Non-Negative Drug Test Result in the Maritime Industry

… US Coast Guard Drug & Alcohol Testing Policy – Positive Test Consequences … Consequences of a Non-Negative Drug Test Result in the Maritime Industry

You own a Consortium/Third Party Administrator (C/TPA) company and have some clients that fall under the US Coast Guard chemical testing regulations (46 Code of Federal Regulations (CFR) Parts 4. 5, and 16.).  All the crewmembers that are actively working on those vessels in commercial service are enrolled in the drug test program, including those that hold a credential and those that do not hold a credential.

Normally those crewmembers that are required to hold a credential are those that fill a position as listed on the Certificate of Inspection (COI).  Those positions normally affect the safe operation and navigation of a commercial vessel.

There are other crewmembers on some vessels that normally do not hold a credential, e.g., cook(s), wait staff, card dealers on casino boats, etc.  On smaller charter boats, some of the short-order cooks may be considered safety-sensitive and eligible to be enrolled in a testing program.  There is no hard and fast rule on this and is considered to be at the discretion of the vessel master (owner).  It is recommended that these personnel be enrolled in the drug test program.  Not to enroll them could be a liability issue in the event of an incident., an example would be a man overboard scenario.  In this instance the crewmember could state that he is not in a safety-sensitive position and not toss a life ring over the side to help the person to stay afloat.  This may sound far-fetched but could happen.

During the course of the enrollment in the program, there are some non-negative tests for random, pre-employment and some reasonable cause tests.  The controlled substances that were tested were marijuana and cocaine.   Then there was a couple substituted and adulterated tests along with a test refusal (i.e., failed to report to the collection site in a timely manner).  All of these test results are reportable to Coast Guard.  At the present time, marine employers are required to report to the Officer in Charge Marine Investigations (OCMI) all positive tests on credentialed mariners.  Marine employers can report to the OCMI, non-negative test results on non-credentialed mariners that are employed by them.

As expected when there is use of a controlled substance with a positive drug test as evidence there are consequences that accompany that behavior.  The consequences will vary by the credential status of the mariner but the first consequence is removal from all safety-sensitive positions that affect the safe operation of the vessel.

If the result is adulterated or a substituted test result, the consequences are the same for a for a positive drug test.  If the mariner refuses to take the drug test as directed by the marine employer, that is also a test violation and with removal from all safety-sensitive positions.  It makes no difference is the mariner holds a credential or does not hold a credential.  The consequences are the same in all instances as per regulation.

It is the decision of the employer to make regarding continued employment in a non-safety-sensitive position.  Some employers may find a place to employ mariners and others may not.

Are there other consequences and what are they?

Consequences for credentialed mariners: As has been previously stated, the marine employer is obligated to report a drug test violation to the OCMI.  At that point several things will occur.

1. The Investigating Officer (IO) assigned to the case will review the letter that informed the OCMI of the test violation.  That letter at a minimum should include the following information: Name of the mariner; Mariner identification number Date of the test; Test result Name and address of the Substance Abuse Mental Health Services Administration (SAMHSA) Accredited laboratory that performed the analysis, Name contact information of the Medical Review Officer (MRO); andFederal Chain of Custody Form (CCF) number.
2. After review by the IO of the letter and the accompanying Federal CCF (not required to be sent but will be requested by the IO. The IO will then request other documents to be sent to facilitate the investigation.  This may include but is not limited to the MRO with documentation that the MRO is a qualified MRO.  A copy of the Federal CCF Copy 2 signed by the MRO will be requested from the MRO.  The other important documentation that will be obtained is for the collection site and the collector.  The collector whose name and signature appears on the CCF will be requested to submit documentation that they were Department of Transportation (DOT) qualified. The IO can also request documentation of any collector retraining.  All requested documents should be handled expedient manner.
3. That does not complete the document request by the IO.  The IO can also request the 49 CFR part 40.25 drug and alcohol history check from the marine employer.  That should be provide forthwith for review.  If there is a prior drug test violation, then the IO can request documentation from the Substance Abuse Professional (SAP) in regards to completion of the SAP recommendations.  This can include all Return-to-Duty and Follow-Up drug tests.
4.  There are the potential consequences involved with providing the requested documentation.  If the collector is not DOT qualified and they collected the specimen, that can leave the collection facility and the collector open to a Public Interest Exclusion (PIE) charge, something that no collection facility would welcome.
5. If there was a previous non-negative test for the mariner and the SAP did not do proper follow up, the SAP can face a potential PIE case.  A proper follow up would be to ensure that the all the Follow-Up tests were done as required.  If they were not done, is there SAP documentation was to why the tests were not conducted as required by the SAP.  No documentation as to why the tests were not conducted could potentially lead to a PIE case.
6. If the SAP has the documentation and the DOT regulated employer did not do the tests as required by the SAP, then the employer would be liable.  If the employee did not do the tests as required, then what action did the employer take and furthermore, is the employee still employed?  These are all consequences and ramifications of not having a fully compliant program.

