1

UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

MARK WILLIAM MOWERY 

Respondent

_________________________________ Docket Number 2012-0546

Enforcement Activity No. 4500529

DECISION AND ORDER

Issued: October 29, 2013

By Hon. Parlen L. McKenna

Appearances:

LT Arthur F. Loughran

Sector Los Angeles/Long Beach

For the Coast Guard

MARK WILLIAM MOWERY, Pro se

For the Respondent

The United States Coast Guard (Coast Guard) brought this proceeding against 

Respondent Mark William Mowery’s Merchant Mariner Credential pursuant to 46 U.S.C. § 

7704(c) and Coast Guard regulations found at 46 C.F.R. Part 5. The case was conducted under 

the Administrative Procedure Act (5 U.S.C. § 551 et seq.) and the Coast Guard’s procedural and 

evidentiary rules found at 33 C.F.R. Part 20.

The Coast Guard sought to revoke Respondent’s Coast Guard-issued credential for 

Respondent’s alleged use of, or addiction to the use of, dangerous drugs. See 46 U.S.C. § 
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7704(c); 46 C.F.R. § 5.35. Specifically, the Coast Guard alleged that Respondent took a preemployment drug test, which tested positive for cocaine metabolites. Respondent made various 

arguments why the test should be disregarded. First, Respondent argued the test was unlawful 

under 46 C.F.R. Part 16 as he was only called to take a second “pre-employment” drug test due 

to his employer’s error in removing him from the company’s random drug testing program. 

Respondent claimed that the company removed him from this program despite Respondent’s 

continuous employment with the company. Second, Respondent asserted that the positive test 

result occurred due to his unknowing ingesting of a coca-based product, Agwa de Bolivia, a 

liqueur made from botanical ingredients, which could have triggered the result. Third, 

Respondent opined that the positive test could have occurred from dermal exposure to cocaine on 

paper money. Finally, Respondent argued that the positive drug test was not valid due to 

possible problems with the accuracy of the testing laboratory’s equipment and levels of 

detection.1

After carefully reviewing the record evidence, I find Respondent’s arguments must be 

rejected. Therefore, for the reasons given in this Decision and Order, the allegations against 

Respondent are found PROVED and Respondent’s Coast Guard-issued credential is 

REVOKED.

I. PROCEDURAL BACKGROUND

On December 13, 2012, the Coast Guard filed a Complaint under the authority of 46 

U.S.C. § 7704(c) and 46 C.F.R. § 5.35. The Coast Guard alleged the following factual 

allegations:

1. On 11/30/2012, Respondent took a pre-employment drug test.

2. A urine specimen was collected by Nancy Simon of OHS.

3. The Respondent signed a Federal Drug Testing Custody and Control Form.

 1 Respondent made these arguments at the hearing and cross-examined the Coast Guard’s witnesses on these 

subjects. However, because Respondent elected not to submit a post-hearing brief, I have summarized here 

Respondent’s main rebuttal arguments given during the hearing.
3

4. The urine specimen was analyzed by Quest Diagnostics, Inc., using procedures 

approved by the Department of Transportation.

5. That specimen subsequently tested positive for cocaine metabolites, as 

determined by the Medical Review Officer, James Vanderploeg.

The Coast Guard proposed revocation as the appropriate sanction for Respondent’s alleged 

violation.

On January 1, 2013, Respondent filed a request for a ten day extension of time to file an 

Answer. On January 3, 2013, I granted Respondent’s request in my capacity as the Acting Chief 

Administrative Law Judge and gave him until January 17, 2013 to file an Answer. On January 

18, 2013, the Coast Guard ALJ Docketing Center received a letter from George M. Jones, Esq., 

requesting a second extension for Respondent to file an Answer. On January 22, 2013, 

Respondent’s second request for an extension was granted and he was allowed until January 25, 

2013 to file an Answer.

On January 24, 2013, Respondent filed an Answer. Respondent admitted all 

jurisdictional allegations but denied the Complaint’s factual allegations. Respondent also raised 

the following affirmative defenses: 1) unknowing ingestion; 2) the drug test was not performed 

under 46 CFR [sic]; and 3) the ordered test was not per 46 CFR [sic].2

On January 25, 2013, this case was assigned to me for review and disposition. On 

February 7, 2013, I issued a Scheduling Order and Notice of Hearing that ordered the hearing to 

take place on March 6, 2013 in Long Beach, California.

On February 19, 2013, the Coast Guard filed its Notice of Expected Witnesses and 

Exhibits. On February 20, 2013, the Coast Guard filed Motions for Telephonic Testimony, all of 

which were granted.

 2 Given Respondent’s arguments at the hearing, I can only surmise that he intended to challenge both the 

jurisdictional basis of the Coast Guard’s case under 46 C.F.R Part 16 and the actual adherence to the DOT drug 

testing rules at 49 C.F.R. Part 40.
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On February 20, 2013, Mr. Jones filed a Notice of Withdrawal of Representation, which 

indicated that he would not be representing Respondent any further. On February 21, 2013, I 

issued an Order and Notice of Continuance of Hearing that moved the hearing date to March 26, 

2013.

On March 14, 2013, the Coast Guard filed a Notice of Amended Expected Witnesses and 

Exhibits. On March 24, 2013, Respondent filed his Witness and Exhibit List.

On March 26, 2013, the hearing took place as scheduled in Long Beach, California. The 

Coast Guard presented the testimony of 6 witnesses and offered 22 exhibits into evidence. 

Respondent testified in his own behalf and offered 11 exhibits into evidence. The witnesses who 

testified at the hearing and the exhibits entered into evidence are identified in Attachment A to 

this Decision and Order.

On March 27, 2013, Respondent voluntarily took a DOT drug test at OHS Health & 

Safety Services, the results of which were negative. Respondent submitted the results of this 

drug test to the Court on March 28, 2013. See Judge’s Exhibit A.

On May 6, 2013, I issued a Scheduling Order for the Submission of Respondent’s Expert 

Witness and Further Lab Testing of the Liqueur. That Order 1) gave Respondent two weeks to 

arrange for the telephonic testimony of Respondent’s expert witness3; 2) directed that 

Respondent submit the initial results of the lab testing of the liqueur; and 3) gave Respondent 

two weeks to arrange for and pay further testing of the liqueur at his own expense at a second 

laboratory of his choosing.

On June 10, 2013, Respondent submitted an e-mail to the Court stating the initial testing 

of the liqueur was negative for the presence of cocaine. See Judge’s Exhibit B. Apparently, 

 3 Respondent gave notice that he intended to offer the testimony of a toxicology expert, Dr. Parent, at the hearing. 

However, due to the length of other witnesses’ testimony and the presentation of the Coast Guard’s case in chief, Dr. 

