Adjudicate civil penalty cases in support of the Commandant’s maritime safety and security strategy to compel compliance with federal laws and 

regulations, and deter violations in the maritime domain. By balancing national interests, fairness, and the fundamental right to due process, we 

promote protection of the environment, and the safety and security of vessels, facilities, ports, and waterways. 

Newsletter Date

APRIL 2010

Volume 8 Coast Guard Hearing Office 

“Hearing Office is our Name, 

Maritime Safety and Security is our Aim”

 

 

GREETINGS 

From CAPT R. Trabocchi, USCG

Commanding Officer, Coast Guard Hearing Office 

Greetings,

After the harsh and unusual winter here in the East, we 

are now enjoying warm weather.

The Coast Guard Hearing Office Detachment will soon 

complete processing all 2009 cases. Please do not delay 

in forwarding to us any remaining 2009 cases that have 

been identified as warranting civil penalty action. We 

are processing primarily 2010 cases at this time. 

In this issue, we continue to address issues that we periodically encounter either due to general misunderstanding or because of lack of familiarity with a particular law 

or regulation. We also readdress some items that have 

been previously discussed. 

Finally a reminder that as summer approaches us, it is 

important to process violations warranting civil penalty 

action as soon as it is practicable to do so. Civil penalty 

action is intended as remedial in nature. We want mariners to be safe on the water and the timely enforcement 

of regulatory requirements through civil penalty action 

when warranted is a path to achieve compliance. 

Our newsletters make available information regarding 

civil penalty case processing. They also provide readers 

with discussion about various regulatory requirements. 

These newsletters are posted on our website

www.uscg.mil/legal/cgho and on the Coast Guard’s website HOMEPORT. 

 

 

.

 

HEARING OFFICE NEWS 

 

In our last newsletter we announced a refined procedure 

for the electronic “return” of a case file due to deficiencies. 

The feedback has been very positive. In some cases, the 

responsible unit has corrected the deficiency within hours 

and the violation case file has been able to proceed with 

virtually no delay. We have achieved greater efficiency 

with this process, saved the time and expense of mailing 

files and guarded against loss of files due to mailing. We 

thank everyone who has welcomed, and quickly adapted 

to, this new process. 

* * * * * * * * 

THE PRELIMNARY AND FINAL ASSESSED PENALTY 

AMOUNTS 

We continue to receive much “discussion” regarding the 

assessed penalty amounts especially when they are compared to the maximum penalties allowed by law or tothe 

penalty amounts recommended by a unit for a particular 

violation. 

There is an important principle to remember. Penalties 

imposed by the Hearing Office are intended to be remedial; that is, to cause the charged party to “remedy” the 

violation. They are also intended to discourage the occurrence of future violations. Penalties imposed by the 

Hearing Office are not intended to be “punishment” for 

violations found “proved.” The Hearing Office does not 

impose fines. 

When a Coast Guard unit forwards a violation case file to 

the Hearing Office, the violations alleged in the case file 

are not “proved” at that time. The charged party receives 

a copy of the violation case file with the Hearing Officer’s 

letter assessing a preliminary penalty amount. What 

does this mean? This means that the Hearing Officer 
Coast Guard Hearing Office Vol : VIII Newsletter Date: Apr 2010 

Hearing Office is our Name, Maritime Safety and Security is our Aim

found sufficient evidence in the case file to proceed with 

a preliminary finding and that a civil penalty is warranted. The preliminary assessed penalty amount is the 

amount that the Hearing Officer determines appropriate 

for the violation(s) after reviewing the Coast Guard’s 

evidence in the case file. It may not be the maximum 

allowed by law and it may be different than the unit’s 

recommended penalty amount. Why?

