SEPARATION OF AGENCY FUNCTIONS 

Written by Mr. Robert Bruce

Like many federal agencies, the Coast Guard combines a number of 

functions within a unitary organization, ultimately under the 

direction of the Coast Guard Commandant. Those functions include: 

policy and rulemaking, investigations, inspections, prosecuting law 

enforcement cases (including civil penalty cases), and adjudicatory 

functions. The combination of these functions in the Coast Guard 

allows the agency to efficiently and effectively perform the missions 

assigned to it by Congress. 

For example, recreational boating safety program managers at Coast 

Guard Headquarters develop and interpret regulations and policies 

to carry out the Coast Guard’s mission to regulate boating safety. 

These program managers provide guidance to Coast Guard boarding 

officers at stations all around the nation about how to conduct the 

boarding of recreational vessels and enforce the boating safety laws. 

The program managers also provide guidance to boarding officers 

and the intermediate officials with authority to decide how to 

prosecute law enforcement cases. The combination of the 

recreational boating safety rulemaking, inspection, investigation and 

prosecutorial functions within the Coast Guard allows for a robust 

federal program to ensure that reasonable boating safety standards 

are established and enforced. 

Separation of the Adjudicatory Function.

Courts have long recognized that there is nothing unconstitutional 

about the combination of such functions within a federal agency, and 

so it is up to the legislative and executive branches of government to 

determine how an agency will perform its various functions. That 

said, there are still fair concerns about the combination of some 
functions within agencies. Particularly with regard to the 

adjudicatory function, it is generally accepted that individuals who 

must decide if a law enforcement case has been proved should not 

also serve as prosecutors of law enforcement cases, or have other 

duties that would give them an interest in the outcome of the cases 

they decide. Additionally, it is accepted that persons involved with 

the inspection or investigation that leads to a prosecution case, 

should not be allowed to communicate off-the-record with the 

individual who will decide if the law enforcement case has been 

proved. These safeguards promote the agency requirement that its 

adjudicators be fair and impartial. That requirement of fairness, in 

turn, protects the integrity and legitimacy of the adjudicatory 

process. 

With regard to the Coast Guard’s civil penalty process, the agency 

has, by policy, directed that the Hearing Officers who perform the 

adjudicatory function be separated from those in the agency who 

perform inspection, investigation and law enforcement functions. 

According to Title 33 Code of Federal Regulations § 1.07-15: “(a) The 

Hearing Officer has no other responsibility, direct or supervisory, for 

the investigation of cases referred for the assessment of civil 

penalties.*.*.* (b) The Hearing Officer decides each case on the basis

of the evidence before him, and must have no prior connection with 

the case. The Hearing Officer is solely responsible for the decision in 

each case referred to him. In addition to prohibiting Hearing Officers 

from investigating the cases they adjudicate, this regulation is 

interpreted to prohibit the Hearing Officers from engaging in any 

off-the-record communications with anyone who has an interest in 

the outcome of the case. 

Results of the Separation of the Hearing Officer Function.

Persons who have been charged in a civil penalty case will regularly 

call on the telephone and ask to speak to the Hearing Officer on their 

case. To be fair and even-handed, however, a Hearing Officer cannot 

engage in that kind of off-the-record communication any more than 

s/he can take a call from the boarding officer in a case to talk about 

how the case should be decided. Persons who have been charged in a 

civil penalty case will also occasionally suggest that the case file is 

not complete and that the Hearing Officer should provide additional 
documents that may or may not exist. Because Hearing Officers do 

not investigate the cases they adjudicate, nor do they engage in offthe-record communications, they must decide the cases based on the 

case files provided to them, along with any evidence submitted by 

the charged party. A party who has been charged in a civil penalty 

case can request the assistance of the Hearing Officer in obtaining 

documents from the Coast Guard, however, and the Hearing Officer 

may provide such assistance if the charged party demonstrates that 

the requested documents may have a material effect on the Hearing 

Officer’s decision. 

In some cases, Hearing Officers will want the Coast Guard 

inspectors or investigators involved in a case to respond to evidence

submitted by the charged party. In those cases, the Hearing Officer 

will send a request to the charging unit for rebuttal comments in 

writing. If rebuttal comments are received, those are provided to the 

charged party. By prohibiting off-the-record communications, and 

inserting all written submissions and communications into the case 

file, the Hearing Officer can maintain an accurate record of the 

evidence s/he can properly consider, and be certain that the charged 

party has been provided all of the same information. 

Hearing Officers are fact-finders; not policy makers.

There is one other important aspect of the separation of agency 

adjudication functions. As discussed earlier, the Coast Guard has 

Headquarters program offices that formulate regulations and

policies for the Coast Guard. These program offices are supervised by 

very senior Coast Guard officials. It is clear that the authority to 

issue rules and policy for the Coast Guard rests with those program 

offices. The Coast Guard does not rely on Hearing Officers to make 

rules and policy for the agency through their decisions in civil 

penalty cases. So, although a Hearing Officer has complete 

independence in fact-finding, s/he must follow the authoritative 

Coast Guard interpretations of its regulations and policies. This 

deference to authoritative agency determinations is similar to the 

deference that courts give to agency determinations when they are 

challenged under the Administrative Procedure Act (APA). Such 

challenges generally fail unless the challenger can show that the 

agency determination is unlawful or fails to meet APA standards of 
reasonableness. If an authoritative Coast Guard interpretation of 

regulation or policy is relevant to a civil penalty case decision, then 

the Hearing Officer must follow the Coast Guard interpretation 

unless the charged party can demonstrate that the agency position is 

unlawful or otherwise fails to meet APA standards of 

reasonableness.

As an example, in a recent case the charged party challenged the 

jurisdiction of the Coast Guard over the waterway where his vessel 

operates. In accordance with Title 33 Code of Federal Regulations 

section 2.40(a), the Coast Guard may make navigability 

determinations for certain waters, and it had made a determination 

that the waterway at issue in this case was navigable waters of the 

United States. The navigability determination was based on Coast 

Guard and sister agency decisions going back at least to 1957. In 

that case, because there was an authoritative Coast Guard 

determination on jurisdiction, the Hearing Officer used the 

determination to find there was jurisdiction. The charged party 

failed to show that the jurisdictional determination was unlawful or 

did not meet APA standards for reasonableness. 

The Coast Guard policy of separating the civil penalty adjudication 

function from other agency functions is a very important safeguard 

for the civil penalty process. The Hearing Officers are very aware of 

this policy and the reasons for it. They are scrupulous about 

maintaining the separation of functions