The consequences for a non-credentialed crewmember are as listed:

1. Removal from all safety-sensitive positions.  Future employment status to be determined by the employer but most likely will be employment termination.
2. There is no required report to the IO but it is recommended that one be done. There have been instances where a crewmember did have a credential but did not disclose that fact to the marine employer.  The same letter format can be used as for a credentialed crewmember to make this report.
3. The IO will make a check of the National Maritime Center (NMC) database to verify if this crewmember has had a previous drug test violation.  During this process, any entry will be made and this crewmember will be put into the NMC database with the reason why this entry is being made.  The record will then be locked by NMC.
4. Locking of the record will prevent the non-credentialed mariner from obtaining a credential until the requirements to unlock the record have been met.
5. To unlock the record, the crewmember will have to complete a drug rehabilitation program.  Proof of that completion can be presented to NMC.  The IO can present that evidence and request that they record.to be unlocked.
6. The non-credentialed crewmember will have to complete the requirements of the SAP in order to go back to work.

There is are some additional requirements that apply to both credentialed and non-credentialed crewmembers.  These requirements are embodied in 46 CFR Part 16.201 (e) and (f) as shown below:

(e) An individual who has failed a required chemical test for dangerous drugs may not be re-employed aboard a vessel until the requirements of paragraph (f) of this section and 46 CFR Part 5, if applicable, have been satisfied.

(f) Before an individual who has failed a required chemical test for dangerous drugs may return to work aboard a vessel, 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. In addition, the individual must agree to be subject to increased unannounced testing—

(1) For a minimum of six (6) tests in the first year after the individual returns to work as required in 49 CFR part 40; and

(2) For any additional period as determined by the MRO up to a total of 60 months.

To correctly interpret the above the word “individual” applies to all crewmembers credentialed and non-credentialed.

The MRO role in this process is very simple but yet the MRO has to do a letter for the individual.  To do this letter, the MRO will usually have their requirements that have to be met prior to doing this letter.

The following sentence is very applicable in this regards: “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.”

The applicability of this sentence is highly important!  There is implicit on the MRO tremendous liability when this sentence is used unless certain precautions and requirements are taken.  Generally, most MROs will require that the SAP requirements be met and will refer the mariner to see the SAP.  Usually, it will be the SAP that has the marine employer referred the individual to see.

The MRO will want to see that the initial requirements of the SAP have been successfully completed and usually have a discussion with the SAP prior to doing the letter.

Then there is the requirement for the six tests which have to be met. These tests can be done concurrently with the SAP ordered tests with a test meeting both the SAP and regulatory requirements.

When the MRO feels comfortable with the SAP requirements having been met, then the MRO will do the letter.  The bottom line is that the addiction needs of the individual have been addressed and there is a low risk to use controlled substances in the future.

IMPORTANT: There have been instances where mariners have gone on their own to get treatment at their own expense without consulting with the MRO or the SAP first.  Oftentimes what happens is that the MRO will not accept that treatment program as the treatment program did not meet the addiction needs of the individual.

Suspension and Revocation Process of a Mariner’s Credential

The consequences for a credentialed mariner with a verified non-negative test result can have a far reaching impact.  These impacts can range at a minimum removal from safety-sensitive employment to loss of the credential.  All of these will have an impact on the ability earn money.  DOT and USCG drug testing regulations are very important to the credentialed mariner.

What happens and how the consequences occur when a credentialed mariner as a non-negative test result is a long process.  This process has many steps and has the involvement of many people, including the employer, the Investigating Officer (IO), an Administrative Law Judge (ALJ), the Medical Review Officer (MRO), lawyers and can include the SAP along with other service agents.

This article will review the many different processes that will or can take place to relieve a mariner of their hard earned credential.

