PART 4-MARINE CASUALTIES AND INVESTIGATIONS
Subpart 4.01-Authority and Scope of Regulations
Sec.
4.01-1 Scope of regulation.
4.01-3 Reporting exclusion.
Subpart 4.03-Definitions
4.03-1 Marine casualty or accident.
4.03-2 Serious marine incident.
4.03-4 Individual directly involved in a serious marine incident.
4.03-5 Medical facility.
4.03-6 Qualified medical personnel.
4.03-7 Chemical test.
4,03-10 Party in interest.
4.03-15 Commandant.
4.03-20 Coast Guard district.
4.03-25 District Commander.
4.03-30 Investigating officer.
4.03-35 Nuclear vessel.
4.03-40 Public vessels.
4.03-45 Marine employer.
4.03-50 Recreational vessel.
4.03-55 Law enforcement officer.
Subpart 4.04-Notice of Potential Vessel Casualty
4.04-1 Reports of potential vessel casualty.
4.04-3 Reports of lack of vessel communication.
4.04-5 Substance of reports.
Subpart 4.05-Notice of Marine Casualty and Voyage Records
4.05-1 Notice of marine casualty.
4.05-5 Substance of marine casualty notice.
4.05-10 Written report of marine casualty.
4.05-12 Alcohol or drug use by individuals directly involved in casualties.
4.05-15 Voyage records, retention of.
4.05-20 Report of accident to aid to navigation.
4.05-25 Reports when state of war exists.
4.05-30 Incidents involving hazardous materials.
4.05-35 Incidents involving nuclear vessels.
4.05-40 Alternate electronic means of reporting.
Subpart 4.06-Mandatory Chemical Testing Following Serious Marine Incidents Involving Vessels in Commercial Service
4.06-1 Responsibilities of the marine employer.
4.06-5 Responsibilities of individuals directly involved in serious marine incidents.
4.06-10 Required specimens.
4.06-20 Specimen collection requirements.
4.06-30 Specimen collection in incidents involving fatalities.
4.06-40 Specimen handling and shipping.
4.06-50 Specimen analysis and follow-up procedures.
4.06-60 Submission of reports and test results.
Subpart 4.07-Investigations
4.07-1 Commandant or District Commander to order investigation.
4.07-5 Investigating officers, powers of.
4.07-7 Opening statement.
4.07-10 Report of investigation.
4.07-15 Recommendations, action on.
4.07-20 Transfer of jurisdiction.
4.07-25 Testimony of witnesses in other districts, depositions.
4.07-30 Testimony of witnesses under oath.
4.07-35 Counsel for witnesses and parties in interest.
4.07-45 Foreign units of Coast Guard, investigation by.
4.07-55 Information to be furnished Marine Board of Investigation.
Subpart 4.09-Marine Board of Investigation
4.09-1 Commandant to designate.
4.09-5 Powers of Marine Board of Investigation.
4.09-10 Witnesses, payment of.
4.09-15 Time and place of investigation, notice of; rights of witnesses, etc.
4.09-17 Sessions to be public.
4.09-20 Record of proceedings.
4.09-25 U.S. Attorney to be notified.
4.09-30 Action on report.
4.09-35 Preferment of charges.
Subpart 4.11 -Witnesses and Witness Fees
4.11-1 Employees of vessels controlled by Army or Navy as witnesses.
4.11-5 Coercion of witnesses.
4.11-10 Witness fees and allowances.
Subpart 4.12-Testimony by Interrogatories and Depositions
4.12-1 Application, procedure, and admissibility.
Subpart 4.13-Availability of Records
4.13-1 Public availability of records.
Subpart 4.19-Construction of Regulations and Rules of Evidence
4.19-1 Construction of regulations.
4.19-5 Adherence to rules of evidence.
Subpart 4.21-Computation of Time
4.21-1 Computation of time.
Subpart 4.23-Evidence of Criminal Liability
4.23-1 Evidence of criminal liability.
Subpart 4.40-Coast Guard-National Transportation Safety Board Marine Casualty Investigations
4.40-1 Purpose.
4.40-3 Relationship to Coast Guard marine investigation regulations and procedures.
4.40-5 Definitions.
4.40-10 Preliminary investigation by the Coast Guard.
4.40-15 Marine casualty investigation by the Board.
4.40-20 Cause or probable cause determinations from Board investigation.
4.40-25 Coast Guard marine casualty investigation for the Board.
4.40-30 Procedures for Coast Guard investigation.
4.40-35 Records of the Coast Guard and the Board.
AUTHORITY: 33 U.S.C. 1231; 43 U.S,C. 1333; 46 U.S.C. 2103, 2306, 6101, 6301, 6305; 50 U.S.C. 198; 49 CFR 1.46. Authority for subpart 4.40: 49 U.S.C. 1903(a)(1)(E): 49 CFR 1.46.
SOURCE: CGD 74-119, 39 FR 33317, Sept, 17, 1974, unless otherwise noted.
Subpart 4.01-Authority and Scope of Regulations
§4.01-1 Scope of regulation.
The regulations in this part govern the reporting of marine casualties, the investigation of marine casualties and the submittal of reports designed to increase the likelihood of timely assistance to vessels in distress.
[CGD 85-015, 51 FR 19341. May 29, 1986]
§4.01-3 Reporting exclusion.
(a) Vessels subject to 33 CFR 173.51 are excluded from the requirements of subpart 4.05.
(b) Vessels which report diving accidents under 46 CFR 197.484 regarding deaths, or injuries which cause incapacitation for greater than 72 hours, are not required to give notice under §4.05-1(a)(5) or §4.05-1(a)(6).
