1

UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

THEODORE BRUCE EDENSTROM 

Respondent

_________________________________

Docket Number 2017-0140

Enforcement Activity No. 5734803

DECISION AND ORDER

Issued: March 20, 2018

By Administrative Law Judge: Honorable George J. Jordan

Appearances:

Mr. Andrew J. Norris

Suspension & Revocation National Center of Expertise

For the Coast Guard

THEODORE BRUCE EDENSTROM, Pro se

For the Respondent
2

DECISION AND ORDER

I. PROCEDURAL HISTORY

The Coast Guard initiated this proceeding by filing a Complaint seeking to revoke 

Respondent’s Merchant Mariner Credential (MMC). The Complaint alleges Respondent failed to 

disclose existing medical conditions and medications on his renewal application and refused a 

chemical test under 46 C.F.R. Part 16 on October 8, 2015.1 Respondent denied the allegations, 

asserting that he was not employed at the time of the drug test, that the Coast Guard had no 

jurisdiction and that the Coast Guard violated his right to due process in subpoenaing his medical 

records. 

I held a hearing on August 29, 2017 at the United States Courthouse in Seattle, 

Washington. Mr. Andrew Norris represented the Coast Guard. Respondent appeared pro se, 

assisted by his son, Logan Edenstrom. At the close of the hearing, the Coast Guard moved that I 

retain Respondent’s MMC pursuant to 46 C.F.R. § 5.521(b) and Respondent did not object. [Tr. 

at 207–208]. After the hearing, both parties filed post-hearing briefs including proposed findings 

of fact and conclusions of law. This matter is thus ripe for decision.

In this Decision, I find Respondent knowingly provided inaccurate information and/or 

failed to disclose required information about his medical conditions in his 2015 MMC renewal 

application. I also find Respondent’s departure from the drug testing facility constituted a refusal 

under 49 C.F.R. § 40.191 and 46 C.F.R Part 16. Accordingly, the allegations are PROVED. 

 

1 The Coast Guard brought a substantially similar allegation regarding the October 8, 2015 drug test in a previous 

case against Respondent, Docket Number 2015-0352. However, the Coast Guard withdrew it at the hearing and it 

was consequently dismissed without prejudice. The Coast Guard has now decided to revive the allegation as part of 

this case.
3

II FINDINGS OF FACT

A. Misrepresentation in MMC Renewal Application

1. The Coast Guard issued Respondent Merchant Mariner Credential (MMC) 000013216 on 

July 9, 2009. [CG-05].

2. That credential expired on July 9, 2014. [CG-05].

3. On April 21, 2015, Respondent submitted form CG-719B, Application for License as an 

Officer, Staff Officer, or Operator and Merchant Mariner Document, to the National 

Maritime Center (NMC) to renew MMC 000013216. [CG-06].

4. In support of his renewal application, Respondent also submitted form CG-719K, 

Merchant Mariner Credential Medical Evaluation Report, dated March 27, 2015. [CG07].

5. Form CG-719K requires MMC applicants to disclose whether they have, or have ever 

suffered from, certain medical conditions, as well as their prescription history for the past 

30 days and use of non-prescription medications, dietary supplements, and vitamins in 

the past 90 days. [CG-07].

6. Respondent reported he had not taken any prescription or non-prescription medication, 

dietary supplements, or vitamins within the specified time frames when he submitted 

form CG-719K. [CG-07].

7. Respondent reported that he did not currently have any of the medical conditions listed in 

Section IV of Form CG-719K, and had not suffered from any of those conditions in the 

past. [CG-07].

8. The NMC issued Respondent a renewed MMC on May 8, 2015. [CG-01].

9. During the previous proceeding against Respondent’s MMC, Docket 2015-0352, 

Respondent filed a document indicating he had an ongoing medical issue the NMC was 

previously unaware of. [CG-04; Tr. at 29].

10. Pursuant to a post-hearing review of that case, Coast Guard Investigating Officer Eric A. 

Bauer noted Respondent’s statement and initiated a review of Respondent’s most recent 

MMC application. [Tr. at 29].
4

11. The medical records obtained for this hearing show that Family Medicine Clinic in 

Olympia, Washington treated Respondent for a number of conditions listed in section IV 

of Form CG-719K from 2013 to 2016. [CG-06] These medical records are subject to a 

protective order. My findings and discussion regarding the medical records are included 

in an addendum to this decision, which is also subject to the protective order.

