opportunity to prepare proposed findings 

of fact and conclusions of law as well as argument. Respondent made no decision to submit 

proposed findings but was instructed to advise the undersigned if he chose to do so. On 

November 14, 2005, the Coast Guard submitted its proposed findings. Respondent has not 

advised the undersigned whether he intends to submit proposed findings or a post hearing brief. 

Therefore, this matter is now ripe for decision. 

Law

The applicable portion of Title 46 United States Code, Section 7703 reads as follows: 

A license, certificate of registry, or merchant mariner’s document issued by the 

Secretary may be suspended or revoked if the holder— 

(1) when acting under the authority of that license, certificate, or document— 

(A) has violated or fails to comply with this subtitle, a regulation prescribed 

under this subtitle, or any other law or regulation intended to promote marine 

safety or to protect navigable waters; or 

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(B) has committed an act of misconduct (emphasis added) or negligence.... 

The Coast Guard defines misconduct in Title 46, Code of Federal Regulations, Section 

5.27 as follows: 

Misconduct is human behavior which violates some formal, duly established 

rule. Such rules are found in, among other places, statues, regulations, the 

common law, the general maritime law, a ship’s regulation or order, or

shipping articles and similar sources. It is an act which is forbidden or a 

failure to do that which is required. 

Burden of Proof and Standard of Proof 

Coast Guard procedural regulations at 33 Code of Federal Regulations (CFR) section 

20.702 provides that “...the Coast Guard bears the burden of proof.” 46 CFR 20.701 

provides that “[t]he party that bears the burden of proof shall prove his or her case or 

affirmative defense by a preponderance of the evidence.” Simply put, “preponderance” 

means “more likely than not.” See Steadman v. S.E.C., 450 U.S. 91, 101, 101 S. Ct 

999, 67 L.Ed.2d 69 (1981); 5 U.S.C. 556(d). 

To prevail in the administrative hearing, the Coast Guard must prove it was more likely 

than not that Respondent was a holder of a valid Coast Guard license, certificate, or 

document and was acting under the authority of that license, certificate, or document. 

Further, the Coast Guard must prove that it was more likely than not Respondent’s 

employer or the Coast Guard had established some formal rule, i.e., random chemical 

testing procedure for dangerous drugs; that Respondent was subject to the formally 

established testing procedure; and, that Respondent failed to do what was required of 

him (submit to a random drug screen) or did that which was forbidden (refused to 

submit to a random drug screen). 

To determine whether the Coast Guard has met it burden of proof, it is necessary to find 

facts by the preponderance of the evidence, that are probative on the elements recited 

above. 

FINDINGS OF FACT

I find that the following facts are supported by the preponderance of the evidence: 

1. Respondent, Barry James Trahan is a holder of a Coast Guard License, serial number 1045379 

certifying him as Master of Steam or Motor Vessels not more than 200 gross registered tons 

domestic but not more than 500 gross tons upon near coastal waters. The license expires on 

October 31, 2008 and is the third issue. (Tr. at 7, 8; ALJ-1). 

2. Respondent had been employed by North Bank Towing Corporation of Berwick, Louisiana for 

approximately four years and on June 20, 2005 was operating under the authority of that license 

as Master of the Motor Vessel THAD A, an uninspected towing vessel owned by North Bank 

Towing Corporation. Company policy as well as Coast Guard regulations requires the master and 

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mate of uninspected towing vessels to be licensed. (Tr. at 16, 17, 29, 64; Investigating Officer 

[IO] Exhibit 1; 46 CFR 15.610). 

3. Marine employers are required to have chemical testing programs for dangerous drugs on a 

random basis for crewmembers on uninspected vessels that are required by law or regulations to 

hold a Coast Guard license. (Tr. at 20; IO Exhibit 1; 46 CFR 16.230(b) (1). 

4. North Bank Towing is a marine employer. (Tr. at 19, 20; IO Exhibit 1). 

5. As a marine employer, North Bank Towing Corporation had its drug and alcohol policy and 

chemical testing program for dangerous drugs in place on June 20, 2005. (Tr. at 16, 18-21, 22; 

IO Exhibit 2; 46 CFR Subpart 4.06). 

6. Respondent was familiar with North Bank Towing Corporation’s chemical testing program for 

dangerous drugs and understood that compliance with his employer’s drug policy was a 

condition of employment. (IO Exhibit 2). 

