46 U.S.C. § 7702 — Administrative procedure

Page 145 TITLE 46—SHIPPING § 7702 1 See References in Text note below. (2) the former holder provides satisfactory proof that the bases for revocation are no longer valid. (d) The Secretary may prescribe regulations to carry out this chapter. (Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 546; Pub. L. 101–380, title IV, § 4103(c), Aug. 18, 1990, 104 Stat. 511.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 7701 .............................................. 46:239(g) Section 7701 establishes the general purpose of sus- pension and revocation proceedings, which is to pro- mote safety at sea. This section also provides the Sec- retary with the authority to suspend or revoke li- censes, certificates, and documents, as well as the au- thority to issue a new license, certificate or document to an individual when the issuance is compatible with the requirements of good discipline and safety at sea. It also provides for necessary regulatory authority to carry out its purposes. Editorial Notes AMENDMENTS 1990—Subsec. (c). Pub. L. 101–380 amended subsec. (c) generally. Prior to amendment, subsec. (c) read as fol- lows: ‘‘When a license, certificate of registry, or mer- chant mariner’s document has been revoked under this chapter, the former holder may be issued a new license, certificate, or document only after it has been decided, under regulations prescribed by the Secretary, that the issuance is compatible with the requirements of good discipline and safety at sea.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–380 applicable to incidents occurring after Aug. 18, 1990, see section 1020 of Pub. L. 101–380, set out as an Effective Date note under section 2701 of Title 33, Navigation and Navigable Waters. § 7702. Administrative procedure (a) Sections 551–559 of title 5 apply to each hearing under this chapter about suspending or revoking a license, certificate of registry, or merchant mariner’s document. (b) The individual whose license, certificate of registry, or merchant mariner’s document has been suspended or revoked under this chapter may appeal, within 30 days, the suspension or revocation to the Secretary. (c)(1) The Secretary shall request a holder of a license, certificate of registry, or merchant mariner’s document to make available to the Secretary, under section 30305(b)(7) of title 49, all information contained in the National Driver Register related to an offense described in sec- tion 205(a)(3)(A) or (B) of that Act 1 committed by the individual. (2) The Secretary shall require the testing of the holder of a license, certificate of registry, or merchant mariner’s document for use of alcohol and dangerous drugs in violation of law or Fed- eral regulation. The testing may include pre- employment (with respect to dangerous drugs only), periodic, random, and reasonable cause testing, and shall include post-accident testing. (d)(1) The Secretary may temporarily, for not more than 45 days, suspend and take possession of the license, certificate of registry, or mer- chant mariner’s document held by an individual if— (A) that individual performs a safety sen- sitive function on a vessel, as determined by the Secretary; and (B) there is probable cause to believe that the individual— (i) has, while acting under the authority of that license, certificate, or document, per- formed the safety sensitive function in vio- lation of law or Federal regulation regarding use of alcohol or a dangerous drug; (ii) has been convicted of an offense that would prevent the issuance or renewal of the license, certificate, or document; (iii) within the 3-year period preceding the initiation of a suspension proceeding, has been convicted of an offense described in sec- tion 30304(a)(3)(A) or (B) of title 49; or (iv) is a security risk that poses a threat to the safety or security of a vessel or a pub- lic or commercial structure located within or adjacent to the marine environment. (2) If a license, certificate, or document is temporarily suspended under this section, an ex- pedited hearing under subsection (a) of this sec- tion shall be held within 30 days after the tem- porary suspension. (Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 546; Pub. L. 99–36, § 1(a)(3), May 15, 1985, 99 Stat. 67; Pub. L. 101–380, title IV, § 4103(a)(1), Aug. 18, 1990, 104 Stat. 510; Pub. L. 105–383, title III, § 304(a), Nov. 13, 1998, 112 Stat. 3419; Pub. L. 108–293, title IV, § 407, title VI, § 609(2), Aug. 9, 2004, 118 Stat. 1044, 1058; Pub. L. 115–232, div. C, title XXXV, § 3546(f), Aug. 13, 2018, 132 Stat. 2326.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 7702 .............................................. .............................................. Section 7702(a) provides that Sections 551–559 of title 5 of the United States Code shall apply to each involv- ing the suspension or revocation of a license, certifi- cate, or document. Subsection (b) allows an individual whose license, certificate, or document has been suspended or revoked to appeal it to the Secretary within 30 days. Editorial Notes REFERENCES IN TEXT Section 205(a)(3)(A) or (B) of that Act, referred to in subsec. (c)(1), means section 205(a)(3)(A), (B) of the Na- tional Driver Register Act of 1982, Pub. L. 97–364, which was set out in a note under section 401 of Title 23, High- ways, and was repealed and restated in section 30304 of Title 49, Transportation, by Pub. L. 103–272, §§ 1(e), 7(b), July 5, 1994, 108 Stat. 975, 1379. AMENDMENTS 2018—Subsec. (c)(1). Pub. L. 115–232 substituted ‘‘sec- tion 30305(b)(7) of title 49’’ for ‘‘section 206(b)(4) of the National Driver Register Act of 1982 (23 U.S.C. 401 note)’’. 2004—Subsec. (d)(1). Pub. L. 108–293, § 407(1), sub- stituted ‘‘if—’’ for ‘‘if, when acting under the authority of that license, certificate, or document—’’ in introduc- tory provisions. Page 146 TITLE 46—SHIPPING § 7703 Subsec.