B. Refusal to Take DOT Drug Test

12. At all relevant times, and specifically between September 22 and October 1, 2015, BT&B 

employed Respondent as the Master of the HENRY BRUSCO. [CG-02 Finding of Fact 

(FF) #2; R-A at 50-51, 143].

13. BT&B requires new employees to read and initial the company’s drug and alcohol policy, 

contained in the employee handbook. [CG-02 FF#6; R-A at 30-31].

14. Respondent read and initialed the drug and alcohol policy. [CG-02 FF#7; R-A at 31].

15. BT&B employees must report to the company’s preferred collection facility within 24 

hours of being notified of a drug test. [CG-02 FF#8; R-A at 37-38].

16. BT&B utilizes whole-boat testing for random drug tests.2[CG-02 FF#14; R-A at 51].

17. American Maritime Safety (AMS) administers BT&B’s random drug testing program. 

[Tr. at 140; CG-02 FF#15; R-A at 20, 26-28].

18. AMS uses the Randomware software program to select vessels for whole boat testing. 

[CG-02 FF#16; R-A at 20].

19. Randomware randomly picks a specified number of items from a list and ensures each 

item is equally subject to selection. [CG-02 FF#17; R-A at 8, 13-14].

20. Diana Rivera is the vessel operations manager at AMS. [CG-02 FF#18; R-A at 19].

21. Dan Zandell is the compliance manager and Designated Employer Representative (DER) 

at BT&B. [Tr. at 139; CG-02 FF#19; R-A at 24].

22. On September 22, 2015, Ms. Rivera sent a confidential email to Mr. Zandell, notifying 

him the HENRY BRUSCO had been selected for testing. [CG-02 FF#20; R-A at 21].

 

2 A whole-boat test is when all crewmembers aboard a vessel are selected for random testing rather than an 

individual mariner. See 46 C.F.R. § 16.230(c).
5

23. After receiving the notification on September 22, 2015, BT&B had 45 days to complete 

the testing and notify AMS [Tr. at 141-142].

24. Once a selected vessel is near a collection facility, Mr. Zandell notifies the captain about 

the drug testing. [CG-02 FF#22; R-A at 28].

25. On September 22, 2015, the HENRY BRUSCO was at sea with a scheduled return to its 

homeport in Cathlamet, Washington on the evening of September 30th. [CG-02 FF#23; 

R-A at 32].

26. Mr. Zandell asked Mr. Joe Bromley, BT&B’s port captain, to notify Respondent of the 

vessel’s selection for drug testing, and to keep the crew on board until the following 

morning when the testing facility opened. [CG-02 FF#25; R-A at 32].

27. Mr. Bromley initially told Respondent by text message on September 30, 2015, to keep 

the crew aboard for the night after docking, but not to tell them it was for drug testing. 

[CG-02 FF #26-27; R-A at 79].

28. On the morning of October 1, 2015, Respondent and Mr. Bromley agreed that 

Respondent would send the crew of the HENRY BRUSCO to the BT&B office to await 

further instruction regarding the drug test. [CG-02 FF#28; R-A at 80-81].

29. Mr. Bromley did not tell Respondent where the drug test would be performed or the time 

requirements for reporting to the collection facility. [CG-02 FF#29; R-A at 70, 83].

30. Respondent remained in Cathlamet to wait for his son instead of going to the office with 

the other crew members. [CG-02 FF#37; R-A at 135].

31. Respondent arrived at the BT&B office mid-morning on October 1, 2015, and met with 

Mr. Zandell about health insurance paperwork. [CG-02 FF #41; R-A at 38-39].

32. Mr. Zandell never mentioned the need to report for a drug test to Respondent during their 

conversation. [CG-02 FF#42; R-A at 38-39].

33. Respondent did not ask Mr. Zandell or anyone else at BT&B about the drug test or 

location of the collection facility. [CG-02 FF#43; R-A at 38-39].

34. Respondent did not report to the drug testing facility on October 1, 2015. [Tr. at 145].
6

35. BT&B did not have any immediate sailing opportunities following the September 30th

return for Respondent, but kept him in the employee pool intending to place him on 

another crew within the next 45 days. [Tr. at 149-151].