7. Thomas Galloway, the Human Resources Director for North Bank Towing Corporation, 

administered the company’s chemical testing program for dangerous drugs on June 20, 2005. 

The company retained Multi Management Services Incorporated (MMSI) of Gray, Louisiana to 

conduct its alcohol and chemical testing program for dangerous drugs. (Tr. at 15, 17, 18, and 27). 

8. On June 20, 2005, North Bank Towing Corporation owned three uninspected towing vessels: 

MR. EDDIE, MISS PATRICIA, and the THAD A. The vessels’ primary work was coastwise 

towing. (Tr. 19, 20). 

9. On June 20, 2005, two uninspected towing vessels, the MR. EDDIE and MISS PATRICIA, 

owned by North Bank Towing Corporation, were involved in an incident en route from Houma, 

Louisiana to Morgan City, Louisiana. (Tr. at 17). 

10. Upon MR. EDDIE ‘s and MISS PATRICIA’s arrival at North Bank’s docks, Mr. Galloway 

scheduled a post-incident chemical test for evidence of drug and alcohol use for personnel 

attached to those vessels. The THAD A., together with Respondent and his crew, was at North 

Bank Towing’s docks. (Tr. at 17, 20; IO Exhibit 1; 46 CFR 16.240 and 4.06-10). 

11. Because Multi Management Services Incorporated (MMSI) drug screen personnel would 

already be at the North Bank Towing Corporation’s docks, Mr. Galloway also decided to 

schedule a quarterly, random chemical test for dangerous drugs for personnel on the THAD A. 

because the THAD A. was on MMSI’s list for quarterly testing. Further, it was an opportunity 

for North Bank Towing to avoid duplicate costs. (Tr. at 17, 18, 27; IO Exhibit 1; 46 CFR 

16.230). 

12. Certified alcohol and chemical drug testing technicians Dallas O’Quinn and Dustin Dufrene 

of MMSI told the North Bank Towing Corporation’s gate guard that no one would be allowed to 

leave the premises because drug testing was being conducted and that he (gate guard) was to log 

anyone who left the dock without paperwork indicating drug screen completion. (Tr. at 18; IO 

Exhibits 3, 4, 5, 6, and 10). 

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13. There was no advance notice of the drug test. Authorized North Bank Towing personnel 

instructed MMSI drug screen personnel which boats to go to and in what order. MMSI personnel 

were also instructed to collect personnel onboard these boats and then proceed with those 

personnel to a maintenance trailer on the premises to collect the samples. Approximately 12 

personnel from the three vessels accompanied MMSI personnel to the trailer, including 

Respondent. (Tr. at 18, 19, 20, 25, 33; IO Exhibit 6). 

14. As the test collection process was starting, Respondent called Mr. Galloway telling him that 

he had to leave the premises immediately because he had an emergency dentist appointment at 

11:30. (Tr. at 20, 21, 35, 56, 68, 69). 

15. Mr. Galloway told Respondent that he (Respondent) had never told him (Mr. Galloway) 

prior to that time that he had an appointment. Mr. Galloway told Respondent that the drug screen 

was part of the job and that he could go to the dentist after he had provided a sample and finished 

the drug screen. Further, Mr. Galloway told Respondent that leaving would be considered a 

refusal. In addition, (Tr. at 20, 21, 35, 56, 68, 69). 

16. Respondent departed the testing trailer and North Bank Towing Corporation’s property 

without permission. As he was leaving, the gate guard told him that if he left without taking the 

drug screen “he would get a refusal.” Mr. Trahan responded that he would be back later to 

collect his belongings and then departed without permission. (Tr. at 41, 62; IO Exhibits 6, 7, and 

8). 

17. North Bank Towing Corporation policy is that no one is allowed to leave the facility without 

clearance from the operations manager on duty for that day or the Human Resources Director. 

(Tr. at 58). 

18. Of the 12 mariners tested, two refused to test, including Respondent. There were also three 

positive test results. Of Respondent’s crew on the THAD A, Steven Parfait tested positive for 

cocaine and alcohol. On the MR. EDDIE, the Master, Ricky Hammonds, tested positive for 

marijuana and alcohol and Scott Robicheaux refused to take the test. Another mariner, Timothy 

Peeples, tested positive for marijuana. (Tr. at 19, 20; IO 1). 

