UNITED STATES OF AMERICA 

DEPARTMENT OF HOMELAND SECURITY 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD 

Complainant 

vs 

REGINALD ULYSSES TUBBS 

Respondent 

Docket Number CG S&R 02-0672 

CG Case No. PA 1701243 

DECISION AND ORDER 

Issued: March 3, 2003 

Issued by: Edwin M. Bladen, Administrative Law Judge 

Introduction 

Respondent is licensed as an Operator of an Uninspected Towing Vessels upon 

Western Rivers of the United States. While serving as an operator ofthe M/V BRUCE R 

BIRMINGHAM, he is alleged to have engaged in misconduct by providing an 

adulterated urine specimen during a random drug test evidenced by the specimen's 

abnormally low pH level. This charge is set forth in a single count complaint of the Coast 

Guard ofNovember 5, 2002. 

Thus, under the authority of46 USC§ 7703,46 CFR § 5.27 and 5 USC§§ 556-

558. this proceeding was brought by the Coast Guard seeking the revocation of 

Respondent's license. 

Respondent answered the complaint admitting the jurisdictional allegations but 

denying the factual allegation of adulteration and a refusal to submit further contending 

there were improper federal sample collection and testing procedures. Respondent 

demanded a hearing. 

A hearing on the complaint was held on December 20, 2002 at the Coast Guard 

Marine Safety Office, 225 Tully Street, Paducah, Kentucky. 

The Coast Guard was represented by its Investigating Officer CWO Charles Rice. 

Respondent appeared pro se. 

Decision and Order- I 
The Coast Guard offered Three witnesses and six exhibits identified as follows: 

Witnesses: 

1. John Crivello, Specimen Collector, Western Kentucky Drug Screen 

2. S. A. Titone, Certifying Scientist, Advance Toxicology Network 

3. Daniel C. Drew, MD, Medical Review Officer, Nationwide Medical Review 

Exhibits: 

1. CG-1 Copy of Vessel document for the M/V Bruce R. Birmingham 

2. CG-2 Copy of Coast Guard License No. 884 770 issued to Reginald Ulysses 

Tubbs dated March 8, 1999 

3. CG-3 Federal Drug Testing Custody and Control Form for specimen ID No. 

103066117 

4. CG-4 Drug Litigation Package from Advanced Toxicology Network 

5. CG-5 Medical Review Officer punch list and interview check list 

6. CG-6 Vessel Log and work pay record for M/V BRUCE R BIRMINGHAM 

showing Mr. Tubbs working as the Operator of the vessel at time of collection of 

the urine specimen 

All six exhibits were admitted into evidence. 

Respondent represented himself and testified on his own behalf. He offered 

several exhibits listed as follows. 

1. Exhibit A: Random Drug Test Donor Sign in Sheet 

2. Exhibit B: Respondent's written outline of random drug screen events 

At the conclusion of the hearing the parties were offered the opportunity to file 

proposed findings of fact and conclusions of law as authorized by the Administrative 

Procedures Act. Instead, the parties preferred to file closing arguments in the form of 

memoranda of fact and law. 

The Coast Guard has filed its closing argument, but the Respondent has not filed 

or made any closing argument. Thus, based on the status of the record this matter is now 

ripe for decision. 

Findings of Fact 

On September 25, 2002, John Cirvello, a drug specimen collector employed by 

West Kentucky Drug and Alcohol Screen in Paducah, Kentucky [Transcript 16], boarded 

the tug BRUCE R BIRMINGHAM for the purpose of conducting some random drug 

tests among the nine crew members of that tug [Transcript p. 28]. Prior to boarding the 

vessel, Mr. Cirvello called the captain the tug, Respondent Tubbs, at 7:45 AM that 

morning to inform him of his intentions and Respondent told him where the tug could be 

Decision and Order- 2 
found on the Mississippi river [Transcript p. 29, 37]. Respondent was instructed not to 

tell anyone of the impending drug testing [Transcript p. 37]. 