36. Subsequently, Respondent filed for and received Washington State unemployment 

insurance. [Tr. at 191].

37. On October 8, 2015, Mr. Zandell discovered that Respondent had not taken a chemical 

test on October 1, 2015. [Tr. at 145-146; CG-11].

38. When Mr. Zandell contacted Respondent on October 8, 2015 to inquire why Respondent 

had failed to report on October 1, 2015, he offered Respondent a second chance to take 

the DOT random test and also informed Respondent that if he did not take the test, he 

would report it to the Coast Guard. [Tr. at 146; CG-11; R-B].

39. Respondent agreed to take the test and reported to Peace Health, the designated testing 

facility, on the afternoon of October 8, 2015. [Tr. at 147; CG-10, CG-11].

40. The collector, Dana Sorensen, followed the standard protocols and procedures for DOT 

drug tests, as described in 49 C.F.R. Part 40, when collecting Respondent’s sample. [Tr. 

at 107; CG-10].

41. Respondent provided an initial urine sample at approximately 1430 and 1437. [Tr. at 113, 

128; CG-9; CG-10].

42. Respondent’s sample registered on the collection bottle as being outside the acceptable 

temperature range (90-100 degrees F). [Tr. at 108–109, 122; CG-9; CG-10].

43. As an experienced collector, Ms. Sorensen could also feel by touch that the sample was 

excessively warm. [Tr. 109, 112, 123–124; CG-10].

44. Upon noting the out-of-range specimen, Ms. Sorensen initiated the correct protocol by 

sealing the provided specimen, having Respondent initial it, and having him immediately 

attempt to provide a second sample under direct observation. [Tr. at 109–111, 112; CG10]. 

45. Respondent, accompanied by a male observer, went back to the toilet area but was unable 

to provide a second sample. [Tr. at 129; CG-10].
7

46. Per the DOT shy bladder protocol, Ms. Sorensen provided Respondent with 10 oz. of 

water and directed him to remain in the facility’s waiting room until he was able to 

provide a second sample. [Tr. at 111; CG-10].

47. At approximately 1437 hours, Respondent departed the facility without giving the 

required second sample. [Tr. at 112, 113, 133, 137; CG-9; CG-10].

III. DISCUSSION

A. Jurisdiction

1. Misconduct

The Coast Guard alleged two separate charges of Misconduct. Jurisdiction in misconduct 

cases is established only if the misconduct occurred while the mariner was acting under the 

authority of his MMC. 46 U.S.C. § 7703; see also Appeal Decision 2615 (DALE) (2000). A 

mariner acts under the authority of a Coast Guard-issued credential or endorsement when the 

holding of such credential or endorsement is required either by law, regulation, or by an 

employer as a condition of employment. 46 C.F.R. § 5.57(a). A mariner does not cease to act 

under the authority of his or her credential while on shore leave. 46 C.F.R. § 5.57(c).

In his Motion to Dismiss, Respondent raised a number of jurisdictional issues. First, he 

argued there was no jurisdiction because his credential had expired before he submitted a 

renewal application. I found that under 46 C.F.R. § 10.205(c), for the sole purpose of renewing a 

credential, a mariner whose MMC expired within the past 12 months is treated as holding a valid 

MMC. I also found that under 46 C.F.R. § 5.57(b), a mariner is acting under the authority of his 

MMC when applying for renewal under 46 C.F.R. § 10.227(h) and (i). Thus, I determined there 

is jurisdiction for Allegation One. See Order Denying Motion to Dismiss dtd. Aug. 8, 2017.

In challenging jurisdiction for Allegation Two, Respondent argued that he was not 

employed by BT&B at the time of testing and therefore he was not acting under the authority of 

his credential when he left the drug testing facility. However, the evidence establishes 
8

Respondent remained part of the BT&B pool of employees during periods when he was not 

assigned to crew a vessel. During these times, Respondent may have been eligible for 

Washington State unemployment, but he was not subject to pre-employment testing before he 

could be assigned to another BT&B vessel. In any event, when the HENRY BRUSCO was 

selected for a whole-boat random drug test, Respondent was underway as Master of the vessel. 

