UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES OF AMERICA : DECISION OF THE 

UNITED STATES COAST GUARD : 

: VICE COMMANDANT 

 : 

 : ON APPEAL 

 vs. : 

 : NO. 2635 

 : 

 : 

MERCHANT MARINER’S DOCUMENT : 

NO. XXX-XX-XXXX : 

 : 

LICENSE NO. 8311351 : 

 : 

Issued to: Donald W. Sinclair, III : 

 This appeal is taken in accordance with 46 U.S.C. 7702, 46 U.S.C. 7704(c), 46 

C.F.R. 5.701, and the procedures in 33 C.F.R. Part 20. 

 By a Decision and Order (D&O) dated February 14, 2001, an Administrative Law 

Judge (ALJ) of the United States Coast Guard at Houston, Texas, revoked Respondent’s 

above captioned merchant mariner’s document and license upon finding proved a charge 

of use of a dangerous drug. The ALJ stayed his order contingent upon a showing by the 

Respondent that he had enrolled to enter or had entered a certified drug rehabilitation 

program to complete the steps necessary to prove cure, as required by 46 U.S.C. 7704(c) 

and Appeal Decision 2546 (SWEENEY). Respondent was required to do this within 

thirty days of receipt of the ALJ’s D&O. The thirty day period expired with Respondent 

failing to enroll in a drug rehabilitation program resulting in revocation of the above 

captioned merchant mariner document and license. 
SINCLAIR III NO. 2635 

 The single specification supporting the charge of use of a dangerous drug alleged 

that on March 20, 2000, Respondent had marijuana metabolites present in his body as 

was revealed through a post accident drug test. The hearing was held on 

August 23, 2000, in Houston, Texas, where Respondent appeared with counsel and 

entered a response denying the charge and specification. The Coast Guard Investigating 

Officer introduced into evidence the testimony of six witnesses and twenty-nine exhibits. 

Respondent introduced into evidence his own testimony, the testimony of four additional 

witnesses, and seventeen exhibits. The ALJ’s D&O was served on Respondent on 

February 14, 2001, and Respondent requested a continuance that was granted on April 

10, 2001. Respondent filed his appeal on April 18, 2001, in a timely manner consistent 

with the ALJ’s instructions. This appeal is properly before me. 

 APPEARANCES: Truett B. Akin, IV, Attorney, 440 Louisiana, Suite 1600, 

Houston, Texas 77002, for Appellant. The Coast Guard Investigating Officer was 

Lieutenant Derek A. D’Orazio and the Coast Guard Senior Investigating Officer was 

Lieutenant Commander Elmer Emeric, both stationed at Marine Safety Office Houston/ 

Galveston, Texas at 9640 Clinton Drive, Houston, Texas 77029. 

FACTS

 At all relevant times, Respondent held the above captioned merchant mariner 

document and license. On March 20, 2000, Respondent served as a deputy pilot and 

completed a qualification requirement for the Houston Pilots’ Association by piloting the 

TMM OAXACA. The Association’s master and senior pilot, Captain Robert Bratcher, 

supervised him. After piloting the TMM OAXACA outbound from Barber’s Cut down 

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SINCLAIR III NO. 2635 

the Houston Ship Channel and into the Gulf of Mexico, Respondent and Captain Bratcher 

disembarked the TMM OAXACA to return home. After Respondent and Captain 

Bratcher left the TMM OAXACA, Captain Bratcher received a report that the vessel had 

run aground after they had left the TMM OAXACA. When he learned of the reported 

grounding, Captain Bratcher, on March 20, 2000, informed Respondent by telephone that 

he was going to investigate the grounding of the TMM OAXACA. Captain Bratcher 

later informed Respondent that the TMM OAXACA was no longer aground but 

underway and proceeding outbound. Unsure whether the TMM OAXACA had actually 

run aground and whether she had sustained damages, both Captain Bratcher and 

Respondent decided as a precautionary measure to take a chemical drug test by 

submitting a urine sample. Captain Bratcher did not direct that Respondent submit to 

urinalysis testing. 

