Maritime Commons attended an open house hosted by the Coast Guard’s National Maritime Center to provide updates on the credentialing process, future credentialing policies and their impacts on mariners and industry.
The Coast Guard’s Office of Investigations and Casualty Analysis, or CG-INV, program chief, Capt. Jason Neubauer, and the chief of the Office of Suspension and Revocation National Center of Expertise, or S&R NCOE, Cmdr. Christopher Coutu, provided remarks and updates on CG-INV operations and initiatives.
For those of you who were unable to attend, Maritime Commons is providing a condensed version of Neubauer and Coutu’s remarks in a four-part series. These remarks are not ‘as delivered’ but provide a condensed version of the highlights for your informational purposes…
Coast Guard National Centers of Expertise deal with specialization of Coast Guard programs to maintain consistency throughout the country with the various programs. The purpose of the S&R NCOE is to ensure nationwide consistency in the process of suspending or revoking a mariner’s credential. Nationwide consistency promotes a system that is not geographically diverse. We need consistency in this process so that mariners in Alaska are treated similarly as mariners in New York for similar violations.
S&R NCOE Functions:
- Maintain and develop expertise in S&R process and administrative procedure.
- Establish a national program that ensures consistency.
- Review all complaints submitted by investigating officers (a new function) to ensure the Coast Guard has jurisdiction and complaints are legally sound.
- Ensure the Coast Guard is represented by both an attorney and an investigating officer (a new function…as these proceedings are inherently adversarial and take place before administrative law judge following hearing procedures that are similar to federal court civil proceedings. Coast Guard attorney presence helps ensure due process is maintained throughout, particularly against pro se mariners. Additionally, attorneys familiar with courtroom procedures help the Coast Guard make its best case to ensure marine safety. Lastly, the Coast Guard has a wide variety of expertise within the investigating officer ranks with respect to formal adjudicatory proceedings due to the annual rotation and turnover of investigating officer billets. The Coast Guard recognizes the need for hearing experience and legal training to maintain consistency in the hearing room.)
- Maintain a repository of Coast Guard-wide best practices in the S&R process.
- Work with Training Center Yorktown and the Office of Investigations and Casualty Analysis to develop and present training and other tools to improve competency and effectiveness in S&R process and procedure.
The purpose of S&R actions is to promote safety at sea. All S&R actions are against a mariner’s credential, not against the mariner, in that the actions are intended to be remedial in nature, not penal (as in loss of liberty, jail time or monetary fines) but are intended to maintain standards for competence and conduct essential to safety at sea in accordance with 46 CFR § 5.5. Most all S&R action begins with an investigation by a Coast Guard investigating officer.
During an investigation, the investigating officer may take the following actions:
- Issue a complaint;
- Accept a voluntary surrender of credentials;
- Accept a voluntary deposit (if medical issues need resolution);
- Refer case to another Officer in Charge, Marine Inspection;
- Issue a written warning to the mariner; or
- Close the case without action.
Though we are in the business of enforcement and disciplinary action after an investigation, we never lose sight of the fact that an S&R proceeding against a mariner’s license is a highly personal action and can be very emotional. The process deals with jobs, careers and livelihoods. As such, we try to put ourselves in the shoes of the mariner and view the process from their perspective. Suspension and revocation proceedings take place before an administrative law judge in accordance with 33 CFR Part 20. Currently, we have six administrative law judges. Appearing in a courtroom, before an ALJ, can be a daunting experience for a mariner.
If you are involved in a suspension and revocation process, meeting with the investigating officer is highly recommended. Most cases are settled prior to an administrative hearing. About 75 percent of S&R actions are related to drug use. In accordance with the Code of Federal Regulations, if use of drugs is involved, the Coast Guard investigating officer must seek revocation if the case goes to a hearing. However, a settlement is often authorized if the involved mariner agreed to enter into a rehabilitation program. Rehabilitation requires attendance at a substance abuse program followed by 12 months or more of aftercare consisting of drug tests and/or visits with a substance abuse professional. This process of proving cure from use of a dangerous drug can be a very difficult and expensive experience.
