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 

 April 2013 

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 19 

GREETINGS 

From Robert Bruce 

Chief, Coast Guard Hearing Office HEARING OFFICE NEWS 

 The Coast Guard’s civil penalty process essentially 

took its current form in 1979 when the regulations in 

33 C.F.R. Subpart 1.07 became effective. At that time 

Hearing Officers were assigned to each Coast Guard 

district to adjudicate the cases arising within the district’s boundaries. In the late 1980’s, the Coast Guard 

began consolidating the Hearing Officers into fewer 

locations, under the supervision of the Area Commanders, who were above the district commanders in 

the chain of command. This consolidation eventually 

led to the creation of a single Hearing Office in Arlington, Virginia, to adjudicate all Coast Guard civil penalty cases. The consolidation was complete by about 

2001, and supervision of the Hearing Officer process 

was assigned to the Coast Guard’s Judge Advocate 

General, the service’s senior lawyer. The result of 

these changes, among other things, has been a physical and organizational separation of the Hearing Officer function from Coast Guard program managers and 

field units, to go along with the separation of functions directed by 33 C.F.R. § 1.07-15. 

These changes over the years have benefited the appearance of impartiality and fairness in the civil penalty process, and improved its efficiency. These Newsletters were begun in 2008 to make the Hearing Office 

process more transparent to charged parties and to 

Coast Guard program managers and field units. Another goal is to improve the civil penalty process by 

addressing errors and encouraging best practices. 

I hope you will find the information in this Newsletter 

useful, and that you will also review the prior editions at: http://www.uscg.mil/Legal/CGHO/

CGHO_News.asp. 

 

 

This month, one of our Hearing Officers, Commander 

Mark E. Hammond, retired after more than 35 years 

of service in the Coast Guard. Commander Hammond 

served as a Hearing Officer for almost four years and 

was involved in the disposition of 2,200 civil penalty 

cases. He was very knowledgeable about marine 

safety and vessel inspections, manning and other 

safety requirements. We will greatly miss Commander Hammond’s experience and expertise, not to 

mention his sense of humor. A new Hearing Officer 

should be arriving to fill the vacancy in July. 

Articles in this issue: 

 

IMMIGRATION STATUS OF UNLICENSED 

SEAMEN ON FISHING VESSELS...p.2 

DECKPLATE RIVETS...p. 3 

FACTUAL ELEMENTS AND DUE PROCESS 

(REPRINT OF APRIL 2009 ARTICLE)...p. 4 

WHAT’S IN A NUMBER?...p. 6 

JUST FOR FUN...p. 7
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Coast Guard Hearing Office Vol: XIX Newsletter Date: April 2013 

2 

If the foreign citizens or nationals have some type 

of lawful immigration status in the United States, 

the Narrative Overview of the Activity should include the immigration status of those persons. 

There is no limit on the number of permanent resident aliens that 46 U.S.C. § 8103(i) allows to be 

employed as unlicensed seamen. Foreign citizens 

and nationals who are temporarily admitted to the 

United States and lawfully allowed to be employed 

are limited to no more than 25% of the unlicensed 

seamen onboard. 

Considering that 46 U.S.C. § 8103(i) is very specific about the status of the persons who may be 

employed as unlicensed seamen on a fishing vessel, 

it is a good practice to be very clear about the status 

of every unlicensed seaman onboard, if a violation 

of that provision is being alleged. Alleging that an 

unlicensed seaman is a foreign citizen or national is 

not, by itself, enough information for a Hearing Officer to find 

that a violation 

has occurred. 

The Hearing 

Officer will 

consider any 

reliable evidence in the 

case file that 

shows the person’s status. 

Additionally, a 

clear statement 

in the Narrative Overview 

of the Enforcement Summary 

of the status of 

each unlicensed seaman will make it much easier 

for the Hearing Officer, and the charged party, to 

understand why the Coast Guard is alleging that 

there was a violation of 46 U.S.C. § 8301(i). 