19. MMSI specimen collectors expressed that the results were “pretty high” and Mr. Galloway 

expressed that the results were “quite disappointing.” (Tr. at 20, 45, 50). 

 

20. As a licensed mariner for twelve years, Respondent was not only well aware of the Coast 

Guard rules and regulations regarding drug testing but also he was trained as a supervisor in his 

employer’s drug and alcohol policy so that he could explain it to his crew members. As a 

supervisor he was also certified on how to observe personnel exhibiting problematic behavior so 

that he could document reasonable cause suspicion for testing. (Tr. at 22, 71; IO Exhibits 2 and 

3). 

21. Dustin Dufrene, a certified collector, completed and signed the alcohol refusal form and the 

drug screen refusal form signifying that Respondent did not submit to the screens. (IO Exhibits 

7 and 8). 

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22. Respondent had not previously refused to submit to a drug screen. (Tr. at 56). 

23. Respondent called Mr. Galloway after he was finished at the dentist and asked if he could 

take the drug screen. Mr. Galloway told him that the drug screening procedure was over with. 

Respondent called Mr. Galloway the following day and offered to take a drug screen. (Tr. at 30, 

31, 53, 62; Respondent’s. Exhibits A and B). 

24. Had Respondent advised Mr. Galloway shortly after MMSI personnel arrived that he had an 

emergency dental appointment, he could have gone to the head of the line so he could get out of 

there quickly and get to his dentist appointment. (Tr. at 35, 36). 

25. Respondent previously tested positive for cocaine as a result of a random chemical test for 

dangerous drugs in 1996. Respondent entered into a Settlement Agreement pursuant to Appeal

Decision 2535 (SWEENEY) (1991). He completed rehabilitation and provided proof of cure, 

whereupon his license was returned to him. (Tr. at 72, 73; IO Exhibit 11). 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. The Respondent and the subject matter of this hearing are within the jurisdiction vested in the 

Coast Guard under 46 U.S.C. 7703. 

2. To perform his duties as Master of an uninspected towing vessel, 46 CFR 15.610(a) required 

Respondent to have a Coast Guard license. 

3. Respondent was operating under the authority of his license on June 20, 2005 at the time he 

was directed to submit to the random chemical test for dangerous drugs. 

4. Pursuant to the requirements of 46 CFR 16.230(b) (1), North Bank Towing had a chemical 

testing program for dangerous drugs on a random basis. 

5. Respondent was aware of Coast Guard regulations and his employer’s policy regarding 

random chemical testing for dangerous drugs. 

6. Pursuant to regulation and company policy, Respondent was directed to submit to a random

chemical test for dangerous drugs on June 20, 2005. 

7. On June 20, 2005, Respondent departed the collection trailer and North Bank Towing 

Corporation property without submitting to the random chemical test for dangerous drugs and 

without permission. 

8. Under company policy and 49 CFR 40.191(a) (2), departing the premises without permission 

or failing to remain at the testing cite constitutes a refusal to submit to a random chemical test for 

dangerous drugs. 

9. Misconduct is human behavior which violates some formal, duly established rule. Such rules 

are found in, among other places, statues, regulations, the common law, the general maritime

6
law, a ship’s regulation or order, or shipping articles and similar sources. It is an act which is 

forbidden or a failure to do that which is required. 

9. The establishment of North Bank Towing Corporation’s chemical testing program for 

dangerous drugs on a random basis for crewmembers on uninspected vessels who are required by 

law or regulation to hold a Coast Guard license is a formal, duly established rule pursuant to 46 

CFR 16.230(b)(1). 

10. A refusal to submit to a random chemical test for dangerous drugs ordered pursuant to that 

formal, duly established rule constitutes is an act which is forbidden or a failure to do that which 

is required 

11. In accordance with 46 CFR 16.230(d), marine employers may form or otherwise use 

sponsoring organizations, or may use contractors, to conduct the required random chemical 

testing programs. 

12. Respondent’s refusal to submit to a random chemical test for dangerous drugs ordered 

pursuant to that formal, duly established rule constitutes Misconduct under 46 CFR 5.27. 

Therefore, by the preponderance of reliable, probative and substantial evidence, I find the 

Misconduct charge proved. 

