(3) If the investigating officer finds adequate basis for a complaint and the person under investigation, or witnesses are not then available, the case may be referred to the Commandant or to any other port or district for completion of action.

(4) If the investigating officer finds evidence of physical incompetence he may accept voluntary surrender of a license or certificate until such time as the person concerned produces a certificate of medical fitness from the United States Public Health Service or other competent medical authority.

(5) If the investigating officer finds reasonable ground to believe that a licensed or certificated person is incompetent or has committed some act or failed to perform some duty which would be the basis for revocation or suspension of a license or certificate, he may prefer charges.

(b) In the conduct of an investigation, the investigating officer shall have the power to administer oaths, subpoena witnesses, require persons having knowledge of the subject matter of the investigation to answer questionnaires, and require the production of relevant books, papers, documents, licenses, certificates, or other records. The investigating officer conducting such investigation shall, where the licensed officer or certificated man whose conduct is being investigated is available, advise such person informally of the substance of the complaint against him and afford him an opportunity at that time to make such comment in refutation of such complaint as he may desire.

(c) Having concluded that there is reasonable ground to believe that there is basis for action, the investigating officer shall institute an appropriate proceeding against the license(s) and/or certificate(s) and present the evidence acquired to an examiner.

$137.05-7 Voluntary surrender of licenses and certificates to avoid hearing. (a) Except as provided in § 137.05-5, any person whose conduct is under investigation or who has been served with charges and specifications may voluntarily surrender to the investigating officer his licenses and/or certificates in preference to appearing at a hearing under Title 46 U. S. Code section 239 to answer charges against him.

(b) In such cases the person surrendering the licenses or certificates shall sign a statement containing the following stipulations:

(1) That the licenses or certificates are voluntarily surrendered in preference to appearing at a hearing to answer charges against him;

(2) That all title to such documents is permanently relinquished; and, (3) That the right to a hearing, appeal, and judicial review are waived. $137.05-10 Instituting proceedings. (a) To institute such proceedings the investigating officer shall prepare charges and specifications and serve the same upon the holder of the license(s) and/or certificate(s) involved, and at the same time he shall furnish the appropriate examiner with a copy of such charges and specifications and transmit the case for hearing by the examiner. The examiner shall fix the time and place of the hearing and furnish information thereof to the investigating officer who shall summon the person charged, subpoena witnesses, and otherwise prosecute the case.

(b) A charge is a designation of an offense in general terms. The offense must be one within the purview of Title 46 U. S. Code section 239 and of the regulations promulgated thereunder. It is permissible to prefer as many charges as may be necessary to provide for every possible contingency in the evidence. Under no circumstances does a charge constitute evidence of guilt, nor may any inference of guilt be drawn from the fact that licensed or certificated personnel have been charged. A specification sets forth the facts which form the basis of the charge and any charge may be supported by one or more specifications. Its purpose is to enable the person charged to identify the offense so that he will be in a position to prepare his defense. The specification shall state:

(1) Legal authority and jurisdiction;

(2) Time and place of offense;

(3) Ultimate facts; and,

(4) Only one offense in any one specification.

A notice of the time and

$ 13.705-15 Service of charges, specifications, etc. place of hearing and a copy of the charges and specifications shall be served upon the person charged either by personal service or by registered mail with return receipt required, sufficiently in advance of the time set to give such person a reasonable opportunity to prepare his defense. When personal service is made upon the person charged, the officer or employee making service shall exhibit the original of the notice to the person charged, read it to such person if he cannot read,

and give him a copy thereof and of the charges and specifications. The person charged will be advised by the investigating officer at the time he is issued Notice of Hearing (Form CG 2639) that he has a right to have counsel represent him at the hearing, and that "counsel" may be a lawyer or any other person the accused desires to represent him. The person charged will be apprised of the nature of the proceedings and the possible penalties applicable and be afforded an opportunity of having witnesses subpoenaed to testify in his behalf.

SUBPART 137.07-EXAMINERS

§ 137.07-1 Designations. The examiners are designated in writing by the Commandant to conduct hearings necessary in the adjudication of disciplinary cases arising under Title 46 U. S. Code section 239 and are under the administrative control of that officer.

§ 137.07-5 Responsibilities. (a) The examiners are responsible for the conduct of hearings and shall observe all rules and regulations promulgated by the Commandant. The examiners shall render their decisions without undue delay after all evidence is in and after the parties have been afforded a reasonable opportunity to submit proposed findings and conclusions.

