1

UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

KYLE ALLEN PFENNING

Respondent

_________________________________

Docket Number 2014-0147

Enforcement Activity No. 4807052

DECISION AND ORDER

Issued: June 22, 2015

By Administrative Law Judge: Honorable George J. Jordan

Appearances:

Mr. James D. Fayard

Sector Lower Mississippi

2 A. W. Willis Ave.

Memphis, TN 38105

For the Coast Guard

Donelle H. Ratheal, Esq.

Ratheal, Maggard & Fortune, PLLC

4045 N.W. 64th Street, Suite 210

Oklahoma City, OK 73116

For the Respondent

IT IS ORDERED that service of this Decision and Order upon the parties will serve as notice of 

appeal rights as set forth in 33 C.F.R. Subpart J, § 20.1001.
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DECISION AND ORDER

Table of Contents

I. PRELIMINARY STATEMENT ................................................................................ 3

II. PROCEDURAL HISTORY........................................................................................ 3

III. FINDINGS OF FACT................................................................................................. 4

IV. DISCUSSION........................................................................................................... 12

A. Principles of Law ............................................................................................ 12

1. General Authority ........................................................................................... 12

2. Standard of Proof............................................................................................ 13

3. Evidentiary Standard....................................................................................... 13

4. Jurisdiction...................................................................................................... 14

5. Use of Dangerous Drugs, Generally ............................................................... 16

6. Drug Testing of Merchant Mariners under the Federal Transportation Workplace 

Drug Testing Programs................................................................................... 17

7. Misconduct: Refusal to Take a Drug Test. ........................................................... 21

8. Basic Requirements of Drug Testing Laboratories......................................... 22

9. Basic Requirements of Medical Review Officers........................................... 23

B. Analysis: Allegation One................................................................................ 23

1. Issues Presented .............................................................................................. 24

2. The Parties’ Arguments .................................................................................. 24

3. Did the Collection and Testing Procedures Comply with the Regulations?... 24

4. If the MRO Rejects a Medical Explanation for a Positive Test, Must the Record 

Contain an Explanation? ................................................................................. 25

5. Conclusion as to Allegation One .................................................................... 28

C. Analysis: Allegation Two ............................................................................... 28

1. Issues Presented .............................................................................................. 28

2. The Parties’ Arguments .................................................................................. 29

3. Was this a Random Test in Compliance with 46 C.F.R. § 16.230? ............... 29

4. Were There Significant Flaws in the Collection Process?.............................. 33

5. Was the MRO Review Conducted in Accordance with Part 40? ................... 35

6. Was the MRO Credible?................................................................................. 37

7. Conclusion as to the Second Allegation ......................................................... 37

D. Analysis: Allegation Three ............................................................................. 38

1. The Parties’ Arguments Regarding Allegation Three .................................... 38

2. Is Copy 1 of a Custody and Control Form Sufficient to Establish a Laboratory’s 

Compliance with the Regulations? ................................................................. 39

3. Conclusion as to Allegation Three.................................................................. 46

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW .................. 47

VI. CONSIDERATION OF APPROPRIATE ORDER ................................................. 48

VII. STATUS OF RESPONDENT’S CREDENTIAL..................................................... 49

ORDER............................................................................................................................. 51

APPENDIX A: WITNESS AND EXHIBIT LISTS ............................................................ i

APPENDIX B: 33 C.F.R. PART 20- APPEALS SUBPART J.........................................iii
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I. PRELIMINARY STATEMENT

The United States Coast Guard filed a Complaint seeking to revoke Respondent Kyle 

Allen Pfenning’s Merchant Mariner’s Credential (MMC). Through counsel, Respondent filed a 

timely Answer contesting the allegations. I held a hearing in this matter and, after carefully 

considering the testimony and evidence, find each of the three allegations NOT PROVED.

II. PROCEDURAL HISTORY

The Coast Guard initiated this proceeding by filing a Complaint on April 3, 2014. The 

Complaint alleged that Respondent provided a urine sample for drug testing on December 28, 

2011 and the sample tested positive for marijuana metabolites. The Coast Guard also alleged that 

Respondent committed misconduct by refusing to submit to a drug test on December 17, 2013; 

the laboratory analysis of his urine sample showed it was incompatible with human urine and 

therefore substituted. 

Respondent filed an Answer on April 30, 2014, admitting the jurisdictional elements but 

denying certain factual allegations. He asserted as an affirmative defense to Allegation One that 

he had a Marinol prescription. As an affirmative defense to Allegation Two, he said he was 

suffering from a kidney infection and a staph infection at the time of the test, and the medications 

he took for those conditions could account for the low creatinine levels in his urine sample.

I held a prehearing conference on June 4, 2014. James Fayard represented the Coast 

Guard and Donelle Ratheal, Esq. represented Respondent. At the conference, the Coast Guard 

indicated it wished to make some technical amendments to the Complaint. However, the 

amendments were in fact substantive and entailed the addition of a third allegation: that 

Respondent took a pre-employment drug test on May 23, 2014 which tested positive for 

marijuana. Respondent filed a timely Amended Answer denying the new allegation.
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I convened another prehearing conference the week prior to the hearing to ensure the 

parties were ready to proceed, and both parties said they were prepared to present their cases. 

The hearing commenced on September 9 and 10, 2014 in Memphis, Tennessee. James Fayard 

represented the Coast Guard, assisted by William Davis and LT Katrian Hernandez. Donelle 

Ratheal, Esq. represented Respondent.

During their testimony, some of the Coast Guard’s witnesses referred to documents 

which were not in evidence. I therefore ordered the Coast Guard to provide those documents as 

supplemental evidence. Accordingly, I left the record open to receive this evidence, as well as 

potential testimony from a witness who was scheduled to testify but did not appear. The Coast 

Guard later moved to admit EX CG-03, which had been marked for identification but not 

admitted at the hearing; I admitted it over Respondent’s objection. The Coast Guard also 

informed me no additional testimony would be forthcoming, so I closed the record and set the 

date for the parties to file post-hearing briefs and proposed findings of fact and conclusions of 

law pursuant to 33 C.F.R. § 20.710. Both parties timely filed these documents and the matter is 

now ripe for review.

III. FINDINGS OF FACT

Preliminary Facts:

1. At all relevant times, Respondent was the holder of a Coast Guard-issued Merchant 

Mariner Credential (MMC).

General Facts Regarding Drug Testing:

2. Dawn M. Hahn is Director of the Laboratory and a Responsible Person at Quest 

Diagnostics Laboratory in Lenexa, Kansas. (Tr. Vol. I p. 119, EX CG-02 pp. 74-77).

3. Quest Diagnostics performed the analysis of the urine samples in all three tests 

underlying the allegations in this case. (EX CG-01, CG-02, CG-04, CG-05, and CG09; EX R-A).

4. A documentation packet (also called a litigation packet) includes copies of the 

requisition that accompanies a specimen when it arrives at the laboratory; the 
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laboratory’s internal chain of custody; the quality control data and test results from 

the instruments used to test the specimen; and a description of the laboratory testing 

processes. (Tr. Vol. I pp. 113-14).

5. Unless the accompanying paperwork indicates otherwise, the laboratory operates on 

the assumption that specimens arrive uncontaminated and that proper collection 

procedures were followed. (Tr. Vol. I pp. 129-30).

6. When a urine sample arrives at the laboratory, it is logged and assigned a unique 

identification number used throughout the testing process. (Tr. Vol. I p. 114).

7. The original sample bottle is always kept in the processing department; just a small 

portion called an aliquot is removed and tested. (Tr. Vol. I p. 121).

8. If an aliquot is compromised during testing, a new aliquot can be removed and tested 

because the integrity of the original bottle is intact. (Tr. Vol. I p. 121).

9. Samples are initially subjected to an immunoassay screening test. (Tr. Vol. I p. 115; 

EX CG-02 p. 30, CG-05 p. 54). 

10. Immunoassay tests are performed on a large chemistry machine which is calibrated 

daily. (Tr. Vol. I p. 115).

11. Control specimens with known values are also included in each batch to ensure 

quality control. (Tr. Vol. I p. 115).

12. If a specimen tests positive during the initial screening, confirmatory testing is carried 

out on a gas chromatograph/mass spectrometry machine (GC/MS). (EX CG-02 p. 42,

CG-05 p. 67).

13. The GC/MS is calibrated with every batch and quality controls are performed at both 

the beginning and end of the batch. (Tr. Vol. I p. 116).

14. In addition to immunoassay testing, each sample is subjected to specimen validity 

testing to ensure it contains human urine. (Tr. Vol. 1 p. 118).

15. Creatinine is a human byproduct of muscle breakdown. (Tr. Vol. I p.118).

16. If the specimen validity testing indicates a sample has a creatinine level below 20 

milligrams per deciliter (mg/dL), the laboratory must conduct specific gravity testing, 

as well. (Tr. Vol. I p. 118, 135).

17. In specimen validity testing, the sample’s creatinine levels and specific gravity are 

compared to the acceptable levels set by the DOT regulations. (Tr. Vol. I p. 118).

18. A sample is considered dilute if its creatinine level is less than 20 mg/dL. (Tr. Vol. I 

p. 118).
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19. A dilute sample may occur if a person drinks a lot of water prior to taking a drug test 

or if fluid is added to the sample. (Tr. Vol. I p. 126).

20. A dilute sample is still tested for drug metabolites and the results are marked as 

positive or negative. (Tr. Vol. I p. 119).

21. According to the regulations, a creatinine level of less than 2 mg/dL indicates a 

substituted sample. (Tr. Vol. I pp. 136, 143).

22. The laboratory does not attempt to determine what substance is actually present in a 

substituted sample. (Tr. Vol. I p. 141).

23. An MRO must review any result that is positive, adulterated, substituted, or invalid 

before the result is reported. (Tr. Vol. I p. 146).

24. The MRO determines whether a medical reason for the low creatinine level and/or 

low specific gravity exists. (Tr. Vol. I p. 147).

25. Variations in temperature may affect the pH of a specimen. (Tr. Vol. I p. 123).

26. The laboratory stores specimens at extremely cold temperatures because this 

preserves them better. (Tr. Vol. I p. 125).

27. Although long-term exposure to extreme heat may cause a positive test to become 

negative, it will not “create drugs” or, in other words, cause a negative specimen to 

test positive. (Tr. Vol. I p. 125).

28. Temperature variations do not affect whether a sample is deemed dilute. (Tr. Vol. I p. 

125).

Facts as to Allegation 1:

29. Respondent took a pre-employment drug test for a position with American River 

Transportation Company (ARTCO). (EX CG-01; EX R-A).

30. Jackie Jones is a DOT-certified collector employed at Concentra Medical Center. (Tr. 

Vol. I pp. 24-25).

31. Ms. Jones was familiar with the DOT regulations governing the collection of urine 

specimens for drug testing. (Tr. Vol. I pp. 26-30).

32. On December 28, 2011, Ms. Jones collected a urine sample from Respondent for a 

DOT drug test. (EX CG-01; EX R-A; Tr. Vol. I p. 32).

33. When Ms. Jones administers drug tests, she directs donors to list any medications 

they are taking on the back of the donor copy of the Federal Drug Testing Custody 

and Control Form (CCF) in case the MRO calls to discuss the results. However, she 

does not personally review those lists. (Tr. Vol. I pp. 30-31, 41).
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34. During her testimony, Ms. Jones referred to Copy 2 of the CCF, which is the MRO 

copy of the five-part form. (Tr. Vol. I p. 49).

35. Quest Diagnostics received the sample on December 29, 2011. (EX CG-02 pp. 6-11; 

Tr. Vol. I p. 124).

36. The laboratory assigned the sample accession number 885407W. (EX CG-02 p. 5; Tr. 

Vol. I p. 114).

37. The immunoassay screening was presumptively positive. (EX CG-02 p. 30).

38. Confirmatory testing carried out on a gas chromatograph/mass spectrometry 

(GC/MS) machine resulted in finding of marijuana metabolite at 39 nanograms per 

milliliter (ng/mL). (EX CG-02 p. 5; Tr. Vol. I p. 117).

39. The laboratory also conducted specimen validity testing, which showed the sample 

was dilute. (CG-Ex. 2 p. 5; Tr. Vol. I p. 117-18). 