 * * * * * * * *

Immigration Status of Unlicensed Seamen on 

Fishing Vessels

Mr. Robert Bruce 

Recently, the Hearing Office has seen several civil 

penalty case files alleging a violation of 46 U.S.C. § 

8103(i) in which the Narrative Overview of the Activity identified one or more unlicensed seamen as a 

“Mexican citizen” or a “Mexican national,” without 

further describing the immigration status of the seamen. Often there will be information in the case file 

that provides more information about the immigration status of the seamen, but it would be helpful to 

the Hearing Officer, and to the charged party, if the 

Narrative Overview of the Activity included the alleged immigration status of the seamen that violates 

46 U.S.C. § 8103(i). 

There are few, if any, stateless persons, so almost 

any unlicensed seaman you come across will be a 

citizen or national of some country. Foreign citizens/nationals in the United States may be here illegally either because they entered illegally or because they entered legally and then overstayed, for 

example, the duration of their visa. If an unlicensed seaman is in the United States illegally, there 

is a violation of 46 U.S.C. § 8103(i). This is because the provision prohibits such a person from 

being employed as an unlicensed seaman on a fishing vessel. In such a case, it would be helpful to 

state in the Narrative Overview of the Activity that 

the unlicensed seaman is a foreign citizen or national who is in the United States illegally. Naturally, there must be evidence in the civil penalty 

case file to support the allegation to meet the Coast 

Guard’s burden of proof. 
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Coast Guard Hearing Office Vol: XIX Newsletter Date: April 2013 

 3 

allegedly show that the violation/s occurred. (See 

the reprinted article in this issue, “Factual Elements 

and Due Process.”) It is therefore important that the 

cites for the violations in the Enforcement Summary 

be specific enough to alert the party as to the nature 

of the alleged violations. If, for example, the vessel 

that is the subject of the violation is a commercial 

fishing vessel over 65 feet in length and does not 

have the requisite number of fire extinguishers, then 

46 CFR § 28.160(b) would accurately reflect the 

violation. Subsection (b) of § 28.160 states: “Each 

vessel 65 feet (19.8 meters) or more in length must 

be equipped with the minimum number, location, 

and type of portable fire extinguishers specified in 

table 28.160.” Contrast subsection (b) with the 

more general subsection (a) of that regulation: 

“Each vessel must meet the requirements of part 25, 

subpart 25.30 of this chapter.” Subpart 25.30, “Fire 

Extinguishing Equipment,” contains six different 

regulations. To the extent possible, it is a good 

practice to use the cite that most clearly describes 

the requirement the charged party may have violated. 

 * * * * * * * *

DECKPLATE RIVETS 

 

Copies of all documents in the case file are provided to the charged party; careful attention 

should be given, therefore, to what is included in the 

file, and what is not. Personally identifiable information (PII) of persons other than the charged party 

should NOT be included in the case file if not directly relevant to the alleged violation. An individual’s name, position, and relationship to the incident 

may be necessary to establish context and credibility of the evidence. Addresses, phone numbers, 

SSNs, and DOBs , however, are PII and are not necessary to support the alleged violation. All unnecessary PII should therefore be removed from the case 

file, or otherwise redacted. If redacting the PII, the 

redacting method used must be effective, so that 

there is no possibility that the PII can be read. 

 

In Boating Under the Influence (BUI) cases, 

evidence establishing that the charged party 

was an operator is always important. Sometimes an 

intoxicated operator, once aware of a Coast Guard 

vessel nearby, will try to avoid responsibility by 

switching places at the helm with a sober passenger. 

Such maneuvers are not always successful in fooling the Boarding Officer. Anytime there is more 

than one person onboard, the Hearing Officer will 

review the civil penalty case file for evidence that 

explains how the vessel operator was identified. It 

is important for Boarding Team Members to record, 

for example, a description of the person at the helm 

and what s/he was wearing. Admissions by the 

charged party that s/he was, in fact, operating the 

vessel can be strong evidence. A bare conclusory 

statement that the charged party was operating the 

vessel does not help the Hearing Officer understand 

how the operator was identified. 

 Parties in civil penalty proceedings are entitled to fair notice of the regulation/s they are 

alleged to have violated, and the circumstances that 
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Coast Guard Hearing Office Vol: XIX Newsletter Date: April 2013 

4 

taining to transfers of oil and other regulated bulk 

liquids. Section 156.120 has thirty-one subsections 

from a to ee, some of which are further subdivided. 

