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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Page 58 of 70

56 Proceedings Winter 2015–2016 It is important to note that the Coast Guard is never obli- gated to offer a settlement to a mariner, nor to accept any proposed settlement. In fact, Coast Guard policy limits them. For instance, if a mariner has completed a previous settlement for cure within the last three years or has posi- tive drug test results from a serious marine incident test- ing, settlement is not acceptable and the Coast Guard must proceed to a hearing. Lastly, an administrative law judge is not bound by a sub- mitted motion for settlement. The ALJ may either approve the motion and issue a consent order (beginning the settle- ment), or reject it based on legal insuffciency or faws in the settlement, including excessive (or lack of) conditions or failure of the settlement to adequately refect the complaint offenses. Looking Ahead The suspension and revocation program holds more prom- ise for some, more trepidation for others, as changes in Coast Guard policies seek to seamlessly increase the quality and professionalism of the process while promoting safety at sea. Coast Guard regulations provide for a range of remedial actions, tempered through a well-structured sieve at mul- tiple levels, from the individual investigating offcer all the way to the Commandant and beyond. This ensures that whether or not S&R action can be done, we give due consid- eration to whether it should be done. About the author: Mr. Fink is the national technical advisor at the S&R National Center of Expertise. He has been an investigating offcer for more than 25 years, including 13 years as an instructor in the marine inspection and investiga- tion school at CG Training Center Yorktown, Virginia. Endnotes: 1. 10 Stat. 61 (1852). Cf. 5 Stat. 305 (1838). 2. See 46 USC §7701(c). 3. 46 U.S.C. 4. 46 USC §7703(3), 49 USC §30304(a)(3)(A) or (B). 5. Texas Penal Code Section 42.03. 6. See CDOA 2698 (HOCKING) and CDOA 2705 (PLENDER). 7. 46 CFR §10.235(h), 49 CFR Part 1572. 8. 46 USC 7704(b). We recognize, however, that not all drug offenses are equal, and in 2004, amendments to the statute expanded the mandated "revocation only" sanc- tion to allow suspension as an S&R option. This provides a window for settlement agreements and is now a recognized remedial response to a conviction instead of strict revocation. 9. Internal review/assessment, Feb. 2015. 10. 46 CFR §5.27. 11. Internal review/assessment, Feb. 2015. 12. Ibid. 13. Ibid. Guard. The credential is returned when the suspension period is completed. • Outright suspension followed by suspension on pro- bation (case proved): this is a combination of the third and fourth bullets. The merchant mariner credential is returned after the outright suspension period, then the mariner may sail on the MMC during the probationary period. • Revocation (case proved): the administrative law judge revokes the merchant mariner credential. Other than motioning to the ALJ to re-open the hearing (limited conditions), another merchant mariner credential can be issued only after certain criteria is met, usually through the process of administrative clemency. This may take years. Settlement Agreements Settlement agreements, in which mariners and the Coast Guard agree on a course of action in lieu of battling out the case in court, are on the rise. They are a win/win/win for all involved, as the mariner avoids revocation (if for a drug case) and is given a second chance, the Coast Guard is assured of a mariner who will be safer on the water, and the maritime community retains a good worker whose former drug use is no longer a concern to marine safety. Settlement agreements may be accepted for other offenses, as well, and for the 2014 calendar year, out of 480 fled complaints, 255 resulted in settlement agreements. 13 Most of these were for mariners with positive drug test results. An approved settlement for drug "cure" can shorten the total time for the mariner to be "on the beach;" however, cure is not easily met, by any means. The incentive for settle- ment is obvious — the ultimate return of the MMC upon successful completion. Settlements can be tough, however. Some mariners may sign them and carry on without consid- ering the terms, but they should be a serious consideration, as failure to complete the settlement terms results in mer- chant mariner credential revocation. Additionally, settlement agreements are favorable, as they may require conditions above and beyond that which an ALJ can order after a hearing. Therefore, the S&R NCOE makes the most of them, using them to increase mariner competency or knowledge by imposing remedial (correc- tive) actions such as completing professional training or instructional courses. Settlements are favorable to the mari- ner, as well, as he or she may ultimately see the merchant mariner credential returned without necessarily having to admit wrongdoing because admission is required only to the jurisdictional elements of the case (does not apply to drug offenses).

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