40. The CCF shows Respondent’s urine sample tested positive for marijuana metabolite 

at 39 ng/mL. (Tr. Vol. I p.117).

41. The CCF also shows the specimen as dilute with a creatinine level of 5.7 mg/dL and a 

specific gravity of 1.002. (Tr. Vol. I p.117).

42. The laboratory cannot distinguish between metabolites generated by the consumption 

of marijuana and those generated by the prescription drug Marinol. (Tr. Vol. I p. 

131).

43. Dr. Karen Ausman, the Medical Review Officer (MRO) who reviewed the results of 

this test, did not testify. (Tr. Vol. II p 230; CG Motion dated 9/18/14).

44. Dr. Ausman was assigned to this review on January 3, 2012 and contacted 

Respondent because the results of the drug test were positive for marijuana. (EX CG03, CG-10).

45. Respondent told Dr. Ausman he had a prescription for Marinol and had recently taken 

Marinol pills. (Tr. Vol. II p 103).

46. Dr. Ausman requested a copy of Respondent’s prescription and proof that he had 

filled the prescription. (Tr. Vol. II p 103).

47. Respondent provided a copy of a Marinol prescription written by Dr. Malcolm 

Bridwell. (Tr. Vol. II p 103).

48. Respondent was in possession of the prescription paperwork and was unable to show 

it had been filled at a pharmacy because Dr. Bridwell had also given him Marinol 

pills simultaneously with the prescription. (Tr. Vol. II p. 95).
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49. The record shows multiple contacts between Dr. Ausman and Respondent but no 

contact between Dr. Ausman and Dr. Bridwell. (EX CG-10; EX R-D, R-E).

50. Dr. Ausman certified the test as positive on January 18, 2012 and it was reported the 

following day. (EX CG-01, CG-03, CG-10; EX R-A).

51. Dr. Bridwell died while Respondent was “dealing with the Coast Guard” about this 

issue was therefore unavailable to testify at the hearing. (Tr. Vol. II pp. 95, 197).

Facts as to Allegation 2:

52. Steel City Marine employed Respondent as a Pilot of uninspected towing vessels. (Tr. 

Vol. II p. 97).

53. Dean Ference is the president of Steel City Marine. (Tr. Vol. I p. 93).

54. Steel City Marine owns two boats and operates a third. (Tr. Vol. I p. 97).

55. As president, Mr. Ference is ultimately responsible for ensuring that the company 

complies with all Coast Guard regulations, including those related to employee drug 

testing. (Tr. Vol. I p. 94).

56. Another employee of Steel City Marine, Ann Robinson, generally makes 

arrangements for drug testing to take place. (Tr. Vol. I p. 94). 

57. Steel City Marine maintains a Drug and Alcohol Policy with an effective date of 

April 15, 2004 in addition to the USCG Antidrug Alcohol Misuse Policy and 

Prevention Plan. (Tr. Vol. I p. 95; EX CG-07).

58. The Drug and Alcohol Policy is posted on the boats and is also given to prospective 

employees in their application packages. (Tr. Vol. I p. 95).

59. The only accidents Respondent was involved in during his employment at Steel City 

Marine were very minor, so he never underwent post-casualty drug testing. (Tr. Vol. I 

pp. 100-01).

60. The M/V GREGORY DAVID was selected for testing on December 17, 2013 

because the company tests each boat once per year and had not yet tested this one. 

(Tr. Vol. I p. 94).

61. No specific individual was targeted during the drug testing of the M/V GREGORY 

DAVID on December 17, 2013. (Tr. Vol. I p. 95).

62. When Steel City Marine orders a boat to be drug tested, all crewmembers on the boat, 

all who are getting off the boat, and all who are coming aboard are tested. (Tr. Vol. I 

p. 95).

63. Company practice is to do whole-boat drug testing, and the company does not 

randomly test individuals. (Tr. Vol. I p. 98).
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64. The decision to test a vessel is made based on vessel availability and when someone 

can board it to test the employees. (Tr. Vol. I p. 107).

65. Not all of the company’s employees will be tested each year under this method, but 

by testing each of the three boats once per year, more than 50 percent of the 

employees will be tested. (Tr. Vol. I p. 107).

66. Steel City ordered a whole-boat test of the M/V GREGORY DAVID on December 

17, 2013. (Tr. Vol. I. p. 94).

67. Andrew D. Jones is a DOT-certified collector and is the managing partner at PCS 

Drug Screening. (Tr. Vol. I p. 66).

68. Mr. Jones conducted the whole-boat test of the M/V GREGORY DAVID on 

December 17, 2013. (Tr. Vol. I p. 79).

69. To the best of his recollection, Mr. Jones gave no less than an hour’s notice to the 

boat pilot that he would be performing drug testing. (Tr. Vol. I p. 79).

70. Other employees aboard the M/V GREGORY DAVID were notified of the testing 

when Mr. Jones boarded the boat. (Tr. Vol. I pp. 79-80).

71. Mr. Jones tested eight employees on the M/V GREGORY DAVID that day. (Tr. Vol. 

I p. 72, EX CG-11).

72. The tests took place in the vessel’s lavatory, which Mr. Jones prepared by making 

sure no cleaning agents were in the room and adding bluing to the commode. (Tr. 

Vol. I p. 80).

73. Mr. Jones did not tape off the water faucets, but told donors not to turn on the water 

or flush the commode until he had taken possession of the specimens. (Tr. Vol. I pp. 

80, 83).

74. Mr. Jones believed he would have heard if the toilet had flushed or water taps had 

been turned on. (Tr. Vol. I p. 82).

75. Mr. Jones testified that the door to the lavatory is solid and you cannot see the 

donor’s head or feet. (Tr. Vol. I p. 81).

76. Mr. Jones does not wear gloves during collections because he has an allergic reaction, 

but he washes his hands in between collections. (Tr. Vol. I p. 82).

77. At the conclusion of the testing, Mr. Jones gathered all the specimens and delivered 

them to his office, where they were placed in a lockbox for a Quest courier to pick up. 

(Tr. Vol. I p. 85).
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78. Mr. Jones did not note anything unusual about Respondent’s sample and said the 

specimen would have been in the correct temperature range because he did not mark 

down that anything was wrong. (Tr. Vol. I p. 69).

79. Mr. Jones was in possession of Copy 1, the laboratory copy, and Copy 2, the MRO 

copy, of the Custody and Control Form, as well as the results page from the 

laboratory. (Tr. Vol. I p. 70, 88).

80. Copy 5 of the Custody and Control Form is the donor copy and is supposed to be 

given to the donor at the time of the test. (Tr. Vol. I p. 70).

81. The Coast Guard submitted Copy 5, the donor copy, as part of its evidence. (EX CG04).

82. The Coast Guard could not explain how Respondent’s donor copy had come into its 

possession. (Tr. Vol. II pp. 193-96).

83. Respondent left the employ of Steel City Marine on or around December 28, 2013. 

(Tr. Vol. I p. 101).

84. Respondent’s urine sample was received by Quest Diagnostics Laboratory in Lenexa, 

Kansas on December 19, 2013. (Tr. Vol. I p. 135). 

85. The sample was deemed negative for drugs on the initial immunoassay test. (Tr. Vol. 

I p. 142).

86. Because the sample did not screen positive for a drug, no gas chromatography 

analysis was performed. (Tr. Vol. I p. 141). 

87. The laboratory also subjected the sample to specimen validity testing. (Tr. Vol. I pp. 

135-36).

88. The creatinine level of Respondent’s sample was less than .05 and the specific gravity 

was 1.0218. (Tr. Vol. I p. 136).

89. A second aliquot was tested and also achieved results that fell into the “substituted” 

category. (Tr. Vol. I p. 143).

90. Dr. Horacio Marafioti was the MRO assigned to review this test. (Tr. Vol. I p. 171; 

EX CG-06).

91. Dr. Marafioti spoke on the phone with Respondent on December 23, 2013 to explain 

the test results and ask whether there was a medical explanation. (Tr. Vol. I p. 173-

74; EX CG-12).

92. Respondent requested split sample testing. (Tr. Vol. I p. 175; Tr. Vol. II p. 116-17; 

EX CG-12).

93. Dr. Marafioti did not order split sample testing. (Tr. Vol. I p. 181; EX CG-06).
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94. Dr. Marafioti reported a substituted sample, refusal to test on December 23, 2013. 

(EX CG-06).

Facts as to Allegation 3:

95. On May 23, 2014, Respondent took a pre-employment drug test at Pelican in 

Harahan, Louisiana. (EX CG-08).

96. Michelle Hall collected the urine sample for this test. (Tr. Vol. I p. 157).

97. Ms. Hall could not recall any flaws or anything unusual about this test. (Tr. Vol. I pp. 

157-58).

98. The facility numbers on the CCF, which are used for billing purposes, are scratched 

out and altered by hand. (EX CG-08; Tr. Vol. I pp. 159-60, 164).

99. The name of the MRO reflected at the top of the form has also been changed to Dr. 

Benjamin Gerson, but the MRO who signed the form was Dr. Jerome Cooper. (EX 

CG-08; Tr. Vol. I pp. 160-61).

100. Quest Diagnostics in Lenexa, Kansas performed the testing. (EX CG-08).

101. The record does not reflect the accession number assigned to the sample.

102. The record does not reflect the immunoassay screening test resulted.

103. Dr. Cooper is an MRO with University Services. (Tr. Vol. II p. 22).

104. On June 4, 2014, Dr. Cooper contacted Respondent to discuss the results of the drug 

test. (EX CG-13).

105. When Dr. Cooper interviewed Respondent, he complied with the DOT protocol for 

identifying himself and ensuring he was speaking to the correct person. (Tr. Vol. II p. 

19).

106. Dr. Cooper explained to Respondent that his sample had tested positive for marijuana 

and asked if there was a medical explanation. (Tr. Vol. II pp. 19-20).

107. Dr. Cooper stated the only medical explanation would be if Respondent had a 

prescription for Marinol, which is rarely prescribed. (Tr. Vol. II p. 20).

108. Respondent did not supply a Marinol prescription to Dr. Cooper. (Tr. Vol. II p. 20).

109. Respondent requested split sample testing, which was performed and showed a 

positive result for marijuana. (Tr. Vol. II p. 18; EX CG-09; EX R-K).

110. After receiving the results of split sample testing, Dr. Cooper created a document 

detailing his findings. (Tr. Vol. II p. 18; EX CG-09, CG-13).
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111. Dr. Cooper reported the test positive for marijuana on July 1, 2014. (Tr. Vol. II p. 18; 

EX CG-09, CG-13).

112. Dr. Cooper based his finding on the laboratory report indicating a marijuana level of 

37, which was above the 15 ng/dL cutoff. (Tr. Vol. II p. 18).

113. Dr. Cooper did not see any irregularities in the laboratory paperwork for this test. (Tr. 

Vol. II p. 21).

114. Dr. Cooper had no personal knowledge of the chain of custody of the urine sample 

that was tested, but presumed all applicable rules and regulations were followed. (Tr. 

Vol. II p. 31).

115. As the MRO, Dr. Cooper receives a report from the laboratory detailing the test 

results, but does not see the entire litigation package that includes calibration results 

and chain-of-custody signatures. (Tr. Vol. II pp. 37-38).

IV. DISCUSSION

A. Principles of Law

1. General Authority

The Coast Guard issues credentials to merchant mariners under 46 U.S.C. § 7101 and 46 

U.S.C. § 7302. Administrative Law Judges (ALJs) have the authority to suspend or revoke Coast 

Guard-issued credentials or endorsements under the grounds set out in 46 U.S.C. §§ 7703 and 

7704. See 46 C.F.R. § 5.19(b). The purpose of Coast Guard suspension and revocation 

proceedings is to promote safety at sea. 46 U.S.C. § 7701(a). 

Suspension and revocation proceedings are conducted under the Administrative 

Procedure Act (APA), 5 U.S.C. §§ 551-557. See 46 U.S.C. § 7702(a). The Coast Guard’s Rules 

of Practice and Procedure are located at 33 C.F.R. Part 20 and the substantive rules concerning 

suspension and revocation of mariner credentials are at 46 C.F.R. Part 5. Decisions made by 

ALJs may come before the Commandant on appeal or review. “The Commandant’s 

determinations are officially noticed, and the principles and policies enunciated therein are 
13

binding upon all ALJs unless they are modified or rejected by competent authority.” 46 C.F.R. § 

5.65.

