46 Code of Federal Regulations Part
5
1992
PART 5-MARINE INVESTIGATION REGULATIONS-PERSONNEL
ACTION
Subpart A-Authority and Purpose
§ 5.1 Authority for
regulations.
§ 5.3 Purpose of regulations.
§ 5.5 Purpose of
administrative actions.
Subpart B-Definitions
§ 5.11 Commandant.
§ 5.13
Coast Guard District.
§ 5.15 Investigating Officer.
§ 5.19
Administrative Law Judge.
§ 5.23 Charge.
§ 5.25
Specification.
§ 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.
Subpart C-Statement of Policy and Interpretation
§ 5.51
Construction of regulations.
§ 5.53 Initiating suspension and revocation
proceedings.
§ 5.55 Time limitations for service of charges and
specifications.
§ 5.57 Acting under authority of license, certificate or
document.
§ 5.59 Offenses for which revocation of licenses, certificates
or documents is mandatory.
§ 5.61 Acts or offenses for which revocation
of licenses, certificates, or documents is sought.
§ 5.63 Standard of
proof.
§ 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 Preparation and service of charges
and specifications.
Subpart E-Deposit or Surrender of License, Certificate or Document
§ 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 license, certificate of registry, or merchant
mariners document.
Subpart F-Subpenas
§ 5.301 Issuance of
subpenas.
§ 5.303 Service of subpenas on behalf of the
respondent.
§ 5.305 Quashing a subpena.
§ 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.
§ 5.503
Record of the hearing.
§ 5.505 Public access to hearings.
§ 5.507
Disqualification of Administrative Law Judge.
§ 5.509 Opening the
hearing.
§ 5.511 Continuance of a hearing.
§ 5.513
Appearances.
§ 5.515 Failure of respondent to appear at hearing.
§
5.517 Witnesses excluded from hearing room.
§ 5.519 Rights of
respondent.
§ 5.521 Verification of license, certificate or
document.
§ 5.523 Motions or objections.
§ 5.525 Correction or
amendment of charges and/or specifications.
§ 5.527 Answer.
§
5.529 Opening statement of investigating officer.
§ 5.531 Opening
statement by or on behalf of the respondent.
§ 5.533 Presentation of case
where there is an admission or no contest answer.
§ 5.535
Witnesses.
§ 5.537 Evidence.
§ 5.539 Burden of proof.
§
5.541 Official notice by Commandant and Administrative Law Judge.
§
5.543 Certification of extracts from shipping articles, logbooks, etc.
§
5.545 Weight of entries from logbooks.
§ 5.547 Use of judgment of
conviction.
§ 5.549 Admissibility of respondent's Coast Guard records
prior to entry of findings and conclusions.
§ 5.551 Admissions by
respondent.
§ 5.553 Testimony by deposition.
§ 5.555
Treatises.
§ 5.557 Medical examination of respondent.
§ 5.559
Argument.
§ 5.561 Submission of proposed findings and
conclusions.
§ 5.563 Administrative Law Judge's findings and
conclusions.
§ 5.565 Submission of prior record and evidence in
aggravation or mitigation.
§ 5.567 Order.
§ 5.569 Selection of an
appropriate order.
§ 5.571 Delivery of decision.
§ 5.573
Notification of right to appeal.
§ 5.577 Modification of Administrative
Law Judge's decision and order.
Subpart I-Reopening of Hearings
§ 5.601 Petition to
reopen hearing.
§ 5.603 Procedures for submitting petition.
§
5.605 Action on petition.
§ 5.607 Appeal from action on petition.
Subpart J-Appeals
§ 5.701 Appeals in general.
§
5.703 Procedures for appeal.
§ 5.705 Action on appeal.
§ 5.707
Stay of effect of decision and order of Administrative Law Judge on appeal to
the Commandant; temporary license, certificate, or document.
§ 5.709
Appeal cases remanded for further proceedings.
§ 5.711 Commandant's
Decisions on Appeal.
§ 5.713 Appeals to the National Transportation
Safety Board.
§ 5.715 Stay of effect of Decision of the Commandant on
Appeal: Temporary document and/or license 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 Licenses, Certificates or Documents After
Revocation or Surrender
§ 5.901 Time limitations.
§
5.903 Application procedures.
§ 5.905 Commandant's decision on
application.
PART 5-MARINE INVESTIGATION REGULATIONS-PERSONNEL
ACTION
Authority: 46 U.S.C. 2103, 7101, 7301, 7701; 49 CFR
1.46.
Source: CGD 82-002, 50 FR 32184, Aug. 9, 1985, unless otherwise
noted.
Subpart A-Authority and Purpose
§ 5.1 Authority for
regulations.
(a) The basic authority governing administrative actions
against a person's license, certificate or document is set forth in title 46
U.S.C. chapter 77. The Administrative Procedure Act, title 5 U.S.C. section 551,
et seq., requires hearings held in conjunction with these administrative actions
to be presided over by an Administrative Law Judge.
(b) Title 46, U.S.C.,
section 7704 requires revocation of a license, certificate or document of any
person who has been shown at a hearing to be a user of or addicted to the use of
a dangerous drug or to have been convicted of violating a dangerous drug law of
the United States, District of Columbia, or any state or territory of the United
States.
§ 5.3 Purpose of regulations.
The regulations in this part
establish policies and procedures for administrative actions against mariners'
licenses, certificates or documents issued by the Coast Guard.
§ 5.5
Purpose of administrative actions.
The administrative actions against a
license, certification 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.
Subpart B-Definitions
§ 5.11 Commandant.
For the
purpose of this part, Commandant means the Commandant of the Coast Guard. In
subparts I, J, and K of this part, the term Commandant includes the Vice
Commandant of the Coast Guard acting on behalf of the Commandant in any
proceeding involving final agency action on a petition to reopen a hearing or an
appeal from a decision of an Administrative Law Judge not involving an order of
revocation.
§ 5.13 Coast Guard District.
A Coast Guard District is
a geographical area as described in 33 CFR part 3 which is under the command of
a Coast Guard officer designated by the Commandant as the Coast Guard District
Commander.
§ 5.15 Investigating Officer.
An investigating officer
is a Coast Guard official designated by the Commandant, 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 issued a license, certificate or document by the Coast Guard. An Officer
in Charge, Marine Inspection is an investigating officer without further
designation.
