UNITED STATES OF AMERICA

DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

UNITED STATES OF AMERlCA

UNITED STATES COAST GUARD

vs.

DECISIO OF THE

VICE COMMANDA T

o APPEAL

MERCHANT MARINER LICENSE

and

MERCHANT MARINER DOCUMENT

Issued to: EDWARD K. HANSEN

NO. 2687

This appeal is taken in accordance with 46 U.S.C. § 7701 el seq., 46 C.F.R. Part

5, and the procedures set forth in 33 C.F.R. Part 20.

Bya Decision and Order (hereinafter "D&O") dated February 20, 2008,

Administrative Law Judge (hereinafter "AU") Michael J. Devine ofthe United States

Coast Guard at Norfolk, Virginia, suspended the Merchant Mariner Credentials ofMr.

Edward K. Hansen (hereinafter "Respondent") for one month on two months probation

upon finding proved one charge ofvio/alion a/law or regulation. The specification

found proved alleged that, while serving as the master of MN BETTY, Respondent

towed the TIB ATLANTIC SULPHUR NO.1 beyond the boundary line without a valid

load line certificate or coastwise load line exemption letter, in violation of 46 U.S.C. §§

5102 and 5103, and 46 C.F.R. § 42.07-1.

PROCEDURAL HISTORY

The Coast Guard filed an original Complaint in the matter on September 2, 2007,

and subsequently amended the Complaint's factual allegations on September 24, 2007,
HANSEN NO. 2687

and again on December 4,2007. [0&0 at 2] Respondent properly filed Answers to the

original Complaint and the first Amended Complaint, on September 21, 2007 and

October 16,2007, respectively. [Id.] Both of Respondent's Answers denied all

jurisdictional and factual allegations. [Id.] Although Respondent did not file an Answer

to the Coast Guard's second Amended Complaint, he was not required to do so because

the Complaint was filed less than 20 days before the hearing in the maller was scheduled

to commence. See 33 C.F.R. § 20.308(a).

The hearing convened on December II, 2007, in Norfolk, Virginia. [0&0 at 3]

During the hearing, the Coast Guard submitted the testimony ofsix witnesses, including

Respondent as an adverse witness, and entered eleven exhibits into the record. [Id.] In

addition to testifying on his own behalf, Respondent entered tcn exhibits into the record.

[ld.]

Respondent filed a timely Notice ofAppeal in the matter on March 13, 2008 and

perfected his appeal by filing an Appellate Brief on April 18, 2008. The Coast Guard

filed its Reply Brief on May 20, 2008. Accordingly, this appeal is properly before mc.

APPEARANCE: Respondent was represented by Mr. David N. Ventker, Esq., of

Ventker & Warman, PLLC, 101 West Main Street, Suite 810, Norfolk, VA 23510-1687.

The Coast Guard Investigating Officers were LT Chester K. Warren and LCDR David M.

Sherry of U.S. Coast Guard Sector Hampton Roads, Portsmouth, Virginia.

FACTS

At all times relevant herein, Respondent was the holder of the above-captioned

Merchant Mariner Credentials issued by the United States Coast Guard. [D&O at 4]

2
HANSEN NO 2687

On September I, 2007, Respondent, while under the employment ofIsland

Maritime Services, Inc., served as Master ofthe MN BETTY, a 197 gross ton, 99.5 foot

long U. S. Flagged towing vessel. [D&O at 4; Tr. at 24-26; Coast Guard Exhibits 2, 3)

On that date, pursuant to a contract between Island Maritime Services, Inc. and Island

Shipping, Respondent took the TIB ATLANTIC SULPHUR O. I-a 1578 gross ton,

225 foot long barg<>-under tow. [D&O at 4; Tr. at 24-26; Coast Guard Exhibits 2, 5]

During the voyage, Respondent was supposed to tow the TIB ATLANTIC SULPHUR

NO. I from Norfolk, Virginia, to Hooduras. [D&O at 5; Tr. at 22-26] 00 the date ofthe

voyage, both vessels operated under the U.S. flag. [D&O at 5; Tr. at 75-83,101-11;

Coast Guard Exhibits 3, 5, 6, 7, 8]

Before the voyage commeoced, Respondent inspected the TIB ATLANTIC

SULPHUR NO. I and found her to be both seaworthy and suitable for tow. [Tr. at 48,

205] During this inspection, Respondent observed that the barge had a load line marked

on its hull in the required locations, that the barge appeared to be structurally sound, and

that the barge was free of both cargo and personnel at the time that the voyage

commenced. [Tr. at 48,50,205] However, Respondent did not check any ofthe

vessel's paperwork. [Id.] As a consequence, Respondent was not aware that, at the time

ofthe voyage, the TIB ATLANTIC SULPHUR NO. I did not possess a valid load line

certificate or a valid load line exemption letter. [D&O at 5; Tr. at 108-111; Coast Guard

Exhibit 5; Respondent's Exhibit C]

Coast Guard regulations state that the boundary line for the Chesapeake Bay

extends from the Cape Charles Light to the Cape Henry Light. See 46 C.F.R. § 7.50.

