UNITED STATES OF AMERICA

U.S. DEPARTMENT OF HOMELAND SECURITY

UNITED STATES COAST GUARD

_________________________________

UNITED STATES COAST GUARD

Complainant

vs.

RICHARD ALBERT CHESBROUGH 

Respondent

_________________________________

Docket Number 2011-0224

Enforcement Activity No. 4006949

ORDER GRANTING RESPONDENT’S REQUEST 

FOR A TEMPORARY CREDENTIAL 

Issued: August 22, 2012

By Administrative Law Judge: 

Honorable George J. Jordan

Appearances:

LT Kimberly D. Rule

Sector Columbia River

For the Coast Guard

RICHARD ALBERT CHESBROUGH, Pro se

For the Respondent
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ORDER GRANTING RESPONDENT’S REQUEST FOR A 

TEMPORARY CREDENTIAL 

This Order follows Respondent’s appeal of my July 25, 2012 Decision and Order, 

wherein he requested a temporary credential while his appeal is pending. In my Decision and 

Order, I found an outright suspension of two (2) months, followed by an eighteen-month (18) 

probationary period appropriate. The Coast Guard filed its objections and requested that I deny 

the temporary credential on August 17, 2012.

As there has been ongoing activity in this case, the transcript has not yet been forwarded 

to the Commandant. Thus, I retain jurisdiction over the issue of the temporary credential. See 46 

C.F.R. §5.707(b) (“Action on the request is taken by the ALJ unless the hearing transcript has 

been forwarded to the Commandant, in which case, the Commandant will make the final 

action.”) The APA provides that since there has been an appeal, my initial decision is not the 

final agency action in this matter. 5 U.S.C. § 557(b), 33 C.F.R. § 20.1101(b).

Under 46 C.F.R. §5.707(a), “[a] person who has appealed from a decision suspending 

outright or revoking a credential or endorsement, except for revocation resulting from an offense 

enumerated in § 5.59, may file a written request for a temporary credential or endorsement.” The 

offenses listed in 46 C.F.R. § 5.59 are those for which revocation of a license, certificate, or 

document are mandatory and generally involve the use, possession, sale, association, or 

conviction involving dangerous drugs. Respondent’s offenses in this matter did not involve any 

of those enumerated in 46 C.F.R. § 5.59, thus he is entitled to file a request for a temporary 

credential. 

Temporary credentials are issued according to the criteria set forth in 46 C.F.R. § 

5.707(c), which states,

A determination as to the request will take into consideration whether the 

service of the individual is compatible with the requirements for safety at 

sea and consistent with applicable laws. If one of the offenses enumerated 

in § 5.61(a) has been found proved, the continued service of the applicant 
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will be presumed not compatible with safety at sea, subject to rebuttal by 

the appellant. A temporary document or license may be denied for that 

reason alone. 

Respondent was not charged with any of the enumerated offenses listed in 46 C.F.R. § 5.61(a), 

therefore the presumption that his continued service is incompatible with safety at sea does not 

arise in this case.

The primary issue remaining in determining whether such a document should be issued is 

whether Respondent’s continued service would be incompatible with safety at sea. “This inquiry 

serves to balance two conflicting policies: first, removal of an unfit mariner from the industry 

and elimination of further risk of harm to the public and, second, protection of an accused 

mariner's due process right to state his case on appeal without having already suffered the 

penalty, as well as the financial hardship, imposed by the decision at the hearing level.” Appeal 

Decision 2499 (AILSWORTH) (1990) Suspension or revocation of a mariner’s credentials is 

predicated solely on the charge found proved after all due process requirements have been 

complied with, therefore “the decision to grant or deny a temporary document or license must be 

based on a predictive judgment concerning that charge alone.” Commandant v. Tombari , 6 

N.T.S.B. 1617, NTSB ORDER NO. EM-150, (1988); see also AILSWORTH, supra. The issue I 

must decide is” not whether appellant should serve a sanction for a serious breach of maritime 

safety standards, but whether he should be forced to serve a sanction before his right to defend 

against the charge has been exercised fully.” Commandant v. Lyons, 5 NTSB 2678, NTSB Order 

EM-142 (1987).

Respondent states that he has operated one- to two-hour excursions with this vessel in the 

area for approximately twelve years. The record in this case established that Appellant has held 

an MML for over thirty years, and no evidence of any prior actions against his license was 

introduced. I am aware that the Coast Guard has filed a subsequent action against Respondent’s 

license based on a separate incident. However, case law clearly states that I may only consider 
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allegations found proved when making a determination about whether to issue a temporary 

license. See Lyons and Tombari, supra. As the pending matter has not yet been adjudicated, I 

have not considered the existence of a new complaint for purposes of this Order.

The Coast Guard has opposed the issuance of a temporary credential to Respondent. The 

National Transportation Safety Board has held that, where the Coast Guard opposes a temporary 

credential, its “obligation under the Administrative Procedure Act (“APA”) [is] to explain why 

appellant is ineligible for a temporary license under the applicable regulatory standard.” 

Commandant v. Moore, NTSB Order No. EM-200 (2005). Here, a denial of Respondent’s 

request for a temporary credential “would have to be supported by evidence sufficient to enable a 

reasonable predictive judgment that Appellant's continued service would be incompatible with 

safety at sea.” AILSWORTH, supra. 

In its motion, the Coast Guard pointed to the recently filed charges against Respondent, 

which are not yet adjudicated, in support of its contention that “The Respondent has 

demonstrated a history of willful non-compliance with the terms of his vessel's COI.” However, 

as explained above, I may not consider any charges which have not been found proved. 

Moreover, provided the charged offense “is not one of the enumerated offenses giving rise to a 

presumption of incompatibility with the requirements for safety at sea, ‘the Coast Guard must do 

more than state that offense to justify denial of a temporary license.’ ” Moore, supra (quoting 

Lyons, supra). The Coast Guard has not articulated any other reasons, aside from Respondent’s 

violation of the vessel’s COI, why Respondent is ineligible to hold a temporary credential.1

This record does not support a determination that Respondent’s continued service is 

incompatible with safety at sea, although a sanction at the lower end of the suggested range was 

 1 The Coast Guard’s motion appears to imply that Respondent is unlikely to prevail on appeal, but does not directly 

oppose the temporary credential on these grounds. However, even if the Coast Guard intends to make this argument, 

it is not grounds for the denial of a temporary credential because due process considerations entitle Respondent to 

fully defend against the charges on appeal regardless of his likelihood of success. See, e.g., AILSWORTH, supra; 

Lyons, supra.
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warranted. On the facts of this case, Respondent’s right to state his case on appeal without 

having already suffered the hardships imposed by my order of suspension outweighs the risk of 

harm to the public. Based on the APA and Coast Guard regulations, my order in this matter is not 

yet final agency action and it should remain inoperative pending an appeal to superior agency 

authority. Accordingly, Respondent’s request for a temporary credential is GRANTED. 

__________________________________________________

George J. Jordan

US Coast Guard Administrative Law Judge

Date: August 22, 2012