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Electronic Code of Federal Regulations

e-CFR Data is current as of July 24, 2014

Title 46: Shipping


PART 5—MARINE INVESTIGATION REGULATIONS—PERSONNEL ACTION


Contents

Subpart A—Purpose

§5.3   Purpose of regulations.
§5.5   Purpose of administrative actions.

Subpart B—Definitions

§5.11   Officer in Charge, Marine Inspection.
§5.15   Investigating Officer.
§5.19   Administrative Law Judge.
§5.27   Misconduct.
§5.29   Negligence.
§5.31   Incompetence.
§5.33   Violation of law or regulation.
§5.35   Conviction for a dangerous drug law violation, use of, or addiction to the use of dangerous drugs.
§5.40   Credential and merchant mariner credential.

Subpart C—Statement of Policy and Interpretation

§5.51   Construction of regulations.
§5.55   Time limitations for service of a complaint.
§5.57   Acting under authority of Coast Guard credential or endorsement.
§5.59   Offenses for which revocation of credentials or endorsements is mandatory.
§5.61   Acts or offenses for which revocation of credentials is sought.
§5.65   Commandant's decisions in appeal or review cases.
§5.67   Physician-patient privilege.
§5.69   Evidence of criminal liability.
§5.71   Maritime labor disputes.

Subpart D—Investigations

§5.101   Conduct of investigations.
§5.103   Powers of investigating officer.
§5.105   Course of action available.
§5.107   Service of complaints.

Subpart E—Deposit or Surrender of Coast Guard Credential or Endorsement

§5.201   Voluntary deposits in event of mental or physical incompetence.
§5.203   Voluntary surrender to avoid hearing.
§5.205   Return or issuance of a credential or endorsement.

Subpart F—Subpoenas

§5.301   Issuance of subpoenas.
§5.303   Service of subpoenas on behalf of the respondent.
§5.305   Quashing a subpoena.
§5.307   Enforcement.
§5.309   Proof of service.

Subpart G—Witness Fees

§5.401   Payment of witness fees and allowances.

Subpart H—Hearings

§5.501   General.
§5.521   Verification of credential or endorsement.
§5.567   Order.
§5.569   Selection of an appropriate order.

Subpart I [Reserved]

Subpart J—Appeals

§5.701   Appeals in general.
§5.707   Stay of effect of decision and order of Administrative Law Judge on appeal to the Commandant; temporary credential or endorsement.
§5.713   Appeals to the National Transportation Safety Board.
§5.715   Stay of effect of Decision of the Commandant on Appeal: Temporary credential and/or endorsement pending appeal to National Transportation Safety Board.

Subpart K—Review of Administrative Law Judge's Decisions in Cases Where Charges Have Been Found Proved

§5.801   Commandant's review.
§5.803   Record for decision on review.
§5.805   Action on review.
§5.807   Commandant's Decision on Review.

Subpart L—Issuance of New Credential or Endorsement After Revocation or Surrender

§5.901   Time limitations.
§5.903   Application procedures.
§5.905   Commandant's decision on application.

Authority: 46 U.S.C. 2103, 7101, 7301, 7701; Department of Homeland Security Delegation No. 0170.1.

Source: CGD 82-002, 50 FR 32184, Aug. 9, 1985, unless otherwise noted.

Subpart A—Purpose

§5.3   Purpose of regulations.

The regulations in this part establish policies for administrative actions against mariners' credentials or endorsements issued by the Coast Guard.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-1998-3472, 64 FR 28075, May 24, 1999; USCG-2006-24371, 74 FR 11214, Mar. 16, 2009]

§5.5   Purpose of administrative actions.

The administrative actions against a license, certificate, merchant mariner credential, endorsement, or document are remedial and not penal in nature. These actions are intended to help maintain standards for competence and conduct essential to the promotion of safety at sea.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11214, Mar. 16, 2009]

Subpart B—Definitions

§5.11   Officer in Charge, Marine Inspection.

Officer in Charge, Marine Inspection (OCMI) for the purposes of part 5 means the officer or individual so designated at one of the Regional Examination Centers, or any person so designated by the Commandant.

[USCG-2006-25535, 71 FR 48482, Aug. 21, 2006]

§5.15   Investigating Officer.

An investigating officer is a Coast Guard official designated by the Commandant, a District Commander, or the Officer in Charge, Marine Inspection, for the purpose of conducting investigations of marine casualties or matters pertaining to the conduct of persons applying for or holding merchant mariner's documents, licenses, certificates or credentials issued by the Coast Guard. An Officer in Charge, Marine Inspection is an investigating officer without further designation.

