UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_______________________________

UNITED STATES COAST GUARD,

Complainant,

vs.

NATHANIEL TYRONE JENNINGS,

Respondent.

______________________________

Docket Number 2020-0477

Enforcement Activity No. 5786461

DECISION AND ORDER

Issued: June 2, 2022

By Administrative Law Judge: Honorable Michael J. Devine

Appearances:

ANDREW S. MYERS, ESQ.

Suspension & Revocation National Center of Expertise

and

LT GREGORY VELLIKY

Sector Jacksonville

For the Coast Guard

NATHANIEL TYRONE JENNINGS, Pro Se

Respondent
2

I. PROCEDURAL HISTORY

The United States Coast Guard (Coast Guard) initiated this administrative action seeking 

revocation of Nathaniel Tyrone Jennings’ (Respondent) Merchant Mariner Credential (MMC). 

This action is brought pursuant to the authority contained in 46 U.S.C. 7704(b) and its 

underlying regulations codified at 46 C.F.R. Part 5 and 33 C.F.R. Part 20.

The Coast Guard filed a Complaint on December 1, 2020, charging Respondent with use 

of or addiction to dangerous drugs under 46 U.S.C. § 7704(b) and 46 C.F.R. § 5.35. Specifically, 

the Coast Guard alleges Respondent took a random drug test on August 18, 2020, which yielded 

a positive result for marijuana metabolites. Respondent, through counsel, filed an Answer on 

December 18, 2020, admitting the jurisdictional allegations of the Complaint, and admitting he 

took a random drug test on August 18, 2020, pursuant to 46 C.F.R. Part 16.1 However, 

Respondent denied the remainder of the factual allegations and asserted the affirmative defense 

of use of CBD oil.

The hearing of this case was originally set to commence in June 2021 but was continued 

several times due to Respondent’s schedule while serving on a vessel overseas. Eventually the 

hearing was held on October 7, 2021. Due to the COVID-19 pandemic and resulting travel 

restrictions and health concerns surrounding in-person hearings, the parties agreed to conduct the 

hearing by the remote video-conferencing application Zoom for Government. At the conclusion 

of the hearing, the Administrative Law Judge (ALJ) granted the Coast Guard’s motion to require 

Respondent to deposit his MMC with the Coast Guard pursuant to 46 C.F.R. § 5.521(b). 

Thereafter, Respondent requested a post-hearing conference and has sought return of his 

 

1 Respondent’s counsel subsequently withdrew and Respondent continued pro se.

4

6. The collector followed the following protocol during Respondent’s August 18, 2020 

urine collection: (Tr. at 59-63).

a. The collector secured the faucet of the restroom and put blue dye in the 

restroom toilet. (Tr. at 59).

b. The collector verified Respondent’s identity by looking at Respondent’s I.D. 

(Tr. at 60-61).

c. The collector then filled out Step 1 of the Federal Drug Testing Custody and 

Control Form (CCF). (Tr. at 61).

d. The collector had Respondent remove all items from his pockets and wash his 

hands; the collector then handed a collection cup to Respondent and directed 

Respondent to enter the restroom and fill the collection cup. (Tr. at 61).

e. When Respondent came out of the restroom with the urine sample, the 

collector checked the sample’s temperature and verified it was in the normal 

range. (Tr. at 61).

f. In Respondent’s presence, the collector poured the urine into two split 

specimen bottles and sealed the bottles. (Tr. at 61-62).

g. The collector had Respondent initial the sealed bottles. (Tr. at 61-62).

h. The collector then completed Steps 2 through 4 of the CCF. (Tr. at 62).

i. The collector had Respondent complete Step 5 of the CCF, which includes 

Respondent’s signature verifying a statement that the specimen bottles were 

sealed in his presence. (Tr. at 62).

j. The collector placed the sealed split specimen bottles and the lab copy of the 

CCF into the plastic test kit bag and sealed the bag. (Tr. at 62).

7. The CCF used for Respondent’s August 18, 2020 urine collection identified 

Respondent’s sample as Specimen ID #Y39734254. (Ex. CG-002).

8. Medtox Laboratories, Inc. (Medtox) of St. Paul, Minnesota, received Specimen ID 

#Y39734254 on August 21, 2020. (Ex. CG-015 at 5).

9. Medtox is a SAMSHA certified laboratory. (Exs. CG-010, CG-015; Tr. at 85-87).

10. On August 21, 2020, Specimen ID #Y39734254 tested positive for marijuana 

metabolites in both initial and confirmation testing. (Ex. CG-015 at 46, 113; Ex. CG018; Tr. at 75, 82, 93).
5

11. Medtox employed marijuana metabolite cut-off levels of 50 ng/ml for initial testing 

and 15 ng/ml for confirmation testing. (Tr. at 82).