A question that needs to answered is “Exactly what is a credential?”  A credential is a license that is issued to an individual who has demonstrated proficiency doing certain maritime skills.  This is demonstrated by taking an exam, sea time documentation, and passing a physical examination that have certain standards in there to be met in order to be qualified to work on a vessel in commercial service.

A credential will enable a mariner to work in certain positons or to be a vessel master on inspected and uninspected vessels in commercial service. One of the benefits of having a credential is that the holder of a credential can command a higher salary and benefits versus a non-credential mariner.

Another article will discuss the different types of credentials along with the standards that are in place to obtain and hold a credential.

A credentialed mariner had a drug test violation.  The mariner had a verified test result of adulterated.  This report is conveyed to the marine employer by the MRO.  (It may be transmitted by a Consortium/Third Party Administrator (C/TPA) only if the employer has given agreement for transmission of drug tests to be reported by the C/TPA (Reference 49 CFR 40.165 and 40.345).

The marine employer upon receipt of this information has three regulatory requirements:

1. Immediate removal of the mariner from all safety-sensitive positions. (NOTE: If the mariner is on board a vessel in transit to another port of call, the mariner is to be removed from their safety-sensitive position but may be given duties that are not safety-sensitive.  Upon arrival at the next port, the mariner will be removed and replaced with a qualified mariner.
2. Give the name and contact information of the Substance Abuse Professional (SAP) to the mariner. (NOTE: It is recommended that a notation be made in the employment record that the individual was given the name and contact information of the SAP annotating the date and time that this information was conveyed to the mariner.)
3. Give the name and credential identification number of the mariner to the area Officer in Charge Marine Investigations (OCMI).  This information may be conveyed by telephone but preferable be done as written correspondence using the format as outlined in the previous article.

The OCMI will assign the case for investigation to an Investigating Officer (IO).  Sometimes that may be the same individual.

As stated in the previous article, after review by the IO of the letter and the accompanying Federal CCF, the IO will then request other documents to be sent to facilitate the investigation.  This may include but is not limited to the MRO with documentation that the MRO is a qualified MRO.  A copy of the Federal CCF Copy 2 signed by the MRO will be requested from the MRO.  The other important documentation that will be obtained is for the collection site and the collector.  The collector whose name and signature appears on the CCF will be requested to submit documentation that they were Department of Transportation (DOT) qualified. The IO can also request documentation of any collector retraining.  All requested documents should be handled expedient manner.

When the review of the requested paperwork and the documentation is considered complete, the IO will notify the mariner and request that the mariner come to the office to discuss the drug test result.  An appointment will be set for this meeting to take place.  The mariner will be advised to bring their credential with them to this meeting.

The IO will arrange for the meeting as soon as possible and to take place at the office for the IO.   At the meeting the IO will request the credential from the mariner and verify that it is genuine.  The credential will remain in possession of the IO.

The IO will explain that the mariner will be charged with Misconduct in accordance with 46 CFR Part 5.  The charge will be specific and will state that the reason is adulteration of the specimen submitted by the mariner. The IO may have to explain what is meant by the term “Adulteration”.

The IO will explain the charge and potential consequences.  Part of the consequences will include having to see the Administrative Law Judge (ALJ).  Other parts of the consequences will depend on how the mariner pleads to the charge of the drug test violation.  The evidence (documentation) will be presented to the mariner showing the lab result of adulteration and the MRO verified test result.

The IO will explain to the mariner that if the mariner pleads guilty to the charge, the mariner will be offered a Settlement Agreement where the Credential can be returned to the mariner in about 16 – 18 months.  The terms of the Settlement Agreement are explained to the mariner at this time. The mariner does not have to accept the Settlement Agreement at this time.

The IO will further explain that the mariner can deny the charge and contest the charge in a hearing held by the ALJ.  The mariner is advised that an attorney and other experts can be retained, all at the mariner’s expense.  The mariner is further advised that if the case cannot be proved to the satisfaction of the ALJ, then there is a potential of losing the credential for life.

The choice is offered to the mariner, sign the Settlement Agreement or see the ALJ and prove that the test result was in error, that the lab made a mistake and this was not the mariners urine specimen that was analyzed.

The mariner is informed that he can see an attorney before making their decision.  The attorney can be the choice of the mariner but if an attorney is retained it will be at the expense of the mariner.

The mariner decides to consult with an attorney before making a decision.  The mariner sees an attorney and relates to the attorney what the IO told him.  The mariner takes the advice of the attorney and thinks about what can happen or a path to follow.

