UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

v. 

JOSEPH P. EMM 

Respondent. 

Docket Nurnber CC S&R 06-0343 

CC Case No. 2712727 

DECISION AND ORDER 

- Issued: JANUARY 30'~. 2007 

Issued by: Joseph N. Ingolia 

Chief Administrative Law Judge 

Apvearances: 

For Complainant 

Lieutenant Jesse FIolston, I0 

L.ieutenant Comic L Williamson, SIO 

Master Chief Peter Hackett, I0 

For Respondent 

Joseph P. Emm, pro se 
I. PRELIIWNARY STATEMENT 

The United States Coast Guard (Toast Guard") filed a Co~ilplaint dated JLIIY 21, 2006, 

against Joseph P. Emm ("Respondent") seeking revocation of Respondent's license for use of or 

addiction to the use of dangerous drugs under 46 U.S.C. 7704(c). See also 46 CFR 5.35. The 

ALJ Docketing Center received Respondent's Answer on August 17, 2006. wherein Respondent 

denied certain factual allegations arid requested a hearing before an Administrative I.aw Judge. 

The Coast Guard brought this action pursuant to the legal authority contained in 46 U.S.C. 7704, 

and the proceedi~~gs were conducted in accordance with the procedural requirements of 5 U.S.C. 

551-59,46 Code of Federal Regulations ("CFR") Part 5, and 33 CFR Part 20. 

On October 17,2006, the Coast Guard filed a Motion seeking permission to have 

telephonic testimony at the hearing. I denied this Motion because it did not include a Certificate 

of Service indicating that the Motion had been served upon the Respondent in accordance with 

33 CFR 20.304(g)(3) and because it was ambiguous. 

On October 20,2006, the Coast Guard filed an Amended Motion regarding its Molion for 

Telephonic Testimony. The Coast Guard clarified its request and indicated that it sought an 

order accepting telephonic testiruony in this proceeding in accordance with 33 CFR 20.707(a). I 

reserved ruling on the Amended Motion until the hearing because of time considerations 

contained in 33 CFR 20.309(d). I g~anted the Amended Motion at the hearing without objection. 

TR. 4. 

On November 2. 2006 starting at 9:30 a.m.. the hearing commenced as scheduled in 

Baltimore, Maryland. Both parties appeared and presented their case. Three (3) witnesses 

testified as part of the Coast Guard's case in chief. The Coast Guard offered six (6) Exhibits into 

evidence, all of which were admitted. 
As for Respondent's case. Respondent testified on his own bel~alf and recalled Coast 

Guard witness Donica Crawford ("Ms. Crawford). Respondent offered no Exhibits for 

admission into evidence. 

At the conclusion of the hearing, I informed each party that they could file proposed 

findings of fact and conclusions of law briefs; that any such filings wo~lld be due by the close of 

business on November 16.2006; 'and that settlement discussions could continue and are 

encouraged until the Decision and Order is issued in this case. Tr. 121. On November 16,2006, 

the Coast Guard filed its post hearing brief. Respondent did not exercise his right to file such a 

brief. To date, no settlements have been reached in this case. 

11. FINDINGS OF FACT 

1. The Respondent, Joseph P. Emm, holds a Coast Guard issued Merchant Mariner's 

Document that expires on January 20. 2010. TR. 4. 

2. On March 27, 2006 the Respondent reported to the 75"' Street Medical Center ("Center") 

in Ocean City, Maryland for a random drug test screening ("Drug Test"). TR. 25,28,92. 

3. The Center is an urgent care facility, a family practice and a collection site for dntg 

testing. Tr. 14. It is not a certified collection facility. TR. 39 

4. The Center has been a collection sitefor over eleven (1 1) years, and is a collection site 

for many entities. such as the Coast Guard, the Maritime Consortium. EMS1 and several 

other insurance companies. I0 Ex. 6. 

5. Ms. Donika Crawford has worked for the Center as a urinalysis collector since April of 

2006. She has successfully completed training as a collector for the Center. Tr. 14. 15. 

Ms Crawford is not a certified urinalysis collector. TR. 35. 
6. The Center trains all clinical slaff members in the collectio~i of urine drug screens and 

follows guidelines approved by the Department of Transporlatio~~ ("DOT"). TR. 19, 38; 

10 Ex. 6. 

7. In administering the Drug Test of the Respolident on March 27, 2006, the collector, Ms. 

Crawford, used the federal Custody and Control Form bearing identification number 

200967537890093, and the Social Security number of the Respondent. Before beginning 

die Drug Test, she properly identified the Respotidellt and signed copy 1 of the Custody 

and Control Fo~m. TR 27, 28; 10 Ex 5, page 9. 

8. In administering the Drug Test, the collector followed the fourth step set So~?h in the 

Ce~~ter's lit of procedures. 10 Ex 1. She had the Respondent sign and/or initial the 

"paper work." It included the necessary initials andlor signatures lhat were placed on the 

test strips and seals that were placed on the Respondent's wine specimens as well the 

signing of the federal Control alid Custody Form. TR. 15. 16, 19, 51: 10 Ex 2. 

9. In accordance with the Center's procedures, the labels and seals were placed on the 

bottles containing the urine samples by the collector in the presence of the Respondent. 

TR 16, 109, 110; I0 Ex 1, Step 8. In addition, the specimen container and the lab copy of 

the Custody and Control Form were,placed in the specimen bag and sealed in the 

presence of the Respondent. TR 16,55.56; 10 Ex 1, steps 7. 8 and 9. 

10. The Responde~it signed a federal Custody and Control Form during the Dnig Test (hat 

rcads at step 6: 

I cerltfj tfhtrt I provided nty ltrinc specilnen to thc collector; that 1 huve rzot 

ndr~lternted it in o15\: mrmnel; each sprcimetl bottle 11seri i.tlus sealed ~i:ith n 
tnnlper-evfdenr SCLI~ ill prese~ice; (11id ~IICII the ir$orrrtntiorc oti tfris,fi>r~ti nrid the 

lube1 c(fi.~ed to eoch specirne~r bottle is correcf. 

