UNliTEU STATES OF AMERICA 

11EPAItTMENT OF HOMEL.4NI) SECURITY 

UNITE11 STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainatl! 

- 

Dockcl Nnmber CG S&R 03-0043 

CG Case No. ['A 1728746 

DECISION AND ORDER 

Issued: October 28 .J-:. 2003 

Issued hj: Edwin M. Illaden Administrative Law .ludxe - 1 . . 

For the Coast Guard 

Dennis. J. O'Mara. LI'JG, 

Marine Safety Orfice 

I I0 h4~. Elliolt Avc. 

Det~iTt. MI 48207 

For the Res2-ondent 

.lohn .I. Uluitt. Pro Se. 

I'RELIMINAIIV STATEMENT 

Kesponden~ I~olds Irilerchant Mariner's Documents wliicli authorize him to serve 

as an Able Bodied Scaman [unlimited] and a Wiper. Prior to serving as sucli for a 

particular marine employer. Kcspondent took a pre-employn~ent drug test. The results of' 

Decision and Order - 1 
that test were reporred to the prospective employer and the Coast Guard. that the 

submitted urine sl)ecin~eti tested positive ibr a dangero~~s drug. hs a result, a conlplaint 

was filed by the Coast Guard Marine Safety Office Detroit. Michigan on .lanoary 15. 

2003 allcging the positive drug test result and requesting that Respondent's Merchant 

Mariner's Doct~nients (MMD) be revoked as nundated hy 46 USC 8 7704(c). 

Tllus, under the authority of 46 LlSC 8 7704.46 CFR $ 5.35 rtnd 5 lJSC s$ 556- 

558. this proceeding was commenced. 

~es~ondi11t didnot file a written answer to the complaint. I-lowevcr, on February 

12. 2003. Respondent submitted an Affidavit iil connection wit11 an asse~~ion ofa lost or 

missing document and the cilrumstances sut~ounding that loss1 Respondent asserted he 

mailed his documents to rlre Marine SaSety Office in New York City. MSO New York 

has been unable to locate any such document? He further asserted that he. was notilied of 

his positive drug test by a Medical Review Officer and thus made the submission as 

noted. lie also attached a note declining a settlement offer and demanded a hearing. 

A hearing was sclleduled For .luly 22.2003 in Detroit, Michigail. Iiowever, the 

.ludge's Legal Assistant'ParalegaI Specialist learned kom the investigating Officer (10). 

LT7I'JG Dennis O'Mara oS~espondent's.~ggestio~~ of his inability to personally appear at 

the hearing in Detroit. Michigan on July 22.2003. In order to more f~tlly understand that 

suggestion. and to dcter~nine tile reasons t'or Respondent's failure to suhmit a formal 

written answer to tlie complaint. a telephonic pre-hearing confcrence was scheduled ibr 

0:00 AM I'UT on June 9.2003. The IO advised lie had communicated with Respc~ndenl 

who said he would be telephonically available for that pre-hearing conference. Contrary 

"I See. Cornpiailit lilc a~id Allidrivit subn~ittecl to ALJ Dockcrilig Center. Febnlaly 19. 2003. 

''I See elnail commlinicatians between L.l'JG O'Ma~il and Maiy I'urree~sl. Lxgal Assistnnlll'alnlegaI Specialist 

to lliis Judsc iii complitilit lile. 

Decision and Orcier - 2 
to thcsc rel~resentations to the 10. Respondent lhiled to appeal. for this pri4iearing 

cocifereiice and it was thererore clot conducted:' 

Because of'tlie likelihood that i<esportdent could not personally appear at tlie 

hearing site in Detroit, Michigan on July 22,2003. a telephonic hearing was determined 

to be nlost efficient to afford tlie Respondent tlie opportunity to appear. participate in tlie 

hearing. and hear the evidccicc on that date. 

Otherwise. no e.rpcn./e communication was made to or with this judge duriiig the. 

4 - 

course of this pr6ceeding. 

A telephonic hearing on the con~plaint was convened on July 22,2003 at 9:00 

AM PDT (12:OO noon EDI'). Respondent telephonically appeared for the heai.ing and 

I'ully participated. The hearing was transcribed. 