Parent was not able to be called during that hearing. At the end of the hearing, I gave Respondent the opportunity to 

call Dr. Parent at a later date. However, Respondent was unable to arrange for Dr. Parent’s testimony, despite 

having over three months to arrange for Dr. Parent to appear or obtain the services of another expert.
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Respondent sent the liqueur to another laboratory for testing, but Respondent did not provide any 

information concerning the results of such testing, which he believed would be available within 

one week of the e-mail dated June 10th. Id. Furthermore, Respondent indicated that he was 

unable to arrange for the testimony of his expert witness and that the expert was apparently 

unwilling to testify. Id.

On June 20, 2013, I issued a Scheduling Order for Submission of Post-Hearing Briefs. 

That Order gave the parties 30 days to submit initial post-hearing briefs with proposed findings 

of fact and conclusions of law and 15 days from the submission of any such post-hearing brief to 

submit a reply. That Scheduling Order also closed the record.

On June 26, 2013, Respondent submitted the results from the second laboratory’s testing 

of the liqueur, along with a copy of a journal article dealing with coca tea consumption and the 

effects on urine testing from the European Journal of Emergency Medicine 13:340-341 (2006). 

See Judge’s Exhibit C.4

On July 12, 2013, the Coast Guard filed its Post-Hearing Brief including Proposed 

Findings of Fact and Conclusions of Law. Respondent did not file a post-hearing brief. Rulings 

on the Coast Guard’s Proposed Findings of Fact and Conclusions of Law are contained in 

Attachment B.

This Decision and Order, including all findings of fact and conclusions of law, is based 

upon my analysis of the entire record, applicable statutes, regulations and case law. Each exhibit 

entered, although perhaps not specifically mentioned in this Decision, has been carefully 

examined and given thoughtful consideration.

 4 Judge’s Exhibits A, B, and C are hereby admitted into evidence.
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II. FINDINGS OF FACT5

1) Respondent served as licensed captain for Electra Cruises, Inc. (Electra Cruises) on an 

independent contractor basis. Tr. at 49:23-50:5.

2) Respondent took an initial pre-employment drug test before working for Electra Cruises

on November 22, 2011, the results of which were negative. Tr. at 11:22-12:7; 32:13-20; 

CG Exh. 22.

3) Electra Cruises’ business is seasonal in nature with slow periods generally lasting from 

January through April, during which time the company does not require as many 

personnel, including licensed captains. Tr. at 53:6-12.

4) Respondent was the fourth or fifth captain Electra Cruises would call upon to captain its 

vessels, as generally captains with greater seniority would be called first. Tr. at 53:10-21.

5) Electra Cruises uses the Maritime Consortium, Inc. (Maritime Consortium) as a third 

party provider to ensure the company’s compliance with Coast Guard drug testing 

regulations and requirements, including random drug testing. CG Exh. 2.

6) Electra Cruises first enrolled Respondent in the Maritime Consortium on November 21, 

2011. Tr. at 30:19-24; CG Exh. 5.

7) Electra Cruises’ captains are required to be part of the Maritime Consortium to work in 

that capacity for the company. Tr. 89:24-90:1.

8) On May 9, 2012, Ms. Heather Gunther, Electra Cruises’ office manager and drug 

program manager requested Respondent’s removal from the Maritime Consortium drug 

testing program. Tr. at 33:15-23; 62:5-15; 65:9-15; CG Exh. 5

9) In that request, Ms. Gunther asked that two captains (Respondent and Ms. Andrea Bill) 

and three servers be deleted from the Maritime Consortium. Tr. at 65:16-22.

10) Ms. Gunther’s practice and procedure involved deleting individuals who did not work for 

Electra Cruises for some months from the Maritime Consortium. Tr. at 82:19-83:21.

11) Ms. Gunther directed that these individuals be deleted from the drug testing program 

because it was Electra Cruises’ slow season and the two captains (including Respondent) 

had not been driving boats for the company for awhile. Tr. at 66:6-9.

12) The employer, not the Maritime Consortium, is responsible for informing an employee 

that they have been removed from the Maritime Consortium. Tr. at 38:7-17.

13) Following Respondent’s removal from the Maritime Consortium on May 9, 2012, 

Respondent continued to serve as a captain for Electra Cruises for approximately 22 trips, 

from May 2012 through November 2012. Tr. at 51:2-5; 55:11-19; 66:10-67:7; CG Exh. 

3.

 5 References to the transcript take the form of “Tr. at [page #:line#]” and references to the parties’ exhibits are “CG 

Exh. [#]” for the Coast Guard’s exhibits and “Resp. Exh. [#]” for Respondent’s.
7

14) Electra Cruises acknowledged that deleting Respondent from the Maritime Consortium 

was an error. Tr. at 57:1-19.

15) On December 14, 2012, the Coast Guard issued a Warning Letter in Lieu of Civil Penalty 

to Electra Cruises in connection with Electra Cruises continuing to employ Respondent 

despite his removal from the Maritime Consortium’s drug testing program. CG Exh. 4.

16) Ms. Gunther recalled requesting the Maritime Consortium to delete Respondent, but she 

never really thought about the deletion after that, and so Electra Cruises then mistakenly 

continued to employ Respondent. Tr. at 81:1-14.

17) On or about November 19, 2012, Ms. Gunther discovered that Respondent was not listed 

on the Maritime Consortium’s list of covered mariners, so she requested the Maritime 

Consortium add Respondent back into the drug testing program. Tr. at 70:21-71:2; 79:1-

3; CG Exh. 6.

18) Between May 9, 2012 and November 19, 2012, Respondent was not covered under the 

Maritime Consortium’s drug testing program because Electra Cruises had deleted him. 

Tr. at 79:14-20.

19) In November 2012, Ms. Gunther contacted Respondent and stated that his name was no 

longer present on the approved captains list for the Maritime Consortium. Tr. at 86:11-

16.

20) Ms. Gunther told Respondent that he would need to take another drug test to continue 

working for Electra Cruises as a captain. Tr. at 86:17-25.

21) Respondent replied that he had already taken a pre-employment drug test approximately 

six months prior. Tr. at 87:1-5.

22) Respondent then brought paperwork related to his first pre-employment test in November 

2011 to Ms. Gunther. Tr. at 87:17-20.

23) Ms. Gunther gave Respondent the drug testing slip and said that he had to take the test 

because it was required to work as a captain for Electra Cruises. Tr. at 88:2-9; 89:6-13.

24) On November 30, 2012, Respondent submitted a urine sample to be analyzed under DOT 

drug testing rules for the presence of drugs. CG Exh. 16; CG Exh. 17; CG Exh. 21.

25) Respondent stipulated that the collection was in accordance with DOT procedures. Tr. at 

159:18-160:1.6

26) Quest Diagnostics, Inc. (Quest Diagnostics) analyzed Respondent’s sample given on 

November 30, 2012. CG Exh. 11.

27) Quest Diagnostics is a SAMHSA certified laboratory and the testing of Respondent’s 

sample comported with the requirements of 49 C.F.R. § 40. CG Exh. 11.