 On March 20, 2000, Mr. Perry Porter collected a urine sample from Respondent at 

Marine Medical Inc., the designated collection facility for the Houston Pilots’ 

Association. Mr. Porter, as part of his normal routine, had Respondent submit his urine 

and fill out the Drug Testing Custody and Control Form (DTCCF). In addition, because 

Respondent’s urine sample was collected as a Department of Transportation split 

specimen analysis, Mr. Porter provided Respondent with two clean split specimen bottles 

for the collection of Respondent’s urine sample. Upon receipt of Respondent’s urine 

specimen, Mr. Porter sealed both of Respondent’s specimen containers (“A” and “B” 

containers) in Respondent’s presence. Mr. Porter then placed the two sealed split “A” 

and “B” urine containers into a plastic bag that he sealed in Respondent’s presence. 

Respondent signed the DTCCF in Mr. Porter’s presence signifying that the “A” and “B” 

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SINCLAIR III NO. 2635 

split specimen containers were sealed and dated in his presence at the date and time of the 

collection. 

 After Respondent provided the urine samples and certified they were his, the 

specimens were sent to Quest Diagnostics, Inc. where, upon receipt, an internal chain of 

custody and numbering system was established. The Respondent’s “A” split specimen 

was initially tested on March 21, 2000, by immunoassay screening analysis and tested 

positive for the presence of marijuana metabolites. Thereafter, a second and more 

specific gas chromatography/mass spectrometry (GC/MS) test was conducted on 

March 23, 2000, which confirmed the initial test. The results were then forwarded to the 

Medical Review Officer (MRO), Dr. Suzanne Sergile, M.D., who interviewed 

Respondent and concluded that, despite Respondent’s denial of use, there was no 

reasonable medical explanation for the presence of marijuana metabolites in 

Respondent’s body. Respondent then requested that a second laboratory, LabOne, Inc., 

perform an additional analysis of Appellant’s “B” split specimen. The GC/MS of the B 

specimen confirmed the positive test result of Quest Diagnostics, Inc. and Respondent 

was notified by Dr. Sergile that his third test result also screened positive for marijuana 

metabolites. Not finding an otherwise acceptable medical explanation for the presence of 

marijuana metabolites in Respondent’s samples, the MRO verified the test as positive. 

 On his own initiative, Respondent then submitted another urine sample on 

March 23, 2000, at Marine Medical Inc., and also submitted hair samples on April 7 and 

April 20, 2000, at Drug Screens, Etc., for testing. These samples tested negative for the 

presence of illegal substances. 

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SINCLAIR III NO. 2635 

 The record indicates that the TMM OAXACA grounded but that the grounding 

did not result in injuries, damage to the vessel, or pollution. A report of casualty was 

apparently not made to the Coast Guard in accordance with 46 C.F.R. 4.05. 

 Although the chain of custody was not contested by Respondent in his appeal, a 

review of the record reveals that Respondent’s sample was properly collected, tested, and 

analyzed. 

BASIS OF APPEAL

 

 Respondent argues that the ALJ erred in determining that this matter was within 

his jurisdiction pursuant to 46 C.F.R. Parts 5 and 16, and 49 C.F.R. Part 40. Respondent 

asserts that since he voluntarily submitted his urine on March 20, 2000, he cannot be 

presumed to be a user of a dangerous drug pursuant to 46 C.F.R. 16.201(b) because that 

section only provides for chemical drug testing in pre-employment, periodic, random, 

post-serious marine incident, and reasonable cause situations. Respondent argues 

therefore that since his test of March 20, 2000, was not subject to 46 C.F.R. Part 16, it 

does not have to be conducted in accordance with 49 C.F.R. Part 40 which prohibits an 

MRO from considering subsequent chemical test results. 

 Stated succinctly, Respondent argues that since his sample was provided on a 

voluntary rather than a mandatory basis, the prohibition contained in 49 C.F.R. 40.33(b) 

against considering subsequent, other negative test results does not apply. [See

Respondent’s Brief at 2] 49 C.F.R. 40.33(b)(3) stated, in applicable part: “the MRO shall 

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SINCLAIR III NO. 2635 

not, however, consider the results or (of sic) urine samples that are not obtained or 

processed in accordance with this part.”1

 

OPINION

I. 

