UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

___________________________________ 

UNITED STATES COAST GUARD 

Complainant 

vs. 

MICHAEL STEPHEN MOORE 

Respondent 

___________________________________ 

Docket Number CG S&R 02-0626 

CG Case No. 1683144 

DECISION AND ORDER 

Issued: April 25, 2007

Issued by: Honorable Archie R. Boggs, Administrative Law Judge

APPEARANCES: 

 Robert W. Foster 

 Senior Investigating Officer 

 Lieutenant John Catanzaro 

 United States Coast Guard 

 Marine Safety Office Mobile 

 Building 102, Brookley Industrial Complex 

 South Broad Street 

 Mobile, AL 36615-1390 

For the Coast Guard 

 Grover Ernst Asmus, II 

 Armbrecht Jackson, LLP 

 Attorneys at Law 

 1300 Riverview Plaza 

 63 South Royal Street 

 Mobile, AL 36602 

For the Respondent 
PRELIMINARY STATEMENT

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

seeking revocation of Merchant Mariner’s License Number 1013275 issued to Michael 

Stephen Moore (Respondent). This administrative action was brought pursuant to the 

legal authority contained in 46 U.S.C. 7703(1)(A) and its underlying regulations codified 

at 46 CFR Part 5. 

On October 2, 2002, the Coast Guard issued a Complaint charging Respondent 

with one count of failing to obey law or regulation by refusing to submit to a random

drug test. In support of the Complaint, the Coast Guard alleged that on September 12, 

2002, the Mississippi Drug Compliance notified Respondent that he was selected for a 

random drug test; however he refused to test by failing to appear at the drug screen. 

Respondent was contacted two additional times, September 20 and 28, for random drug 

testing; and again refused to test by failing to appear at either drug screen. Respondent 

filed an Answer, dated October 2, 2002, denying all the factual allegations in the 

Complaint and requested a hearing before an administrative law judge. 

On October 18, 2002, Grover Asmus, III, entered his appearance as counsel for 

Respondent and filed another Answer to the Complaint. This second Answer mirrored 

Respondent’s previously filed Answer dated October 2, 2002, except five affirmative 

defenses were asserted as follows: 1) the Complaint failed to state a claim upon which 

relief could be granted; 2) Respondent did not refuse to submit to a random drug screen; 

3) Respondent was not provided with notice for all incidents alleged in the Complaint; 4) 

Respondent lacked adequate funds to pay for the drug test; and 5) exigent circumstances 

2
[tropical storms] prevented Respondent from complying with any notices he allegedly 

received to submit to a random drug screen. 

On November 13, 2002, a Notice of Hearing was issued and the matter was 

initially scheduled for a hearing on December 6, 2002, in Daphne, Alabama. On 

December 5, 2002, the Coast Guard informed the undersigned Administrative Law Judge 

(ALJ) of a date conflict experienced by a witness and requested a new hearing date. 

Respondent was amendable to the request; therefore the hearing was rescheduled for 

January 17, 2003. 

On January 17, 2003, the hearing commenced at the Daphne Municipal 

Courtroom whereupon the Coast Guard immediately moved to amend the dates of contact 

made by the Mississippi Drug Compliance (MDC) to Respondent. The original 

Complaint alleged MDC called Respondent on September 12, 20, and 28, 2002. 

However, the telephone calls were actually made to Respondent on September 10, 11, 

and 12, 2002. The Coast Guard explained that the three referenced dates were incorrect. 

Respondent objected to the amendment and moved for dismissal of the charges. The 

undersigned ALJ denied Respondent’s motion to dismiss and offered additional time, if 

necessary, to prepare an adequate response. Respondent declined the ALJ’s offer of 

additional time. The Coast Guard’s motion was granted and the Complaint was amended 

to reflect telephone calls made to Respondent for notification of random drug screening 

as September 10, 11, and 12, 2002.1

 

1

 The purpose of factual specifications in a complaint is intended to put a respondent on notice of the 

alleged administrative violation and provide respondent with an opportunity to prepare a defense. Here, it 

is clear from the record that Respondent was aware of the charges brought by the Coast Guard and there 

was no prejudice by virtue of the amendment. See Appeal Decision 2309 (CONEN), 6.