 6 Because Respondent stipulated the collection was done in accordance with all the required procedures under 49 

C.F.R. Part 40 and there were no chain of custody issues with the collection, the specimen collector, Ms. Simon, was 

not called to testify at the hearing. 
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28) Quest Diagnostics first uses an immunoassay test for the presence of the five drugs 

subject to DOT testing. Tr. at 168:4-10.

29) If the results indicate a positive presence of one of those drugs, the laboratory then uses a 

gas chromatography mass spectrometer (GCMS) machine to conduct the confirmatory 

test. Tr. at 168:14-172:9.

30) The GCMS equipment is calibrated every day to ensure that it is operating within 20 

percent of known values. Tr. at 172:10-22.

31) The confirmatory test revealed that Respondent’s sample tested positive for the presence 

of cocaine metabolite at 168 ng/mL, which exceeds the confirmatory cutoff of 100 

ng/mL. Tr. at 177:21-24. See also 49 C.F.R. § 40.87 (indicating the initial cutoff is 150 

ng/mL for cocaine metabolites and 100 ng/mL for the confirmatory test).

32) On the day of the analysis of Respondent’s sample, Quest Diagnostics’ GCMS machine 

measured out at 8.86% (on the high sample) and 6.4% (on the low sample) off the known 

target respectively for the calibration samples. Tr. at 184:17-25; 188:18-194:21; 196:16-

24.

33) Dr. Vanderploeg is employed by the University of Texas Medical Branch in Galveston 

and is a certified medical review officer (MRO). Tr. at 97:22-98:6; see also CG Exh. 15.

34) Dr. Vanderploeg was the MRO for Respondent’s November 30, 2012 drug test. Tr. at 

98:11-14; CG Exh. 17.

35) Dr. Vanderploeg verified the test results as positive following the testing of Respondent’s 

split sample as required by the regulations at 49 C.F.R. Part 40. Tr. at 109:19-23; CG 

Exh. 19.

36) During the MRO’s verification call with Respondent, Respondent denied using cocaine 

and speculated that the positive result might have resulted from his consumption of a 

liqueur called Agwa de Bolivia, which he claimed contains botanical ingredients, 

including coca leaves. Tr. at 108:18-109:5; 110:5-15; CG Exh. 20.

37) Dr. Vanderploeg replied that even if the liqueur contained such botanicals, the MRO was 

not allowed to invalidate the test on that basis under 49 C.F.R. § 40.151(f). Id.

38) At the hearing, Respondent claimed that he obtained the liqueur in approximately 2002 or 

2003 as a gift from one of his employers. Tr. at 133:7-16.

39) Respondent also claimed that he consumed some of the liqueur in the fall of 2012 

because he was having some sleeping problems. Respondent stated that he would take a 

snifter (approximately 2-3 ounces) of the liqueur after dinner and believed he consumed 

the liqueur two to three days prior to his drug test. Tr. at 133:20-134:17.

40) The range of a positive test for cocaine depends primarily on how concentrated or diluted 

a particular specimen is but can range from a low of the cutoff of 100 ng/mL to as high as 

several thousand, but Dr. Vanderploeg stated that he typically sees positive ranges in the 

hundreds of ng/mL not the multi-thousand ng/mL. Tr. at 114:16-22.
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41) Dr. Vanderploeg testified that it is not possible to determine on the basis of the test result 

as to what the source was, how long ago the drug was used, how much was used – i.e., 

the tested level depends upon both the concentration of the drug consumed and the 

amount of time that has passed from consumption. Tr. at 115:1-16.

42) Nevertheless, Dr. Vanderploeg opined that Respondent’s test result of 168 ng/mL was on 

the “low end” of what he typically sees for a positive cocaine result. Tr. at 115:17-116:1.

43) Dr. Vanderploeg also opined that any cocaine in the liqueur from coca leaves would 

metabolize in the body the same as the drug cocaine. Tr. at 113:17-23.

44) Dr. Vanderploeg acknowledged that dermal exposure to cocaine through the handling of 

paper money has been reported. Tr. at 119:16-23.

45) Dr. Jasbir Singh is employed by the Veterans Affairs Medical Center in Minneapolis, 

Minnesota and has been the chief of the clinical chemistry and toxicology laboratory 

since April 1995. Tr. at 139:5-8; 140:8-14. See also Coast Guard Exh. 12.

46) Dr. Singh’s laboratory tested Respondent’s split sample and confirmed the presence of 

cocaine metabolites. CG Exh. 18.

47) The Veterans Affairs Medical Center is a certified SAMHSA laboratory and the testing 

of Respondent’s split sample was done in accordance with the requirements of 49 C.F.R. 

Part 40. Id.

48) Dr. Singh stated that benzoylecgonine is a metabolite of cocaine, so if one consumes 

cocaine, one finds that product in the individual’s body. Tr. at 147:6-11.

49) Dr. Singh opined that if there was coca leaves in a product, one could expect the presence 

of benzoylecgonine. Tr. at 148:5-22.

50) Respondent had the contents of the liqueur Agwa de Bolivia (Resp. Exh. E) tested for the 

presence of cocaine following the hearing, but the results were negative for the presence 

of cocaine. See Judge’s Exh. B.7

51) Respondent also had the contents of Resp. Exh. E tested at a laboratory on or about June 

13, 2014, the results of which indicated the presence of cocaine and cocaine metabolite at 

the following levels respectively: 204,661 ng/mL and 4,098 ng/mL. Judge’s Exh. C.

III. DISCUSSION

A. Jurisdiction

The Coast Guard brought charges against Respondent under the authority of 46 U.S.C. § 

7704(c), which provides:

 7 Respondent never submitted the actual results from the first testing of the liqueur and made various claims calling 

into question the laboratory’s results. See Judge’s Exh. C.
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If it is shown that a holder has been a user of, or addicted to, a dangerous drug, 

the license, certificate of registry, or merchant mariner's document shall be 

revoked unless the holder provides satisfactory proof that the holder is cured.

See also 46 C.F.R. § 5.35. Alleged violations of 46 U.S.C. § 7704(c) are thus “holder offenses” 

in that the mariner need not have been acting under the authority of his credentials in order to be 

subject to the Coast Guard’s jurisdiction. Jurisdiction is established for the purposes of 

suspension and revocation proceedings when the use of a dangerous drug is charged, so long as 

respondent is a current holder of any Coast Guard-issued credentials. See Appeal Decision 2668 

(MERRILL) (2007). Here, it is uncontested that Respondent is the holder of a Merchant Mariner 

Credential (and was such a holder at the time of the November 2012 drug test) and thus 

jurisdiction is established. See CG Exh. 1.