TR. 100, 101; I0 Ex 2(empIiasis added). 

I I. The Center subsequently sent the specimen purported to be the Respondent's to Quest 

Diagnostics for testing. Quest Diagnostics assumed cuslody of the specimen. 10 Ex. 2. 

Quest Diagnostics is a duly certified testing laboratory. TR. 64. 

12. Rudolph Jagdharry ("Mr. Jagdharry"), the certifying scientist at Quest Diagnostics, 

verified that the identification number on thc Custody and Control form matched the 

number on the specimen container. TR. 67. 

13. Respondent's specimen testedpositive for cocaine metabolites. TR. 7 1,72; 10 Ex. 2,3. 

14. The cut-off level for a positive screening test for cocaine is 300 nanograms per millililer. 

The test given the Respondent produced a level of 6.944 nanograms per milliliter. TR. 

73. 

15. Dr. James Vanderploeg ("Dr. Vanderploeg"), the Medical Review Officer ("MRO), 

reviewed and verified that Respondent's purpoaed sample screened positive for cocaine 

metabolites. TR. 80. 

16. Only cocaine itself could produce test results consistent with Respondent's purported 

sample's test resu1t.s. TR. 73. 

17. The Respondent operates a water sports (para-sail) business and a tour charter boat 

named the Discovery that carries Seventy-Five (75) passengers. TR. 11. 

18. The Respondent has held a Coast Guard document for almost twenty (20) years. During 

that period, he has undergone fourteen (14) random drug tests. none of which tested 

positive. TR. 9, 10, l I. 
111. U1,TIMATE FlNDINGS OF FACT AND CONCLUSIONS OF LAW' 

1. The Respondent holds a Coast Guard issued mercl~ant mariner's doculnent that expires 

on January 10,2010. FF 1. 

2. On March 27,2006, Respondent reported to the testing Center for a random Drug Test. 

In administering the Dnlg Test the collcctor followed the Center's procedures which. in 

turn, follow the guidelines set forth for drug testing by the Department of Transportation 

in 49 CFR, Part 40 and 46 CFR 5.35. FF 6, 8.9. 

3. The Respondent's Dtug Test tested positive for cocaine. It indicated he registered a 

measurement that far exceeded the cut-off level for cocaine use. FF 14. 

4. The positive Drug Test creates a presumption that the Respondent is a drug user within 

the meaning of 46 CFR 16.21(b), which: on the basis of the record, he has failed to rebut. 

He has also failed to rebut the Coast Guard's prima facie case. 

5. The Respondent's use of drugs violates the provisions of 46 USC 7704 (c) which requires 

that his merchant mariner's document and any other Coast Guard documents he may hold 

be revoked. 

1V. DISCUSSION 

This Suspension ,and Revocation proceeding is remedial and not penal in nature. It is 

"intended to help maintain the standards of competence and coniluct essential to the promotion 

of safety at sea." 46 CFR 5.5. The Commandant of the U.S. Coast Guard has delegated to 

Administrative Law Judges the authority to suspend or revoke a license, certificate. or merchant 

mariner's docunient for violations arising under 46 U.S.C. 7703 and 7704. -46 CFR 5.35. 

Here, the Coast Guard charged Respondent under 46 U.S.C. 7704(c) and 16 CFR 5.35 alleging 

the use of dangero~is cln~gs. In accordance with the law and regulations it mmst seek revocation 
/':'. <.I.. .( 

i... .,., ! I. 

. ., 

of the merchant mariner's document. Fi~mlly, it is noted that this psoceeding is conducted in 

accordance wiih the procedures set out in the Adminisiralive Procedures Act, at 5 USC 55 1. g 

m, and with the provisio~is contained in 33 CFR, Parts 20 and 46 CFR, Part 5. 

A. Burden of Proof arid Presumptioli 

The Coast Guard has the burden of proving the allegations of the Complaint by a 

preponderance of the evidence. Appeal Decision Nos. 2468 (LEWIN); 2477 (TOMBARI); 

Dent. of Labor v. Greenwich Colleries, 512 U.S. 267 (1994); Steadman v. SEC, 450 U.S. 91, 

101-3 (1981). To prevail under this stan&ard, the Coast Guard must establish that it is more 

likely than not that the Respondent committed the violations alleged in the Complaint. 33 CFR 

20.701-702(a). To satisfy the burden of proof, the Coast Guard may rely on direct andor 

circumstantial evidence. generally, Monsanto Co. v. Sprav-Rite Serv. Corp., 465 U.S. 752, 

764-765 (1984). 

In Coast Guard cases brought under 46 CFR 5.35, if the Coast Guard initially establishes 

the required elements by a preponderance of the evidence, it has made a prima facie case and the 

burden of prool of going forward shifts to the Respondent. To establish a prima facie case, the 

Coast Guard must show that (I) the Respondent was tested for a dangerous dn~g, (2) the 

Respondent tested positive for a dangerous drug, and (3) the test was conducted in accordance 

with 49CFR, Pnrt 40. Appeal Decisions Nos. 2584 (SHAKESPEARE). 2379 (DRUM), 2589 

(MEYER), 2592 (MASON), 2603 (HACKSTAFF), 2598 (CATTON) and. 2583 (WRIGHT). 

In this case, the Coast Guard has established a prima facie case. It proved that (1) 

Respondent was the person tested at the Center: (2) it proved that the Respondent tested positive 

for a dangerous drug, namely cocaine; it pro~~ed that (3) the test was conducted in accordance 

with 49 CFR Part 40. FF 7, 8. 9. 13, 14: See also Appeal Decisioils Nos. 2584 
(SHAKESPEAREL 2379 (DRUM), 2589 (MEYER), 2592 (MASON). 2603 (HACKSTAFFL 

2598 (CATTON) and 2583 (WRIGHT). 