§ 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 license, certificate or document issued to
a person by the Coast Guard under any navigation or shipping law.
§ 5.23
Charge.
(a) A charge is the designation in general terms of an act or
offense within the purview of 46 U.S.C. 7703 or 7704. A charge must be supported
by one or more specifications. Under no circumstances does a charge constitute
evidence nor may any inference be drawn from the fact that the holder of a
license, certificate or document has been the subject of a charge.
(b) A
charge must be stated as one of the following:
(1) Misconduct;
(2)
Negligence;
(3) Incompetence;
(4) Violation of law or regulation;
(5) Conviction for a dangerous drug law violation, use of a dangerous drug,
or addiction to the use of dangerous drugs.
§ 5.25
Specification.
A specification sets forth the facts which form the basis
of a charge and enables the respondent to identify the act or offense so that a
defense can be prepared. Each specification shall state:
(a) Basis for
jurisdiction;
(b) Date and place of act, or offense; and
(c) The facts
constituting the alleged act or offense.
§ 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 charge shall be violation of law or violation of
regulation. The specification shall state the specific statute or regulation by
title and section number, and the particular manner in which it was allegedly
violated.
§ 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 charge will be
conviction for a dangerous drug law violation or use of dangerous drugs or
addiction to the use of dangerous drugs, depending upon the circumstances. The
specification 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.
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.
§ 5.53 Initiating suspension and revocation
proceedings.
Suspension and revocation proceedings are initiated upon
service of charges preferred by an investigating officer.
§ 5.55 Time
limitations for service of charges and specifications.
(a) The time
limitations for service of various charges and specifications upon the holder of
a license, certificate or document 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.
§ 5.57 Acting
under authority of license, certificate or document.
(a) A person
employed in the service of a vessel is considered to be acting under the
authority of a license, certificate or document when the holding of such
license, certificate or document 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 license, certificate or
document while engaged in official matters regarding the license, certificate or
document. This includes, but is not limited to, such acts as applying for
renewal of a license, taking examinations for upgrading or endorsements,
requesting duplicate or replacement licenses, certificates or documents, or when
appearing at a hearing under this part.
(c) A person does not cease to act
under the authority of a license, certificate or document while on authorized or
unauthorized shore leave from the vessel.
§ 5.59 Offenses for which
revocation of licenses, certificates or documents is mandatory.
An
Administrative Law Judge enters an order revoking a respondent's license,
certificate or document 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.
§ 5.61 Acts or offenses for which revocation of licenses,
certificates, or documents is sought.
(a) An investigating officer seeks
revocation of a respondent's license, certificate or document 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 license, certificate or document 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 license, certificate or
document would be clearly a threat to the safety of life or property, or
detrimental to good discipline.
§ 5.63 Standard of proof.
In
proceedings conducted pursuant to this part, findings must be supported by and
in accordance with the reliable, probative, and substantial evidence. By this is
meant evidence of such probative value as a reasonable, prudent and responsible
person is accustomed to rely upon when making decisions in important matters.
This includes admitted or no contest answers.
§ 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
license, certificate or document issued by the Coast Guard may have:
(1)
Committed an act of incompetency, misconduct, or negligence while acting under
the authority of a license, certificate or document;
(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
license, certificate or document;
(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.
§ 5.103 Powers of investigating
officer.
During an investigation, the investigating officer may
administer oaths, issue subpenas 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) Prefer charges.
(b) Accept voluntary surrender of a license,
certificate or document.
(c) Accept voluntary deposit of a license,
certificate or document.
(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
license, certificate or document. 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.
§ 5.107 Preparation and service of charges and
specifications.
(a) When preferring charges, the investigating officer
prepares charges and specifications, together with a notice of the time, date
and place of the hearing.
(b) The original of the charges and specifications
and the notice of the time, date and place of hearing are served upon the
respondent, either by personal service or certified mail, return receipt
requested; restricted delivery (receipt to be signed by the addressee only).
(c) Service will be made sufficiently in advance of the time set for the
hearing so as to give the respondent a reasonable opportunity to prepare a
defense.
(d) At the time of service, whether personal or by certified mail,
the respondent will also be advised with respect to:
(1) The nature of
suspension and revocation proceedings and the possible results thereof;
(2)
The right to have representation by counsel at the hearing, and that counsel may
be, but need not be, a lawyer;
(3) The right to have witnesses, records or
other evidence subpenaed and that
(4) Failure to appear at the time, date
and place specified may result in the hearing being in his absence.
(e) If
the alleged act involves mental incompetence, it is recommended to the
respondent, at the time of service of charges, that he procure counsel.
(f)
If the alleged act involves mental or physical incompetence, the respondent is
advised that evidence of medical examination may be submitted.
Subpart E-Deposit or Surrender of License, Certificate or
Document
§ 5.201 Voluntary deposits in event of mental or
physical incompetence.
(a) A holder may deposit a license, certificate,
or document 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 license,
certificate, or document to the holder.
(b) Where the mental or physical
incompetence of a holder of a license, certificate, or document 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 license,
certificate, or document, or had a license, certificate, or document revoked for
a drug related offense on a prior occasion.
(c) Where the mental or physical
incompetence of a holder of a license, certificate, or document 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 license, certificate, or document in
accordance with § 5.203.
[CGD 84-099, 52 FR 47535, Dec. 14,
1987]
§ 5.203 Voluntary surrender to avoid hearing.
(a) Any holder
may surrender a license, certificate or document to the Coast Guard in
preference to appearing at a hearing.
(b) A holder voluntarily surrendering
a license, certificate or document 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 license, certificate or
document surrendered are permanently relinquished; and,
(3) Any rights with
respect to a hearing are waived.
(c) A voluntary surrender of a license,
certificate or document 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.
§ 5.205 Return or issuance of a license, certificate of
registry, or merchant mariners document.
(a) A person may request the
return of a voluntarily deposited license, certificate, or document 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 license, certificate,
or document.
(b) Where the voluntary deposit is based on incompetence due to
drug abuse, the deposit agreement shall provide that the license, certificate,
or document 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 license, certificate, or document 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 license,
certificate, or document is the equivalent of revocation of such papers. A
holder who voluntarily surrenders a license, certificate, or document must
comply with provisions of § 5.901 and § 5.903 when applying for the issuance of
a new license, certificate, or document.
