UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

U.S. COAST GUARD

 

UNITED STATES COAST GUARD,

Complainant, Docket Number: 01-0738 

 PA Number: 01001917 

 vs. 

 

DAVID MICHAEL TATUM, 

 Respondent 

BEFORE: Joseph N. Ingolia 

 Chief Administrative Law Judge 

ORDER DENYING WITHOUT PREJUDICE

MOTION FOR APPROVAL OF SETTLEMENT AGREEMENT

On October 31, 2001, the parties in the above referenced matter submitted a 

Motion for Approval of a Settlement Agreement and Entry of a Proposed Consent Order 

to be approved as a settlement of this case under 33 C.F.R. § 20.502. The approval of the 

Settlement Agreement was delayed due to a significant error in Paragraph 5 of the 

stipulation. The original stipulation called for the Respondent to establish cure by 

December 31, 2001, when in fact, it should have read December 31, 2002. The parties 

corrected the stipulation and submitted a revised Settlement Agreement for final 

consideration on December 12, 2001. 

I have carefully reviewed the terms of the Settlement Agreement and find that it is 

not in compliance with Coast Guard chemical testing regulations codified at 46 C.F.R. 

Part 16. The Coast Guard retains the dual role of the Medical Review Officer (“MRO”) 

in the verification of positive chemical tests and in the return-to-duty decision process. 

See Chemical Testing, 66 Fed. Reg. 42964-42968 (Aug. 16, 2001) (to be codified at 46 
C.F.R. Parts 4, 5, and 16). In Coast Guard proceedings, it is the MRO, and not the 

Substance Abuse Profession (“SAP”), who determines when an individual is ready to 

return to work after failing a required chemical test for dangerous drugs. Id. The 

applicable regulations specifically provide that “the MRO must determine that the 

individual is drug–free and the risk of subsequent use of dangerous drugs by that person 

is sufficiently low to justify his or her return to work.” See 46 C.F.R. § 16.201(f); see

also 49 C.F.R. § 1.45(e) (delegating authority from the Secretary of Transportation to the 

Coast Guard to issue appropriate regulations). 

For whatever reason, the parties to this settlement agreement call for a return to 

work determination from an SAP rather than the MRO. The parties should either recast 

the settlement agreement using the MRO for the return to work determination as required 

under 46 C.F.R. § 16.201(f) or the parties should submit reasons why they believe an 

SAP should be used in this case. If the parties choose to file a revised settlement 

agreement, said amended agreement will not alter the date in which cure must be satisfied 

unless the parties agree to the contrary. The revised settlement agreement or the reasons 

why an SAP should be used shall be submitted to this office no later than 5 p.m., Eastern 

Standard Time on February 5, 2002. 

WHEREFORE, 

IT IS HEREBY ORDERED that the parties shall either file a revised settlement 

agreement calling for a return to work determination by the MRO or submit reasons why 

the SAP should be used in this case. 
IT IS FURTHER ORDERED that the filing or submission shall be received in 

this office no later than 5 p.m., Eastern Standard Time on February 5, 2002. 

 SO ORDERED: 

_____________________________ 

Joseph N. Ingolia 

Chief Administrative Law Judge 

U.S. Coast Guard 

Dated this 22nd day of January, 2002 

Baltimore, Maryland 

Copy: 

MSO Memphis, Attn: LT(jg) Janine Donovan, IO 

David M. Tatum, Respondent 

CCGD08(m)