[USCG-2006-25535, 71 FR 48482, Aug. 21, 2006]

§5.19   Administrative Law Judge.

(a) An Administrative Law Judge shall mean any person designated by the Commandant pursuant to the Administrative Procedure Act (5 U.S.C. 556(b) for the purpose of conducting hearings arising under 46 U.S.C. 7703 or 7704.

(b) The Commandant has delegated to Administrative Law Judges the authority to admonish, suspend, with or without probation, or revoke a credential or endorsement issued to a person by the Coast Guard under any navigation or shipping law.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2004-18884, 69 FR 58341, Sept. 30, 2004; USCG-2006-24371, 74 FR 11214, Mar. 16, 2009]

§5.27   Misconduct.

Misconduct is human behavior which violates some formal, duly established rule. Such rules are found in, among other places, statutes, regulations, the common law, the general maritime law, a ship's regulation or order, or shipping articles and similar sources. It is an act which is forbidden or a failure to do that which is required.

§5.29   Negligence.

Negligence is the commission of an act which a reasonable and prudent person of the same station, under the same circumstances, would not commit, or the failure to perform an act which a reasonable and prudent person of the same station, under the same circumstances, would not fail to perform.

§5.31   Incompetence.

Incompetence is the inability on the part of a person to perform required duties, whether due to professional deficiencies, physical disability, mental incapacity, or any combination thereof.

§5.33   Violation of law or regulation.

Where the proceeding is based exclusively on that part of title 46 U.S.C. section 7703, which provides as a basis for suspension or revocation, a violation or failure to comply with 46 U.S.C. subtitle II, a regulation prescribed under that subtitle, or any other law or regulation intended to promote marine safety or protect navigable waters, the complaint must state the specific statute or regulation by title and section number, and the particular manner in which it was allegedly violated.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-1998-3472, 64 FR 28075, May 24, 1999; USCG-2004-18884, 69 FR 58342, Sept. 30, 2004]

§5.35   Conviction for a dangerous drug law violation, use of, or addiction to the use of dangerous drugs.

Where the proceeding is based exclusively on the provisions of title 46, U.S.C. 7704, the complaint will allege conviction for a dangerous drug law violation or use of dangerous drugs or addiction to the use of dangerous drugs, depending upon the circumstances and will allege jurisdiction by stating the elements as required by title 46, U.S.C. 7704, and the approximate time and place of the offense.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-1998-3472, 64 FR 28075, May 24, 1999]

§5.40   Credential and merchant mariner credential.

Credential means any or all of the following:

(1) Merchant mariner's document.

(2) Merchant mariner's license.

(3) STCW endorsement.

(4) Certificate of registry.

(5) Merchant mariner credential.

Merchant mariner credential or MMC means the credential issued by the Coast Guard under 46 CFR part 10. It combines the individual merchant mariner's document, license, and certificate of registry enumerated in 46 U.S.C. subtitle II part E as well as the STCW endorsement into a single credential that serves as the mariner's qualification document, certificate of identification, and certificate of service.

[USCG-2006-24371, 74 FR 11214, Mar. 16, 2009]

Subpart C—Statement of Policy and Interpretation

§5.51   Construction of regulations.

The regulations in this part shall be construed so as to obtain a just, speedy, and economical determination of the issues presented.

§5.55   Time limitations for service of a complaint.

(a) The time limitations for service of a complaint upon the holder of a credential are as follows:

(1) When based exclusively on 46 U.S.C. 7704, service shall be within 10 years after the date of conviction, or at anytime if the person charged is a user of or addicted to the use of a dangerous drug.

(2) For one of the misconduct offenses specified in §5.59(a) or §5.61(a), service shall be within five years after commission of the offense alleged therein.

(3) For an act or offense not otherwise provided for, the service shall be within three years after the commission of the act or offense alleged therein.

(b) When computing the period of time specified in paragraphs (a) (2) and (3) of this section there shall be excluded any period or periods of time when the respondent could not attend a hearing or be served charges by reason of being outside of the United States or by reason of being in prison or hospitalized.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-1998-3472, 64 FR 28075, May 24, 1999; USCG-2006-24371, 74 FR 11214, Mar. 16, 2009]

§5.57   Acting under authority of Coast Guard credential or endorsement.

(a) A person employed in the service of a vessel is considered to be acting under the authority of a credential or endorsement when the holding of such credential or endorsement is:

(1) Required by law or regulation; or

(2) Required by an employer as a condition for employment.