During the voyage at issue here, the MN BETTY towed the TIB ATLANTIC SULPHUR

3
HANSEN NO 2687

NO. I past the boundary line ofthe Chesapeake Bay. [D&O at 5; Tr. at 49, 90-97; Coast

Guard Exhibit 4] Using the National Automated Identification System, the United States

Coast Guard. Sector Hampton Roads' Command Center plotted the MN BETTY and its

tow at sea, past the boundary line. [Tr. at 90-97; Coast Guard Exhibit 4] The Coast

Guard ordered Respondent, via radio, to return to port after he acknowledged that he did

not have a load line certificate or exemption letter onboard the barge. [Tr. at 50]

Respondent complied. [Id.] Subsequently thereafter, on September 20, 2007, the Officer

in Charge, Marine Inspection ofCoast Guard Sector Hampton Roads, issued a Coastwise

Load Line Certificate to the TIB ATLANTIC SULPHUR NO. I for a coastwise voyage

from Chesapeake, Virginia, to Key West, Florida. [Respondent's Exhibit C]

The AU found that Respondent was acting under the authority ofms license

while serving as the master ofthe MN BETTY and found the single charge proved.

[D&O at II-12J

BASES OF APPEAL

Respondent appeals the AU's Decision and Order contending that:

l. The Coast Guardfailed to prove that it hadjurisdiction over Capt.

Hansen's license;

ll. The AUcommitted clear error byfinding a violation ofa

regulation which was neither charged in any complaint or

amendment nor referenced at any time during or after the hearing;

Ill. The ALI committed cleor error by finding thot TIB ATLANTIC

SULPHUR NO. J did not have 0 proper load line;

IV. The regulations upon which the Decision and Order are based are

invalid; and

v. The Coast Guardfailed to prove a violation oflaw and regulation upon

which the (Second) Amended Complaint was based.

4
HANSEN NO. 2687

A review of Respondent's appeal briefshows that he does not raise specific

arbTUments with regard to his fifth basis of appeal. Instead, in making this unsubstantiated

claim, Respondent appears to be reasserting portions of his second and third bases of

appeal. Given the thorough discussion ofthose issues herein, I find that Respondent's

fifth basis of appeal is unduly repetitious and will not be further discussed.

OPINION

On appeal a party may challenge whether each finding offact rests on substantial

evidence, whether each conclusion of law accords with applicable law, precedent, and

public policy, and whether the All committed any abuses of discretion. See 46 C.F.R. §

5.701 and 33 C.F.R. § 20.1001. The ALl's findings of fact and determinations in this

regard will not be disturbed and will be upheld on appeal unless they are clearly

erroneous, arbitrary and capricious, or based on inherently incredible evidence. See

Appeal Decision 2541 (RAYMOND) citing Appeal Decisions 2522 (JENKINS), 2492

(RATH) and 2333 (ALAYA). As a basis for appellate review, "a finding offact is

clearly erroneous when, although there is evidence to support such finding, the reviewing

court upon reviewing the entire evidence is left with the definite and firm conviction that

a mistake has been committed." See Appeal Decision 2610 (BENNETT). A finding is

"arbitrary and capricious" when it is the result of "willful and unreasonable action

without consideration or in disregard of facts or law or without determining principle,"

See Appeal Decision 2610 (BENNETT), in other words, when "there is no rational

connection between the facts found and the choice made." Motor Vehicle Mfrs. Ass 'no of

US, fnc. v. State Farm Mut. Autofns. Co., fnc.. 463 U.S. 29, 43,103 S.Ct 2856, 2866

(1983). The findings ofthe ALl need not be consistent with all evidentiary material in

5
HANSEN NO. 2687

the record as long as there is sufficient material in the record to support such findings.

See Appeal Decisions 2395 (LAMBERT) and 2282 (LlTILEFIELD).

L

The Coast Guard/ailed /0 prove that it hadjurisdiction over Capt. Hansen's license.