[CGD 84-099, 52 FR 47535, Dec.
14, 1987]
Subpart F-Subpenas
§ 5.301 Issuance of
subpenas.
(a) Every subpena 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 subpenas 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 subpenas 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 subpenas on behalf of the
respondent.
Service of subpenas 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 subpena is peculiarly within the authority of the Coast Guard to
overcome, the Administrative Law Judge will have the subpena delivered to an
investigating officer participating in the case for the purpose of effecting
service.
§ 5.305 Quashing a subpena.
(a) Persons subpenaed to
appear in person or produce evidence at a hearing may, prior to or during the
hearing, apply in writing to the Administrative Law Judge conducting the hearing
requesting that the subpena be quashed or modified.
(b) Upon receipt of any
application requesting quashing or modification of a subpena the Administrative
Law Judge notifies the party for whom the subpena was issued. The Administrative
Law Judge may quash or modify the subpena if it is unreasonable or requires
evidence not relevant to any matter in issue, or may deny the request.
§
5.307 Enforcement.
Upon application and for good cause shown, or upon its
own initiative, the Coast Guard will seek judicial enforcement of subpenas
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 subpena 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 subpena to the investigating officer or Administrative
Law Judge who issued it. In case of failure to make service of a subpena, the
person assigned to serve such subpena shall make a written statement setting
forth the reasons the subpena was not served. The statement should be placed on
the subpena or attached to it and returned to the investigating office or
Administrative Law Judge who issued the subpena.
(b) When service of a
subpena is made by certified mail with return receipt to be signed by the
addressee only, the person mailing the subpena shall make a written statement on
a copy of the subpena 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 subpena. In case the subpena 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
subpena.
Subpart G-Witness Fees
§ 5.401 Payment of witness fees
and allowances.
(a) Duly subpenaed 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) A hearing
in a suspension and revocation proceeding conducted under 46 U.S.C. chapter 77,
is the adjudication of the case. It is presided over and is conducted under the
exclusive control of an Administrative Law Judge in accordance with applicable
requirements in 5 U.S.C. 551, et seq. (Administrative Procedure Act), and the
regulations in this part. The Administrative Law Judge shall regulate and
conduct the hearing in such a manner so as to bring out all the relevant and
material facts, and to insure a fair and impartial hearing.
(b) The
Administrative Law Judge shall be governed by 5 U.S.C. 557(d)(1) of the
Administrative Procedure Act regarding ex parte communications relative to these
proceedings.
(c) With the consent of the investigating officer and
respondent, the Administrative Law Judge may hold a prehearing conference for
the settlement or simplification of the issues involved in the case. A
prehearing conference may be requested by the investigating officer, respondent,
or the Administrative Law Judge and is subject to the following provisions:
(1) The Administrative Law Judge sets the time and place for the conference,
or conference telephone call. The conference shall not be convened unless both
the investigating officer and the respondent or their authorized representative
are present.
(2) Admissions or statements made at a conference are not
admissible in evidence at a hearing for any reason.
(3) The Administrative
Law Judge, in his opening statement at the hearing, shall enter into the hearing
record the time, date, place, and persons present at any prehearing conference
held.
(4) If the investigating officer and the respondent agree at the
prehearing conference to stipulate to facts or amend the charge sheet, either
may introduce the stipulation at the hearing which, upon the consent of the
other, will become a part of the hearing record.
(d) The procedures below
are usually followed:
(1) Administrative Law Judge's opening statement.
(2) Appearances of persons at the hearing.
(3) Verification of currently
valid license, certificate and/or document held by respondent.
(4) The
Administrative Law Judge advises the respondent of his or her rights.
(5)
Exclusion of witnesses from the hearing room.
(6) Preliminary motions,
objections and/or corrections to the charges and specifications.
(7) A
reading of the charges with respondent's answer.
(8) Opening statement of
investigating officer.
(9) Opening statement by or on behalf of the
respondent or statements in mitigation if the respondent has admitted to the
charge and specification or has answered no contest.
(10) Submission of
evidence.
(11) Argument by the investigating officer and argument by or on
behalf of the respondent.
(12) The investigating officer and respondent are
given the opportunity to submit proposed findings and conclusions.
(13) The
Administrative Law Judge renders findings and conclusions.
(14) Submission
of prior record of the respondent and evidence in aggravation or mitigation.
(15) The Administrative Law Judge renders an order.
(16) The
Administrative Law Judge serves complete written decision.
(17) The
Administrative Law Judge advises the respondent of the right to appeal.
(18)
The Administrative Law Judge declares that the hearing is closed.
§ 5.503
Record of the hearing.
(a) The Administrative Law Judge designates an
official reporter for the hearing. The reporter shall prepare the record of the
hearing, including the transcript if so directed by the Administrative Law
Judge.
(b) The testimony and exhibits presented, together with all papers,
requests, and rulings filed in the proceedings constitute the record of the
hearing.
§ 5.505 Public access to hearings.
All hearings conducted
pursuant to this part are open to the public, including representatives of the
press, except when the Administrative Law Judge finds that the subject matter to
be, or being, brought out in the evidence concerns classified material relating
to national security, or when other circumstances exist which have been held to
warrant a limitation or exception to the right of a public hearing in a United
States District Court.
§ 5.507 Disqualification of Administrative Law
Judge.
(a) In any suspension and revocation proceeding conducted under
this part, the Administrative Law Judge may withdraw voluntarily from a
particular case for reasons of a possbile conflict of interest. In such event,
the Administrative Law Judge shall immediately notify the Commandant of the
desire to withdraw and the reasons therefor.
(b) In any case the
investigating officer or the respondent may, in good faith, request the
Administrative Law Judge to withdraw on the grounds of personal bias or other
disqualification. The party seeking the Administrative Law Judge's
disqualification shall file with the Administrative Law Judge a timely affidavit
or statement sworn to before a Coast Guard officer of other official authorized
to administer oaths, setting forth in detail the facts alleged to constitute the
grounds for disqualification. The investigating officer or the respondent may
present testimony of witnesses or, at minimum, an offer of proof to support
these grounds. The Administrative Law Judge rules whether or not
disqualification is warranted.