2. Standard of Proof

Section 7(c) of the APA places the burden of proof on the proponent of a rule or order 

unless otherwise provided by statute. The fact-finder must consider the record as supported by 

“reliable, probative, and substantial evidence” before reaching a decision. 5 U.S.C. § 556(d). In 

administrative proceedings, the proponent must prove its case by a preponderance of the 

evidence, meaning the fact-finder considers the evidence and argument in the record and finds it 

is more likely than not a fact is true. Steadman v. SEC, 450 U.S. 91, 98 (1981); Greenwich 

Collieries v. Dir., Office of Workers’ Comp. Programs, 990 F.2d 730, 736 (3d Cir. 1993).

In a suspension or revocation case, the Coast Guard is the proponent and therefore bears 

the burden of proof. 33 C.F.R. § 20.702(a). Respondent may rebut the allegations by providing 

contrary evidence showing the allegations are more likely than not untrue. He may also present 

affirmative defenses, in which case the burden shifts to the respondent to prove his defense by a 

preponderance of the evidence.

3. Evidentiary Standard

The APA governs the admissibility of evidence in administrative proceedings and 

permits the fact-finder to receive any documentary or oral evidence. See 5 U.S.C. § 556(d); 

Gallagher v. National Transp. Safety Bd., 953 F.2d 1214, 1214 (10th Cir. 1992); Sorenson v. 

National Transp. Safety Bd., 684 F.2d 683, 683 (10th Cir. 1982). “Federal agencies are not 

bound by the strict rules of evidence that govern jury trials.” Gallagher at 1218, citing Sorenson

at 688. The more lenient standard for administrative proceedings allows evidence to be included 

in the record that might be excluded under the Federal Rules of Evidence. For example, only 

irrelevant, immaterial, or unduly repetitious evidence need be excluded, and “evidence need not 
14

be authenticated with the precision demanded by the Federal Rules of Evidence.” Gallagher at 

1218; see also Appeal Decision 2664 (SHEA) (2007).

This matter involves scientific evidence and expert testimony in the form of laboratory 

results and the MRO’s review of those results. In Daubert v. Merrell Dow Pharmaceuticals, 509 

U.S. 579 (1993), the Supreme Court held that Rule 702 of the Federal Rules of Evidence 

imposes upon the trial court a gatekeeper obligation to “ensure that any and all scientific 

testimony or evidence admitted is not only relevant, but reliable.” Id. at 589. The Court later 

extended this requirement to all expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 

137 (1999). 

Strictly speaking, the rule of Daubert does not apply to this proceeding, since Daubert

and its progeny interpret the Federal Rules of Evidence, which do not apply to administrative 

hearings. See, e.g., Nat’l Taxpayers Union v. Social Sec. Admin., 302 Fed.Appx. 115, 121 (3d. 

Cir. 2008); Bayliss v. Barnhart, 207 F.3d 1211, 1218 n. 4 (9th Cir. 2005). Nevertheless, “the 

spirit of Daubert” does apply to administrative proceedings because “‘[j]unk science’ has no 

more place in administrative proceedings than in judicial ones.” Lobsters, Inc. v. Evans, 346 F. 

Supp. 2d 340, 344 (D. Mass. 2004) (quoting Niam v. Ashcroft, 354 F.3d 652, 660 (7th 

Cir.2004)). See also Appeal Decision 2670 (WAIN) (2007). Thus, one major inquiry I must 

make in this matter is whether the scientific testimony or evidence introduced by the Coast 

Guard is not only relevant, but reliable.

4. Jurisdiction 

Jurisdiction is critical to the validity of a suspension or revocation proceeding. Pursuant 

to 46 U.S.C. § 7704(c), “[i]f it is shown that a holder has been a user of, or addicted to, a 

dangerous drug, the license . . . or merchant mariner's document shall be revoked unless the 

holder provides satisfactory proof that the holder is cured.” Indeed, Respondent’s “status aboard 
15

the vessel does not matter as it is his status as the holder of a merchant mariner’s document [or 

license or certificate of registry] that establishes jurisdiction for purposes of suspension and 

revocation when use of a dangerous drug is charged.” Appeal Decision 2668 (MERRILL) (2007) 

(emphasis added); see also Appeal Decision 2560 (CLIFTON) (1995).

To establish jurisdiction in a misconduct case under 46 U.S.C. § 7703, the Coast Guard 

must prove that the alleged act occurred while the mariner was “acting under the authority” of an 

MMC. A mariner is considered to be acting under the authority when the holding of a credential 

or endorsement is: (1) required by law or regulation; (2) required by an employer as a condition 

for employment or (3) while engaged in official matters regarding the credential or endorsement 

, including, but is not limited to, such acts as applying for renewal, taking examinations for raises 

of grade, requesting duplicate or replacement credentials, or when appearing at a suspension or 

revocation hearing. 46 C.F.R. § 5.57; see also Appeal Decision 2677 (WALKER) (2008). 

In both his original Answer and his Answer to the Amended Complaint, Respondent 

admitted to all jurisdictional facts. Additionally, the record clearly establishes that Respondent 

was the holder of an MMC at the time he submitted the urine samples for the pre-employment 

tests that form the basis for Allegations One and Three. This case was taken pursuant to 46 

U.S.C. § 7704(c) and the Coast Guard properly charged Respondent with “use of or addiction to 

the use of dangerous drugs,” so Respondent’s status as the holder of an MMC in and of itself 

affords the Coast Guard jurisdiction to institute this suspension and revocation proceeding. 

Accordingly, I find jurisdiction is established for Allegations One and Three. See Appeal 

Decision 2668 (MERRILL) (2007).

In Allegation Two, the Coast Guard specifically alleged that Respondent was acting 

under the authority of his credential and endorsement when the holding of such a credential was 

required by law or regulation. The evidence establishes that Respondent was serving as the Pilot 

(Master) aboard the towing vessel M/V GREGORY DAVID. Only an individual with an 
16

appropriate endorsement on his MMC may operate such a vessel. 46 U.S.C. § 8904. 46 C.F.R. § 

15.610. Accordingly, I find Respondent was operating under the authority of his MMC as 

required by law or regulation and jurisdiction also exists for Allegation Two.

5. Use of Dangerous Drugs, Generally

Title 46 U.S.C. § 7704(c) mandates revocation of a Coast Guard-issued credential when 

the Coast Guard proves by reliable, credible, and probative evidence that the holder of an MMC 

has used dangerous drugs. A respondent who is shown to have used drugs may avoid revocation 

by providing reliable, credible, and probative evidence of cure. Id.

In 1954, Congress enacted 46 U.S.C. § 239a with the clear intent of removing narcotic 

drug users and addicts from the merchant marine.1In 1983, Congress replaced § 239a with 46 

U.S.C. § 7704(c) and simultaneously expanded the language to incorporate violations involving 

additional non-narcotic “controlled substances,” such as PCP and LSD. Pub. L. 98-89, Aug. 26, 

1983, 97 Stat. 546.2 Congress’s express purpose was to remove individuals who possess and use 

dangerous drugs from the United States merchant marine. House Report No. 338, 98th Cong., 1st 

Sess. 177 (1983); see also Appeal Decision 2634 (BARRETTA) (2002). As a result, 46 U.S.C. § 

7704(c) now mandates revocation of MMCs in cases involving any controlled substance. 

The statute does not specifically require drug testing, and it allows the introduction of 

other types of evidence that a respondent has used drugs.3 Where the evidence of drug use comes 

from the results of federally-mandated drug testing, though, additional elements of proof arise.

 

1

Pub. L. 83-500, July 15, 1954, 68 Stat 484. This section says the “Secretary may take action ... based on a hearing 

before a Coast Guard [ALJ] under hearing procedures prescribed by the Administrative Procedure Act... to revoke 

the seaman's document of ...any person who, unless he furnishes satisfactory evidence that he is cured, has been, 

subsequent to the effective date of this Act, a user of or addicted to the use of a narcotic drug.”

2 This took place as part of a major recodification of U.S. Shipping laws in Title 46 of the U.S.Code.

3

See Appeal Decisions 2570 (HARRIS) (1995) and 2538 (SMALLWOOD)) (1992) (admissions by a respondent); 

2451 (PAULSEN) (1987) and 2424 (CAVANAUAGH) (1986) (observation by others); and 2026 (CLARK) (1975) 

and 1833 (ROSARIO) (1971) (medical treatment for use or addiction).
17

6. Drug Testing of Merchant Mariners under the Federal Transportation Workplace 

Drug Testing Programs

The Coast Guard’s regulations implementing the Federal Transportation Workplace Drug 

Testing Programs are found at 46 C.F.R. Part 16 and follow the procedures set forth by the 

Department of Transportation (DOT) in 49 C.F.R. Part 40. Today, most Coast Guard cases 

brought under 46 U.S.C. § 7704(c) relate to the drug tests mandated in 46 C.F.R. Part 16 and 

conducted in accordance with 49 C.F.R. Part 40. 

Allegations One and Three allege Respondent used marijuana. The definition of 

“dangerous drug” in 46 U.S.C. § 2101(8a) is “a narcotic drug, a controlled substance, or a 

controlled substance analog (as defined in section 102 of the Comprehensive Drug Abuse and 

Control Act of 1970 (21 U.S.C. 802)).” This Act defines a “controlled substance” as “a drug or 

other substance . . . included in schedule I, II, III, IV, or V of part B of this subchapter” but not 

distilled spirits, wine, malt beverages, or tobacco. 21 U.S.C. § 802(6). Marijuana is controlled 

under Schedule I of the Act (21 U.S.C. § 812) and is a dangerous drug for the purposes of 46 

U.S.C. § 7704(c).

The Commandant recognizes that requiring a person to undergo drug testing may pose 

constitutional issues. Thus, in an effort to “safeguard the constitutional rights of affected 

mariners” the Coast Guard may mandate only the following types of drug tests: pre-employment, 

periodic, random, serious marine incident and reasonable cause. Appeal Decisions 2704 

(FRANKS) (2014) and 2697 (GREEN) (2011).

In order to establish a prima facie case of drug use based on a Part 16 urinalysis test, “the 

Coast Guard must prove three elements: (1) that Respondent was tested for a dangerous drug, (2) 

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

accordance with 46 C.F.R. Part 16.” Appeal Decision 2697 (GREEN) (emphasis added); see 

also Appeal Decision 2603 (HACKSTAFF) (1998) (discussing these elements and the proof 
18

required to establish them). However, “minor technical infractions of the drug testing regulations 

do not violate due process unless the infraction breaches the chain of custody or violates the 

specimen's integrity.” Appeal Decision 2685 (MATT) (2010); see also Appeal Decisions 2668 

(MERRILL) and 2546 (SWEENEY), aff'd sub nom NTSB Order No. EM-176 (1994).

According to Hackstaff, to satisfy the first element the Coast Guard must show that the 

respondent was the person tested for dangerous drugs. This necessarily involves proof of the 

following: the identity of the person providing the specimen; a link between that person and the 

identification number assigned to the sample which follows it throughout the testing process; and 

adequate testing of that specific sample. Proof of the second element—that the respondent failed 

the drug test—necessitates submission of the test results and the MRO’s status and 

qualifications; proof that the MRO reviewed the results; and submission of an MRO report 

certifying the results as “positive.” The third element requires that the test was conducted in 

accordance with 46 C.F.R. Part 16 and 49 C.F.R. Part 40. The Coast Guard must prove that it 

was properly collected; the chain of custody was unbroken; the specimen was properly handled 

and shipped to the testing facility; and the laboratory was qualified to conduct the testing. 

In practice, this third element is inextricably entwined with the first two. For instance, an 

ALJ cannot determine that a test was properly conducted without first considering whether the 

test administered under the first prong is a type required by 46 C.F.R. Part 16. The ALJ must also 

consider whether the laboratory and MRO substantially followed the requirements in 49 C.F.R. 

Part 40 when analyzing the specimen and verifying the results. This analysis may become 

complex, particularly if the laboratory and/or MRO have deviated in some way from the Part 40 

requirements. 