The first issue raised in Respondent's appeal is onc ofjurisdiction. Respondent

argues that the Coast Guard failed to establish jurisdiction in his case because it "failed to

offer sufficient evidence to show that a license was required as a condition of

employment or as a matter oflaw in the face of a direct challenge to jurisdiction...[by

Respondent] ...during the proceedings." [Respondent's Appeal Brief at 11] In addition

to asserting that Respondent proved by his testimony that a mariner credential was not

required for his service as Master ofthe MIV BETIY, Respondent contends, pursuant to

46 U$.C. § 8905(b), that the MN BETIY was exempt from the applicable statutory

manning requirements] because it "is an uninspected towing vessel ofless than 200 gross

tons" that was "used to move oil products." [Id.l

Past Commandant Decisions on Appeal state that jurisdiction is critical to the

validity of a proceeding and make clear that when jurisdiction, or proofthereof, is

lacking, dismissal is required. Appeal Decisions 2656 (JORDAN). 2104 (BENSON),

2094 (MILLER), 2090 (LONGINO), 2069 (STEELE) and 2025 (ARMSTRONG).

Accordingly, if I find Respondent's jurisdictional contentions persuasive, irrespective of

any detennination as to the charged offense, I must grant Respondent's appeal and

dismiss the case. Appeal Decision 2656 (JORDAN).

l 46 U.S.C. § 8904 states that a towing vessels greater than 26 feet in length must be operated by a licensed

mariner.

6
HANSEN NO. 2687

Critical to deterrniningjurisdiction in this instance is whether Respondent was

operating under the authority of his credentials at the time ofthe alleged violation. To

establish jurisdiction in a violation oflaw or regulation case, the alleged violation must

be proven to have occurred while the mariner was "acting under the authority" of a

Merchant Mariner Credential. See 46 U.S.C. § 7703. Acting under the authority of a

credential is explained in 46 C.F.R. § 5.57 which states:

(a) A person employed in the service ofa vessel is considered to be acting

under the authority of a license, certificate or document when the

holding ofsuch license certificate or document is:

(1) Required by law or regulation; or

(2) Required by an employer as a condition for employment.

In his 0&0, the AU stated that Respondent was "acting under the authority" of a

mariner credential at the time ofthe alleged violation:

In this case, the Coast Guard has established that the MIV BETTY is a

U.S. flagged towing vessel greater than twenty-six ...feet in length and is

therefore required to be under the direction of a Coast Guard licensed

master. The Coast Guard has also established that Respondent was the

master ofthe MN BETTY on September I, 2007, as it operated in the

Chesapeake Bay area. Since a license was required for Respondent to

operate the MN BETTY, Respondent is found to have been acting under

the authority of his Coast Guard license while he operated the MN

BETTY. (citations omitted)

[D&O at 6] The AU's finding is supported by 46 U.S.C. § 8904(a) which states that "[aJ

towing vessel that is at least 26 feet in length measured from end to end over the deck

(excluding sheer), shall be operated by an individual licensed by the Secretary to operate

that type of vessel in the particular geographic area, under prescribed regulations." Such

a towing vessel "must be under the direction and control of a person holding a license or

MMC officer endorsement as master or mate (pilot) oftowing vessels." 46 C.F.R. §

7
HANSEN NO 2687

15.610. The record shows that Respondent was the master ofthe MN BEITY on

September 1,2007, as it operated within and beyond the Chesapeake Bay area. [0&0 at

6; Tr. at 22-26; Coast Guard Exhibit 2] Therefore, because the MN BETTY is at least

26 feet in length, the vessel was required to be operated by a licensed individual.

Accordingly, the record contains sufficient, reliable, and credible evidence to support the

AU's conclusion that Respondent was operating the vessel under the authority of his

license.

Respondent argues however that he raised a material issue to jurisdiction that the

Coast Guard failed to adequately rebut. In Coast Guard Suspension and Revocation

actions, a Respondent must prove that an exemption applies to his situation by a

preponderance oftbe evidence. See 33 C.F.R. §§ 20.701 & 20.702. The AU found

Respondent's assertions with regard to the exemption contained at 46 U.S.c. § 8905(b) to

be without merit. The AU did so upon concluding that "46 U.S.C. § 8905(b)...applies

only to vessels in the offshore oil industry." [D&O at 6] The AU concluded that

because "Respondent has provided no evidence that his towing vessel was involved in the

offshore oil industry," Respondent could not argue that the M1V BETTY was exempt

from applicable manning requirements. [D&O at 7] The only support that Respondent

offered for the exemption was his own testimony, within which he asserted that he

"pushed oil," along with various other things such as pre-stressed concrete, during the

1980s. [Tr. 35] Given the lack of evidentiary support for Respondent's assertion, I do

not find that the AU erred in detennining that the exemption did not apply to

Respondent's situation. Respondent simply did not meet his burden ofshowing. by a

8
HANSEN NO. 2687

preponderance ofthe evidence, that the exemption in 46 U.S.C. § 8905 applied to his

case. Accordingly, Respondent's first basis for appeal is rejected.