At, this point it is also ilnpo~tanto recognize that because the Respondent tested positive 

For cocaine, a presumption arises that he is a drug user. 46 CFR 16.201(b). SHAKESPEARE. 

XIJW; MEYER, suora; MASON. supra, HACKSTAFF. supra, Aupeal Decision 2379 (DRUM). 

So here, the burden of going forward shifts to the Respondent to produce persuasive evidence 

that contravenes the prima facie case made by the Coast Guard, and rebuts the presumption that 

he is a drug user. 46 CFR 16.201 ; 16 CFR 16.20 I (b); 33 CFR 20.703. 

B. Respondent's Case 

The Respondent may rebut the presttmptiori involved with persuasive evidence that (I) 

calls into question any element of the prima facie case; (2) indicates an altemative medical 

explanation for the positive test result; or (3) indicates the use was not wrongful or not knowing. 

Appeal Decision 2560 (CLIFTON) (1995), Appeal dismissed sub, nom. Kramek v. Clifton, 

NTSB EM-180 (1995). Here, the Respondent denied ever using cocaine and stressed that he has 

tested negative approxitnately fourteen (14) times over his twenty (20) year tenure as a Coast 

Guard licensed mariner. FF 19; TR 9, 10. He did not, however, base his deferise on this or on 

asserting an altemative explanation for he positive test result, or that the use was not wrongful 

or not knowing. Instead, the Respondent posited his defense and argument on calling into 

question particular elements of the Coast Guard's prima I'acie case. He generally alleged that the 

Drug Test did not satisfy the requirements of 49 CFR. Part 40 and focused on the collection 

procedure, the action of the collector and the collection facility itself. 

The Respondent asserted several reasons why the test results were not valid. He argued 

that the collector, Ms. Crawford, was not "certified," and she agreed that she was not certified. 
TR 36. That fact alone ltas no real relevance ro this case because 49 CFR, Part 40 contains no 

such requirements. Rather, it requires a collector to be properly trained and to have a basic 

knowledge of Part 40. -49 CFR 40.33. Here, Ms. Crawford's testimony indicates that while 

she was not familiar with Part 40 of the regulations, she was trained in collection procedures by 

the Center and that she always followed those procedures in administering a Dmg Tesr. FF 2. 

Her testimony is corroborated in the record where the Director of Htiman Resources of the 

Center, Ginger Savage, certified that Ms. Crawford was trained and "passed training" for the 

collection of DOT drug tests. I0 Ex. 6. Ms. Savage indicates that the Center's training program 

follows the guidelines approved by the DOT. a. Finally, she notes that the Center has been a 

collection site "For over eleven (I I) years witho~n incidence" (sic), and that Ms. Crawford 

perfornied her duties "in accordance with the regulations" and also "without incidence" (sic). 

TR. 17, 35,53; 10 Ex 6. Based on the above and the re~ilaining record in this proceeding, 1 have 

Found as fact that the Center follows the guidelines approved by DOT in administering a drug 

test, that the Center properly trained Ms. Crawford as a collector. and that she followed DOT 

drug testing procedures when acting as collector in the Respondent's Dmg Test. FF. 5-9. 

Given the above, the RespondenL's position regarding the action and certification of the 

collector in administering the Drirg Test is rejected. Indeed, she followed the procedures and 

protocol set forth in I0 Exhibit I, which mirror the DOT regulations, and the Fact that she did not 

read 49 CFR Part 40 itself is of no consequence. Section 40.33 requires that she "be 

knowledgeable about this part," and certainly this record clearly evidences that she was 

knowledgeable about the collection procedures required because of the training she received and 

the procedural steps she did follow. 
Another position taken by (he Respondent allegilig that his Drug Test is invalid is 

predicated on the assertion that the collection Center itself was not ceriified. It too is re,jected 

because there is no requirement in the DOT regulation that the Center needs to be certified. 

Section 40.81(a) of the DOT regulations does require laboratories like Quest Diagnostics, which 

is the laboratory in this case, to be "certified" by HHS under the National Laboratorv 

Certification Proeram. but those laboratories are drug testing laboratories which actually test the 

samples not collection sites like the Center. 

The last position taken by the Respondent is based on two allegations. The first is that he 

signed tile specimen label and the Custody and Control Form before he gave his urine sample. In 

his testimony he was unsure as to exactly when the needed signatures or initials, as well as the 

signing of the Custody and Control Form, occurred. However, he stated he was certain that they 

were obtained "before the containers were sealed in my presence." TR. 106. Ms. Crawford, the 

collector, agrees that the signatures and initials required on the specimens as well as the Custody 

and Control Form were obtained before she sealed the containers and that they were obtained 

immediately after the Respondent gave his urine sample. TR 16. She testified further that she 

sealed the specimen bottles within seconds of obtaining the Respondent's signature aid initials. 

TR. 50. - 

The Respondent's assertion that his signatures and initials were obtained before the 

specimen bottles were labeled and sealed is supported factually in the record. The question il 

posits is do those facts violate the DOT regulations? I think not. As bas been noted, it has 

already been found as fact that the Center's procedures and the collector's actions conformed 

with DOT regulations. At Section 40.71 of the regulations the way the collector prepares the 

specimens is set forth. Eight steps are listed, the seventh is pertinent here. It provides: 
Yotr rrlir.rt tlierl enslrrc thcrt the einployee irtitic~ls the mnz~~er.-evi~~erzce l~ottle seals 

.for the plopose of cerrfjyirtp tiinr tire bottle^ corztflirl the .speci?nnc.lz he or she 

providtcf. 

- Id. (emphasis added). 

One may argue that the above provision mandates strict adherence to the numerical 

sequence set forth in Section 40.71(7) but that argument ignores the fact that the purpose of Step 

7 is clearly to ensure that the donor has initialed the tamper-evidence seals as a way of certifying 

that the bottles contain the donor's specimen. 

In this case when the donor initialed the specimen label makes no significant difference. 