The obligation to take the test arose at that time, while he was clearly an employed crew member 

aboard a BT&B vessel. I therefore find that jurisdiction attaches for purposes of Allegation Two.

2. Constitutional Arguments

Respondent raised a number of constitutional arguments in his brief. First, he states he 

“took part in these cases only under duress and appeared in a special appearance, as 

distinguished from a general appearance. The Coast Guard has the burden of showing that 

respondent is in the military to establish him as their personnel, and they have failed to do so.” 

Next, he argues he signed his credential under reservation of rights, UCC 1-308. Finally, he 

claims his private rights are protected by the limitation of police power provided in the federal 

constitution.

Constitutional issues are “the province of the Federal Courts. 46 USC § 7701 et seq.” 

Appeal Decision 2632 (WHITE) (2002); see also Appeal Decisions 2560 (CLIFTON), 2546 

(SWEENEY). Suspension and revocation proceedings are administrative, not judicial, and their 

purpose is to promote safety at sea. Id. ALJs adjudicating suspension and revocation proceedings 

have no authority to decide constitutional issues, but rather focus on issues of compliance with 

existing statutes and regulations. Id. Thus, although Respondent has raised these issues and 

preserved his arguments for appeal, I am unable to consider them here.

As to Respondent’s claim that he reserved his rights under the Uniform Commercial 

Code, thus limiting Coast Guard jurisdiction over his credential, courts routinely dismiss 
9

attempts to challenge actions through the operation of a model civil commercial statute as legally 

frivolous. See Hanloh v. People of the State of California, 2017 WL 489407 (C.D. Cal. Feb. 6, 

2017). The UCC is not a federal law and has no application to merchant mariner licensing; 

indeed, “an MMC is not valid until signed by the applicant and a duly authorized Coast Guard 

official.” 46 C.F.R. § 10.209(e). Likewise, Respondent has not provided any support for his 

claim that the Coast Guard has the burden of showing he is in the military to establish 

jurisdiction. The Coast Guard may issue an MMC to any “qualified applicant,” see 46 C.F.R. § 

10.201(c), but there is no requirement for merchant mariners to be in the military. I therefore find 

Respondent’s arguments unavailing.

B. Misrepresentation in MMC Renewal Application

1. Applicable Law

For purposes of Coast Guard Suspension and Revocation proceedings, misconduct is 

defined as “human behavior which violates some formal, duly established rule. Such rules are 

found in, among other places, statutes, regulations, the common law, the general maritime law, a 

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

or a failure to do that which is required.” 46 C.F.R. § 5.27. 

The Commandant held that a “plain-language reading of the definition of ‘misconduct’ 

shows that it includes behaviors that violate statutes.” Appeal Decision 2658 (ELSIK) (2006). 

The Complaint alleged that Respondent violated 18 U.S.C. § 1001 by making false, fictitous, and 

fraudulent statements in a Merchant Mariner Credential Medical Evaluation Report (CG-719K), 

which he submitted to the NMC along with his Application for License as an Officer, Staff 

Officer, or Operator and Merchant Mariner Document (CG-719B). This statute reads: 

Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any 

matter within the jurisdiction of the executive, legislative, or 
10

judicial branch of the Government of the United States, knowingly 

and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device 

a material fact;

(2) makes any materially false, fictitious, or fraudulent statement 

or representation; or

(3) makes or uses any false writing or document knowing the same 

to contain any materially false, fictitious, or fraudulent statement 

or entry;

18 U.S.C.A. § 1001.

Title 18 U.S.C. § 1001 “is an appropriate source of a ‘formal, duly established rule’” that may 

form the basis for a misconduct allegation. Appeal Decision 2610 (BENNETT) (1999); see also

Appeal Decisions 2570 (HARRIS) (1995). The fact that the Coast Guard could have sought 

criminal penalties for the charged offenses does not preclude a suspension or revocation action 

for those same offenses. See ELSIK.

The requirement for mariners to obtain a medical certificate as part of the MMC renewal 

process is set forth in Coast Guard regulations at 46 C.F.R. § 10.301. To qualify for a medical 

certificate, a mariner must provide evidence of meeting the medical and physical standards by 

filing a Form CG–719K or CG–719K/E, as appropriate. 46 C.F.R. § 10.302. This requirement is 

therefore a formal, duly established rule and, if violated, can form the basis for a suspension or 

removal proceeding.