(b) A person is considered to be acting under the authority of the credential or endorsement while engaged in official matters regarding the credential or endorsement. This includes, but is not limited to, such acts as applying for renewal, taking examinations for raises of grade, requesting duplicate or replacement credentials, or when appearing at a hearing under this part.

(c) A person does not cease to act under the authority of a credential or endorsement while on authorized or unauthorized shore leave from the vessel.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11214, Mar. 16, 2009]

§5.59   Offenses for which revocation of credentials or endorsements is mandatory.

An Administrative Law Judge enters an order revoking a respondent's credential or endorsement when—

(a) A charge of misconduct for wrongful possession, use, sale, or association with dangerous drugs is found proved. In those cases involving marijuana, the Administrative Law Judge may enter an order less than revocation when satisfied that the use, possession or association, was the result of experimentation by the respondent and that the respondent has submitted satisfactory evidence that he or she is cured of such use and that the possession or association will not recur.

(b) The respondent has been a user of, or addicted to the use of, a dangerous drug, or has been convicted for a violation of the dangerous drug laws, whether or not further court action is pending, and such charge is found proved. A conviction becomes final when no issue of law or fact determinative of the respondent's guilt remains to be decided.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.61   Acts or offenses for which revocation of credentials is sought.

(a) An investigating officer seeks revocation of a respondent's credential or endorsements when one of the following acts or offenses is found proved:

(1) Assault with a dangerous weapon.

(2) Misconduct resulting in loss of life or serious injury.

(3) Rape or sexual molestation.

(4) Murder or attempted murder.

(5) Mutiny.

(6) Perversion.

(7) Sabotage.

(8) Smuggling of aliens.

(9) Incompetence.

(10) Interference with master, ship's officers, or government officials in performance of official duties.

(11) Wrongful destruction of ship's property.

(b) An investigating officer may seek revocation of a respondent's credential or endorsements when the circumstances of an act or offense found proved or consideration of the respondent's prior record indicates that permitting such person to serve under the credential or endorsements would be clearly a threat to the safety of life or property, or detrimental to good discipline.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.65   Commandant's decisions in appeal or review cases.

The decisions of the Commandant in cases of appeal or review of decisions of Administrative Law Judges are officially noticed and the principles and policies enunciated therein are binding upon all Administrative Law Judges, unless they are modified or rejected by competent authority.

§5.67   Physician-patient privilege.

For the purpose of these proceedings, the physician-patient privilege does not exist between a physician and a respondent.

§5.69   Evidence of criminal liability.

Evidence of criminal liability discovered during an investigation or hearing conducted pursuant to this part will be referred to the Attorney General's local representative or other appropriate law enforcement authority having jurisdiction over the matter.

§5.71   Maritime labor disputes.

Under no circumstances will the Coast Guard exercise its authority for the purpose of favoring any party to a maritime labor controversy. However, if the situation affecting the safety of the vessel or persons on board is presented, the matter shall be thoroughly investigated and when a violation of existing statutes or regulations is indicated, appropriate action will be taken.

Subpart D—Investigations

§5.101   Conduct of investigations.

(a) Investigations may be initiated in any case in which it appears that there are reasonable grounds to believe that the holder of a credential or endorsement issued by the Coast Guard may have:

(1) Committed an act of incompetency, misconduct, or negligence while acting under the authority of a credential or endorsement;

(2) Violated or failed to comply with subtitle II of title 46, U.S.C., a regulation prescribed under this subtitle, or any other law or regulations intended to promote marine safety or to protect the navigable waters, while acting under the authority of a credential or endorsement;

(3) Been convicted of a dangerous drug law violation, or has been a user of, or addicted to the use of, a dangerous drug, so as to be subject to the provisions of 46 U.S.C. 7704.

(b) In order to promote full disclosure and facilitate determinations as to the cause of marine casualties, no admission made by a person during an investigation under this part or part 4 of this title may be used against that person in a proceeding under this part, except for impeachment.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.103   Powers of investigating officer.

During an investigation, the investigating officer may administer oaths, issue subpoenas in accordance with subpart F of this title, and require persons having knowledge of the subject matter of the investigation to answer questions.

§5.105   Course of action available.

During an investigation, the investigating officer may take appropriate action as follows:

(a) Issue complaint.

(b) Accept voluntary surrender of a credential or endorsement.

(c) Accept voluntary deposit of a credential or endorsement.

(d) Refer the case to others for further action. The investigating officer may refer the case to the Commandant or to an Officer in Charge, Marine Inspection, at any port for completion of administrative action if an adequate basis for action is found and the person under investigation and/or witnesses are not locally available.

