Proceedings Of The Marine

WIN 2015

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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52 Proceedings Winter 2015–2016 www.uscg.mil/proceedings information to the S&R NCOE for review with the National Maritime Center medical staff. The S&R NCOE then works with the mariner or a local Coast Guard investigating offcer to issue notice to the mariner (if the mariner was not aware of his or her disqualifying condition). If they determine that the mariner is no longer qualifed to hold a medical certifcate, the mariner would be informed of such and subsequently informed that he or she should not operate under the authority of the credential until the medi- cal condition is resolved. Note the credential is not revoked or suspended here — only after the mariner operates under the authority of the credential, after receiving notice of his or her ftness status, would the Coast Guard have jurisdiction to pursue suspension and revocation. Medical certificates clarify the rules of enforcement for medical ftness for the Coast Guard as well as the mariner. Further, the new rules place much of the burden on marine employers, as mariners cannot be employed without the certifcate. Therefore, mariners are either ft to operate (and have a medical certifcate), or they are not (and do not have the certifcate to accompany their MMC). This should reduce the Coast Guard's S&R enforcement efforts in this area. About the authors: LT Sarah E. Brennan is a 2003 graduate of Texas A&M University at Galveston with a degree in ocean and coastal resources. She also holds a master's degree in environmental policy and management. She has served more than 11 years in the Coast Guard, most recently as an investigator at the Suspension & Revocation NCOE. CDR Christopher F. Coutu is the chief of the Suspension and Revocation NCOE. He is a 1993 graduate of the University of Rhode Island and a 2001 graduate of Suffolk University Law School. He has served for 13 years in the Coast Guard in legal and prevention positions. Endnotes: 1. The Final Rule on the Implementation of the Amendments to the International Convention on Standards of Training, Certifcation and Watchkeeping for Seafar- ers, 1978, and Changes to National Endorsements. 2. See NVIC 1-14. 3. See 46 CFR 15.401(c). 4. See 46 CFR 15.401(d). 5. See 46 U.S.C. 7703(4) and 46 C.F.R. §5.31. 6. See Appeal Decision 2705 (PLENDER) (2014). would notify the mariner that the medical condition is dis- qualifying, and that operating a vessel under the authority of the credential could be deemed medical incompetence. The IOs must determine whether the mariner continued to operate after receiving notice. If so, it is the Coast Guard's responsibility to take action. Simply waiting for credential renewal to allow the NMC medical staff to review any new medical information is to accept a level of risk that is unnec- essary. The Coast Guard is compelled to take action in such cases to prevent a casualty from occurring. Medical Fitness S&R Enforcement Currently, the only way to remove a medically unft mariner from the waterway is via the S&R process. The Coast Guard takes action against the credential — not the medical cer- tifcate — and can suspend or revoke the merchant mariner credential if the holder is found incompetent to operate a vessel. For our purposes, incompetence is defned as "the inability on the part of a person to perform required duties, whether due to professional defciencies, physical disability, mental incapacity, or any combination thereof." 5 Further, on October 1, 2014, the Vice Commandant released a decision on appeal that affrmed a previous administrative law judge (ALJ) decision to revoke a mariner's credential based on medical ftness. 6 The decision defned when an act of medical incompetence becomes actionable for S&R purposes: The act must relate to the operation of a vessel, and for medical incompetence, the mariner must operate under the authority of the credential while medically unft. In other words, a mariner will not lose his credential if he is deemed unft but chooses not to operate. Being unft, in and of itself, will not give rise to an S&R proceeding. Additionally, for the Coast Guard to seek MMC suspension or revocation for medical incompetence, the mariner would frst have to have a disqualifying medical condition, be noti- fed that that condition is in fact disqualifying, and then continue to operate under the authority of that credential despite the notice. There are several ways that a potentially disqualifying med- ical condition will present itself to the Coast Guard — most typically, by way of the application process. Prior to the National Maritime Center's existence, investigating offcers would make this determination. Now, with the NMC's team of medical review offcers, IOs have a resource available to help make informed decisions regarding mariner ftness. If a potentially disqualifying medical condition is discovered during a personnel investigation, investigators forward the For more information: For detailed information regarding medical waivers, see NVIC 01-14 and the NMC website at w w w.uscg.mil/nmc/medical/ medical_cert.asp.

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