DISCUSSION

Respondent is charged with refusal under 46 U.S.C. 7703 and 46 CFR 5.27. Under 46 U.S.C. 

7703(1), the Coast Guard must prove that Respondent had a validly issued Coast Guard license, 

certificate, or document and was acting under the authority of that license, certificate, or 

document. The evidence shows that on June 20, 2005, Respondent was a holder of a validly 

issued Coast Guard license. As Master of the THAD A, an uninspected towing vessel, 

Respondent was required to have a license. On June 20, 2005, Respondent was on the THAD A 

in the capacity of Master. Therefore, he was acting under the authority of his license, certificate, 

or document at the time of the offense. 

Under subparagraph (B) of section 7703, the Coast Guard must prove that the Respondent 

committed an act of Misconduct. As noted above, “Misconduct is human behavior which 

violates some formal, duly established rule. . . .” It is clear from the testimony, exhibits, and the 

regulations that North Bank Towing Corporation was required to have a chemical testing 

program for dangerous drugs. The establishment of the testing program requiring compliance is a 

formal, duly established rule. As Master of an uninspected towing vessel, Respondent was 

subject to that formal, duly established rule. By refusing to submit to a random drug screen, 

Respondent failed to do that which was required and actually did that which was forbidden. 

Respondent introduced two exhibits. Exhibit A is an undated, typewritten “To whom it may 

concern” letter with Dr. Edmund M. Ring, D.D.S. and an address typed at the top. The letter 

states that Respondent had tooth #19 extracted on June 13, 2005 and then returned on June 20, 

2005. Exhibit B is a pre-printed, filled out form entitled “Excuse Slip” with Dr. Ring’s name and 

address printed on it. Respondent’s name, the date, June 20, 2005, and the appointment time, 

7
11:30, are handwritten in the appropriate blank spaces. The “Excuse Slip” states that Respondent 

had an appointment on that date at the time indicated. 

In weighing the evidence to determine whether Respondent refused to submit to a random

chemical test for dangerous drugs, I accord these exhibits little weight. Even if they are true and 

correct and Respondent did, in fact, have an emergency dentist appointment, it did not relieve 

Respondent from the requirement to comply with the random chemical. Mr. Galloway told 

Respondent that once he submitted his sample, he could go to his dental appointment. The Coast 

Guard’s random chemical testing program for dangerous drugs would be severely compromised 

if mariners were free to opt out of random tests due to last minute notifications of dental 

appointments. However, accommodations can be made. Had Respondent notified Mr. Galloway 

as soon as MMSI technicians arrived, he would have been able to go to the head of the line, 

submit his sample, and then proceed to the dentist’s office. Instead, Respondent chose to leave 

the premises knowing the consequences. I find Mr. Galloway’s refusal to allow Respondent to 

depart the premises prior to submitting a sample was in accordance with his company’s drug 

policy and reasonable under the circumstances. Therefore, I find the charge that Respondent 

refused to submit to a random drug screen proved. 

SANCTION

While 46 U.S.C. Section provides that a merchant mariner’s license, certificate of registry, or 

document may be revoked or suspended, Coast Guard regulations at 46 CFR 5.569 provide a 

suggested range from 12 to 24 months for refusal to take a chemical drug test. Therefore, it is 

necessary to decide whether Respondent’s license should be suspended or whether aggravating 

factors exist that would justify an upward departure from 12 – 24 months to revocation. In its 

post hearing brief, the Coast Guard argues that the appropriate sanction is revocation. 

Coast Guard’s Argument

In support of its position, the Coast Guard refers to Appeal Decision 2587 (CALLAHAN)

(1996). In CALLAHAN, the Respondent was charged with 1) wrongfully refusing to provide a 

specimen for a post incident drug test; 2) failure to obey an order of the Master regarding the 

navigation of the vessel; and 3) departing the vessel without being relieved. 

The Commandant in CALLAHAN held that the ALJ’s decision to revoke Callahan’s license for 

refusal to test was not excessive. In the instant case, the Coast Guard’s brief focused on the 

language in CALLAHAN addressing the appropriateness of revocation for refusing a chemical 

drug test. Specifically, “[r]efusal to submit to a post incident chemical test raises a serious doubt 

about a mariner’s ability to perform safely and competently in the future.” The Coast Guard 

argues that although CALLAHAN deals with a post incident test, the doubts about a mariner’s 

ability to perform safely and competently in the future logically applies to refusal of any drug 

test. The Coast Guard alludes to the next sentence in CALLAHAN which reads, “[f]urthermore, 

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.” 