The parties were afforded the opportunity to submit proposed liridings oS fact and 

conclusions of law as provided in tlie Administrative Procedures Act. The parties waived 

that filing and instead agreed to tile written closing argument. lhe record was closed on 

.luly 22. 2003. 

A trailscript was filed on August 7.2003. 'rhe parties filed their closing 

arguments. From a co~isideralion oftIle_~ntire record including llie testimony oftlie 

witnesses, the docu~nentary evidence presented. a review of the closiiig arguments ofthe 

parties permits this Judge to render the followirig decision and order in this mrttier. 

"I Th2 Judge was holding a hearing on another metier and intenoptetl lbis hearing in a11 e&r( to accommodate 

Respa~ident. 

'"I See. 5 USC 6 557(d)( I KC). 

Decisicni and Order - .; 
FIN1)INGS OF FACT 

I. Respondent holds a Merchatit Mariner'~ Uoci~nie~lt as all Able Bodied Seaman 

(IJ~ilimited) and as a wiper.' 

2. During an October 4,2001, pre-employment drug test. Respondent appeared al a 

Seafarer's Union designated collection site for the purpose of submitting a split 

urine specimen. 

3. Respondent signed a Federal Drug Testing Custody and Control Form showing 

- specime~; number 3534620.' 

4. A urine specimen was collected by Debbie Biland at 2700 Point Tremble. 

Algonac, Michigall 48801 .' 

5. l'he collector. Ms. Biland has been employed as a medical assistant ibr six years. 

has collected about 100 specimens. but has no recollection of Respondent." 

6. l'he Federal Drug Testing Custody and Control Form is routinely filled o~~t by the

collector. Ms. Hiland. with a donor's name and social security nuniber, which 

information is taken from a chart and hrnl she has wken the donor appears at the 

site. l'he donor completes Step 5 oC the form with the donor's signature. date of 

- 

hirtl~ and phone number." . 

7. 

. 

7. The D~wg "~esiing Custody and C:.onrrol Form bearing specimen number 3534620 

contained Respondent's name. social security numher, signature. teleplione 

number and date of birth."' 

''I CCi Exbibit I 

'"I CCi Exliibit 4A 

17' CG Extlihil4~ pazc 6 

In' T'mnscl-ipl. 7/22/03 a1 pages I I and 18 '"' T~nnscript. 7/22/03 p;gc 23 

"'t'"l~G Exhihit 4A 

Decision and Order - 4 
8. The collector, Ms. I3iland does not routinely or customarily request drug test 

donors for picture identification. but the identity of the donor is determined by 

comparing a signature on a forrn presented to the collecror by the dollor at the 

time of the resting and the signature ultimately inserted by the donor on tlie 

Custody and Control form." 

9. Once the donor returns the urine specimen to the collector, it is placed on a 

counter in the laboratory and then its temperature is deterrni~ied to be within 

specification. transferred to separate cotitrol bottles. and then sealed with tamper 

evident seals, which are initialed by tile collector. Ms. Biland witli [lie donor's 

initials." 

10. 'The collector was trained to insert the dollor's social security number in Step 1 

From a cliart or forrn, and not obtain picture identification or a social security 

number from the donor.' 

I I. The collector was trained to write the donor's initials on the taniper evident seals 

instead of the donor doing so. 14 

12. 'The urine specimen number 3534620 was placed in an overnight pouch and 

-, 

transmirted to, and analyzed by-Quest L)iag110stics, Schaurnburg, IL a certified 

drug testing laborntory"using Enzyme immunoassay and Gas 

Cliromatography/Mass Spcctrornetry procedures approved by the Department of 

l'ransportation.'" 

"I! Tr dascl-ipt. 7322/03 at pages 23 iT 

'"I T'~anscr.ipl. 7/22/03, pages 18- I9 

llil. rranscript. 7122103, page IY 

l'"'Tm~iscript. 7/22/03, page 19 

'"IcG Eshibit 3 

I'"CG Eshibit 4 PI). 7fT 

I)ecisio~i and Order - 5 
13. The specimen Number 3534620 was detertilined to be positive for the nietaholite 

for Marijuana - 9 CARBOXY 1'1-IC." 

14. A Medical Review Officer. David A.1. Katsuya~iia M.D. of Greystone I-lealtli 

Sciences Corporation interviewed flespondent and deternlitied there was no 

medical reason orjustification for a positive metabolite for marijuana, and 

tliereForc tlie test was a valid test and confirnied tlie positive result. 