Many mariners represent themselves at administrative hearings due to the financial burden of hiring an attorney. However, the process is much easier when mariners seek representation. Due to the financial strain, steps are being taken to help mariners get legal representation. The Maritime Law Association is encouraging maritime attorneys to volunteer their services for mariners facing administrative hearings (pro bono representation). While free representation is not guaranteed, the Coast Guard Office of Administrative Law Judges is actively seeking attorneys willing to accept mariners on a cost-free basis. Mariners are encouraged to take the opportunity to apply for help and may seek assistance by going to the Coast Guard ALJ website located at http://www.uscg.mil/alj/probono/. The S&R NCOE is available to assist mariners and guide them through the process. Lastly, the NCOE can also serve as a liaison with the National Maritime Center on credentialing issues pertaining to pending S&R investigations and proceedings. You can reach the S&R NCOE by calling 304-433-3700.
At the end of the day, our primary goal is to ensure that every mariner is treated fairly throughout the investigative process; we want to ensure that their interests are represented and that the process is balanced.
Drug and alcohol programs
All marine employers are required to conduct drug testing of their employees, who serve in safety sensitive positions at sea, under an established program. The Coast Guard requires testing for five specific drugs as required by the Department of Transportation, or DOT, regulations. However, some companies have opted to test for additional drugs as well, including synthetics and prescription drugs, which are gaining popularity, to ensure the safety of their respective operations. The Coast Guard can take administrative action based on those additional tests, but it’s important that marine employers clearly identify them as non-DOT tests. The Coast Guard can take administrative action against a mariner who refuses to submit to a non-DOT test if the refusal is a violation of company policy. Therefore, we highly encourage marine employers to report the positive drug test results, and refusals, to their local Coast Guard unit.
On average, the Coast Guard serves about 500 complaints a year. Drug related offenses account for approximately 75 percent of the total. Due to the favorable settlement process, just 20 to 25 of the complaints issued result in an administrative hearing.
The Coast Guard has lost drug cases at hearing due to administrative errors during the specimen collection, tracking and testing process. Employers need to ensure that their drug testing programs are fully compliant with federal regulations. The Coast Guard is responsible for auditing the drug and alcohol programs and marine employers are encouraged to proactively work with their local Coast Guard Officer in Charge Marine Inspection or the S&R NCOE if there are questions or concerns related to drug and alcohol testing programs. We will coordinate an audit or review of your program with the Coast Guard Drug and Alcohol Inspection Program Manager, or DAPI.
It is highly encouraged for marine employers to request a voluntary drug and alcohol program audit by the Coast Guard. Many companies have not been audited for several years, which is leading to testing errors and recordkeeping shortfalls. A voluntary Coast Guard audit is a service available to get companies back in compliance. The Coast Guard’s DAPI has already arranged several of these audits, resulting in program improvements at every company that participated.
The legalization of marijuana in several states has prompted many mariners and marine employers to inquire if federal regulations will be changed. The federal government continues to consider marijuana a prohibited dangerous drug for all commercial transportation modes. As such, the Coast Guard will continue to take administrative actions against mariners who hold merchant mariner credentials and use marijuana.
The use of hair analysis to test for dangerous drugs is on the rise. Marine employers, who are opting to use hair analysis in addition to their standard and required DOT testing, are generally reporting higher rates of positive results. The higher rates likely are occurring because hair analysis increases the time window for detection while also making it more difficult to evade a test. Like other non-DOT testing results, the Coast Guard can take action against a mariner’s credential based on a positive hair test.
While the regulations do not require employers to submit the tests to the agency, we highly encourage that you do in the interest of marine safety as well as the mariner. The S&R program has the ability to cause the mariner to seek assistance be drug-free before engaging in work that requires a credential.
In addition to this post, be sure to read the other posts from the National Maritime Center open house and information sessions.
Part 1: Update from the National Maritime Center
Part 2: Update from Commercial Vessel Compliance, Mariner Credentialing Division
Part 3: Update from Operating and Environmental Standards, Maritime Personnel Qualification Division
Part 4: Update from the Office of Investigations and Casualty Analysis and Suspension and Revocation NCOE
This blog is not a replacement or substitute for the formal posting of regulations and updates or existing processes for receiving formal feedback of the same. Links provided on this blog will direct the reader to official source documents, such as the Federal Register, Homeport and the Code of Federal Regulations. These documents remain the official source for regulatory information published by the Coast Guard.