Moreover, Appeal Decision 2704 (FRANKS) has clearly expanded the third element to 

include the reason why the test was conducted. The Commandant held that when a private 

employer conducts drug testing to comply with 46 C.F.R. Part 16, the employer acts as an 
19

instrument or agent of the government. “A government-mandated 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. However, Franks does not prescribe exactly what evidence is sufficient to 

demonstrate the test was properly ordered. 

In the wake of Franks, it appears the prima facie test could be laid out more succinctly: 

(1) a holder of an MMC has submitted to a properly ordered, federally-mandated drug test; (2) a 

properly trained collector obtained the sample in accordance with Part 40 rules; (3) a SAMHSAcertified laboratory tested the sample and reported an adverse result to the MRO as prescribed by 

the Part 40 rules; and (4) the MRO reviewed the results according to the Part 40 Subpart G rules 

and verified the adverse result. While I have structured the discussion here as a three-pronged 

inquiry according to the requirements of Hackstaff, my analysis thoroughly considers each of 

these factors.

In two of the allegations here, Respondent took pre-employment drug tests. These were 

federally mandated because “[n]o marine employer shall engage or employ any individual to 

serve as a crewmember unless the individual passes a chemical test for dangerous drugs for that 

employer.” 46 C.F.R. § 16.210. An employer may waive a pre-employment test only if a job 

applicant provides satisfactory evidence of passing a chemical test for dangerous drugs within 

the previous six months, or proof of satisfactory participation in a federally required random 

testing program under 46 C.F.R. 16.230.
20

The other allegation involved random testing pursuant to 46 C.F.R. § 16.230. This 

regulation requires marine employers to establish programs to test crewmembers for dangerous 

drugs on a random basis:

The selection of crewmembers for random drug testing shall be made by a 

scientifically valid method, such as a random number table or a computerbased random number generator that is matched with crewmembers' 

Social Security numbers, payroll identification numbers, or other 

comparable identifying numbers. Under the testing frequency and 

selection process used, each covered crewmember shall have an equal 

chance of being tested each time selections are made and an employee's 

chance of selection shall continue to exist throughout his or her 

employment. As an alternative, 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).

Respondent worked aboard uninspected towing vessels. The rules require testing of 

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; 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). 

There is a regulatory presumption that an individual who has failed a Part 16 drug test is 

a user of dangerous drugs. 46 C.F.R. § 16.201(b). This presumption arises only if the Coast 

Guard establishes its prima facie elements by substantial, reliable, and probative evidence, but 

the Commandant has not said precisely how any given element must be proven. The presumption 

is also rebuttable: a respondent “faced with overcoming the presumption of use of a dangerous 

drug may rebut the presumption by producing evidence (1) that calls into question any of the 

elements of the prima facie case, (2) that indicates an alternative medical explanation for the 
21

positive test result, or (3) that indicates the use was not wrongful or not knowing. If this evidence 

is sufficient to rebut the original presumption, then the burden of presenting evidence returns to 

the Coast Guard.” Appeal Decision 2560 (CLIFTON) (1995).

7. Misconduct: Refusal to Take a Drug Test.

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. Here, 

misconduct is premised on 49 C.F.R. § 40.191(b), which states that an employee has refused to 

take a drug test “if the MRO reports that you have a verified adulterated or substituted test 

result.” 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).

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

misconduct. Appeal Decision 2690 (THOMAS) (2010), Appeal Decision 2675 (MILLS) (2008). 

One form of refusal is a substituted specimen, which DOT rules define as a “urine specimen with 

creatinine and specific gravity values that are so diminished or so divergent that they are not 

consistent with normal human urine.” 49 C.F.R. § 40.3. DOT rules require Drug Testing 

Laboratories to conduct specimen validity testing, which is “the evaluation of the specimen to 

determine if it is consistent with normal human urine. The purpose of validity testing is to 

determine whether certain adulterants or foreign substances were added to the urine, if the urine 

was diluted, or if the specimen was substituted.” 49 C.F.R. § 40.89. 

A laboratory “must consider the primary specimen to be substituted when the creatinine 

concentration is less than 2 mg/dL and the specific gravity is less than or equal to 1.0010 or 
22

greater than or equal to 1.0200 on both the initial and confirmatory creatinine tests and on both 

the initial and confirmatory specific gravity tests on two separate aliquots.” 49 C.F.R. § 40.93. 

An MRO must then review and validate the laboratory results involving adulteration or 

substitution. 49 C.F.R. § 40.145. The MRO must consider whether there is a legitimate medical 

explanation for the laboratory findings for the specimen. If there is no legitimate explanation, the 

MRO will report the test as a verified refusal to test because of adulteration or substitution. 

The Coast Guard’s prima facie case when alleging misconduct for refusal to test is 

similar to a prima facie case of drug use based on a Part 16 urinalysis test. The Coast Guard must 

prove three elements: (1) while acting under the authority of a merchant mariner credential, a 

respondent was tested for a dangerous drug, (2) the respondent’s specimen was found to be 

adulterated or substituted under the requirements of 49 C.F.R. Part 40, and (3) the test was 

conducted in accordance with 46 C.F.R. Part 16 and 49 C.F.R. Part 40.4

8. Basic Requirements of Drug Testing Laboratories

All drug testing laboratories that process federal drug tests must be certified under the 

Department of Health and Human Services’ National Laboratory Certification Program. 49 

C.F.R. 40.81(a). The Substance Abuse and Mental Health Services Administration (SAMHSA) 

is the agency responsible for federal drug testing programs and publishes a list of accredited 

laboratories in the Federal Register each month. These laboratories are highly regulated and are 

subject to “mandatory guidelines” regarding their policies and procedures.

Quest Diagnostics in Lenexa, Kansas performed the testing for each allegation in this case. 

At the hearing, Respondent’s counsel questioned whether Quest is a SAMHSA-certified facility, 

 

4 Although these precise elements have not been set forth in a prior Appeal Decision, in Franks the Commandant 

held that “the [46 C.F.R. § 16.201(b)] presumption is the source from which were drawn the prima facie case 

elements discussed herein.” Id. at 5. Thus, it stands to reason that, for any allegation based on a drug test mandated 

by Part 16, the Coast Guard must prove the respondent was tested, the test result was adverse to the respondent, and 

the test was properly conducted. The particular requirements will vary based on the actual nature of the charge, e.g. 

a use of dangerous drugs allegation versus a misconduct allegation based on refusal to test.
23

as it does not appear under that name in the relevant Federal Register publications. I take official 

notice that on each relevant date, it was listed as LabOne, Inc. d/b/a Quest Diagnostics [Formerly 

Quest Diagnostics Incorporated; LabOne, Inc.; Center for Laboratory Services, a Division of 

LabOne, Inc.]. See 76 Fed. Reg. 75889 (Dec. 5, 2011); 78 Fed. Reg. 72685 (Dec. 3, 2013); 79 

Fed. Reg. 26445 (May 8, 2014). It was therefore qualified to conduct the testing for each drug 

test forming the basis for an allegation in this case.

9. Basic Requirements of Medical Review Officers

The basic responsibilities of a Medical Review Officer (MRO) include (1) acting as an 

independent and impartial “gatekeeper” and advocate for the accuracy and integrity of the drug 

testing process; (2) providing a quality assurance review of the drug testing process for the 

specimens under their purview; (3) determining whether there is a legitimate medical explanation 

for confirmed positive, adulterated, substituted, and invalid drug tests results from the laboratory, 

and (4) performing all MRO functions in compliance with Part 40 and other DOT agency 

regulations. See 49 C.F.R. § 40.123; 46 C.F.R. § 16.203(b).

The Coast Guard further requires an MRO to review the record of an individual who has 

been shown to have used dangerous drugs and has completed the required rehabilitation 

programs. The MRO must determine that the individual is drug-free and the risk of subsequent 

use of dangerous drugs is sufficiently low to justify a return to work. 46 C.F.R. § 16.201(f).

B. Analysis: Allegation One 

The first allegation in the Complaint states that Respondent took a pre-employment drug 

test on December 28, 2011; provided a urine specimen to the collector, Jackie Jones of 

Concentra Urgent Care; and signed a CCF. Quest Diagnostics analyzed that specimen using 

procedures approved by the Department of Transportation. The specimen tested positive for 
24

marijuana metabolites, and the Medical Review Officer, Dr. Patricia J. Ausman, verified the test 

as positive. 

1. Issues Presented

This allegation presents the following issues for me to decide:

1. Is MRO testimony necessary where the MRO has certified a drug test result as 

positive despite the respondent’s claim of a legitimate medical reason for the 

result?

2. Has the Coast Guard proved that Respondent is a user of, or addicted to, 

dangerous drugs?

2. The Parties’ Arguments

The Coast Guard asserts there were no irregularities related to the collection or the lab 

testing and says the MRO report (EX CG-03) and MRO Detail Report (EX CG-10) have been 

admitted and are un-contradicted. According to the Coast Guard, “Respondent does not dispute 

the results reported to him and his explanation offered to the MRO was totally rejected as per the 

MRO’s report.” (CG Brief). 

Respondent argues that he provided to Dr. Ausman a legitimate medical explanation for 

the positive result, a prescription for Marinol. Dr. Ausman did not testify at the hearing, so 

Respondent was unable to cross-examine her regarding her review of the December 28, 2011 

drug test, her conversation with him, or her ultimate findings.

3. Did the Collection and Testing Procedures Comply with the Regulations?

The record establishes that Respondent submitted to a pre-employment drug test as 

required by 46 C.F.R. Part 16. The test was documented by a CCF with Respondent’s name and 

signature. (EX CG-01). The collector testified, and the record supports, that she followed the 

DOT procedures for identifying Respondent, collecting the urine sample, and shipping it to an 

approved laboratory.
25

Quest Diagnostics received, processed and tested the specimen in accordance with 49 

C.F.R. Part 40 requirements and reported that the sample was both dilute and positive for 

marijuana metabolites. (EX CG-02; Tr. Vol. I pp. 114-31). The initial test produced a 

presumptive positive result and the confirmatory GC/MS test found a concentration of 39 ng/mL 

of marijuana metabolites, which is higher than the cutoff of 15 ng/mL. The laboratory reported 

the positive result to the MRO. 

The evidence establishes that the laboratory complied with its testing obligations under 

the regulations. There is a Laboratory Documentation Package (also known as a Litigation 

Package) in the record, and Dawn Hahn, the Director of the Laboratory and a Responsible 

Person at Quest Diagnostics, also testified about both general laboratory procedures and this 

specific test. Thus, the primary issues are whether MRO testimony is necessary to establish that 

this is a positive test, and whether the MRO acted in accordance with the DOT rules.

4. If the MRO Rejects a Medical Explanation for a Positive Test, Must the Record 

Contain an Explanation?

Although the Coast Guard initially placed the MRO on its witness list, she did not testify 

at the hearing.5Thus, the only evidence of a verified positive test is documentary: the Medical 

Review Officer Drug Test Results, dated January 19, 2012 (EX CG-03) and MRO Detail Report, 

which chronicles the calls between Dr. Ausman and Respondent from January 3 through 18, 

2012 (EX CG-10).

According to the MRO Detail Report, Dr. Ausman contacted Respondent on January 3, 

2012 and he told her he had a prescription for Marinol. The record shows he provided her with a 

photocopy of the prescription. (Tr. Vol. II pp. 103-4). Dr. Ausman noted she would consider 

 

5

Initially, the Coast Guard asserted that Dr. Ausman had been issued a subpoena but refused to comply. I held the 

record open to allow the Coast Guard to enforce the subpoena and was prepared to take Dr. Ausman’s testimony at a 

later date. However, after the hearing the Coast Guard informed me the subpoena was not properly served and they 

would not continue to seek Dr. Ausman’s testimony, and moved to close the record without it.
26

THCV (tetrahydrocannabivarin) testing6to determine whether the metabolites came from 

marijuana or Marinol, but the record does not show she ever ordered THCV testing. It is also 

clear Dr. Ausman asked Respondent for proof he had filled the prescription. Her decision to 

certify the test as positive implies she was not satisfied with the explanation or evidence she 

received, but the Detail Report does not explain why. Dr Ausman then certified that 

Respondent’s urine sample was positive for marijuana metabolites and dilute.

