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 2012

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 15

GREETINGS 

From Robert Bruce

Chief, Coast Guard Hearing Office HEARING OFFICE NEWS 

Newsletters like this one began being issued by the 

Hearing Office almost four years ago. I hope that they 

serve as a window into the process of adjudicating 

Coast Guard civil penalty cases, for both the general 

public and Coast Guard personnel. Currently, we 

have three Hearing Officers assigned to handle a significant number of cases (1770 cases received in 2011). 

It seems to me that the Hearing Officers generally 

find their work satisfying and often find it intellectually demanding. To be sure, they hear a lot of interesting explanations from people involved in the civil 

penalty process. Most often, the bottom line is that 

the charged party has been educated and they have 

done whatever was needed to come into compliance 

with the law. That is what the Hearing Officers like 

to see, although it won’t necessarily outweigh the fact 

that there was a violation in the first place. 

While it is true that Hearing Officers have a lot of discretion to weigh the evidence, make findings of fact, 

decide if a violation occurred, and assess a penalty if a 

violation is proved, they do have to work within certain bounds. Among other things, Hearing Officers do 

not make the laws and regulations, they do not decide 

who will be charged, and they do not decide what violations will be alleged. Also, Hearing Officers are essentially limited to deciding cases based on the evidence that is presented to them by the Coast Guard 

and the charged party in the case. I’m sure there are 

many times when a Hearing Officer feels that there is 

additional information about a case that they would 

like to know. If the information is critical to a fair 

decision of the case, the Hearing Officer can request 

additional information. If not, the Hearing Officer 

must work with what s/he has. Ultimately, the Hearing Officers are very conscientious and they always do 

their best to make the process fair and accurate. 

 

Fortunately for the Hearing Office, we have had the 

same team in place since July 2011 when YN2 Steele 

arrived to relieve a departing member of our administrative staff. With an experienced and hard-working 

staff, the office is always humming with activity as 

new cases and responses to pending cases arrive in 

the mail, and cases that have been decided are mailed 

out. In the first quarter of 2012, the Hearing Office 

received 371 new cases. In the same period, 377 cases 

were paid and closed, and 172 cases were forwarded to 

our collections office. 

Articles in this issue:

 

THE REQUIREMENT OF A CERTIFICATE OF DOCUMENTATION (COD)...p. 2 

NEGLIGENT OPERATIONS - ESTABLISHING THE 

STANDARD OF CARE...p. 3 

CITIZENSHIP VIOLATIONS UNDER 8103 (b) AND (i) 

REVISITED...p. 5

DECKPLATE RIVETS...p. 6

K.N.O.T...p. 7

WHAT’S IN A NUMBER...p. 8
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XV Newsletter Date: April 2012 

2

THE REQUIREMENT OF A CERTIFICATE 

OF DOCUMENTATION (COD) 

CDR Evan Hudspeth

According to 46 CFR § 67.7, ―Any vessel of at least 

five net tons which engages in the fisheries on the 

navigable waters or the United States or in the Exclusive Economic Zone, or coastwise trade... must 

have a Certificate of Documentation bearing a valid 

endorsement appropriate for the activity in which 

engaged.‖ Commercial vessel owners and Coast 

Guard enforcement personnel alike should be aware 

of the two elements of this regulation so as to ensure that relevant evidence is before the Hearing 

Officer. 

The first element is that the vessel must be at least 

five net tons. For vessel documentation purposes, 

gross and net tonnage of a vessel must be determined in accordance with 46 CFR Part 69 (the details of which are beyond the scope of this article). 

So, in order to meet this element of an alleged violation, some evidence showing the net tonnage should 

be included in the case file. A tonnage certificate or 

some other reliable record showing the vessel’s net 

tonnage is the best evidence that a vessel is eligible 

for documentation. Please note that the results of 

calculations made using ―MISLE‖ are not helpful 

unless the calculations are printed out and included 

in the case file, along with evidence describing who 

performed the calculations and how the information 

used to perform the calculations was obtained.