- IILTIRIATE F1NI)INCS OF FACT AND . . . . . . . . - - . . .- - .- . . - -- . - -. - 

~Ci.llSlONS WAE 

I. Jurisdiction is established in this matter by reason of Respondent's licensure. 

See, 46 U.S.C. 57704fc): NTSB Order No. EM-3 I (STUART); Al~ppet~l Ilcri.rioti 

(I.i,.s.~cmi) No. 2 135. 

2. Respondent has submitted a lost document affidavit in response to the 

coniplaint, a demand (bra hearing. fully participated in the hearing ofthis matter. and 

liled closing arguments all ofu3hich are construed as an answer to the complaint and will 

not be considered as an admission of tlie Facts as provided in 33 C:FR 5 20.608(d). 

3. The collector's and collectio~~Tacility's routine Cailure to obtain positive 

picture identification fiom donors and thus Respondelit fails to comply with the mandate 

in 49 CIR 40.61(c). 

4. The collector's practice ofcomparing the donor's signature contained on a 

form provided to the collectioti facility with ttle signature placed by the donor on the 

Federal I)ri!g 'Testing Custody and Control Form in Stcp 5 does not co~istitltte a 

s~tbstaiitially sufficient alternative compliance with the mandatory positive identification 

"''~(i Esllibit4, p. 38. 

Decision and Order - 6 
requirements in 49 CFR $ 40.61 .@>~pa_r_tmqt of Transportation Urine Specini~~l 

Collection Guidelines, for tlie I.J.S. l&art~iient of l'ransportation LVorkpIace Drug 

Testing Progra~iis. 

5 'She collector's routine insertion of a donor's initials on the tainper evident 

seals, instead of tile donor or Respondent doing so fails to comply with the requirements 

in 49 CFR $40.71(b)(7). 

6. Suhs~atitial, reliable and probative evidence exists showing that a urine 

specimen was pl&ed into two separate test vials. sealed with tamper evident seals 

containing Ilespondent's initials, and the unique control number. but there is a lack or 

substantial, reliable and probative evidence showing that this was done in the physical 

presence ofthe Respondent. and thus was not in substantial compliance with 49 CI:R 6 

40.71. 

7. All ofthe training require~iients a collector must meet specified in 49 CI:K $ 

40.33 were not met by tlie collector or likely the collectior~ Pacility used in this case. 

8. As a result, there is a lack of substantial, reliable and probative evidence 

showing the Coast Guard has proved the Respondent was the person who was tested Cor 

dangerous drugs. or it was the ~espondc~it.~ urinespecimen which failed the test. 

9. 'l%e Coast Guard's complaint is thus found 1101 proved. 

DISCUSSION 

In these cases the Coast Guard n11~st prove its case against the niariner charged oil 

tlie basis ol'reliable. probatii:e and s~~bs~untial evidence. 46 CTR 5.63. This substantial 

evidetice standard has been delennined to be the equivalent oSthe preponderance of the 

Decision and Order - 7 
evidence slandard. ill>pccrl Dccision((;crrdr~er) No. 2472 and S/etr~i~?ian I:. Unite~1 S~a/es. 

450 US 91 O1)Rl) which concluded that the preponderance ofeviderice standard shall hc 

applied in adniinistrative hearings governed by the Administrative 1'~ocedures Act. such 

as this. 

For sonie time now. the Coast Guard has brought cases charging use ofa 

dangerous drug under 46 USC $ 7704(c) based solely upon the results of chemical testing 

by ~~rinalysis. 46 CFIl 16.201(b) provides that one who fails ii chemical test for drugs 

under that part ~vill be presumed to be a user ofdangerous drugs. In turn. 46 CFR $ 

16.105 defines "fail a chemical test for dangerous drugs" to mean that a Medical Review 

Officer reporis as "positive" the results ofa cliemical test conducted under 49 CFR $ 40. 

In other words, 46 CFR $ I6 establishes a regulatory presumption on wliicli tlie Coast 

G~~ard may rely. provided the Coast Guard call satisfactorily sl~ow that a 49 CFR $40 

chemical test of'a merchant mariner's sample or specimen was reported positive by an 

MUO. This presutnption. however. does 11ot dispense with the obligation to establish the 

elements leading Lo tlie presumption by tlie same standard orproof. ie.. the elements of 

the case must he proven by a preponderance ol'the evidence. The elements oSa case of 

- 

prcsuinptive use are. .. - -. 