12. Through gas chromatography mass spectrometry confirmation testing, Specimen ID 

#Y39734254 tested positive for marijuana metabolites at a level of 19 ng/ml. (Ex. 

CG-003; Ex. CG-015 at 113; Ex. CG-018; Tr. at 82).

13. Medtox properly maintained the chain of custody for Specimen ID #Y39734254. (Tr. 

at 83-85; Ex. CG-015).

14. Dr. Walter H. Oakes is, and at all times relevant to these proceedings was, a licensed 

physician and certified Medical Review Officer (MRO). (Tr. at 106; Ex. CG-006).

15. On August 25, 2020, Dr. Oakes reviewed the test results transmitted by Medtox. 

(Exs. CG-004, CG-008). 

16. On August 25, 2020, Dr. Oakes called Respondent and informed him that Medtox’s 

analysis showed his urine specimen tested positive for marijuana. Later on August 

25, 2020, Respondent called Dr. Oakes back and requested split specimen testing. 

(Ex. CG-007).

17. Dr. Oakes certified on August 25, 2020, that Specimen ID #Y39734254 tested 

positive for marijuana metabolites. (Exs. CG-004, CG-008).

18. Medtox forwarded the second vial of Specimen ID #Y39734254 to Clinical 

Reference Laboratory (CRL) for split specimen testing. (Tr. at 130-131; Ex. CG019).

19. CRL performed testing and issued a report confirming the split specimen sample 

tested positive for marijuana metabolites. (Ex. CG-019; Ex. CG-009; Tr. at 132).

20. Dr. Oakes reviewed the test results of the split specimen testing performed by CRL 

for Specimen ID #Y39734254. (Tr. at 107-111; Exs. CG-004, CG-008, CG-009).

21. Dr. Oakes certified on August 28, 2020, that split specimen testing of Specimen ID# 

Y39734254 was also positive for marijuana metabolites. (Ex. CG-009).

22. Respondent denied using marijuana. (Tr. at 34, 114, 127, 129, 139, 158, 161, 163-

168, 170, 172; Exs. R-D, R-E).

23. Respondent purchased and used a hemp oil spray containing cannabidiol (CBD) on 

August 17, 2020. (Tr. at 174, 177; Exs. R-A, R-B).

24. Respondent’s doctor recommended the use of CBD oil to alleviate pain in his knees. 

(Tr. at 169, 178; Ex. R-F).
6

III. DISCUSSION

The purpose of Coast Guard suspension and revocation (S&R) proceedings is to promote 

safety at sea. See 46 U.S.C. § 7701. ALJs are authorized by 46 C.F.R. § 5.19 to suspend or 

revoke an MMC for violations arising under 46 U.S.C. § 7704. Under 46 U.S.C. § 7704(b), an 

MMC shall be revoked if the holder has been a user of or addicted to a dangerous drug, unless 

the holder provides satisfactory proof that he is cured. See generally Appeal Decision 2634 

(BARRETTA) (2002); Appeal Decision 2535 (SWEENEY) (1992) (rev’d on other grounds) 

(definition of cure established). Here, the Coast Guard charged Respondent with use of or 

addiction to dangerous drugs because Respondent took a random drug test on August 18, 2020, 

which yielded a positive result for marijuana metabolites. The Coast Guard seeks revocation of 

Respondent’s MMC in accordance with 46 C.F.R. § 5.59. For the reasons stated below, I find 

the Coast Guard PROVED the charged violation based on the evidence in the record as a whole.

Before turning to the specific charges, I first address whether I have jurisdiction in this case.

A. Jurisdiction

Under Coast Guard case law, jurisdiction is a question of fact and must be determined 

before the substantive issues of the case are decided. Appeal Decision 2620 (COX) (2001). 

When the Coast Guard charges use of a dangerous drug, jurisdiction exists so long as the 

respondent holds a credential at the time the Coast Guard initiates the proceedings. Appeal 

Decision 2712 (MORRIS) (2016); Appeal Decision 2721 (TOWNSEND) (2018). Here, the 

record shows Respondent held MMC No. when the Coast Guard filed the Complaint 

initiating the case. (Ex. CG-001). Respondent also admitted jurisdiction in his Answer. 