The Hearing Officer is not required to assess the unit’s 

recommended penalty amount. The Hearing Officer considers the facts and circumstances presented in the case 

file surrounding the alleged violation. The Hearing Officer weighs the strength of the evidence, past violation 

history, and aggravating and mitigating factors, and 

considers every piece of information in the case file including the unit’s penalty recommendation to formulate 

the preliminary penalty amount. The Hearing Officer 

also considers the maximum penalty allowed by law including any inflation adjustment that may have been 

authorized. It is after due consideration of the entire 

case file that the Hearing Officer formulates the preliminary penalty amount. 

A determination as to whether the violation occurred as 

alleged and any appropriate final penalty is made after 

the party has had an opportunity to respond to the Hearing Officer’s preliminary assessment letter and case file. 

This means that the charged party may provide evidence 

to show that the violation did not occur as alleged 

(evidence in defense), or the charged party may admit 

the violation but provide an explanation that excuses the 

violation (evidence in extenuation), or the charged party 

may admit the violation but provide a basis as to why 

the penalty should be less than it otherwise might be 

(evidence in mitigation). The Hearing Officer considers 

and weighs the strength of all of the evidence submitted 

by the charged party.

To find the violation “proved” the Hearing Officer applies 

a standard of proof. The standard of proof is the 

“preponderance of evidence” standard. This means that 

the Hearing Office must determine, after due consideration of the Coast Guard’s evidence and the charged 

party’s evidence, whether it is more likely than not the 

violation occurred as alleged. If so, the violation is 

“proved.” 

 

The final assessed penalty amount is an amount equal to 

the preliminary assessed penalty amount or an amount 

that is less than the preliminary assessed penalty 

amount. All evidence presented in the Coast Guard's 

case file and by the charged party is carefully considered 

and weighed to formulate the final penalty amount.

 

 

 

 

 

In order that determinations made by the Hearing Officer are fair to both the Coast Guard unit submitting the 

violation case and to the mariner responding to the violation(s), both the Coast Guard unit and the mariner 

would be well served by submitting complete, relevant, 

reliable, and credible evidence.

* * * * * * * * 

CITIZENSHIP DOCUMENTATION 

CDR Evan Hudspeth

Much has already been said in previous articles about 

the “75/25 rule” or more specifically 46 U.S.C. 8103 regarding citizenship requirements for personnel on documented vessels and certain types of fishing vessels. This 

article adds information concerning evidence of citizenship status to the discussion.

A state driver’s license and/or social security card are 

often acceptable forms of identification for establishing 

identity and employment eligibility, but are generally 

not accepted as good indicators of citizenship status. 

These forms of identification provide little assistance in 

determining whether an unlicensed seaman is either a 

citizen of the of the United States, an alien lawfully admitted to the United States for permanent residence, or 

an alien allowed to be employed in the United States. 

There are several different documents that are commonly relied on as indicators of a valid claim of U.S. citizenship. These documents include but are not limited to 

a certificate of U. S. birth, citizenship certificate, certificate of naturalization as a U.S. citizen, passport, voter 

registration card, or licenses and permits issued by governmental agencies only to U.S. citizens. 

The document typically relied upon to indicate that one 

is lawfully admitted to the United States for permanent 

residence is a United States Permanent Resident Card, 

Form I-551, informally known as a “green card.”

For non-immigrants, the Arrival-Departure Record, 

Form I-94, is evidence of lawful admission to the United 

States in a specific immigration class or status. Except 

for those non-immigrants granted admission to work in 

the United States, (class H), non-immigrants may not 

accept employment in the United States. Class H will be 

denoted on the I-94 for individuals that may accept employment in the United States. 

Coast Guard boarding teams will often seek to determine whether unlicensed seamen on a vessel are citizens 

of the United States or, alternatively, lawfully admitted 

to the United States. Mariners and unlicensed seamen 

could assist Coast Guard boarding teams in making fair 

 

 
Coast Guard Hearing Office Vol : VIII Newsletter Date: Apr 2010 

Hearing Office is our Name, Maritime Safety and Security is our Aim

determinations of citizenship status by ensuring the appropriate documentation is made available.