Mr. Cirvello drove to the designated location, and upon arrival and boarding the 

vessel about I 0:45 AM, was met by Respondent who together determined to use the 

Mate's stateroom as the collection site. Mr. Cirvello then set up the collection site which 

contained a very small lavatory [Transcript p. 29, 37-38]. He prepared the lavatory by 

placing bluing chemicals into the flush tank's water and removing various other items 

[Transcript p. 30]. Based on the timing of these events, Respondent had approximately 

three hours advance notice of the impending random drug screen. 

The first person to be tested was Respondent who assisted Mr. Cirvello in 

completing the Respondent's Drug Testing Custody and Control Form with specimen ID 

number 103066117. [CG Exhibit 3]. Respondent also signed a "Random Drug Test 

Donor Sign in sheet" [Transcript p. 39-40; Respondent Exhibit A]. At that time, 

Respondent also signed the specimen bottle sealing labels which were appended together 

with the Custody and Control form. Mr. Cirvello then selected a sealed collection kit 

which he opened and handed a collection container to Respondent. 

Upon instruction Respondent emptied his pockets [Transcript p. 44] and then 

entered the lavatory to void into the container provided by the collector. Respondent was 

instructed to place the urine specimen container on a shelf in the bathroom [Transcript 

p.45]. Respondent then left the area, and stood in the doorway of the stateroom talking to 

other crew members in the tug's galley [Transcript p. 120-121]. Respondent did not 

observe Mr. Cirvello, the collector, transfer his specimen from the collection container 

into the split specimen bottles or told to observe that transfer [Transcript p. 46]. 

Respondent, however, did later observe him seal the bottles with the sealing labels 

[Transcript p. 122]. The Drug Testing Custody and Control form does report that the 

specimen was checked for its temperature which was reported as normal. Respondent 

signed the Drug Testing Custody Control form's certification. 

The split specimen bottles were later shipped to the Advanced Toxicology 

Network of Memphis, TN a certified testing laboratory [CG Exhibit 7-67 Fed Reg 

56293-56295] for testing who received the package by Federal Express courier on 

September 26, 2002 [Exhibit 4 -Laboratory Litigation Package]. The specimen was 

then receipted and the specimen was then placed in temporary secure storage area for 

later retrieval and testing. 

The specimen! 03066117 was later removed from temporary storage and 

alliquotted for screening and specimen validity tests [CG Exhibit 4]. The validity tests 

showed a creatinine level of 11.5, a specific gravity of 1.002, a pH reading of 2. 9 and a 

nitrite level of 14.4. Because the pH level of the initial screening validity test was 2.9, 

the specimen was re-alliquotted for a confirmation pH validity test. The confirmation test 

using a pH meter showed a pH level of2.6. [Exhibit 4]. These test results were 

reconfirmed by the certifying scientistS. A.Titone. 

Decision and Order- 3 
Respondent's Specimen 103066117 had a confirmed pH level of 2.6 and thus 

determined by the testing laboratory to be inconsistent with human urine, and by rule 

adulterated. And, because this same specimen had a creatinine level of 11.5 and a 

specific gravity level of 1.002 the laboratory also determined it to be diluted. 

The adulteration report was then communicated to the Medical Review Officer, 

Dan Drew, MD on September 27, 2002 [CG Exhibit 5]. Dr. Drew interviewed 

Respondent confirming his identity and informing him of the results of the testing which 

showed an adulterated specimen. He then probed Respondent for any medical 

explanation for this result concluding there were none [CG Exhibit 5, page 2). The MRO 

reported the test result as adulterated and thus a refusal to test. 

1 n determining whether the pH level of Respondent's specimen was out of range 

for normal human urine, the testing laboratory utilized the specimen validity testing 

guidance issued by the Department of Health and Human Services, Substance Abuse and 

Mental Health Services Administration (SAMHSA) found in Program Documents 35 and 

37 [Transcriptpp 64-66]. This laboratory had determined to do validity testing on all 

specimens provided to it [Transcript p. 65-66). 

