Stat/Authority

§ 4.40–35

46 CFR Ch. I (10–1–14 Edition)
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.

casualty under paragraph (a) of this
section.
(e) The Board, under the Act, makes
its determination of the facts, conditions, circumstances, and the cause or
probable cause of a major marine casualty using the record of the proceedings provided by the Commandant
under paragraph (d) of this section, and
any additional evidence the Board may
acquire under its own authority.
(f) An investigation by the Coast
Guard under this section is both an investigation under the Act and under 46
U.S.C. Chapter 63.

Subpart D—Investigations
5.101
5.103
5.105
5.107

[CGD 76–149, 42 FR 61200, Dec. 1, 1977, as
amended by CGD 95–028, 62 FR 51195, Sept. 30,
1997; USCG-2004–18884, 69 FR 58341, Sept. 30,
2004]

Conduct of investigations.
Powers of investigating officer.
Course of action available.
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.

§ 4.40–35 Records of the Coast Guard
and the Board.
(a) Records of the Coast Guard made
under § 4.40–30 are available to the public under 49 CFR part 7.
(b) Records of the Board made under
§§ 4.40–20 and 4.40–30 are available to the
public under 49 CFR part 801.

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

PART 5—MARINE INVESTIGATION
REGULATIONS—PERSONNEL ACTION

Subpart G—Witness Fees
Subpart A—Purpose

5.401 Payment of witness fees and allowances.

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

Subpart H—Hearings
5.501 General.
5.521 Verification of credential or endorsement.
5.567 Order.
5.569 Selection of an appropriate order.

Subpart B—Definitions
5.11
5.15
5.19
5.27
5.29
5.31
5.33
5.35

Officer in Charge, Marine Inspection.
Investigating Officer.
Administrative Law Judge.
Misconduct.
Negligence.
Incompetence.
Violation of law or regulation.
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 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

Subpart C—Statement of Policy and
Interpretation
5.51
5.55

Construction of regulations.
Time limitations for service of a complaint.
5.57 Acting under authority of Coast Guard
credential or endorsement.

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Coast Guard, DHS
to
National
Board.

§ 5.29

Transportation

Safety

ination Centers, or any person so designated by the Commandant.
[USCG–2006–25535, 71 FR 48482, Aug. 21, 2006]

Subpart K—Review of Administrative Law
Judge’s Decisions in Cases Where
Charges Have Been Found Proved
5.801
5.803
5.805
5.807

§ 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.

Commandant’s review.
Record for decision on review.
Action on review.
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.

[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.

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
tions.

of

administrative

[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]

ac-

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.

§ 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.

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

§ 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

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 Exam-

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§ 5.31

46 CFR Ch. I (10–1–14 Edition)

circumstances, would not fail to perform.

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.

§ 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.

[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-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

[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]

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Coast Guard, DHS

§ 5.67

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

of law or fact determinative of the respondent’s guilt remains to be decided.

(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 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 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

[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.

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§ 5.69

46 CFR Ch. I (10–1–14 Edition)

§ 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.

§ 5.103 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.

§ 5.71 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.

§ 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.

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-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

[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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Coast Guard, DHS

§ 5.205

(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.

(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.

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

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

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

§ 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;

§ 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

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§ 5.301

46 CFR Ch. I (10–1–14 Edition)

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.

ministrative 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.

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

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

§ 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.

§ 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.

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 Ad-

§ 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

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Coast Guard, DHS

§ 5.567
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.

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.

[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 CG4363). 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.

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.

[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]

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

§ 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

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

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§ 5.569

46 CFR Ch. I (10–1–14 Edition)

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.

port 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.

[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]

TABLE 5.569—SUGGESTED RANGE OF AN
APPROPRIATE ORDER

§ 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 sup-

Range of order (in
months)

Type of offense
Misconduct:
Failure to obey master’s/
ship officer’s order.
Failure to comply with U.S.
law or regulations.
Possession of intoxicating
liquor.

1–3.
1–3.
1–4.