Accordingly, I have jurisdiction to adjudicate this matter. 
7

B. Burden of Proof

The Administrative Procedure Act (APA), 5 U.S.C. §§ 551-559, applies to Coast Guard 

S&R hearings before United States ALJs. 46 U.S.C. § 7702(a). The APA authorizes sanctions 

if, upon consideration of the entire record as a whole, the charges are supported by reliable, 

probative, and substantial evidence. 5 U.S.C. § 556(d). Under Coast Guard procedural rules and 

regulations, the burden of proof is on the Coast Guard to prove the charges are supported by a 

preponderance of the evidence. 33 C.F.R. §§ 20.701, 20.702(a). “The term ‘substantial 

evidence’ is synonymous with ‘preponderance of the evidence’ as defined by the U.S. Supreme 

Court.” Appeal Decision 2477 (TOMBARI) (1988) at *3; see also Steadman v. Securities and 

Exchange Commission, 450 U.S. 91, 107 (1981). 

The burden of proving a fact by a preponderance of the evidence “simply requires the 

trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before 

[he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s 

existence.’” Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension 

Trust for Southern California, 508 U.S. 602, 622 (1993) (citing In re Winship, 397 U.S. 358, 

371-72 (1970) (Harlan, J., concurring) (brackets in original)). Therefore, the Coast Guard must 

prove by credible, reliable, probative, and substantial evidence that Respondent more likely than 

not committed the charged violation. Having discussed the burden of proof in this case, I now 

turn to the specific allegations in this case.

C. The Coast Guard Proved a Prima Facie Case of Use of a Dangerous Drug

The drug testing procedures in 46 C.F.R. Part 16 were established not only to protect 

public safety interests but also to ensure that the constitutional rights of the mariner were 

safeguarded throughout the drug testing process. Appeal Decision 2704 (FRANKS) (2014) at 
8

*5. By expressly mandating limited, specific types of drug tests—pre-employment, periodic, 

random, serious marine incident, and reasonable cause testing—the drafters of the regulations 

ensured that the constitutionally protected privacy interests of the mariner were balanced with 

the overriding need to ensure a drug-free and safe workplace.2Id. at *4.

As stated above, the Coast Guard bears the burden of proof. When the Coast Guard seeks 

revocation of a mariner’s credential based on a failed drug test conducted pursuant to 46 C.F.R. 

Part 16, the Coast Guard can obtain a presumption that the respondent is a user of dangerous 

drugs if it presents a prima facie case. 46 C.F.R. § 16.201(b).3 A prima facie case is made when 

the following three elements are established: 1) Respondent was the person who was tested for 

dangerous drugs; 2) Respondent failed the drug test; and 3) the test was conducted in accordance 

with 46 C.F.R. Part 16. Appeal Decision 2603 (HACKSTAFF) (1998); Appeal Decision 2653 

(ZERINGUE) (2002); Appeal Decision 2584 (SHAKESPEARE) (1997). In establishing the 

afore-mentioned three elements, the Coast Guard, in effect, establishes that the drug test was 

properly ordered for one of the reasons listed in Part 16 (i.e., the test was a pre-employment, 

periodic, random, serious marine incident, or reasonable cause drug test) and the test was 

conducted in a reliable manner in accordance with 49 C.F.R. Part 40 (the regulations governing 

the specimen collection, laboratory testing, and verification processes). See Appeal Decision 

2704 (FRANKS) (2014) (discussing the “why” and “how” of drug testing under 46 C.F.R. Part 

16). 

Once the Coast Guard establishes a prima facie case that a respondent is a user of or 

addicted to dangerous drugs, the respondent may then present evidence to rebut the presumption 

 

2 See 46 C.F.R. §§ 16.210-16.250.

3 46 C.F.R. § 16.201(b): If an individual fails a chemical test for dangerous drugs under this part, the individual will 

be presumed to be a user of dangerous drugs.
9

of the positive drug test result. If the respondent fails to rebut the evidence presented by the 

Coast Guard, the ALJ may find the charges proved based upon the presumption alone. Appeal 

Decision 2592 (MASON) (1997).

As discussed below, I find the Coast Guard established a prima facie case of drug use, 

and Respondent failed to rebut the presumption arising from the establishment of the prima facie

case. 

1. Respondent Was the Person Tested for Dangerous Drugs and the 

Collection Process Satisfied the Requirements of 49 C.F.R. Part 40

The Coast Guard must prove Respondent was the person who submitted the specimen 

that was tested for drugs. Appeal Decision 2603 (HACKSTAFF) (1998) at *3. To meet this 

element of the prima facie case, the Coast Guard must show that the specimen collection process 

complied with the requirements of 49 C.F.R. Part 40, Subparts C, D, and E. 