(e) Give a written warning. The investigating officer may give a warning to any person holding a credential or endorsement. Refusal to accept the written warning will normally result in a withdrawal of the warning and the preferral of charges. An unrejected warning will become a part of the person's record.

(f) Close the case.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-1998-3472, 64 FR 28075, May 24, 1999; USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.107   Service of complaints.

(a) When the investigating officer determines that an S&R proceeding is appropriate, he or she shall prepare and serve a complaint in accordance with 33 CFR part 20.

(b) When the investigating officer serves the complaint, he or she shall also advise the respondent—

(1) Of the nature of S&R proceedings and their possible results;

(2) Of the right to be represented at the hearing by another person, who may, but need not, be a lawyer;

(3) Of the right to obtain witnesses, records, and other evidence by subpoena; and

(4) That failure or refusal to answer the complaint or to appear at the time, date, and place specified for the hearing may result in a finding of default, which will constitute an admission of the facts alleged in the complaint and the waiver of his or her right to a hearing.

[USCG-1998-3472, 64 FR 28075, May 24, 1999]

Subpart E—Deposit or Surrender of Coast Guard Credential or Endorsement

§5.201   Voluntary deposits in event of mental or physical incompetence.

(a) A holder may deposit a credential or endorsement with the Coast Guard in any case where there is evidence of mental or physical incompetence. A voluntary deposit is accepted on the basis of a written agreement, the original of which will be given to the holder, which specifies the conditions upon which the Coast Guard will return the credential or endorsement to the holder.

(b) Where the mental or physical incompetence of a holder of a credential or endorsement is caused by use of or addiction to dangerous drugs, a voluntary deposit will only be accepted contingent on the following circumstances:

(1) The holder is enrolled in a bona fide drug abuse rehabilitation program;

(2) The holder's incompetence did not cause or contribute to a marine casualty,

(3) The incompetence was reported to the Coast Guard by the individual or any other person and was not discovered as a result of a Federal, State or local government investigation; and

(4) The holder has not voluntarily deposited or surrendered a credential or endorsement, or had a credential or endorsement revoked for a drug related offense on a prior occasion.

(c) Where the mental or physical incompetence of a holder of a credential or endorsement is caused by use or addiction to alcohol, a voluntary deposit will only be accepted contingent on the following circumstances:

(1) The holder is enrolled in a bona fide alcohol abuse rehabilitation program;

(2) The holder's incompetence did not cause or contribute to a marine casualty; and

(3) The incompetence was reported to the Coast Guard by the individual or any other person and was not discovered as a result of a Federal, State, or local government investigation.

(d) Where the conditions of paragraphs (b) and (c) of this section are not met, the holder may only surrender such credential or endorsement in accordance with §5.203.

[CGD 84-099, 52 FR 47535, Dec. 14, 1987, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.203   Voluntary surrender to avoid hearing.

(a) Any holder may surrender a credential or endorsement to the Coast Guard in preference to appearing at a hearing.

(b) A holder voluntarily surrendering a credential or endorsement shall sign a written statement containing the stipulations that:

(1) The surrender is made voluntarily in preference to appearing at a hearing;

(2) All rights to the credential or endorsement surrendered are permanently relinquished; and,

(3) Any rights with respect to a hearing are waived.

(c) A voluntary surrender of a credential or endorsement to an investigating officer in preference to appearing at a hearing is not to be accepted by an investigating officer unless the investigating officer is convinced that the holder fully realizes the effect of such surrender.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.205   Return or issuance of a credential or endorsement.

(a) A person may request the return of a voluntarily deposited credential or endorsement at any time, provided he or she can demonstrate a satisfactory rehabilitation or cure of the condition which caused the incompetence; has complied with any other conditions of the written agreement executed at the time of deposit; and complies with the physical and professional requirements for issuance of a credential or endorsement.

(b) Where the voluntary deposit is based on incompetence due to drug abuse, the deposit agreement shall provide that the credential or endorsement will not be returned until the person:

(1) Successfully completes a bona fide drug abuse rehabilitation program;

(2) Demonstrates complete non-association with dangerous drugs for a minimum of six months after completion of the rehabilitation program; and

(3) Is actively participating in a bona fide drug abuse monitoring program.

(c) Where the voluntary deposit is based on incompetence due to alcohol abuse, the deposit agreement shall provide that the credential or endorsement will not be returned until the person:

(1) Successfully completes a bona fide alcohol abuse rehabilitation program; and

(2) Is actively participating in a bona fide alcohol abuse monitoring program.

(d) The voluntary surrender of a credential or endorsement is the equivalent of revocation of such papers. A holder who voluntarily surrenders a credential or endorsement must comply with provisions of §§5.901 and 5.903 when applying for the issuance of a new credential or endorsement.