(c) Vessels are excluded from the requirements of §4.05-1(a)(5) and (a)(6) with respect to the death or injury of shipyard or harbor workers when such accidents are not the result of either a vessel casualty (e.g., collision) or a vessel equipment casualty (e.g., cargo boom failure) and are subject to the reporting requirements of Occupational Safety and Health Administration (OSHA) under 29 CFR 1904.
(d) Except as provided in subpart 4.40, public vessels are excluded from the requirements of this part.
[CGD 76-170. 45 FR 77441, Nov. 24, 1980; 46 FR 19235, Mar. 30, 1981, as amended by CGD 76-170, 47 FR 39684, Sept. 9, 1982; CGD 95-028, 62 FR 51195, Sept. 30, 1997: USCG-2000-7790, 65 FR 58458, Sept. 29, 2000]
Subpart 4.03-Definitions
(a) The term marine casualty or accident shall mean any casualty or accident involving any vessel other than public vessels if such casualty or accident occurs upon the navigable waters of the United States, its territories or possessions or any casualty or accident wherever such casualty or accident may occur involving any United States' vessel which is not a public vessel. (See §4.03-40 for definition of Public Vessel.)
(b) The term marine casualty or accident includes any accidental grounding, or any occurrence involving a vessel which results in damage by or to the vessel, its apparel, gear, or cargo, or injury or loss of life of any person; and includes among other things, collisions, standings, groundings, founderings, heavy weather damage, fires, explosions, failure of gear and equipment and any other damage which might affect or impair the seaworthiness of the vessel.
(c) The term marine casualty or accident also includes occurrences of loss of life or injury to any person while diving from a vessel and using underwater breathing apparatus.
[CGD 74-119, 39 FR 33317, Sept. 17, 1974, as amended by CGD 76・170, 45 FR 77441, Nov. 24, 1980]
§4.03-2 Serious marine incident.
The term serious marine incident includes the following events involving a vessel in commercial service:
(a) Any marine casualty or accident as defined in §4.03-1 which is required by §4.05-1 to be reported to the Coast Guard and which results in any of the following:
(1) One or more deaths;
(2) An injury to a crewmember, passenger, or other person which requires professional medical treatment beyond first aid, and, in the case of a person employed on board a vessel in commercial service, which renders the individual unfit to perform routine vessel duties;
(3) Damage to property, as defined in §4.05-1(a)(7) of this part, in excess of $100,000;
(4) Actual or constructive total loss of any vessel subject to inspection under 46 U.S.C. 3301; or
(5) Actual or constructive total loss of any self-propelled vessel, not subject to inspection under 46 U.S.C. 3301, of 100 gross tons or more.
(b) A discharge of oil of 10,000 gallons or more into the navigable waters of the United States, as defined in 33 U.S.C. 1321, whether or not resulting from a marine casualty.
(c) A discharge of a reportable quantity of a hazardous substance into the navigable waters of the United States, or a release of a reportable quantity of a hazardous substance into the environment of the United States, whether or not resulting from a marine casualty.
[CGD 86-067. 53 FR 47077, Nov. 21. 1988, as amended by CGD 97-057, 62 FR 51041. Sept. 30, 1997]
§4.03-4 Individual directly involved in a serious marine incident.
The term individual directly involved in a serious marine incident is an individual whose order, action or failure to act is determined to be, or cannot be ruled out as, a causative factor in the events leading to or causing a serious marine incident.
[CGD 86-067, 53 FR 47077, Nov. 21, 1988]
§4.03-5 Medical facility.
The term medical facility means an American hospital, clinic, physician's office, or laboratory, where blood and urine specimens can be collected according to recognized professional standards.
[CGD 86-067, 53 FR 47077, Nov. 21, 1988]
§4.03-6 Qualified medical personnel.
The term qualified medical personnel means a physician, physician's assistant, nurse, emergency medical technician, or other person authorized under State or Federal law or regulation to collect blood and urine specimens.
[CGD 86-067, 53 FR 47077, Nov. 21, 1988]
§4.03-7 Chemical test.
The term chemical test means a scientifically recognized test which analyzes an individual's breath, blood, urine, saliva, bodily fluids, or tissues for evidence of dangerous drug or alcohol use.
[CGD 86-067, 53 FR 47077, Nov. 21, 1988]
§4.03-10 Party in interest.
The term party in interest shall mean any person whom the Marine Board of Investigation or the investigating officer shall find to have a direct interest in the investigation conducted by it and shall include an owner, a charterer, or the agent of such owner or charterer of the vessel or vessels involved in the marine casualty or accident, and all licensed or certificated personnel whose conduct, whether or not involved in a marine casualty or accident is under investigation by the Board or investigating officer.
§4.03-15 Commandant.
The Commandant, U.S. Coast Guard, is that officer who acts as chief of the Coast Guard and is charged with the administration of the Coast Guard.
§4.03-20 Coast Guard district.
A Coast Guard district is one of the geographical areas whose boundaries are described in 33 CFR part 3.
§4.03-25 District Commander.
The District Commander is the chief of a Coast Guard district and is charged with the administration of all Coast Guard responsibilities and activities within his respective district, except those functions of administrative law judges under the Administrative Procedure Act (60 Stat. 237, 5 U.S.C. 1001 et seq.) and activities of independent units of the Coast Guard, such as the Coast Guard Yard and the Coast Guard Academy.
§4.03-30 Investigating officer.
An investigating officer is an officer or employee of the Coast Guard designated by the Commandant, District Commander or the Officer in Charge, Marine Inspection, for the purpose of making investigations of marine casualties and accidents or other matters pertaining to the conduct of seamen. An Officer in Charge, Marine Inspection, is an investigating officer without further designation.
§4.03-35 Nuclear vessel.
