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e-CFR data is current as of October 27, 2020

Title 46Chapter ISubchapter APart 5 → Subpart H


Title 46: Shipping
PART 5—MARINE INVESTIGATION REGULATIONS—PERSONNEL ACTION


Subpart H—Hearings


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

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§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]

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§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.

[CGD 82-002, 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]

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§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]

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§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]

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