Under DOT rules if a MRO does not report test results using Copy 2 of the CCF, the 

MRO must provide a written report (e.g., a letter) for each test result. This report must, as a 

minimum, include the following information:

(1) Full name, as indicated on the CCF, of the employee tested;

(2) Specimen ID number from the CCF and the donor SSN or employee 

ID number;

(3) Reason for the test, if indicated on the CCF (e.g., random, postaccident);

(4) Date of the collection;

(5) Date you received Copy 2 of the CCF;

(6) Result of the test (i.e., positive, negative, dilute, refusal to test, test 

cancelled) and the date the result was verified by the MRO;

(7) For verified positive tests, the drug(s)/metabolite(s) for which the test 

was positive;

(8) For cancelled tests, the reason for cancellation; and

(9) For refusals to test, the reason for the refusal determination (e.g., in the 

case of an adulterated test result, the name of the adulterant).

49 C.F.R. § 40.163.

The Medical Review Officer Drug Test Results (EX CG-03) substantially meets the 

above requirements. However, this document does not mention the Marinol prescription or give 

any reasoning for the positive verification. The regulations require an MRO to “review and take 

all reasonable and necessary steps to verify the authenticity of all medical records the employee 

 

6 This type of testing will result in a positive THCV urinalysis from smoking a plant cannabis product, whereas the 

oral ingestion of therapeutic THC should result in a negative THCV urinalysis, allowing for discrimination between 

pharmaceutical THC products and illicit marijuana products. See Delta9-tetrahydrocannabivarin as a marker for the 

ingestion of marijuana versus Marinol: results of a clinical study, El Sohly MA, deWit H, Wachtel SR, Feng S, 

Murphy TP. J Anal Toxicol. 2001 Oct; 25(7):565-71. PMID: 11599601, available at

http://www.ncbi.nlm.nih.gov/pubmed/11599601.
27

provides” if an employee asserts that the presence of a drug or drug metabolite the specimen 

results from taking prescription medication. 49 C.F.R. § 40.141. In doing so, the MRO “may 

contact the employee’s physician or other relevant medical personnel for further information.” 

Id. If the MRO determines that there is a legitimate medical explanation, the MRO must verify 

the test result as negative; otherwise, the MRO must verify the test result as positive. 49 C.F.R. § 

40.137.

The MRO Detail Report shows that Respondent had substantial contact with Dr. Ausman 

and she was aware of the Marinol prescription. (EX CG-10). She also appears to have considered 

whether additional testing to determine the source of the metabolites was warranted. However, it 

also appears she placed the onus of proving that the prescription had been filled on Respondent

and did not attempt to contact his prescribing physician. Thus, I cannot conclude from the record 

before me that the MRO took all necessary and reasonable steps to verify the authenticity of 

Respondent’s prescription. The record establishes only her final conclusion; it is devoid of her 

reasoning for ultimately discounting Marinol as a legitimate medical explanation. 

MRO testimony is not always required in Coast Guard drug cases. In Appeal Decision 

2657 (BARNETT) (2006), the MRO responsible for the handling of the case did not testify at the 

hearing, but the Commandant found the record contained other evidence to support the ALJ’s 

conclusion that Respondent's drug test was conducted in accordance with 49 C.F.R. Part 40.

In the case at hand, though, MRO testimony was critical. Respondent raised the issue of a 

legitimate medical explanation for a positive drug test result. The documentary evidence lacks 

sufficient detail for me to determine whether the MRO followed the requirements of 49 C.F.R. 

Part 40, Subpart G in verifying the sample as positive. In these circumstances, the MRO would 

have to testify or other evidence would have to clearly explain the reasoning for the positive 

verification. Although the Coast Guard called a medical records professional from the company 

where Dr. Ausman worked when she verified this test to testify, this testimony was not an 
28

adequate substitute for Dr. Ausman’s. The employee who testified had no direct knowledge of 

this case and testified solely as to the manner in which company records are kept. Thus, Dr. 

Ausman’s reasoning is entirely absent from the administrative record before me.

5. Conclusion as to Allegation One

The Coast Guard has brought the allegations against Respondent and consequently bears 

the burden of proof. The Coast Guard intended to call Dr. Ausman and I held the record open 

after the hearing so they could compel her testimony, but ultimately they moved to close the 

record without her testimony. The evidence the Coast Guard has placed in the record is 

inadequate to show what factors Dr. Ausman considered in determining that no legitimate 

medical explanation existed and whether she followed the requirements of 49 C.F.R. Part 40, 

Subpart G. In the absence of this crucial evidence, I cannot find that the Coast Guard has 

satisfied the second or third elements of its prima facie case and must find this allegation NOT 

PROVED. 

C. Analysis: Allegation Two

The Coast Guard alleges that on December 17, 2013, Respondent’s marine employer 

informed him that he had been selected for a random drug test. Andrew Jones of PCS Drug 

Screening conducted the testing and Quest Diagnostics analyzed Respondent’s urine sample 

using procedures approved by the Department of Transportation. The MRO, Dr. Horacio 

Marafioti, subsequently reported the specimen “substituted.” The MRO’s determination of 

"Substituted" is deemed a Refusal as described by 49 C.F.R. § 40.191(b) and constitutes an act of 

Misconduct as described by 46 C.F.R. § 5.27.

1. Issues Presented

I must decide the following issues stemming from this allegation:
29

1. Was this a random drug test administered in compliance with 46 C.F.R. § 

16.230?

2. Were there significant flaws in the collection process?

3. Was the MRO review conducted in accordance with 49 C.F.R. Part 40?

4. Was the MRO credible?

5. Has the Coast Guard proved that Respondent committed Misconduct by 

refusing to take a drug test?

2. The Parties’ Arguments

The Coast Guard contends the “random process as utilized by the employer, Steel City 

Marine, comports to the ‘Randomness’ requirements in 46 C.F.R. §16.203(c). Respondent does 

not contest the randomness of the testing or assert that the testing was manipulated or that he was 

singled out.” (CG Brief). It also says there were no irregularities related to the collection or the 

lab testing. The Coast Guard argues that “the testimony of the MRO should be sufficient to the 

elements establishing a prima facie case, and shifting to the Respondent the burden of production 

to rebut the presumption.” Id.

In response, Respondent argues that the selection was not random. He also argues that the 

Coast Guard failed to prove that the collector followed the Part 40 requirements in collecting the 

December 17, 2013 specimen because he could not remember whether any possibility of 

contamination existed and there was an improper door for the testing bathroom. Respondent 

further argues that the collector failed to provide him with Copy No.5, the Donor Copy, of the 

CCF. Finally, Respondent says he requested a split specimen test for his December 17, 2013 test 

but the MRO failed to order that test. 

3. Was this a Random Test in Compliance with 46 C.F.R. § 16.230? 

The record establishes that Respondent’s marine employer selected the crew of the M/V 

GREGORY DAVID for drug testing on December 17, 2013 and Respondent was aboard the 
30

vessel at the relevant time. Dean Ference, president of Steel City Marine Transport, testified 

about his company’s drug testing program and said they managed their own program instead of 

using a third party administrator. Steel City Marine did not randomly test individual mariners but 

rather used “whole boat testing,” meaning it selected a vessel and tested all crewmembers on 

board at the time. In 2013, the company owned two vessels and operated a third. Mr. Ference 

managed the program himself, with assistance from his office employees, and tested each vessel 

at random once per year.

In early December, Mr. Ference noticed the M/V GREGORY DAVID had not yet been 

tested. He therefore determined a time when the vessel was available and someone from the 

testing company he uses, PCS Drug Screening, was available to administer the tests. (Tr. Vol. I 

p. 109). It is clear from Mr. Ference’s testimony that the M/V GREGORY DAVID was the only 

vessel considered for testing in December 2013. The issue before me is whether this process is 

consistent with the requirements of 46 C.F.R. § 16.230(c). 

The principal source of the random testing requirements for marine employers is 46 

C.F.R. § 16.230, though 46 C.F.R. §§ 16.113 and 16.203 and 49 C.F.R. Part 40, Subpart B also 

apply. In addition, the Coast Guard publishes a document entitled “Marine Employers Drug 

Testing Guidance” which says “[a]ny person serving aboard a commercial vessel that meets the 

definition of a crewmember or performs a safety sensitive function is required to be enrolled in a 

random drug test program.” Guidance p. 25. As noted above, though, the Commandant has not 

described what an employer must do to establish compliance with a random testing program.

It is clear that marine employers must ensure random drug tests are unannounced. 

Guidance p. 26. The regulations require each covered crewmember to have an equal chance of 

being tested each time selections are made and for his or her chance of being selected to 

continually exist throughout his or her employment. 46 C.F.R. § 16.230 (c). This means each 

crewmember is eligible for testing every time a selection is made, “regardless if they have 
31

already been selected earlier in the year. That is why it is possible to have one person selected 

several times while another may not be selected at all.” Guidance p. 27. “The idea is that 

crewmembers should have the feeling that on any given day, they could be called up to provide a 

specimen. This feeling will only happen when crewmembers see random testing being conducted 

throughout the year, with no patterns.” Guidance p. 26. Additionally, the mariner cannot have 

any control over when and where drug testing is administered. See, e.g., Appeal Decisions 2669 

(LYNCH) (2007); 2657 (BARNETT), 2652 (MOORE). 

The Commandant has held that random testing is specifically authorized by Coast Guard 

regulation and may be conducted without notice or any suspicion of drug use, provided the 

random selection process used by the marine employer to select a mariner for random testing 

satisfies all regulatory requirements. See Appeal Decisions 2641 (JONES) (2003); 2697 

(GREEN); and 2704 (FRANKS). Two recent ALJ decisions have dismissed the allegations after 

considering selection criteria in the context of random drug testing. In one, the Coast Guard 

admitted that the marine employer did not comply with 46 C.F.R. Part 16.7In the other, USCG v. 

Hopper, 2013-190 (Sept. 10, 2014), a random number generator was used by a third-party 

administrator to select a vessel for testing and personnel who used the generator in managing the 

testing program testified about its validity. 

In Hopper, the ALJ rejected the testimony and found that no evidence was presented to 

establish the random number generator as “a ‘scientifically valid method’ for vessel selection or 

that ‘each vessel subject to the marine employer’s test program remains (mathematically) equally 

subject to selection.’ 46 C.F.R. §16.230(c).” Id. The ALJ concluded that the “Coast Guard did 

not prove that the [vessel] was randomly selected by a scientifically valid method, thus, the 

Coast Guard could not prove that Respondent was randomly selected by a scientifically valid 

 

7 USCG v. Green, 2010-0372 (July 2, 2012).
32

method. Thus the court is ‘required to dismiss’ the matter as per Appeal Decision 2704 

(FRANKS) (2014).” Id.

The decisions of other ALJs are not binding on me but can be persuasive. However, I do 

not concur with the ALJ in Hopper that scientific evidence is required to prove the validity of a 

particular selection method. The regulation gives two examples of valid methods for selecting 

mariners for testing: a “random number table” and a “computer-based random number 

generator.” 46 C.F.R. § 16.230. If the Coast Guard shows that one of these methods was used, no 

further proof of validity is required.

In any event, both this case and Hopper involved the selection of entire vessels, not 

individual mariners. The pertinent rule does not require a “scientifically valid method” for vessel 

selection, but rather states “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.” Accordingly, 

I do not find Hopper persuasive as to whether the test in this matter met the requirements for 

random testing. 

It is clear from this record that Respondent had no knowledge of or control over when 

and where this drug testing was administered. However, Steel City’s selection process was 

nevertheless deficient. The company operated three vessels, only one of which was considered 

for selection in December 2013. The test was unannounced, but each crewmember covered by 

Steel City’s program did not have an equal chance of being tested because no crewmembers 

aboard the other two boats were eligible for selection at that time. Moreover, once a boat had 

been tested, the crew may have been aware that they would not be selected again that year as 
33

long as they remained crewmembers on that particular vessel.8 While management believed the 

program complied with 46 C.F.R. § 16.230, it is clear that the selection process was not 

consistent with the rules.

Minor technical infractions of the drug testing regulations may not violate due process if 

the infraction does not breach the chain of custody or violate the specimen’s integrity. The 

question here is whether or not the flawed method of selecting Respondent for random testing is 

a minor technical infraction which can be excused. 