The term nuclear vessel means any vessel in which power for propulsion, or for any other purpose, is derived from nuclear energy; or any vessel handling or processing substantial amounts of radioactive material other than as cargo.
[CGD 84-099, 52 FR 47534, Dec. 14, 1987]
Public vessel means a vessel that-
(a) Is owned, or demise chartered, and operated by the U.S. Government or a government of a foreign country, except a vessel owned or operated by the Department of Transportation or any corporation organized or controlled by the Department (except a vessel operated by the Coast Guard or Saint Lawrence Seaway Development Corporation); and
(b) Is not engaged in commercial service.
[CGD 95-028, 62 FR 51195, Sept. 30,1997]
§4.03-45 Marine employer.
Marine employer means the owner, managing operator, charterer, agent, master, or person in charge of a vessel other than a recreational vessel.
[CGD 84-099, 52 FR 47534, Dec. 14, 1987]
§4.03-50 Recreational vessel.
Recreational vessel means a vessel meeting the definition in 46 U.S.C. 2101(25) that is then being used only for pleasure.
[CGD 84-099, 52 FR 47534, Dec. 14, 1987]
§4.03-55 Law enforcement officer.
Law enforcement officer means a Coast Guard commissioned, warrant or petty officer; or any other law enforcement officer authorized to obtain a chemical test under Federal, State, or local law.
[CGD 84-99, 52 FR 47534, Dec. 14, 1987]
Subpart 4.04-Notice of Potential Vessel Casualty
SOURCE: CGD 85-015, 51 FR 19341. May 29, 1986, unless otherwise noted.
§4.04-1 Reports of potential vessel casualty.
A vessel owner, charterer, managing operator or agent shall immediately notify either of the following Coast Guard officers if there is reason to believe a vessel is lost or imperiled.
(a) The Coast Guard district rescue coordination center (RCC) cognizant over the area the vessel was last operating in; or
(b) The Coast Guard search and rescue authority nearest to where the vessel was last operating.
Reasons for belief that a vessel is in distress include, but are not limited to, lack of communication with or nonappearance of the vessel.
§4.04-3 Reports of lack of vessel communication.
The owner, charterer, managing operator or agent of a vessel that is required to report to the United States flag Merchant Vessel Location Filing System under the authority of section 212(A) of the Merchant Marine Act, 1936 (46 App. U.S.C. 1122a), shall immediately notify the Coast Guard if more than 48 hours have passed since receiving communication from the vessel. This notification shall be given to the Coast Guard district RCC cognizant over the area the vessel was last operating in.
(Information collection requirements approved by the Office of Management and Budget under control number 2115-0551)
§4.04-5 Substance of reports.
The owner, charterer, managing operator or agent, notifying the Coast Guard under §4.04-1 or §4.04-3, shall:
(a) Provided the name and identification number of the vessel, the names of the individuals on board, and other information that may be requested by the Coast Guard (when providing the names of the individuals on board for a passenger vessel, the list of passengers need only meet the requirements of 46 U.S.C. 3502); and
(b) Submit written confirmation of that notice to the Coast Guard facility that the notice was given to within 24 hours.
(Information collection requirements approved by the Office of Management and Budget under control number 2115-0551)
Subpart 4.05-Notice of Marine Casualty and Voyage Records
(a) Immediately after the addressing of resultant safety concerns, the owner, agent, master, operator, or person in charge, shall notify the nearest Marine Safety Office, Marine Inspection Office or Coast Guard Group Office whenever a vessel is involved in a marine casualty consisting in-
(1) An unintended grounding, or an unintended strike of (allison with) a bridge;
(2) An intended grounding, or an intended strike of a bridge, that creates a hazard to navigation, the environment, or the safety of a vessel, or that meets any criterion of paragraphs (a) (3) through (7);
(3) A loss of main propulsion, primary steering, or any associated component or control system that reduces the maneuverability of the vessel;
(4) An occurrence materially and adversely affecting the vessel's seaworthiness or fitness for service or route, including but not limited to fire, flooding, or failure of or damage to fixed fire-extinguishing systems, lifesaving equipment, auxiliary power-generating equipment, or bilge-pumping systems;
(5) A loss of life;
(6) An injury that requires professional medical treatment (treatment beyond first aid) and, if the person is engaged or employed on board a vessel in commercial service, that renders the individual unfit to perform his or her routine duties; or
(7) An occurrence causing propertydamage in excess of $25,000, this damage including the cost of labor and material to restore the property to its condition before the occurrence, but not including the cost of salvage, cleaning, gas-freeing, drydocking, or demurrage.
(b) Notice given as required by 33 CFR 160.215 satisfies the requirement of this section if the marine casualty involves a hazardous condition as defined by 33 CFR 160.203.
[CGD 94-030, 59 FR 39471, Aug. 3, 1994]
§4.05-5 Substance of marine casualty notice.
The notice required in §4.05-1 must include the name and official number of the vessel involved, the name of the vessel's owner or agent, the nature and circumstances of the casualty, the locality in which it occurred, the nature and extent of injury to persons, and the damage to property.
[CGD 76-170, 45 FR 77441, Nov. 24, 1980]
§4.05-10 Written report of marine casualty.
(a) The owner, agent, master, operator, or person in charge shall, within five days, file a written report of any marine casualty required to be reported under §4.05-1. This written report is in addition to the immediate notice required by §4.05-1. This written report must be delivered to a Coast Guard Marine Safety Office or Marine Inspection Office. It must be provided on Form CG-2692 (Report of Marine Accident, Injury or Death), supplemented as necessary by appended Forms CG-2692A (Barge Addendum) and CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident).
(b) If filed without delay after the occurrence of the marine casualty, the report required by paragraph (a) of this section suffices as the notice required by §4.05-1(a).
