UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

UNITED STATES COAST GUARD 

UNITED STATES COAST GUARD) ) Docket No. CG S&R 01-0300 

) Coast Guard No. PA 01000636 

) 

v. ) 

BRIAN APPLETON ) 

Respondent. ) 

DECISION AND ORDER 

This proceeding is brought pursuant to the authority contained in 46 USC§ 7703; 

5 USC§§ 551-559; 46 CPR Parts 5 and 16, and 49 CPR Part 40. 

Respondent holds a Merchant Mariners Document Number 535-70-8217 issued to 

him by the Coast Guard on January 25, 2000. It qualifies him to serve as an ordinary 

seaman, wiper and in the Steward's Department. He has served as Engineer. Jurisdiction 

is established in this matter by reason of Respondent's licensure. See, 46 U.S.C. §7704; 

NTSB Order No. EM-31 (STUART); Commandant Appeal Decision, No. 2135 

(Possani). 

PRELIMINARY DISCUSSION 

The Coast Guard charged Respondent with misconduct alleging a refusal to 

submit to a 46 CPR Part 16 drug test. The refusal to submit allegation arises from the 

Respondent's submission of a urine specimen, which was considered inconsistent with 

normal human urine, which is characterized as substituted. A substituted specimen by 

regulation is the equivalent of a refusal to submit to a chemica:I or drug test as provided in 

49 CPR § 40.191 (8)(b ), which provides that a refusal to submit includes a Medical 

Review Officer [MRO] has reported a verified substituted test result. 1 

In these cases the Coast Guard must prove its case against the mariner charged on 

the basis of reliable, probative and substantial evidence. 46 CPR§ 5.63. This substantial 

evidence standard has been determined to be the equivalent of the preponderance of the 

evidence standard. See Commandant Decision on Appeal2472 (Gardner) and Steadman 

v. United States, 450 US 91 (1981) which concluded that the preponderance of evidence 

1 Refuse to submit is defined in 46 CFR § 16. 

40.191." 

Decision & Order - 1 

OPTIONAL FORM 99 (7-90) 

Fax# 

NSN 7540-01-317-7368 5099-101 GENERAL SERVICES ADMINISTRATION 
standard shall be applied in administrative hearings governed by the Administrative 

Procedures Act, such as this hearing. 

Pursuant to 46 USC § 7703(1 )(B) a license, or merchant mariner's document 

issued by the Secretary of Transportation (i.e., United States Coast Guard by delegation) 

may be suspended or revoked if the holder acting under the authority of that license or 

document has committed an act of misconduct. Misconduct has been defined in 46 CPR 

§ 5.27 in relevant part as follows: 

Human behavior, which violates some formal, duly 

established rule. Such rules are found in, among other 

places, statutes, regulations, .... 

The misconduct in this case is alleged to be the result of the Respondent's 

violation of a drug testing regulation found at 46 CPR § 16.105 defining a refusal to 

submit to be, that which is set out in 49 CPR§ 40.191 2

• A refusal to submit under this 

regulation includes a Medical Review Officer (MRO) reporting a substituted specimen. 

A substituted specimen is defined in 49 CPR§ 40.201 to mean a urine specimen with 

creatinine and specific gravity values that are so diminished that they are not consistent 

with human urine. These values are for creatinine less than or equal to 5 mg/dl, and less 

than or equal to 1.001 for specific gravity? 

FINDING OF FACT 

On February 28, 2001 Respondent submitted a urine specimen in connection with 

a drug test as sanctioned under the drug testing regulations of the Department of 

Transportation and the United States Coast Guard. See 49 CPR Part 40 and 46 CPR Part 

16. 

The specimen was collected at Seattle Occupational Medical Center, Seattle, 

Washington at 2:58P.M. PST. The urine specimen provided by Respondent was in a 

collection cup handed to him from a collection kit, which had been unsealed in his 

presence. After handing the specimen to the collector, the collector checked the 

temperature gauge on the cup, which apparently did not register. According to 

Respondent he then left the collection area and went into an adjoining' room soon 

thereafter returning with a digital thermometer. The temperature was taken, and 

determined to be within normal range. The urine was then poured into two separate 

bottles each of which were sealed and Respondent then initialed each seal. He then 

signed the Federal Custody and Control form certifying that the specimen was not 

adulterated in any manner and each specimen bottle used was sealed with a tamper-proof 

seal and done in his presence. 