(c) If the person seeking disqualification
takes exception to the Administrative Law Judge's ruling, that person may appeal
such ruling to the Commandant. When such appeal is made, the Administrative Law
Judge immediately forwards the affidavit or sworn statement with the decision
thereon to the Commandant. The Administrative Law Judge may proceed with the
hearing unless it can be shown that a delay in the hearing pending a
determination of the appeal will not be detrimental to the matters being
adjudicated. The Administrative Law Judge ensures that all matters relating to
such claims of disqualification appear affirmatively in the record.
§
5.509 Opening the hearing.
The Administrative Law Judge opens the hearing
at the time and place specified in the notice, administers all necessary oaths,
and causes a complete record of the proceedings to be kept. The time and place
of opening the hearing may be changed by the Administrative Law Judge by written
notice served on the investigating officer and the respondent, either on the
Administrative Law Judge's own motion or upon application of the investigating
officer or respondent. Such change must be consistent with the rights of the
respondent to a fair, impartial and timely hearing and the availability of
witnesses.
§ 5.511 Continuance of a hearing.
The Administrative
Law Judge may, either on the Administrative Law Judge's own motion or the motion
of the investigating officer or respondent, continue the hearing from day to day
or adjourn such hearing to a later date or to a different place by announcement
at the hearing or by other appropriate notice. When determining whether to grant
a continuance, the Administrative Law Judge gives careful consideration to the
future availability of witnesses, the schedule of the vessel or vessels on which
the respondent and/or witnesses may be employed, and to the nature of the charge
and gravity of the offense.
§ 5.513 Appearances.
The appearances
of the investigating officer and respondent and their representatives are
entered in the record.
§ 5.515 Failure of respondent to appear at
hearing.
(a) In any case in which the respondent, after being duly served
with the original of the notice of the time and place of the hearing and the
charges and specifications, fails to appear at the time and place specified for
the hearing, the hearing may be conducted in absentia.
(b) The
Administrative Law Judge ensures that the record contains the facts concerning
the service of the charges, specifications and notice of hearing.
§ 5.517
Witnesses excluded from hearing room.
After appearances are entered and
prior to proceeding with the hearing, all witnesses are excluded from the
hearing room. The Administrative Law Judge may order witnesses to be separated
from each other while waiting to testify or admonish them to not discuss the
case among themselves or with any other person, with the exception of the
investigating officer, the respondent or the respondent's counsel.
§
5.519 Rights of respondent.
(a) The Administrative Law Judge advises the
respondent, on the record, of the right to:
(1) Be represented by
professional counsel, or any other person desired;
(2) Have witnesses and
relevant evidence subpenaed;
(3) Examine witnesses, cross-examine witnesses,
and introduce relevant evidence into the record; and
(4) Testify or remain
silent.
§ 5.521 Verification of license, certificate or
document.
(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 licenses, certificates, and/or
documents issued by the Coast Guard to the respondent. In the event that the
respondent alleges that such license, certificate or document 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
Adminstrative 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 license, certificate, or
document 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.
§ 5.523 Motions or objections.
Any
motion or objection shall be heard and disposed of, on the record, by the
Administrative Law Judge.
§ 5.525 Correction or amendment of charges
and/or specifications.
(a) The Administrative Law Judge examines the
charges and specifications to determine their correctness as to form and legal
sufficiency.
(b) The Administrative Law Judge may, either on the
Administrative Law Judge's own motion or motion by either the investigating
officer or respondent, amend the charges and specifications to correct harmless
errors by deletion or substitution of words or figures as long as a legal charge
and specification remains.
(c) When errors of substance are found in charges
and specifications, the Administrative Law Judge shall allow that the defective
charge or specification be withdrawn without prejudice to the service of a new
charge and specification in the matter. The investigating officer may then
prepare and serve a new charge and specification.
§ 5.527
Answer.
(a) The Administrative Law Judge reads each charge and
specification to the respondent and obtains a specific answer to each charge and
specification. If the respondent fails to answer a charge or specification, the
Administrative Law Judge enters a denial and proceeds with the hearing.
(b)
A specific answer shall be one of the following:
(1) Deny;
(2) No
contest; or
(3) Admit.
(c) For purposes of proceedings under this part,
an admission or no contest answer is sufficient to support a finding of proved
by the Adminstrative Law Judge.
(d) When the hearing is conducted in
absentia, the Administrative Law Judge enters a denial to all charges and
specifications.
§ 5.529 Opening statement of investigating
officer.
(a) If a denial is entered, the investigating officer makes a
brief statement outlining the matters expected to be proved.
(b) If the
respondent admits the truth of the charges and specifications or answers no
contest, the opening statement of the investigating officer shall contain a
summary of the evidence upon which the charges and specifications are
based.
§ 5.531 Opening statement by or on behalf of the
respondent.
The respondent or the respondent's counsel is afforded an
opportunity to state what is intended to be established. This may be waived or
deferred at the option of the respondent.
§ 5.533 Presentation of case
where there is an admission or no contest answer.
(a) If the respondent
admits to any charge and specification or answers no contest, evidence in
mitigation may be presented, and the investigating officer may present a prima
facie case and evidence in aggravation even in those cases where revocation is
mandatory.
(b) Should the respondent's presentation be inconsistent with an
admission or answer of no contest, the Administrative Law Judge will reject the
answer, enter a denial and continue with the hearing.
§ 5.535
Witnesses.
(a) All witnesses are sworn, duly examined, and may be cross
examined. A witness on the stand may be questioned at any time by the
Administrative Law Judge.
(b) The person who calls a witness shall begin
direct examination by identifying the witness.
(c) Witnesses may be called
to establish matters of aggravation or matters of mitigation.
(d) Any
witness may have the benefit and advice of personal counsel, but such counsel
shall not otherwise participate in the hearing.
(e) Any attempt to coerce or
induce a witness to testify falsely is an offense under federal law which may be
punishable by fine or imprisonment or both. (See 18 U.S.C. 1505.)