[CGD 94-030, 63 FR 19192, Apr. 17, 1998]
§4.05-12 Alcohol or drug use by individuals directly involved in casualties.
(a) For each marine casualty required to be reported by §4.05-10, the marine employer shall determine whether there is any evidence of alcohol or drug use by individuals directly involved in the casualty.
(b) The marine employer shall include in the written report, Form CG-2692, submitted for the casualty information which:
(1) Identifies those individuals for whom evidence of drug or alcohol use, or evidence of intoxication, has been obtained; and,
(2) Specifies the method used to obtain such evidence, such as personal observation of the individual, or by chemical testing of the individual.
(c) An entry shall be made in the official log book, if carried, pertaining to those individuals for whom evidence of intoxication is obtained. The individual must be informed of this entry and the entry must be witnessed by a second person.
(d) If an individual directly involved in a casualty refuses to submit to, or cooperate in, the administration of a timely chemical test, when directed by a law enforcement officer or by the marine employer, this fact shall be noted in the official log book, if carried, and in the written report (Form CG-2692), and shall be admissible as evidence in any administrative proceeding.
[CGD 84-099, 52 FR 47534, Dec. 14, 1987]
§4.05-15 Voyage records, retention of.
(a) The owner, agent, master, or person in charge of any vessel involved in a marine casualty shall retain such voyage records as are maintained by the vessel, such as both rough and smooth deck and engine room logs, bell books, navigation charts, navigation work books, compass deviation cards, gyro records, stowage plans, records of draft, aids to mariners, night order books, radiograms sent and received, radio logs, crew and passenger lists, articles of shipment, official logs and other material which might be of assistance in investigating and determining the cause of the casualty. The owner, agent, master, other officer or person responsible for the custody thereof, shall make these records available upon request, to a duly authorized investigating officer, administrative law judge, officer or employee of the Coast Guard.
(b) The investigating officer may substitute photostatic copies of the voyage records referred to in paragraph (a) of this section when they have served their purpose and return the original records to the owner or owners thereof.
§4.05-20 Report of accident to aid to navigation.
Whenever a vessel collides with a buoy, or other aid to navigation under the jurisdiction of the Coast Guard, or is connected with any such collision, it shall be the duty of the person in charge of such vessel to report the accident to the nearest Officer in Charge, Marine Inspection. No report on Form CG-2692 is required unless one or more of the results listed in §4.05-1 occur.
[CGD 74-119, 39 FR 33317, Sept. 17, 1974, as amended by CGD 88-070, 53 FR 34533, Sept. 7, 1988]
§4.05-25 Reports when state of war exists.
During the period when a state of war exists between the United States and any foreign nation, communications in regard to casualties or accidents shall be handled with caution and the reports shall not be made by radio or by telegram.
§4.05-30 Incidents involving hazardous materials.
When a casualty occurs involving hazardous materials, notification and a written report to the Department of Transportation may be required. See 49 CFR 171.15 and 171.16.
[CGD 76-170, 45 FR 77441, Nov. 24, 1980]
§4.05-35 Incidents involving nuclear vessels.
The master of any nuclear vessel shall immediately inform the Commandant in the event of any accident or casualty to the nuclear vessel which may lead to an environmental hazard. The master shall also immediately inform the competent governmental authority of the country in whose waters the vessel may be or whose waters the vessel approaches in a damaged condition.
[CGD 84-099, 52 FR 47534, Dec. 14, 1987]
§4.05-40 Alternate electronic means of reporting.
The Commandant may approve alternate electronic means of submitting notices and reports required under this subpart.
[USCG-1999-6216, 64 FR 53223, Oct. 1, 1999]
Subpart 4.06-Mandatory Chemical Testing Following Serious Marine Incidents Involving Vessels in Commercial Service
SOURCE: CGD 86-067, 53 FR 47078, Nov. 21, 1988, unless otherwise noted.
§4.06-1 Responsibilities of the marine employer.
(a) At the time of occurrence of a marine casualty, a discharge of oil into the navigable waters of the United States, a discharge of a hazardous substance into the navigable waters of the United States, or a release of a hazardous substance into the environment of the United States, the marine employer shall make a timely, good faith determination as to whether the occurrence currently is, or is likely to become, a serious marine incident.
(b) When a marine employer determines that a casualty or incident is, or is likely to become, a serious marine incident, the marine employer shall take all practicable steps to have each individual engaged or employed on board the vessel who is directly involved in the incident chemically tested for evidence of drug and alcohol use.
(c) The determination of which individuals are directly involved in a serious marine incident is to be made by the marine employer. A law enforcement officer may determine that additional individuals are directly involved in the serious marine incident. In such cases, the marine employer shall take all practicable steps to have these individuals tested in accordance with paragraph (b) of this section.
(d) The requirements of this subpart shall not prevent vessel personnel who are required to be tested from performing duties in the aftermath of a serious marine incident when their performance is necessary for the preservation of life or property or the protection of the environment.
(e) The marine employer shall ensure that all individuals engaged or employed on board a vessel are fully indoctrinated in the requirements of this subpart, and that appropriate vessel personnel are trained as necessary in the practical applications of these requirements.
(f) Each marine employer shall implement the testing requirements of this subpart in accordance with the implementation schedule provided in 46 CFR 16.205 and 16.207.
§4.06-5 Responsibilities of individuals directly involved in serious marine incidents.
(a) Any individual engaged or employed on board a vessel who is determined to be directly involved in a serious marine incident shall provide blood, breath or urine specimens for chemical tests required by §4.06-10 when directed to do so by the marine employer or a law enforcement officer.
