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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54 Proceedings Winter 2015–2016 www.uscg.mil/proceedings focuses upon a mariner's Transportation Worker Identifca- tion Credential (TWIC). The regulations at 46 CFR Part 10 state, in part, that if the Transportation Security Adminis- tration advises the Coast Guard that a mariner has either been denied a TWIC or the TWIC has been revoked, the Coast Guard may initiate suspension and revocation action against the mariner's MMC. 7 Drug Convictions: If a mariner is convicted of violating a dangerous drug law, his or her credential will be suspended or revoked. 8 Further, Congress has authorized the Coast Guard to reach back 10 years for these convictions. Interestingly, the term "convicted" is not limited to felonies, misdemeanors, or NDRA offenses — it is more complex. By regulation, the Coast Guard expands convictions to include such things as expungements, deferred adjudications, court- mandated classes, judicially enforced contributions, judi- cially mandated treatment, probation, or supervision. By expanding the defnition, we can address the underlying behavior. "Acting Under the Authority" Ofenses "Acting under the authority" means: • the credential is required by law or regulation for vessel operation, and • the employer requires the merchant mariner credential as a condition of the mariner's employment. Other means of acting under the authority of the MMC include when the mariner is engaged in official matters regarding the credential, including but not limited to: • applying for renewal, • taking exams for raise of grade, • requesting duplicate or replacement credentials, • appearing at a suspension and revocation hearing, • responding to Coast Guard subpoenas during marine casualty or personnel action investigations, or • taking a Coast Guard-required drug test. Additionally, a person is still acting under the authority of a credential while on shore leave from the vessel. Violation of a Marine Safety Rule: Violation of a marine safety statute or regulation requires that a mariner must have been acting under the authority of the MMC to initiate suspension and revocation enforcement. The regulations also require that the complaint state the specifc statute or regulation by title, section number, and the particular man- ner in which it was allegedly violated. This offense designation covers a wide swath of laws and rules, but complaints alleging these accounted for less than otherwise would have prevented its issuance in the frst place during the application phase. Driving Offenses: The S&R statute provides for action when a mariner is convicted of an offense described by the National Driver Register Act (NDRA), such as driving under the infuence, reckless driving, racing on the highways, traf- fc violations connected with a fatal traffc accident, or other comparable offenses. 4 The conviction must have occurred within three years before the S&R complaint is fled. Recently, various U.S. state jurisdictions have reclassifed some convictions that would normally be cited within the NDRA. To accomplish this, local courts may label a DUI conviction as "obstructing highway or other passageway," which is not an NDRA conviction for the purposes of S&R enforcement. 5 This results in disparate treatment of mari- ners, as a mariner who received a DUI may very likely face suspension and revocation action, while another mariner who also drove while intoxicated might not face S&R for receiving an "obstructing the highway" conviction. There- fore, the S&R NCOE works with prosecutors and state juris- dictions to inform them of these types of consequences. Incompetence: The S&R statute allows action if the holder is incompetent with regard to vessel operation. The comple- mentary regulation, 46 CFR §5.31, defnes incompetence 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." Unft mariner citations constitute just a sliver of the hun- dreds of Coast Guard-fled complaints each year, but due to their complexity (they are more complex for suspension and revocation than most all other offenses), they tend to be very controversial. 6 For the most part, the S&R NCOE has taken the lead in pur- suing these types of cases, shouldering the burden of com- plexity with the advantage of its co-location at the NMC, which has its own medical division. Most notable "unft" cases deal with mariners treated for sudden seizures. In and of itself, a seizure or any other debilitating medical condi- tion is not enough to have a merchant mariner credential suspended or revoked, but if the mariner operates under the authority of the merchant mariner credential after being notifed by the Coast Guard or a doctor, the Coast Guard will take suspension and revocation action. Therefore, receiving notice that you cannot operate due to a medical condition is (or should be) as effective as any S&R. Security Risks: The S&R statute permits action if the mari- ner is a security risk who threatens the safety or security of a vessel or a public or commercial structure. This section was added after September 11, 2001, for obvious reasons, and

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