(f) Upon
motion by the investigating officer or respondent, the Administrative Law Judge
may order that testimony of a witness be taken by telephone conference call,
when testimony would otherwise be taken by deposition. The telephone conference
will be arranged so that all participants can listen to and speak to each other
in the hearing of the Administrative Law Judge. The Administrative Law Judge
insures that all participants in the telephone conference are properly
identified to allow a proper record to be made by the reporter. Participants
shall speak clearly and avoid extraneous conversation. Telephone conferences are
governed by the procedural rules and decorum observed during in-person
proceedings.
(g) A witness may be subpenaed to testify by telephone
conference. The subpena in such instances is issued under the procedures in
subpart F.
§ 5.537 Evidence.
(a) In these proceedings, strict
adherence to the rules of evidence is not required. However, the Federal Rules
of Evidence, as amended, shall be the primary guide for evidentiary matters,
where applicable.
(b) Rules 410, 606, 706, and 1101 of the Federal Rules of
Evidence shall not be applicable to these proceedings.
(c) In conducting a
hearing the Administrative Law Judge will extend reasonable latitude to the
respondent who does not have professional counsel to represent him.
Investigating officers and counsel should be required to conform to the the
rules of evidence to a greater degree than respondents without counsel.
§
5.539 Burden of proof.
The investigating officer has the burden of
proof.
§ 5.541 Official notice by Commandant and Administrative Law
Judge.
(a) In addition to other rules providing for judicial notice, the
Commandant and the Administrative Law Judges will consider the following without
requiring the investigating officer or the respondent to submit them in
evidence:
(1) Federal Law. The Constitution; Congressional Acts,
Resolutions, Records, Journals and Committee Reports; Decisions of Federal
Courts; Executive Orders and Proclamations; and rules, regulations, orders and
notices published in the Federal Register.
(2) State law. The Constitution
and public laws of each State.
(3) Governmental organizations. The
organization, territorial limitations, officers, departments, and general
administration of the Government of the United States, its States, territories,
possessions and the Commonwealth of Puerto Rico.
(4) Commandant's decisions.
The Commandant's decisions in all appeal and review cases under this part. (See
§ 5.65.)
(b) Matters officially noticed by the Commandant or the
Administrative Law Judge are specified on the record. The investigating officer
and the respondent shall be afforded an opportunity, on the record, to rebut
such matters.
§ 5.543 Certification of extracts from shipping articles,
logbooks, etc.
(a) In addition to other rules providing for
authentication and certification, extracts from records in the custody of the
Coast Guard, shipping articles, and logbooks, may be identified and
authenticated by certification of an investigating officer or custodian of such
records, or by any commissioned officer of the Coast Guard.
(b)
Certification must include a statement that the certifying individual has seen
the original and compared the copy with it and found it to be a true copy. The
individual so certifying shall sign name, rank or title, and duty
station.
§ 5.545 Weight of entries from logbooks.
(a) An entry in
an official logbook of a vessel concerning an offense enumerated in 46 U.S.C.
11501, made in substantial compliance with the procedural requirements of 46
U.S.C. 11502, is admissible in evidence and constitutes prima facie evidence of
the facts recited.
(b) An entry in any logbook kept on a vessel may be
admitted into evidence as an exception to the hearsay rule, under the Federal
Rules of Evidence, as a record of a regularly conducted activity.
(c) An
entry in any logbook made in compliance with the procedural requirements of 46
U.S.C. 11502 may be given added weight by the Administrative Law Judge.
§
5.547 Use of judgment of conviction.
(a) A judgment of conviction by a
Federal court is conclusive in proceedings under this part concerning incidents
described in 46 U.S.C. 7703, where acts or offenses forming the basis of the
charges in the Federal court are the same.
(b) Where the acts involved in a
judgment of conviction of a State court are the same as those involved in
proceedings under this part concerning incidents described in 46 U.S.C. 7703,
the judgment of conviction is not conclusive of the issues decided. However,
such judgment of conviction is admissible in evidence and constitutes
substantial evidence adverse to the respondent.
(c) The judgment of
conviction for a dangerous drug law violation by a Federal or State court is
conclusive in proceedings under this part. If as part of a state expungement
scheme the respondent pleads guilty or no contest or is required by the court to
attend classes, make contributions of time or money, receive treatment or submit
to any manner of probation or supervision or forego appeal of the trial court
finding, the respondent will be considered, for the purposes of 46 U.S.C. 7704,
to have received a final conviction. A later expungement of the record will not
be considered unless it is proved that the expungement is based on a showing
that the court's earlier conviction was in error.
(d) The respondent may not
challenge the jurisdiction of a Federal or State court in proceedings under 46
U.S.C. 7703 and 7704.
§ 5.549 Admissibility of respondent's Coast Guard
records prior to entry of findings and conclusions.
(a) The prior
disciplinary record of the respondent is admissible when offered by the
respondent.
(b) In addition to the use of a judgment of conviction as
provided in § 5.547, the prior record of the respondent, as defined in § 5.565,
is admissible when offered by the investigating officer for the limited purposes
of impeaching the credibility of evidence offered by the respondent regarding a
disciplinary record.
§ 5.551 Admissions by respondent.
No person
shall be permitted to testify with respect to admissions made by the respondent
during or in the course of an investigation under this part or part 4 of this
title except for the purpose of impeachment.
§ 5.553 Testimony by
deposition.
(a) Testimony may be taken by deposition upon application of
either party or upon the initiative of the Administrative Law Judge. The
application of a party must be in writing and must contain the reasons for the
deposition, the name and whereabouts of the witness and an approximate date,
time and place for the deposition hearing. The applicant may request that it be
by oral examination, or upon written interrogatories, or a combination thereof.
The deposition may be taken before any person authorized to administer oaths.
(b) Upon good cause appearing therefor, the Administrative Law Judge enters
and serves upon the parties an order designating the person before whom the
deposition is to be taken, together with such other information, directions and
orders as will enable the person so designated to obtain the testimony of the
deponent. The Administrative Law Judge issues a subpena in accordance with
subpart F of this part which, along with his order and a list of interrogatories
and cross-interrogatories, if any, is forwarded to the person designated to take
the deposition. This person shall have the subpena served upon the witness.
(c) The investigating officer and respondent and/or their representatives
may attend the taking of a deposition.
(d) After the deposition has been
taken and transcribed it is presented to the witness for examination, correction
and signature unless such a procedure is waived by the deponent, on the record.
The person taking the deposition shall certify to the signature of the witness.