When possible, copies of, or information from, citizenship 

status documentation should be included in any civil penalty case file forwarded to the Coast Guard Hearing Office.

* * * * * * * * 

WHERE’S THE EVIDENCE? 

CDR Mark Hammond

Those of you that have been around for a while might remember the popular TV commercials that aired a while 

back for one of the big fast food chains. The ads featured 

an elderly woman who was so shocked by the small size of 

a competitor’s hamburgers that she would exclaim 

“where’s the beef?” I’m sometimes reminded of those ads 

when I review violation cases that are forwarded to the 

Coast Guard Hearing Office for adjudication. The “small 

size” of the evidence forces one to wonder “where’s the 

evidence?”; the “beef” if you will. 

A common reason for certain violations or even entire 

cases being dismissed by a Hearing Officer is the lack of 

evidence in the case file to support a violation. Without 

sufficient evidence to support each element of a violation 

as alleged, Hearing Officers cannot proceed with the adjudication of the violation. To proceed, the Hearing Officer 

must find a “prima facie case.”

A prima facie case is found when the Hearing Officer determines that there is good and sufficient evidence in the 

case file to support each element of a violation. Absent 

evidence to the contrary, the violation can be found 

“proved” based on the evidence in the case file. Evidence 

to the contrary is typically provided to the Hearing Officer by the charged party. 

Remember the Enforcement Summary is simply a summary of the violation case. The “evidence” is in the details found in the Activity Summary Report (ASR) and / 

or case exhibits and enclosures. These are documents, 

photographs, and statements of boarding team members, 

investigators, witnesses, etc. It is this evidence that a 

Hearing Officer relies on when determining if there is a 

prima facie case to proceed with adjudication. It is also 

this evidence that the charged party relies on in order to 

have a meaningful opportunity to comment and provide 

evidence in defense, extenuation, and mitigation.

For example, according 46 U.S.C. 2302(a), a person operating a vessel in a negligent manner or interfering with 

the safe operation of a vessel, so as to endanger the life, 

limb, or property of a person is liable to the U.S. Government for a civil penalty. For violations of this statutory 

provision, a brief narrative that simply states: “Subject 

operated too fast in a No-Wake Zone” with no other details might be insufficient to support a violation for negligent operations. Details are important to understanding a violation. In this example, details might include 

how the operator was negligent and how the operator’s, 

actions, or inactions endangered life, limb, or property. 

Details also might include how the boarding officer 

identified the operator, a description of weather conditions, visibility, traffic density, hazards in the water (ie, 

swimmers, paddlers), speed of vessel, etc. 

For PFD serviceability violations, simply stating 

“Vessel’s PFDs were found unserviceable” might be insufficient to support all elements of the violation. 33 

CFR 175.23 sets forth the serviceability requirements 

for PFDs and describes some conditions in which PFDs 

are found to be unserviceable. For these types of violations, a description as to the specific discrepancies that 

caused the boarding team to determine that the PFDs 

were unserviceable would be helpful to understanding 

the violation. For example, where and how big was the 

rip or tear; where and how long were the open seams in 

the fabric or coating of the PFD, and the location, size, 

and degree of any finding of the PFD being water 

logged, oil-soaked, etc.

Similarly, a case file that included a narrative statement on the ASR that says “vessel’s navigation lights 

were inoperable” could be better explained by including 

the time the vessel was boarded and the time of sunset/

sunrise on the day of the boarding. 

A clear understanding of the regulation that was violated is helpful when determining the details necessary 

to be documented to constitute “good and sufficient” 

evidence in support of each element of the violation. 

“Good and sufficient” evidence provides the charged 

party with a clear understanding of the alleged violation and a basis upon which to make informed decisions 

regarding their response to the Hearing Officer. 

* * * * * * * * 

K N O T 

(Knowledge Note Or Tip) 

You wonder about it and we see 

it...the confusion over COLREGS and 

INLAND waters. In what waters do 

COLREGS rules apply and in what 

waters do INLAND rules apply? 

