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

 July 2011

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 12

GREETINGS 

From Robert Bruce

Chief, Coast Guard Hearing Office 

 HEARING OFFICE NEWS 

 

 Here we are, starting another summer season and 

a lot of people are out on the water. That includes 

Coast Guard and state law enforcement officials doing 

their best to ensure that waterways are safe and 

clean, and that applicable laws are being observed. In 

advance of the July 4th weekend, I’ve seen several 

news articles about state officials coordinating with 

the Coast Guard to conduct Operation Dry Water. 

These operations appear to be intended to increase 

awareness of recreational boating safety requirements 

and practices, with a particular emphasis on deterring 

boating under the influence of alcohol or dangerous 

drugs. Hopefully, in the long term, these operations 

will lead to a better educated boating public, and to 

fewer boating accidents, injuries and deaths. That is 

what the Hearing Office is about also, although we do 

not just decide recreational boating safety cases. 

 In this Newsletter I’ve included an article about 

the separation of the Hearing Officer’s function from 

other functions performed by the Coast Guard as a 

law enforcement and regulatory agency. The article is 

intended to explain why the functions are separate, 

and some of the practical results of the separation of 

functions on our part of the civil penalty process. It 

may help our readers understand the reasons behind 

policies that seem to make Hearing Officers less accessible than they could be. For many people, both 

those who are in the Coast Guard and those who are 

not, it isn’t always easy to understand why the Hearing Office does things the way it does. The purpose of 

this Newsletter is always to help folks become more 

knowledgeable about our process and to make their 

participation in the process more effective. 

 

The Hearing Office is welcoming aboard a new member of our administrative staff. He is Yeoman Second 

Class Drew Steele, and he arrived from the Coast 

Guard Training Center, Yorktown, Virginia, where he 

performed personnel duties. We will be training 

YN2 Steele to process civil penalty cases in support of 

our Hearing Officers and to provide information to the 

many people we hear from every day. He seems like a 

fast learner and eager to get up to speed. 

Anyone with civil penalty cases involving alleged violations in 2010 ought to get those submitted to the 

Hearing Office as soon as possible. 

 

 

Articles in this issue: 

 

Finding the Happy Medium (of Evidence)...p.2 

 

Vessel Boardings and Coast Guard Authority...p.3 

 

Separation of Agency Functions...p.4 

 

Just for Fun 

Black Cats, Swallows and Luck...p.6 

 

Deckplate Rivets...p.6 

 

KNOT...p.7 

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

Coast Guard Hearing Office Vol: XI Newsletter Date: Jul 2011 

2

usually less helpful than is evidence containing 

factual detail to 

support the finding the party 

seeks to prove. 

The charged 

party may want 

to: a) determine 

what evidence is 

available or obtainable that either clearly contradicts 

the Coast Guard’s evidence relating to the elements of 

the violation; or b) clearly present facts that are extenuating or mitigating, such as timely achievement 

of compliance. 

A little is probably not enough

 Lack of evidence may render an argument or case 

less than convincing, or not very credible. It becomes 

difficult to make a decision if not enough evidence, or 

not enough of an explanation about how the evidence 

is relevant, has been provided. To the persons involved in a boarding or other incident, it may be obvious how evidence of a certain fact relates to the proof 

of an alleged violation. You should try to put yourself 

in the 

position 

of the 

Hearing 

Officer, 

who 

must understand 

what 

happened 

only from the evidence and explanations provided. 

Although we may consider ourselves to be knowledgeable and experienced in the matters before us, Hearing Officers are not mind readers. A brief explanation 

should not only provide the Hearing Officer with a 

clearer understanding as to why the evidence provided is relevant, but also why, if at all, it should be 

considered in defense, extenuation, mitigation, or aggravation. 

 Not too little, and not too much, but just right... 

Hopefully with some forethought and common sense, 

both the charging unit and the charged party will be 

able to find the happy medium of evidence to provide 

in a case. 

FINDING THE HAPPY MEDIUM 

 

CDR Evan Hudspeth

 According to 33 CFR §1.07-55(d), “In receiving evidence, the Hearing Officer is not bound by strict rules 

of evidence. In evaluating the evidence presented, the 

Hearing Officer must give due consideration to the 

reliability and relevance of each item of evidence.”

 When determining what evidence to provide for the 

Hearing Officer’s consideration in a case, it’s important to focus on the elements of each violation. Without careful thought, it is quite possible to provide either too much, or not enough, evidence and information. It is fine to tell the whole story, and surrounding 

circumstances may be weighed as mitigating or aggravating factors; including irrelevant information, however, can be unnecessarily burdensome and distracting for the Hearing Officer. The goal, for both the 

charging unit and the charged party, should be to find 

the happy medium.