II.

The ALl committed clear error byfinding a violation ofa regulation which was neither

charged in any complaint or amendment nor referenced at any lime dUring or after the

hearing.

Respondent's second basis of appeal is essentially a "due process" argument, to

wit: the specific regulation found proved by the AU--46 C.F.R. § 42.07-5(b}-"was not

referenced in the pleadings or at the hearing." [Respondent's Appeal Brief at 11]

Respondent argues that he did not receive adequate notice afthe charged violation and

"CQuld not defend against [a] regulatory violation...which appeared for the first time in

the Decision and Order ofthe AU." [Respondent's Appeal Briefat 12]

Although he fails to cite to it within his Appeal Brief, the issue of notice within a

Complaint, the basis of which is a violation of law or regulation, is covered in 46 C.F.R.

§ 5.33. This section mandates that when the Coast Guard alleges a violation a/law or

regulation, "the complaint must state the specific statute or regulation by title and section

number, and the particular manner it was allegedly violated." Similarly, 33 C.F.R. §

20.307 states that the Complaint must set forth the "[s]tatute or rule allegedly violated."

However, amendments made after conclusion of a hearing are not unprecedented.

Appeal Decision 2393 (STEWART). The test of whether a pleading may be amended is

not based on the timing ofthe amendment, but on whether there has been notice and an

opportunity to litigate the amended charge. Kuhn v. Civil Aeronautics Board. 183 F.2d

839,841 (D.C. CiL 1950); Appeal Decisions 2326 (McDERMOTI); 1956 (RA SON);

2393 (STEWART); 2209 (SIEGELMAN). Strict adherence to the regulatory dictates of

9
HANSEN NO. 2687

46 C.F.R. § 5.33 and 33 C.F.R. § 20.307 is not required to satisfy the requirements of due

process. In suspension and revocation proceedings, the AU has the authority to amend

pleadings to confonn to proof. See Appeal Decision 1792 (PHILLIPS). see also Appeal

Decision 2041 (SISK) (amendment of a specification is desirable if a matter is litigated).

As a consequence, "administrative pleadings in these proceedings are not stringently

bound by the procedural pleading requirements governing civil and criminal judicial

forums." Appeal Decision 2478 (DUPRE). Instead, "the purpose ofa Complaint. ..is to

provide the 'legal and factual bases under which the Coast Guard is proceeding. '" See

Appeal Decision 2676 (PARKER) citing Appeal Decision 2655 (KILGROE).

Specifically, the Complaint is meant to "fulfill...a notice requirement" and the

specifications contained therein provide notice to the charged party so that he has an

adequate opportunity to prepare his defense. See Appeal Decisions 2676 (PARKER), and

2630 (BAARSVIK) "The essential inquiry is the understanding ofthe parties as to

whether the unpleaded [or improperly pleaded] issue was being contested.... It must be

clear that the parties understand exactly what the issues are when the proceedings are

had. Actuality of notice there must be, but the actuality, not the technicality, must

govern." Kirkland v. District ofColumbia, 70 F.3d 629, 633, D.C. CiT. 1995) (citations

omitted)

The record shows that the Coast Guard filed three complaints in this case. The

Coast Guard's first Complaint, dated September 2,2007, was withdrawn and fully

replaced by a subsequent Complaint dated September 24, 2007. In that document, the

Coast Guard alleged that Respondent committed a violation oflaw or regulation and

supported the allegation by the following factual specification:

10
HANSEN

The Coast Guard alleges that on 24 September 2007:

NO. 2687

I. The Respondent wrongfully towed the tank barge ATLANTIC

SULFUR NO. I, O.N. 283904, beyond the boundary line without a

valid load line certificate or coastwise load line exemption letter, a

violation of U.S. Laws and Regulations set forth in 46 United States

Code Part C, Chapter 51, and 46 Code of Federal Re!,'\I1ations

Subchapter E, Part 42.