3
The hearing was conducted in accordance with the Administrative Procedures Act 

as amended and codified at 5 U.S.C. 551-559, and Coast Guard procedural regulations set 

forth at 33 CFR Part 20. The Investigating Officers (IO) presenting the case on behalf of 

the Coast Guard moved for admission of six exhibits and presented testimony of two 

witnesses. Respondent’s attorney admitted four exhibits and introduced two witnesses. 

The list of witnesses and exhibits is contained in Attachment A. Post-hearing briefs with 

proposed findings of fact and conclusion of law were ordered and due by February 18, 

2003. Both parties filed post-hearing briefs and rulings on the proposed findings of fact 

and conclusions of law are contained in Attachment B. 

After careful review of the facts and applicable law in this case, I find that the 

Coast Guard has established by a preponderance of reliable and credible evidence that 

Respondent, Michael Stephen Moore, refused to submit to a random drug test in violation 

46 U.S.C. 7703(1)(A) and 46 CFR 5.33. 2

FINDINGS OF FACT

The Findings of Fact are based on a thorough and careful analysis of the 

documentary evidence, testimony of witnesses, and the entire record. 

1. At all relevant times mentioned herein and specifically on or about September 10, 

2002, through January 17, 2003, the above-captioned Respondent was the holder 

 

2

 During the pendancy of this case, the United States Coast Guard transferred from the Department of 

Transportation to the Department of Homeland Security. Pursuant to the Savings Provision of HR 5005

§1512 (PL 107-296), pending proceedings are continued notwithstanding the transfer of the Agency. 

4
of Merchant Mariners License Number 1013275 issued by the United States 

Coast Guard. (Tr. 5). 3

2. In September 2002,Tammy Taylor, owner of Mississippi Drug Compliance, 

performed a random drug screen selection by utilizing Microsoft Excel data 

analyst program. (Tr. 23, 31). 

3. The MDC is the third party administrator for the Mississippi Charter Boat 

Captains Association (the Consortium).

4

 (Tr. 23). As the third party 

administrator, MDC functions similarly to an employer who coordinates drug 

testing service for its employees. In this case, the MDC performs drug screening 

and random drug testing of the Consortium members. Further, MDC performs

administrative tasks, documents the operation of the Consortium’s drug and 

alcohol testing programs, and maintains a roster of member names, social security 

numbers, addresses and telephone numbers. (Tr. 23, 33; Gov’t. Ex. 1, 2). 

4. In September 2002, thirty-five Consortium members were randomly selected for 

drug testing. (Tr. 31, 33, 38). Thirty members provided urine samples for drug 

screening and four mariners did not participate because they were no longer 

members of the Consortium. (Tr. 33, 36). 

5. Respondent was the only member who did not participate in the random drug test. 

(Tr. 43). 

 

3

 The citations in this Initial Decision and Order are as follows: Transcript followed by the page number, 

(Tr. ____); Agency Exhibit followed by number (Gov’t Ex. ___); and Respondent Exhibit followed by a 

letter (Resp Ex. ___). 4

 The Consortium is an entity comprised of self-employed charter boat captains who have joined together 

and are subject to DOT drug and alcohol testing. (Tr. 59). 

5
6. Written notification explaining MDC’s drug testing policies and random drug 

testing was provided to members of the Consortium at meetings, by mail, and 

copies were available at MDC’s office. (Tr. 29, 24; Gov’t Ex. 1 and 2). 

7. Pamphlets entitled “Random Drug Testing” and “Policy” were distributed by 

MDC to Consortium members summarizing 46 CFR Part 16 governing random

drug testing requirements. (Tr. 26-30; Gov’t Ex. 1, 2). 