If, for any reason, the deposition or interrogatory is not signed by the
witness, the person taking the deposition shall recite (under oath) thereon the
reason it is not signed.
(e) A deposition upon oral examination may be taken
by telephone conference upon such terms, conditions, and arrangements as are
prescribed in the order of the Administrative Law Judge.
(f) The testimony
at a deposition hearing may be recorded on videotape, upon such terms,
conditions, and arrangements as are prescribed in the order of the
Administrative Law Judge, at the expense of the party requesting the recording.
The video recording may be in conjunction with an oral examination by telephone
conference held pursuant to paragraph (e) of this section. After the deposition
has been taken, the person taking the deposition shall immediately seal the
videotape in an envelope, attaching thereto a statement identifying the
proceeding and the deponent and certifying as to the authenticity of the
deposition, and return the videotape by accountable means to the Administrative
Law Judge. Such deposition becomes a part of the record of proceedings in the
same manner as a transcribed deposition. The videotape, if admitted in evidence,
will be played during the hearing and transcribed into the record by the
reporter.
(g) The Administrative Law Judge rules on the admissibility of the
deposition or any part thereof and on any objections.
§ 5.555
Treatises.
(a) Treatises, periodicals, or pamphlets relating to nautical
practices are admissible in evidence without the use of expert witnesses.
(b) The Administrative Law Judge evaluates such materials based on the facts
and circumstances of the case. The materials may not be considered conclusive of
an issue.
§ 5.557 Medical examination of respondent.
(a) In a
hearing in which the physical or mental condition of the respondent is in
controversy, the Administrative Law Judge may order the respondent to submit to
a medical examination.
(b) An examination ordered by an Administrative Law
Judge will be conducted at government expense by a physician designated by the
Administrative Law Judge.
(c) If the respondent fails, or refuses, to submit
to an ordered examination such failure is accorded due weight in determining the
facts alleged in the specifications.
§ 5.559 Argument.
After all
the evidence has been presented, the investigating officer and the respondent
may present oral or written argument.
§ 5.561 Submission of proposed
findings and conclusions.
The Administrative Law Judge affords the
investigating officer and the respondent reasonable opportunity to submit
proposed findings and conclusions with supporting reasons. If either desires to
submit such matter, the Administrative Law Judge fixes the time within which it
shall be filed. Failure to comply within the time fixed by the Administrative
Law Judge shall be regarded as a waiver of the right.
§ 5.563
Administrative Law Judge's findings and conclusions.
(a) The
Administrative Law Judge renders ultimate findings and conclusions.
(b) A
separate conclusion is made by the Administrative Law Judge on each charge and
specification. A specification may be found not proved, proved in part, or
proved. A charge may be found not proved or proved.
(c) The testimony and
exhibits presented, together with all papers, requests, and rulings filed in the
proceedings are the exclusive basis for the issuance of the Administrative Law
Judge's findings and conclusions.
§ 5.565 Submission of prior record and
evidence in aggravation or mitigation.
(a) Except as provided in § 5.547
and § 5.549, the prior record of the respondent may not be disclosed to the
Administrative Law Judge until after conclusions have been made as to each
charge and specification, and then only if at least one charge has been found
proved. The prior record must include only information concerning the respondent
and is limited to the following items less than 10 years old:
(1) Written
warnings issued by Coast Guard investigating officers and accepted by the
respondent;
(2) Final agency action on Coast Guard suspension and revocation
hearings wherein one or more charges was found proved;
(3) Voluntary
surrender agreements entered into by the respondent;
(4) Any final judgments
of conviction in State or Federal courts;
(5) Final agency action resulting
in civil penalties or warnings being imposed against the respondent in
proceedings administered by the Coast Guard under 33 CFR 1.07; and,
(6) Any
official commendatory information concerning the respondent of which the
investigating officer is aware.
(b) The investigating officer may offer
evidence and argument in aggravation of the charge or charges found proved.
(c) The respondent is allowed to comment on or offer evidence regarding
prior maritime service including the prior record introduced by the
investigating officer and any commendatory information.
(d) The respondent
may offer evidence and argument in mitigation of the charge or charges found
proved.
(e) The investigating officer may offer evidence and argument in
rebuttal of the evidence and argument introduced by the respondent in
mitigation.
§ 5.567 Order.
(a) The Administrative Law Judge enters
an order which recites the disposition of the case. When a charge has been found
not proved, the order will state the charge is dismissed with or without
prejudice. When a charge is found proved, the Administrative Law Judge may order
an admonition, suspension with or without probation, or revocation.
(b) The
order is directed against all licenses, certificates or documents, except that
in cases of negligence or professional incompetence, the order is made
applicable to specific licenses, certificates or documents. 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 license, certificate or document may
be revoked and the issuance of one of a lower grade ordered.
(c) An order
must specify whether the license, certificate or document 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 license, certificate or document 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 license, certificate or
document 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.
§ 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 offense Range of order (in months)
Misconduct:
Failure to obey master's/ship officer's order 1-3.
Failure to comply with U.S. law or regulations 1-3.
Possession of intoxicating liquor ............ 1-4.
Failure to obey master's written instruction . 2-4.
Improper performance of duties related to 2-5.
vessel safety.
Failure to join vessel (required crew member) 2-6.
Violent acts against other persons (without 2-6.
injury).
Failure to perform duties related to vessel 3-6.
safety.
Theft ........................................ 3-6.
Violent acts against other persons (injury) .. 4-Revocation.
Use, possession, or sale of dangerous drugs .. Revocation (Note: see §
5.59).
Negligence:
Negligently performing duties related to 2-6.
vessel navigation.
Negligently performing non-navigational duties 1-3.
related to vessel safety.
Neglect of vessel navigation duties .......... 3-6.
Neglect of non-navigational safety related 2-4.
duties.
Incompetence .................................. The only proper order for
a charge of incompetence
found proved is
revocation.
Violation of Regulation:
Refusal to provide specimens for required 12-24.
chemical test.
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]
§ 5.571 Delivery of decision.
(a)
Whenever possible, the Administrative Law Judge's decision is delivered in
writing to the respondent or to the respondent's authorized representative at
the final hearing session. If it is not possible for the Administrative Law
Judge to deliver a complete written decision at the final session of the
hearing, an oral decision is rendered on the record, with a written order
prepared and served on the respondent or the respondent's authorized
representative. The decision, including the order, is effective upon service of
the written order.