(b) If the individual refuses to provide blood, breath or urine specimens, this refusal shall be noted on Form CG-2692B and in the vessel's official log book, if one is required.
(c) No Individual may be forcibly compelled to provide specimens for chemical tests required by this part; however, refusal is considered a violation of regulation and could subject the individual to suspension and revocation proceedings under part 5 of this chapter and removal from any duties which directly affect the safety of the vessel's navigation or operations.
§4.06-10 Required specimens.
Each individual required to submit to chemical testing shall, as soon as practicable, provide the following specimens for chemical testing:
(a) Urine specimens, collected in accordance with §4.06-20 and part 16 of this chapter.
(b) Blood or breath specimens, or both, collected in accordance with §4.06-20.
§4.06-20 Specimen collection requirements.
(a) All inspected vessels certificated for unrestricted ocean routes, and all inspected vessels certificated for restricted overseas routes, are required to have on board at all times a breath testing device capable of determining the presence of alcohol in a person's system. The breath testing device shall be used in accordance with procedures specified by the manufacturer.
(b) The marine employer shall ensure that urine specimen collection and shipping kits meeting the requirements of §16.330 of this part are readily available for use following serious marine incidents. The specimen collection and shipping kits need not be maintained aboard each vessel if they can otherwise be readily obtained within 24 hours from the time of the occurrence of the serious marine incident.
(c) The marine employer shall ensure that specimens required by §4.06-10 are collected as soon as practicable following the occurrence of a serious marine incident.
(d) When obtaining blood, breath, and urine specimens, the marine employer shall ensure that the collection process is supervised by either qualified collection personnel, the marine employer, a law enforcement officer, or the marine employer's representative.
(e) Chemical tests of an individual's breath for the presence of alcohol using a breath testing device may be conducted by any individual trained to conduct such tests. Blood specimens shall be taken only by qualified medical personnel.
§4.06-30 Specimen collection in incidents involving fatalities.
(a) When an individual engaged or employed on board a vessel dies as a result of a serious marine incident, blood and urine specimens must be obtained from the remains of the individual for chemical testing, if practicable to do so. The marine employer shall notify the appropriate local authority, such as the coroner or medical examiner, as soon as possible, of the fatality and of the requirements of this subpart. The marine employer shall provide the specimen collection and shipping kit and request that the local authority assist in obtaining the necessary specimens. When the custodian of the remains is a person other than the local authority, the marine employer shall request the custodian to cooperate in obtaining the specimens required under this part.
(b) If the local authority or custodian of the remains declines to cooperate in obtaining the necessary specimens, the marine employer shall provide an explanation of the circumstances on Form CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident).
§4.06-40 Specimen handling and shipping.
(a) The marine employer shall ensure that blood specimens collected in accordance with §§4.06-20 and 4.06-30 are promptly shipped to a testing laboratory qualified to conduct tests on such specimens. A proper chain of custody must be maintained for each specimen from the time of collection through the authorized disposition of the specimen. Blood specimens must be shipped to the laboratory in a cooled condition by any means adequate to ensure delivery within twenty-four (24) hours of receipt by the carrier.
(b) The marine employer shall ensure that the urine specimen collection procedures of §16.310 of this part and the chain of custody requirements of §16.320 are complied with. The marine employer shall ensure that urine specimens required by §§4.06-20 and 4. 06-30 are promptly shipped to a laboratory complying with the requirements of 49 CFR part 40. Urine specimens must be shipped by an expeditious means, but need not be shipped in a cooled condition for overnight delivery.
§4.06-50 Specimen analysis and follow-up procedures.
(a) Each laboratory will provide prompt analysis of specimens collected under this subpart, consistent with the need to develop all relevant information and to produce a complete analysis report.
(b) Reports shall be sent to the Medical Review Officer meeting the requirements of 49 CFR 40.33, as designated by the marine employer submitting the specimen for testing. Wherever a urinalysis report indicates the presence of a dangerous drug or drug metabolite, the Medical Review Officer shall review the report as required by 49 CFR 40.33 and submit his or her findings to the marine employer. Blood test reports indicating the presence of alcohol shall be similarly reviewed to determine if there is a legitimate medical explanation.
(c) Analysis results which indicate the presence of alcohol, dangerous drugs, or drug metabolites shall not be construed by themselves as constituting a finding that use of drugs or alcohol was the probable cause of a serious marine incident.
[CGD 86-067, 53 FR 47078, Nov. 21, 1988, as amended by CGD 90-053, 58 FR 31107, May 28, 1993]
§4.06-60 Submission of reports and test results.
(a) Whenever an individual engaged or employed on a vessel is identified as being directly involved in a serious marine incident, the marine employer shall complete Form CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident).
(b) When the serious marine incident requires the submission of Form CG-2692 (Report of Marine Casualty, Injury or Death) to the Coast Guard in accordance with §4.05-10, the report required by paragraph (a) of this section shall be appended to Form CG-2692.
(c) In incidents involving discharges of oil or hazardous substances as described in §4.03-2 (b) and (c) of this part, when Form CG-2692 is not required to be submitted, the report required by paragraph (a) of this section shall be submitted to the Coast Guard Officer in Charge, Marine Inspection, having jurisdiction over the location where the discharge occurred or nearest the port of first arrival following the discharge.
(d) Upon receipt of the report of chemical test results, the marine employer shall submit a copy of the test results for each person listed on the CG-2692B to the Coast Guard Officer in Charge, Marine Inspection to whom the CG-2692B was submitted.
(e) The Commandant may approve alternate electronic means of submitting reports and test results as required under paragraphs (a) through (d) of this section.