A mariner who commits fraud in order to obtain an MMC violates a law designed to 

promote maritime safety and also commits a serious act of misconduct. Appeal Decision 2613 

(SLACK) (1999). In Appeal Decision 2569 (TAYLOR) (1995), the Commandant made clear that 

“fraud in the procurement of any license, certificate, or document is a clear threat to the safety of 

life or property.” This is because it is critical that the Coast Guard have truthful information on 

which to base its determination as to whether to issue a credential. See Appeal Decision 2670 

(WAIN) (2007). 
11

A person makes a fraudulent statement if he or she has either actual or constructive 

knowledge that the statement is false, or intends it to be misleading. See Appeal Decision 809 

(MARQUES) (1955). In addition, a statement recklessly made without knowledge of its truth or 

falsity may be considered a false statement knowingly made. See Cooper v. Schlesinger, 111 

U.S. 148 (1884). The Commandant held that if a mariner “had reason to know that the 

representation he made ... was false, then he may be considered to have constructive knowledge 

of the falsity of the statement made.” See Appeal Decision 809 (MARQUES). Specific intent to 

make a fraudulent statement is not required; rather, the focus is on whether the person making a 

statement knows it is likely to be false. Id. “Whether Respondent had reason to know, or should 

have known, that the statement was false, is a determination driven by the specific facts of the 

case.” Appeal Decision 2663 (LAW) (2007) (internal citations omitted).

2. Analysis

The issues I must consider are whether Respondent (1) made a materially false, fictitious, 

or fraudulent statement or representation; or (2) made a false writing or document knowing the 

same to contain any materially false, fictitious, or fraudulent statement or entry. An MMC 

application contains a Certification and Oath which must be signed by the applicant, in which the 

applicant certifies that the information provided in connection with the application is true and 

correct. Respondent signed the Certification on April 2, 2015, and was therefore aware of this 

requirement. [EX CG-06].

The record clearly establishes that Respondent prepared and signed a Merchant Mariner 

Credential Medical Evaluation Report (CG-719K) on March 27, 2015. [EX CG-07]. In Section 

III of that form, he was required to report all prescription medications prescribed, filled or 

refilled, and/or taken within 30 days of signing Form 719K as well as all non-prescription 

medications, dietary supplements, or vitamins used for a period of 30 days or more within 90 
12

days of signing the form. He checked “None” in Section III. [EX CG-07]. There are no medical 

records in the file from the 90-day period preceding the date he signed Form 719K, and no other 

evidence about Respondent’s use of medication, dietary supplements, or vitamins during that 

time. Thus, the Coast Guard has not proved by substantial evidence that Respondent misreported 

his use of such substances on Form CG-719K.

Form CG-719K requires an applicant to indicate whether, to the best of the applicant’s 

knowledge, he or she has, or has ever suffered from, any of the 88 medical conditions listed in 

Section IV. Respondent marked all listed conditions as “NO.” [EX CG-07]. The record 

established that the Family Medicine Clinic of Olympia, Washington treated Respondent for at 

least four listed conditions between September 23, 2013 and March 27, 2015. [EX CG-08].

Respondent’s principal defense is that the Coast Guard invaded his privacy by issuing the 

investigatory subpoena to obtain his medical records. I considered this issue when Respondent 

raised it in his Motion to Dismiss, and found that the Investigating Office appropriately used the 

subpoena authority granted to him pursuant to 46 U.S.C. § 7705 and 46 C.F.R. § 5.301(b). See

Order Denying Motion to Dismiss dtd. Aug. 8, 2017. I also found that Federal and state law did 

not prevent disclosure of these records pursuant to such subpoena. Id.

At the hearing, Respondent contended that the Coast Guard misused its subpoena 

authority because that authority only exists in marine casualty investigations. [Tr. at 52-53]. 