[CGD 84-099, 52 FR 47535, Dec. 14, 1987, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

Subpart F—Subpoenas

§5.301   Issuance of subpoenas.

(a) Every subpoena shall command the person to whom it is directed to appear at a specified time and place to give testimony or to produce books, papers, documents, or any other evidence, which shall be described with such particularity as necessary to identify what is desired.

(b) The investigating officer may issue subpoenas for the attendance of witnesses or for the production of books, papers, documents, or any other relevant evidence needed by the investigating officer or by the respondent.

(c) After charges have been served upon the respondent the Administrative Law Judge may, either on the Administrative Law Judge's own motion or the motion of the investigating officer or respondent, issue subpoenas for the attendance and the giving of testimony by witnesses or for the production of books, papers, documents, or any other relevant evidence.

§5.303   Service of subpoenas on behalf of the respondent.

Service of subpoenas issued on behalf of the respondent is the responsibility of the respondent. However, if the Administrative Law Judge finds that the respondent or respondent's counsel is physically unable to effect the service, despite diligent and bona fide attempts to do so, and if the Administrative Law Judge further finds that the existing impediment to the service of the subpoena is peculiarly within the authority of the Coast Guard to overcome, the Administrative Law Judge will have the subpoena delivered to an investigating officer participating in the case for the purpose of effecting service.

§5.305   Quashing a subpoena.

Any person subpoenaed to appear to produce evidence at a hearing may request that the subpoena be quashed or modified using the procedures in 33 CFR 20.609.

[USCG-1998-3472, 64 FR 28075, May 24, 1999]

§5.307   Enforcement.

Upon application and for good cause shown, or upon its own initiative, the Coast Guard will seek judicial enforcement of subpoenas issued by investigating officers or Administrative Law Judges. This is done by making application to the United States District Court, through the office of the appropriate U.S. Attorney, to issue an order compelling the attendance of, and/or giving of testimony by, witnesses, or for the production of books, papers, documents, or any other relevant evidence.

§5.309   Proof of service.

(a) The person serving a subpoena shall make a written statement setting forth the date, time and manner of service and shall return such report with or on a copy of the subpoena to the investigating officer or Administrative Law Judge who issued it. In case of failure to make service of a subpoena, the person assigned to serve such subpoena shall make a written statement setting forth the reasons the subpoena was not served. The statement should be placed on the subpoena or attached to it and returned to the investigating office or Administrative Law Judge who issued the subpoena.

(b) When service of a subpoena is made by certified mail with return receipt to be signed by the addressee only, the person mailing the subpoena shall make a written statement on a copy of the subpoena or attached to it, setting forth the date, time and location of the post office where mailed, the post office number assigned thereto. If delivered, the receipt requested shall be returned, by the person receiving the receipt, to the investigating officer or Administrative Law Judge who issued the subpoena. In case the subpoena is not delivered, any information reported by the post office regarding non-delivery shall be given to the investigating officer or Administrative Law Judge who issued the subpoena.

Subpart G—Witness Fees

§5.401   Payment of witness fees and allowances.

(a) Duly subpoenaed witnesses, other than Federal government employees, may apply for payment of their attendance as witnesses at an investigation or hearing conducted pursuant to this part by submitting a request for payment (Standard Form 1157) accompanied by any necessary receipts.

(b) Fees and allowances will be paid as provided by 28 U.S.C. 1821, except that a person called to testify as an expert witness may be paid a higher fee to be fixed by the District Commander.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985; 50 FR 35228, Aug. 30, 1985]

Subpart H—Hearings

§5.501   General.

A hearing concerning the suspension or revocation of a merchant mariner's credential or endorsement is a formal adjudication under the Administrative Procedure Act (APA) (5 U.S.C. 551, et seq.). It is presided over by, and conducted under the exclusive control of, an ALJ in accordance with applicable requirements in the APA, the rules in this part, and the rules of administrative practice at 33 CFR part 20. The ALJ shall regulate and conduct the hearing so as to bring out all the relevant and material facts and to ensure a fair and impartial hearing.

[USCG-1998-3472, 64 FR 28075, May 24, 1999, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.521   Verification of credential or endorsement.

(a) The Administrative Law Judge shall require the respondent to produce and present at the opening of the hearing, and on each day the hearing is in session thereafter, all valid credentials issued by the Coast Guard to the respondent. In the event that the respondent alleges that credential has been lost, misplaced, stolen, destroyed, or is otherwise beyond his ability to produce, the respondent shall execute a lost document affidavit (Form CG-4363). The Administrative Law Judge shall warn the respondent that a willful misstatement of any material item in such affidavit is punishable as a violation of a Federal criminal statute. (See 18 U.S.C. 1001).