8. Judy Shaw, a clerk and specimen collector for MDC, is responsible for contacting 

mariners selected for random drug testing. (Tr. 91). 

9. On September 10, 2002, Ms. Shaw received a copy of the Consortium’s Member 

Roster from Ms. Taylor, and was instructed to contact the thirty-five mariners 

randomly selected for drug testing. (Tr. 47, 91; Govt’ Ex. 3). 

10. Members who are selected for random drug testing are contacted by telephone, 

instructed to provide a sample that day or within twenty-four hours, and they are 

responsible for the $47.00 fee. (Tr. 60; Govt’Ex. 1). 

11. On September 10, 2003, Ms. Shaw contacted Respondent by telephone at 11:30 

a.m. (Tr. 97; Gov’t Ex. 3). The purpose of the telephone call was to inform

Respondent that he had been randomly selected for a drug test. (Tr. 97; Gov’t Ex. 

5). 

12. Since an answering machine received the telephone call, Ms. Shaw left a message 

explaining that she was calling on behalf of MDC. Ms. Shaw instructed 

Respondent to report within the next twenty-four hours for a random drug test and 

informed Respondent that he would be responsible for the $47.00 fee. (Tr. 97-98; 

Gov’t Ex. 5). 

6
13. The Respondent failed to appear for the drug screen. 

14. Ms. Shaw placed a second telephone call to Respondent on September 11 and a 

third call on September 12, 2002. On both occasions, Ms. Shaw left messages on 

the answering machine. Ms. Shaw’s fourth attempt to contact Respondent was 

September 20, 2002. Once again, she left a message on the answering machine 

instructing Respondent to report for a random drug screen. (Tr. 97: Gov’t Ex. 5). 

15. The Respondent failed to appear for any of the three subsequent drug screens. 

16. After four unanswered telephone calls, Ms. Shaw solicited assistance from Tom

Becker, President of the Consortium, in an effort to contact Respondent for the 

random drug test. (Tr. 82-83,101). 

17. On September 27, 2002, Mr. Becker left a message on Respondent’s cellular 

telephone instructing him to report to MDC by Monday, September 30, 2002 for 

the random drug test or the matter would be turned over to the Coast Guard. 

(Gov’t Ex. 5). 

18. On September 28, 2002, Respondent’s mother, Dolores Moore, informed 

Respondent about a telephone call received from MDC regarding a drug test. 

Respondent called MDC that day and left a message on Ms. Taylor’s voicemail. 

Respondent explained that his boat had been inoperable for about twenty-one 

days and that he was “broke” and unable to pay for the drug test. (Tr. 48). 

Respondent suggested that perhaps the Consortium could pay for the drug test and 

asked MDC to return his call. (Tr. 49-51; Gov’t Ex. 4). 

19. MDC received and reviewed Respondent’s message on Monday, September 30, 

2002. (Tr. 48). 

7
20. Ms. Shaw memorialized all of her telephone conversations with, and attempts to 

contact, mariners selected for random drug screening in a logbook. (Tr. 91, 104; 

Gov’t. Ex. 5). 

21. The telephone number used by Ms. Shaw for each attempt to contact Respondent 

was the telephone number provided to the Consortium by Respondent. (Tr. 47-

48, 83, 97; Gov’t Ex. 3). 

22. On October 2, 2002, two Coast Guard Officials arrived at the home of 

Respondent’s parents, which is also Respondent’s current residence. (Tr. 108, 

136). Respondent’s mother greeted the officials and called Respondent on his 

cellular telephone. Mrs. Moore asked her son to return home and discuss the 

status of his captain’s license with the Coast Guard officials. (Tr. 111, 136). 

23. The Coast Guard officials explained to Respondent that they were present to 

discuss his failure to appear for random drug testing. (Tr. 136). 

24. Respondent offered to report immediately to MDC for a drug test. However, the 

Coast Guard explained that 72 hours had passed since the latest notification for 

random drug testing by MDC; therefore it was too late for Respondent to 

complete the drug test. (Tr. 137). 