B. Burden and Standard of Proof

Under the Coast Guard’s Rules of Practice, Procedure, and Evidence, “the party that 

bears the burden of proof shall prove his or her case or affirmative defense by a preponderance 

of the evidence.” 33 C.F.R. § 20.701. In these proceedings, the Coast Guard bears the burden of 

proof, except with respect to any affirmative defenses raised by a respondent, who then bears the 

burden. 33 C.F.R. § 20.702. A preponderance of the evidence is generally defined as:

The greater weight of the evidence, not necessarily established by the greater 

number of witnesses testifying to a fact but by evidence that has the most 

convincing force; superior evidentiary weight that, though not sufficient to free 

the mind wholly from all reasonable doubt, is still sufficient to incline a fair and 

impartial mind to one side of the issue rather than the other. This is the burden of 

proof in most civil trials, in which the jury is instructed to find for the party that, 

on the whole, has the stronger evidence, however slight the edge may be.

Black’s Law Dictionary (9th ed. 2009). “Thus, a party proves a fact by a preponderance of the 

evidence when he proves that the fact’s existence is more likely than not.” Greenwich Colleries 

v. Director, Office of Workers’ Compensation Programs, 990 F.2d 730, 736 (3d Cir. 1993).

C. Violations of Section 7704(c) and the Presumption Established by a Positive DOT Drug 

Test
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Congress enacted 46 U.S.C. 7704 with the express purpose of removing those individuals 

possessing and using drugs from service in the United States merchant marine. House Report 

No. 338, 98th Cong., 1st Sess. 177 (1983); Appeal Decision 2634 (BARRETTA) (2002). The 

definition of dangerous drug originally found in 46 U.S.C. § 7704(a) was later moved to 46 

U.S.C. § 2101(8a) and provides that “'dangerous drug” means 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)). Cocaine is included among those 

controlled substances and is one of the five drugs Coast Guard regulations mandate be tested for 

in a mariner’s specimen. See 46 C.F.R. § 16.113(b).

The Complaint alleges that Respondent took a pre-employment drug test and the 

specimen subsequently tested positive for cocaine metabolites, as determined by the Medical 

Review Officer. Evidence of drug use by a respondent based upon such a urinalysis test can lead 

to a presumption of drug use under 46 C.F.R. § 16.201(b). That section provides “[i]f an 

individual fails a chemical test for dangerous drugs under [46 C.F.R. Part 16], the individual will 

be presumed to be a user of dangerous drugs”. Id.

This presumption arises when the Coast Guard establishes: 1) respondent was tested for a 

dangerous drug; 2) respondent tested positive for a dangerous drug; and 3) the test was 

conducted in accordance with 46 C.F.R. Part 16. Appeal Decision 2603 (HACKSTAFF) (1998). 

Once these three elements are established, a prima facie case of a respondent’s use of a 

dangerous drug is established. However, the presumption is not irrebuttable, and once 

established, the burden of going forward with evidence shifts to the respondent. Id. 

A respondent faced with overcoming the presumption “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 positive test result, or 3) that indicates the use 

was not wrongful or not knowing.” Appeal Decision (CLIFTON) (1995). “If this evidence is 
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sufficient to rebut the original presumption, then the burden of presenting evidence returns to the 

Coast Guard.” Id.

The Coast Guard implemented the Federal Transportation Workplace Drug Testing as 

part of its drug testing requirements through its regulations in 46 C.F.R. Part 16. See 46 C.F.R. § 

16.113(a) (“Drug testing programs required under this part must be conducted in accordance 

with 49 CFR part 40”). To be valid, the drug test thus must comport both with 46 C.F.R. Part 16 

and the requirements of 49 C.F.R. Part 40. See Appeal Decision 2631 (SENGEL) (2002) (“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”).

D. Respondent was Subject to a Drug Test Required by 46 C.F.R. Part 16

Marine employers are required to conduct five specific types of drug testing: 1) preemployment testing; 2) periodic testing; 3) random testing; 4) serious marine incident testing; 

and 5) reasonable cause testing. See 46 C.F.R. §§ 16.210-16.250; Appeal Decision 2697 

(GREEN) (2011). However, precedent clearly establishes that a drug test need not be one of the 

types enumerated under Part 16 for the Coast Guard to rely on it, provided the tested sample is 

given voluntarily. See, e.g., Appeal Decisions 2633 (MERRILL) (2002); 2635 (SINCLAIR)

(2002); 2545 (JARDIN) (1992).

Here, one issue is whether Respondent’s test was ordered in accordance with 46 C.F.R. 

Part 16, or if not, whether he submitted to the test on a voluntary basis. Pre-employment testing 

occurs when a mariner is entering maritime employment, and such mariners must either undergo 

a drug test, show that they have passed a D.O.T. drug test within the previous six months with no 

subsequent negative tests, or prove that for the past 185 days they were subject to random testing 

under § 16.230 for at least 60 days and did not fail or refuse to take a drug test. 46 C.F.R. 

§16.201.
13

Respondent argued that he had taken and passed a pre-employment drug test in 

November 2011, prior to his working for Electra Cruises. Respondent maintained that he 

worked continuously as an independent contractor for Electra Cruises from that time until he was 

told he had to take a second pre-employment test in November 2012. The record reveals that 

Respondent is correct. See Coast Guard Exh. 3. Respondent did work on a periodic basis from 

November 2011 through November 2012. Id.

However, the record also reveals that Electra Cruises removed Respondent from its drug 

testing program, administered by its third party provider, the Maritime Consortium, on May 9, 

2012. See CG Exh. 5. Electra Cruises acknowledged that removing Respondent from the drug 

testing program was a mistake in that the company continued to use Respondent as a captain for 

its boats on and off between May and November 2012. Nevertheless, it is a fact that between 

May 9, 2012 and November 2012, Respondent was not subject to a random drug testing 

program, as the Maritime Consortium did not have him listed as a captain subject to Electra 

Cruises’ drug testing program. Id.

Respondent argued at the hearing that the evidence was lacking concerning his removal 

from the Maritime Consortium. Specifically, Respondent questioned the fact that if he was 

removed, his Maritime Consortium card should have been collected, which it was not. 

Furthermore, Respondent questioned the documents from Electra Cruises and the Maritime 

Consortium, which purportedly indicated that he was removed from the program on May 9, 

2012.

Respondent is correct the document indicating the removal of Electra Cruises’ employees 

on May 9, 2012 does not specifically identify Respondent as one of those removed. See CG 

Exh. 5. Nevertheless, Ms. Gunther credibly explained that she specifically recalled requesting 

the Maritime Consortium to delete Respondent and another captain, along with three servers on 

that date. Tr. at 65:16-22; 66:6-9; 82:19-83:21. The Maritime Consortium memorandum of 
14

February 11, 2013 also confirms Respondent was in fact removed from the drug testing program 

on May 9, 2012. CG Exh. 5. Furthermore, the Coast Guard investigated this matter, discovered 

that Respondent was not subject to the drug testing program, and issued a Warning Letter to 

Electra Cruises for its continued employment of Respondent without his being subject to the 

required drug testing program. CG Exh. 6.