At the time of the collection at issue in this case, Great Lakes Dredge & Dock Company, 

LLC (hereinafter Great Lakes) employed Respondent and he was working aboard the Dredge 

OHIO. (Tr. at 37-38, 54, 165; Ex. CG-013). On August 18, 2020, a certified 

urine specimen collector with Anderson-Kelly Associates, went to the Dredge OHIO to collect 

urine specimens from the crew for a random drug test. (Ex. CG-003; Tr. at 49, 54-55). At all 

times relevant to this proceeding, the collector was certified in collection procedures meeting the 

DOT drug testing program standards. 49 C.F.R. § 40.31(a). (Ex. CG-005; Tr. at 50-51). The 

collector has completed over a thousand urine specimen collections in his career. (Tr. at 50). He 

recalled boarding the Dredge OHIO, being escorted to the area where the collection took place, 

which he described as a “crew lounge area with a single stall toilet off of it,” and conducting the

collection; and he testified that he followed the standard collection procedures to which he 

always adheres. (Tr. at 54-55, 59-63). He did not recall any issues or problems with the 
10

collection process that day and stated he would have noted in the “Remarks” section in Step 2 of 

the CCF if there were any issues or problems. (Tr. at 63). The collector identified the CCF 

containing his signature and Respondent’s signature, for this collection on August 18, 2020, 

which had a Specimen ID #Y39734254. (Ex. CG-002). There were no notes in the “Remarks” 

section in Step 2. (Ex. CG-002).

As to the collector’s standard collection procedures, he testified that he would have 

secured the faucet in the bathroom by shutting off the water or covering the faucet handles with 

tamper-evident tape, added blue dye to the toilet, and removed any potentially adulterating 

substances like soap from the bathroom. (Tr. at 59). He would allow only one donor to go into 

the bathroom at a time to produce a sample. (Tr. at 60). For each donor, he would check his or 

her I.D. to ensure the donor was on the crew list, and fill out Step 1 of the CCF. (Tr. at 60-61). 

He would then ask the donor to wash his or her hands and remove everything from his or her 

pockets. (Tr. at 61). The collector would then choose a test kit in the donor’s presence, hand the

donor a sample cup, and have the donor go into the bathroom to fill the sample cup. (Tr. at 61). 

When the donor came out of the bathroom with the sample, the collector would have done all of 

the following in the presence of the donor: check the sample’s temperature with a temperature 

strip placed onto the plastic sample cup, pour the sample into the two smaller plastic vials (also 

called split specimen bottles) of the test kit, take the seals which contain a unique identifying 

number off the bottom of the CCF and seal the vials, and have the donor initial the seals on the 

vials. (Tr. 61-62). The collector would then place the two sealed vials into the plastic bag, and 

complete Steps 2 through 4 of the CCF. (Tr. at 62). He would then have the donor complete 

Step 5 of the CCF, which requires the donor’s signature, date of birth, date of the collection, and 

phone number. (Tr. at 62). Finally, the collector would give the donor his or her copy of the 
11

CCF, keep the top copy of the CCF, place the lab’s copy of the CCF into the bag along with the 

two sealed vials, and seal the bag. (Tr. at 62).

On cross-examination, Respondent alleged the collector did not secure the faucets in the 

bathroom. (Tr. at 58, 63-64). The collector did not have a specific recollection of every action 

he took in this case, but he stated his normal practice would have been to secure the faucets and 

that he believed he taped the faucets for this case. (Tr. at 64). This was the only part of the 

collector’s testimony Respondent challenged. (Tr. at 58). Although Respondent stated the 

faucets were not secure, he did not indicate this flaw caused his sample to become adulterated or 

misidentified. Accordingly, I find the Coast Guard did prove Respondent was the person who 

provided Specimen ID #Y39734254.

2. Respondent’s Sample Tested Positive for Marijuana Metabolites and the 

Testing and MRO Confirmation Processes Satisfied the Requirements of 

49 C.F.R. Part 40

Next, the Coast Guard must show Respondent’s sample must test positive for the alleged 

drug, here, marijuana metabolites. In order to prove this part of the prima facie case, the Coast 

Guard must show the test was conducted in accordance with 49 C.F.R. Part 40, Subparts F, G, 

and H. Appeal Decision 2728 (DILLON) (2020) at *2. As set forth below, the Coast Guard 

proved Respondent’s sample tested positive for marijuana metabolites. 

William Collie testified on behalf of Medtox as to the testing of Respondent’s urine 

specimen. (Tr. at 70-100). Mr. Collie is the Certifying Scientist Supervisor for Medtox. (Tr. at 

71). Only laboratories certified by the U.S. Department of Health and Human Services (HHS) 

under the National Laboratory Certification Program (NLCP) may perform DOT drug testing. 