25. On October 8, 2002, Respondent submitted to a drug test, which yielded a 

negative result. (Tr. 84, 139; Resp. Ex. A). 

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Respondent and the subject matter of the hearing are properly within the 

jurisdiction vested in the United States Coast Guard under 46 U.S.C. 7703. 

8
2. At all relevant times, Respondent was the holder of United States Coast Guard 

License Number: 1013275. 

3. Respondent is the holder of a license subject to random drug testing under 46 

U.S.C. 7702(c)(2) and 46 CFR 16.230. 

4. The Coast Guard has PROVED by a preponderance of reliable and credible 

evidence that on September 10, 11, and 12, 2002, the MDC left telephone 

messages notifying Respondent that he was selected for a random drug test. 

5. Respondent failed to appear for a drug screening which constituted a refusal to 

test. 

IV. OPINION 

 The purpose of Coast Guard suspension and revocation proceedings is to promote 

safety at sea. See 46 U.S.C. 7701. Under 46 CFR 5.19, the Commandant delegated to 

the Administrative Law Judges, the authority to suspend or revoke a license or certificate 

in a hearing for violations arising under 46 U.S.C. 7703. In this case, the Coast Guard 

has charged Respondent with the failure to obey law or regulation under 46 U.S.C. 

7703(1)(A). The Coast Guard claims Respondent refused to submit to a random drug test 

as required under 46 CFR 16.230. See also 46 U.S.C. 7702(c)(2). 

The issue is whether Respondent’s failure to appear for a random drug test within 

a reasonable amount of time constitutes a refusal to submit to drug testing under 

applicable Department of Transportation and Coast Guard Drug Testing regulations. The 

parties presented conflicting testimony regarding MDC’s effort to notify Respondent of 

the random drug test selection. According to the Coast Guard, five telephone calls were 

made to Respondent between September 10, 2002 and September 27, 2002. Respondent 

9
claims he only received the telephone message on September 27, 2002. Before the 

ultimate issue can be discussed, it is necessary for the undersigned ALJ to assess the 

witness’ conflicting testimony and determine credibility. 

A. Witness Credibility Determination

It is well established that an ALJ is the finder of fact; therefore witness credibility 

and assessment of evidence is determined by the presiding ALJ. Appeal Decision 2633 

(MERRILL), 5; Appeal Decision 2632 (WHITE), 6. “The ALJ is not bound by the 

witnesses’ opinion, but must make his own determination based on the facts and the law.” 

WHITE, at 6. When conflicting or inconsistent testimony is presented during an 

administrative law hearing, the ALJ is afforded broad discretion to determine the 

credibility of witnesses. Appeal Decision 2616 (BYRNES), 4. 

Here, Ms. Shaw testified that she called Respondent on September 10, 11, 12, and 

20, 2002, to notify him that he had been selected for a random drug screen. (Tr. 96-98). 

On each occasion, Ms. Shaw left a message on Respondent’s answering machine and 

documented each telephone call. (Gov’t. Ex. 5). Further, Mr. Becker left a message on 

Respondent’s cellular telephone which was also documented on the call log. Mr. Becker 

instructed Respondent to report on September 30, 2002 for a drug test. (Tr. 102-104). 

In contrast, Dolores Moore testified that she only received one telephone message 

for Respondent on September 27, 2002. (Tr. 109). Mrs. Moore explained that her 

answering machine was sensitive and that she may have lost the telephone messages as a 

result of the tropical storms severing the electricity in the area. (Tr. 117-118). 

I conclude credible evidence exists that Ms. Shaw and Mr. Becker did call 

Respondent on five occasions and left messages to report for a random drug test as 

10
documented on the call log. (Gov’t. Ex. 5). Compared to MDC’s efforts, Mrs. Moore’s 

testimony surmising what could have happened to the answering machine messages is 

speculative, and lacks supporting documentation or corroboration. In this regard her 

testimony was not credible but self-serving to Respondent. 