Title 33, Code of Federal Regulations, Part 80 provides 

the “lines of demarcation” between the two waters. Inside the lines, the INLAND navigation rules apply, outside the lines, the International Regulations for Preventing Collisions at Sea (COLREGS) rules apply. 

 
Coast Guard Hearing Office Vol : VIII Newsletter Date: Apr 2010 

Hearing Office is our Name, Maritime Safety and Security is our Aim

Knowing the difference is very important for determining whether a vessel is in violation of a navigation rule. 

If violation of an INLAND rule is alleged and the location of the vessel at the time of the violation is in COLREGS waters, the violation typically cannot be processed 

for civil penalty and may be returned for further review 

to the processing official. The same applies if a COLREGS rule is allegedly violated and the location of the 

vessel at the time of the violation is in INLAND waters. 

Of course the boarding may occur in INLAND waters but 

the vessel at the time of violation was operating in COLREGS waters causing the violation of COLREGS rules. 

If the evidence in the case file fails to describe how the 

boarding team determined the vessel was previously operating in COLREGS waters, then the violation may appear to be in error. The same applies if the violation is 

of INLAND rules and the vessel was boarded in COLREGS waters. 

* * * * * * * * 

VIOLATION...WASTE MANAGEMENT PLAN 

CDR Mark Hammond

A boarding of a 42 foot recreational vessel was completed. The boarding officer remembered she was taught 

the general rule that recreational vessels 40 - 65 feet are 

required to have a waste management plan on board. 

The boarding team found no waste management plan on 

board. Seems simple enough. It’s a violation, right? 

Not so fast.

There are important elements to the regulation pertaining to waste management plans. Alleged violations of 

this regulation often fail because either the regulation 

did not apply to the vessel or there is insufficient evidence to support that the violation occurred. 

Using job aids or general rules learned is often insufficient to properly apply a regulation and determine if a 

violation occurred. To ensure a regulation applies and a 

violation is properly identified, it is important to refer to, 

and carefully read, the relevant regulation and its applicability section to know whether it applies to the vessel 

and any other conditions that may be present. A brief 

examination of the regulation pertaining to waste management plans follows. 

33 CFR 151.57(a) states in part: This section applies to 

the following: (1) Each manned oceangoing ship (other 

than a fixed or floating platform) of 40 feet or more in 

length that is documented under the laws of the United 

States or numbered by a state and that either is engaged 

in commerce or is equipped with a galley and berthing. 

Paragraph (b) goes on to say in part, the Master or person in charge shall ensure that the ship is not operated 

unless a waste management plan is on the ship and that 

each person handling garbage follows the plan.

Simply stating a vessel was 42 feet long and did not have 

a waste management plan on board does not provide sufficient evidence of a violation. Evidence should be sufficient for a reader to know that the vessel is “oceangoing” 

and either documented or state numbered, and engaged 

in commerce or equipped with a galley and berthing. 

According to 33 CFR 151.05, a “Ship” means a vessel of 

any type whatsoever, operating in the marine environment. This includes hydrofoils, air cushion vehicles, submersibles, floating craft whether self-propelled or not, 

and fixed floating drilling rigs and other platforms. 

According to 33 CFR 151.05, an “Oceangoing” ship 

means a ship that is operated under the authority of the 

U.S. and (1) engages in international voyages; (2) is certificated for ocean service; (3) is certificated for coastwise 

service beyond three miles from land; (4) and operates at 

any time seaward of the territorial sea of the US as defined in 33 CFR 2.22; or (5) is operated under the authority of a country other than the US.

This definition makes it necessary to know the vessel's 

location or route of service to determine whether the vessel is in fact an “oceangoing ship” and required to have a 

waste management plan on board. Careful consideration should always be given to documenting the facts 

that establish the regulation applied to the vessel and 

how the vessel did not comply with the regulation. 