(b) When a hearing is continued or delayed, the Administrative Law Judge returns the credential to the respondent: unless a prima facie case has been established that the respondent committed an act or offense which shows that the respondent's service on a vessel would constitute a definite danger to public health, interest or safety at sea.

[CGD82-002, 50 FR 32184, Aug. 9, 1985, as amended by CGD 97-057, 62 FR 51042, Sept. 30, 1997; USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.567   Order.

(a) The Administrative Law Judge enters an order which recites the disposition of the case. When the finding is not proved, the Administrative Law Judge issues an order dismissing the proceeding with or without prejudice to refile. When the finding is proved, the Administrative Law Judge may order an admonition, suspension with or without probation, or revocation.

(b) The order is directed against all credentials or endorsements, except that in cases of negligence or professional incompetence, the order is made applicable to specific credentials or endorsements. If the Administrative Law Judge determines that the respondent is professionally incompetent in the grade of the license, certificate or document held, but is considered competent in a lower grade, the credential or endorsement may be revoked and the issuance of one of a lower grade ordered.

(c) An order must specify whether the credential or endorsement affected is:

(1) Revoked;

(2) Suspended outright for a specified period after surrender;

(3) Suspended for a specified period, but placed on probation for a specific period; or

(4) Suspended outright for a specified period, followed by a specified period of suspension on probation.

(d) The order will normally state, that the credential or endorsement is to be surrendered to the Coast Guard immediately, if the order is one of revocation or includes a period of outright suspension. In cases involving special circumstances, the order may provide for surrender on a certain date.

(e) The time of any period of outright suspension ordered does not commence until the credential or endorsement is surrendered to the Coast Guard. The time of any period of suspension on probation begins at the end of any period of outright suspension or the effective date of the order if there is no outright suspension.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-1998-3472, 64 FR 28075, May 24, 1999; USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.569   Selection of an appropriate order.

(a) This section addresses orders in a general manner. The selection of an appropriate order is the responsibility of the Administrative Law Judge, subject to appeal and review. The investigating officer and the respondent may suggest an order and present argument in support of this suggestion during the presentation of aggravating or mitigating evidence.

(b) Except for acts or offenses for which revocation is mandatory, factors which may affect the order include:

(1) Remedial actions which have been undertaken independently by the respondent;

(2) Prior record of the respondent, considering the period of time between prior acts and the act or offense for which presently charged is relevant; and

(3) Evidence of mitigation or aggravation.

(c) After an order of revocation is entered, the respondent will be given an opportunity to present relevant material on the record for subsequent consideration by the special board convened in the event an application is filed in accordance with subpart L of this part.

(d) Table 5.569 is for the information and guidance of Administrative Law Judges and is intended to promote uniformity in orders rendered. This table should not affect the fair and impartial adjudication of each case on its individual facts and merits. The orders are expressed by a range, in months of outright suspension, considered appropriate for the particular act or offense prior to considering matters in mitigation or aggravation. For instance, without considering other factors, a period of two to four months outright suspension is considered appropriate for failure to obey a master's written instructions. An order within the range would not be considered excessive. Mitigating or aggravating factors may make an order greater or less than the given range appropriate. Orders for repeat offenders will ordinarily be greater than those specified.

Table 5.569—Suggested Range of an Appropriate Order

Type of offenseRange of order (in months)
Misconduct:
Failure to obey master's/ship officer's order1-3.
Failure to comply with U.S. law or regulations1-3.
Possession of intoxicating liquor1-4.
Failure to obey master's written instruction2-4.
Improper performance of duties related to vessel safety2-5.
Failure to join vessel (required crew member)2-6.
Violent acts against other persons (without injury)2-6.
Failure to perform duties related to vessel safety3-6.
Theft3-6.
Violent acts against other persons (injury)4-Revocation.
Use, possession, or sale of dangerous drugsRevocation (Note: see §5.59).
Negligence:
Negligently performing duties related to vessel navigation2-6.
Negligently performing non-navigational duties related to vessel safety1-3.
Neglect of vessel navigation duties3-6.
Neglect of non-navigational safety related duties2-4.
IncompetenceThe only proper order for a charge of incompetence found proved is revocation.
Violation of Regulation:
Refusal to take chemical drug test12-24
Refusal to take required alcohol test12-24
Dangerous drugs (46 U.S.C. 7704)The only proper order for a charge under 46 U.S.C. 7704 found proved is revocation.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by CGD 86-067, 53 FR 47079, Nov. 21, 1989; USCG-2000-7759, 66 FR 42967, Aug. 16, 2001]

Subpart I [Reserved]

Subpart J—Appeals

§5.701   Appeals in general.