(b) If a complete written decision is not delivered at
the final hearing session, the Administrative Law Judge prepares and has served
on the respondent or the respondent's authorized representative a complete
written decision within 30 days, when possible, after completion of the hearing.
This delivery may be by personal service or certified mail, return receipt
requested. The signed acknowledgment of personal service or the return receipt
becomes a part of the hearing record.
(c) As used in this section, the
phrase, authorized representative means any person who has been authorized by
the respondent, as shown by the hearing record, to receive service and take an
appeal on behalf of the respondent.
[CGD 82-002, 50 FR 32184, Aug. 9,
1985; 50 FR 35228, Aug. 30, 1985]
§ 5.573 Notification of right to
appeal.
The respondent is advised by the Administrative Law Judge of the
right to appeal in accordance with subpart J of this part.
§ 5.577
Modification of Administrative Law Judge's decision and order.
(a) After
an Administrative Law Judge renders the decision and order, it may be modified
or changed pursuant to procedures set forth in paragraph (b) of this section, in
subpart I of this part for reopening of hearings; in subpart J of this part for
appeals; or in subpart K of this part for review of Administrative Law Judge's
decision by the Commandant. In the absence of any such actions, the decision of
the Administrative Law Judge is final.
(b) When the proceeding is based on a
conviction for a dangerous drug law violation, recision of the order affecting
the license, certificate or document will not be granted, unless the applicant
submits a specific court order to the effect that the conviction has been
unconditionally set aside for all purposes. An order of revocation will not be
rescinded as the result of any law which provides for a subsequent conditional
setting aside, modification or expungement of the court conviction in the nature
of granting of clemency or other relief after the conviction has become final,
without regard to whether punishment was imposed.
Subpart I-Reopening of Hearings
§ 5.601 Petition to
reopen hearing.
(a) A respondent may petition to reopen the hearing on
the basis of newly discovered evidence or on the basis of being unable to
present evidence due to the respondent's inability to appear at the hearing
through no fault of the respondent and due to circumstances beyond the
respondent's control.
(b) The filing of a petition does not stay an existing
order of the Administrative Law Judge. However, if filed within 30 days after
the effective date of the Administrative Law Judge's decision, it will toll or
defer the running of the 30-day statutory period of appeal as provided in
subpart J of this part until the Administrative Law Judge has acted on the
petition.
[CGD 82-002, 50 FR 32184, Aug. 9, 1985; 50 FR 35228, Aug. 30,
1985]
§ 5.603 Procedures for submitting petition.
(a) The
procedures for submitting a petition based on newly discovered evidence are as
follows:
(1) A petition to reopen the hearing may be submitted at any time
prior to a final decision on appeal or within one year of the effective date of
the Administrative Law Judge's decision.
(2) If an appeal to the Commandant
from the Administrative Law Judge's decision has not been filed, the petition
must be addressed to the Administrative Law Judge. If an appeal to the
Commandant has been filed, the petition must be submitted to the Commandant.
(3) The petition must be in letter form, typewritten or written legibly, and
shall contain:
(i) The name of the petitioner, the number and description of
the license, certificate and/or document involved, nature of the charge, the
decision rendered including the order, and the name of the Administrative Law
Judge who heard the case;
(ii) A statement setting forth a description of
the newly discovered evidence; and
(iii) A statement as to whether or not
this additional evidence was known to the petitioner at the time of the hearing,
and reasons why the petitioner, with due diligence, could not have discovered
such new evidence prior to the completion of the hearing.
(b) The procedures
for submitting a petition on the basis of inability to appear at the hearing are
as follows:
(1) A petition to reopen the hearing may be submitted within 30
days of the effective date of the Administrative Law Judge's decision.
(2)
If an appeal to the Commandant from the Administrative Law Judge's decision has
not been filed, the petition must be addressed to the Administrative Law Judge.
If an appeal to the Commandant has been filed, the petition must be submitted to
the Commandant.
(3) The petition must be in letter form, typewritten or
written legibly, and shall contain:
(i) The name of the petitioner, the
number and description of the license, certificate and/or document involved,
nature of the charge, the decision rendered including the order, and the name of
the Administrative Law Judge who heard the case;
(ii) A statement setting
forth a description of the evidence the petitioner would have offered at the
hearing; and
(iii) A statement as to why the petitioner was unable to appear
at the hearing including why the petitioner did not seek a change in the time or
place for opening of the hearing.
§ 5.605 Action on petition.
(a)
The Administrative Law Judge, or Commandant, as appropriate, forwards a copy of
the petition to the investigating officer. The investigating officer is afforded
a reasonable time within which to submit written comments as to the merits of
the petition.
(b) The Administrative Law Judge, or the Commandant, renders a
decision either granting or denying the petition. The decision on the petition
will be based on a consideration of the petition, the record of the hearing, and
the investigating officer's comments, if any.
(c) If the Administrative Law
Judge grants the petition, the hearing is reopened to allow the offer of the new
evidence described in the petition.
(d) If the Commandant grants the
petition, the case is remanded to the Administrative Law Judge with directions
to reopen the hearing.
(e) When the petition is granted, the Administrative
Law Judge withdraws the original decision and renders a new one based on the
record of the original hearing and the new evidence received.
(f) The
petition, the investigating officer's comments, the Administrative Law Judge's
or Commandant's decision on the petition, and the additional evidence will be
appended to the original hearing record.
§ 5.607 Appeal from action on
petition.
(a) If the petition to reopen the hearing is denied by the
Administrative Law Judge, the respondent may appeal to the Commandant within 30
days from the date of service of the denial of the petition. The review by the
Commandant on this appeal will be limited to the issues raised by the petition.
Other grounds on appeal must be in accordance with subpart J of this part.
(b) If the petition to reopen the hearing is granted and a previous finding
of proved is affirmed by the Administrative Law Judge, the respondent may appeal
the decision as provided for in subpart J of this part.
Subpart J-Appeals
§ 5.701 Appeals in general.
(a)
A respondent against whom a finding of proved has been rendered may appeal such
decision to the Commandant.
(b) The hearing transcript, together with all
papers and exhibits filed, shall constitute the record for decision on appeal.