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The Coast Guard goes on to cite Appeal Decision 2624 (DOWNS) (2001). In DOWNS, the 

Respondent’s employer told Downs to take a reasonable cause drug test the morning after an 

arrest for DUI led police to discover a crack pipe on his person. When the Respondent failed to 

call in or to take the test, he was charged by the Coast Guard for refusing the test. In response to 

Downs’ argument that revocation was unduly harsh given a record of no prior disciplinary action 

in a thirty year career, the Commandant said, 

An Administrative Law Judge has wide discretion to formulate an order 

adequate to deter the Appellant’s repetition of the violations he was found to 

have committed. (Citations omitted).

Although CALLAHAN and DOWNS concern a post incident and reasonable cause test 

while the instant case deals with refusing a random test, the Coast Guard argues that

there is no logical difference and that all chemical drug tests are equally important in 

ensuring maritime safety. See generally, Appeal Decision JONES (2003) (Revocation 

for refusing a random drug test upheld). Therefore, the Coast Guard avers, refusing post 

incident, reasonable cause, or random drug tests should carry the same sanction – 

revocation. 

Recent NTBS Ruling on Sanctions for Drug Test Refusals

The Coast Guard’s excellent discussion of Appeal Decisions 2578 (CALLAHAN) (1996), 2624 

(DOWNS) (2001), and 2624 (JONES) (2003) is not only persuasive but it also provides helpful 

guidance when considering revocation as an appropriate sanction for random drug test refusal 

cases. However, recent case law from the National Transportation Safety Board requires that the 

Administrative Law Judge consider additional factors. 

In Commandant v. Michael S. Moore, NTSB Order No. EM-201 (2005), the Administrative 

Law Judge (ALJ) revoked Respondent’s license upon finding the “refusal to take a chemical 

drug test” charge proved. In his Decision and Order, the ALJ referred to 46 CFR 5.569 – Table 

of Suggested Range of Appropriate Orders, and noted that the suggested range for refusal to take 

a chemical drug test was suspension from12 to 24 months. He went on to say that he is not bound 

by that Table and may exceed the suggested range or impose a sanction less severe when 

aggravating or mitigating factors are present. The ALJ imposed revocation holding that DOWNS

and CALLAHAN are authority for the proposition that ALJs have discretion to formulate an 

appropriate order to deter mariners from repeating a violation. 

On appeal, the Vice Commandant upheld the ALJ’s decision stating that the required chemical 

testing regulations are preventative in nature to reduce the use of intoxicants and provide a drugfree, safe work environment for mariners. He referred to the Table in 46 CFR 5.569 and held that 

“[t]he authority to impose sanctions at the conclusion of a case is exclusive to the ALJ. Appeal 

Decision 2362 (ARNOLD), 4. The purpose of the Table is to provide guidance to the ALJ and 

promote uniformity in orders rendered. Appeal Decision 2628 (VILAS), 13. However, the ALJ is 

not bound by the Table and may exceed the suggested range or impose a sanction less severe 

when aggravating or mitigating factors are present. Id.” Appeal Decision 2652 (MOORE)

(2005). 

9
On appeal, the National Transportation Safety Board specifically addressed 46 CFR Table 5.569. 

The Board found that 

“neither the law judge nor the Vice Commandant articulated any aggravating 

factors that would justify going beyond the sanction range listed in the Coast 

Guard’s regulatory guidance. [46 CFR Table 5.569] While they both cited two 

prior cases in which revocation was imposed for refusal to submit to a drug 

test, they did not explain why the instant case warranted a sanction beyond the 

range given in the sanction table. Rather, both decisions merely cited the 

language in the rule permitting departure from the sanction range in the event 

aggravating factors are present without describing what those factors were in 

this case. The law judge included in his sanction discussion a recitation of the 

facts that led him to find that appellant had failed to comply with the ordered 

drug test, but made no finding that any of them constituted aggravating factors. 