What provides the assurances the regulatory provision requires is the fact that the specimcn label 

seals are signed by the donor and he or she is aware that the bottles contain his or her specimen. 

On the record of this case, I have found that the donor/Respondent was present wlien the bottles 

were sealed bearing his initials. FF 9. That finding is discussed in further detail below where the 

Respondent's final argunicnt is considered 

Finally, with respect to this issue, even if one agreed with the argument that section 

70.71(7) of the regulation intends to mandate strict adherence to the numerical sequence set forth 

in the section, it is well settled that tec11nical.infractions of the regulations do not violate due 

process unless they breach the chain of custody in a way (hat violates the specimen's integrity. 

Appeal Decisions 2633 (MERRILL) (2002): 2603 (HACKSTAFF) (1988). Here, there is not a 

scintilla of evidence that the test was not that of the Respondent, that the specimens he gave 

tested anything other than positive, and that the specimens he gave were adulterated or 

compromised. That being so. 1 find that even if there was an infraction regarding section 
40.71 (7), it was a technical one that did not invalidate the Drug Test and thc ultimate positive 

result for cocaine use. 

The last issue raised by the Respondent is one of substence and its disposition will 

determitie the outcome of this case. The Respondent argues that the collector did not seal the 

specimen container in his presence. He testified that the collector told him he could leave after 

he handed her the open specimen containers and before the collector sealed them or affixed the 

specimen Label to them. TR. 85. His testi~iiony raises the question of whether or not the 

collector failed to follow the Center's procedures arid the provisions of 49 CFR 40.73(a)(7). 10 

Ex 1, Step 9. 

The testimony of the collector is in direct contlict with that of the Respondent. She stated 

that she Followed the Center's procedures in all cases. I0 Ex 2. As has also been noted, she also 

stated she had the Respondent sign the paperwork in advance. She testified that the Respondent 

was present when she placed the labels the donor had previously signed on his specimens and 

sealed them in his presence. She stated the specimen container and lab copy of the Custody and 

Control Form were placed in the specimen bag and sealed in the presence of the Respondent. 

FR. 16, 109, 100; I0 Ex. I, Steps 7, 8,9. Further, in various parts of the record she stated that 

she gave donors their copy of the Custody and Control Form after sealing and bagging the 

specitnen and told them they were free to go; that she never goes outside the protocol of the 

Center; that she followed that procedure with the Respondent's test; that there was no reason to 

alter ~iormal procedures in the Respondent's Test; that between the time the Respondent signed 

the lahel that was still on the form and the time she put it on the cap, the Respondent did not 

leave the area and there was no possible way she could have switched the labels. TR. 16 - 18. 

35,36,56. 
In assessing the difference in the testimotly of the Resl~ondent and the collector, it is 

impollant to note that determining the weight OF the evidence and making credibility 

determinations as to the evidence is within the sole purview of the AH. & Allpeal Decision 

2640 PASSARO (2003). Also, the AU is vested with broad discretion in resolving 

inconsistencies in the evidence, and findings do not need to be consistent with all of the evidence 

in the record as long as there is sufficient evidence to reasonably justify the findings reached. 

PASSARO, m; A~~eal Decision 2639 (HAUCK) (2003). 

In this case the credibility determination and the weight to be given to the testimony 

involved is not a matter of truth versus untmth, but rather how the efficacy of that testimony fits 

with the other evidence of I-ecord and I have so found. Here, the collector's testimony is clearly 

supported by the rest of the record. Her testimony that she followed company procedures that 

mirrored federal guidelines is supported and cotroborated by other evidence of record that 

includes exhibits establishing she was properly trained, that she has been employed as a collector 

without any history of error anti that the collection center has been it1 business over eleven (1 1) 

years witho~~t incident. In addition, the record of the case indicates that the samples she collected 

were sent lo Fed Ex, were delivered to Quest Laboratories, and were properly rested - all within 

a normal time frame, without any delay and without any break in the chain of custody. TR I I15. In addition, the record establishes that after the specimens were sealed there was no evidence 

that they were or could have been tampered with before they were given to Fed Ex. 

On the other hand, the Respondent's testimony stands alone; there is no corroboration of 

any nature. In the face of a positive test result showing tlse of a high level of cocaine, is his 

assertion that he never used drugs, that the result might be due lo some foreign substance or to a 

faulty Drug Test. In addition, his tcstimony is somewhat inconclusive where, ibr example. he 
believes he signed the paperwork before giving his sample, but then indicates it may have bcen 

after he gave his sample. Finally, he signed the federal Custody and Co~itrol Form that certifies 

he gave his specimen to the collector, he did not adulterate it, that it was sealed in his presence. 

'and that the information on the form was COI-rcct. FF 10. 

In considering the above testimony and the elitire record in this case, I believe the 

testimony of the collector was accurate and more credible than that of the Respondent. I find 

that the Respondelit was given a Drug Test that conformed with the requirements of 49 CFR, 

Patz 40 and that he tested positive for the drug, cocaine. Further, the positive Drug Test created a 

presumption that he was a drug user within the meaning of 46 CFR 16.201(b), a presumption 

which he has failed to rebut. 1 have found that he failed to rebut the Coast Guard's prima facie 

case, as well. Finally, the Respondent's use of drug violates the provisions of 46 USC 7704(c) 

and mandates revocation. 

After careful consideration of the entire record, I find that the Coast Guard's case against 

the Respondent is PROVED. In so holding, it is noted that under 46 CFR 5.901 the Coast Guard 

provides clemency where a person's license has been revoked. Further. 33 CFR 20.904 provides 

that the Respondent may, under certain circumstances, enunciated therein, file a motion to 

reopen the proceeding. - 

ORDER 

WHEREFORE, 

IT IS HEREBY ORDERED, lhat the Respondent's Merchant Mariner's License 

110884 and all other credentials issued to him by the U.S. Coast Guard are hereby 

REVOKED. 
Service of the Decision and Order upon the U.S. Coast Guard and the Respondent serves 

notice to the parties' of their right to appeal ~~nder 33 CFR Part 20, Subpart J. A copy of Subpart 

J is provided as Attachment C. 