49 C.F.R. § 40.81(a). At all times relevant to this proceeding, Medtox was certified by the 

NLCP. (Tr. at 71-72; Ex. CG-010).
12

Mr. Collie testified as to the authenticity of the lab copy of the CCF. (Ex. CG-003; Tr. at 

85-87). Medtox received Specimen ID #Y39734254 on August 21, 2020, with the split sample 

specimen bottle seals intact (Ex. CG-003; Ex. CG-015 at 5). Upon receipt, Medtox assigned 

Specimen ID #Y39734254 the unique accession number E2843694. (Ex. CG-003; Ex. CG-015

at 5; Tr. at 79). At no time during Medtox’s possession of Specimen ID #Y39734254 was the 

chain of custody compromised. (Tr. at 83-85; Ex. CG-015). Medtox ensured its equipment 

produced accurate results by performing calibration and quality control tests. (Tr. at 81, 84-85). 

Medtox performed an initial screening of Respondent’s specimen, utilizing a 50 ng/ml 

cut-off level, which produced a presumptive positive result for tetrahydrocannabinolic acid 

(THCA), a marijuana metabolite. 49 C.F.R. § 40.87(a). (Exs. CG-003, CG-015 at 46; Tr. at 75, 

82, 99). Medtox then performed confirmatory testing using gas chromatography mass 

spectrometry. (Tr. at 82). The cut-off level for positive marijuana metabolite confirmatory tests 

is 15 ng/ml. 49 C.F.R. § 40.87(a). (Tr. at 82, 93). After confirmatory testing, Specimen ID 

#Y39734254 tested positive for THCA/marijuana metabolites at a level of 19 ng/ml. (Tr. at 93; 

Ex. CG-003; Ex. CG-015 at 113; Ex. CG-018). Van Phan served as Medtox’s certifying 

technician/scientist for the testing of Specimen ID #Y39734254 and certified the testing met all 

relevant federal standards. (Ex. CG-003; Ex. CG-015 at 5; Tr. at 87).

Determining if Respondent failed the drug test also requires an analysis of the 

verification by the MRO of the positive drug test result produced by the laboratory. The Coast 

Guard presented the testimony of Dr. H.J. Khella, an MRO and medical director for Industrial 

Medical Testing (IMT). (Tr. at 105-106). Dr. Khella stated Dr. Walter Oakes worked for IMT at 

all times relevant to this proceeding, is a licensed physician and a certified MRO, and performed 

the MRO verification of Respondent’s drug test results. (Tr. at 106-111; Ex. CG-006). Dr. 
13

Khella also participated in the verification process by fielding some phone calls from 

Respondent. (Ex. CG-007). 

Dr. Khella explained his office first reviewed the chain of custody information contained 

in the laboratory report and the MRO’s copy of the CCF to ensure there were no flaws in the 

documentation. (Tr. at 111-112). Then, in accordance with an MRO’s obligation to discuss 

positive drug screen results with a mariner and provide the mariner with an opportunity to give a 

legitimate explanation for a positive finding, Dr. Oakes spoke to Respondent by phone on 

August 25, 2020. (Tr. at 1112-114; Ex. CG-007). Dr. Oakes recorded notes of his phone call 

(Ex. CG-007), and the Coast Guard played portions of Respondent’s phone calls with the MRO 

into the record at the hearing (Exs. CG-020A, CG-020B, and CG-020C; Tr. at 118-122). 

During the first call, Dr. Oakes informed Respondent that his urine specimen tested 

positive for marijuana, and asked Respondent if he had a prescription for medical marijuana. 

(Ex. CG-007; Ex. CG-020A; Tr. at 118). Respondent stated he did not have a prescription for 

medical marijuana but he had used a CBD product. (Ex. CG-007; Ex. CG-020A). Dr. Oakes 

told Respondent a product containing “pure” CBD would not cause his urine to test positive for 

marijuana, but a CBD product that contained impurities—implying a product that contained 

some tetrahydrocannabidiol (THC)—could cause a positive marijuana result. (Ex. CG-007; Ex. 

CG-020A; Tr. at 118-119). Dr. Oakes informed Respondent using a CBD product was not an 

acceptable reason for testing positive for marijuana and he would have to verify the result as 

positive. See 49 C.F.R. § 40.137. (Ex. CG-020A; Ex. CG-007; Tr. at 119). Dr. Oakes further 

told Respondent, “You only have 19 nanograms of marijuana (unintillegible few words). To be 

negative it needs to be under 15. So it’s the CBD most likely that caused you to have a positive 
14

test.” (Tr. at 119; Ex. CG-020A). Later on August 25, 2020, Respondent called Dr. Oakes again 

to request that his split specimen be tested. (Ex. CG-007).

In response to Respondent’s request for split specimen testing, MedTox shipped the 

second vial (“Bottle B”) of Respondent’s specimen to CRL, which received the sample on 

August 27, 2020. (Tr. at 130-131; Ex. CG-019). CRL performed testing and issued a report 

confirming that the split specimen sample tested positive for marijuana metabolites. (Exs. CG019, CG-009; Tr. at 132). Based on the review of MedTox’s laboratory report, information 

provided by Respondent during the verification process, and CRL’s split specimen report, Dr. 