I must first address the issue of whether the March 20, 2000, test was voluntary or 

instead conducted pursuant to a requirement set out at 46 C.F.R. Part 16. 

Under the provisions of 46 C.F.R. 16.240, a mariner involved in a “serious marine 

incident” is required to take a chemical drug test. A serious marine incident is defined, in 

applicable part, at 46 C.F.R. 4.03-2 as a casualty including “damage to property...in 

excess of $100,000.” A marine employer must determine if a casualty is, or is likely to 

become, a serious marine incident for purposes of requiring the chemical test of those 

aboard the vessel. 46 C.F.R. 4.06-1(b). If a mariner fails such a post casualty chemical 

test, he is presumed to be a user of a dangerous drug. 46 C.F.R. 16.201, Appeal 

Decisions 2584 (SHAKESPEARE), 2529 (WILLIAMS). 

This was not a serious marine incident requiring by regulation that a chemical test 

be conducted. Since the grounding did not rise to the level of a serious marine incident 

and the mariner employer did not direct him to provide a urine sample after the 

grounding of the TMM OAXACA, the Respondent was not required to submit a urine 

sample on March 20, 2000. However, a reading of the D&O at pages 8-9 and page 60 

 

1

 At the time of this writing, 49 C.F.R. 40.33(b)(3) has been replaced by 49 C.F.R. 40.151(a)(2001). The 

new regulation retains the substance of the former regulation and instructs MROs to “not consider any 

evidence from tests of urine samples or other body fluids (e.g., blood or hair samples) that are not collected 

or tested in accordance with this part. For example, if an employee tells you he went to his own physician, 

provided the urine specimen, sent it to a laboratory, and received a negative test result or DNA test result 

questioning the identity of his DOT specimen, you are required to ignore the result” 

 I will continue to refer to 49 C.F.R. 40.33(b)(3) throughout this Appeal Decision since that regulation was 

in effect at all times relative to this case. The regulatory revision does not alter the analysis or result of this 

Appeal Decision. 

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SINCLAIR III NO. 2635 

shows that Respondent made an independent decision based on his own free will to take a 

drug test that subsequently showed that Respondent had marijuana metabolites in his 

body. The ALJ himself found that the Respondent took the test on that date as a 

“precautionary measure.” [D&O pages 8-9] I agree with Respondent’s assertion that the 

test of March 20, 2000, was “non-mandatory or voluntary.” [See Respondent Brief at 3] 

I have held that revocation of a mariner’s license can be predicated upon a 

voluntarily submitted urine sample testing positive for an illegal drug. Appeal Decision 

2545 (JARDIN). In Jardin, I found that the Coast Guard could rely on a voluntary test 

for suspension and revocation proceedings. I find the Jardin analysis is equally 

applicable in this case. Respondent’s voluntary sample can be used as the basis for a 

charge of use of a dangerous drug. 

 II. 

Having established that the March 20, 2000, test was admissible, I must next 

determine whether the ALJ did not, as Respondent alleges, review the results of 

subsequent testing done on urine submitted on March 23, 2000, and hair samples 

submitted on April 7 and 20, 2000, and whether the ALJ committed error in that respect. 

Dr. Eric Comstock, a board certified medical toxicologist, testified at the hearing 

that the human body continuously and gradually flushes drugs out of its system. 

Dr. Comstock testified that that process could explain the negative test result of the urine 

sample provided on March 23, 2000. [Tr. at 739] Dr. Comstock also testified that the 

hair sample submitted on April 7, 2000, was not useful since Respondent’s hair at that 

time had not grown sufficiently to correspond to the period surrounding the use of 

marijuana on or about March 20, 2000. [Tr. at 742, 744, 745, and 787] Dr. Comstock 

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SINCLAIR III NO. 2635 

further stated that the hair submitted on April 20, 2000, was not analyzed by the 

confirmatory and more specific GC/MS test. [Tr. at 799] Dr. Comstock also stated that 

hair testing to detect illegal drug use is not approved by the Food and Drug 

Administration and is not recognized under the Department of Transportation drugtesting program. [Tr. at 791] Finally, Dr. Comstock testified that 49 C.F.R. 40.33(b)(3), 

in pertinent part provides that: “the MRO shall not ... consider the results of urine 

samples that are not obtained or processed in accordance with this part [49 C.F.R. Part 