The second element addresses whether the commercial vessel is engaged in either the fisheries or coastwise trade. If engaged ―in the fisheries on the navigable waters or the United States or in the Exclusive 

Economic Zone,‖ then a COD is required, which 

must contain a fishery endorsement. Regulation 46 

CFR § 67.21 explains that, ―A fishery endorsement 

entitles a vessel to employment in the fisheries as 

defined in § 67.3 subject to Federal and State laws 

regulating the fisheries, and in any other employment for which a registry or coastwise endorsement 

is not required. A fishery endorsement entitles a 

vessel to land its catch, wherever caught, in the 

United States.‖

Regulation 46 CFR § 67.3, ―Definitions,‖ explains 

that ―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.‖ It is important to 

keep in 

mind that, 

although a 

vessel may 

be designed for 

the purpose 

of commercial fishing, 

that fact 

alone does 

not show 

that the 

vessel is 

being used for that purpose (―engages in the fisheries‖). Quite often a simple statement by the boarding officer concerning relevant observations (fish in 

hold, nets deployed, etc.) will suffice, but in order to 

meet this element of the alleged violation, some 

(Continued on page 3)
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XV Newsletter Date: April 2012 

3

NEGLIGENT OPERATIONS - ESTABLISHING THE STANDARD OF CARE

CDR Mark Hammond

The Hearing Office Newsletter previously featured 

information pertaining to cases involving negligent 

operations. (See Newsletter Volume 9 – October 

2010, ―K N O T‖ #1.) The article very briefly 

touched on the key factual elements needed to be 

shown in order for Hearing Officers to find prima 

facie evidence of a violation under Title 46 United 

States Code (U.S.C.), Section 2302(a). A recent 

appeal decision in which a civil penalty case involving negligent operations was dismissed for 

lack of evidence of the ―standard of care‖ prompts 

further discussion of these types of cases. 

This article will briefly revisit the elements of 46 

U.S.C. § 2302(a) and review what constitutes negligence, focusing on the importance of establishing 

the standard of care applicable to the circumstances 

of each case.

46 U.S.C. § 2302(a) provides that 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. In order to show a violation occurred under this cite, 

there must be evidence to show that the charged 

party in fact: 1) operated a vessel; 2) in a negligent 

manner; and, in doing so, 3) endangered the life, 

limb or property of a person. 

In most cases, presenting evidence identifying the 

vessel operator and showing how persons or property were endangered is fairly straightforward. Occasionally, however, showing how a person’s actions were negligent can be more challenging.

So, what is negligence? Regulation 33 CFR § 5.29 

defines negligence as, ―...the comission of an act 

which a reasonable and prudent person of the same 

station, under the same circumstances, would not 

(Continued on page 4)

form of evidence should be in the case file for the 

Hearing Officer’s consideration.

Alternatively, if engaged in ―coastwise trade,‖ then 

a COD with a coastwise endorsement is required. 

Regulation 46 CFR § 67.19 explains that, ―A 

coastwise endorsement entitles a vessel to employment in unrestricted coastwise trade, dredging, 

towing, and any other employment for which a registry or fishery endorsement is not required.‖ 

Additionally, 46 CFR § 67.3 explains that, 

―Coastwise trade includes the transportation of 

passengers or merchandise between points embraced within the coastwise laws of the United 

States.‖ Again, it is important to remember that 

the design of a vessel does not necessarily indicate 

a vessel’s engagement in a particular activity. Information concerning the vessel’s origination, destination, cargo, passengers, and activity (towing, 

dredging, transporting, etc.) is necessary to meet 

this element of the alleged violation, and should be 

in the case file. If a vessel is engaged in commercial activity that does not clearly require a coastwise endorsement, evidence that the activity constitutes coastwise trade, such as an opinion from 

Customs and Border Protection, may be necessary 

to prove a violation. 

 * * * * * * * * 

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

Coast Guard Hearing Office Vol: XV Newsletter Date: April 2012 

4

commit, or the failure to perform an act which a reasonable and prudent person, of the same station, under the same circumstances, would not fail to perform.‖ To sum it up: It is the failure to use such 

care as a reasonably prudent and careful person 

would use under similar circumstances. 

Before showing that a person failed to use such care 

as a reasonably prudent and careful person would 

use under similar circumstances, the ―standard of 

care‖ applicable to the circumstances of the case 

must first be 

firmly established. In 

other words, 

the case file 

must show 

evidence of 

what was 

expected of 

the vessel 

operator under the thenexisting circumstances. 