~nidd States Coast Guard 

Done and Dated on this 3oth day of January 2007 

Washington, DC 

Copy: 

Sector Baltimore, Attn: LT Jesse Holston, TO 

Joseph P. Emm. Respondent 
Certificate of Service 

I hereby certify that I have this day served the foregoing document(s) upon the following 

parties and limited participants (or designated representatives) in this proceeding at the address 

indicated by Facsimile: 

Commander 

Sector Baltimore, Attn: 1,T Jesse Holston, I0 

2401 Hawkins Point Road 

Baltimore, MD 21226-1791 

(Fax #) 410-576-2583 

I hereby certify that I have this day served the foregoing document(s) upon the following - 

parties and limited particiyants (or designated representatives) in this proceeding at the address 

indicated by Federal Express (overnight courier) and U.S. First Class Mail: 

Joseoh P. Emm 

Dated on this 30Ih day of January 2007. 

Veronica A. Dickey i 

Sr. Parillegal ~~ecihlist to 

Chief Judge Joseph N. Ingolia 
ATTACHMENT A - LIST OF WITNESSES AND EXHIBITS 

1. Coast Guard's Exhibits. 10 Ex. 1 through I0 Ex. 6 

1. 75th Street Medical Center's Collection Procedure 

2. Custody and Control Form 

3. Documentation Package from Quest Diagnostics 

4. Dr. Vanderploeg's Medical Credentials 

5. Litigat~on Package 

6. Letter from Ginger Savage verifying Donica Crawford successi\llly completed training. 

11. Respondent's Exhibits 

Respondent did not offer any Exhibits 

111. Coast Guard's Witnesses 

1. Donica Crawford, Collectoc. 

2. Rudolph Jagdhamy, Certifying Scientist at Quest Diagnostics 

3. Dr. James Vandelploeg, Medical Review Officer 

IV. Respondent's Witnesses 

1. Respondent, Mr. Joseph P. Emm 

2. Donica Crawlord, Collector 
ATTACHMENT B -STATUTES AND REGU1,ATIONS 

A. Statutes 

5 U.S.C. 5 551. Definitions 

For the purpose of this subchapter- 

(1) "agency" means each authority of the Government of the United States, whether or not it is 

within or subject to review by anotlier agency, but does not inclutle-- 

(A) the Congress; 

(B) the courts of the United Stales: 

(C) the gove~nments of the territories or possessions of the United States; 

(D) the government of the District of Columbia; 

or except as to the requirements of section 552 of this title-- 

(E) agencies composed of representatives of thc parties or of representatives of organizations of 

the parties to the disputes determitied by them: 

(F) courts martial and military commissions: 

(G) military authority exercised in the field in ti~ne of war or in occupied territory: or 

(H) functiotls conferred by sections 1738, 1739. 1743, and 1744 of title 12; chapter 2 of title 41; 

subchapter 11 of chapter 471 of tllle 49; or sections 1884, 1891-1902, and formcr section 

164 l (b)(2), of title 50, appendix; 

(2) "person" includes an individual, partnership, corporation. association, or public or privatc 

organization other than an agency; 

(3) "party" iilcludes a person or agency named or admitted as a p'arty, or properly hcek~ng and 

entitled as of right to be admittcd as a party, in an agency proceeding, and a person or agency 

admitted by an agcncy as a party for limited purposes; 

(4) "rule" means the whole or a part of an agency statement of general or particular applicability 

and future effect designed to implement, interpret, or prescribe law or policy or describing thc 

organization, proceclure, or practice requirements of an agency and includes the approval or 

prescription for the future of rates, wages, corporate or financial structures or reorganizations 

thereof, prices, facilities? appliances, services or allowances therefor or of valuations, costs, or 

accou~iting, or practices bearing on ally of the foregoing; 
(5) "rule making" means agency process for Cormulating, amending, or repealing a rule; 

(6) "order" means the whole or a part of a final dispositiou, whether affirmative, negative, 

injunctive, or declaratory in form, of an agency in a matter otller than rule making bur including 

licensing; 

(7) "adjutlicatioti" means agency process for the formulatioil of an ordel: 

(8) "license" includes the whole or a past of agency permit, certificate, approval, registration, 

charter, membership, statutory exemption or other form of permission; 

(9) "licensing" i~icludes agency process respecting the grant, rcnewal, denial, revocation, 

suspension, annulment, withdrawal, Limitatton, amendment, modificatio~l, or conditioning of a 

license; 

(10) "sanction" includes the whole or a part of an agency-- 

(A) prohibition, fequirement. limitation, or other condition affecting the freedoin of a person; 

(B) withholding of relief; 

(C) imposition of penalty or fine; 

(D) destruction, taking, seiz,urc, or withholding of property: 

(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees; 

(F) requirement, revocation. or suspension of a license; or 

(G) taking other compulsory or restrictive action; 

(I I) "rclieT" includes the whole or a part of an agency-. 

- 

(A) grant ol'tnoney, assistance, license, authority, exemption, exception, privilege. or remedy; 

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or 

(C) taking of other action on thc application or petition of, and beneficial to, a person; 

(12) "agency proceeding" means <an agency process as defined by paragraphs (5). (7), and (9) of 

this section; 

(13) "agency action" includes the whole or a part of an agency rule. order, license. sanclion, 

relief, or the equivalent or denial thereof, or failure to act: and 
(14) "ex parte communication" meam an oral or written communication no{ on the public record 

with respect to which reasonable prior notice to all parties is nor given, but it shall not include 

requests for status reports on any macter or proceeding covered by this subchapter. 

46 U.S.C. $ 7703. Bases for suspension or revocation 

A license, certificate oC registry, or merchant mariner's document issued by the Secretary may he 

suspended or revoked if the holder-- 

(I) when acting under the authority of that license, certificate, or document-. 