First. the Responden1 was tlie person who was tested for dangerous drugs. 

Second. the Respondent failed Llie test. Third. Llie test was condt~cted in accorda~ice wiLh 

40 Cf:ll Part 40. 

Proof of these three elements establishes a pritnrr fucie case of use of a clangero~~s 

drug (i.e.. pres~iiiiption of drug use) which then shifts the hurdeii of going forward with 

the evidence to Lhc Responden( 10 rebut [lie presun~ption. If the rebuttal fails the11 this 1 I

I 

Decisio~i and Order - 8 
Judgc tnay find the charge proved solely on the basis ofthe presuniptio~i. See. Appetrl 

L)c~cisions 2592 (!14ason) 2584 (Sl~c~kespeure): 2560 (('l(fi(tn). 

Ap&cation of Theih~jdence to the Element?. -- 

On October4. 2001. Respondent appeared at a collection facility sponsored by the 

Seahrers International Union for a proemployment drug test. A urine specimen was 

collccted by Debbie Biland of Dr. Tae Fioilg Chung's office. The T<espondent signed a 

Federal Drug Testing Custody atid Control Form. The urine specimen xvas collected and 

analyzed by Quest Diagnostics of Schau~nburg, IL. using procedures approved by the 

Depaflinent of l'ransportation. That specinieii subsequently tested positive for marijuana 

metabolite. 

The record also shows the signed Federal Drug Testing Custody and Control 

Forin (CCF) displayed speciinen ID No 3534620 and accession control number 

97261 95s. 

The testimony. regarding tlie collector's and facility's regularly ttsed collection 

procedures, have sigi~ificant portions which raise sufficient ambiguity to call into 

question whether Respondent is the peck tested and whether it was his urine specinien 

was tlie one tested positive for the metabolite for marijuana. 

The collector said she has no recollection ofthe Respondent. She sees many 

donors. She claints to have perfornled about 100 tests during her tetiure as a collector. 

, . I he collector iestitied she waq trained in tlie following collection procedures: 

Fiist. she routinely fills out Ilie upper halt' (this is Steps 1 thru 5) of the Federal Drug 

Testing Custody and Control lbrm (C:CF) with the donor's rtame. social security number. 

Decision atid Ordcr - 9 
This inror~nation is taken from a Sorm contained in the donor's medical ~liart.'~ The 

record is short on substantial evidence showing tlie Respondent is the person who 

brought the for111 to the collection facility identified by tlie collector. 

l'he collector said slie never asks a donor for picture identification to compare 

with the infor~ilation taken fro171 the form or chart. l'he collector has no recollection of 

Respondent. However. the collector routinely compares a signature 011 a Torm cnntai~ied 

in a chart with the signature the donor places on the CCF. The collector saps that is their 

- way ~Sidentif~i~ig the donor is the person to be tested. 

'She collector routinely puts the donor's initials on tlie tamper evident seals at the 

tinie ofthe collection. not the donor. When the donor returns the urine specimen after 

voiding into tlie collection container, the speci~ne~i is checked for temperature, and is then 

separated into two separate vials or test bottles. sealed with the already initialed tamper 

evident seals and the specimen number. 

I do not doubt the credibility of Ms. Bila~ld. She was Forthright in adtnitting to 

her training and customary collection procedures. 

7'hu, in making this determination. the interest and integri~y of the drug testing 

system will be taken into consideration.. See. /lppe~rl Decision 263 1 (Sengcl) (2002). 

A comparison of the questioned collcctio~i procedures routinely used by Ms. 

Biland and those mandated by 49 CFR 8 40.61 - 8 40.73 is therefore necessary to resolve 

this dilemma. 

And. once this comparison is completed. I must answer these questions: Do any 

variations amount to such serious violations or ratal flaws as to cast doubt on tile identity 

'I" Tile CCI: does no1 contain a date of binti secrion in Step I. l'llat inf(11niation is conveyed in SLep 5 wtiicli is 

to be conipeted by tlle Donol.. 