The standard 

of care can 

be established in a 

number of ways, such as reference to existing laws 

or regulations such as the Navigation Rules, or navigation safety regulations which require specific actions under specific conditions. For example, the 

standard of care may require adherence to: posted 

―No Wake/Speed‖ zones; a state law prohibiting 

―bow riding‖; or a state law restricting vessel operations in close proximity to ―diver-down‖ flags. 

Applicable or persuasive court decisions may recognize a presumption of negligence when certain 

things occur that generally do not happen in the absence of negligence, such as vessel groundings, or 

when a moving vessel allides with a fixed object, 

such as a bridge or a charted stationary navigational 

aid. In such cases, the presumption of negligence 

(Continued from page 3) will make it unnecessary to further address the standard of care.

In situations where the applicable standard is not so 

obvious, a standard of care may be established by 

submission of expert witness testimony concerning 

generally accepted marine practices. Coast Guard 

witnesses may provide evidence of a standard of 

care, if the witness is shown to have sufficient expertise in the particular subject matter. Such evidence must have a sound basis, however, and be 

supported by something more than conclusory statements of disapproval for certain conduct.

 

To sufficiently address the negligence element, the 

case file should contain: 1) evidence of the applicable standard of care as described above; and 2) evidence showing how the charged party failed to follow the applicable standard. As always, each element is essential to the Hearing Officer’s determination as to whether the alleged violation did, or did 

not, occur as alleged. Evidence clearly addressing 

the negligence element also provides the charged 

party with a good understanding of the basis for the 

alleged violation(s) against him/her, and allows for 

a more meaningful opportunity to respond with evidence in his/her defense, or to present extenuating 

or mitigating factors for consideration. 

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

Coast Guard Hearing Office Vol: XV Newsletter Date: April 2012 

5

documented vessel may be aliens lawfully admitted to the United States for permanent residence. 

Otherwise, the unlicensed seamen must be citizens 

of the United States or foreign nationals enrolled in 

the United States Merchant Marine Academy. If 

more than 25 percent of the total unlicensed seamen on board are permanent resident aliens, OR 

there is an unlicensed seaman on board that is not a 

U. S. citizen, a permanent resident alien, or enrolled in the Merchant Marine Academy, there is a 

violation of 46 U.S.C. § 8103 (b)(1).

The second provision is subsection (i), paragraphs 

(1) and (2), which are applicable to FISHING 

VESSELS ENGAGED IN FISHERIES. Paragraph 

(1) requires any unlicensed seaman to be either a 

citizen of the United States, an alien lawfully admitted to the United States for permanent residence, an alien allowed to be employed under the 

Immigration and Nationality Act, or an alien allowed to be employed under certain rules and immigration laws of the Commonwealth of the Northern Mariana Islands (CNMI). Paragraph (2) requires that not more than 25 percent of the total of 

unlicensed seamen may be employed under the 

Immigration 

and Nationality Act, 

such as a 

person lawfully admitted for employment in 

the U.S. 

holding an 

HB-2 work 

visa. On fishing vessels engaged in fisheries, 

therefore, if there are unlicensed seamen that do 

not fall within the four categories in (i)(1), there is 

a violation of 46 U.S.C. § 8103 (i)(1). If more than 

25 percent of the unlicensed seamen are aliens allowed to be employed under the Immigration and 

Nationality Act, then there is a violation of 46 

U.S.C. § 8103 (i)(2).

(Continued on page 6)

CITIZENSHIP VIOLATIONS UNDER 8103 

(b) AND (i) REVISITED

CDR Mark Hammond

The Hearing Office continues to see a fairly steady 

flow of cases alleging violations of crew citizenship requirements under section 8103 of title 46, 

United Sates Code. Many cases continue to be returned to the charging unit for various deficiencies. 

Some are dismissed altogether because there is insufficient evidence in the case file to prove that the 

violation occurred. The following article, which 

first appeared in Volume 5 of the Hearing Office 

Newsletter, is reprinted here with a few updates to 

re-emphasize key elements of 46 U.S.C. § 8103(b) 

and (i), and highlight important considerations 

when documenting and constructing cases. 