B. Refusal To Test 

Required chemical testing for merchant marine personnel is governed by 46 CFR 

Part 16. The regulations are preventative in nature for the purpose of reducing the use of 

intoxicants and provide a drug-free, safe work environment for mariners. 46 CFR 

16.101(a). See Appeal Decision 2542 (DEFORGE), 5. 

The issue to be decided is whether Respondent’s failure to appear for a random

drug test within a reasonable amount of time can be construed as a refusal to submit to a 

drug test. Refusal to submit to a drug test has been defined in Part 16 quite simply as, 

“you refused to take a drug test as set out in 49 CFR 40.191.” See 46 CFR 16.105. 

Examination of 49 CFR 40.191 provides that a mariner refuses to take a drug test when 

they fail to appear for test within a reasonable amount of time. 

An employer is vested with the authority to determine the amount of time which 

is reasonable for a mariner to appear for a random drug test. 40 CFR 40.191(a)(1). An 

employer’s determination of “reasonable time” must be consistent with applicable DOT 

regulations. Id. According to the Random Drug Testing leaflet provided to Consortium 

members, a mariner will be notified by MDC and instructed to report that day for a 

random drug test, or within the next twenty-four (24) hours. (Gov’t Ex. 1). 

Respondent argued that the Coast Guard failed to establish the offense “refusal to 

submit” because the Consortium did not notify Respondent that his failure to appear for 

11
the drug test was considered as a “refusal to submit” offense under 49 CFR 40.61(a). I 

do not agree with Respondent’s argument that the notice requirement referenced in 49 

CFR 40.61 is an element of the offense of “refusal to submit.” Part 40 Section 61 

explains the steps to be taken by the urine collector. In contrast, 49 CFR 40.191(a)(1) 

provides the definition of refuse to test, “[F]ail to appear for any test within a reasonable 

time... This includes the failure of an employee to appear for a test when called by a 

C/TPA.”5

Next, Respondent claimed that the Coast Guard did not prove he failed to appear 

for random drug testing within a reasonable amount of time. Respondent, without 

citation to authority, urges the undersigned to adopt a totality of the circumstance test to 

determine what constitutes a “reasonable amount of time.” Title 49 of the Code of 

Federal Regulations Part 40 Section 191 allows the employer to determine what 

constitutes a “reasonable amount of time.” Here, the Consortium established that the 

mariner must report to MDC on the day of notification for random testing or within 

twenty-four (24) hours. (Gov’t Ex. 1). Respondent did not report for testing until six 

days after meeting with Coast Guard Officials and being served a Complaint. (Resp. Ex. 

A). I conclude Respondent’s drug test was not within a reasonable amount of time and 

his delay to take the drug test undermined the purpose of unannounced random drug 

testing. 

V. SANCTION 

When an employee refuses to test, they incur consequences specified under the 

respective DOT agency. 49 CFR 40.191(c). Title 46 Part 5 Section 569 provides the 

Table of Suggested Range of Appropriate Orders (Table) for various offenses. The 

 

5

 Consortium/Third-Party Administrator (C/TPA). See 49 CFR 40.3 

12
authority to impose these sanctions at the conclusion of a case is exclusive to the ALJ. 

Appeal Decision 2362 (ARNOLD), 4. The purpose of the Table is to provide guidance to 

the ALJ and promote uniformity in orders rendered. Appeal Decision 2628 (VILAS), 13. 

However, the ALJ is not bound by the Table and may exceed the suggested range or 

impose a sanction less severe when aggravating or mitigating factors are present. Id. 

Here, the suggested range of an appropriate order for refusal to submit to a drug 

test is 12-24 month suspension. See 46 CFR Table- 5.569. The Coast Guard is seeking 

revocation of Respondent’s Merchant Mariners License No. 1013275. In support of 

revocation, the Coast Guard has requested the undersigned to take judicial notice of 

Appeal Decision 2624 (DOWNS). In DOWNS, the Commandant affirmed the ALJ’s 

sanction revoking respondent’s license for refusal to take a reasonable cause drug test. 