In Green, the Commandant held that use of an improper selection method warrants 

dismissal; I believe Franks likewise requires dismissal where a Part 16-mandated (governmentordered) test forms the basis for a suspension and revocation action and the Coast Guard fails to 

show that the relevant drug test was properly ordered under 46 C.F.R. Part 16. This is because 

the third element of the prima facie case fails. Franks at 10. “The drug-testing regulatory regime 

imposed on maritime employers enumerates reasons for testing, and requires employer 

compliance with those reasons.” Id. at 8. Here, I have reviewed the record, the Part 16 rules, the 

employer’s drug program, and Coast Guard guidance to marine employers and I find the 

employer’s method of selecting vessels for drug testing did not comply with the rules. 

Accordingly, dismissal of Allegation Two is warranted. I do, however, note that this is an issue 

of first impression and I will therefore also consider the other potential violations of the drug 

testing rules relating to this allegation. 

4. Were There Significant Flaws in the Collection Process?

A certified collector, Andrew D. Jones of PCS Drug Screening, administered tests to all 

crew members, including Respondent, on board the M/V GREGORY DAVID. He documented 

 

8 Even if a crewmember transferred from a boat that had been drug tested previously to one that had not, all of the 

company’s employees would not have been equally subject to testing; only the crewmember who transferred would 

be subject to an additional test during that calendar year.
34

the collection on a CCF that has Respondent’s name and signature. However, my review of the 

evidence shows that there were several flaws in the collection process. While these flaws, 

standing alone, may not prove fatal to the allegation, I must nevertheless consider the extent to 

which they affect the validity of the testing.

This test took place on board the M/V GREGORY DAVID. The requirements for a test 

facility are described in 49 C.F.R. § 40.41. Tests may be conducted in a variety of locations, 

including on board a vessel, provided the facility meets the requirements of this section. 49 

C.F.R. § 40.41(g). Based on the testimony, the M/V GREGORY DAVID appears to be a 

generally appropriate collection site.

Among other things, the regulations require a collector to secure “all sources of water and 

other substances that could be used for adulteration and substitution” by turning off water inlets 

or taping faucet handles. 40 C.F.R. §§ 40.41(e)(2) and 40.43(b)(1). Mr. Jones testified there was 

a sink inside the M/V GREGORY DAVID’s lavatory but he did not tape off or otherwise secure 

the water faucets and that he used the sink to wash his hands in between collections. He stated he 

would have heard the water if the tap had been turned on. 

The requirement to secure water sources is primarily meant to ensure that the urine 

sample is not surreptitiously adulterated by the donor. Mr. Jones’s failure to properly secure the 

water source introduced a way for to the sample to be substituted or adulterated. However, I note 

violations of similar requirements have been found not to constitute fatal flaws in the collection 

process. See, e.g., Appeal Decisions 2522 (JENKINS) (1991); 2541 (RAYMOND) (1992), and 

2688 (HENSLEY) (2010).

Next, there is a significant issue with the CCF for this collection. The regulations require 

a collector to complete the CCF, “ensure that all copies of the CCF are legible and complete,” 

and “remove Copy 5 of the CCF and give it to the employee.” 40 C.F.R. § 40.73(2)-(4). This 

must be done in the donor’s presence. Here, it is clear that this was not done, as Respondent’s 
35

employer was in possession of Copy 5 and supplied a copy to the Coast Guard. No satisfactory 

explanation was given, and Respondent could not remember whether he had received the form 

after giving his sample. This error did not breach the chain of custody, but it raises concerns as to 

the integrity of the test because, without that form, Respondent had no way to verify the details 

of the test, including the specimen number. Standing alone, I would not find this error so serious 

as to violate Respondent’s due process rights, but given the cumulative flaws, I find the collector 

did not substantially comply with the regulations.

5. Was the MRO Review Conducted in Accordance with Part 40?

Quest Diagnostics received, processed and tested the specimen in accordance with 49 

C.F.R. Part 40 and reported that the sample was substituted. (EX CG-02). The initial testing 

showed a low creatinine level in Respondent’s urine, and subsequent specimen validity testing 

showed a creatinine level of less than .05 and a specific gravity of 1.0218. For Coast Guard drug 

testing purposes, the laboratory test alone does not equate to a finding of a substituted specimen; 

an MRO must review the results and make the determination before the test is considered 

“substituted.”

Dr. Horacio Marafioti was the MRO for this test and testified at the hearing via 

telephone. The MRO copy of the CCF, Copy 2, was the form he used to report results and is in 

the record. Dr. Marafioti testified that when he received Respondent’s test results, he had his 

assistant telephone Respondent and transfer the call to him. Dr. Marafioti then spent 19 minutes 

explaining to Respondent that his specimen had undergone validity testing and was determined 

to have low creatinine levels. He asked Respondent if there was a medical reason, such as kidney 

disease, and Respondent denied having kidney problems. However, Respondent did say he had 

been hydrating more. (Tr. Vol. 1 p. 174). Respondent also testified at the hearing that he was on 
36

medications for a staph infection that made him thirsty and was drinking a lot of water, but there 

is no evidence he told Dr. Marafioti about this. (Tr. Vol. II p. 172).

Dr. Marafioti told Respondent he would have to verify the sample as substituted and 

report a refusal to test. He also informed Respondent that split specimen testing was available. 

According to Dr. Marafioti, Respondent “requested that the split sample would be tested. Also, 

he stated that he will be asking his personal physician to check on his kidney and do an overall 

check-up.” (Tr. Vol. I p. 175). In conflicting testimony, Dr. Marafioti later said his assistant held 

a conversation with Respondent, during which Respondent either said to cancel the split 

specimen testing (Tr. Vol. I p. 185) or said he would get back to them regarding the split 

specimen but never called back (Tr. Vol. I p. 199). Although Dr. Marafioti said his assistant had 

written him an email about this, he did not produce it. (Tr. Vol. I p. 200; EX CG-12). Dr. 

Marafioti’s notes of the conversation and Copy 2 of the CCF clearly substantiate his initial 

testimony that Respondent requested split sample testing. (EX CG-12). Nevertheless, the record 

shows the testing was never carried out and Dr. Marafioti reported the test as a refusal to test, 

substituted. Id.

The failure to test a split sample when requested to do so, or to properly document a 

request to cancel the split sample testing, is a severe flaw. The DOT drug testing procedures give 

a respondent 72 hours from notification that a test is suspected to be substituted or adulterated to 

request split sample testing. 49 C.F.R. § 40.171. All indications in the record are that Respondent 

made a timely request. An MRO must then “immediately provide written notice to the laboratory 

that tested the primary specimen, directing the laboratory to forward the split specimen to a 

second HHS-certified laboratory. You must also document the date and time of the employee’s 

request.” 49 C.F.R. § 40.171(c). Because Dr. Marafioti failed to follow this regulation, I cannot 

find that the test as a whole was conducted in accordance with Part 40.
37

6. Was the MRO Credible?

The credibility of the MRO was also at issue in this allegation. As a witness, Dr. 

Marafioti often provided non-responsive answers that bordered on hostile when questioned by 

Respondent’s counsel. However, he gave somewhat better answers to questions posed by the 

Coast Guard and by me. Dr. Marafioti also emphasized he had spent 19 minutes talking to 

Respondent when notified him of the laboratory results, but after listening to Dr. Marafioti’s 

testimony, I have concerns about the quality of his explanations. Coupled with his inability to 

explain the discrepancy regarding the split sample testing, I find Dr. Marafioti less than fully 

credible as a witness. Though I recognize there are inherent disadvantages to having a witness 

testify by telephone rather than in person, Coast Guard regulations permit telephonic testimony 

and I am not convinced the quality of the testimony would have improved if Dr. Marafioti had 

appeared in person.

7. Conclusion as to the Second Allegation

In order to establish a prima facie case, the Coast Guard must prove that the drug test was 

conducted “as required by [46 C.F.R. Part 16] and in accordance with the procedures detailed in 

49 CFR part 40.” 46 C.F.R. § 16.201(a). “In the interest of justice and the integrity of the entire 

drug testing system, it is important that the procedures outlined in 49 C.F.R. Part 40 are followed 

to maintain the system.” Appeal Decision 2631(SENGEL) (2002). Here, the marine employer 

failed to follow the random selection process required by 46 C.F.R. § 16.230(c) and the MRO 

failed to order a split specimen testing under 49 C.F.R. § 40.171. Either violation is sufficient to 

warrant dismissal of this allegation. There were also significant flaws in the collection process. 

The second allegation is NOT PROVED. 
38

D. Analysis: Allegation Three

The third allegation is that on May 23, 2014, Respondent took a pre-employment drug test. A 

urine specimen was collected by Michelle Hall of Pelican State Outpatient Center. Quest 

Diagnostics analyzed the specimen using procedures approved by the Department of 

Transportation. That specimen subsequently tested positive for Marijuana Metabolites, as 

verified by the Medical Review Officer, Jerome W. Cooper.

1. The Parties’ Arguments Regarding Allegation Three

Respondent argues that (1) the collector improperly altered the CCF, and (2) the record of 

the chain of custody is not complete because the Coast Guard produced neither the litigation 

packet, which documents the integrity of the chain of custody from receipt to the laboratory 

result, nor the certifying scientist to authenticate the packet, confirm the integrity of the chain of 

custody throughout the process, and testify as to the laboratory's compliance with the federal 

testing requirements. “Plainly put, USCG arguably satisfied Step 1 and Step 3 of the first prong, 

but failed to satisfy Step 2, creating a fatal gap in the chain of custody.” (Respondent’s Brief). 

Respondent avers he was prevented from cross-examining the certified laboratory 

scientist regarding the May 23, 2014 drug test and was unable to cross-examine the supporting 

documents for the May 23, 2014 drug test that relate to the integrity of the sample and the chain 

of custody. He says that, given the multiple errors at the collection point, the lack of the 

laboratory documentation to prove that the sample tested was indeed his own is a fatal flaw. 

The Coast Guard argues that the MRO is charged with “acting as an independent and 

impartial ‘gatekeeper’ and advocate for the accuracy and integrity of the drug testing process.” 

Further, pursuant to 49 CFR § 40.129, the MRO must verify the test result as positive, consistent 

with the requirements of 49 C.F.R. §§ 40.135 through 40.145, 40.159, and 40.160. Therefore, the 
39

testimony of the MRO should be sufficient to prove the elements of the prima facie case, and 

shifting to the Respondent the burden of production to rebut the presumption. 

Additionally, the Coast Guard relies on Kime v Sweeney, NTSB Order No. EM-176 

(1992), arguing that the National Transportation Safety Board (NTSB) “validated the essential 

role played by the MRO by stating that the laboratory report itself, once it was signed by the 

MRO, constituted proof adequate to shift to appellant the burden of going forward with evidence 

that the positive finding of marijuana metabolites in his urine was not the product of a wrongful 

use of the drug.” Accordingly, the Coast Guard contends no laboratory litigation package is 

necessary.

2. Is Copy 1 of a Custody and Control Form Sufficient to Establish a Laboratory’s 

Compliance with the Regulations?

The testimony and evidence establishes that Respondent provided a urine specimen for 

pre-employment drug testing to Michelle Hall, a certified collector on May 23 2014. (EX CG-07; 

Tr. Vol. II pp. 156-58). Pre-employment testing is federally mandated. (EX CG-07; Respondent's 

Answer to Amended Complaint at 1). There are substantial handwritten alterations to the CCF 

and the name of the MRO is incorrect. Ms. Hall testified, and the document reflects, that she 

made changes to billing codes but did not alter the donor identification number. I find Ms. Hall 

substantially followed DOT collection procedures and the alterations she made to the form are 

not fatal flaws. “Notwithstanding the noted minor deficiencies, the form meets the essential 

provisions of the regulations, promulgated to ensure the identification and protection of the 

integrity of the specimen, and contains the required certifications.” Appeal Decision 2537 

(CHATHAM) (1992). 

Quest Diagnostics processed the test and reported it positive for marijuana metabolites. 

(EX CG-07). Dr. Jerome Cooper, an MRO, contacted Respondent on June 4, 2014 to discuss the 

positive drug test results, then verified the positive test on that date. (EX CG-07 and CG-08; Tr. 
40

Vol. II pp. 16-40). Although Dr. Cooper was not the MRO initially listed on the form, he is 

nevertheless qualified to perform these functions and I do not find the discrepancy significant. 