More is not always better

 Occasionally, alleged charges will stem from an 

incident that included an extensive investigation, and/

or response operations by the Coast Guard. When the 

charging unit is compiling a case package for submission to the Hearing Office, it is more confusing than 

helpful to include everything available. Instead, consider the 

elements of 

the alleged 

violation, 

and what 

evidence is 

available 

that clearly 

shows that 

these elements have 

been met. Similarly, it would be more beneficial to 

the charged party if there were a clear focus on the 

elements of each violation and any mitigating or extenuating circumstances. 

 A charged party responding to the allegations may 

be tempted to address all the finer details of the case 

file, pointing out minor discrepancies, and passionately offering personal opinions or conclusions about 

the case. To the Hearing Officer, whose job it is to 

make a decision based on the facts, such responses are 
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Coast Guard Hearing Office Vol: XI Newsletter Date: Jul 2011 

3

tions, even in the absence of a reasonable suspicion 

that some criminal activity is occurring. 

 The Coast Guard exercises its broad authority to 

conduct vessel boardings for the purpose of enforcing 

U.S. laws and regulations to promote marine safety, 

security and environmental protection. This authority 

extends to any vessel over which the United States 

has jurisdiction. This essentially means U.S. vessels 

anywhere outside the territorial waters of another 

country, and foreign vessels in U.S. waters. Title 14 

USC § 89 states in part: 

“(a) The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests 

upon the high seas and waters over which the United 

States has jurisdiction, for the prevention, detection, 

and suppression of violations of laws of the United 

States. For such purposes, commissioned, warrant, 

and petty officers may at any time go on board of any 

vessel subject to the jurisdiction, or to the operation of 

any law, of the United States, address inquiries to 

those on board, examine the ship’s documents and 

papers, and examine, inspect, and search the vessel 

and use all necessary force to compel compliance...”

 For civil penalty 

cases forwarded to 

the Hearing Office, 

the Hearing Officer 

reviews each case to 

determine if there is 

sufficient evidence in 

the case file to make 

a preliminary determination that a violation has occurred 

and proceed with 

adjudication. This 

includes ensuring the Coast Guard has jurisdiction 

over the matter and the elements of the alleged violation are met based on the evidence. There may be 

cases where a party could reasonably argue that a denial of fundamental fairness, or actions that shock the 

conscience, undermine the credibility of the officials 

involved in a case and the reliability of the evidence 

those officials have offered. Arguments that the Coast 

Guard “did not have probable cause to conduct the 

boarding,” however, most often just show an unfamiliarity with the relevant law, as discussed above, and 

have no bearing on the determination of whether a 

violation of law or regulation was committed. 

VESSEL BOARDINGS AND COAST GUARD AUTHORITY 

CDR Mark Hammond

 We’ve all watched enough episodes of “COPS” or 

“Law and Order” to be familiar with the concept that 

an agent of law enforcement needs “probable cause” to 

arrest a person for the commission of a crime. Agents 

of law enforcement need a “reasonable suspicion” that 

a crime has been or will be committed to stop/detain a 

person for questioning. So, does the Coast Guard 

need either a reasonable suspicion or probable cause 

to believe that a law or regulation has been violated to 

stop your boat and board your vessel? The answer is, 

“No.” 

 The Hearing Office often receives responses from 

charged parties demanding that their cases be dismissed because the Coast Guard “lacked probable 

cause” to stop and board their vessel. Moreover, they 

argue that any violation discovered during the boarding cannot be processed because the boarding was improper and in violation of their rights under the 

Fourth Amendment of the Constitution, which prohibits unlawful searches and seizures. 

 The Fourth Amendment to the United States Constitution guards against 

unreasonable searches and 

seizures and requires warrants to be judicially sanctioned and supported by 

probable cause. The 

courts have long held however, that it is not unreasonable for the Coast 

Guard to exercise plenary 

authority under Title 14 

United States Code (USC) section 89 to stop and 

board vessels on the navigable waters of the United 

States to conduct safety and documentation inspec-
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Coast Guard Hearing Office Vol: XI Newsletter Date: Jul 2011 

4

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 

(Continued on page 5)

SEPARATION OF AGENCY FUNCTIONS 

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 
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Coast Guard Hearing Office Vol: XI Newsletter Date: Jul 2011 

5

tion 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. 

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 determina-

(Continued from page 4)
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Coast Guard Hearing Office Vol: XI Newsletter Date: Jul 2011 

6

JUST FOR FUN 

 

BLACK CATS, SWALLOWS AND LUCK 

Alicia Scott and YN2 Pamela Conlee

 If a black cat crosses your path, it is known to 

bring bad luck, right? Well, if you are sailor, a black 

cat can symbolize good luck if the cat comes to you. If, 

however, the cat comes to the sailor and then walks 

away, don’t go out fishing that day—you will just have 

plain bad luck. It was also known that if you had a 

cat on board your boat and: the cat sneezed, rain was 

on the way; if the cat was cleaning its fur against the 

grain, a hailstorm was a-comin’; and if the cat was 

frisky, you could expect some wind. 