(A) Itas violated or fails to comply with this subtitle, a rcgulation prescribed under this subtitle, 

or any other law or regulation intended to promote marine safety or to protect navigable waters; 

or 

(B) has committed an act of misconduct or negligence: 

(2) is convicted of an offense that would prevent the issuance or renewal of a license, ce~tificate 

of registry, or merchant mariner's document; 

(3) within the 3-year pcriod preceding the initiation of the suspension or revocation proceeding is 

convicted of an offense described in section 30304(a)(3)(A) or (B) of title 49; 

(4) has committed an act of incompetence relating to the operation of a vessel; 01 

(5) is a security risk that poses a threat to the safety or security of a vessel or a public or 

commercial stnlcturc located within or adjacent to the marine environment. 

* Y :i: 

46 U.S.C. $7704. Dangerous drugs as grounds for revocation 

[(a) Repealed. Pub.L. 101-380, Title IV, # 4103(a)(2)(B), Aug. 18. 1990. 104 Stat. 51 11 

(b) If it is shown at a hearing under this chapter that a holder of a license, certificate of registry, 

or merchrurt ll-larinerts document issued under this part, within I0 yean before lfie beginning of 

the proceedings, has been convictetl of violating a dangerous dn~g law of the United States or of 

a State, the license, certificate, or document shall be suspended or [evoked. 
(c) If it is SIIOWII that a holdcr has becn a user of, 01. addicted to. a tlangerous d~ug, the licc~ise, 

certificate of registry, or merchant tnariner's document shall be revoked unless tlie holdcr 

provides sntisfactory proof that the holder is cured. 

B. Regulations 

33 CFR 20.304 Service of documents. 

(a) The AW shall serve upon each parry to tlie proceeding a copy of each document issued by the 

AIJ in it. The AW shall serve upon each interested person, as determined under $ 20.404, a copy 

of the notice of hearing. Unless this part provides otherwise, the AW shall upon request furnish 

to each such interested person a copy of each document filed with the Hearing Docket Clerk or 

issued by the ALJ. 

(b) Unless the AU orders otherwise, each person filing a document with the Hearing Docket 

Clerk shall serve upon each party a copy of it. 

(c) If a party filing a document must serve a copy of it upon each party, each copy must bear a 

certificate of service. signed by or on behall'of the filing party, staling that she or he has so 

served it. The certificate shall be in substantially the following form: 

I: hereby certify that i have served the foregoitlg document[s) upon the following parties (or their 

designated repl.esentatives) to this proceeding at the addresses indicated by [specify the method]: 

(I [name, address of party1 

(2) [name. address or party] 

Done at , this day of___, 19- or 20- 

[Signature] 

For 

[Capacity 1 

(d) This table describes how to servc filed documents. 

J'ahlc 20.304(D).--How To Servc Filed Documents 

Type of filed document Acceptable n~etliods of service 
(1) Complaint ........... (i) Certified mail, return receipt requested. 

(ii) Personal delivery. 

(iii) Express-courie~. service that lias receipt 

capability. 

(2) Default Motion ...... (i) Certified mail, return receipt requested. 

(ii) Personal delivery. 

(iii) Express-courier service that has receipt 

capability. 

(3) Answer .............. (i) Mail. 

(ii) Personal delivery. 

(iii) Express-courier service. 

(iv) Fax. 

(4) Any other filed 

document .............. (i) Mail. 

(ii)Personal delivery. 

(iii) Express-courier service. 

(iv) Fax. 

(v) Other electronic means (at the discretion of the 

ALJ). 

(e)(l) Unless the AW orders olherwise, if a party files a doculnenl under $ 20.302, the paTy 

must serve a copy to the person indicated in this table. 

Table 20.304(e).--N%o Receives Copies of Filed Documents 

If a party-- Then the serving party must serve-- 

Is represented ....................... The counsel or other representative 

Is not represented ................... The party. ........................................................................... 

(2) Service upon counsel or representative constitutes service upon the person to be served. 

(f) The serving party must send service copies to the address indicated in this table. 

Table 20.304(fl.--Where To Send Scrvicc Copies 

If the party-- Then the serving party must send the 

copies to-- 

Is represented ....................... The address of the counsel or 

22 
representative. 

Is not represented ................... The last known address of the residence 

or principal place of business of the 

person to be served. 

(g) This table describes when service of a filed document is complete. 

Table 20.304(g).--When Se~vice Is Cornplete 

If method of service used is-- Then service is complete when the 

document is-- 

(1) Personal delivery (Complaint or 

Default Motion) ................ (i) Handed to the person to be served. 

(ii) Delivered to the person's office 

during business hours. 

(iii) Delivered to the person's 

residence and service made to a 

person of suitable age and 

discretion residing at the 

individual's residence. 

(2) Personal delivery (all other filed 

docu~ne~lts) ..................... (i) Handed to the person to be served. 

(ii) Delivered to the person's office 

during business hours. 

(iii) Delivered to the person's 

residence and deposited in a 

co~lspicuous place. 

(3) Certified Mail or express-courier 

(Complaint or Default Motion) .. (i) Delivered to the person's 

residence and signed for by a 

person of suitable age and 

discretion residing at the 

individual's residence. 

(ii) Delivered to the person's office 

during business hoicrs and signed 

for hy a person of suitahle age 

and discretion. 

(4) Mail or express-courier service 

(all other filed documents) .... (i) Mailed (postrnarlted). 

(ii) Deposited with express-courier 

service. 

(5) Fax or other electronic means .......... Transmitted. ................................................................................ 
(h) If a person refuses to accept delivery of any document or fails to claim a properly addressed 

document other than a complaint sent under this suhpat-t, ihe Coast Guard considers the 

document sened anyway. Service is valid at the date and the time of mailing, ofdeposil with a 

contract service or express-courier service, or oT refusal to accept delivery. 