The citation in MISLE is simply 33 CFR 156.120. 

The Factual Elements must clearly describe what 

was violated in that regulation, ideally the specific 

subsection or subsections alleged to have been violated. 

There are many other sections in the Pollution Prevention Regulations, MTSA Regulations, Safety 

Management Regulations, to name just a few categories, that state more than one requirement. When 

a regulation containing more than one requirement 

is cited, it is essential that the Factual Elements 

make clear specifically what was done wrong and 

which part of the regulation was not followed. 

Another example where Factual Elements require 

special attention arises when a violation occurs in 

the course of a lengthy scenario. Consider the situation of a cruise terminal where a group of passengers arrived late for the sailing of a cruise ship. The 

passengers’ baggage was screened through x-ray 

machines in the terminal, but the passengers were 

never screened ashore. They were escorted aboard 

the vessel, 

where they 

were screened 

by wand. The 

Factual Elements should 

give the regulation violated, 33 CFR 

105.290, and 

a succinct statement of what was done wrong. Simply telling the whole story under Factual Elements 

does not serve the purpose of providing notice of 

what, specifically, the party is accused of. Simply 

state what they violated and how they violated it. 

Any lengthy narrative that may be necessary to convey the relevant circumstances of the violation may 

be placed in the narrative overview of the activity. 

(Continued on page 5) 

FACTUAL ELEMENTS AND DUE PROCESS

Lane Mc Clelland* 

(Reprinted, with minor edits, from Volume IV 

Newsletter April 2009) 

We've all heard the term “due process,” but what 

does it really mean? Literally, it means “the process 

that is due.” The phrase comes from the Bill of 

Rights of the U.S. Constitution. The Fifth Amendment is well known to give a criminal suspect the 

right to remain silent, but it also says that no person 

may be deprived of life, liberty, or property, without 

due process of 

law. In other 

words, a person 

can't be executed 

or imprisoned or 

fined without a 

trial of some sort. 

When a civil penalty is assessed, 

we are depriving a 

person of property (money), so we must first follow 

the process that is due. The specifics of the process 

are found in 33 CFR 1.07. Those specific requirements are intended to ensure that the party receives 

notice of what they are accused of and the evidence 

against them, and the opportunity to respond to that 

accusation and evidence. 

To ensure that the party has notice of what they are 

accused of, a very important part of the case file is 

Factual Elements. This is where the specific allegation against the party is to be stated. In a case 

where a person is charged with one or more simple 

violations (e.g. equipment requirements, boating 

under the influence), Factual Elements are simply 

stated and everyone knows what the party is accused of. However, when more complex or multipart regulations are violated, or a course of conduct 

constitutes the violation, Factual Elements require 

more thought. 

A common example where this comes into play is 

33 CFR 156.120, Requirements for Transfer per-
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ACT: 1. A recreational vessel. 

2. Vessel is used without one PFD (may be Type I, 

II, or III) for EACH person onboard. EXCEPTION: vessel is one of the following: a foreign 

boat temporarily using U.S. waters; a military or 

public boat of the U.S.; a boat owned by a State 

and used principally for governmental purposes; a 

lifeboat; a seaplane on the water. 

For the above, when preparing a case involving 4 

POB and no PFDs, rather than repeating the above 

generic language, text such as the following should 

be filled in: 

1. Recreational vessel, 4 POB. 

2. No PFDs aboard. 

In the same manner, equipment failures should be 

described in detail in the Factual Elements. For instance, don’t say “Fire extinguisher was inoperable.” Rather, describe how the fire extinguisher 

was inoperable. Don’t say, “Visual distress signals 

expired.” 

Rather, state 

the number 

of the visual 

distress signals and expiration 

month/year 

stamped on 

the visual 

distress signals. Always describe how the personal 

flotation device was unserviceable. For instance, 

state the length of the tear in the fabric or describe 

how much of the buoyancy material was deteriorated or missing. Describe how the vessel’s numbers were improperly displayed rather than simply 

stating “Improper display of vessel numbers.” 

