Administrative law judge rejects USCG license revocation action based on positive marijuana test result due to failure to randomly select in accordance with regulation 46 CFR Part 16. The circumstances, reported in an American Maritime Safety case summary, were as follows:
In USCG V. Terrell, No. 2013-0076 (September 6, 2013), Administrative Law Judge Bruce Tucker Smith rejected the United States Coast Guard's request for the revocation of USCG-issued Merchant Mariner's License (MML) notwithstanding the uncontested fact that the mariner had tested positive for marijuana in a employer-directed "random" test. ALJ Tucker's rationale for rejecting the license revocation was that the random selection of the mariner had not been conducted in accordance with 46 CFR Part 16.
Respondent J. Carwin Terrell was employed by Kathryn Rae Towing as a Captain aboard the M/V Shelley. The company directed Captain Terrell to submit to a urine specimen collection for drug testing purposes in order to satisfy its USCG-mandated random testing requirement.
Based on testimony from the certified specimen collector, ALJ Smith determined that urine specimen attributed to Captain Terrell was, in fact, is. In addition, based on the testimony of the Medical Review Officer and the Laboratory Director, ALJ Smith determined that Captain Terrell's urine specimen had tested positive for marijuana. Nevertheless, ALJ Smith also found that Kathryn Rae Towing had failed to comply with its obligation to randomly select its crewmembers for testing by using a "scientifically valid method." 46 CFR Section 16.230.
The employer's Safety Director customarily used a random number generator to create a list of employees to be randomly tested. On the date in question, however, the Safety Director decided to supplement the list by testing additional personnel who happened to be working on the same vessels as those employees who had been selected. Specifically, the Safety Director testified that he had instructed the collection agent: "in addition to [testing] the people that were named ... whoever else was on the boat that was not on the list, just go ahead and do a random test on them also."
ALJ Smith found that Captain Terrell was not one of the individuals who had been randomly selected by the employer's random number generator but, rather, his selection was a result of the Safety Director's "personal intervention in the process." Consequently, the Coast Guard failed to establish that the test was conducted in accordance with 46 CFR Part 16.
ALJ Smith rejected the Coast Guard's argument that the marine employer's actions were "a good faith effort to follow the regulations," stating that the applicable regulations "make no provision for 'good faith' efforts as excusing noncompliance."
AMS' vessel-based random selection process is subject to annual audits by the United States Coast Guard, which has found the AMS process to be in compliance with 46 CFR Section 16.230.
For a copy of the USCG v. Terrell decision readers are invited to contact: [email protected]