Id. at 19. See also Appeal Decision 2578 (CALLAHAN) (ALJ’s decision to revoke 

license for refusal to test held not excessive or abuse of discretion). The Commandant 

has recognized an ALJ’s discretion to formulate an appropriate order in an effort to deter 

appellant from repeating a violation. Id. at 18 (quoting (CALLAHAN), 5). 

Based upon my review of all facts presented at the hearing, I conclude a sanction 

of revocation is appropriate. The Coast Guard proved it contacted Respondent for a 

random drug test on September 10, 11, 12, and 20, 2003. Further, Respondent admits to 

receiving a telephone message from the Consortium on September 27, 2003, but he still 

waited six days to submit to a “random” drug test. I do not consider Respondent’s drug 

test on October 8, 2003 as complying with 46 CFR 16.230. Respondent has undermined 

the purpose of random drug testing by failing to comply with federal regulations and 

Consortium policies within 24 hours. 

13
Respondent has provided several explanations for his failure to test. Respondent 

cites his inability to pay the $47.00 fee, severe weather consisting of tropical storms and a 

hurricane. Finally, Respondent claims maintenance on his boats rendered them

inoperable. All of these explanations do not excuse Respondent of his responsibility as a 

member of the Consortium and licensed mariner, to participate in random drug testing. I 

conclude revocation of Respondent’s Coast Guard License an appropriate sanction 

VI. ORDER 

IT IS HEREBY ORDERED that Merchant Mariner’s License No. 1013275, and 

all other valid licenses, documents, and endorsements, issued by the Coast Guard to 

Michael Stephen Moore is REVOKED. 

IT IS HEREBY FURTHER ORDERED that Respondent shall immediately 

surrender Merchant Mariner’s License No. 1013275, and all other valid licenses, 

documents, and endorsements, issued by the Coast Guard to the Investigating Officer at 

United States Coast Guard, Marine Safety Office Mobile, Alabama.

PLEASE BE ADVISED any party has the right to appeal this Decision and 

Order by filing a notice of appeal with the U.S. Coast Guard ALJ Docketing Center 

within 30 days of the issuance date of this decision and in accordance with the procedures 

set forth in 33 CFR 20.1001-20.1003. See Attachment C.

 _________________________________ 

 ARCHIE R. BOGGS

 Administrative Law Judge 

 U.S. Coast Guard

Dated this 1st day of August, 2003 

New Orleans, Louisiana 

14
ATTACHMENT A

LIST OF WITNESSES AND EXHIBITS

INVESTIGATING OFFICER’S EXHIBITS 

1. Mississippi Charter Boat Association Random Drug Testing Pamphlet 

2. Mississippi Charter Boat Association Policy for Chemical Testing 

3. Mississippi Charter Boat Association Membership 

4. Transcript of Call From Michaels Moore to Mississippi Drug Compliance 

5. Mississippi Drug Compliance Call Log 

6. History of Biloxi, Mississippi, Weather 

INVESTIGATING OFFICER’S WITNESSES 

1. Tammy Taylor 

2. Judy Shaw 

RESPONDENT’S EXHIBITS 

1. Medical Review Officer Report 

2. Quest Diagnostics Incorporated- Hair Analysis 

3. The Sun General Newspaper 

4. Character Letters. 

RESPONDENT’S WITNESS 

1. Dolores Moore 

2. Michael Moore 

15
ATTACHMENT B

RULINGS ON PROPOSED FINDINGS OF FACT

AND CONCLUSIONS OF LAW

PROPOSED FINDINGS OF FACT 

After careful review of the entire record of this proceeding, including the testimony of 

witnesses and exhibits, the ruling on the Agency’s Proposed Findings of Facts6

 are as 

follows: 

1. Michael Moore, whose Coast Guard license was issued to him on April 24, 2002, 

did not provide a urine specimen, as required by law for a random drug screen on 

September 10, 2002. 