Discussion 

This matter centers upon the allegation that Respondent's urine specimen had a 

pH of2.6 as determined by the testing laboratory, Advanced Toxicology Network [CG 

Exhibit 4, page 14]. As such, the laboratory determined the Respondent's urine 

specimen was "adulterated" and the Medical Review Officer confirmed the laboratory 

report and thus reported the Respondent's specimen as adulterated [Transcript p. 73]. 

As a consequence under Coast Guard and Department of Transportation [DOT] 

regulations, a finding of "adulterated" results in a refusal to test which is then subject to 

sanctions. 

The pH test is part of the validity testing conducted by certified laboratories as 

provided in 49 CFR §§ 40.89, 40.91, 40.93, 40.95. 1 In particular,§ 40.91(b) requires the 

testing laboratory measure the pH of each primary urine specimen. A primary urine 

specimen is determined to be adulterated by using or applying "the criteria in current 

HHS [Health and Human Services) requirements or specimen validity guidance." 49 

CFR § 40. 95(b ). The laboratory here used these criteria to make the adulteration 

determination. Normal human urine's pH content is between 4.5 and 8. Clearly, 

Respondent's urine pH test result shows it is highly acidic and inconsistent with normal 

human mine. 

To reach the conclusion that a urine specimen is adulterated because its pH 

measurement is highly acidic or less than 4 is not set forth in any rule of the Coast Guard 

or the DOT. Such a conclusion can only be obtained by referring to the ,specimen validity 

guidance referred to in 49 CFR § 40.95(b). 

Decision and Order- 4 
The specimen validity guidance criteria consists of two program documents 

published by the Division of Workplace Programs, Substance Abuse and Mental Health 

Services Administration [SAMHSA ], Department of Health and Human Services [HI-IS]. 

They are available to anyone who inquires and seeks copies. 2 The first of these is entitled 

National Laboratory Certification Program [NCLP] Program Document 

# 35, Notice to HHS Certified and Applicant Laboratories, Subject: Guidance for 

Reporting Specimen Validity Test Results, September 28, 1998. The second is NCLP 

Program Document# 37, July 28, 1999, Notice to HHS Certified Laboratories and 

Inspectors, Su~ject: Specimen Validity Testing. They may also be acquired by accessing 

the internet at the Uniform Resource Locator (URL) address: 

hlli?j /w__\.Y~:YI_<?Il\i2.@~_e. samhsl:hgQy/Qrug!_~_etit'!_g/ analytici!lte_e!i~~Q.~!:JQIJ.!:l:~l:htn!.l· 

Both Program documents state that a specimen is defined to be adulterated if the 

pH is <3 or> 11. 3 Since the Respondent's primary urine specimen was measured at 2.6 

it is adulterated according to the .specimen validity guidance documents. For 

measurement results see CG Exhibit 4, page 14 

Essentially, these specimen validity guidance documents interpret the meaning 

and effect of a pH measurement as contemplated in the DOT rule, 49 CFR §§ 40.91, 

40.95. 

The Coast Guard has expressly adopted the Department of Transportation's drug 

testing rules and policies, which include the I-IHS specimen validity guidance documents. 

See 46 CFR § 16.113( a) [drug testing programs must be conducted in accordance with 49 

CFR Part 40 Procedures for Transportation Workplace Testing Programs] 

It is a cardinal principal of administrative law, founded on the need for orderly, 

uniform and predictable decision making, that this judge is bound to apply an agency's 

legislative or interpretive rules including its statement of policies. See, Gray Lines Tour 

Co. (~f Southern Nevada v. ICC, 824 F2d 811, 814 (9th Cir. 1987); National Latino Media 

Coalition v. FCC, 816 F.2d 785, 789 (DC Cir. 1987). I am thus bound to apply the DOT 

and HHS policies on specimen validity testing. 

Applying the DOT policies and rules Respondent's urine specimen was 

adulterated because of the abnormally low pH level determined after two specimen 

validity tests. 