The record is also clear that the MRO followed the requirements of 49 C.F.R. Part 40, Subpart G 

in verifying the test result. 

However, Respondent’s argument that the Coast Guard did not satisfy all three prongs of 

its prima facie case has merit. In contrast to the other allegations, the Coast Guard did not offer a 

laboratory documentation package for this allegation and did not call a representative from the 

laboratory to testify. Thus, the record does not contain any detail about the internal chain of 

custody, the initial screening tests, specimen validity testing, or GC/MS testing. I am unable to 

ascertain who performed what function in the screening process and whether they were qualified, 

and I cannot verify that the chain of custody was unbroken from the time the sample arrived at 

the laboratory until the results were sent to the MRO.

The Commandant has recently emphasized that, for government-mandated tests, it is 

crucial for the Coast Guard to prove that every prong of the three-prong prima facie case is 

satisfied. Appeal Decision 2704 (FRANKS). “Both aspects of the drug testing process, the ‘why’ 

and the ‘how’ . . . are therefore fundamental in the establishment of a case of drug use based on 

government-mandated drug testing. Thus, a government-mandated 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 9.

When drug testing is not compelled by regulation, a test that does not comply with Part 

16 may be used to establish drug use. Franks at 11. Here, the laboratory reported a non-negative 

result to the MRO via a legible, fully-completed Copy 1 of the CCF signed by the certifying 
41

scientist. In the absence of contrary evidence,9this is sufficient under DOT rules to establish that 

Respondent tested positive for a dangerous drug. 49 C.F.R. § 40.97. If this test was ordered by 

Respondent’s employer independent of Part 16, it could clearly form the basis for a suspension 

or revocation proceeding. Because the test underlying this allegation was government-mandated, 

though, I am bound to consider whether the evidence the Coast Guard has offered—consisting 

solely of Copy 1 of the CCF and the MRO’s testimony—is adequate to provide substantial 

evidence that the laboratory’s portion of the testing was conducted in accordance with 46 C.F.R. 

Part 16 and 49 C.F.R. Part 40.

The procedures used for processing specimens, conducting validity testing, and reporting 

results are in Subpart F of 49 C.F.R. Part 40. A laboratory participating in the DOT drug testing 

program must comply with the requirements of Part 40 and must also comply with all applicable 

requirements of HHS in testing DOT specimens. 49 C.F.R. § 40.81. Subpart K of the Mandatory 

Guidelines for Federal Workplace Drug Testing Programs contains detailed requirements for 

laboratories for processing specimens, which go the integrity of the drug testing program. 

The Coast Guard argues that the MRO verification is sufficient to prove that the 

laboratory complied with the applicable requirements. I disagree. Under 49 C.F.R. § 40.129(a), 

the MRO’s role is limited. Upon receiving a positive, adulterated, substituted, or invalid drug test 

result from a laboratory, before verifying the result, the MRO must:

(1) Review Copy 2 of the CCF to determine if there are any fatal or 

correctable errors that may require you to cancel the test (see §§ 40.199 

and 40.203). Staff under your direct, personal supervision may conduct 

this administrative review for you, but only you may verify or cancel a 

test.

(2) Review Copy 1 of the CCF and ensure that it is consistent with the 

information contained on Copy 2, that the test result is legible, and that the 

certifying scientist signed the form. You are not required to review any 

other documentation generated by the laboratory during their 

 

9 Despite Respondent’s argument that he could not know whether the test was properly conducted in the absence of 

a litigation package, he did not submit evidence of any fatal flaws. He could have obtained the litigation package on 

his own if he wished to attack the chain-of-custody or testing procedures.
42

analysis or handling of the specimen (e.g., the laboratory internal 

chain of custody).

49 C.F.R. § 40.129(a) (emphasis added). 

For purposes of this case, the fact that the MRO does not review the laboratory’s internal 

procedures is critical, as it means the MRO is not competent to testify about whether those 

internal procedures were satisfactory.

From the time each specimen is received until it is destroyed, the laboratory generates 

records to detail the chain of custody; metabolite testing processes and results; and specimen 

validity testing and results, including the names of responsible employees at each step of the 

process. In a drug case, the Coast Guard generally presents “testimony and documentary 

evidence on the collection and testing of Respondent’s urine sample.” Appeal Decision 2653 

(ZERINGUE) (2005). The Coast Guard is not obligated to introduce testimony from every 

individual who handled a sample to prove a proper chain of custody, but should offer pertinent 

documentation into evidence. See Appeal Decision No. 2527 (GEORGE) (1991). After 

conducting a comprehensive review of Appeal Decisions, I note this documentation is usually in 

the form of the litigation package. See, e.g., Appeal Decisions 2637 (TURBERVILLE) (2003) 

and 2562 (BEAR) (1995).

The Coast Guard also generally introduces testimony from certain key figures in the drug 

testing process, such as the person who ordered the test, the collector, the drug testing laboratory 

director and/or certifying scientist, and the MRO to “corroborate the documentary evidence, 

identify the documentary evidence as having been made within the regular course of the 

collection, processing and testing procedures, and ultimately support the integrity of the chain of 

custody.” Appeal Decision 2598 (CATTON) (1998); see also 2653 (ZERINGUE). Significantly, 

I found that a witness knowledgeable about the practices, procedures, and SAMHSA 

requirements of laboratories usually testifies.
43

Sufficient evidence of the third element involves proof of the collection process, proof of 

the chain of custody, proof of how the specimen was handled and shipped to the testing facility, 

and proof of the qualifications of the laboratory. Appeal Decision 2632 (WHITE) (2002). In 

Appeal Decision 2571 (DYKES) (1995), the Commandant vacated a decision where the sole 

evidence on the record regarding testing was copies of the Urine Drug Testing Custody and 

Control Forms. The Commandant reasoned that those forms “do not indicate the type of tests 

conducted or the manner in which they were conducted. There is an attestation on the laboratory 

copy of the form that, at the laboratory, the specimen was handled and analyzed ‘in accordance 

with applicable federal requirements.’ These federal requirements are not specifically identified 

on the form.” Id.

In this matter, the Coast Guard provided laboratory documentation packages for 

Allegations 1 and 2. The first (EX CG-02) was 86 pages long and contained (1) a general 

overview of the laboratory procedures, (2) custody and control forms, (3) initial test information 

including screening test calibrations, aliquot chain of custody for the screening test, and 

screening test results, (4) confirmation test information, (5) specimen validity test information, 

(6) certification information, including the laboratory report, (7) specimen storage information 

and (8) the qualifications of the certifying scientist and responsible person for this test. The 

package relating to Allegation Two contained the same types of information. (EX CG-05). 

Additionally, the Coast Guard offered testimony from the Laboratory Director about both 

packages and the testing process generally. (Tr. Vol. I pp. 112-44).

These records should have also been available for Allegation Three. Under DOT rules, a 

laboratory must maintain “all records pertaining to each employee urine specimen for a 

minimum of two years.” 49 C.F.R. § 40.109. Among those records are chain-of-custody 

documents. The CCF only documents chain of custody through arrival at the laboratory. 

Thereafter, the laboratory uses internal chain of custody documents. A laboratory must “provide, 
44

within 10 business days of receiving a written request from an employee, and made through the 

MRO, the records relating to the results of the employee's drug test (i.e., laboratory report and 

data package).” 49 C.F.R. § 40.329(b). If requested by a Federal, state or local safety agency 

with regulatory authority over the employee, the laboratory must provide drug test records 

concerning the employee. 49 C.F.R. § 40.331.

At the hearing, the Coast Guard alluded that it had not had sufficient time to procure the 

Documentation Package before the discovery deadline. Discovery was initially due in June 2014 

and the hearing was not held until September 2014, so the Coast Guard should have had ample 

opportunity to order, receive and review, and share the documents with Respondent’s counsel 

prior to the hearing. Moreover, in an order I issued regarding discovery in this matter, I reminded 

the parties of their continuing obligation to supplement the record with any new evidence they 

received even after the discovery deadlines had passed. In a prehearing conference the week 

before the hearing commenced, both parties confirmed that they were fully prepared to go 

forward with the hearing. If at any time the Coast Guard had tried and failed to obtain the 

Documentation Package from the laboratory, it should have informed me and I would have 

considered whether a continuance was warranted. I note that the Coast Guard also argued that 

Documentation Packages are expensive and they prefer not to spend the money if they are not 

required to do so, thus I am unsure whether the Coast Guard even made a serious attempt to 

procure the package for this allegation.

Even if the Coast Guard was unable or unwilling to introduce the documentation package 

for Allegation Three, it could have introduced other evidence to satisfy its burden. The same 

laboratory tested Respondent’s urine samples for each of the three tests at issue here. Ms. Hahn 

testified about the tests underlying Allegations One and Two, and would have been an 

appropriate witness to testify about the laboratory’s role and details of the testing for Allegation 

Three. However, the Coast Guard did not ask her any questions relating to Allegation Three.
45

As the Coast Guard has relied on Kime v. Sweeney to support its position that MRO 

testimony is sufficient, I must determine whether that decision is controlling. I find it is not. In 

that case, the appellant argued on appeal that the Coast Guard had not carried its burden of proof 

“because it did not establish the qualifications of various individuals involved in the testing and 

analysis of the urine.” The NTSB affirmed, saying the ALJ’s decision “recounted in painstaking 

detail” evidence about the collection of the appellant’s urine sample, the testing it was subjected 

to, the individuals involved in the collection and testing processes and a description of what each 

of them had actually done, and the chain-of-custody procedures. This record lacks equivalent 

evidence.

The NTSB continued, “in the absence of any particularized challenge at the hearing level 

to the qualifications of any of the laboratory personnel or the MRO,” the Coast Guard did not 

need to show each of them was competent to perform their responsibilities and that, to the 

contrary, the MRO report was adequate to shift the burden of proof. This statement is 

problematic insofar as it is contrary to the three-pronged test set out by the Commandant, but it is 

also dicta and therefore not binding. 

Moreover, Respondent here did not challenge the personnel qualifications at the hearing 

level, but did specifically challenge whether the testing was conducted in accordance with DOT 

rules. There is no evidence in the record to show whether or not it was properly conducted. The 

MRO testified he has no direct knowledge of the chain of custody at the laboratory, and 

presumes compliance with the regulations. On the facts of this case, I cannot find Kime v. 

Sweeney persuasive. Moreover, I note that the NTSB does not follow this dicta in its own 

aviation cases, as it routinely considers testimony from laboratory certifying scientists and/or 

litigation packages.
46

3. Conclusion as to Allegation Three

The third element of a prima facie case for Federal Drug Testing is proof that the drug 

test was conducted “as required by [46 C.F.R. Part 16] and in accordance with the procedures 

detailed in 49 CFR part 40.” 46 C.F.R. § 16.201(a). The testing therefore must comply with both 

46 C.F.R. Part 16 and 49 C.F.R. Part 40. “In the interest of justice and the integrity of the entire 

drug testing system, it is important that the procedures outlined in 49 C.F.R. Part 40 are followed 

to maintain the system.” Appeal Decision 2631 (SENGEL) (2002). The presumption will not 

arise if the evidence does not establish that the drug test complied with the procedures.

Despite the fact that SAMHSA-certified laboratories are highly regulated and are 

mandated to follow the procedures and guidelines governing their operations, I cannot simply 

presume compliance for this specific urine sample. Standing alone, the laboratory copy of the 

CCF, Copy 1, does not provide substantial evidence for purposes of a suspension or revocation 

proceeding that the test was conducted in accordance with the requirements of 49 C.F.R. Part 40, 

Subpart F. The form alone does not indicate the type of tests conducted, the manner in which 

they were conducted, or the qualifications of the laboratory and its personnel. Nor can MRO 

testimony fill in these gaps, since the MRO’s role does not include oversight of the laboratory’s 

internal processes. 

Accordingly, the Coast Guard has not submitted sufficient evidence under Franks to 

establish that the procedures outlined in 49 C.F.R. Part 40 were followed by the laboratory. The 

Coast Guard had the authority to order production of records and witnesses to establish facts 

sufficient to prove this element. The Coast Guard bears the burden of proof and has not met it in 

regards this element. Accordingly, Allegation Three is NOT PROVED.
47

V. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

Generally Applicable Facts and Conclusions:

1. Respondent and the subject matter of this hearing are properly within the jurisdiction 

of the United States Coast Guard and the undersigned in accordance with 46 U.S.C. § 

7703, 46 C.F.R. Part 5, and 33 C.F.R. Part 20.