All of this record evidence indicates that Respondent was in fact deleted from the 

Maritime Consortium on May 9, 2012. The fact that his Maritime Consortium card was not 

collected is not indicative of his continued membership in the program, as it is the employer’s 

responsibility to inform an employee of such removal. Tr. at 38:7-17. Ms. Gunther explained 

that she did not specifically think about her deletion of Respondent from the Maritime 

Consortium after doing it, and so she continued to employ him as a captain in the months that 

followed. Tr. at 81:1-14. Given Electra Cruises’ error, Respondent was thus not subject to 

random drug testing from May 9, 2012 through November 2012 when he was directed to take a 

pre-employment test. Electra Cruises undoubtedly made a mistake in deleting Respondent from 

the drug testing program and continuing to employ him as a captain in violation of the 

regulations. See CG Exh. 4.

This mistake cannot obviate the need to have Respondent drug tested in November 2012. 

The mandates of 46 C.F.R. § 16.210 are clear. A marine employer is prohibited from engaging 

or employing an individual to serve as a crewmember unless the individual passes a drug test for 

that employer. 46 C.F.R. § 16.210. Under Section 16.210(b), this requirement can be waived if 

the individual has either passed a drug test within the previous six months with no subsequent 

positive drug test during that six-month period or during the previous 185 days had been subject 

to a random drug testing program required by § 16.230 for at least 60 days and did not fail or 

refuse to participate in a required drug test. Id. The regulations require any individual employed 
15

or engaged in a safety-sensitive position as a crewmember to be subject to the company’s 

random drug-testing program. 46 C.F.R. § 16.230.

Here, through no fault of his own, Respondent was not subject to the required random 

drug-testing program for a period from at least May 9, 2012 (the date he was deleted from the 

Maritime Consortium) through November 19, 2012 (the date Electra Cruises requested he be 

added back into the program). See CG Exhs. 5, 6. Thus, for at least 194 days, Respondent was 

not subject to the random drug testing regime, and had not taken a drug test in the prior six 

months. See CG Exh. 22. No exception to the requirements of 46 C.F.R. § 16.210 applies to 

Respondent’s situation.

Given these facts, the regulations required Respondent to take another “pre-employment” 

drug test to be enrolled again in the Maritime Consortium and thus be subject to Electra Cruises’ 

mandated drug testing program. I thus find that the November 2012 drug test was required under 

applicable Coast Guard regulations and was not an unlawful test that might deprive the Coast 

Guard of jurisdiction.8

E. The Coast Guard Established a Presumption that Respondent was a User of Dangerous 

Drugs

Given that the November 2012 drug test was required, by 46 C.F.R. Part 16, the question 

becomes whether the Coast Guard established the presumption of Respondent’s drug use on the 

basis of that test or otherwise established Respondent’s use of, or addiction to the use of, a 

dangerous drug. For the reasons explained below, the Coast Guard clearly established that 

presumption.

1. Respondent was Tested for a Dangerous Drug

It is undisputed that Respondent took a DOT-drug test on November 30, 2012 by 

submitting a urine sample to a trained collector and that sample was tested by a SAMHSA 

 8 Given this ruling, resolving the question of whether Respondent voluntarily submitted to the test is unnecessary.
16

certified laboratory for the presence of the dangerous drugs required by 46 C.F.R. Part 16. CG 

Exhs. 11, 21; see also Tr. at 9:3-18 (Respondent’s admission of the allegations concerning the 

drug test and its collection); Tr. at 159:18-160:1 (Respondent’s stipulation as to the collection 

process).

2. Respondent Tested Positive for a Dangerous Drug

Both the initial test results and the confirmatory test results on Respondent’s split sample 

indicate Respondent’s sample tested positive for cocaine metabolites at a level of 168 ng/mL on 

the confirmatory GCMS test – well in excess of the 100 ng/mL confirmatory cutoff for a positive 

test. CG Exhs. 11, 14, 16, 18; see also Tr. at 9:24-10:12 (Respondent admitting the correctness 

of the positive test for cocaine metabolites but asserting that he has an affirmative defense as to 

the result). Respondent questioned the accuracy of Quest Diagnostics’ GCMS machine on the 

day in question in an attempt to account for the level of cocaine metabolites found in his sample. 

However, the laboratory’s director of operations confirmed that on the day of analysis, the 

GCMS machine was operating within the required accuracy parameters and was registering 

known samples within 6.4% to 8.86% of the known values. Tr. at 184:17-25; 188:18-194:21; 

196:16-24. Even assuming the GCMS machine measured Respondent’s sample with an error of 

8.86% variance on the high side, the level of cocaine metabolites in Respondent’s sample would 

only be reduced by 14.88 ng/mL. That “corrected” level (153.12 ng/mL) still exceeds the 

confirmatory cutoff of 100 ng/mL and even exceeds the initial cutoff level of 150 ng/mL.9

3. The Drug Test Complied with 46 C.F.R. Part 16 and 49 C.F.R. Part 40

The MRO verified the test results in accordance with the procedures outlined in 49 

C.F.R. Part 40. CG Exhs. 17, 19, 20, 21. Respondent made no allegation that either the 

 9 While the MRO acknowledged that Respondent’s positive test was on the “low end” of a positive result, the MRO 

also explained that the test result is merely a snapshot of the then-current level of drug metabolites in the body and 

does not indicate either the amount consumed or how long ago such drug was consumed. Tr. at 114:16-22; 115:1-

116:1.
17

collection or the testing of his sample, including the split sample, failed to comply with these 

requirements. See Tr. at 9:3-10:12; 159:18-160:1 (Respondent’s stipulation as to the collection 

process). The record evidence indicates no fatal flaws occurred requiring the test to be 

cancelled. See 49 C.F.R. § 40.199. The chain of custody for Respondent’s specimen was 

unbroken and the laboratory used proper procedures to analyze Respondent’s urine sample as 

appropriately verified by the MRO. CG Exhs. 17, 19, 20, 21 Given that the Coast Guard 

established all three of the necessary elements for the presumption under 46 C.F.R. § 16.201(b), I 

find that the Coast Guard is entitled to a presumption Respondent is a user of, or addicted to the 

use of, a dangerous drug given the results of his November 30, 2012 drug test.

F. Respondent Failed to Establish his Affirmative Defenses by a Preponderance of the 

Evidence

Once the Coast Guard established this presumption, the burden shifted to Respondent to 

rebut that presumption. Respondent tried several avenues of rebuttal. However, for the reasons 

given below, each of these must be rejected.10 

Respondent’s primary rebuttal effort involved his claim that the positive test result 

occurred because of his consumption of the liqueur Agwa de Bolivia, which he asserted 

contained botanicals including coca leaves. See Resp. Exhs. C, D, F. Both the MRO and Dr. 