(b) The examiners shall be responsible for the preparation and forwarding of reports of hearings and the administrative work relating thereto, and shall have access to facilities and temporary use of personnel at such times and places as are needed in the prompt dispatch of official business.

(c) The examiners shall perform no duties inconsistent with or which will interfere with their duties and responsibilities as examiners. Any additional duties for examiners shall be assigned by the Commandant, or pursuant to instructions issued by the Commandant, to the District Commander.

(d) Save to the extent as required for the disposition of ex parte matters as provided by law, an examiner is prohibited from consulting with anyone concerning "any fact in issue," unless after notice, all parties are permitted to participate. If, as the hearing develops, the examiner realizes that the evidence adduced must be analyzed by experts, he may request the holder of the license or certificate involved, or the investigating officer, to produce the necessary experts to give their views as witnesses. He may not informally obtain advice or opinions from the parties or their counsel or from any officer or employee of the Coast Guard as to the facts or the weight or the interpretation to be given to the evidence. The examiner may, however, informally obtain advice on matters of law or agency policy from officers or employees of the Coast Guard who were not "engaged in the performance of investigative or prosecuting functions" in that or a factually related case. This limitation does not apply to the Commandant, and the examiner may at any time consult with and obtain instructions from him on questions of law and policy.

SUBPART 137.09-HEARINGS

§ 137.09-1 Procedures for conduct of hearings. The procedures outlined in this subpart shall be followed in the conduct of hearings.

$137.09-5 General. (a) The examiner shall open the hearing at the time and place specified in the notice, administer all necessary oaths, cause a complete record of the proceedings to be kept, regulate and conduct the hearing in such a manner as to bring out all the relevant and material facts, and insure the accused a fair and impartial hearing on the charges made against him. The investigating officer shall aid in the orderly presentation of evidence and may examine and cross-examine witnesses and introduce documentary evidence into the record. The person charged shall have the right to have counsel present at the hearing and shall be permitted to call, examine, and cross-examine witnesses and to introduce relevant documentary evidence into the record. Should the person charged desire counsel and has no means of obtaining one, the examiner will secure an officer, if one is available, to act in his defense. Any witness may, if he so desires, have personal counsel present during the time he is being examined to advise him as to his rights, privileges, and immunities under the Constitution, but such counsel may not otherwise participate in the hearing.

(b) The examiner shall have authority either on his own motion or upon the request of the parties to issue subpoenas summoning witnesses or requiring the production of any relevant books, papers, documents, or other evidence. Applications for subpoenas may be filed with the examiner in writing by any party prior to or during the hearing. Such applications shall be timely, and

specify the name of the witness and show the general relevance and reasonable scope of the evidence sought, and, if calling for documents, shall specify the same with such particularity as will enable them to be identified for purpose of production.

(c) The examiner may, at the outset of the hearing, during its progress, or at its conclusion, either on his own motion or on the motion of the investigating officer, cause or permit the amendment of the charges and specifications to correct clerical errors or errors of form.

(d) The examiner may, for good cause shown, either on his own motion or on the motion of the investigating officer or person charged, continue the hearing from day to day or adjourn such hearing to a later date or to a different place by announcement at the hearing or by other appropriate notice. In making such determination, consistent with the rights of the person charged to a fair and impartial hearing, the examiner shall give careful consideration to the future availability of witnesses and to the prompt dispatch of the vessel (s).

(e) In any disciplinary proceeding conducted under this part, the examiner may withdraw from the case when he deems himself disqualified. In such event he shall immediately notify the Commandant of his withdrawal and his reasons therefor. Any party may, in good faith, request the examiner to withdraw on the grounds of personal bias or other disqualification. The party seeking disqualification shall file with the examiner a timely affidavit setting forth in detail the facts alleged to constitute grounds for disqualification and the examiner may file a response thereto. If the examiner believes himself not disqualified he shall so rule and proceed with the hearing. If the party seeking disqualification excepts to the ruling of the examiner, such exception and evidence relating to the claim of disqualification shall be presented to the examiner. All matters relating to such claims of disqualification shall affirmatively appear in, and form part of the record.

(f) In any case in which the person charged, after having been duly served with notice of a hearing fails to appear, a notation to that effect shall be made in the record and the hearing shall proceed. The examiner shall cause to be placed in the record all facts concerning the issuance and service of summons, setting the manner, date and place of service. In "in absentia" proceedings it is not necessary to introduce formally into the record all evidence bearing on the guilt of the person charged. However, it is necessary that prima facie evidence of guilt be established.