However, Respondent’s argument conflates two distinct statutes. Title 46 U.S. Code § 7705(a) 

grants both investigators and officers presiding at a suspension revocation hearing the authority 

to administer oaths and issue subpoenas for the testimony of witnesses and the production of 

documents and other evidence. Section 7705(b) states, “The jurisdictional limits of a subpena3

issued under this section are the same as, and are enforceable in the same manner as, subpenas 

issued under Chapter 63 of this title.” Title 46 U.S.C. Chapter 77 governs Coast Guard 
13

suspension and revocation proceedings generally, while Chapter 63 governs investigations of 

marine casualties. The plain language of 46 U.S.C. § 7705 shows that marine casualty 

investigators have subpoena authority that is separate and distinct from that of hearing officials 

in suspension and revocation cases is separate and distinct from that of marine casualty 

investigators. For brevity’s sake, rather than restating the jurisdictional limits and enforcement 

procedures in section 7705(b), Congress simply referred to an earlier section of the statute.

The subpoena authority in both marine casualty investigations and suspension and 

revocation cases “is co-extensive with that of a district court of the United States, in civil 

matters, for the district in which the investigation is conducted.” 46 U.S.C. § 6304(a). Here, the 

nexus of the investigation was Olympia, Washington and Astoria, Oregon, where Respondent’s 

medical providers were located. The fact that the NMC is physically located in West Virginia 

does not shift the location of the investigation, as the NMC is charged with providing services to 

all Coast Guard-credentialed mariners throughout the United States. I therefore find that the 

appropriate District Courts to look to are the Western District of Washington and the District of 

Oregon. Further, I find I can consider these records in reaching my decision in this case.

Each of the four conditions described in Respondent’s medical records was potentially 

disqualifying. Respondent had recently been treated for three of those conditions and, as 

described in the addendum, knew that his statements on the form denying having any listed

medical condition were not true.4 His representations on Form CG-719K are therefore 

considered to be fraudulent statements and were clearly material to the Coast Guard’s decision 

about whether to renew Respondent’s MMC or subject it to further review by the NMC. See

Appeal Decision 809 (MARQUES). The allegation is found PROVED.

 

3 At the time this statute was drafted, “subpena” was the spelling used in Government Printing Office publications.

4 As previously noted, a more thorough discussion of Respondent’s conditions is provided in an addendum to this 

Decision, which is subject to a protective order.
14

C. Drug Test Refusal 

1. Applicable Law

The Complaint alleges that Respondent refused to take a required drug test. The Coast 

Guard’s rules for chemical testing are located in 46 C.F.R. Part 16 and incorporate 49 CFR Part 

40, the Department of Transportation (DOT) drug testing procedures. See 46 C.F.R. § 16.201. 

The DOT regulations require marine employers to establish programs to randomly administer 

drug tests to crewmembers on uninspected vessels who:

(1) Are required by law or regulation to hold a license or MMC 

endorsed as master, mate, or operator in order to perform their 

duties on the vessel;

(2) Perform duties and functions directly related to the safe 

operation of the vessel;

(3) Perform the duties and functions of patrolmen or watchmen 

required by this chapter; or,

(4) Are specifically assigned the duties of warning, mustering, 

assembling, assisting, or controlling the movement of passengers 

during emergencies.

46 C.F.R. § 16.230(b).

Under the rules, “random selection may be accomplished by periodically selecting one or 

more vessels and testing all crewmembers covered by this section, provided that each vessel 

subject to the marine employer's test program remains equally subject to selection.” 46 C.F.R. § 

16.230(c). Marine employers may use contractors to conduct their random chemical testing 

programs. 46 C.F.R. § 16.230(d).

The Commandant holds that drug test refusals under 49 C.F.R. § 40.191 constitute 

misconduct. See Appeal Decisions 2690 (THOMAS) (2010); 2675 (MILLS) (2008). An 

employee refuses to take a drug test if he or she “(2) Fail[s] to remain at the testing site until the 

testing process is complete.” 49 C.F.R. § 40.191(a)(2). DOT rules also state that “if you refuse to 

take a drug test, you incur the consequences specified under DOT agency regulations for a 

violation of those DOT agency regulations.” 49 C.F.R. § 40.191(c).
15

When testing is undertaken by private employers to comply with Federal regulatory 

requirements under 46 C.F.R. Part 16, the employer acts as an instrument or agent of the 

Government. See Appeal Decision 2704 (FRANKS) 2014 WL 4062506. “A governmentmandated drug test must be both properly ordered (in accordance with 46 C.F.R. Part 16) and 

properly conducted (in accordance with 49 C.F.R. Part 40). If it is not, the test cannot form the 

basis for suspension and revocation proceedings.” Id. at *7. “Under this rule, when the test was 

ordered pursuant to the regulations but the justification for it is not consonant with the 

regulations, or the test is not conducted in accordance with 49 C.F.R. Part 40 and is therefore 

unreliable, there is no prima facie case proved.” Id. at *10.