2 Effective on August 1, 2000 the Coast Guard amended its drug testing regulation 46 CFR § 16.1 05] to 

provide that a refusal to submit to a chemical or drug test is that which is set out in 49 CFR § 40.191. See 

66 Fed. Reg. 21502 (April30, 2001). 

3 This is different than a diluted urine specimen which has a creatinine value of less than 20 mg/dl. 

Decision & Order - 2 
The specimen bottles were then placed in a bag, which was sealed and placed in 

container, which was stored for later retrieval by a courier. A courier then retrieved the 

container and transported it with the specimen bottles to Quest Diagnostics in San Diego, 

CA. 

Upon arrival at the testing laboratory, the container was unsealed and an 

accession number was assigned. The specimen was then subjected to preliminary testing 

or initial screening including that to determine the integrity of the specimen for 

adulteration or substitution. 

The laboratory testing determined the Respondent's urine specimen had a 

creatinine level ofO.lO and a specific gravity of 1.001. CG Exhibit 4. This creatinine 

level was less than 5 mg/dl. Based on both the creatinine level and specific gravity level 

the laboratory determined the urine specimen of Respondent as substituted. See CG 

Exhibit 3 inclusive. 

This substituted result was then reported to the MRO (Greystone Health Sciences 

Corporation, La Mesa, CA) Stephen Oppenheim M.D. This result was also reported to 

Respondent's employer but as "positive". 

Respondent was told of this result. He insisted on a retest. He contacted 

Northwest Drug Testing Division, Salt Lake City, Utah, who at first refused. Later upon 

contact from George Ellis of Greystone Health Sciences Corp., Northwest Drug Testing 

agreed to the retest.4 The retest confirmed the original results: 0.1 for creatinine and 

1.001 for specific gravity. CG Exhibit 4. 

Thereafter, Respondent sought another MRO opinion regarding his test results 

and medical explanations for the results. He was permitted to consult with another 

recognized MRO, James E. Manning M.D. who after consultation referred him to a 

Nephrologist, Catherine Thompson, M.D. 

Prior to the referral, Dr. Manning had Respondent reproduce the amount of liquid 

he had to drink in the earlier tests and give an observed urine specimen. The collection 

was done on April 16, 2001. The specimen was tested and had a resulting creatinine level 

of 9.3 and a specific gravity of 1.001. The creatinine level was substantially below the 20 

mg/dl for a dilute specimen and at the borderline for specific gravity. CG Exhibit 5 

Dr. Thompson the Nephrologist specializes in fluid and electrolyte disorders. She 

obtained urine from Respondent, which had a specific gravity of 1.010 and urine 

creatinine of 19.5 The collection and test was done at the Virginia Mason laboratory in 

4 Mr. Ellis testified that he found this initial refusal to be extremely unusual and troubling. He personally 

contacted Northwest Drug Testing and arranged for the retest. 5 Dr. Thompson's evaluation involved a history, physical, blood work, and urinalysis. Respondent was 

unable to replicate the original 0.1 creatinine level. Such a level suggests the urine is literally pure water. 

See CG Exhibit 8.inclusive 

Decision & Order - 3 
Seattle, W A. Dr. Thompson reported that there was no medical condition discovered in 

Respondent, which would account for the creatinine level of 0.1. In her opinion it was 

physically impossible for urine creatinine of 0.1 mg/dl in Respondent. CG Exhibit 5 

inclusive. 

In a further effort to demonstrate he could physically reproduce creatinine levels 

below 5 mg/dl, Respondent arranged to provide urine specimens at a firm called Drug 

Proof in Seattle, W A. A specimen was collected on August 20, 2001, unobserved, and 

the creatinine level test results showed 4.3 mg/dl and specific gravity level of 1.003-

1.035. The specimen was reported as dilute. CG Exhibit 10. The specimen was not 

collected according to DOT/USCG regulations and did not comply with SAMHSA drug 

screen protocols. 

Thereafter, on August 28, 2001, Respondent arranged for an additional test, this 

time it was to be observed and conducted in conformity with DOT/USCG regulations and 

SAMHSA protocols. The results came back- dilute. CG Exhibit 10. The creatinine 

level was 8.7 mg/dl and the specific gravity was 1.002. 