A party may appeal the decision of an ALJ under the procedures in subpart J of 33 CFR part 20. A party may appeal only the following issues:

(a) Whether each finding of fact rests on substantial evidence.

(b) Whether each conclusion of law accords with applicable law, precedent, and public policy.

(c) Whether the ALJ committed any abuses of discretion.

(d) The ALJ's denial of a motion for his or her disqualification.

[USCG-1998-3472, 64 FR 28075, May 24, 1999]

§5.707   Stay of effect of decision and order of Administrative Law Judge on appeal to the Commandant; temporary credential or endorsement.

(a) A person who has appealed from a decision suspending outright or revoking a credential or endorsement, except for revocation resulting from an offense enumerated in §5.59, may file a written request for a temporary credential or endorsement. This request must be submitted to the Administrative Law Judge who presided over the case, or to any Officer in Charge, Marine Inspection for forwarding to the Administrative Law Judge.

(b) Action on the request is taken by the ALJ unless the hearing transcript has been forwarded to the Commandant, in which case, the Commandant will make the final action.

(c) A determination as to the request will take into consideration whether the service of the individual is compatible with the requirements for safety at sea and consistent with applicable laws. If one of the offenses enumerated in §5.61(a) has been found proved, the continued service of the appellant will be presumed not compatible with safety at sea, subject to rebuttal by the appellant. A temporary credential or endorsement may be denied for that reason alone.

(d) All temporary credentials or endorsements will provide that they expire not more than six months after issuance or upon service of the Commandant's decision on appeal, whichever occurs first. If a temporary credential or endorsement expires before the Commandant's decision is rendered, it may be renewed, if authorized by the Commandant.

(e) If the request for a temporary credential or endorsement is denied by the Administrative Law Judge, the individual may appeal the denial, in writing, to the Commandant within 30 days after notification of such denial. Any decision by the Commandant to deny is the final agency action.

(f) Copies of the temporary credential issued become a part of the record on appeal.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2004-18884, 69 FR 58342, Sept. 30, 2004; USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.713   Appeals to the National Transportation Safety Board.

(a) The rules of procedure for appeals to the National Transportation Safety Board from decisions of the Commandant, U.S. Coast Guard, affirming orders of suspension or revocation of credentials or endorsements are in 49 CFR part 825. These rules give the party adversely affected by the Commandant's decision 10 days after service upon him or his attorney of the Commandant's decision to file a notice of appeal with the Board.

(b) In all cases under this part which are appealed to the National Transportation Safety Board under 49 CFR part 825, the Chief Counsel of the Coast Guard is designated as the representative of the Commandant for service of notices and appearances. Communications should be addressed to Commandant (CG-094), Attn: Judge Advocate General (JAG) and Chief Counsel, U.S. Coast Guard Stop 7213, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7213.

(c) In cases before the National Transportation Safety Board the Chief Counsel of the Coast Guard may be represented by others designated of counsel.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009; USCG-2009-0702, 74 FR 49224, Sept. 25, 2009; USCG-2013-0671, 78 FR 60144, Sept. 30, 2013]

§5.715   Stay of effect of Decision of the Commandant on Appeal: Temporary credential and/or endorsement pending appeal to National Transportation Safety Board.

(a) A Decision of the Commandant on Appeal affirming an order of revocation, except a revocation resulting from an offense enumerated under §5.59 or suspension that is not placed entirely on probation, which is appealed to the National Transportation Safety Board, may be stayed if, in the Commandant's opinion, the service of the appellant on board a vessel at that time or for the indefinite future would be compatible with the requirements of safety at sea and consistent with applicable laws. If one of the offenses enumerated in §5.61(a) has been found proved, the continued service of the appellant will be presumed not compatible with safety at sea, subject to rebuttal by the appellant; in cases of offenses under §5.61(a), a temporary credential and/or endorsement may be denied for that reason alone.

(b) A stay of the effect of the Decision of the Commandant on Appeal may be granted by the Commandant upon application by the respondent filed with the notice served on the Commandant under 49 CFR 825.5(b).

(c) An Officer in Charge, Marine Inspection, on presentation of an original stay order, issues a temporary credential and/or endorsement as specified in the stay order. This credential and/or endorsement is effective for not more than six months, renewable until such time as the National Transportation Safety Board has completed its review.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

Subpart K—Review of Administrative Law Judge's Decisions in Cases Where Charges Have Been Found Proved

§5.801   Commandant's review.

