Hearing Office Mission: Adjudicate civil penalty cases. The civil penalty process is remedial in nature. Its goals are to 

gain compliance with statutes and regulations the Coast Guard enforces and to deter future violations. A fair and informal 

administrative process promotes maritime safety, security and environmental protection. 

 

Newsletter Date 

 February 2014 

Coast Guard Hearing Office 

“Hearing Office is our Name, 

Maritime Safety and Security is our Aim” 

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

Volume 22 

GREETINGS 

From Robert Bruce 

Chief, Coast Guard Hearing Office HEARING OFFICE NEWS 

 As our name implies, hearings are an integral part of 

the civil penalty process and particularly the part of 

the process performed by hearing officers. A typical 

provision governing Coast Guard civil penalties is 46 

U.S.C. § 2107(a), which states that: “After notice and 

an opportunity for a hearing, a person found . . . to 

have violated [Title 46, subtitle 2 or an implementing 

regulation] . . . is liable to the United States Government for the civil penalty provided.” [Emphasis 

added.] The Coast Guard cannot lawfully assess a civil 

penalty in accordance with that or a similar provision 

without giving the charged party an opportunity for a 

hearing. That does not mean that every charged 

party needs or wants to have a hearing. In fact, a 

large majority of charged parties decide to: present 

their case in the form of written submissions; just pay 

the penalty; or not respond at all. Of course, failing to 

respond is not a good idea because it waives most 

rights in the civil penalty process and results in a penalty being assessed without input from the charged 

party. 

Aside from hearings held at our offices in Arlington, 

Virginia, hearings are conducted by videoteleconference (VTC); generally, at a Coast Guard office closest to the charged party that can support a 

VTC hearing. That support, in addition to the VTC 

equipment, includes someone from the unit who will 

serve as an escort to help facilitate the hearing. Trying to coordinate schedules, conference rooms, equipment, and personnel for a hearing, is often a daunting 

task for the hearing office administrative staff. It is 

our expectation that Coast Guard units will always 

make a good faith effort to promote the civil penalty 

process by cooperating to the fullest extent possible in 

arranging for a hearing. It is a fact of life that, if a 

hearing is properly requested, we must provide it. 

 

Following this issue of the Hearing Office Newsletter, 

it will go on hiatus while we look into other ways of 

communicating with the stakeholders in the civil penalty process, including charged parties. It may return 

on an occasional basis, if needed to address civil penalty issues of special significance. We are planning to 

make better use of the Hearing Office web site and 

make more information available there. If you have 

other ideas of how the Hearing Office could better 

communicate with stakeholders, please send them to: 

robert.w.bruce@uscg.mil. 

Articles in this issue: 

 

CITIZENSHIP: § 8103 “ENGAGED IN THE 

FISHERIES...p. 2 

K.N.O.T.: ID OF OPERATOR IN BUI 

CASES...p. 4 

DECKPLATE RIVET...p. 5 

WHAT’S IN A NUMBER...p. 5 

JUST FOR FUN...p. 6 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XXII Newsletter Date: FEB 2014 

2 

exclusive economic zone surrounding the Commonwealth or another 

United States territory or possession. 

(2) Not more than 25 percent of the 

unlicensed seamen on a vessel subject to paragraph (1) of this subsection may be aliens referred to in 

clause (C) of that paragraph. 

(3) This subsection does not apply to 

a fishing vessel fishing exclusively 

for highly migratory species (as that 

term is defined in section 3 of the 

Magnuson-Stevens Fishery Conservation and Management Act (16 

U.S.C. 1802)). 

(Bold type added.) 

The Hearing Office Newsletter has published numerous articles on paragraph (2) of this subsection. 

One element of the charge is that the unlicensed 

crewmember must be on a fishing, fish processing, 

or fish tender vessel that is engaged in the fisheries. The engaged in the fisheries element must be 

proved to establish the violation in paragraph (2). 

“Fisheries” is defined in 46 U.S.C. § 108: 

...the term ‘fisheries’ includes processing, storing, transporting (except in foreign commerce), 

planting, cultivating, catching, taking, or harvesting fish, shellfish, marine animals, pearls, 

shells, or marine vegetation in the navigable 

waters of the United States or in the exclusive 

economic zone. 

Please note: If your unit is going to charge a party 

under this subsection, the case file must contain evidence that the fishing vessel was performing an 

ctivity meeting the “engaged in the fisheries” requirement at the time that the vessel was boarded. 