2. Respondent is the holder of a United States Coast Guard-issued Merchant Mariner’s 

Credential and is bound to adhere to the regulatory scheme applicable to credentialed 

mariners.

Facts and Conclusions as to Allegation 1:

1. On December 28, 2011, Respondent took a pre-employment drug test which the

laboratory subsequently determined was positive for THC, a component of the 

dangerous drug marijuana.

2. When the MRO contacted him, Respondent offered a legitimate medical explanation 

for the test results, a prescription for the drug Marinol.

3. Without explanation, the MRO discounted Respondent’s explanation and reported the 

test as positive.

4. Where a Respondent has claimed a legitimate medical explanation for a positive test 

result, the Coast Guard must present MRO testimony or other evidence demonstrating 

the MRO’s reasons for certifying a drug test result as positive in spite of the 

explanation.

5. Based on the evidence presented as to this allegation, the Coast Guard has not met its 

burden of showing Respondent is a user or, or addicted to, dangerous drugs and the 

allegation is therefore NOT PROVED.

Facts and Conclusions as to Allegation 2:

1. On December 17, 2013, Respondent gave a urine sample which was subsequently 

determined by the drug testing laboratory to be substituted.

2. The reason for the laboratory’s determination was a creatinine level so low as to be 

incompatible with normal human urine.

3. Although this test was purported to be a random test under 46 C.F.R. § 16.230, the 

marine employer’s method of selecting Respondent for testing did not comply with 

the regulatory requirements for random tests.

4. There were flaws in the collection process, including the collector’s failure to 

properly secure water sources and failure to provide Respondent with Copy 5 of the 

CCF, but neither were fatal flaws.
48

5. When the MRO contacted Respondent to discuss the test results, Respondent 

requested split sample testing but it was never performed.

6. Failure to perform split sample testing when a donor has requested it is a fatal flaw in 

the testing process under 49 C.F.R. Part 40.

7. The MRO’s testimony at the hearing was not fully credible.

8. Based on the evidence presented as to this allegation, the Coast Guard has not met its 

burden of showing Respondent committed misconduct by refusing to take a drug test 

and the allegation is therefore NOT PROVED.

Facts and Conclusions as to Allegation Three:

1. On May 23, 2014, Respondent took a pre-employment drug test which the laboratory 

subsequently determined was positive for THC, a component of the dangerous drug 

marijuana.

2. The Coast Guard did not introduce a laboratory documentation package or testimony 

from laboratory personnel regarding the May 23, 2014 drug test.

3. An MRO is not competent to testify about the laboratory’s internal procedures for 

maintaining custody and control of samples and for conducting drug testing on those 

samples.

4. The Federal Drug Testing Custody and Control Form, standing alone, is not sufficient 

documentation of the laboratory’s internal custody and control or testing procedures.

5. Based on the evidence presented as to this allegation, the Coast Guard has not met its 

burden of showing Respondent is a user of, or addicted to, dangerous drugs and the 

allegation is therefore NOT PROVED.

VI. CONSIDERATION OF APPROPRIATE ORDER

“When the finding is not proved, the Administrative Law Judge issues an order 

dismissing the proceeding with or without prejudice to refile.” 46 C.F.R. § 5.567(a). The first 

allegation was not proved because the Coast Guard did not call the MRO to explain her findings 

despite some evidence of a viable explanation for the positive result. Accordingly, it appropriate 

to dismiss that allegation with prejudice. As to the second allegation, the random testing was not 

conducted in accordance with regulations and the verification process by the MRO was flawed. 

Dismissal with prejudice is warranted. 
49

The final allegation deals with a failure to produce sufficient evidence that the laboratory 

conducted the test in accordance with DOT standards. It is likely this evidence exists, and the 

Coast Guard was aware of it and could have obtained it. However, the Coast Guard did not seek 

a continuance to acquire this evidence and confirmed it was ready to present its case less than a 

week before the hearing commenced. During the hearing, the Coast Guard did not move to 

withdraw this allegation until after the collector had testified. The laboratory is obligated to 

provide the documentation package to the Coast Guard upon request, and the Coast Guard bears 

the burden of proving each allegation it brings. Accordingly, dismissal with prejudice is also 

appropriate for this allegation. However, as discussed below, the requirements of 46 C.F.R. 

16.201(f) still apply as to this allegation. 

VII. STATUS OF RESPONDENT’S CREDENTIAL

Although I have found all three of the allegations in this case Not Proved, Respondent 

nevertheless failed a federally-mandated drug test. To fail a drug test is defined as “the result of a 

chemical test conducted in accordance with 49 CFR 40 was reported as ‘positive’ by a Medical 

Review Officer because the chemical test indicated the presence of a dangerous drug at a level 

equal to or exceeding the levels established in 49 CFR part 40.” 46 C.F.R. § 16.105. While a 

failed drug test may lead to a suspension or revocation proceeding, it may also have broader 

implications. Both Coast Guard and DOT rules mandate that employers take actions based on 

failed drug tests, regardless of the outcome of any subsequent administrative proceeding against 

the employee.

If an individual holding an MMC fails a drug test, Coast Guard regulations require 

marine employers to either deny that individual employment as a crewmember or remove him 

from duties directly affecting the safe operation of the vessel as soon as practicable. 46 C.F.R. § 

16.201. Similarly, the DOT rules instruct an employer who receives a verified positive drug test 
50

result to “immediately remove the employee involved from performing safety-sensitive 

functions. You must take this action upon receiving the initial report of the verified positive test 

result. Do not wait to receive the written report or the result of a split specimen test.” 49 C.F.R. § 

40.23(a). While Coast Guard regulations are silent as to the impact of refusals to test, under DOT 

rules an employer who receives a verified adulterated or substituted drug test result must 

consider this a refusal to test and immediately remove the employee involved from performing 

safety-sensitive functions. 49 C.F.R. § 40.23(b).

These employer responsibilities are separate from suspension and revocation proceedings 

under 46 C.F.R. Part 5. Neither the Coast Guard nor DOT rules describe the impact of 

administrative proceedings on these responsibilities. However, if a later proceeding finds a test 

was defective, it is logical that the defective test can longer be the basis for keeping a mariner 

from performing safety sensitive duties. The evidence has established that the tests in Allegation 

One and Allegation Two did not conform to DOT standards and therefore they no longer 

mandate any employer responsibility. 

The test underlying Allegation Three, however, was generally conducted and reported as 

required by DOT rules.10 The Coast Guard’s failure of proof under Franks means the test cannot 

form the basis for a suspension or revocation proceeding, but it nevertheless remains a failed 

drug test under both DOT and Coast Guard regulations. I note that the holding in Franks is 

limited to suspension or revocation proceedings and does not extend to other possible 

implications of a failed drug test, such as employer responsibilities. Accordingly, the 

requirements of 46 C.F.R. § 16.201(c), (e) and (f) and 49 C.F.R. § 40.23 (a), (b) and (d) still 

apply.

 

10 The DOT rules do not require additional documentary proof or testimony about the laboratory’s internal 

procedures: the laboratory is only required to provide a fully completed, legible CCF Copy 1 to the MRO. 49 C.F.R. 

§ 40.97. The MRO must report results on either a fully completed, legible CCG Copy 2 or a written report meeting 

the requirements of 49 C.F.R. § 40.163(c). Both of these documents were present for the May 23, 2014 test and, if 

not for Franks, I would have found Allegation Three proved.
51

Under DOT rules, when an employee has a verified positive, adulterated, or substituted 

test result, or has otherwise violated a DOT agency drug and alcohol regulation, the employer 

“must not return the employee to the performance of safety-sensitive functions until or unless the 

employee successfully completes the return-to-duty process of Subpart O of this part.” 49 C.F.R. 

§ 40.23(d). Under Coast Guard rules, the mariner may not be re-employed aboard a vessel until 

the requirements of 46 C.F.R. § 16.201(f) and 46 C.F.R. Part 5, if applicable, have been satisfied. 

See 46 C.F.R. § 16.201(e). Here, I have dismissed the proceedings under 46 C.F.R. Part 5, but 

the requirements of 46 C.F.R. § 16.201(f) must still be separately satisfied. 

The return-to-duty process for mariners requires an MRO determination that the 

individual is drug-free and at low risk of subsequent use of dangerous drugs, as well as increased 

unannounced drug testing for a minimum of 6 tests during the first year the mariner is back to 

work and for up to 60 months if the MRO believes it is warranted. 46 C.F.R. § 16.201(f). While I 

cannot take action against Respondent’s MMC or order him to procure a return-to-work letter 

and submit to the required number of unannounced follow-up drug tests, he should be aware that 

an affected marine employer could violate the regulations by employing him before he completes 

the return-to-duty process.

ORDER

Each allegation is NOT PROVED. This proceeding is DISMISSED with prejudice to refile.

__________________________________________________

George J. Jordan

US Coast Guard Administrative Law Judge

Date: 

June 22, 2015
i

APPENDIX A: WITNESS AND EXHIBIT LISTS

Coast Guard Witnesses:

Jackie Jones Collector

Androw D. Jones Collector

Dean Ference President, Steel City Marine

Dawn Hahn Laboratory Director, Quest Diagnostics

Michelle Hall Collector

Horacio Marafioti Medical Review Officer

Dr. Jerome Cooper Medical Review Officer

Monica Cobb Employee, eScreen

Respondent’s Witnesses:

Kyle Allen Pfenning Respondent

Shonda Thrash Pfenning Respondent’s Wife

Dr. James Bugg Expert Witness

Coast Guard Exhibits:

CG-01 Custody and Control Form Copy 2 for Dec. 28, 2011 Test

CG-02 Laboratory Documentation Package for Dec. 28, 2011 Test

CG-03 Medical Review Officer Drug Test Results Form for Dec. 28, 2011 

Test

CG-04 Custody and Control Form Copy 5 for Dec. 17, 2013 Test

CG-05 Laboratory Documentation Package for Dec. 17, 2013 Test

CG-06 MRO Results of DOT Controlled Substances Test for Dec. 17, 2013

CG-07 Steel City Marine Transport, Inc. USCG Antidrug and Alcohol 

Misuese Policy and Prevention Plan Dated Apr. 15, 2004

CG-08 Custody and Control Form Copy 2 for May 23, 2014 Test

CG-09 Medical Review Officer Final Report for May 23, 2014 Test

CG-10 Emails between James Fayard and Monica Cobb regarding Dr. 

Ausman; MRO Detail Report

CG-11 Steel City Marine Transport Logbook Entries for M/V GREGORY 

DAVID, Dec. 17, 2013; additional copies of CG-06 and CG-07

CG-12 Custody and Control Form Copy 1 for Dec. 17, 2013 Test

CG-13 Medical Review Officer Worksheet for May 23, 2014 Test; Custody 

and Control Form Copies 1 and 2 for May 23, 2014 Test; Subpoena 

to Dr. Cooper; additional copy of CG-09

CG-14 Screenshots of Respondent’s Marinol Prescription and Location 

Data

Respondent’s Exhibits:

R-A Respondent’s Marinol Prescription
ii

R-B Custody and Control Form Copy 2 for Dec. 28, 2011 Test

R-C Not Offered

R-D Phone Log Legend for Exhibit R-E

R-E Respondent’s Phone Records for 12/21/11 to 1/20/12

R-F Not Offered

R-G Not Offered

R-H Not Offered

R-I Not Offered

R-J Not Offered

R-K Respondent’s Correspondence with University Services Regarding 

Split Specimen Testing for May 23, 2014 Sample

R-L Photocopies of Prescription Labels for Various Medications Taken 

by Respondent
iii

APPENDIX B:

33 C.F.R. PART 20- APPEALS

SUBPART J

§ 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 thirty (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 is 

supported by substantial evidence. (2) Whether such 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. 

§ 20.1002 - Records on Appeal

(a) The record of appeal 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.

§ 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 –

(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 sixty (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 thirty-five (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 mail file more than one appellate brief or reply brief, unless –

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

(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.