2. The October 8, 2015 Test was a DOT Drug Test

The issues I must consider are whether: 1) the October 8, 2015, test was a DOT drug test, 

2) Respondent was acting under the authority of his credential at the time of such a test; and, if 

so, 3) his failure to remain at the collection facility and complete the drug test constitutes a 

refusal under 49 C.F.R. § 40.191(a)(2) and 46 C.F.R. Part 16. If each of these conditions is met, 

his refusal constitutes an act of misconduct as described by 46 U.S.C. § 7703(1)(B) and defined 

by 46 C.F.R. § 5.27.

BT&B is required under 46 C.F.R. Part 16 to administer random drug testing to its 

licensed employees. [CG-02 FF #3; R-A at 34-35, 53]. As allowed under 46 C.F.R. § 16.230(d), 

BT&B engaged a third-party, AMS, to manage its random testing program. BT&B also employs 

a Designated Employer Representative, who is responsible for notifying employees when they 

have been selected for random drug testing. The Coast Guard has established that AMS selected 

the HENRY BRUSCO for drug testing while Respondent was acting as Master of that vessel, 

thus under BT&B’s whole-boat testing program, the company was obligated to drug test 

Respondent and the other members of his crew.
16

In my Decision in Docket 2015-0352, dated January 12, 2017, I found that BT&B did not 

adequately notify Respondent of his responsibility to take a drug test on October 1, 2015. 

However, it is clear from the evidence here that Mr. Zandell gave Respondent adequate notice to 

appear on October 8, 2015, to take the drug test for which he had been selected as a crewmember 

aboard the HENRY BRUSCO on September 22, 2015. I therefore find the October 8, 2015, test 

was a required random drug test ordered pursuant to 46 C.F.R. Part 16. 5

3. Respondent Refused to Take a Drug Test

In the Complaint, the Coast Guard has specifically alleged that “Respondent's failure to 

remain at the collection site until the testing process was complete is a refusal to submit to a 

required 46 CFR Part 16 drug test, as described by 49 CFR 40.191.” The drug testing process 

begins when the employee--or the collector, in the employee's presence--breaks the seal on the 

collection container. See 49 C.F.R. § 40.63(c). If the employee leaves at any time thereafter, he 

will be deemed to have refused to take the drug test. Appeal Decision 2685 (MATT) (2010). The 

evidence presented in this case clearly shows that the testing process had already begun before 

Respondent left the site.

The collector credibly testified that Respondent gave an initial urine sample, but it was 

outside the normal temperature range. The collector then called a male collector, as required by 

DOT rules, to attempting to collect a sample under direct observation. See 49 C.F.R. § 40.65. 

The evidence establishes Respondent was unable to provide a sample under direct observation. 

The collectors subsequently began the procedure used in instances of shy bladder by providing 

Respondent with liquids. However, at this stage Respondent left the facility without providing an 

adequate urine sample for the DOT testing procedures to be carried out.

 

5

I note that my Decision in Docket 2015-0352 is on appeal to the Commandant. If the Commandant determines that 

the notification for the October 1, 2015, test was in fact adequate, my findings here as to the October 8, 2015, test 

would necessarily need to be revisited because it might not be considered a random drug test under Coast Guard 

and DOT regulations.
17

The record is clear that a drug test had commenced and Respondent left before it was 

completed. This meets the requirements of 49 CFR 40.191(a)(2). Accordingly, I find this 

allegation PROVED.

IV. FACTORS CONSIDERED IN DETERMINING AN APPROPRIATE ORDER

Having found both allegations proved, I must now issue an appropriate order in this 

matter. 33 C.F.R. § 20.902(a)(2). Coast Guard regulations detail the factors to be considered in 

determining an appropriate order. 46 C.F.R. § 5.569. However, “An Administrative Law Judge 

has wide discretion to formulate an order adequate to deter the [a mariner’s] repetition of the 

violations he was found to have committed.” Appeal Decision 2475 (BOURDO) (1988). “The 

selection of an appropriate order is the responsibility of the Administrative Law Judge, subject to

appeal and review. The investigating officer and the respondent may suggest an order and 

present argument in support of this suggestion during the presentation of aggravating or 

mitigating evidence.” 46 C.F.R. § 5.569(a). Accordingly, I am not bound by the Coast Guard’s 

recommendations.