For example, the narrative portion of the Activity 

(Continued on page 3) 

Citizenship: § 8103 “engaged in the fisheries”

LCDR Michele Bouziane 

Title 46 U.S.C. § 8103, subsection (i), which is the 

subsection the Coast Guard applies to fishing vessels, is reprinted below: 

(i)(1) Except as provided in paragraph (3) of this subsection, each 

unlicensed seaman on a fishing, fish 

processing, or fish tender vessel that 

is engaged in the fisheries in the 

navigable waters of the United States 

or the exclusive economic zone must 

be-- 

(A) a citizen of the United States; 

(B) an alien lawfully admitted to the 

United States for permanent residence; 

(C) any other alien allowed to be employed under the Immigration and 

Nationality Act (8 U.S.C. 1101 et 

seq.); or 

(D) an alien allowed to be employed 

under the immigration laws of the 

Commonwealth of the Northern 

Mariana Islands if the vessel is permanently stationed at a port within 

the Commonwealth and the vessel is 

engaged in the fisheries within the 
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Coast Guard Hearing Office Vol: XXII Newsletter Date: FEB 2014 

 3 

(f) A person employing an individual 

in violation of this section or a regulation prescribed under this section is 

liable to the United States Government for a civil penalty of $500 for 

each individual so employed. 

In evaluating civil penalties and determining maximum civil penalties, Hearing Officers refer to 33 

CFR § 27.3, the Penalty Adjustment Table, which 

contains annual adjustments for inflation. If you 

check the entry for 46 U.S.C. § 8103 in the Table, 

you will find that the inflation-adjusted penalty 

amount listed is $800. 

That is to say that a person who violates subsection 

(i) of 46 U.S.C. § 8103 “is liable to the United 

States Government for a civil penalty” of $800. 

It is the position of the Coast Guard that the Hearing 

Officer does not have discretion to reduce the penalty amount prescribed by the statute, if a violation 

is proved, regardless of any mitigating evidence the 

party may present. 

* * * * * * *

(Continued on page 4) 

Summary Report should describe activities observed that establish that the vessel that was 

boarded by the Coast Guard was engaged in fishing 

for shrimp, etc. Further substantiating evidence 

would be, for example, describing: any deployed 

nets, trawling apparatus, lobster traps, etc.; any actions in furtherance of fishing, such as hauling in or 

counting catch; storing or transporting the catch; 

and how the vessel complied with the lights and 

shapes requirements of Inland Navigation Rule/

International Rule 26. 

A fishing vessel with fish in the hold, returning to 

port, would be engaged in the fisheries. The definition does not make it clear whether preparations in 

advance of actual fishing, like transiting to a fishing 

spot with ice in the hold, is or is not engaging in the 

fisheries. In such a case, an authoritative Coast 

Guard interpretation of 46 U.S.C. § 108 might be 

needed, to prove that the vessel is engaged in the 

fisheries. 

The block on the Activity Summary Report entitled, 

“Boarding: Vessel Operating Info” lists the 

“Observed Activity.” If the word “fishing” is filled 

in here, that is helpful, but not really detailed or descriptive enough. Again, a description like, “the 

crew was actively setting lobster traps” is more 

helpful. 

Admissions by the master and crew are also helpful. 

If the master stated that the crew was fishing for 

shrimp, coupled with evidence that the vessel was 

clearly a fishing vessel (for example, fishing nets 

and fishing equipment visible on the vessel; vessel 

documented with a fisheries endorsement, etc.), that 

would normally be sufficient to establish that the 

vessel was engaged in fishing. 

CG interpretation of penalty provision of § 8103

Now let’s talk about subsection (f), the civil penalty 

provision of 46 U.S.C. § 8103, “Citizenship and 

Navy Reserve requirements,” which is reprinted below: 

(Continued from page 2) 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XXII Newsletter Date: FEB 2014 

4 

K.N.O.T. 

(Knowledge Note or Tip) 

ID of operator in BUI cases

To state the obvious, it is unlawful to operate a vessel while under the influence of alcohol or a dangerous drug. Too often narrative summaries will concentrate on the “under the influence of alcohol or a 

dangerous drug” element and all but ignore the 

“operate a vessel” element. Many narrative summaries make conclusory statements, such as the following: “[Name of charged party] was identified as 

the operator of the vessel.” 

If this statement is the only evidence of “operation” 

of the vessel, it may be inadequate. The Hearing 

Officer must be given enough details of how the 

boarding officer determined that the charged party 

was the operator to find that there is reliable evidence to prove the operation-of-the-vessel element 

of the alleged violation. A simple conclusory statement that the charged party was the operator does 

not provide any details to help the Hearing Officer 

understand what the boarding officer observed that 

led to that conclusion. 

The better Activity Summary Reports clearly establish the operation-of-the-vessel element with important factual information. 