(g) The examiner may take official notice of facts at any stage in a proceeding, but the matters thus noticed shall be announced in open hearing and either party shall be afforded an opportunity to show the contrary, which shall also be recorded.

§ 137.09-10 Examiner's opening statement. The examiner shall open the hearing by announcing the statutory jurisdiction and by informing the person charged that the proceedings are not directed against his person or property but are solely concerned with his right to hold a license or certificate or indorsement thereon isued by the Coast Guard, or issued by any predecessor authority.

§ 137.09-15 Production of documents. The examiner shall require the person charged to produce all currently valid licenses or certificates issued to him by the Coast Guard or issued by any predecessor authority, and in the event the person charged alleges that he has lost any such license or certificate, the examiner will require the execution of a lost document affidavit (Form CG-719-E). The person charged shall be warned that the misstatement of any material item in such affidavit is punishable as a violation of a federal criminal statute.

§ 137.09-20 Advising person charged of right to counsel, witnesses, etc. The examiner shall advise the person charged of his right to be represented by counsel and inquire of the investigating officer whether the person charged has been afforded the right to have witnesses subpoenaed to testify in his behalf. The examiner shall also advise the person charged of his right to cross-examine witnesses testifying against him. All matters set out herein shall affirmatively appear in the record.

$137.09-25 Appearances. The appearances of persons at the hearing shall be entered in the following order:

(a) The investigating officer;

(b) The person charged;

(c) Counsel for the person charged, if any; and

(d) Witnesses' personal counsel who may in the course of the hearing advise such witnesses of their constitutional rights, privileges and immunities, but

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who will not be allowed to examine or cross-examine the person charged or other witnesses or otherwise participate in the hearing.

§ 137.09-30 Removal of witnesses from hearing room. All witnesses shall be excluded from the hearing room prior to the taking of their testimony and the examiner may segregate Government witnesses if he deems it desirable.

§ 137.09-35 Arraignment and plea. The examiner shall read the charge and specification to the person charged and shall obtain a definite plea to each and every specification. If the person charged is unwilling or unable to make a definite plea the examiner shall enter a plea of "not guilty" and if the person charged fails to appear at the hearing after due and sufficient notice a plea of "not guilty" shall likewise be entered in his behalf by the examiner.

§ 137.09-40 Opening statement of investigating officer. After arraignment and plea, the investigating officer shall make a brief statement outlining the basis for the preferment of the charge and all particulars incident to the substance of the complaint; notification to the accused of right to counsel; notification to accused of right to have witnesses subpoenaed; particulars incident to the service of original charge and specification; and the nature of the proceedings. The statement shall also contain a summary of the investigation made when a plea of "guilty" is entered, and a summary of matters expected to be proved by testimony, when a plea of "not guilty" is entered.

§ 137.09-45 Opening statement by or on behalf of person charged. The person charged or his counsel shall be afforded an opportunity of stating to the examiner what he intends to establish by his evidence. This may be waived or deferred at the option of the person charged or his counsel. Where the person charged has entered a plea of "guilty" he or his counsel may present to the examiner any and all mitigating circumstances believed material. Should this presentation be inconsistent with a "guilty" plea the examiner shall reject the plea and shall enter a plea of “not guilty" in lieu thereof.

§ 137.09-50 Witnesses. (a) The investigating officer has the burden of proof and therefore presents his witnesses first. All witnesses shall be sworn, duly examined, and may be cross-examined. They may be questioned by the examiner. The investigating officer shall begin his direct examination by properly identifying the witnesses. The witness shall be required to identify the person charged. The examiner may order withdrawn improper questions by the investigating officer or by the person charged or his counsel even though not objected to by the adversary party, in order that improper evidence may not be introduced into the record. Either party shall have the right to recall for re-examination or crossexamination a witness who has previously testified. Upon conclusion of crossexamination by the parties, the parties may question the witness further on redirect examination and the parties shall have the right of re-cross examination. The examiner may at any time ask any question of a witness which he believes will tend to clarify the issue before the hearing.

(b) In cases where a guilty plea has been entered the investigating officer may call witnesses to establish matters of aggravation and likewise the person charged or his counsel may call witnesses to establish matters in mitigation. An investigating officer shall not call witnesses when a guilty plea is entered unless he feels that the conduct of the person charged cannot be adequately presented without the testimony of such witnesses.