* * * * * * * * 

CON vs. COD 

CDR Evan Hudspeth

Generally with some exceptions, all non-government vessels under five net tons that are operated on waters subject to the jurisdiction of the United States or owned in 

the United States, and equipped with propulsion machinery, are required to be registered in the State of 

principal use and receive a Certificate of Number (CON) 

by that State. Vessel owners and operators are required 

to have the valid CON documentation on board 

(registration), and must display the assigned number on 

each side of the forward half of the vessel. Specific requirements pertaining to CONs are found in Title 33, 

Code of Federal Regulations, Part 173 (33 CFR 173).

Generally, any vessel of at least 5 net tons wholly owned 

by a citizen of the United States is eligible to be documented under the laws of the United States and receive 

 

 

 

 

 
Coast Guard Hearing Office Vol : VIII Newsletter Date: Apr 2010 

Hearing Office is our Name, Maritime Safety and Security is our Aim

a Certificate of Documentation (COD). Subject to certain 

exceptions, generally any vessel of at least 5 net tons 

that engages in fisheries on the navigable waters of the 

U. S. or in the EEZ, or engages in coastwise trade is required to have a COD. CODs are issued by the U.S. 

Coast Guard National Vessel Documentation Center. 

Information on how to document your vessel can be 

found on their website at www.uscg.mil/hq/cg5/nvdc/. 

The original COD currently in effect must be on board 

the vessel, and there are specific requirements for displaying the COD number. Specific requirements pertaining to CODs are found in Title 46, Code of Federal 

Regulations, Part 67 (46 CFR 67).

If a vessel does not have a COD either because it is 

* * * * * * * * 

JUST FOR FUN

Alicia Scott, YN3 Victor Anderson 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SEE LAST PAGE FOR ANWERS 

 

 

ACROSS: 

2. A sailor; an old or experienced one.

3. A cask that had an opening in the side fitted with a 

spigot that sailors used to congregate at. Maybe known 

today as a water cooler in the modern day office.

4. Slang; place to purchase snacks, sweets, ice cream on 

a naval ship.

5. Large bracket that attaches the foot of mast to the 

deck. 

 

 

 

 

 

excluded or exempt from that requirement, then it is 

likely required to have a CON. Typically vessels should 

not have both a COD and a CON. However, some States 

require vessels that are required to have a COD to also 

be registered in the State of principal use for tax purposes. In such a case, these vessels may also have a 

CON.

According to 33 CFR 173.33, “The person whose name 

appears on a certificate of number as the owner of a vessel shall remove the number and validation sticker from 

the vessel when... The vessel is documented by the 

Coast Guard...” Additionally, according to 33 CFR 

173.77(b), “A certificate of number issued by an issuing 

authority is invalid after the date upon which... The vessel is documented or required to be documented under 

Part 67 of Title 46, Code of Federal Regulations...” 

In short if your vessel has a COD but is also required to 

be registered in the State of principal use, the State 

numbers should not be displayed on the hull of the vessel. Additionally the CON would be invalid as 

“registration” for federal purposes...the COD must be on 

board. 

* * * * * * * * 

COAST GUARD FUNDAMENTALS 

YN3 Christopher Brown (from CG Publication 1)

 Roles: Maritime Safety

 Maritime Security

 Maritime Stewardship

Statutory missions:

 Marine Safety

Search and Rescue

Defense Readiness

Migrant Interdiction

Other Law Enforcement

Ports, Waterways & Coastal Security

Ice Operations

Drug Interdiction

Aids to Navigation

Living Marine Resources

Marine Environmental Protection

* * * * * * * * 

DOWN: 

1. Upper deck forward part of a ship.

3. Another name for the Captain of a boat.

6. Responsible for the sails, ropes and boats on a ship; 

pipes commands to seamen.

7. Chunk of sandstone size of a Bible to scour and 

whiten wooden decks; used in a kneeling position.

8. Watered down rum consisting of half a gill with equal 

part water issued to seamen over the age of twenty.