RULING: ACCEPTED AND INCORPORATED 

2. Michael Moore is self-employed, and elected the Mississippi Charter Boat 

Captains Association (MCBCA) to act as his Marine Employer. 

RULING: ACCEPTED AND INCORPORATED 

3. Mississippi Drug Compliance (MDC) was acting as a Collector/Third Party 

Administrator (C/TPA). 

 RULING: ACCEPTED AND INCORPORATED 

4. Michael Moore was contacted by MDC on September 10, 11, 12, and 20, 2002 

and advised he had been selected to provide a urine sample for compliance with 

the random drug screening program. 

 RULING: ACCEPTED AND INCORPORATED 

5. Michael Moore contacted MDC on or about September 27, 2002, and left a 

telephone message explaining that he was too busy to come in for the purpose of 

providing a urine sample. He also stated he could not afford to pay $47.00 for the 

test. 

 RULING: ACCEPTED AND INCORPORATED 

6. During cross-examination, Mr. Moore stated, under oath, when asked why he did 

not come in for the random drug test, that “It slipped my mind”; not that the 

 

6

 Only the Coast Guard provided enumerated findings of fact. Respondent did file Proposed Findings of 

Fact and Conclusions of Law however the lack of enumeration prevented the undersigned from making 

specific findings of facts or conclusions of law. 

16
weather was bad; not that he did not have the money; and, not that he wasn’t 

notified; just, “It slipped my mind.” 

 RULING: ACCEPTED AND INCORPORATED 

7. Michael Moore did not provide a urine specimen in a reasonable amount of time, 

as required by regulation. 

 RULING: ACCEPTED AND INCORPORATED 

8. MDC generated thirty-five names for this random drug screen. Of the thirty-five 

selected, thirty provided urine samples, four were no longer employed or 

associated with MCBCA, and one refused to submit (Michael Moore). 

RULING: ACCEPTED AND INCORPORATED 

CONCLUSIONS OF LAW

1. 46 U.S.C. 7702(c)(2): The Secretary shall require the testing of the holder of a 

license, certificate of registry, or merchant mariner’s document for use of alcohol 

and dangerous drugs in violation of law of law or regulation. The testing may 

include preemployment (with respect to dangerous drugs only), periodic, random, 

and reasonable cause testing, and shall include post-accident testing. 

RULING: ACCEPTED AND INCORPORATED 

2. 46 U.S.C. 7703(1)(A): A license, certificate of registry, or merchant mariner’s 

document issued by the secretary may be suspended or revoked if the holder- 

(1) when acting under the authority of that license, certificate, or document- 

(A) has violated or failed to comply with this subtitle, a regulation 

prescribed under this subtitle, or any other law or regulation 

intended to promote marine safety or to protect navigable 

waters; 

RULING: ACCEPTED AND INCORPORATED 

3. 46 CFR 16.203(b)(1): Marine employers shall establish programs for the 

chemical testing for dangerous drugs on a random basis of crewmember on 

uninspected vessels who: 

(1) Are required by law or regulation to hold a license issued by the Coast 

Guard in order to perform their duties on the vessel; 

RULING: ACCEPTED AND INCORPORATED 

17
4. 46 CFR 16.230(d): Marine employers may form or otherwise use sponsoring 

organizations, or may use contractors, to conduct the random chemical testing 

programs required by this part. 

RULING: ACCEPTED AND INCORPORATED 

5. 49 CFR 40.191(a)(1): As an employee, you have refused to take a drug test if 

you: 

(1) fail to appear for any test (except a pre-employment test) within a 

reasonable time, as determined by the employer, consistent with 

applicable DOT agency regulations, after being directed to do so by the 

employer. This includes the failure of an employee (including an owneroperator) to appear for a test when called by a C/TPA. 

 RULING: ACCEPTED AND INCORPORATED 

[REDACTED] 

18