[CGD 86-067, 53 FR 47078, Nov. 21, 1988, as amended by CGD 97-057, 62 FR 51041, Sept. 30, 1997; USCG-1999-6216, 64 FR 53223, Oct. 1, 1999]
Subpart 4.07-Investigations
§4.07-1 Commandant or District Commander to order investigation.
(a) The Commandant or District Commander upon receipt of information of a marine casualty or accident, will immediately cause such investigation as may be necessary in accordance with the regulations in this part.
(b) The investigations of marine casualties and accidents and the determinations made are for the purpose of taking appropriate measures for promoting safety of life and property at sea, and are not intended to fix civil or criminal responsibility.
(c) The investigation will determine as closely as possible:
(1) The cause of the accident;
(2) Whether there is evidence that any failure of material (either physical or design) was involved or contributed to the casualty, so that proper recommendations for the prevention of the recurrence of similar casualties may be made;
(3) Whether there is evidence that any act of misconduct, inattention to duty, negligence or willful violation of the law on the part of any licensed or certificated person contributed to the casualty, so that appropriate proceedings against the license or certificate of such person may be recommended and taken under 46 U.S.C. 6301;
(4) Whether there is evidence that any Coast Guard personnel or any representative or employee of any other government agency or any other person caused or contributed to the cause of the casualty; or,
(5) Whether the accident shall be further investigated by a Marine Board of Investigation in accordance with regulations in subpart 4.09.
[CGD 74-119, 39 FR 33317, Sept. 17, 1974, as amended by CGD 97-057, 62 FR 51041, Sept. 30, 1997]
§4.07-5 Investigating officers, powers of.
(a) An investigating officer investigates each marine casualty or accident reported under §§4.05-1 and 4.05-10.
(b) Such 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 and other records.
(c) Attendance of witnesses or the production of books, papers, documents or any other evidence shall be compelled by a similar process as in the United States District Court.
[CGFR 65-50, 30 FR 17099, Dec. 30, 1965, as amended by CGD-104R, 37 FR 14234, July 18, 1972]
§4.07-7 Opening statement.
The investigating officer or the Chairman of a Marine Board of Investigation shall open the investigation by announcing the statutory authority for the proceeding and he shall advise parties in interest concerning their rights to be represented by counsel, to examine and cross-examine witnesses, and to call witnesses in their own behalf.
§4.07-10 Report of investigation.
(a) At the conclusion of the investigation the investigating officer shall submit to the Commandant via the Officer in Charge, Marine Inspection, and the District Commander, a full and complete report of the facts as determined by his investigation, together with his opinions and recommendations in the premises. The Officer in Charge, Marine Inspection, and the District Commander shall forward the investigating officer's report to the Commandant with an endorsement stating:
(1) Approval or otherwise of the findings of fact, conclusions and recommendations;
(2) Any action taken with respect to the recommendations;
(3) Whether or not any action has been or will be taken under part 5 of this subchapter to suspend or revoke licenses or certificates; and,
(4) Whether or not violations of laws or regulations relating to vessels have been reported on Form CG-2636, report of violation of navigation laws.
(b) At the conclusion of the investigation, the investigating officer shall submit the report described in paragraph (a) of this section, to the Commandant via the Merchant Marine Detail Officer or the Officer in Charge, Marine Inspection, and the Commander, Coast Guard MIO Europe for a European port or Commander, Fourteenth Coast Guard for an Asian or Pacific port. The Merchant Marine Detail Officer or the Officer in Charge, Marine Inspection, and Commander, Coast Guard MIO Europe or Commander, Fourteenth Coast Guard District shall forward the investigating officer's report to the Commandant with the endorsement described in paragraphs (a) (1) through (4) of this section.
[CGD 74-119, 39 FR 33317, Sept. 17, 1974, as amended by CGD 75-196, 41 FR 18655, May 6, 1976; CGD 97-057, 62 FR 51042, Sept. 30, 1997]
§4.07-15 Recommendations, action on.
Where the recommendations of an investigating officer are such that their accomplishment is within the authority of the District Commander or any of the personnel under his command, immediate steps shall be taken to put them into effect and his forwarding endorsement shall so indicate.
§4.07-20 Transfer of jurisdiction.
When it appears to the District Commander that it is more advantageous to conduct an investigation in a district other than in the district where the casualty was first reported, that officer shall transfer the case to the other district together with any information or material relative to the casualty he may have.
§4.07-25 Testimony of witnesses in other districts, depositions.
When witnesses are available in a district other than the district in which the investigation is being made, testimony or statements shall be taken from witnesses in the other districts by an investigating officer and promptly transmitted to the investigating officer conducting the investigation. Depositions may be taken in the manner prescribed by regulations in subpart 4.12.
§4.07-30 Testimony of witnesses under oath.
(a) Witnesses to marine casualties or accidents appearing before an investigating officer may be placed under oath and their testimony may be reduced to writing.
(b) Written statements and reports submitted as evidence by witnesses shall be sworn to before an officer authorized to administer oaths and such statements and/or reports shall be signed.
§4.07-35 Counsel for witnesses and parties in interest.
(a) All parties in interest shall be allowed to be represented by counsel, to examine and cross-examine witnesses and to call witnesses in their own behalf.
(b) Witnesses who are not parties in interest may be assisted by counsel for the purpose of advising such witnesses concerning their rights; however, such counsel will not be permitted to examine or cross-examine other witnesses or otherwise participate in the investigation.
§4.07-45 Foreign units of Coast Guard, investigation by.
Investigations of marine casualties conducted by foreign units of the Coast Guard shall be in accordance with the regulations in this part and all actions taken in connection with the investigations of such marine casualties entered in the official log(s) of the vessel(s) concerned.
§4.07-55 Information to be furnished Marine Board of Investigation.