The mariner realizes that it too late to get specimen B tested as more than 72 hours have elapsed since the MRO did the interview and he was informed of the right to have the specimen Bottle B tested.

The mariner is now faced with two choices.  The first choice to accept the terms of the Settlement Agreement and hopefully have the Credential returned in the time frame of 18 months.  The other choice is to deny the test result and try to prove that the specimen and test result did not belong to the mariner.

Options to Mariners Testing Positive

The consequences remain the same and will range at a minimum removal from safety-sensitive employment to loss of the credential.  Not a pleasant prospect that the mariner will face besides not having the ability to earn money in their chosen profession.

Option 1:

The mariner elects to contest the test result.  He hires an attorney at his expense to advice and to assist in the hearing before the Administrative Law Judge (ALJ).

The Mariner notifies the Investigating Officer (IO) of intent to contest the test result and argue the case in front of an ALJ. The IO documents this request along with the name of the attorney who will be representing the mariner.  The IO will notify the area ALJ to have the case put on the hearing calendar.  The IO will then review all the documentation to ensure that all is in order and will consult with the Suspension and Revocation National Center of Expertise (S&R NCOE) to discuss the case with the attorneys in that office.

The S&R NCOE requests copies of all the documentation to review.  At the same time, the Medical Review Officer (MRO) and the collection facility are contacted to notify them of the pending hearing.  The Consortium/Third Party Administrator (C/TPA) is also notified that this case will be going to a hearing. Subpoenas are issued by the Coast Guard IO to all parties that are expected to testify on behalf of the Coast Guard.

The attorney representing the defendant is preparing a case to prove that the mariner is not guilty of the charge.  He requests copies of all the documentation that the Coast Guard has in their possession.  The IO makes copies of the documentation with this documentation being given to the attorney. This is known as Discovery with both sides exchanging information so there are no surprises – last minute witnesses or pieces of evidence.

The Coast Guard will also request all discoverable evidence from the attorney to which the attorney complies with this request. This includes the litigation package received from the laboratory if requested by the defense.

The attorney is most likely looking for the laboratory litigation package but the Coast Guard has not requested that package.  It will be up to the attorney to order that package if it is felt necessary to the defense. These packages are expensive and the Coast Guard is no longer requesting these but is depending upon the testimony of the laboratory Certifying Scientist (CS) and the MRO help prove the case against the mariner.

The attorney subpoenas the laboratory requesting an aliquot of the specimen for DNA analysis and for a repeat analysis.  The laboratory in a written reply to the request informs that attorney that the request cannot be honored for the following reasons:

1. The specimen in question was collected using a Federal Chain of Custody Form (CCF) in accordance with Federal regulations, therefor the specimen is controlled by DOT and DOT regulations.
2. The specimen cannot be subdivided for a DNA analysis as DNA analysis is not permissible in accordance with the 49 CFR part 40.13 and 40.153.
3. A test of Bottle B or a retest of Bottle A cannot be conducted as only the MRO can order that testing and it has to be within 72 hours of the report that was given to the tested individual in accordance with the procedures given 49 CFR Part 40, Subpart H – Split Specimen Tests.

The attorney gets this report, researches and determines that the letter and rationale listed is indeed accurate.  He is still left with the burden of proving that his client’s specimen is not his but is somebody else’s specimen.

He makes a decision after consulting with his client to make a request to get a litigation package form the laboratory.  He outlines the pitfalls that it made not help the case but can help if the laboratory litigation package exposes a laboratory error.  That will entail more money and the use of a forensic toxicologist to consult and review the litigation package.  The client asks how much will all of that cost.  The attorney replies that the litigation package is approximately $500 to $1,000.  The forensic toxicologist has a fee of $1500 per day plus expenses.  The attorney further advises that the litigation package and the forensic toxicologist will not guarantee success in this case.  The mariner and the attorney discuss the issues some more with the mariner denying that he adulterated the specimen and thinks that the laboratory or the collection site got the specimen mixed up with another specimen. At the end the mariner reluctantly agrees to the additional charges.

The attorney reviews all the requested documentation including the Federal CCF with the final test result on it along with the collector qualifications and the MRO qualifications.  After a review of the litigation package and in consultation with the forensic toxicologist, it is determined that there are no “fatal” flaws with the test result.  There are a couple of minor flaws but no mix up of numbers or specimen mislabeling.