For those enforcing MTSA regulations, the Factual 

Elements should describe the actual offense under 

the cited regulation. As in all cases, the Factual 

Elements must be supported by evidence of each 

element of the offense. For example, 33 CFR 

(Continued on page 6) 

Similarly, it is insufficient for Factual Elements to 

simply say, “See enclosed statements.” It is also insufficient to say, under a citation of 33 CFR 96.230 

(Failure to establish and implement Safety Management System), "The validity and/or implementation 

of the vessel's SMS is in question based on numerous deficiencies issued during a routine Port State 

Control Boarding of the vessel." Factual Elements 

should make clear what is alleged to have been 

wrong that is a violation of the cited regulation, i.e. 

what conditions were found that showed the Safety 

Management System was not really implemented. 

While the typical recreational boat violation does 

not present much of a challenge in formulating Factual Elements, the task should not be done mindlessly. Most of the citations used for recreational 

boat violations are in MISLE with text listing the 

generic elements of the offense. When Factual Elements are added for a specific case, they should not 

simply repeat the generic text. 

For example, under Factual Elements for ...(Inland 

Navigation Rule 33(b)), “Failure to have some 

means of making an efficient sound signal for vessel less than 12 meters in length,” the following text 

automatically appears: 

ACT: 1. Must be a vessel LESS THAN 12 METERS in length 

2. not carrying a sound producing device. 

For the above, when preparing a case involving a 22

-ft. vessel, that text should not be repeated. Instead, 

the following is appropriate: 

Vessel is 22 ft. 

No SPD aboard. 

Similarly, under Factual Elements for 33 CFR 

175.15(a), “No person may use a recreational vessel 

unless at least one Type I, II, or III PFD is on board 

for each person,” the following text automatically 

appears: 

(Continued from page 4) 
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Coast Guard Hearing Office Vol: XIX Newsletter Date: April 2013 

6 

104.220, “Company or vessel personnel with security duties,” specifies a number of subjects of which 

these personnel must have knowledge. Many of the 

subjects are vessel-specific or company specific, 

such as “(g) Knowledge of emergency procedures 

and contingency plans,” and “(k) Relevant provisions of the Vessel Security Plan (VSP).” Violations 

of these types of knowledge requirements are typically discovered during an inspection when facility 

or vessel personnel are asked questions and they fail 

to give the right answers. In such cases, the Factual 

Elements must state or describe the specific security 

plan provision(s) not known by the personnel and 

how the personnel showed they did not know the 

provision(s). The evidence should include either a 

copy of the provision, a restatement of the provision, or copy of the relevant VSP page(s), sufficiently identified. 33 CFR 105.210 works the same 

way for facilities. Other sections of the MTSA regulations work this way too—where the violation relates to a security plan provision, you must specify 

the VSP or FSP provision, and provide evidence of 

it. 

To sum up: Factual Elements should be a succinct 

statement of what the party has done wrong, so as to 

focus both the Hearing Officer and the party on the 

specific regulation allegedly violated and what the 

party did that violated it. 

From the Factual Elements, the Hearing Officer 

should know what the field was thinking that caused 

them to believe a violation occurred, and the party 

should know what it is they allegedly did not do or 

did wrongly so they can appropriately respond in 

defense, mitigation or extenuation. 

*Lane McClelland, retired O-6 and a former Hearing Officer, is now the Coast Guard Civil Penalty 

Appellate Authority. 

 * * * * * * * *

(Continued from page 5) 

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: 1498 

Number of case files received by the Hearing Office with violation dates in 2011: 1625 

Number of case files received by the Hearing Office with violation dates in 2012: 1399 

 Number of case files received by the Hearing Office with violation dates in 2013: 45 

Number of case files received by the Hearing Office in 2013 regardless of violation date: 432 

Number of preliminary assessments issued in 

2013: 453 

Number of final assessments (FLAP, FLAN, 

FLW, and FLD) issued in 2013: 277 

Number of violation case files returned to the 

program manager for deficiencies in 2013: 38 

 

Number of hearings held in 2013: 2 
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Coast Guard Hearing Office Vol: XIX Newsletter Date: April 2013 

 7 

JUST FOR FUN 

By Ms. Alicia Scott and YN2 Drew Steele 

Drawing by Ms. Alicia Scott