The Vice Commandant cited the law judge’s reasoning on the sanction issue, 

and concluded (at p. 15 of his decision) by stating: ‘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 ALJ did not err in 

assessing a sanction of revocation in this case.’ This statement essentially 

constitutes a policy of automatically supporting revocation in every case when 

a mariner has refused to submit to a random drug test. Such a policy, while 

perhaps a sensible one, is in conflict with the Coast Guard’s articulation of a 

12-24 month suspension as the ‘appropriate’ sanction, absent mitigating or

aggravating factors. 

Moore, NTSB Order No. EM-201 (2005) at 5, 6. 

The NTSB concluded by stating that “unless and until the Coast Guard changes its regulation, we 

will not uphold an upward departure from the policy currently embodied in the Coast Guard’s 

regulation without a clearly articulated explanation of aggravating factors.” Therefore, the Board 

modified Moore’s sanction from revocation to 24 months suspension. 

Aggravating Factors

In further support of its argument for revocation, the Coast Guard listed two factors in 

aggravation: 1) Respondent previously tested positive for cocaine in 1996; and 2) one of 

Respondent’s crewmen onboard the THAD A, Steven Parfait, tested positive for cocaine and 

alcohol on June 20, 2005. In addition to the above aggravating factors, there is another 

aggravating factor: Of the twelve (12) crewmen selected for testing from the three uninspected 

towing vessels, two refused to test and three others tested positive, one for marijuana, one for 

marijuana and alcohol, and one for cocaine and alcohol. A “clearly articulated explanation of 

aggravating factors” follows: 

1. The prior positive test for cocaine. Concerning Respondent’s prior positive test for cocaine 

and his subsequent rehabilitation, it is reasonable to infer that one who has previously gone 

10
through cure, and was actually cured, would have a heightened sense of awareness to avoid even 

the appearance of association with dangerous drugs. Refusing a random chemical drug test is 

conduct inconsistent with one who is trying to avoid such an appearance. Further, it raises even 

more doubt about the mariner’s ability to perform safely and competently in the future, 

especially since Respondent is Master of an uninspected towing vessel. The safety of the vessel 

and his crew depend on his judgment. Therefore, this aggravating factor is accorded great weight 

in consideration of an upward departure fashioning an appropriate sanction. 

2. One of Respondent’s crewman tested positive for cocaine and alcohol. This factor is as close 

to Respondent as his own refusal. Respondent was not only well aware of Coast Guard 

regulations and his employer’s policy regarding drug testing but he was also trained in his 

employer’s drug and alcohol policy so that he could explain the policy to his crew members. As 

a supervisor, he was also certified on how to observe personnel exhibiting problematic behavior 

so that he could document reasonable cause suspicion for testing. 

Respondent’s crew consisted of 4 mariners including Respondent. It can reasonably be inferred 

that Respondent would have contact with each crewman on a daily basis and would be in the best

position to observe and evaluate their behavior and make appropriate judgments. Therefore, 

doubts about Respondent’s ability to perform safely in the future are evidenced not only by his 

failure to adhere to his company’s substance abuse policy but also to enforce same on his crew. 

3. Of the twelve (12) crewmen selected for testing, two refused to test and three others tested 

positive. That is high by any standard, especially in an industry where all employees are aware 

that they are subject to chemical testing for dangerous drugs and are also aware of the 

consequences for noncompliance. The MMSI drug testing technicians even remarked that the 

results were “pretty high.” With over 40% of the company’s boat crews refusing to test or 

testing positive, Respondent’s actions reflect that he is part of the problem instead taking action 

as a supervisor to be part of the solution. 

According great weight to the above aggravating factors I find that revocation is the appropriate 

sanction. 

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ORDER

IT IS HEREBY ORDERED that Respondent’s U.S. Merchant Mariner’s License number 

1045379 is REVOKED. Barry James Trahan shall surrender his license immediately to the 

nearest Coast Guard Marine Safety Office or to Marine Safety Office Morgan City, 800 David 

Drive, Room 232, Morgan City, Louisiana 70380. 

PLEASE TAKE NOTICE that service of this Decision on the parties and/or parties’ 

representative(s) serves as notice of appeal rights set forth in 33 CFR 20.1001 – 20.1004. 

(Attachment A). 