Oakes completed the MRO copy of the CCF, verifying that Specimen ID #Y39734254 tested 

positive for marijuana. (Ex. CG-004). Dr. Oakes also issued results on IMT’s letterhead 

confirming Respondent’s specimen tested positive for marijuana for both the initial specimen 

and the split specimen. (Exs. CG-008, CG-009).

The evidence presented by the Coast Guard showed Medtox complied with the 

regulations governing sample testing and split specimen testing contained in 49 C.F.R. Part 40, 

Subparts F and H. The evidence further shows the MRO, Dr. Walter Oakes, complied with the 

verification process and split specimen testing regulations of 49 C.F.R. Part 40, Subparts G and 

H. Accordingly, I find the Coast Guard proved Respondent’s Specimen ID # Y37700626 tested 

positive for marijuana metabolites.

3. The Selection Process that Resulted in the Crew of the Dredge OHIO 

Being Selected for a Random Drug Test Complied with 46 C.F.R. Part 16

As the final element of proving a prima facie case, the Coast Guard must show 

Respondent’s marine employer properly ordered the drug test for one of the reasons set forth in 

46 C.F.R. Part 16; in other words, the Coast Guard must prove the test was a properly 
15

administered pre-employment, periodic, random, serious marine incident, or reasonable cause 

drug test. See 46 C.F.R. Part 16 and 49 C.F.R. Part 40.

Here, Respondent’s employer, Great Lakes, ordered the crew of the Dredge OHIO, 

including Respondent, to undergo a random drug test on August 18, 2020. (Tr. at 35-37; Ex. 

CG-013). Marine employers are required to establish programs for chemical testing for 

dangerous drugs on a random basis for crewmembers on inspected vessels who occupy a position 

required by the vessel’s Certificate of Inspection. 46 C.F.R. § 16.230(a)(1). It is clear from the 

record the Dredge OHIO is an inspected vessel and that its crewmembers are subject to the 

random drug testing requirements of 46 C.F.R. Part 16. (Tr. at 25-26; Ex. CG-013).

Random selection must be done in accordance with a scientifically valid method, such as 

a computer-based random number generator that selects a vessel for testing, provided that each 

vessel subject to the marine employer's test program remains equally subject to selection. 46 

C.F.R. § 16.230(c); Appeal Decision 2710 (HOPPER) (2015). Marine employers may use third

party administrators/consortiums to coordinate and administer the random chemical testing 

program required by Part 16. 46 C.F.R. § 16.230(d); 49 C.F.R. § 40.3. In this case, Great Lakes 

contracted with American Maritime Safety, Inc. (AMS) to administer their drug and alcohol 

testing program. (Ex. CG-013; Tr. at 26). In July of 2020, AMS issued an email notification to 

Great Lakes listing nine vessels and four alternate vessels that had been randomly selected for 

drug testing. (Ex. CG-013). Dredge OHIO was one of the alternate vessels. According to the 

testimony of Jason Campbell, Vice President of Health, Safety, and Environment for Great 

Lakes, a number of the nine selected vessels were not operational and had no crew at the time of 

notification, causing the Dredge OHIO, although originally an alternate, to be selected for 

testing. (Tr. at 40). AMS generated the selection list through a computer program that randomly 
16

selected the vessels from a database. (Tr. at 143-144). The use of the computer program for 

selection is sufficient to show there was a valid random selection process and no unfair targeting 

of Respondent for testing. Accordingly, I find that the random selection process in this case 

complied with the requirements of 46 C.F.R. Part 16. 

4. Respondent’s Evidence Was Insufficient to Rebut the Prima Facie Case 

Presented by the Coast Guard

Respondent denied throughout the hearing that he is a user of or addicted to dangerous 

drugs. (Tr. at 34, 114, 127, 129, 139, 158, 161, 163-168, 170, 172; Exs. R-D, R-E). He argued 

the cause for his urine sample testing positive for marijuana metabolites in the August 18, 2020 

collection, was his use of hemp oil containing CBD. (Tr. at 30-31, 45, 87, 96-97, 127, 129-130, 

139, 156-179; Exs. R-A, R-B, R-D, R-E, R-F).

Respondent testified his doctor recommended the use of hemp oil to relieve his knee pain 

and produced a letter from Robert D. Kramberg, MD, on Rehabilitation Medicine Center of NJ 

letterhead, dated August 24, 2020, stating, “I have recommended that Mr. Jennings use CBD oil 

to help decrease the pain at his bilateral knees.” (Tr. 169, 174; Ex. R-F). The letter was typed 

and unsigned. (Ex. R-F). Respondent said he bought a spray bottle of hemp oil from the 

Vitamin Shoppe the day before the drug test and sprayed the product on his knee. (Tr. at 174, 

177). Respondent produced a receipt showing the purchase of “3MG CBD HEMP SPRAY 

PEPPERMINT” made on August 17, 2020, and four photographs of a bottle labeled “Plus +CBD 

oil Full Spectrum Hemp Extract.” (Exs. R-A, R-B).