[Complaint at 2] The Coast Guard amended this Complaint on December 4, 2007.

Although the substance ofthe Amended Complaint remained the same-Respondent

towed the ATLANTIC SULFUR NO. I beyond the boundary line without a valid load

line certificate or coastwise load line exemption letter-the document changed the date of

the alleged violation to September I, 2007, removed the word "wrongfully" from the

factual specification, and added specificity to the description ofthe legal and reh'lJlatory

authority for the violation. [Amended Complaint at 2] While the original Complaint

alleged that Respondent committed a violation oflaw or regulation as "set forth in 46

United States Code Part C, Chapter 51, and 46 Code of Federal Regulations Subchapter

E, Part 42," the Amended Complaint stated that Respondent committed a violation oflaw

or regulation "as set forth in 46 U.S.c. § 5102,46 U.S.c. § 5103, and 46 C.F.R. § 42.07-

1." [Id.]

In his D&O, the AU found that Respondent committed a violation of 46 C.F.R.

§ 42.07-5 because he did not ensure that the load line marks on the T/B ATLANTIC

SULFUR NO.1 were "attested by a valid load line certificate" or exemption certificate.

[D&O at 7-8] Respondent contends that because the specific regulation, 46 C.F.R.

§ 42.07-5, was not alleged during these proceedings, either in the Complaint or while the

case was pending before the AU, he was not accorded proper notice of the alleged

violation.

11
HANSEN NO. 2687

Although the specific regulatory cite ofthe violation found proved was not

alleged in the Complaint. the substance ofthe alleged violation-that Respondent towed

the TIB ATLANTIC SULFUR NO. I beyond the boundary line without a valid load line

certificate or exemption letter-was identified in the factual specification of both the

original Complaint and the Amended Complaint. Moreover, at the hearing, issue ofthe

requirement for, and expiration ofa load line certificate was argued by the Respondent

[TR at 35-37]; both the 10 and the Respondent offered the Load Line Certificate as

evidence [TR at 39]; and the Respondent argued that failure to have a load line certificate

did not pose a danger to navigation safety. [TR at 55-57.)

Regardless of any deficiencies in the pleadings ofthis case, Respondent clearly

had notice ofthe nature of the alleged violation, and actually contested the issue.

Accordingly. Respondent's second appeal basis is without merit and rejected. It should

be noted, however, that neither the Complaint nor the AU's D&O cited the proper

regulation. Based on the evidence adduced in the record, and the facts found in the

D&O, I find that Respondent actuaJly violated 46 C.F.R. § 42.07-50(b): "The master

and/or owner of a vessel that is operated, navigatcd or used in violation ofthe provisions

of the load line acts or the regulations in this subchapter will be subject to the penalties as

set forth in law . .." These penalties include suspension and revocation action. Jd at

(b)(5). The requirement for a valid load line certificate is within the subchapter

referenced in the prohibitory regulation. (46 C.F.R. §42.07-5(b». I wiJl correct this

error in the decrital paragraph.

t2
HANSEN

III.

NO 2687

The AUcommitted clear error by finding that TIS ATLANTIC SULPHUR NO. 1 did not

have a proper Load line.

Respondent's third basis of appeal is that the AU erroneously found that the TIB

ATLANTIC SULFUR NO.1 did not have a proper load line. While Respondent

acknowledges that the TIB ATLANTIC SULFUR NO.1 is subject to the statutory load

line requirements, he contends that the AU erred in finding the violation proved.

[Respondent's Appeal Brief at 13] Respondent supports his assertion with two theories:

1) Respondent did not have a duty to ensure that the barge was in compliance with the

load line requirements, and 2) The applicable load line requirements do not mandate that

a load line certificate be carried by Respondent; he need only ensure that load lines are

marked on a vessel.

A.

The first issue presented in Respondent's third basis of appeal is whether

Respondent had a duty to ensure that the TIB ATLANTIC SULFUR NO. I was in

compliance with the applicable load line requirements. Citing 46 U.S.C. § 51 03(b),

Respondent contends that the duty to comply with the load line requirements applies only

to the "owner, charterer, managing operator, agent, and individual in charge of a vessel."