33 CFR 20.309 Motions. 

(a) A person may apply for an ortler or ruling not specifically provided For in this subpart, but 

shall apply for it by motion. Each written motion must comply with the requirements of this 

subpart for form, filing, and service. Each motion must state clearly and concisely-- 

(1) Its purpose, and the relief sought; 

(2) Any statutory or regulatory authority; and 

(3) The facts constituting the grounds Tor the relief so~lght. 

(b) A proposed order may accompany a tnotion. 

(c) Each motion must be in writing; except that one made at a hearing will be sufficient if stated 

orally upon the record, unless the AW directs that it be reduced to writing. 

(d) Except as otherwise required by this part, a party shall file any response to a wrilten motion 

10 days or less afier service of the motion. When a party makes a motion at a hearing, an oral 

response to the motion made at the hearing is timely. 

(e) Unless the AU orders otherwise. the filing of a motion does not stay a proceeding. 

(t) The AIJ will rule on the record either orally 01. in writrng. She or he may summarily deny any 

dilatory. repetitive, or frivolous motion. 

46 CFR 5.5 Purpose of administfalive actions 
The administrative actions against a licertse, certification or document are remedial and not penal 

in nature. These actions are intended to help maintain standards for competence and co~~cluct 

essential to the promotion of safety at sea. 

46 CFR 5.19 Administrative Law Judge. 

(a) An Administrative Law Judge shall mean any person designated by the Commandant 

pursuant to the Administrative Procedure Act (5 U.S.C. 556(b) Tor the purpose of conducting 

hearings arising under 46 U.S.C. 7703 or 7704. 

(b) The Commandant has delegated to Administrative Law Judges the authority to admonisli, 

suspend, with or without probation. or revoke a license, certificaie or document issued to a 

person by the Coast Guard under any navigation or shipping law. 

46 CFR 5.35 Conviction for a dangerous drug law violation, use of, or addiction to the use of 

dangerous d~ugs. 

Where the proceeding is based exclusively on the provisiotls of title 46, U.S.C. section 7704, the 

complain1 will allege conviction for a dangerous drug law violation or use of datlgerorrs drugs or 

addiction to the use of dangerous drugs, depending upon the circumstances and will allege 

jurisdiction by stating the elements as required by title 46, U.S.C. section 7704. and the 

approximate Lime and place of the offense. 

49 CFK 40.3 1 Who Inay collect urine specimens for DOT drug testing? 

- 

(a) Collectors meeting the requirements of this subpart are tile only persons a~~thorized to collect 

urine specimens for DOT drug testing. 

(b) A collector must meet training requirements of 9 40.33 

(c) As the immediate supervisor of an employee being tested, you may not act as the collectot 

when that errlployee is tested, unless no other collector is available and you are permitted to do 

so under DOT agency drug and alcohol regulations. 

(d) You must not act as the collecror for the e~nployee being tested if you work for a HIIScertified laboratory (e.g.. as a technician or accessioner) and could link the employee w~lh aurine 

specmen. drug testing result. or laboratory report. 
49 CFR 40.33 What training requirements must a collector meet? 

To be permitted to act as a collector in the DOT drug testing program, you must meet each of the 

requirements of this section: 

(a) Basic information. You must be knowledgeable about this part, the current "DOT Urine 

Specimen Collection Procedures Guidelines," and DOT agency reg~tlations applicable to the 

employers for whom you perform collections, and you [nust keep current on any changes to these 

materials. The DOT Urine Specimen Collection Procedures Guidelines docunlent is avaikable 

from ODAPC (Department of Transpottation, 400 7th Street, SU'., Room 10403, Washington 

DC, 20590,202-366-3784, or on the ODAPC web site (http://www.dot.gov/ost/da~>c). 

(b) Qualification training. You must receive qualification training meeting the recluirements of 

this paragraph. Qualirication training must provide insttuction on the Following subjects: 

f 1) All steps necessary to complete a collection correctly and the proper completion and 

transmission of the CCF; 

(2) "Problem" collections (e.g., situations like "shy bladder" and attempts to tamper with a 

specimen); 

(3) Fatal flaws, correctable flaws, and how to correct problems in collections; and 

(4) The collector's responsibility for tnaintaining the integrity of the collectio~l process, ensuring 

the privacy of employees being tested, ensuring the security of the specimen, and avoiding 

conduct or statements that could be viewed as offensive or inappropriate: 

(c) Initial Proficiency Demonstration. Followilig pour completion of qualification training under 

paragraph (h) of this section, yo~t must demonstrate proficiency in collections i~ntler this pan by 

completing five consecutive error-free mock collections. 
(1 ) The five mock collectiolis niust include two uneventful collection scenarios, one insufficient 

quantity of urine scenario, one temperature out of range scenario, and one scenario in which the 

ernployee refuses to sign the CCF and initial the specimen bottle tamper-evident seal. 

(2) Another person must monitor and evaluate your performance, in person or by a means Chat 

provides real-time observation and interaction between the instructor and trainee, and attest in 

writing that the mock collections are "error-free." This person must be a qualified collector who 

ha? delnonstrated necessary knowledge, skills, alid abilities by-- 

(i) Regularly condtlcting DOT drug test collections for a period of at least a year; 

(ii) Conducting collector training under this part For a year; or 

(iii) Successfully completing a "train the trainer" course 

(d) Schedule for qualification training and initial proficiency tiernonstration. The following is the 

schedule for qualification training and the illilia1 proficielicy de~rlonstration you must meet: 

(1) If you became a collector before August 1,2001. and you have already met the requ~relnelits 

or paragraphs (b) and (c) ol' this section, you do not have to meet them again. 

(2) If you became a collector before August I, 2001, and have yet to meet the requirements of 

paragraphs (b) and (c) of th~section, you lnust do so no later than January 3 1. 2003. 

(3) If you become a collector on or after August 1, 200 1, you must meet the rcquircments of 

paragraph5 (b) and (c) of this section before you begin to perform collector functions. 