The attorney examines areas where the test result could possibly be overturned.  He examines the random section process and notification to the employee of the requirement to be tested on a random basis.  The mariner admits that he had no prior knowledge of having to take a random drug test.  The attorney examines the random selection process and finds that it was a random number generator as allowed by Coast Guard regulations.  The hearing date is drawing closer.

Both the IO and the attorney representing the mariner do last minute examination of their cases and decide that to go ahead with the case.

It should be noted that this is an administrative hearing only based upon the regulations or Administrative Law.  This is not a civil or criminal trial.  There are similarities with a ALJ Hearing as there is for a criminal or civil trial.  The primary difference is that any Constitutional issues that may be brought up are outside of the jurisdiction of an ALJ Hearing.  In the drug test cases there are normally no Constitutional issues that will be brought up.  If Constitutional law areas are brought up the defendant or the defendant’s attorney, those arguments will not be considered and they will be requested to take the case to Federal Court where issues involving Constitutional can be heard.

The case begins with testimony being presented by the Coast Guard.  The collector will testify along with the laboratory Certifying Scientist.  The MRO will also testify.  All parties will give testimony attesting to their credential and qualifications.  The Federal CCF Copies 1 and 2 will be admitted into evidence along with the MRO verified report of the laboratory analysis. The defense will have an opportunity to a cross examination of the Coast Guard witnesses and challenge the testimony as presented.

The defense is challenging that the specimen analysis was not the donor specimen.  The Copy 2 of the CCF is presented with the donor’s signature on it certifying that he did give the specimen and sis not adulterate or substitute the specimen.  The exact wording taken from Copy 2, Step 5, of the CCF is:

“I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner; each specimen bottle was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct.”

This is presented to the Defense attorney and will be challenged.  The attorney will go into the donor qualifications and challenge the collector on each step. The important step being the placement of the bottle labels on the specimen bottles and when did that occur. He will also challenge when did the Donor place their initials on the bottle labels.

NOTE:  If the labels were initialed while still affixed to the Federal CCF, an impression will remain and will be visible.  That has the potential to have the defense win the because of procedural error.  If this happens, then the collection site has consequences and can face a Public Interest Exclusion (PIE) charge.

Pictures of the specimen bottles with their labels are presented as evidence with the donor initials visible.  All of the CCF numbers match between the labels and the CCF.

In this case, the labels were signed as required and the challenge by the defense attorney is for naught.

Both the MRO and the Laboratory CS present their testimony which goes unchallenged.

The Defense is asked if they have any witnesses to present.  The defense presents the consulting Forensic Toxicologist as a witness to testify about reliability and quality control of the laboratory analytical procedures in an attempt to discredit the report.  The Forensic Toxicologist is requested to state for the record his credentials and qualifications.  The testimony is given by the forensic toxicologist and challenged by the Coast Guard and the CS.  The testimony given by the Coast Guard and the CS is that all procedures were performed in accordance with the Standard Operating Procedures (SOP) which was approved by the National Laboratory Certification Program (NLCP).

At this point both sides rest their cases and wait for the decision of the ALJ.

The decision does not take long to decide.  The ALJ rules in favor of the Coast Guard and the mariner is informed that his credential is permanently revoked as the mariner did not prove that his case to the satisfaction of the ALJ.

This decision can be appealed.  The first appeal step is to the Commandant of the Coast Guard.  The Commandant can uphold the decision or remand it for a new hearing.  That decision called Commandant’s Appeal on Decision (CDOA) can be appealed if the defendant does not like the decision of the Commandant.  The next appeal step is to present the case to the National Transportation Board (NTSB) ALJ’s for review. The case can be upheld or remanded for a new review and hearing by Coast Guard.  That decision can also be appealed.  The case can be appealed to a Federal Court.

SIDE NOTES:  I have not seen a case appealed beyond the CDOA stage.  The ALJ’s at NTSB hearing the cases against licensed FAA personnel.

Readers should note that if the mariner desires to work in the maritime industry as a non-credentialed mariner, the SAP requirement needs to be successfully completed and the requirement for the MRO letter to be obtained still remains. If the mariner wants to work in one of the other regulated transportation industries, the SAP requirements are required to be successfully completed.

Option 2:

The mariner chooses the Settlement Agreement path.  By electing this option, the mariner is admitting the submitted specimen was indeed a non-negative drug test and was positive for a controlled substance.  In many instances with an adulterated or substituted test result, the Settlement Agreement will not be offered as it can be interpreted as an attempt to as a deliberate act to try to “beat the test”.