Any decision of an Administrative Law Judge, in which there has been a finding of proved, may be called up for review by the Commandant without procedural formality.

§5.803   Record for decision on review.

The transcript of the hearing, together with all papers and exhibits filed, shall constitute the record for consideration and review.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2004-18884, 69 FR 58342, Sept. 30, 2004]

§5.805   Action on review.

(a) The Commandant may adopt, in whole or in part, the findings, conclusions, and basis therefor stated by the Administrative Law Judge, may make entirely new findings on the record, or may remand the case to the Administrative Law Judge for further proceedings.

(b) In no case will the review by the Commandant be followed by any order increasing the severity of the Administrative Law Judge's original order.

(c) The Decision of the Commandant on Review, shall be the final agency action in the absence of a remand.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2004-18884, 69 FR 58342, Sept. 30, 2004]

§5.807   Commandant's Decision on Review.

The Commandant's Decisions on Review are available for reading purposes at Coast Guard Headquarters, at Offices of District Commanders, Sector Offices and Marine Inspection Offices. (See 33 CFR subpart 1.10.)

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended byUSCG-2006-25556, 72 FR 36330, July 2, 2007]

Subpart L—Issuance of New Credential or Endorsement After Revocation or Surrender

§5.901   Time limitations.

(a) Any person whose credential or endorsement has been revoked or surrendered for one or more of the offenses described in §5.59 and §5.61(a) may, three years after compliance with the Administrative Law Judge's decision and order or the date of voluntary surrender, apply for the issuance of a new credential or endorsement.

(b) The three year time period may be waived by the Commandant upon a showing by the individual that, since the occurrence upon which the revocation or surrender was based, the individual has demonstrated his good character in the community for a period exceeding three years.

(c) Any person whose credential or endorsement has been revoked or surrendered for one or more offenses which are not specifically described in §§5.59 or 5.61(a) may, after one year, apply for the issuance of a new credential or endorsement.

(d) For a person whose credential or endorsement has been revoked or surrendered for the wrongful simple possession or use of dangerous drugs, the three year time period may be waived by the Commandant upon a showing that the individual:

(1) Has successfully completed a bona fide drug abuse rehabilitation program;

(2) Has demonstrated complete non-association with dangerous drugs for a minimum of one year following completion of the rehabilitation program and;

(3) Is actively participating in a bona fide drug abuse monitoring program.

(e) For a person whose credential or endorsement has been revoked or surrendered for offenses related to alcohol abuse, the waiting period may be waived by the Commandant upon a showing that the individual has successfully completed a bona fide alcohol abuse rehabilitation program and is actively participating in a bona fide alcohol abuse monitoring program.

(f) The waivers specified under subparagraphs (d) or (e) of this section may only be granted once to each person.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by CGD 84-099, 52 FR 47535, Dec. 14, 1987; USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]

§5.903   Application procedures.

(a) An application form for a new credential or endorsement may be obtained from any Officer in Charge, Marine Inspection.

(b) The completed application and letter must be addressed to the Commandant (CG-094), Attn: Judge Advocate General (JAG) and Chief Counsel, U.S. Coast Guard Stop 7213, 2703 Martin Luther King Jr. Avenue SE., Washington, DC 20593-7213, and must be delivered in person to the nearest Officer in Charge, Marine Inspection.

(c) The letter is an informal request for the issuance of a new credential or endorsement and should include the following:

(1) A letter from each employer during the last three years attesting to the individual's work record;

(2) Information supportive of rehabilitation or cure when the credential or endorsement was revoked because of incompetency or association with dangerous drugs; and

(3) Any other information which may be helpful in arriving at a determination in the matter.

(d) The Officer in Charge, Marine Inspection, forwards the letter and application, together with an evaluation and recommendation, to the Commandant.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009; USCG-2009-0702, 74 FR 49224, Sept. 25, 2009; USCG-2013-0671, 78 FR 60144, Sept. 30, 2013]

§5.905   Commandant's decision on application.

(a) The applicant's letter and application form, as well as the evaluation and recommendation, are referred to a special board appointed by the Commandant. The board examines all the material submitted with the application and such other information as may, in the judgment of the board, be considered appropriate. The board shall submit its findings and recommendation to the Commandant.

(b) The Commandant shall determine whether or not a new credential or endorsement will be issued. The applicant will be notified by letter of such determination.

[CGD 82-002, 50 FR 32184, Aug. 9, 1985, as amended by USCG-2006-24371, 74 FR 11215, Mar. 16, 2009]



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