The appropriate sanction to be given for a particular offense is dependent on the type and 

circumstances of the offense. 46 C.F.R. § 5.569. Statutes, regulations and decisions on appeal 

mandate a particular sanction for certain offenses, whereas other offenses give the ALJ discretion 

in crafting the appropriate sanction. Id. A number of Commandant Decisions on Appeal have 

made clear that when fraud in the procurement of a license is proven, revocation is the only 

appropriate sanction. Appeal Decisions 2205 (ROBLES) (1980); 2346 (WILLIAMS); 2570 

(HARRIS); 2569 (TAYLOR); 2613 (SLACK). However, a sanction of less than revocation may 

be imposed when a mariner made a false statement on his application rather than a fraudulent 

statement. Appeal Decision 2663 (LAW) (2007).
18

Except for mandated sanctions, an ALJ may consider the following factors in 

determining an appropriate sanction: (1) remedial actions which have been undertaken 

independently by Respondent; (2) the prior record of Respondent, considering the period of time 

between prior acts and the act or offense for which presently charged is relevant; and (3) 

evidence of mitigation or aggravation. See 46 C.F.R. § 5.569(b). These rules include a Table 

entitled “Suggested Range of an Appropriate Order,” stating Table 5.569 “is for the information 

and guidance of Administrative Law Judges and is intended to promote uniformity in orders 

rendered. This table should not affect the fair and impartial adjudication of each case on its 

individual facts and merits.” 46 C.F.R. § 5.569(d). 

The regulations explain how an ALJ may apply the “Suggested Range of an Appropriate 

Order” Table, noting that:

The orders are expressed by a range, in months of outright 

suspension, considered appropriate for the particular act or offense 

prior to considering matters in mitigation or aggravation. For 

instance, without considering other factors, a period of two to four 

months outright suspension is considered appropriate for failure to 

obey a master’s written instructions. An order within the range 

would not be considered excessive. Mitigating or aggravating 

factors may make an order greater or less than the given range 

appropriate. Orders for repeat offenders will ordinarily be greater 

than those specified. 

46 C.F.R. § 5.569(d).

In Coast Guard suspension and revocation cases, “[t]he sanction imposed in a particular 

case is exclusively within the authority and the discretion of the ALJ,” who is not bound by the 

scale of average orders. Appeal Decision 2628 (VILAS) (citing Appeal Decisions 2362 

(ARNOLD) and 2173 (PIERCE)). “In the absence of a gross departure from the Table of 

Recommended Awards, the order of the ALJ will not be disturbed on review.” Appeal Decision 

2628 (VILAS) (citing Appeal Decision 1937 (BISHOP)). 
19

The sanction prescribed in 46 C.F.R. § 5.569 for a refusal to take a drug test is a 12–24 

month suspension. When aggravating factors are present, this sanction may be increased up to 

and including revocation. See Appeal Decision 2702 (CARROLL) (2013) (interpreting Coast 

Guard policy in light of Commandant v. Moore, NTSB Order No. EM-201 (2005)). However, as 

previously discussed, the only appropriate sanction where fraud in the procurement of a license 

is proved is revocation. I found Appellant to have made fraudulent statements in order to procure 

a renewal of his license and must therefore order that his MMC is REVOKED. As I retained 

Respondent’s MMC at the hearing, my office will forward it to the appropriate Marine Safety 

unit.

ORDER

WHEREFORE:

IT IS HEREBY ORDERED that the Coast Guard’s allegations in the Complaint are 

found PROVED; and

IT IS HEREBY FURTHER ORDERED that Respondent’s Merchant Mariner’s 

Credential is REVOKED. 

IT IS ORDERED that service of this Decision and Order upon Respondent will serve as 

notice to Respondent of appeal rights as set forth in 33 CFR Subpart J, Section 20.1001. 

__________________________________________________

George J. Jordan

US Coast Guard Administrative Law Judge

Date: 

March 20, 2018