Done and dated November 22, 2005 

New York, NY 

________________________________________ 

WALTER J. BRUDZINSKI 

ADMINISTRATIVE LAW JUDGE 

U.S. COAST GUARD

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ATTACHMENT A

NOTICE OF APPEAL RIGHTS

33 CFR 20.1001 General. 

(a) Any party may appeal the ALJ's decision by filing a notice of appeal. The party 

shall file the notice with the U. S. Coast Guard Administrative Law Judge Docketing 

Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, 

MD 21201-4022. The party shall file the notice 30 days or less after issuance of the 

decision, and shall serve a copy of it on the other party and each interested person. 

(b) No party may appeal except on the following issues: 

(1) Whether each finding of fact is supported by substantial evidence. 

(2) Whether each conclusion of law accords with applicable law, precedent, and 

public policy. 

(3) Whether the ALJ abused his or her discretion. 

(4) The ALJ's denial of a motion for disqualification. 

(c) No interested person may appeal a summary decision except on the issue that no 

hearing was held or that in the issuance of the decision the ALJ did not consider 

evidence that that person would have presented. 

(d) The appeal must follow the procedural requirements of this subpart. 

33 CFR 20.1002 Records on appeal. 

(a) The record of the proceeding constitutes the record for decision on appeal. 

(b) If the respondent requests a copy of the transcript of the hearing as part of the record 

of proceeding, then, -- 

(1) If the hearing was recorded at Federal expense, the Coast Guard will provide 

the transcript on payment of the fees prescribed in 49 CFR 7.45; but, 

(2) If the hearing was recorded by a Federal contractor, the contractor will 

provide the transcript on the terms prescribed in 49 CFR 7.45. 

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the ALJ's decision or ruling shall file an appellate brief with the 

Commandant at the following address: U.S. Coast Guard Administrative Law Judge 

Docketing Center; Attention: Hearing Docket Clerk; Room 412; 40 S. Gay Street; 

Baltimore, MD 21201-4022, and shall serve a copy of the brief on every other party.

(1) The appellate brief must set forth the appellant's specific objections to the 

decision or ruling. The brief must set forth, in detail, the -- 

13
(i) Basis for the appeal; 

(ii) Reasons supporting the appeal; and 

(iii) Relief requested in the appeal. 

(2) When the appellant relies on material contained in the record, the appellate 

brief must specifically refer to the pertinent parts of the record. 

(3) The appellate brief must reach the Docketing Center 60 days or less after 

service of the ALJ's decision. Unless filed within this time, or within another 

time period authorized in writing by the Docketing Center, the brief will be 

untimely. 

(b) Any party may file a reply brief with the Docketing Center 35 days or less after 

service of the appellate brief. Each such party shall serve a copy on every other party. 

If the party filing the reply brief relies on evidence contained in the record for the 

appeal, that brief must specifically refer to the pertinent parts of the record. 

(c) No party may file more than one appellate brief or reply brief, unless -- 

(1) The party has petitioned the Commandant in writing; and 

(2) The Commandant has granted leave to file an added brief, in which event the 

Commandant will allow a reasonable time for the party to file that brief.

(d) The Commandant may accept an amicus curiae brief from any person in an appeal of

an ALJ's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, 

modify, or reverse the ALJ's decision or should remand the case for further 

proceedings.

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person. 

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ATTACHMENT B

WITNESS AND EXHIBIT LISTS

WITNESS LIST 

COAST GUARD’S WITNESSES

1. Thomas Galloway 

2. Dustin Dufrene 

3. Dallas O’Quinn 

RESPONDENT’S WITNESSES 

1. Barry James Trahan 

EXHIBIT LIST 

COAST GUARD’S EXHIBITS 

IO Ex 1 North Bank Towing Notification letter dated July 5, 2005 and signed by Thomas 

Galloway 1 page 

IO Ex 2 Acknowledgment and Receipt signed by Respondent, 1 page 

IO Ex 3 Certificate of Drug and Alcohol Awareness Program, 1 page 

IO Ex 4 Dustin Dufrene Certificate of Training for Breath Alcohol 

IO Ex 5 Dustin Dufrene Certificate for Specimen Collector, 1 page 

IO Ex 6 Letter from Dustin Dufrene and Dallas O’Quinn, 1 page 

IO Ex 7 Alcohol Refusal Form, 1 page 

IO Ex 8 Drug Screen Refusal Form, 1 page 

IO Ex 9 Dallas O’Quinn Substance Abuse Management Specimen Collector Certificate, 1 

page 

IO Ex 10 Dallas O’Quinn Breath Alcohol Technician Training Certificate, 1 page 

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IO Ex 11 Enforcement Summary, 1 page 