CONCLUSIONS OF LAW 

Creatinine and specific gravity are two common clinical chemistry parameters, 

which characterize normal human urine specimen for a variety of purposes. Random 

urine reference ranges are routinely used to evaluate a donor's urine, especially in drug 

testing programs. Urine specimens are defined as dilute if the urine concentration is less 

than 20 mg/dl and a specific gravity ofless than 1.003.6 

Where a creatinine level is less than 5 mg/dl together with a specific gravity of 

less than 1. 00 1 then the urine is considered in a drug testing regulatory context to be 

inconsistent with normal human urine. It is then defined as substituted. See 49 CFR § 

40.201 Additional Definitions which refers to 49 CFR § 40.209(b). 

When a Medical Review Officer (MRO), in the course of verifying test results 

involving a substituted specimen, the MRO follows the same procedures used to verify a 

positive drug test. In that case the MRO interviews the donor to determine if there is a 

medically justifiable reason for the substituted result. The donor (or employee) has the 

burden of proof there is a legitimate medical explanation for the substituted result. 49 

CFR § 40.215(e). 

The regulations now recognize the following as acceptable evidence supportive of 

an employee's assertion of legitimate medical explanation: 

6 See Program Document #35, September 28, 1998, Notice to HHS Certified and Applicant Laboratories 

Subject: Guidance [or Reporting Specimen Validity Test Results. Division of Workplace Programs, 

SAMHSA, Dept. Health and Human Services. 

Decision & Order - 4 
( 1) Medically valid evidence demonstrating that the 

employee is capable of physiologically producing 

urine meeting the creatinine and specific gravity 

criteria of§ 40.209(b). 49 CFR § 40.215(h)(l) 

Respondent was confronted by the MRO with a substituted test result. He 

claimed that he drinks considerable quantities of fluids each day that such consumption 

must explain that result. He was referred to a Nephrologist who could not confirm that to 

be the case. 

Respondent then undertook to show that he was capable of physiologically 

producing urine meeting the creatinine and specific gravity criteria for a substituted 

specimen. 

On one unobserved test he did produce urine with a creatinine level of 4 mg/dl 

but a specific gravity above 1. 003. This does not suffice because both the creatinine and 

specific gravity criteria of § 40 .209(b) are not met. In a later observed test he was again 

unable to satisfy the criteria. 7 

Consequently Respondent has failed to meet his burden as required under the 

applicable regulation. 

There is no doubt, however, that the MRO and the Nephrologist have concluded 

that Respondent is physiologically capable of producing dilute urine. 8 I agree. 

DECISION 

I must conclude that Respondent produced at the initial drug test, urine which was 

substituted and by regulation is deemed to be the equivalent of a refusal to submit. This 

refusal to submit constitutes a violation of established regulation and law. It is therefore 

misconduct. The Coast Guard's complaint is therefore, proven. 

Nevertheless, Respondent does have a rather unusual physiological ability to 

produce substantially dilute urine. Given that, I am concerned that such dilute results in 

future testing may be misinterpreted and incorrectly reported as substituted. 

SANCTION 

I will exercise my discretion and suspend the Respondent's document for a period 

of eighteen (18) months to commence from March 12, 2001, the date Respondent had 

been removed from service by his employer. During this suspension period Respondent 

7 Creatinine level of 8. 7 mg/dl and the specific gravity was 1.002 CG Exhibit 1 0. 

8 The observed testing done with the MRO and the Nephrologist demonstrate a substantially dilute urine 

with creatinine levels of9 and 8. 

Decision & Order - 5 
is directed to take six (6) random and observed DOT/CG sanctioned drug tests. No test 

shall be reported as substituted, adulterated or positive, and if so, then the Respondent's 

document will be revoked. These tests shall be conducted at the discretion of the Marine 

Safety Office, Seattle and test results shall be reported to that office for evaluation. 

Service of this s Decision upon you serves to notify you of your right to appeal as 

set forth in 33 CPR Subpart J, §20.1001. (Attachment A) 

IT IS SO ORDERED. 

Dated: December 4, 2001. 

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 Puget Sound 

Attn: Ronald Kinsey 

Telefax: 206-217-6312 

Mr. George Jordan 

ALJ Docketing Center 

Electronic e-mail 

Mitchell Riese 

Attorney for Respondent 

Telefax: 206-545-7248 

ALJ Docketing Center w/activity report 

Telefax 

Dated at Seattle, W A this 4th day of December, 2001. 

Decision & Order - 6 

J/1 ... . o~. ~ ; 1~ ./u e_,u;vc MARYP~ER Legal Assistant to 

Administrative Law Judge