The only matters which will be considered by the Commandant on the appeal are:
(1) Rulings on motions or objections which were not waived during the
proceedings;
(2) Clear errors on the record;
(3) Jurisdictional
questions.
(c) In the preparation of an appeal, the investigating officer's
and the Administrative Law Judge's assistance to the appellant will extend only
to the point of providing information as to the applicable regulations.
(d)
If the respondent requests a copy of the transcript in the notice of appeal and
the hearing was recorded or transcribed at government expense, the transcript
will be provided upon payment of the fees prescribed in 49 CFR 7.95. If the
services of a government contractor were utilized, the transcript must be
obtained under the provisions of 49 CFR 7.99.
§ 5.703 Procedures for
appeal.
(a) An appeal may be taken only by filing a written notice of
appeal within 30 days after service of the complete written decision. This
notice of appeal must be filed with the Administrative Law Judge who heard the
case or with any Officer in Charge, Marine Inspection for forwarding to the
Administrative Law Judge.
(b) The notice of appeal must:
(1) Be
typewritten or written legibly;
(2) Be addressed to the Commandant; and
(3) Set forth the name of the appellant, the number and description of the
license, certificate and/or document involved, and the name of the
Administrative Law Judge who heard the case.
(c) The completed appeal must
be submitted to the Commandant, U.S. Coast Guard (G-MMI), 2100 2nd St. SW.,
Washington, DC, 20593 within sixty days after service of the complete written
decision, or if a transcript was requested, within 60 days after receipt of the
transcript. After this time has elapsed, anything received will not be
considered as a part of the appeal record unless an extension of time has been
granted in writing by the Commandant and the extended time limit has been met.
(d) The appeal must contain a brief or memorandum setting forth legal and
other authorities relied upon. All grounds for appeal or exceptions to the
Administrative Law Judge's decision must be described with particularity.
(e) No appeal will be accepted in the case of a revocation or outright
suspension if the respondent has not complied with the order of the
Administrative Law Judge to deposit the license or document with the Coast
Guard.
§ 5.705 Action on appeal.
(a) The Commandant may affirm,
reverse, alter, or modify the decision of the Administrative Law Judge, or may
remand the case for further proceedings. The Decision of the Commandant on
Appeal is the final agency action in the absence of a remand.
(b) Failure to
file a brief containing grounds and justification for relief sought on appeal of
the Administrative Law Judge's decision will result in either:
(1)
Termination of the case by written notice to the appellant or appellant's
counsel that the decision of the Administrative Law Judge constitutes the final
agency action on the merits of the case; or
(2) Consideration of the appeal
on the merits of the case and publication of the Commandant's decision without
prior notice to the appellant or appellant's counsel. This will only be done
when some clear error appears in the record or when the case presents some novel
policy consideration.
§ 5.707 Stay of effect of decision and order of
Administrative Law Judge on appeal to the Commandant; temporary license,
certificate, or document.
(a) A person who has appealed from a decision
suspending outright or revoking a license, certificate or document, except for
revocation resulting from an offense enumerated in § 5.59, may file a written
request for a temporary license, certificate or document. 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 Administrative Law Judge
unless the hearing transcript has been forwarded to the Commandant, in which
case, the request is forwarded to the Commandant for 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 document or license may be denied for that reason alone.
(d) All
temporary documents 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 document expires before the Commandant's decision
is rendered, it may be renewed, if authorized by the Commandant.
(e) If the
request for a temporary document 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 documents issued become a
part of the record on appeal.
§ 5.709 Appeal cases remanded for further
proceedings.
(a) When the Commandant renders a decision remanding a case
for further proceedings, the remand is directed to the Administrative Law Judge.
If a reopening of the former hearing or a new hearing is necessary, the
Administrative Law Judge notifies the investigating officer and the respondent
and sets a date for the hearing.
(b) If the hearing is reopened, the
evidence in the prior hearing shall be evaluated together with the new evidence
submitted.
(c) In a new hearing, the evidence in the prior hearing may be
used for purposes of impeachment. Evidence in the prior hearing may be
stipulated as a part of the record of the new hearing.
(d) The
Administrative Law Judge renders either an entirely new decision or a decision
incorporating by reference the original decision, as appropriate.
§ 5.711
Commandant's Decisions on Appeal.
(a) The Commandant's Decisions on
Appeal are the final agency action taken in appeals under the suspension and
revocation proceedings provided by this part. These Decisions are issued
seriatim and are public records.
(b) The Commandant's Decisions on Appeal
are available for reading purposes at Coast Guard Headquarters, Offices of
District Commanders, and at Marine Safety Offices and Marine Inspection Offices.
(See 33 CFR subpart 1.10.)
§ 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 licenses, certificates, or
documents 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 (G-L), U.S. Coast
Guard, 2100 2nd St. SW., Washington, DC 20593.
(c) In cases before the
National Transportation Safety Board the Chief Counsel of the Coast Guard may be
represented by others designated of counsel.
§ 5.715 Stay of effect of
Decision of the Commandant on Appeal: Temporary document and/or license 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 document or license 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 document and/or license as specified in the stay order. This document
is effective for not more than six months, renewable until such time as the
National Transportation Safety Board has completed its review.
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 hearing, together with all papers and exhibits filed, shall
constitute the record for consideration and review.
§ 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.
§ 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, Marine Safety Offices and
Marine Inspection Offices. (See 33 CFR subpart 1.10.)
Subpart L-Issuance of New Licenses, Certificates or Documents After
Revocation or Surrender
§ 5.901 Time limitations.
(a) Any
person whose license, certificate or document 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 license,
certificate or document.
(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 license, certificate or document 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 license,
certificate or document.
(d) For a person whose license, certificate, or
document 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 license, certificate or document 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]
§ 5.903 Application
procedures.
(a) An application form for a new license, certificate or
document may be obtained from any Officer in Charge, Marine Inspection.
(b)
The completed application and letter must be addressed to the Commandant, U.S.
Coast Guard, 2100 2nd St. SW., Washington, DC 20593, 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 license, certificate or
document 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 license, certificate
or document 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.
§ 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
license, certificate or document will be issued. The applicant will be notified
by letter of such determination.
PREVENTION THROUGH PEOPLE 