The evidence also shows Respondent told MROs, Dr. Oakes and Dr. Khella, during the 

verification phone calls, that he had used hemp oil and questioned the doctors as to whether use 

of hemp oil could have caused the positive drug test result. (Tr. at 117-123; Exs. CG-20A, CG20B, and CG-20C). Dr. Oakes stated to Respondent during one of the calls that the level of 
17

marijuana metabolite detected by the drug test, 19 nanograms, was indicative of use of a CBD 

product. (Tr. at 119; Ex. CG-20A). However, Dr. Khella, during the hearing, explained the level 

of marijuana metabolite found by the drug test could not be used to determine the source of the 

metabolite, whether from illicit drug use or use of a legal CBD product. (Tr. at 135-136). Both 

Dr. Oakes and Dr. Khella stated a product marketed as a legal CBD product could contain 

amounts of THC that could be detected by a drug test. (Tr. at 118, 129).

The Coast Guard relied on a DOT Office of Drug and Alcohol Policy and Compliance 

Notice (“DOT Notice”) and a USCG Marine Safety Advisory to support their assertion that CBD 

products may cause a positive drug test. Both documents state products marketed as CBD 

products may contain enough THC to cause a positive drug test result, and that the use of hemp 

or CBD products is not an acceptable excuse for a positive drug test result for THC. However, 

the Coast Guard did not present a proper basis for proposed Exhibits 16 or 17 for official notice, 

therefore the ALJ only admitted the DOT Notice into evidence. (Tr. at 22-24, 148, Ex. CG-016). 

As discussed in the Commandant’s decision in USCG v. MMC issued to Robert Kelvin 

Cook III, it is well-settled that marijuana is considered a “dangerous drug” for purposes of 46 

U.S.C. § 7704(b). Appeal Decision 2729 (COOK) (2020) at *3. Further, the changes in state 

laws regarding marijuana-derived products have had no effect on federal drug laws, or the Coast 

Guard’s enforcement of federal drug testing requirements. Id. As stated in COOK, even if a 

mariner claims that use of a CBD product, and not illicit drugs, caused a positive drug test result, 

“such use would provide no defense to a positive drug test result.” Id. at *4 (comparing 

Administrator v. Siegel, NTSB Order No. EA-5838 at 11, 2018 WL 2733938 at 5).

In this case, Respondent asserted he used a hemp oil spray marketed as a legal CBD 

product the day before his drug test. (Tr. at 30-31, 45, 87, 96-97, 127, 129-130, 139, 156-179; 
18

Exs. R-A, R-B, R-D, R-E, R-F). Dr. Oakes’ statements to Respondent during the verification 

phone call, discussing the low level of marijuana metabolite in the positive result, also supports 

Respondent’s argument that his use of a CBD-containing product caused him to test positive for 

marijuana metabolites (THC). (Tr. at 119; Ex. CG-020A). As noted above, Dr. Khella’s 

testimony provided a contrary view on whether the positive result may have been from drug use. 

(Tr. at 135-136). Even though I find Respondent’s testimony, combined with the comments 

from Dr. Oakes, persuasive regarding his use of a CBD product, I am bound by prior 

Commandant decisions and the regulatory requirements of positive drug test cut-off levels. In 

accordance with COOK, supra, claimed use of a legal CBD product cannot be accepted as a 

defense to a positive drug test result. 46 C.F.R. § 5.65; Appeal Decision 2729 (COOK) (2020) at 

*4. Therefore, Respondent’s evidence and arguments are not sufficient to overcome the

presumption of drug use arising from the prima facie case made by the Coast Guard.

IV. SANCTION

The authority to impose sanctions at the conclusion of a case is exclusive to the ALJ. 