RESPONDENT’S EXHIBITS 

Resp’t Ex A To Whom It May Concern letter from Dr. Edmund M. Ring, D.D.S., 1 

page 

Resp’t Ex B Excuse Slip form bearing the printed letterhead of Drs. David and Edmund 

Ring, D.D.S, filled out in handwriting, 1 page 

JUDGE’S EXHIBITS

ALJ Ex I Copy of Respondent’s U.S. Merchant Marine Officer License #1045379, 

1 page 

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ATTACHMENT C

RULINGS ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

COAST GUARD’S PROPOSED ULTIMATE FINDINGS

1. Barry Trahan, being the holder of U.S. Coast Guard license number 1045379, did on June 20, 

2005, refuse to submit urine and breath specimens for a company directed random screen. Mr. 

Trahan not only departed the collection side, he also departed North Bank Towing’s property. 

Accepted and incorporated. 

COAST GUARD’S PROPOSED EVIDENTIARY FINDINGS 

1. On June 20, 2005, North Bank Towing coordinated with M.M.S.I. of Houma, LA to conduct 

a scheduled random drug/alcohol screen on the UTV Thad A. (I.O. Exhibit 1, North Bank 

Towing notification letter to Coast Guard.) 

Accepted and incorporated. 

2. On June 20, 2005, the Respondent was assigned to the UTV Thad A. and filled the position of

Master onboard said vessel. This position required the Respondent to possess a valid Coast 

Guard License, which he did, license #10045379. 

Accepted and incorporated. 

3. Dallas O’Quinn and Dustin Dufrene were certified M.M.S.I. collectors assigned to conduct 

the random drug/alcohol screen aboard the North Bank Towing vessel Thad A. on June 20, 2005 

(I.O. Exhibit 2, M.M.S.I. Letter). 

Accepted and incorporated with the exception that the drug and alcohol screens were conducted 

in a trailer on North Bank Towing Corporation property, not onboard the Thad A. (Finding of 

Fact 9). 

4. All crewmembers onboard the UTV Thad A. were informed by Dallas O’Quinn regarding the 

random drug/alcohol screen and were asked to proceed to the testing location. The Respondent 

immediately contacted Thomas Galloway, the Human Resources Director for North Bank 

Towing, to inform him of an emergency dental appointment. Mr. Galloway testified that he 

informed the Respondent to provide the required sample before departing for his appointment. 

Accepted and incorporated. 

5. The Respondent did not attend the testing location as ordered and did not submit a urine or 

breath sample as required by regulations to satisfy the D.O.T random testing requirement. A drug 

17
screen refusal form and alcohol form were completed and signed by Dustin Dufrene, the certified 

collector. (I.O. Exhibit 3, Alcohol Refusal Form and I.O. Exhibit 4, Drug Test Refusal Form.) 

Accepted and incorporated except that the referenced exhibit numbers were changed to IO 

Exhibits 7 and 8 respectively. (Finding of fact 18). 

RESPONDENT’S PROPOSED FINDINGS 

Respondent submitted no proposed findings of fact. 

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Certificate of Service 

I hereby certify that I have sent this Decision and Order to the following parties and entities by 

means set forth below: 

CWO Jason A. Boyer, USCG 

LT Elizabeth Dominey, USCG 

Investigating Officers 

MSO Morgan City 

800 David Drive, Room 232 

Morgan City, LA 70380 

Phone: (985) 380-5340 

Facsimile: (985) 380-5379 

(Via Facsimile) 

Barry J. Trahan 

213 Evelyn Avenue 

Houma, LA 70363 

(Via First Class Mail) 

ALJ Docketing Center 

40 S. Gay Street 

Baltimore, MD 

Phone: (410) 962-7434 

Facsimile: (410) 962-1746 

(Via Facsimile) 

Done and dated November 22, 2005 

New York, NY 

 __________________________________ 

 Regina V. Thompson 

 Paralegal Specialist, Assistant to the 

 Administrative Law Judge 

 

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