When a Marine Board of Investigation is convened in accordance with §4.09-1, the investigating officer shall immediately furnish the board with all testimony, statements, reports, documents, papers, a list of witnesses including those whom he has examined, other material which he may have gathered, and a statement of any findings of fact which he may have determined. The preliminary investigation shall cease forthwith and the aforementioned material shall become a part of the Marine Board of Investigation's record.
Subpart 4.09-Marine Board of Investigation
§4.09-1 Commandant to designate.
If it appears that it would tend to promote safety of life and property at sea or would be in the public interest, the Commandant may designate a Marine Board of Investigation to conduct an investigation.
[CGD 76-170, 45 FR 77441, Nov. 24, 1980]
§4.09-5 Powers of Marine Board of Investigation.
Any Marine Board of Investigation so designated shall have the power to administer oaths, summon witnesses, require persons having knowledge of the subject matter of the investigation to answer questionnaires, and to require the production of relevant books, papers, documents or any other evidence. Attendance of witnesses or the production of books, papers, documents or any other evidence shall be compelled by a similar process as in the United States District Court. The chairman shall administer all necessary oaths to any witnesses summoned before said Board.
§4.09-10 Witnesses, payment of.
Any witness subpoenaed under §4.09-5 shall be paid such fees for his travel and attendance as shall be certified by the chairman of a Marine Board of Investigation or an investigating officer, in accordance with §4.11-10.
§4.09-15 Time and place of investigation, notice of; rights of witnesses, etc.
Reasonable notice of the time and place of the investigation shall be given to any person whose conduct is or may be under investigation and to any other party in interest. All parties in interest shall be allowed to be represented by counsel, to cross-examine witnesses, and to call witnesses in their own behalf.
§4.09-17 Sessions to be public.
(a) All sessions of a Marine Board of Investigation for the purpose of obtaining evidence shall normally be open to the public, subject to the provision that the conduct of any person present shall not be allowed to interfere with the proper and orderly functioning of the Board. Sessions will not be open to the public when evidence of a classified nature or affecting national security is to be received.
§4.09-20 Record of proceedings.
The testimony of witnesses shall be transcribed and a complete record of the proceedings of a Marine Board of Investigation shall be kept. At the conclusion of the investigation a written report shall be made containing findings of fact, opinions, and recommendations to the Commandant for his consideration.
§4.09-25 U.S. Attorney to be notified.
The recorder of a Marine Board of Investigation shall notify the United States Attorney for the District in which the Marine Board of Investigation is being conducted of the nature of the casualty under investigation and time and place the investigation will be made.
§4.09-30 Action on report.
Upon approval of the report of a Marine Board of Investigation the Commandant will require to be placed into effect such recommendations as he may deem necessary for the better improvement and safety of life and property at sea.
§4.09-35 Preferment of charges.
(a) If in the course of an investigation by a Marine Board there appears probable cause for the preferment of charges against any licensed or certificated personnel, the Marine Board shall, either during or immediately following the investigation and before the witnesses have dispersed, apprise the District Commander of such evidence for possible action in accordance with part 5 of this subchapter, without waiting for the approval of the report by the Commandant. Such action or proceedings shall be independent and apart from any other action which may be later ordered by the Commandant or taken by other authorities.
Subpart 4.11-Witnesses and Witness Fees
§4.11-1 Employees of vessels controlled by Army or Navy as witnesses.
No officer, seaman, or other employee of any public vessel controlled by the Army or Navy (not including the Coast Guard) of the United States, shall be summoned or otherwise required to appear as a witness in connection with any investigation or other proceeding without the consent of the Government agency concerned.
§4.11-5 Coercion of witnesses.
Any attempt to coerce any witness or to induce him to testify falsely in connection with a shipping casualty, or to induce any witness to leave the jurisdiction of the United States, is punishable by a fine of $5,000.00 or imprisonment for one year, or both such fine and imprisonment.
§4.11-10 Witness fees and allowances.
Witness fees and allowances are paid in accordance with 46 CFR 5.401.
[CGD 79-080, 45 FR 2046, Jan. 10, 1980, as amended by CGD 96-041, 61 FR 50726, Sept. 27, 1996]
Subpart 4.12-Testimony by Interrogatories and Depositions
§4.12-1 Application, procedure, and admissibility
(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 investigating officer or Marine Board of Investigation.
(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 investigating officer or the Marine Board of Investigation prior to or during the course of the proceedings.
(c) The investigating officer or Marine Board of Investigation, 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 name 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 investigating officer or Marine Board of Investigation for a ruling. Upon agreement of the parties on a list of interrogatories and cross-interrogatories (if any) the investigating officer or Marine Board of Investigation may propound such additional questions as may be necessary to clarify the testimony given by the witness.
(e) The subpoena referred to in subpart F of this subchapter 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. After service the subpoena shall be endorsed and returned to the investigating officer or Marine Board of Investigation.
(f) When the deposition has been duly executed it shall be returned to the investigating officer or Marine Board of Investigation. As soon as practicable after the receipt of the deposition the investigating officer or Marine Board of Investigation shall present it to the parties for their examination. The investigating officer or Marine Board of Investigation shall rule on the admissibility of the deposition or any part thereof and of any objection offered by either party thereto.
[CGD 74-119, 39 FR 33317, Sept. 17, 1974, as amended by CGD 96-041, 61 FR 50726, Sept. 27, 1996]
Subpart 4.13-Availability of Records
§4.13-1 Public availability of records.
Coast Guard records are made available to the public in accordance with 49 CFR part 7.
[CGD 73-43R, 40 FR 13501, Mar. 27. 1975]
Subpart 4.19-Construction of Regulations and Rules of Evidence
§4.19-1 Construction of regulations.
The regulations in this part shall be liberally construed to insure just, speedy, and inexpensive determination of the issues presented.