(e) Refresher training. No less frequently than every five years from the dale on which you 

satisractorily complete the requirements of paragraphs (b) and (c) of this section. you must 

complete refresher training that meets all the requirements of paragraphs (b) and (c) ol'tliis 

section. 
(f) Error Correction Training. If you make a mistake iri the collection process that causes a test to 

be cancelled (i.e., a fatal or ~uiconectcd flaw), you must undergo error correct.ion training. This 

training must occur within 30 days of the date you are notified of the error that led to the need for 

retraining. 

(i) Error correction training must be provided and your proficiency documented in writing by a 

person who meets the requirements of paragraph (c)(2) or this section. 

(ii) Error correction training is required to cover only the subject matter area(s) in which the error 

that caused tlie test to he cancelled occu~red. 

(iii) As part of the error correction trainmg, you must demonstrate your proficiency in the 

collection procedures ol' this part by completing three consecutive error-free mock collections 

The mock collections must include one uneventful scenario and two seenarlos related to die 

area(s) in which your error(s) occurred. The person providing the training tnust monitor and 

evaluate your performance and attest in writing that the mock collections were "error-free." 

(g) Documentation. You must maintain documentation showing that you currently meet all 

requirements of this section. You must provide this documentation on request to DOT agency 

representatives and to etxiployers and CtTPAs who are using or negotiating to use your services. 

49 CFR 40.7 1 How does the collector prepare the specimens? 

(a) All collections under DOT agency drug testing regulations must be split specimen 

collections. 

(b) As the collector, you must take the following steps, in order. after the employee brings the 

urine specimen to you. You must take Ltiese steps in the presence of the employee. 

- 

(1) Check the box on the CCF (Step 2) indicating that this was a split spccimen collecrion. 

(2) You, not the employee. must first pour at least 30 mL of urine from the collection container 

into one specimen bottle, to be used for the primary specimen. 

(3) You, not the employee, mu\t then pour at least 15 mL of urlne from the collection container 

itito the seco~id specimen bottle to be used for thc split specimen 
(4) You, not the ernployee, must placc and sccure (i.e., tighten or snap) the lidslcaps on thc 

bottles. 

(5) You, not the employee. must seal the bottles by placing the tamper-evident bottle seals over 

the bottle capsflids and down the sides of the bottles. 

(6) You, not the employee, must then write the date on the tamper-evident bottle seals. 

(7) You must then ensure that the employee initials the tamper-evident bottle seals for the 

pinpose of certifying that the bottles contain the specimens he or she provided. If the employee 

fails or refuses to do so, you must note this in the "Remarks" line of the CCF (Step 2) and 

complete the collection process. 

(8) You must discard any urine left over in the collection container after both specimen bottles 

have been appropriately filled and sealed. There is one exception to this requirement: you may 

use excess urine to conduct cli~iical tests (e.g., protein, glucose) if the collection was conducted 

in conjunction with a physical examination required by a DOT agency regulation. Neither you 

nor anyone else may conduct further testing (such as adulteration testing) on this excess urine 

and the employee has no legal right to demand that the excess urine be turned over to the 

employee. 

49 CFR 40.81 What labora~ories may be used Tor DOT drug testing? 

(a) As a drug testing laboratory locnled in the US.. you are permitted to participate in DOT drug 

testing only if you arc certified by HMS under the National Laboratory Certification Program 

(NLCP) for all testing required under this part. 

(b) As a dn~g testing laboratory locateci in Canada or Mexico which is not certified by HFIS 

under the NLCP, you are permitted to pa~ticipate in DOT drug testing only if: 

(I) Thc DOT, based on a written recon~mendation from HHS, has approved your laboratory as 

meeting HHS Inborator>~ certification standards or deemed your laboratory fully equivalent to a 
laboratory nieeting HI-IS laboratory certification standards for all testing required under this part; 

or 

(2) The DOT, based on a written recommendation from I-11-IS, has recognized a C'madian or 

Mexican certifying organization as having equivalent laboratory certification standards and 

procedures to those of HHS. and the Canadian or Mexican certifying organization has certified 

your laboratory under those equivalent standards and procedures. 

(c) As a laboratory participating in the DOT dnig testing program, you must comply with the 

requirements of this part. You must also comply with all applicable requirements of HI-IS in 

testing DOT specimens, whether or not the HHS requirements are explicitly stated in this part 

(d) If DOT determines thal you are in noncompliance with this pan, you could be subject to PIE 

proceedings under Subpart R of this part. If the Department issues a PIE with respect to you. you 

are ineligible to participate in the DOT testing program even if you continue to meet the 

requirements of paragraph (a) or (b) of this section. 
ATTACHMENT C - SUBPART J, APPEALS 

33 CFR 20.1001 General. 

(a) Any party may appeal the AU's decision by filing a nolice 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 2120 1-4022. The party shall file the noticc 30 days or less after issuance of the 

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

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

(I) 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 AM'S denial of a motion for disqualification. 

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

bearing was held or that in the issuance of the decision the AU did not costsider 

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 proceetling constitutes the record for decision on appeal. 

(b) If the respondent requesc? a copy of the transcript of the hearing a? part of the record 

of proceeding, then, -- (I) 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 wili 

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

33 CFR 20.1003 Procedures for appeal. 

(a) Each party appealing the AU'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 -- 

(i) Basis for the appeal; 

(ii) Reasons supporting the appeal: and 

(iii) Relief requested in he appeal. 

(2) %%en 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. Unlcss filed within this time, or witlii~l another 
time period authorized in writing by the Docketiog Center, the brief will be 

untimely. 

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

service of the appellate brief. Each s~lch 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 -- 

(I) 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 a~nicits crtrirre brief from any person in an appeal of 

an AU's decision. 

33 CFR 20.1004 Decisions on appeal. 

(a) The Commandant shall review the record 011 appeal to determine whether the AU 

com~nitted emor in the proceedings, and whether the Com~nandant should affirm, 

modify, or reverse the AU's decision or should remancl the case For f~irther 

proceedings. 

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

copy of the decision on each patty and interested person.