[Respondent's Appeal Briefat 13] As a result, Respondent asserts that because "[t]he

regulation is conspicuous for its failure to reference the tenn 'master,'" Respondent bore

no responsibility with respect to the vessel's load lines. [ld.] In his argument,

Respondent misquotes the applicable statute and ignores the portion ofthe AU's D&O

which properly states that "Title 46 U.S.C. 5103(b) holds that the '[t]he...master, and

individual in charge ofa vessel shall mark and maintain the load lines pennanently and

I)
HANSEN NO. 26 a 7

conspicuously in the way prescribed by the Secretary.'" [D&O at 9] The "master" is, as

the AU properly noted, included among the parties that 46 U.S.C. § 5103(b) lists as

being required to "mark and maintain the load lines" on a vessel. Accordingly, the AU's

did not err in detennining that Respondent was included among the parties responsible

for ensuring compliance with the applicable load line requirements.

B.

The next issue presented is whether the operative load line requirements mandate

that a load line certificate be carried aboard a vessel or, contrarily, whether the marking

ofthe vessel's load lines, in and ofitself, equates to compliance with applicable law and

regulations. Respondent contends that the statute that he "was actually charged with

having violated...[does not require a]. .. certificate or other piece of paper be carried

by...[Respondent] .. .it requires only that the vessel be marked with load lines."

[Respondent's Appeal Brief at 17] Respondent concludes that "[i]nasmuch as such

marks were in place, there is no evidence the marks, as placed, were improper or

incorrect, there is no evidence of a statutory violation." [Id.] In so asserting, Respondent

misapprehends the applicable load line requirements.

When a vessel is assigned load lines, the lines are required to be marked in

accordance with 46 C.F.R. Part 42. See 46 C.F.R. § 42.07-1. 46 C.F.R. § 42.07-5(b)

makes clear that "the load line marks placed on a vessel shall be attested to by a valid

load line certificate as required by §42.07-45(b)." 46 C.F.R. § 42.07-45(d) further states

that each load line certificate is issued for a period offive years and may only be

extended for up to 150 days.

14
HANSEN NO. 2687

A review of the record shows that, during his testimony, Respondent stated that

the T/B ATLANTIC SULPHUR NO.1 did not have any paperwork, including a valid

load line certificate, on board it at the time ofthe voyage. [Tr. at 50] Moreover, the

record shows that although the TIB ATLA TIC SULFUR NO. I had previously held a

valid load line certificate, it expired in 1999, long before the voyage at issue in these

proceedings. [Coast Guard Exhibit 5] In addition, the record shows that the TIB

ATLA TIC SULPHUR NO.1 did not receive a load line exemption letter until

September 20, 2007. [Respondent's Exhibit C] Accordingly, the record does not support

a conclusion that the AU was arbitrary, capricious, or clearly erroneous in determining

that the TIB ATLANTIC SULFUR O. 1 did not have a valid load line certificate or

exemption letter at the time ofthe relevant voyage. Because the record contains

substantial evidence to support the AU's conclusion that the violation occurred, the

AU's finding in that regard will not be disturbed.

IV.

The regulations upon which the Decision and Order are based are invalid.

Respondent next argues that because the statutory basis upon which the current

load line rehrulations were issued no longer exists, the applicable load line reh'1llations,

issued under the former statutory mandates, are invalid. A review of prior Commandant

Decisions on Appeal shows that in Coast Guard suspension and revocation proceedings, a

"regulation that was duly promulgated according to law is entitled to a presumption of

validity." See Appeal Decision 2328 (MINTZ) ciling Appeal Decision 1999 (ALT AND

JOSSY). Irrespective ofthe operation ofthis presumption, prior Commandant Decisions

on Appeal have held that an administrative proceeding, such as this one, is not the proper

15
HANSEN NO. 2687

forum for challenging the validity of statutes and regulations, See Appeal Decisions 2330

(STRUDWICK), 2328 (MINTZ), 2203 (WEST), 2202 (VAIL). and 1999 (ALT and

lOSSY), Accordingly, Respondent's fourth basis of appeal is rejected

CONCLUSION

The findings of the AU had a legally sufficient basis. The AU's decision to

suspend Respondent's mariner credentials for one month on two months probation

(ending on April 20, 2008) was not arbitrary, capricious, clearly erroneous, or based on

inherently incredible evidence. Because competent, substantial, reliable, and probative

evidence exists to support the AU's decision, Respondent's appeal arguments are

without merit.

ORDER

The order of the AU, dated February 20, 2008, at Norfolk, Virginia, is

AMENDED, to the extent that the violation of law and regulation found PROVED

includes 46 c.F.R. § 42.07-50. The order, as amended, is AFFIRMED.

:\}

Signed at Washington, D.C. this 'l::.- day o~2010.

Vice

~~B~ Admiral, U.S. Coast Guard

Vice Commandant

16