Decision and Order - 10 
ofthe doclor. and doubt on whether the specimen tested positive was indeed the speciliien 

provided by the Respondent. In other words. are they merely ~ecl~~~ical lapses which !nay 

he dismissed? 

I start with an inquiry into those collection procedures relevant to the identity of 

the donor tl~us coclnecting that identity to tlie particular urine specimen tested. 

At the outset, I must note that strict adherence to the procedures set out in 49CFR 

part 40 is not required. See A/~pe(// l~ecision 2542 (Dejiorgc). Minor tecl~nical violations 

or the drug testi~ig regulations that do not result in a brcach ofthe chain ofcostody or 

violate the specimen's in1egrit.y does not invalidate the drug test. Appetrl Decision 254 1 

(~~1~~1170~d): 2537 (f'h~i~hnni). Nevertheless, a finding that the Coast Guard has proved 

its case Initst still be supported by substantial. reliable, and probative evidence. A/7/>errl 

L')erision 2603 (Huck.srufj). , . 

'The identity of the person providing the specimen fbr drug testing is an essential 

element of the Coast Guard's prima facie case. i<crckvlcirf~ri 17.8. Wltether the collector 

adeq~tately identified the Respondent as the donor ofthe urine saniple is a question ol' 

ftxct for the Ad~ninistrative Law Judge to determine. Al>/~ecfl Decision 2542 (Dgfioqy). 

111 I-ltrcksl~f/'tIie C:ommandant sta&d that proof that the respondent was the person 

who was tested for dangerous drugs "necessarily involves proof of the identity of the 

person providing the specimen: proof ofa link hetween the respondent and the sample 

under or ilrug Testing Custody and Control number which is assigned to the saniple and 

which identilies the sample throughout tlie chain of custody and testing process; and 

proofof the testing of that sample." &ck.s!c& at p 6. 

Decision al~d Order - I I 
In that respect theci, Section 40.6l(c) requires the employee-donor provide 

positive identification. The collector must see a photo I11 issued by the emiiploycr (ollier 

than in the case of an owner-opcrator or other self-employed individual) or a Federal. 

slate. or local government (e.g., a driver's lieensej identilication document. 

The collector did not require Ilespondent provide such positive ID. She was never 

Iraimied to do so. I-lowever, she did compare tlie signature on the chart or paper she 

possessed with the sig~iaturc placed by the donor on tlie CCF.'"""' In this way she says 

tlie domior is satisfactorily identified as tlie person to be tested. 1 am troubled by this ~- 

procedure for the following reasons 

At1 exatnination of the - Dc~rtrnenl - -=-a- of Tranwtion Urine S~ecimen Colleclion 

Guidelines. Tor the 1I.S. t)epartnient ol'Transportatiom~ Workplace Drug Testing 

~rograms"'revea1s the followu~g regarding appropriate identification. 

SEC:TION 5. EMPLOYEE IUENTIFICATION 

The employee must provide appropriate identification to 

the collector upon arrival at the collection sitc. Aceeptablc 

fomls ol'idcntificaiion include: 

I. A photo identification (e.g., drivers license. employee 

badge issued by the employer. or any olher picture 

idenlifieation issued by 8. Federal. state. or local 

government agency). or 

2. Identification by an employer or employer representalive, 

or 

2. Any other idem,tification allowed under an operating 

administration's rules. 

Unacceptable fornls of ide~ltifreation include: 

lafJ1 . liallscripl 7/22/03 at page 2: 

See ~!t~~fil?!uw.~~~~~0~~_0~tid1~!:~g.~~i~!i!11~4~!~~!~~! ilasl accessed Septonber 29. 2003) 

Decision and C)rder - I2 
1. Idetitilication by a co-worker. 

2. Identification by another sal'ety-sctisitive employee. 

3. lJse ofa single non-photo identilication card (e.g., social 

securitj~ card. credit card, union or other membership cards. 

pay vouchers. voter registration card), or 

4. Faxed or photocopics of identification docu~nent. 

Note: If the employee cannot produce positive 

identification. the collector must contact a DER to verirl~ 

the identity of the employee. The collection should not 

plpceed until positive identification is obtained. Flowever, 

if a11 ownerloperator or other selfe~i~ploycd individual does 

not have proper identification. the collector should record 

in the reniarks section that positive identification is not 

available. The ownerloperator must be asked to prot~ide 

two items of identification bearing hislher signature. The 

Zector then proceeds with the collection. When the 

owner/opel.ator signs the certification statement. the 

collector compares tlie signature on the CCf: with 

signatures on the identificatioti presented. If the signatures 

appear consistent. (he collection process continues. If the 

signature does tior match signatures oti tile identification 

presented. the collector makes an additional note in 

remarks section stating "signature identification is 

unconfirmed." 