 

Sailors’ superstitions have been around for many 

years and have been passed down through generations of sailing fathers to sons who take on the same 

profession. Have you ever heard the term, “Whistling 

up a storm”? Well, this comes from a traditional 

sailor superstition. 

To whistle in the 

wheelhouse, or anywhere on board 

your vessel, could 

bring a gale. For 

all you redheads 

out there, don’t be 

offended if a sailor 

does not allow you to board his ship; it is known that 

redheads bring bad luck to a ship unless the sailor 

speaks to the redhead before the redhead can speak to 

the sailor. To the ladies out there, I have bad news. 

Women were known to be bad luck aboard a ship because they would distract the crew. 

 All this talk about bad luck! “What about good 

luck?,” you may say. Swallows at sea have always 

been a comforting sight for a sailor. Swallows are 

land-based birds; seeing them at sea meant: “Land is 

near and your prospects are clear.” Tattoos and piercings kept evil spirits away and a sailor wore gold hoop 

earrings for good luck. If you were to throw some 

coins into the sea to Neptune, the sea god, it was presumed that you would have a safe voyage. 

 There are many other superstitions, but if you just 

remember to throw some coins to Neptune, listen to 

your cat, and keep an eye out for swallows, you’re sure 

to have a good trip!

The authors acknowledge: http://caribbeanpirates.com/nautical_superstitions.php as a source of 

information for the article.

* * * * * * *

DECKPLATE RIVETS

 Vessels of 5 net tons or more, engaging in fisheries on the navigable waters of the United 

States or in the Exclusive Economic Zone, or engaging 

in the coastwise trade (unless meeting the exceptions 

set forth in 46 C.F.R. § 67. 9(c)) are required to be 

documented per 46 C.F.R. § 67.7. In cases featuring 

documented vessels where the Certificate of Documentation (C.O.D.) is at issue, it’s a good practice to get a 

copy of the C.O.D. from either the party or the National Vessel Documentation Center and include it in 

the file before sending the case to the Hearing Office.

Some regulations are definitional or explanatory. These regulations contain information, but 

they do not specifically direct anyone to do anything. 

No one can violate a regulation that contains only information, such as definitions or explanations. One of 

those regulations that only contains information is 33 

CFR § 173.27, “Numbers: Display; size; color.” Subsection (a) of 173.27, however, does reference the regulation that directs boaters not to operate without 

proper numbers. Cite the regulation that directs the 

boater not to operate without proper numbers. 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XI Newsletter Date: Jul 2011 

7

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 June 29, 2011) 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 2008: 946 

Number of case files received by the Coast Guard 

Hearing Office with violation dates in 2009: 1442 

Number of case files received by the Coast Guard 

Hearing Office with violation dates in 2010: 1463 

Number of case files received by the Coast Guard 

Hearing Office with violation dates in 2011: 245 

Number of case files received by the Coast Guard 

Hearing Office in 2011 regardless of violation date: 

716

Number of preliminary assessments issued in 2011: 

688

Number of final assessments issued in 2011: 405

Number of violation case files returned to the program manager for deficiencies in 2011: 117

Number of hearings held in 2010: 3

K N O T 

 

(Knowledge Note or Tip) 

 

Minimum Civil Penalties for Failure to Heave-To 

and for Hazardous Materials Transportation Violations

Within the table of civil penalty amounts in 33 CFR 

Part 27, there are at least two penalty amounts that 

are identified as minimum civil penalties. One is the 

$1,000.00 minimum civil penalty for failure to heaveto, in violation of 19 USC § 1581(d), and another is 

the $300.00 minimum civil penalty for violating requirements for transportation of hazardous materials, authorized by 49 USC § 5123(a)(1). When considering whether or not to charge someone with failing to heave-to, it is important to keep in mind that, 

if the violation is proved, the Hearing Officer is required to assess the minimum penalty, at least. If 

the violation is proved, the Hearing Officer cannot 

assess a warning or any penalty less than a civil penalty of $1,000.00. Accordingly, when a Coast Guard 

unit forwards a case including a charge of failing to 

heave-to, in violation of 19 USC § 1581(d), the unit 

should not recommend a warning or a civil penalty 

less than $1,000.00. The same is true for violations 

of the hazardous materials transportation regulations, although the minimum $300.00 civil penalty 

for those violations is less likely to raise concerns 

about whether the penalty fits the violation. Making 

a recommendation that is inconsistent with the minimum civil penalty is clearly not effective, because the 

Hearing Officer must follow the law, and it gives the 

appearance that the unit making the recommendation is not fully aware of the consequences of the 

charge it is asserting. The decision to seek a civil 

penalty should always take account of material factors involved in the case, including any minimum 

civil penalty.