(d)(1)(B)(i). Pub. L. 108–293, § 407(2), inserted ‘‘, while acting under the authority of that license, cer- tificate, or document,’’ after ‘‘has’’. Subsec. (d)(1)(B)(iii). Pub. L. 108–293, § 609(2), sub- stituted ‘‘section 30304(a)(3)(A) or (B) of title 49’’ for ‘‘section 205(a)(3)(A) or (B) of the National Driver Reg- ister Act of 1982’’. Subsec. (d)(1)(B)(iv). Pub. L. 108–293, § 407(3)–(5), added cl. (iv). 1998—Subsec. (c)(2). Pub. L. 105–383 inserted second sentence and struck out former second sentence which read as follows: ‘‘The testing may include preemploy- ment (with respect to dangerous drugs only), periodic, random, reasonable cause, and post accident testing.’’ 1990—Subsecs. (c), (d). Pub. L. 101–380 added subsecs. (c) and (d). 1985—Subsec. (a). Pub. L. 99–36 substituted ‘‘mari- ner’s’’ for ‘‘mariners’ ’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–380 applicable to incidents occurring after Aug. 18, 1990, see section 1020 of Pub. L. 101–380, set out as an Effective Date note under section 2701 of Title 33, Navigation and Navigable Waters. § 7703. Bases for suspension or revocation A license, certificate of registry, or merchant mariner’s document issued by the Secretary may be suspended or revoked if the holder— (1) when acting under the authority of that license, certificate, or document— (A) has violated or fails to comply with this subtitle, a regulation prescribed under this subtitle, or any other law or regulation intended to promote marine safety or to pro- tect navigable waters; or (B) has committed an act of misconduct or negligence; (2) is convicted of an offense that would pre- vent the issuance or renewal of a license, cer- tificate of registry, or merchant mariner’s document; (3) within the 3-year period preceding the initiation of the suspension or revocation pro- ceeding is convicted of an offense described in section 30304(a)(3)(A) or (B) of title 49; (4) has committed an act of incompetence re- lating to the operation of a vessel; or (5) is a security risk that poses a threat to the safety or security of a vessel or a public or commercial structure located within or adja- cent to the marine environment. (Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 546; Pub. L. 99–36, § 1(a)(9)(E), May 15, 1985, 99 Stat. 68; Pub. L. 101–380, title IV, § 4103(b), Aug. 18, 1990, 104 Stat. 511; Pub. L. 108–293, title IV, § 408, title VI, § 609(3), Aug. 9, 2004, 118 Stat. 1044, 1058; Pub. L. 109–241, title IX, § 901(h)(3), July 11, 2006, 120 Stat. 564.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 7703 .............................................. 46:226 46:239 46:240 46:246(c) This section provides the bases for suspension and revocation of a license, certificate or document. The in- dividual must have been operating under the authority of the required license, certificate, or document and has violated a law or regulation intended to promote marine safety or to protect the navigable waters or has committed an act of incompetence, misconduct, or neg- ligence. Editorial Notes AMENDMENTS 2006—Par. (3). Pub. L. 109–241 struck out ‘‘(23 U.S.C. 401 note)’’ after ‘‘of title 49’’. 2004—Par. (1)(B). Pub. L. 108–293, § 408(1), substituted ‘‘misconduct or’’ for ‘‘incompetence, misconduct, or’’. Par. (3). Pub. L. 108–293, § 609(3), substituted ‘‘section 30304(a)(3)(A) or (B) of title 49’’ for ‘‘section 205(a)(3)(A) or (B) of the National Driver Register Act of 1982’’. Pars. (4), (5). Pub. L. 108–293, § 408(2)–(4), added pars. (4) and (5). 1990—Pub. L. 101–380 amended section generally. Prior to amendment, section read as follows: ‘‘A license, cer- tificate of registry, or merchant mariner’s document issued by the Secretary may be suspended or revoked if, when acting under the authority of that license, cer- tificate, or document, the holder— ‘‘(1) has violated or failed to comply with this sub- title, a regulation prescribed under this subtitle, or any other law or regulation intended to promote ma- rine safety or to protect navigable waters. ‘‘(2) has committed an act of incompetence, mis- conduct, or negligence.’’ 1985—Pub. L. 99–36 substituted ‘‘certificate of reg- istry,’’ for first reference to ‘‘certificate,’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–380 applicable to incidents occurring after Aug. 18, 1990, see section 1020 of Pub. L. 101–380, set out as an Effective Date note under section 2701 of Title 33, Navigation and Navigable Waters. § 7704. Dangerous drugs as grounds for revoca- tion (a) If it is shown at a hearing under this chap- ter that a holder of a license, certificate of reg- istry, or merchant mariner’s document issued under this part, within 10 years before the begin- ning of the proceedings, has been convicted of violating a dangerous drug law of the United States or of a State, the license, certificate, or document shall be suspended or revoked. (b) If it is shown that a holder has been a user of, or addicted to, a dangerous drug, the license, certificate of registry, or merchant mariner’s document shall be revoked unless the holder provides satisfactory proof that the holder is cured. (Pub. L. 98–89, Aug. 26, 1983, 97 Stat. 546; Pub. L. 99–36, § 1(a)(9)(F), (G), May 15, 1985, 99 Stat. 68; Pub. L. 101–380, title IV, § 4103(a)(2)(B), Aug. 18, 1990, 104 Stat. 511; Pub. L. 108–293, title IV, § 402, Aug. 9, 2004, 118 Stat. 1043; Pub. L. 115–232, div. C, title XXXV, § 3545(b), Aug. 13, 2018, 132 Stat. 2326.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 7704(a) ......................................... 46:239a(a) 7704(b) ......................................... 46:239b(b)(1) 7704(c) ......................................... 46:239b(b)(2) Section 7704 requires the Secretary to revoke the li- cense, certificate, or document of any individual who has been convicted of a dangerous drug law within 10 years before the beginning of the suspension or revoca-