?'his guideline points out that the use ol'iteiiis containing a signatt~re is limited to 

OwnerIOperators and does [lot suggest tliat an alternative identification procedure, s~ich 

-. - . 

as signature comparison, is permitted with respect to an ernployee or prospective 

e~iiployec s~~cli as Respondent 

Since the reason for Respondent's drug test was as a preemployment test. thc 

conclusion can only be that I<espondent is not an OwnerJOperator but an employee. 

From my inquiry of the collector. Ms. Riland. I seriously doubt she was awarc ol'tliis 

diffcrcnce, because when asked about picture identification she maintained shc doesn't 

ask for any because that is the way shc was twined 

Decision and Order - 13 
For me. then. the question is whether the failure to follo\v the appliczible rule or 

the guideline is surficient reason to say there is serious doubt as to the chain of custody or 

identity ol'the speci~nen tested it was one that belonging to the Respondent. Ol' particular 

signilicance, this guideline directs. ifthere is a hilure to positively identify the donor as 

the one to be tested, then the collection must not proceed. The only positive ID allowed 

for an enlployee drug test is picture Identification or someone in auihoriiy vouching for 

the donor's identity. 

'fhe Coa~~Ciuard lhas expressly adopted the Department of Traisportation'sdr~~g 

tesling rukes and poticics. which include the DO'T guiciance doeurnenis. See 46 CFR 

16. I 13(a) [drug testing pmgrams must be conducted in accordance with 40 CFR Part 40 

I'rocedures for Transportation Workplace 'resting Programs] 

it is a cardinal priltcipal of ad~ninistrative law, founded on the need for orderly. 

unifornl and predictable decision making. that this judge is hound to apply at1 agency's 

legislative or inierpretive rules including its statement ofpolicies. See, Grey Lir7e.v ibrn 

('(1. of'.%irther17 Ncvod<t I.. I('('. 824 I'2d 8 1 1. 814 (9th Cir. 1987): h'utio~?rl/ Ltrlbto ~Wc!clirr 

Cbrrlilion 1. F('('C'. 816 F.2d 785. 789 (DC Cir. 1987). 1 am thus bound to apply the DOT 

regulations. and policies regarding speci~iien collection procedures. 

Next, section 40.63(a) requires the collector complete Step 1 ihru 4 ofthe CCF. 

The only part of Step I for the Collector to co~nplete is the insertion ofthe donor's social 

security nl~mber of other ID number, such as an employee ID number. l'he collector 

con-ipleted Slcp I but did so tion1 infor~~lation taken from that included in a chart or for111 

and not fro111 that supplied by the donor or any positive ID provided to the collector 

Decision i~ntl Order - I4 
Step 5 in the CCF is filled in by the tlonor whieli includes the place wlierc a date 

oC birth is supplied. Tbcre is no dispute that tlie Respondent filled in lhis date of birth in 

Step 5 of the CCF . ?'here is also iio dispute that the CCF was signed by the Kespondent. 

Section 40.7 1 sets out specirllen preparation procedures. This section iiicludes 

procedtires regarding scaling of tlie specimen hottles. It provides in relevant part: 

(7) Yorr nlzrsr /hen en.vtlr.e /hut the ent~~I~yee iniii(11.v /he ttrrr~/)er.- 

er:iden/ hottle .scrils,fi~r /he pi.ir.po.ve c!/'cel?ifj:ing iI7t1r ihe ho//les 

cc~nttiin /he sl~ecitnens he or. ,she provideti. If the employee fails or 

refuses ro do so. you must note this in the "Remarks" line ofthe 

CCF (Step 2) and complete the collectioi~ process. [emphasis 

supplied]. 

rflie record demonstrates, and there is no dispute that the collector took the twine 

spceimen temperature. pollred the specinlen into two bottles atid scaled them with the 

tamper evident seals containing llespondent's initials. and the date of the collectiori 

tlowever. the record is atnhiguous at best showing substantial evidence that the 

collector poured the urine specimen into the bottles and sealed them irr tlrepl?ysiccil 

presence of tlze clonor or in this ease the Respondent 

While the collector's training is extraordinary and clearly inconsistent with the 

mandate of section 40.71. the lapse of who initialed the tamper evident seals cannot be 

*. 

overcome unless the process was done in the physical presence of the donor. This is rc 

fatal llaw and a failure to s~tbstantially comply with section 40.7 1. 