 

 

 
Coast Guard Hearing Office Vol : VIII Newsletter Date: Apr 2010 

Hearing Office is our Name, Maritime Safety and Security is our Aim

DECKPLATE RIVETS 

 Don’t forget the all important e-signature!! See our Newsletter, Volume II, September 2008, page 3.

Identify the capacity (role) of the charged 

party and ensure that the cited regulation 

is applicable to the role; ie, if the regulation requires the 

owner to do the required act, don’t charge the operator 

with the violation.

 EPRIB batteries that are expired but not installed in 

an EPRIB do not constitute a violation; expired batteries 

installed in an EPRIB constitute a violation of 46 CFR 

25.26-50 (c)(2).

A violation charged against the operator of the vessel 

often requires the boarding officer to explain how the 

subject person was identified as the operator. This is 

best done in statements included in the case file, a copy 

of which is sent to the charged party.

 Include a copy of the boarding report CG-4100 or PDA 

printout in the case file. 

 

 Include sunrise and sunset times, and time of boarding when addressing violations for visual distress signals 

(VDS) or navigation lights. 

 The INLAND navigation rules are now codified at 

Title 33, Code of Federal Regulations, Part 83.

 There are several different regulatory provisions for 

the size and marking of life ring buoys as well as for reflective material and length of line. Check all and ensure to cite the right provision if a violation is suspected.

* * * * * * * * 

MAILING CDs and DVDs 

Note that digital media sent via United States Postal 

Service is sometimes damaged in handling before it is 

delivered to the Coast Guard Hearing Office. CDs and 

DVDs and similar digital media may be rendered unreadable. Units submitting CDs and DVDs are encouraged to use overnight delivery service when mailing such 

media. And don't forget if the format is such that the 

Hearing Officer OR charged party cannot read the digital media, then the violation case file will be returned so 

printed images from the digital media can be made and 

inserted in the violation case file. Also remember to 

* * * * * * * *

CROSSWORD ANSWERS:

Across:

2. SEADOG

3. SCUTTLEBUTT

4. GEEDUNK

5. TABERNACLE

send two (2) copies of each CD or DVD. One copy is for 

the Hearing Officer and one copy is sent to the charged 

party along with the copy of the violation case file and 

the Hearing Officer's preliminary assessment letter. 

Finally, label the CD or DVD with the case file name 

and enforcement activity number.

* * * * * * * * 

WHAT’S IN A NUMBER? 

A number is nothing in and of itself. A number is a creation used in counting and measuring. Numbers can convey “magnitude “ or “degree.” Numbers are relative and 

can be expressed as a ratio or percentage. Sometimes 

numbers are used simply as convenience for certain 

functions such as telephone numbers, lock combinations, 

etc. Today we hear much about business measures or 

business metrics. Often these “metrics” are used to 

measure the success or failure of a desired outcome. 

Here’s some Coast Guard Hearing Office metrics that 

provide a “how goes it” glimpse into our work:

Number of case files received by the Coast Guard Hearing Office with violation dates in 2007: 1448 

Number of case files received by the Coast Guard Hearing Office with violation dates in 2008: 942

Number of case files received by the Coast Guard Hearing Office with violation dates in 2009: 1308

Number of case files received by the Coast Guard Hearing Office with violation dates in 2010: 68

Number of case files received by the Coast Guard Hearing Office Jan 2010 - Mar 2010 regardless of violation 

date: 348

Number of preliminary assessments issued Jan 2010 -

Mar 2010: 351

Number of final assessments issued Jan 2010 - Mar 

2010: 293 

Number of violation case files returned to the program 

manager for deficiencies Jan 2010 - Mar 2010: 27

Number of hearings held Jan 2010 - Mar 2010: 1 

* * * * * * * *

Down: 

1. FORECASTLE

3. SKIPPER

6. BOATSWAIN

7. HOLYSTONE

8. GROG