Moreover, Respondent's urine specimen was also dilute because of the creatinine 

and specific gravity levels as shown in the validity tests. 

According to the DOT regulation, 49 CFR § 40.191 (b), if the MRO reports that 

the employee had a verified adulterated or substituted test result the employee is deemed 

to have refused to take a drug test. A refusal to test incurs the consequences or sanction 

established by the applicable agency, here the Coast Guard. 49 CFR § 40.19l(c). 

Decision and Order- 5 
Respondent has thus violated a duly established rule regarding submission of 

specimens in a random drug testing program, and thus engaged in misconduct as defined 

in 46 CFR § 5.27, and 46 USC§ 7703. 

Conclusion and Order 

Substantial, reliable and probative evidence exists in this record that Respondent's 

urine specimen was adulterated because of its highly acidic properties, that is, it was 

inconsistent with normal human urine, and thus under the rules constitutes a refusal to 

test subject to sanction. The charge of misconduct is proven. The Coast Guard requests 

that Respondent's license be revoked as a result. 

The record here does not reflect that Respondent has any history of previous 

violations of the rules applicable to mariners. Of particular note there is no record 

evidence presented by the Coast Guard which suggests that Respondent is likely a threat 

to safety to life at sea or the welfare of mariners. 

While the Coast Guard has requested Respondent's license be revoked, I find 

nothing in the record which justifies such a sanction. This is unlike the circumstances 

presented to the ALJ in Appeal Decision 2578 (Callahan) which involved serious 

misconduct beyond a refusal to submit. There the mariner was found to have disobeyed 

an order of the Master and departed vessel without being relieved all of which justified a 

revocation sanction. As noted in Callahan the sanction order imposed is "exclusively 

within the Administrative Law Judge's discretion ... unless it is clearly excessive or an 

abuse of discretion." (Appeal Decision 2578 at p. 7) 

I do not find any evidence which suggests that safety of life at sea or the welfare 

of individual seamen will be jeopardized were a sanction less than revocation imposed. 

While 46 CFR § 5.569(d) provides guidance to me of an appropriate order, I do agree that 

a suspension is appropriate. 

Therefore, I will suspend Respondent's license for the period of nine (9) months, 

together with an additional one ( 1) year of probation. During the probation period 

Respondent shall be subjected to six (6) random drug tests administered in accordance 

with the DOT regulations. The Coast Guard MSO Paducah, KY shall determine the 

timing of such tests. Should any drug test result be reported as anything other than 

negative, then Respondent's license shall be revoked. 

Decision and Order- 6 
Service of this Decision upon the parties serves to notify them oftheir right to 

appeal as set forth in 33 CFR Subpart J, §20.1001. (Attachment A) 

IT IS SO ORDERED. 

Dated: March 3, 2003. 

~ Edwin M. Bladen 

Administrative Law Judge 

Certificate of Service 

I hereby certify that I have this day delivered foregoing Decision and Order upon 

the following parties and limited participants (or designated representatives) in this 

proceeding, at the address indicated as follows: 

MSO Paducah 

Attn: CWO Clarence Rice 

Telefax: 270-442-1633 

ALJ Docket Center 

Reginald U. Tubbs 

968 Buchanan 

Kevil, KY 42053 (1st Class Mail) 

Govt Overnight Federal Express w/case file & activity repot 

Dated at Seattle, WA this 3rd day of March, 2003. 

Legal 

l~~~ Assistant to 

Administrative Law Judge 

1 The pH of a liquid specimen, such as urine, is the measurement of that specimen's acidity or alkalinity. 

The lower the pH number the greater the acidity, the larger the pH number the more basic or alkaline the 

specimen. Thus, Respondent's urine specimen was determined to highly acidic. 

2 I was so informed by one of the Attorney-Advisors for the Coast Guard Administrative Law Judges. 

3 The symbol <means less than, and the symbol> means greater than. 

Decision and Order- 7