The requirements known to many as the ―75/25‖ 

rule are really two different provisions of federal 

law that address the percentage of unlicensed seamen that may be employed on board certain vessels. The two provisions are found in 46 U.S.C. § 

8103. 

The first is subsection (b) of section 8103, which 

applies to DOCUMENTED VESSELS. Paragraph 

(1) of subsection (b) requires that not more than 25 

percent of the total unlicensed seamen on board a 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XV Newsletter Date: April 2012 

6

Subsection (i) of section 8103 applies to all U.S. 

fishing vessels, whether they are documented or 

state-numbered. If we set aside the special provision for vessels in the CNMI, this subsection differentiates between unlicensed seamen who are U.S. 

citizens or permanent resident aliens, and unlicensed seamen who are aliens legally in the U.S. but 

not permanent resident aliens. There is no limit on 

the number of U.S. citizens or resident permanent 

aliens who may serve as unlicensed seamen. No 

more than 25% of the unlicensed seamen on board, 

however, may be aliens in the U.S. legally but not 

permanent resident aliens. 

Documentation of the important facts is key in these 

cases. Vague statements such as ―two of the vessel’s 4-man crew admitted to being foreign citizens,‖ without more specific evidence of their 

status, is not sufficient to show a violation occurred. 

Since it is conceivable that there could be persons 

on board to whom this law does not apply, such as 

passengers or NOAA observers, it is important to 

document the names of all persons on board, 

whether they are members of the crew on the vessel, 

and whether they hold a Coast Guard license or are 

unlicensed. It’s also important to document any 

statements made, and make copies of any documents produced regarding: identification; citizenship; lawful admittance as an alien; enrollment in 

the U.S. Merchant Marine Academy; and employment under the Immigration and Nationality Act or 

immigration laws of the Commonwealth of the 

Northern Mariana Islands. 

A statement or evidence that the vessel is either a 

documented vessel, or a vessel engaged in fisheries 

in the navigable waters of the United States or the 

exclusive economic zone (EEZ), is necessary to the 

determination that a violation occurred. Also, in 

cases where Immigrations and Customs Enforcement (ICE) personnel have made a determination 

regarding citizenship status, a statement from the 

ICE official or other evidence of such determination 

would be helpful. 

(Continued from page 5) A detailed discussion of the law and manner in 

which citizenship, lawful admittance, or proper employment might be demonstrated can be found in 

our Newsletter, Volume 3. A violation of 46 U.S.C. 

§ 8103 requires sufficient evidence to identify the 

number of unlicensed seamen on the vessel and the 

relevant status of the unlicensed seamen as legal 

residents of the U.S. or otherwise. Take the time to 

ask the questions and document the answers, and 

collect any status documentation available. This 

will assist in determining whether a violation occurred and help to avoid unnecessary delays in 

processing a case.

 * * * * * * * * 

 

DECKPLATE RIVETS

It appears that MISLE does not provide for 

specifying subsection (b) or (i) of 46 U.S.C. § 

8103 in the ―Law/Reg‖ part of the Enforcement 

Summary. Charging units should make it clear in 

the Narrative Overview or elsewhere on the Enforcement Summary whether the case is alleging a 

violation of subsection (b) or (i).

Different cites are applicable to cases alleging 

that Personal Flotation Devices are unserviceable, not readily available, or not on board at all. 

Use the regulation that fits the facts to charge a violation. If the Boarding Report does not contain 

enough information to determine how exactly the 

PFD requirement was violated, an effort should be 

made to further develop the facts in the case.

When an owner is on board his/her recreational 

vessel, but is not the operator of the vessel 

when a boarding occurs, it may be most effective to 

charge the owner with any marine safety equipment 

violations. This is because the owner is the person 

with the most motivation to achieve compliance for 

future use of the vessel. Although the operator is 

equally liable for a penalty if the violation is 

proved, if your primary objective is to achieve compliance, charging the operator may not be the most 

effective option.

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

Coast Guard Hearing Office Vol: XV Newsletter Date: April 2012 

7

during the hearing and fax documents (evidence, 

for example) to the Hearing Officer. After the 

hearing the escort will escort the party and others 

out of the building or base. VTC hearings take an 

average of about 1 1⁄2 hours.