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Coast Guard, DHS

§ 5.707

TABLE 5.569—SUGGESTED RANGE OF AN
APPROPRIATE ORDER—Continued

(d) The ALJ’s denial of a motion for
his or her disqualification.
[USCG-1998–3472, 64 FR 28075, May 24, 1999]

Range of order (in
months)

Type of offense
Failure to obey master’s
written instruction.
Improper performance of
duties related to vessel
safety.
Failure to join vessel (required crew member).
Violent acts against other
persons (without injury).
Failure to perform duties related to vessel safety.
Theft ....................................
Violent acts against other
persons (injury).
Use, possession, or sale of
dangerous drugs.
Negligence:
Negligently performing duties related to vessel navigation.
Negligently performing nonnavigational duties related
to vessel safety.
Neglect of vessel navigation
duties.
Neglect of non-navigational
safety related duties.
Incompetence .............................

Violation of Regulation:
Refusal to take chemical
drug test.
Refusal to take required alcohol test.
Dangerous drugs (46 U.S.C.
7704).

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

2–4.
2–5.

(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.

2–6.
2–6.
3–6.
3–6.
4-Revocation.
Revocation (Note: see
§ 5.59).
2–6.

1–3.

3–6.
2–4.
The only proper order for
a charge of incompetence found proved is
revocation.
12–24
12–24
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.

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§ 5.713

46 CFR Ch. I (10–1–14 Edition)
mandant’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.

(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]

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.

[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]

§ 5.803 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.

§ 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 Com-

[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

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Coast Guard, DHS

§ 5.903
(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 nonassociation 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.

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

[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]

Time limitations.

§ 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

(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.

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§ 5.905

46 CFR Ch. I (10–1–14 Edition)

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.

§ 6.01 Procedures for effecting individual waivers of navigation and
vessel inspection laws and regulations.
(a) It is hereby found necessary in
the interest of national defense to
waive compliance with the navigation
and vessel inspection laws administered by the Coast Guard, as well as
the regulations issued thereunder and
published in 33 CFR chapter I or in this
chapter, to the extent and in the manner and upon the terms and conditions
as set forth in this section.
(b) An application requesting that a
waiver be made effective, with respect
to a particular vessel, may be made by
any authorized representative of an
agency of the United States Government or any other interested person
(including the master, agent, or owner
of the vessel involved). Except as provided in paragraph (d) of this section,
the application shall be in writing. The
application shall be delivered to the
Coast Guard District Commander or to
his designated representative at the
port or place where the vessel is located. In the case of a vessel in any foreign port or place, the application shall
be made to the designated representative of the Commandant at such port
or place, or if the Coast Guard has not
established facilities in such port or
place, to the nearest designated representative of the Commandant at a
port or place where such facilities have
been established. Every application
shall contain a statement of the particular provisions of law with respect
to which waiver of compliance is requested, a certification that the waiver
of compliance with such laws with respect to the vessel involved is necessary in the interest of national defense and, an outline of the facts upon
which such certification is based. The
Coast Guard District Commander (or
his designated representative or the
designated representative of the Commandant, as the case may be) shall
promptly examine every application
for the purpose of determining whether
the necessity for prompt action is such
as to require that the waiver be made
effective by him without reference to
the Commandant. In any case in which
it appears to the Coast Guard officer

[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]

PART 6—WAIVERS OF NAVIGATION
AND VESSEL INSPECTION LAWS
AND REGULATIONS 1
Sec.
6.01 Procedures for effecting individual
waivers of navigation and vessel inspection laws and regulations.
6.04 Vessels requisitioned by the United
States for emergency evacuation.
6.06 Vessels operated by or chartered to
Military Sealift Command.
6.07 Chronological record of seaman’s previous employment.
AUTHORITY: Act Dec. 27, 1950, Ch. 1155, secs.
1, 2, 64 Stat. 1120 (see 46 U.S.C. App. note
prec. 1); Department of Homeland Security
Delegation No. 0170.1.
1 This

is also codified in 33 CFR part 19.

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