$137.09-52 Testimony by interrogatories and depositions. (a) Witnesses shall be examined orally, except that for good cause shown, testimony may be taken by deposition upon application of any party in interest or upon the initiative of the examiner.

(b) Applications to take depositions shall be in writing setting forth the reasons why such deposition should be taken, the name and address of the witness, the matters concerning which it is expected the witness will testify, and the time and place proposed for the taking of the deposition. Such application shall be made to an examiner prior to or during the course of the hearing.

(c) The examiner, shall, upon receipt of the application, if good cause is shown. make and serve upon the parties an order which will specify the name of the witness whose deposition is to be taken, the time and place of the taking of such deposition and shall contain a designation of the officer before whom the witness is to testify. Such deposition may be taken before any officer authorized to administer oaths by the laws of the United States.

(d) The party desiring the deposition may submit a list of interrogatories to be propounded to the absent witness; then the opposite party after he has been allowed a reasonable time for this purpose, may submit a list of cross-interrogatories. If either party objects to any question of the adversary party, the matter

shall be presented to the examiner for a ruling. Upon agreement of the parties on a list of interrogatories and cross-interrogatories (if any) the examiner may propound such additional questions as may be necessary to clarify the testimony given by the witness.

(e) The subpoena referred to in § 137.09-5 (b) together with the list of interrogatories and cross-interrogatories (if any) shall be forwarded to the officer designated to take such deposition. This officer will cause the subpoena to be served personally on the witness, and the subpoena after service shall be endorsed and returned to the examiner.

(f) When the deposition has been duly executed it shall be returned to the examiner who then becomes the official custodian thereof. As soon as practicable after the receipt of the deposition the examiner shall present it to the parties for their examination. The examiner shall rule on the admissibility of the deposition or any part thereof and of any objection offered by either party thereto. § 137.09-55 Argument. (a) Both the investigating officer and the person charged or his counsel may present argument in the following order: (1) Opening argument by the investigating officer;

(2) Argument by the person charged or his counsel; and

(3) Closing argument by the investigating officer.

(b) The examiner may limit the amount of time to be allotted to the investigating officer and the person charged or his counsel.

§ 137.09-60 Submission of briefs, proposed findings and conclusions. (a) Prior to a decision the examiner shall afford both parties reasonable opportunity to submit, either orally or in writing, proposed findings and conclusions together with supporting reasons therefor. The record shall show the ruling of the examiner upon each such proposed finding and conclusion presented. The examiner shall fix the time within which the parties shall file such proposed findings and conclusions. Failure to comply within the time so fixed by the examiner shall be regarded as a waiver of the right.

(b) Pending decision by the examiner on the proposed findings and conclusions, the licenses or certificates produced at the outset of the hearing shall remain in the custody of the examiner.

§ 137.09-65 Findings. A separate finding shall be made by the examiner on each charge and specification; such findings shall be based on the evidence adduced at the hearing and after rulings have been made upon each proposed finding and conclusion submitted. Specifications may alternatively be found "not proved," "proved in part," or "proved." In the event of a guilty plea the finding shal be specification "proved by plea." If any specification under a charge is found proved or proved in part in substantiation of the charge, the charge must be found proved. The charge may alternatively be proved or dismissed. All decisions of the examiner shall become part of the record and include a statement of findings and conclusions as well as the reasons or basis therefor, upon all material issues of fact, law or discretion presented on the record, and the appropriate order.

§ 137.09-70 Prior record. The prior record of the person charged shall not be revealed to the examiner until at least one charge has been found proved. After announcing such a finding the examiner shall ascertain from the investigating officer if the person charged has any previous commendatory or disciplinary record. If the prior record is not readily available, the person charged may be questioned under oath as to his prior record.

§ 137.09-75. Decision. (a) After considering all of the evidence, arguments, briefs, proposed findings, proposed conclusions and the prior record (if any) of the person charged, the examiner shall make and announce his decision. If no charge is found proved in the findings, the decision shall state that the charge or charges are dismissed.

(b) If any charge is found proved the decision of an examiner in a domestic port shall clearly state that the license or certificate of the person charged is: (1) Revoked; or,

(2) Suspended for a specified period from a specific date; or,

(3) Suspended for a specific period but not from a specified date, subject to a specified period of probation running from a specified date.

(c) The order of an examiner in a foreign port shall clearly state that the license or certificate of the person charged is:

(1) Revoked; or,

(2) Suspended for a period beginning with date of first arrival in continental United States and ending after a specified date on which report of arrival is made to the Coast Guard; or,