40].” [D&O page 37] 

The ALJ did consider the results of the three subsequent tests. He gave them their 

appropriate weight and determined, based on a reading of 49 C.F.R. 40.33(b)(3) and 

Dr. Comstock’s testimony, that they could not be used to cancel or negate the positive 

test result of the urine sample submitted on March 20, 2000. [D&O pages 54, 56-57] 

The ALJ found that the urine sample submitted on March 23, 2000 could not be 

used because it was not probative or reliable. [D&O pages 54-55] I concur. 

Next, the ALJ found that the “Respondent’s April 7, 2000, first hair analysis drug 

test [was] totally irrelevant and disregarded in this case.” [D&O page 55]. I concur. 

The ALJ then found that the test result of the second hair sample submitted on 

April 20, 2000, was unreliable in the scientific community. [D&O page 37] I concur. 

The ALJ did find that the test results of the hair sample submitted on April 20, 2000, 

were “relevant to this proceeding in consideration of the record as a whole to ascertain 

the credibility and weight to be given to the testimony of the Respondent and his 

witnesses and the Investigating Officers’ witnesses and all exhibits.” [D&O page 58] I 

concur. 

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SINCLAIR III NO. 2635 

 The ALJ found that the three subsequent tests of Respondent’s urine and hair did 

not disprove that on March 20, 2000, there were marijuana metabolites in Respondent’s 

urine. [D&O page 37] Moreover, the ALJ found that the positive urinalysis test results 

of the urine submitted on March 20, 2000, established a prima facie case that Respondent 

used a dangerous drug. [D&O pages 45-46] This created a presumption that Respondent 

used a dangerous drug and the ALJ found that Respondent’s evidence did not rebut the 

strong evidence presented by the Coast Guard. [D&O page 46] 

I will reverse the decision of the ALJ only if his findings are arbitrary, capricious, 

clearly erroneous, or based upon inherently incredible evidence. Appeal Decisions 2570 

(HARRIS), aff NTSB Order No. EM- 182 (1966), 2390 (PURSER), 2363 (MANN), 2344 

(KOHADJA), 2333 (AYALA), 2581 (DRIGGERS), 2474 (CARMIENKE), 2607 

(ARIES), and 2614 (WALLENSTEIN). Findings of the ALJ need not be consistent with 

all the evidentiary material in the record as long as sufficient material exists in the record 

to justify the finding. Appeal Decisions 2527 (GEORGE), 2522 (JENKINS), 2519 

(JEPSEN), 2506 (SYVERSTEN), 2424 (CAVANAUGH), 2282 (LITTLEFIELD) and 

2614 (WALLENSTEIN). The standard of proof for suspension and revocation 

proceedings is that the ALJ findings must be supported by reliable, probative, and 

substantial evidence. 46 CFR 5.63, Appeal Decisions 2584 (SHAKESPEARE), 2592 

(MASON), 2603 (HACKSTAFF), 2575 (WILLIAMS). 

 Respondent’s argument that subsequent negative test results should have been 

considered in determining whether he tested positive for marijuana on March 20, 2000, is 

without merit. The ALJ did consider all three subsequent test results but found them 

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10

unusable, irrelevant, or unreliable. The findings of the ALJ are supported by reliable, 

probative, and substantial evidence in the record. 

 Sufficient evidence exists in the record to support the determination by the ALJ 

that the Coast Guard had proven the specification of use of a dangerous drug. The 

decision of the ALJ was therefore not arbitrary, capricious, clearly erroneous, or contrary 

to law. 

 

 CONCLUSION

 The findings of the ALJ are supported by reliable, probative, and substantial 

evidence. The hearing was conducted in accordance with applicable law. 

 ORDER

 The Administrative Law Judge’s Decision and Order dated February 14, 2001, is 

AFFIRMED. 

 //S// 

T. J. BARRETT 

 Vice Admiral 

 Vice Commandant 

Signed at Washington, D.C., this 3rd day of October, 2002.