Below is an example of one of the better descriptions received by the Hearing Office. The below 

excerpt is from the “Narrative Overview of the Activity” portion of an actual Enforcement Summary 

submitted by BM3 Kyle S. Love of Station Marblehead, Ohio. The party’s name has been changed to 

protect the party’s privacy: 

...The vessel’s operator, later identified as John 

Doe, complied with direction to heave to and 

allow PO2 Smith and I to board the vessel in 

position 41-33.50N, 082-49.39W. During our 

approach I observed John Doe, who was wearing black shorts and a black shirt, operate the 

vessel’s throttles and helm and I identified him 

as the vessel’s operator... 

Note, however, that this is just an example, and not 

boilerplate language to be copied into every case 

file. The boarding officer’s statement should fairly 

reflect what the boarding officer actually observed. 

The Civil Penalty Case Guide, posted on the Hearing Office webpage, at page 14, lists the following 

as an example of relevant evidence: 

15. For ‘operator’ cases, how it was determined 

that the person named as operator was 

identified as operator (observation and / or operator and witness statements) and where the 

operator was located at the time of the determination. 

Operation of the vessel by a party charged with BUI 

must be clearly set forth in the case file documents. 

For additional information on this topic, see Hearing Office Newsletter Vol. 14 (XIV) January 2012, 

p. 5. 

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

Coast Guard Hearing Office Vol: XXII Newsletter Date: FEB 2014 

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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 are some Coast Guard Hearing Office metrics (as of March 31, 2013) that provide a “how 

goes it” glimpse into our work: 

Number of case files received by the Hearing 

Office with violation dates in 2009: 1444 

Number of case files received by the Hearing 

Office with violation dates in 2010: 1500 

Number of case files received by the Hearing 

Office with violation dates in 2011: 1630 

Number of case files received by the Hearing 

Office with violation dates in 2012: 1513 

 Number of case files received by the Hearing 

Office with violation dates in 2013: 910 

Number of case files received by the Hearing 

Office in 2013 regardless of violation date: 1444 

Number of preliminary assessments issued in 

2013: 1417 

Number of final assessments (FLAP, FLAN, 

FLW, and FLD) issued in 2013: 896 

Number of violation case files returned to the 

program manager for deficiencies in 2013: 129 

 

Number of hearings held in 2013: 6 

DECKPLATE RIVET 

 Ensure the Hearing Office is equipped to play 

the DVD, etc., that you send as evidence. 

The Hearing Office appreciates the efforts of charging units to amass important visual evidence, such 

as Vessel Data Recorder information and Vessel 

Traffic Service playback, in serious negligent operation cases. It is important, however, to first ascertain if the Hearing Office has the software necessary 

for Hearing Officers to read such information. In a 

few instances, units have sent the data accompanied 

by a computer application, which had to be installed 

to read the data. Those applications did not work on 

Hearing Office Standard Work Stations. Moreover, 

Coast Guard policy does not permit the Hearing Office to maintain stand-alone computers that are not 

connected to the Coast Guard Data Network. 

The Hearing Office has an application called “VLC 

Player” loaded onto its work stations. The charging 

unit ought to ensure that the evidence it sends to the 

Hearing Office is compatible with VLC Player or 

the other programs available on CG SWS III in the 

National Capital Region. 

The charged party must be able to view the evidence in the same way that the Hearing Officer can 

view it. VLC Player is available to the public for 

free on the web; if the evidence can be viewed on 

VLC Player, then the charged party can be informed 

of the free availability of VLC Player. But that is 

only helpful if the video or audio file is a type that 

VLC Player will play. If the file type requires some 

software that is not generally available to play, it is 

better to print out relevant screen shots and use 

those in the case file. 

The full name of VLC Player is VideoLAN VLC 

Media Player 2.0.0 Software. This particular version is Coast Guard-approved. If your unit does not 

already have it, you will need to apply for a waiver. 

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

Coast Guard Hearing Office Vol: XXII Newsletter Date: FEB 2014 

6 

IT’S NOT A JOKE STAY AFLOAT 

Written By Alicia Scott 

Find the correct word to complete the Safety Tip. 

Across Down

3) The master of a U.S. documented vessel must be a United 

States ______.

1) If your vessel is in an accident on the water, though no 

one is hurt, you must report 

this.

4) This is a special ID to enter 

secure areas of maritime facilities and vessels regulated by 

the MTSA. 

2) If your fishing vessel 

sinks, you will want and need 

this item.

5.) The original_____of Number must be on board when operating the vessel.8) Don’t drink and operate 

your boat or you may be 

charged with a _____.

6) Use these to signal other 

boats or Coast Guard in an 

emergency.

7) You must have these on 

when boating at night.

9) You must have one of these 

on board for every person on 

your vessel.

 5)CERTIFICATE 6)FLARES 7) LIGHTS 8)BUI 9)LIFEJACKET ANSWERS:1)MARINE-CASUALTY 2)LIFERAFT 3)CITIZEN 4) TWIC