Note: No one from the Coast Guard unit that generated the case participates at the hearing unless the 

party requests assistance from the Hearing Officer 

in securing a 

Coast 

Guard 

member’s 

attendance 

(and the 

Hearing 

Officer 

determines 

that the 

testimony of the witness may materially aid the Hearing Officer in deciding the case), or unless the 

Hearing Officer requests the attendance of a Coast 

Guard witness at the hearing to address a particular 

issue. 

Hearings are quite informal. The first order of 

business is for the Hearing Officer to explain and 

obtain acknowledgement from the party of his/her 

rights. After that, the party is free to present his/

her case to the Hearing Officer. Hearing Officers 

afford the party a fair amount of leeway in presenting his/her case, but ensure that dignity and respect 

are maintained throughout the process. 

Hearing Officers give the same consideration to 

evidence presented in writing (sent through the 

mail) as to evidence presented at a VTC or inperson hearing. See the Newsletter article, volume 

14 January 2012, ―RESPONDING TO CHARGES 

(Continued on page 8)

K.N.O.T.

(Knowledge Note or Tip) 

TIME TO BE HEARD

Ms. Alicia Scott

What is the purpose of a hearing? What happens at 

a hearing? Who will attend? We members of the 

Hearing Office Administrative Staff hear these 

questions often. The questions come both from 

Coast Guard units who have submitted cases to the 

Hearing Office, and from parties who have been 

charged with marine safety violations and have received a Preliminary Assessment Letter (PAL) from 

one of the Hearing Officers.

All parties charged with a marine safety violation 

and preliminarily assessed a civil penalty have a 

right to a hearing. A hearing is the party’s opportunity to exercise of one of his/her due process rights: 

the right to be heard. A hearing is not the only way 

to exercise the right to be heard, however. A party 

can also be ―heard‖ by submitting a response to the 

PAL in writing. 

Hearings are held by Video Teleconference (VTC) 

at one of seven Coast Guard Districts, or in person 

at the Hearing Office at Arlington, VA.

When a party requests a hearing, s/he must provide 

the issues in dispute with the request. Once the 

Hearing Office has the party’s issues in dispute, the 

Administrative Staff will contact one of the seven 

Coast Guard District Offices to schedule the VTC 

hearing. The staff chooses the District office closest 

to the party’s home or office, unless the party requests otherwise. 

Once scheduled, the Hearing Office contacts the 

District Chief of Prevention or the Chief of Response to request an escort for the party. What does 

the escort do? The escort greets the party, and any 

representative or witnesses. The escort will take 

them to the VTC hearing location at the District office. The escort will sit with the party and witnesses 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XV Newsletter Date: April 2012 

8

– (HEARINGS vs. WRITTEN RESPONSES),‖ 

posted at: www.uscg.mil/legal/cgho . 

Writing a letter in response to the Hearing Officer’s 

Preliminary Assessment Letter is the most popular 

choice. The party can send a letter stating everything s/he wants to point out to the Hearing Officer. 

The party can include photos of evidence (of flares 

or Personal Flotation Devices, for example), receipts of purchase, compliance letters, updated inspection reports, and witness statements.

To reiterate, whether a party presents evidence at a 

hearing, or presents written evidence in lieu of a 

hearing, the evidence is treated equally and weighed 

in the same manner by the Hearing Officer. What 

matters is the quality of the evidence—the thought 

and care that goes into presenting your side of the 

case, however it is presented. 

 * * * * * * * * 

(Continued from page 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 March 31, 2012) that provide a “how 

goes it” glimpse into our work:

Number of case files received by the Hearing 

Office with violation dates in 2008: 946 

Number of case files received by the Hearing 

Office with violation dates in 2009: 1443 

Number of case files received by the Hearing 

Office with violation dates in 2010: 1496 

Number of case files received by the Hearing 

Office with violation dates in 2011: 1570

Number of case files received by the Hearing 

Office with violation dates in 2012: 63

Number of case files received by the Hearing 

Office in 2011 regardless of violation date: 1770

Number of preliminary assessments issued in 

2012: 421 

Number of final assessments (FLAP, FLAN, 

FLW, and FLD) issued in 2012: 369 

Number of violation case files returned to the 

program manager for deficiencies in 2012: 55 

Number of hearings held in 2012: 4