111 sum, the Coast Guard's burden of proof is problematic because: I) tlie 

collcctor has no recollection ot'ltespondmt; 2) the collector does not routinely identiSy 

the donor by picture identification, instead tlic identity of the donor is determined by 

coiitpariny the donor's signature on a fonii hcld by the collector with tlic signature 

Decision and Order - 15 
inserted by tile donor 011 the Custody and Control Form; 3) the timiper evident seals 

placed on the co~ltrol bottles were initialed by the collector instead of the liespondent. 

These listed circumstances call into question the first and third prong of the prinia 

p ,161e : cased of use of daiigerous drugs. 

Consequently, I iii~~st find tliere is a lack of substantial. reliable and probative 

evidence in the record sliowing that it was Respondent's urine that was tested for 

dangerous drugs. Thc tirst and tliird elenie~its are found not proven. 

I am therefore unable to rely upon the presuinption in finding the Coast Ciuard's 

complaint is proved. 

SANCTIOV 

The governing statute niandates a maririer's license or document must be revoked 

wliere it is proven that person is a user ofa dangerous drug. See 46 USC $7704(c). Since I 

have found the complaint not proved. no sanction call he imposed. 

ORDER 

IT IS THEKEFOIZE ORDERED the coiiiplaint is DISMISSED. 

IT IS FURTHER ORDERED. Respondent's Merchant Mariner l)ocu~~ients are to be 

returned. or if unavailable, substitute or replaceniecit - . documents are to be issued as required 

by regulation in such case niade and provided. 

Service of this Decisio~i upon you serves to notify you of your right to appeal as set 

tbrtli in 33 CI:R Subpart .I, $20.1001. (Attachment A) 

Dated: October 28.2003. 

Administrative Law Judge 

Decision and Order - 16 
Witness and Exhibit List .... 

MJitnesses for the Coast Guard: 

Ms. Debbie Biliind. Specimen Collector, Tor l'ae Mons Chung, Seafarers Inlernational 

Union Contractorl 2700 J'te Tremble. Algonac, Michigan. 

I. Darlene Manolovski. Senior CertiFying Scientist, Quest Diagnostics Laboratory, 

Schaumbtirg. IL 

2. David M. Katsuyanxi. MD, Medical Review Officer, Greystone lkiealth Science 

Corporation, La Mesa. CA. 

Exhibits offered by the Coast Guard aid admitted into evidence: 

I. CG-1 Respondent's Application for Duplicate Merchant Mariner's Ilocurnent 

and Affidavit for Loss of MMD. 

2. CG-2 Affidavit ofJohn J. Bluitt notifying Coast Guard of the loss of his 

Merchant Mariner's [>ocu~nent. 

3 CG-3 Federal Register notice, Volume 66. No. 171. Tuesday, September 4. 2001 

showing current list or certified drug testing laboratories. 

4. C'G-4 Drug Litigation I'ackage from Quest Dii~gnostics. 

4A. Federal Drug Testing Custody and Control I:orm Specimen No. 3534620 

[Specitne~i No. 3534620) 

Wittiesses - and Exhibits far the respond en^: 

Respondent offered no witnesses or exhibits 

Ilecisio~? and Order - 17 
Certificate of Sewice 

I hereby certify that I have this day delivered foregoing Order upon the rollowing parties 

and lirnited participants (or designated repl.escntatives) in this proceeding, at tho address 

indicated as follows: 

Marine Safety Office, Chicago 

Attn: LT Dennis O'Mara 

Investigations Department 

110 Mi. Elliot Avenue 

Detroit. MI 48207 

(Federal Express - Gov't Overnight) 

AL.1 Docketing Center 

Dated at Seattle, WA this 28"' day of October, 2003 

Paralegal Specialist to 

Administrative Law Judge 

Decision and (11,der - 18