Singh admitted that any cocaine in the liqueur from coca leaves would metabolize in the body 

the same as the drug cocaine. Tr. at 113:17-23; 147:6-11; 148:5-22. However, the MRO 

correctly declined to invalidate the positive test results based on Respondent’s denial of cocaine 

 10 Respondent’s questioning of the accuracy of the test results is rejected for the reasons given in the analysis above. 

The levels of accuracy for the GCMS analysis were well within the required standards mandated by HHS guidelines 

for certified laboratories and even accounting for the level of specific inaccuracy on the date in question, 

Respondent’s sample would be positive at the required threshold for cocaine at both the initial and confirmatory 

levels.
18

use and explanation from the consumption of this liqueur. See 49 C.F.R. §§ 40.151(d), (f); see

also Appeal Decision 2632 (WHITE) (2002).11

The Coast Guard took custody and control of the liqueur bottle (Resp. Exh. E) following 

the hearing and met Respondent at the collection site with the bottle so that the bottle’s contents 

could be tested at a laboratory for the presence of cocaine. This test was conducted by Pacific 

Toxicology Laboratories, a SAMHSA certified laboratory. See

http://workplace.samhsa.gov/DrugTesting/pdf/CLabList_Oct2013.pdf. Respondent paid for the 

test, and the initial results did not indicate the presence of cocaine. See Judge’s Exh. B. 

Respondent did not provide the results of this test as ordered but instead merely stated that the 

test was negative. Id. This statement is an admission against interest. 

Respondent subsequently had the liqueur tested again at a different laboratory, National 

Toxicology Labs, Inc., another SAMHSA certified laboratory. Judge’s Exh. C; 

http://workplace.samhsa.gov/DrugTesting/pdf/CLabList_Oct2013.pdf. The results of this second 

test indicated the presence of cocaine and cocaine metabolite in the bottle’s contents at the 

following levels: cocaine – 204,661 ng/mL and benzoylecgonine (cocaine metabolite) – 4,098 

ng/mL. Id.

A significant procedural problem arises with Respondent’s submission of these second 

laboratory results, as they were submitted after the record was closed on June 20th. Respondent 

failed to show good cause why this evidence should be admitted or considered in rendering this 

Decision. Additionally, Respondent did not file a motion to reopen the record. Respondent had 

more than enough time to get this second test conducted and reported within the timeframes 

allowed and yet failed to do so. Under these circumstances, Respondent’s submission of extrarecord evidence could be excluded from consideration. However, in the interests of justice and 

 11 While the MRO is prohibited by the regulations from considering such alternative explanations, the judge is not so 

bound and I have fully considered Respondent’s claimed use of this product based on the record evidence presented.
19

due process, I will nevertheless consider the second test results and these results are hereby 

admitted for consideration.12

After fully considering the results of this second test, I find this evidence to be unreliable 

in several respects. First, the inconsistency between the first negative test result and the second 

positive test result is not reasonably explained. As discussed above, Respondent did not offer the 

actual results of the first test despite an explicit order to provide such results within three days of 

the May 6, 2013 Scheduling Order. Instead, Respondent only submitted his interpretation of the 

negative results on June 10, 2013. See Judge’s Exh. B. Respondent characterized the tests 

results from the first SAMHSA lab as negative and it is reasonable to conclude that these results 

accurately reflected the laboratory’s results and the contents of the bottle at that time.

Nevertheless, Respondent claimed that such results were “biased” and not reliable. See

Judge’s Exh. B. Respondent’s claims of bias must be rejected. No bias is evident in the 

documentation Respondent provided and his assertions of such bias are not supported by any 

record evidence. The e-mail exchange Respondent highlights with respect to the liqueur’s 

testing merely reflects a fundamentally accurate depiction of the facts at issue, i.e., an employee 

tested positive for “coke” in his urine; the employee claimed a bottle of liqueur had coca leaves 

in it; and the judge ordered the bottle tested to determine if there was coca in it. Id. The contents 

were then apparently tested for both cocaine and cocaine metabolite. Id. Respondent presented 

no basis to consider the laboratory biased against him so that the testing would have been 

improper.13

Rather, by Respondent’s own admission, the laboratory results are negative for the 

presence of cocaine in the liqueur. Id. Respondent also questioned the fact that the laboratory 

 12 Had I been persuaded as to the rebuttal effects of this second test, I would have reopened the record to provide the 

opportunity for the Coast Guard to submit further argument and evidence. For the reasons provided, I do not find 

the second test results persuasive to counter the Coast Guard’s prima facie case.
20

did not provide the “control tests” for the testing. Judge’s Exh. B. Respondent has failed, 

however, to explain why such “control tests” are relevant or material to question the admitted 

negative results.14

Second, significant custody and control problems manifest themselves. For the first 

testing, the Coast Guard assumed custody of the liqueur bottle (Resp. Exh. E) at the hearing and 

one of the investigating officers, accompanied by Respondent, delivered the bottle to the 

collection facility, which then shipped the bottle to the laboratory for testing.15 The results of the

test were negative. Judge’s Exh. B. It was only after Respondent himself retrieved the bottle 

and shipped it to another laboratory for further testing that the test came back positive for the 

presence of both cocaine and cocaine metabolite at levels that on their face would have been hard 

for the first laboratory to have missed in its testing. The formal chain of custody was thus 

broken despite Respondent’s claims that he simply shipped the sealed box containing the bottle 

to the second laboratory. Respondent had unfettered access to the bottle and its contents before 

submitting it to the second laboratory for testing.

Third, the presence of the cocaine metabolite – benzoylecgonine – is problematic as the 

record evidence indicates that such a metabolite is created by the body’s consumption and 

processing of cocaine. Tr. at 146:20-148:22. Respondent presented no evidence to show that 

this metabolite can be produced through any other means. Respondent has not explained how or 

why any metabolized cocaine should be found in the liqueur itself; much less at the levels 

reported, which far exceed the cutoff levels for a confirmatory test and which were not found by 

 13 One must also remember this was a SAMHSA certified laboratory and any biased conduct from the laboratory 

would surely jeopardize the laboratory’s certification if proven. It simply strains all credulity to think that the 

laboratory was biased against Respondent or somehow did not conduct the test as requested. 14 The evidence indicates that the first laboratory was requested to test the bottle’s contents for the presence of 

cocaine. See Judge’s Exh. B. Respondent provided no credible reason why the first laboratory’s testing would have 

failed to register the amount of cocaine/cocaine metabolite apparent in the second test results.

15 There are significant pre-existing custody and control problems with the liqueur bottle in the first instance as well. 

The bottle had been opened and in Respondent’s custody and control presumably from the time he tested positive 

until the time of the hearing.
21

the first laboratory. The presence of the human body-processed metabolite of cocaine in the 

liqueur bottle is puzzling and leads one to question the rebuttal effect of the second test results. 16 

Finally, even had there been some amount of cocaine or coca leaf in the liqueur, 

Respondent would have had to produce preponderant evidence based on his claimed 

consumption of that product to explain the amount of cocaine metabolite found in his positive 

drug test.17 Respondent did not do so and has not offered sufficient evidence to explain the 

presence of cocaine metabolites in his November 30, 2012 drug test on the basis of his claimed 

consumption of Agwa de Bolivia liqueur.