§4.19-5 Adherence to rules of evidence.
As hearings under this part are administrative in character, strict adherence to the formal rules of evidence is not imperative. However, in the interest of orderly presentation of the facts of a case, the rules of evidence should be observed as closely as possible.
Subpart 4.21-Computation of Time
§4.21-1 Computation of time.
The time, within which any act, provided by the regulation in this subchapter, or an order of the Marine Board of Investigation is to be done, shall be computed by excluding the first day and including the last unless the last day is Sunday or a legal holiday, in which case the time shall extend to and include the next succeeding day that is not a Sunday or legal holiday: Provided, however, That where the time fixed by the regulations in this subchapter or an order of the Board is five days or less all intervening Sundays or legal holidays, other than Saturdays, shall be excluded.
Subpart 4.23-Evidence of Criminal Liability
§4.23-1 Evidence of criminal liability.
If as a result of any investigation or other proceeding conducted hereunder, evidence of criminal liability on the part of any licensed officer or certificated person or any other person is found, such evidence shall be referred to the U.S. Attorney General.
Subpart 4.40-Coast Guard-National Transportation Safety Board Marine Casualty Investigations
SOURCE: CGD 76-149, 42 FR 61200, Dec. 1, 1977, unless otherwise noted.
§4.40-1 Purpose.
This subpart prescribes the joint regulations of the National Transportation Safety Board and the Coast Guard for the investigation of marine casualties.
[CGD 82-034, 47 FR 45882, Oct. 14, 1982]
§4.40-3 Relationship to Coast Guard marine investigation regulations and procedures.
(a) The Coast Guard's responsibility to investigate marine casualties is not eliminated nor diminished by the regulations in this subpart.
(b) In those instances where the National Transportation Safety Board conducts an investigation in which the Coast Guard also has responsibility under 46 U.S.C. Chapter 63, the proceedings are conducted independently but so as to avoid duplication as much as possible.
[CGD 76-149, 42 FR 61200, Dec. 1, 1977, as amended by CGD 95-028, 62 FR 51195, Sept. 30, 1997]
§4.40-5 Definitions.
As used in this subpart:
(a) Act means title III of Public Law 93-633, the Independent Safety Board Act of 1974, (49 U.S.C. 1131).
(b) Board means the National Transportation Safety Board.
(c) Chairman means the Chairman of the National Transportation Safety Board.
(d) Major marine casualty means a casualty involving a vessel, other than a public vessel, that results in:
(1) The loss of six or more lives:
(2) The loss of a mechanically propelled vessel of 100 or more gross tons;
(3) Property damage initially estimated at $500,000 or more; or
(4) Serious threat, as determined by the Commandant and concurred in by the Chairman, to life, property, or the environment by hazardous materials.
(e) Public vessel means a vessel owned by the United States, except a vessel to which the Act of October 25, 1919, c.82, (41 Stat. 305, 46 U.S.C. 363) applies.
(f) Vessel of the United States means a vessel:
(1) Documented or required to be documented under the laws of the United States;
(2) Owned in the United States; or
(3) Owned by a citizen or resident of the United States and not registered under a foreign flag.
[CGD 76-149, 42 FR 61200, Dec. 1, 1977, as amended by CGD 95-028, 62 FR 51195, Sept. 30, 1997]
§4.40-10 Preliminary investigation by the Coast Guard.
(a) The Coast Guard conducts the preliminary investigation of marine casualties.
(b) The Commandant determines from the preliminary investigation whether:
(1) The casualty is a major marine casualty; or
(2) The casualty involves a public and a non-public vessel and at least one fatality or $75,000 in property damage; or
(3) The casualty involves a Coast Guard and a non-public vessel and at least one fatality or $75,000 in property damage; or
(4) The casualty is a major marine casualty which involves significant safety issues relating to Coast Guard safety functions, e.g., search and rescue, aids to navigation, vessel traffic systems, commercial vessel safety, etc.
(c) The Commandant notifies the Board of a casualty described in paragraph (b) of this section.
[CGD 76-149, 42 FR 61200, Dec. 1, 1977, as amended by CGD 82-034, 47 FR 45882. Oct. 14, 1982]
[CGD 82-034, 47 FR 45882, Oct. 14, 1982]
After an investigation conducted by the Board under §4.40-15, the Board determines cause or probable cause and issues a report of that determination.
(a)If the Board does not conduct an investigation under §4.40-15 (a),(b) (2) or
(3), the Coast Guard, at the request of the Board, may conduct an investigation under the Act unless there is an allegation of Federal Government misfeasance or nonfeasance.
(b)The Board will request the Coast Guard to conduct an investigation under paragraph (a) of this section within 48 hours of receiving notice under §4.40-10(c).
(c) The Coast Guard will advise the Board within 24 hours of receipt of a request under paragraph (b) of this section whether the Coast Guard will conduct an investigation under the Act.
[CGD 82-034, 47 FR 45882, Oct. 14, 1982]
§4.40-30 Procedures for Coast Guard investigation.
(1) Make recommendations about the scope of the investigations.
(2) Call and examine witnesses.
(3) Submit or request additional evidence.
(f) An investigation by the Coast Guard under this section is both an investigation under the Act and under 46 U.S.C. Chapter 63.
[CGD 76-149, 42 FR 61200, Dec. 1, 1977, as amended by CGD 95-028, 62 FR 51195, Sept. 30, 1997]
§4.40-35 Records of the Coast Guard and the Board.
(a) Records of the Coast Guard made under §4.40-30 are available to the public under 49 CFR part 7.
(b) Records of the Board made under §§4.40-20 and 4.40-30 are available to the public under 49 CFR part 801.