The Investigating Officer (IO) after receiving the report of the non-negative drug test contacts the mariner and asks the mariner to pay him a visit at the IO’s office.  The IO relates to him why this request.is being made and requests that the mariner bring his credential.

The mariner shows up at the appointed time.  The test result is relayed to the mariner.  He admits that it is his test result with an explanation that he made a mistake and did smoke a little “weed”.  The mariner gives the IO the credential.

The IO explains the charge of misconduct to him and explains the consequences.  The first consequence is going to a hearing in front of the Administrative Law Judge (ALJ).  The IO explains what he would have to prove that it was not his test in front of the ALJ. The IO further explains that if he cannot prove his case to the ALJ, that the credential will be revoked.  The IO further explains the Settlement Agreement to the mariner and what those requirements are that have to be completed.  It is further explained that if any of the requirements are not successfully completed, that the credential will be revoked.  The mariner is informed that the ALJ has to sign the Settlement Agreement.

The mariner is told that the credential is revoked but the revocation is suspended pending successful completion of the conditions contained in the Settlement Agreement.  The mariner states that he understands and that the terms and conditions contained in the Settlement Agreement are to assist him in returning to the use of controlled substances and elects to pursue the Settlement Agreement route.

The terms and conditions in the Settlement Agreement are:

1. Sign the Settlement Agreement.
2. Within 30 days of signing the Settlement Agreement, enter a treatment program to get treatment for his addiction.  NOTE:  The treatment program should be one that is recommended by either the Medical Review Officer (MRO) or the Substance Abuse Professional (SAP).  The mariner should be advised by the IO to enroll in a treatment recommended by either the MRO or SAP. The treatment program can be in-patient or an out-patient program but it has to meet the addiction needs of the mariner.
3. Successfully complete the treatment program within 90 days.  If it cannot be completed within 90 days, inform the IO with an estimated date of completion.
4. Upon successful completion of the treatment program, inform the IO and enroll in an out-patient program like Alcoholics Anonymous (AA) or Narcotics Anonymous (NA).  Attendance is required with documentation to be presented to the IO showing weekly attendance at the out-patient program.  This attendance is required for 12 months.
5. Take and pass 12 randomized DOT/USCG drug tests.  NOTE: A Consortium/Third Party Administrator (C/TPA) or the MRO can assist in getting these tests accomplished.

It is incumbent upon the mariner to successfully complete all of the above tasks and to submit the completion documentation to the IO.

The Settlement Agreement meets the three criteria for treatment and which many MROs will want to see before issuing a letter to a mariner.  Those three criteria are:

1. Have an intake assessment by a qualified treatment or addiction specialist/counselor.
2. Enroll in a treatment program that meets the addiction needs of the individual.
3. Enroll and participate in an effective after care program.  The purpose of the aftercare program is to assist the individual change their lifestyle and environment to one that one that does not involve the use of controlled substances.

The status of the credential is considered revoked but the revocation is suspended.  If the mariner fails to successfully complete any of the above terms, the credential is permanently revoked.

While the mariner cannot work in a credentialed position on an inspected vessel until the credential has been approved by the ALJ to be returned, there is an option open to the mariner.

The option is that the mariner once they have completed in the initial treatment program, they can go to work on a vessel in commercial service in a position that does not require the holding of a credential.  There are requirements to be fulfilled for this to happen.  They are:

1. Fulfill the requirements of the SAP.
2. Take and pass a Return to Work drug test.
3. Obtain a letter from the MRO stating that they are drug-free and at a low risk to use drugs in the future.
4. Agree to be Follow-Up tested as required by the SAP.

The SAP required Follow-Up tests and the 12 tests as required by the Settlement Agreement can run concurrently with one test fulfilling both of the requirements.  NOTE:  I made this determination for the tests to count for both test purposes when I was the Coast Guard Program Manager.

The reasoning is that all of the tests are random or done on a randomized basis.  All of the tests have to be done in accordance with 49 CFR part 40 procedures.  All of the tests have to be negative.

Once all the requirements have been satisfied, reviewed by the IO and that all of the requirements meet what is stated in the Settlement Agreement, the whole package is submitted to the ALJ.

If the ALJ is satisfied that the mariner has met the requirements of the Settlement Agreement, the revocation order is lifted with the credential being returned to the mariner.

The mariner is informed that if there is another non-negative test result, the credential will be revoked.

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