As an affirmative defense, Respondent bore the burden to demonstrate the presence of 

cocaine in the liqueur in sufficient quantity to trigger the positive drug test. See 33 C.F.R. §

20.702(a). Respondent failed to do so despite being given months to have the liqueur tested 

(twice) and given almost three months to call a toxicology or biochemistry expert to support his 

affirmative defense.18

Additionally, Respondent attempted to explain the presence of cocaine metabolites in his 

urine sample by referring to the fact that cocaine residue can be found on paper money, which he 

handles as part of his job. See also Resp. Exh. K. The MRO acknowledged that dermal 

exposure to cocaine through the handling of paper money has been reported. Tr. at 119:16-23. 

Respondent did not, however, present any evidence as to the quantity of such exposure or how 

his particular handling of paper currency would have led to the levels reported in the positive test 

 16 Even the presence of non-decocanized coca leaves is questionable. Respondent argued that his particular bottle of 

Agwa de Bolivia predated the decocanized product. See Resp. Exhs. C, D, F. However, given 1) the custody and 

control issues surrounding the bottle and 2) the inconclusive date of production for the particular Agwa de Bolivia, 

the claims that the liqueur, as originally produced, contained non-decocanized coca leaves remain subject to some 

doubt.

17 Respondent attempted to explain the amount of cocaine metabolite found based on titration levels and generated a 

chart purporting to show the levels of cocaine from the liqueur over time (see Resp. Exh. G). Such explanations are 

not convincing and do not arise to a level sufficient to rebut the Coast Guard’s presumption of drug use. Respondent 

is not a trained toxicologist or biochemist and his calculations are subject to serious question despite his admirable 

efforts in asserting his defenses. Additionally, evidence indicating that the liqueur’s asserted cocaine contents (even 

assuming the integrity of the second test, disregarding the first results) would register a positive test based on 

Respondent’s admittedly rather limited consumption is not present. See Judge’s Exh. C; Tr. at 133:20-134:17.
22

of November 30, 2012. Respondent’s efforts on this front are simply too speculative and lacking 

in evidentiary foundation to rebut the presumption. Respondent’s affirmative defenses thus 

failed to counter the presumption of drug use based on the positive drug test.

IV. ULTIMATE FINDINGS OF FACT AND CONCLUSIONS OF LAW

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

jurisdiction of the United States Coast Guard in accordance with 46 U.S.C. § 

7704(c), 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 Credential and was such a holder at the time of the November 30, 2012 

drug test. 

3. On November 30, 2012, Respondent took a pre-employment drug test required 

under Coast Guard regulations at 46 C.F.R. Part 16. 

4. The drug test was collected and analyzed using D.O.T.-mandated procedures 

that complied with 49 C.F.R. Part 40.

5. Respondent’s urine sample tested positive for cocaine metabolites. 

6. Respondent did not successfully rebut the Coast Guard’s prima facie case by 

showing that the test was not conducted in accordance with the procedures at 46 

C.F.R. Part 16 or 49 C.F.R. Part 40; or by showing there was an alternative 

medical explanation for the positive test; or by showing that the drug use was not 

wrongful or unknowing. 

7. Respondent has been shown to be a user of, or addicted to the use of, dangerous 

drugs under 46 U.S.C. § 7704(c). 

8. Respondent has not provided satisfactory proof that he is cured as required by 

46 U.S.C. § 7704(c).

8. The allegations in the Coast Guard’s Complaint are therefore found PROVED.

V. SANCTION

Under Coast Guard procedural rules, the judge must include any appropriate order in the 

disposition of the case. 33 C.F.R. § 20.902(a)(2). Here, the Coast Guard has proposed an order 

of revocation. Having found the Coast Guard’s allegations against Respondent proved, I must 

enter an order against Respondent. Title 46 U.S.C. § 7704(c) requires revocation of a 

 18 The hearing ended on March 26, 2013 and the record was closed on June 20, 2013.
23

respondent’s credentials unless satisfactory proof of cure is provided. Likewise, 46 C.F.R. § 

5.59 requires revocation in this matter. Respondent has provided no evidence of cure and 

accordingly, I find revocation of any and all of Respondent’s Coast Guard-issued credentials is 

required.

WHEREFORE:

ORDER

IT IS HEREBY ORDERED THAT Judge’s Exhibits A, B, and C are ADMITTED into 

evidence.

IT IS HEREBY FURTHER ORDERED THAT the allegations in the Complaint are found 

PROVED and Respondent thereby violated 46 U.S.C. § 7704(c) as evidenced through the drug 

test of November 30, 2012 that tested positive for cocaine metabolites.

IT IS HEREBY FURTHER ORDERED THAT all of Respondent Mark William Mowery’s 

Coast Guard-issued credentials are REVOKED.

IT IS HEREBY FURTHER ORDERED THAT Respondent immediately surrender any and 

all of his Coast Guard-issued credentials to the Coast Guard’s Investigating Officer.

PLEASE TAKE NOTICE that service of this Decision and Order on the parties serves as 

notice of appeal rights set forth in 33 C.F.R. § 20.1001 – 20.1004, a copy of which can be found 

in Attachment C.

SO ORDERED.