Appeal Decision 2362 (ARNOLD) (1984). When the Coast Guard proves that a mariner has 

used or is addicted to dangerous drugs, revocation of all Coast Guard issued licenses, documents, 

and other credentials is the appropriate sanction unless cure is proven. 46 U.S.C. 7704(b); 46

C.F.R. § 5.59; Appeal Decision 2535 (SWEENEY) (1992). Under SWEENEY, cure is a twostep process which consists of 1) successful completion of a bona fide drug abuse rehabilitation 

program, and 2) demonstration of complete non-association with drugs for a minimum period of 

one year following completion of the rehabilitation program, including participation in random, 

unannounced drug tests during that year. Id. at *3-4. 
19

Here, the Coast Guard proved by a preponderance of reliable, probative, and credible 

evidence Respondent was a user of dangerous drugs. Respondent presented some evidence of 

pursuit of the first step in the cure process, in the form of an evaluation and letter from a 

LCSW/SAP (Substance Abuse Professional), and notes from a session with an addiction 

counselor. (Ex. R-D, R-E). However, at the time of the hearing, Respondent’s evidence 

regarding efforts to accomplish cure were not demonstrated to be sufficient in keeping with 

Coast Guard policy for proof of cure. At the conclusion of the hearing, the Coast Guard moved 

that Respondent be required to deposit his credentials with the Coast Guard because the Coast 

Guard had presented a prima facie case of use of a dangerous drug. The ALJ granted that 

motion pursuant to 46 C.F.R. § 5.521(b), and Respondent subsequently submitted his credentials 

to the Coast Guard. 

The Coast Guard has declined to accept any lesser standard of accomplishing the cure 

process, as the requirements to establish cure are set through Commandant policy, as noted in the 

regulations (46 C.F.R. § 5.901) and through binding authority in SWEENEY and other 

Commandant Decisions on Appeal. See e.g., Appeal Decision 2667 (THOMPSON) (2007) and 

Appeal Decision 2638 (PASQUARELLA) (2003).

The Coast Guard has in the past been somewhat flexible with regard to the evidence 

necessary to demonstrate cure, in that it has accommodated a mariner’s health concerns by 

allowing the mariner to attend support meetings virtually, to minimize potential COVID-19 

exposure. However, as of the date of this decision, the Coast Guard has not indicated 

consideration of any potential changes to the requirements of proving cure with regard to 

mariners who have claimed an inadvertent THC positive drug test due to CBD use, despite an 

increasing number of mariners apparently testing positive because of CBD use.

21

revocation upon a showing that the order of revocation is no longer valid and the issuance of a 

new license, certificate, or document is compatible with the requirements of good discipline and 

safety at sea. The revocation order may be modified upon a showing that Respondent:

(1) has successfully completed a bona fide drug abuse rehabilitation program;

(2) has demonstrated complete non-association with dangerous drugs for a minimum of 

one year following completion of the drug rehabilitation program; and

(3) is actively participating in a bona fide drug abuse monitoring program.

See 33 C.F.R. § 20.904(f); 46 C.F.R. § 5.901(d). The drug abuse monitoring program must 

incorporate random, unannounced testing during that year. Appeal Decision 2535 (SWEENEY)

(1992).

PLEASE TAKE FURTHER NOTICE, service of this decision and order on the parties 

and/or parties’ representative(s) serves as notice of the appeal rights set forth in 33 C.F.R. 

20.1001 – 20.1004. (See Attachment B).

__________________________________

Michael J. Devine

Administrative Law Judge

United States Coast Guard

Done and dated June 2, 2022

Baltimore, MD

23

Ex. CG-016: Feb. 18, 2020 DOT notice re: CBD use (admitted)

Ex. CG-017: Feb. 10, 2020 USCG marine safety advisory re: CBD use (not admitted)

Ex. CG-018: Medtox final report (admitted)

Ex. CG-019: Split testing report (admitted)

Ex. CG-020: Three (3) audio recordings of MRO calls with Respondent (only portions 

played into record admitted)

Respondent’s Witness

1. Nathaniel Jennings

Respondent’s Exhibits

Ex. R-A: Hemp oil purchase receipt (admitted)

Ex. R-B: Four (4) photos of hemp oil bottle (admitted)

Ex. R-C: August 29, 2020 drug test results (not admitted)

Ex. R-D: SAP evaluation and letter (admitted)

Ex. R-E: Addiction counselor notes (admitted)

Ex. R-F: Letter from Dr. Robert Kramberg (admitted)
24

ATTACHMENT B

Notice of Appeal Rights

33 CFR 20.1001 – General.

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

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

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

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

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

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

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

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

public policy.

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

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

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

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

evidence that that person would have presented.

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

33 CFR 20.1002 – Records on appeal.

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

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

of proceeding, then, --

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

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

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

the transcript on the terms prescribed in 49 CFR 7.45.

33 CFR 20.1003 – Procedures for appeal.

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

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

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

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

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

decision or ruling. The brief must set forth, in detail, the –
25

(i) Basis for the appeal;

(ii) Reasons supporting the appeal; and

(iii) Relief requested in the appeal.

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

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

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

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

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

untimely.

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

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

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

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

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

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

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

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

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

an ALJ's decision.

33 CFR 20.1004 – Decisions on appeal.

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

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

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

proceedings.

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

copy of the decision on each party and interested person.