/s/ Parlen L. McKenna

Hon. Parlen L. McKenna

US Coast Guard Administrative Law Judge

Date: October 29, 2013
24

Attachment A – List of Witnesses and Exhibits

Coast Guard Witnesses

1. Heather Lynn Spurlock, Maritime Consortium, Inc. 

2. Eric Jason Goodman, Electra Cruises, Inc.

3. Heather Gunther, Office Manager, Electra Cruises, Inc.

4. Dr. James M. Vanderploeg, Medical Review Officer

5. Dr. Jasbir Singh, Chief of Clinical Chemistry and Toxicology, Minneapolis Veterans 

Affairs Medical Center

6. Ted Johnson, Director of Operations, Quest Diagnostics

Respondent Witnesses

1. Mark William Mowery

Coast Guard Exhibits

1. Copy of Respondent’s Merchant Mariner Credential

2. Maritime Consortium, Inc. notification to U.S. Coast Guard of positive drug test

3. Respondent’s pay stubs from Electra Cruises, Inc.

4. Letter of Warning issued to Electra Cruises, Inc. by the U.S. Coast Guard

5. Maritime Consortium, Inc.’s membership report for Respondent

6. Maritime Consortium Statement issued to Electra Cruises

7. Maritime Consortium letter of December 4, 2012 notifying Electra Cruises of 

Respondent’s positive drug test

8. Maritime Consortium letter of December 10, 2012 notifying Electra Cruises of 

Respondent’s positive drug test for the split sample

9. Training certificate for Nancy G. Simon

10. C.V. of Ted Johnson

11. Litigation package from Quest Diagnostics

12. C.V. of Jasbir Singh

13. Qualifications of Minneapolis Veterans Affairs Medical Center Certifying Scientist

14. Minneapolis Veterans Affairs Medical Center litigation package

15. C.V. of James Vanderploeg

16. Quest Diagnostics Lab Report to MRO

17. MRO notification of positive test to Maritime Consortium, Inc.

18. Minneapolis Vesterans Affairs Medical Center’s notification to MRO regarding testing of 

split sample

19. MRO notification of positive split sample result to Maritime Consortium, Inc.

20. MRO Verification Worksheet

21. Custody and Control Form

22. Respondent’s negative pre-employment drug test given on 11/22/2012

Respondent Exhibits

A. Website printout from the Maritime Consortium, Inc.

B. Add/delete form from the Maritime Consortium, Inc.

C. 3/25/13 email from distributor of liqueur
25

D. Agwa de Bolivia website homepage

E. Bottle of partially consumed Agwa de Bolivia (not retained)

F. Agwa de Bolivia website printout

G. Chart of asserted metabolite titration

H. Portion of Drug Testing Book

I. Copy of Respondent’s Maritime Consortium, Inc.’s membership card

J. C.V. of Richard Parent

K. Article printed from CNN Health News regarding traces of cocaine on U.S. paper money

Judge’s Exhibits

A. Respondent’s Drug Test Results from March 28, 2013

B. E-mail with Attachments from Respondent to Judge McKenna’s Attorney-Advisor and 

Paralegal and the Coast Guard’s Investigating Officers dated June 10, 2013

C. E-mail with Attachment from Respondent to Judge McKenna’s Attorney-Advisor and 

Paralegal and the Coast Guard’s Investigating Officers date June 26, 2013
26

Attachment B – Rulings on Proposed Findings of Fact and Conclusions of Law

Coast Guard Proposed Findings of Fact

1. The Respondent, Mark William Mowery, and the subject matter of this proceeding 

are within the jurisdiction of the U.S. Coast Guard vested under the authority of 46 

U.S.C. Chapter 77.

RULING: Accepted and Incorporated.

2. On 30 November 2012, the Respondent was a holder of Coast Guard issued MMC 

000119867. [CG Exhibit 01]

RULING: Accepted and Incorporated.

3. The Respondent was removed from Electra Cruise’s random drug testing program on 

9 May 2013. [CG Exhibit 05]

RULING: Accepted and Incorporated.

4. On 19 November 2012, Electra Cruises ordered a test for the Respondent to add him 

into their [drug testing] program. [CG Exhibit 06]

RULING: Accepted and Incorporated as Modified.

5. On 30 November 201[2], the Respondent submitted to a pre-employment drug test 

conducted in accordance with 46 C.F.R. Part 16. [CG Exhibit 21]

RULING: Accepted and Incorporated as Modified.

6. On 30 November 201[2], the Respondent’s urine specimen was collected by a trained 

and experienced human urine specimen collector at Operational Health Services. 

Prior to providing the specimen, the Respondent placed his signature on a Federal 

Drug Testing Custody and Control Form along with his date of birth, date of the test 

and telephone number. The Respondent’s specimen was assigned Specimen ID 

Number 5136556, a unique identifying number specific to his urine specimen. The 

collector followed all applicable Department of Transportation procedures set forth in 

49 C.F.R. Part 40 in collecting the urine specimen of the Respondent. [CG Exhibits 

09, 21]

RULING: Accepted and Incorporated as Modified.

7. A courier employed by Quest Diagnostics picked up the samples and transported 

them directly to the Quest facility in West Hills, CA on 01 December 2012 for 

testing. Quest Diagnostics is a laboratory certified by SAMHSA and approved by the 

Department of Transportation to conduct chemical testing. [CG Exhibit 11]

RULING: Accepted and Incorporated.

8. The Respondent’s urine specimen (Specimen ID Number 5136556) tested positive for 

cocaine metabolites. [CG Exhibits 2, 5, 7, 8, 11, 14, 20] 
27

RULING: Accepted and Incorporated.

9. At the Respondent’s request, a split specimen was forwarded to a second SAMHSA 

certified, Department of Transportation approved laboratory, Minneapolis Veterans 

Affair Hospital in Minneapolis, MN. The ensuing split specimen analysis 

reconfirmed the Respondent’s positive test result for cocaine metabolites. [CG 

Exhibit 14]

RULING: Accepted and Incorporated.

10. The Medical Review Officer (MRO), Dr. James Vanderploeg, reviewed the results 

from both labs and personally interviewed the Respondent. Based on his thorough 

review of the documentation forwarded to him by the labs and his interview with the 

Respondent, the MRO found no credible medical or other excuse for the 

Respondent’s urine sample to have tested positive for cocaine metabolites. The MRO 

also found no flaws or irregularities in the laboratory documentation he reviewed. 

[Exhibit CG 16-21]

RULING: Accepted and Incorporated.

11. Based on the testimony of the MRO, the positive test results were verified in 

accordance with 49 C.F.R. Part 40. [TR 98-113, 120]

RULING: Accepted and Incorporated.

12. The Respondent admitted to all jurisdictional and factual allegations during the 

administrative hearing which occurred in Long Beach, California 26 March 2013. 

[Transcript (TR) 9-10] 

RULING: Accepted and Incorporated.

13. Based on the un-rebutted finding that the Respondent is a user of dangerous drugs, 

the only sanction available to the Administrative Law Judge in this matter is 

revocation under 46 U.S.C. 7704(c).

RULING: Accepted and Incorporated. Pursuant to the mandates of 46 U.S.C. § 7704(c) –

revocation was required as Respondent has not demonstrated cure.

Coast Guard Proposed Conclusions of Law

1. The admission to all jurisdictional and factual allegations, along with the 

uncontroverted evidence provided by the Coast Guard, establishes the presumption 

that the Respondent is a user of dangerous drugs.

RULING: Accepted and Incorporated in Part and Rejected in Part. The Coast Guard 

established the presumption of Respondent’s dangerous drug use or addiction to a 

dangerous drug for the reasons given in this Decision and Order. However, Respondent 

did not admit to all factual allegations.
28

2. There was no valid medical explanation for the positive test result and the 

Respondent failed to provide evidence to rebut this presumption.

RULING: Accepted and Incorporated.
29

Attachment C – Appeal Rights

33 C.F.R. Part 20, 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 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 each 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 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—
30

(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 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 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 may file more than one appellate brief or reply brief, unless—

(1) The party has petitioned the Commandant in writing; and

(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.

§ 20.1004 Decisions on appeal.

(a) The Commandant shall review the record on appeal to determine whether the ALJ 

committed error in the proceedings, and whether the Commandant should affirm, modify, 

or reverse the ALJ's decision or should remand the case for further proceedings.

(b) The Commandant shall issue a decision on every appeal in writing and shall serve a 

copy of the decision on each party and interested person.