33 CFR 1.07

[Code of Federal Regulations]

[Title 33, Volume 1]

[Revised as of July 1, 2004]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR1]

[Page 15-22]

 TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 CHAPTER I--COAST GUARD, DEPARTMENT OF HOMELAND SECURITY

PART 1_GENERAL PROVISIONS--Table of Contents

Subpart 1.07_Enforcement; Civil and Criminal Penalty Proceedings

 Authority: 14 U.S.C. 633; Sec. 6079(d), Pub. L. 100-690, 102 Stat.

4181; 49 CFR 1.46.

 Source: CGD 78-82, 43 FR 54186, Nov. 20, 1978, unless otherwise

noted.

Sec. 1.07-1 Purpose.

 This part describes procedures for enforcement and administration 

of

all statutory penalty provisions that the Coast Guard is authorized to

enforce.

[[Page 16]]

Sec. 1.07-5 Definitions.

 (a) The term District Commander, when used in this subpart, means

the District Commander, or any person under the District Commander's

command, delegated to carry out the provisions of Sec. 1.07-10(b).

 (b) The term Hearing Officer means a Coast Guard officer or 

employee

who has been delegated the authority to assess civil penalties.

 (c) The term issuing officer means any qualified Coast Guard

commissioned, warrant, or petty officer.

 (d) The term Notice of Violation means a notification of violation

and preliminary assessment of penalty, given to a party, in accordance

with Sec. 1.07-11.

 (e) The term party means the person alleged to have violated a

statute or regulation to which a civil penalty applies and includes an

individual or public or private corporation, partnership or other

association, or a governmental entity.

[CGD 93-079, 59 FR 16560, Apr. 7, 1994]

Sec. 1.07-10 Reporting and investigation.

 (a) Any person may report an apparent violation of any law,

regulation, or order that is enforced by the Coast Guard to any Coast

Guard facility. When a report of an apparent violation has been

received, or when an apparent violation has been detected by any Coast

Guard personnel, the matter is investigated or evaluated by Coast Guard

personnel. Once an apparent violation has been investigated or

evaluated, a report of the investigation may be sent to the District

Commander or other designated official in accordance with paragraph (b)

of this section or a Notice of Violation under Sec. 1.07-11 may be
given to the party by an issuing officer.

 (b) Reports of any investigation conducted by the Coast Guard or

received from any other agency which indicate that a violation may have

occurred may be forwarded to a District Commander or other designated

official for further action. This is normally the District Commander of

the District in which the violation is believed to have occurred, or 

the

District in which the reporting unit or agency is found. The report is

reviewed to determine if there is sufficient evidence to establish a

prima facie case. If there is insufficient evidence, the case is either

returned for further investigation or closed if further action is

unwarranted. The case is closed in situations in which the 

investigation

has established that a violation did not occur, the violator is 

unknown,

or there is little likelihood of discovering additional relevant facts.

If it is determined that a prima facie case does exist, a case file is

prepared and forwarded to the Hearing Officer, with a recommended

action. A record of any prior violations by the same person or entity,

is forwarded with the case file.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87-008a, 52 

FR

17554, May 11, 1987; CGD 93-079, 59 FR 16560, Apr. 7, 1994; USCG-2000-

7223, 65 FR 40054, June 29, 2000]

Sec. 1.07-11 Notice of violation.

 (a) After investigation and evaluation of an alleged violation has

been completed, an issuing officer may issue a Notice of Violation to

the party.

 (b) The Notice of Violation will contain the following information:

 (1) The alleged violation and the applicable law or regulations

violated;

 (2) The amount of the maximum penalty that may be assessed for each

violation;

 (3) The amount of proposed penalty that appears to be appropriate;

 (4) A statement that payment of the proposed penalty within 45 days

will settle the case;

 (5) The place to which, and the manner in which, payment is to be

made;

 (6) A statement that the party may decline the Notice of Violation

and that if the Notice of Violation is declined, the party has the 

right

to a hearing prior to a final assessment of a penalty by a Hearing

Officer.

 (7) A statement that failure to either pay the proposed penalty on

the Notice of Violation or decline the Notice of Violation and request 

a

hearing within 45 days will result in a finding of default and the 

Coast

Guard will proceed with the civil penalty in the amount recommended on

the Notice of Violation without processing the violation under the

procedures described in 33 CFR 1.07-10(b).

[[Page 17]]

 (c) The Notice of Violation may be hand delivered to the party or 

an

employee of the party, or may be mailed to the business address of the

party.

 (d) If a party declines the Notice of Violation within 45 days, the
case file will be sent to the District Commander for processing under

the procedures described in 33 CFR 1.07-10(b).

 (e) If a party pays the proposed penalty on the Notice of Violation

within 45 days, a finding of proved will be entered into the case file.

 (f) If within 45 days of receipt a party--

 (1) Fails to pay the proposed penalty on the Notice of Violation;

and

 (2) Fails to decline the Notice of Violation--the Coast Guard will

enter a finding of default in the case file and proceed with the civil

penalty in the amount recommended on the Notice of Violation without

processing the violation under the procedures described in 33 CFR 1.07-

10(b).

[CGD 93-079, 59 FR 66482, Dec. 27, 1994, as amended by USCG-2001-9175,

67 FR 38388, June 4, 2002]

Sec. 1.07-15 Hearing Officer.

 (a) The Hearing Officer has no other responsibility, direct or

supervisory, for the investigation of cases referred for the assessment

of civil penalties. The hearing officer may take action on a case

referred by any District Commander.

 (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.

 (c) The Hearing Officer is authorized to administer oaths and issue

subpenas necessary to the conduct of a hearing, to the extent provided

by law.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87-008a, 52 

FR

17554, May 11, 1987]

Sec. 1.07-20 Initiation of action.

 (a) When a case is received for action, the Hearing Officer makes a

preliminary examination of the material submitted. If, on the basis of

the preliminary examination, the Hearing Officer

[[Page 17]]

determines that there is insufficient evidence to proceed, or that 

there

is any other reason which would make penalty action inappropriate, the

Hearing Officer returns the case to the District Commander with a

written statement of the reason. The District Commander may close the

case or cause a further investigation of the alleged violation to be

made with a view toward resubmittal of the case to the Hearing Officer.

 (b) If on the basis of the preliminary examination of the case 

file,

the Hearing Officer determines that a violation appears to have been

committed, the Hearing Officer notifies the party in writing of:

 (1) The alleged violation and the applicable law or regulations;

 (2) The amount of the maximum penalty that may be assessed for each

violation;

 (3) The general nature of the procedure for assessing and 

collecting

the penalty;
 (4) The amount of penalty that appears to be appropriate, based on

the material then available to the Hearing Officer;

 (5) The right to examine all materials in the case file and have a

copy of all written documents provided upon request; and,

 (6) The fact that the party may demand a hearing prior to any 

actual

assessment of a penalty.

 (c) If at any time it appears that the addition of another party to

the proceedings is necessary or desirable, the Hearing Officer provides

the additional party with notice as described above.

Sec. 1.07-25 Preliminary matters.

 (a) Within 30 days after receipt of notice of the initiation of the

action, as described above, the party, or counsel for the party, may

request a hearing, provide any written evidence and arguments in lieu 

of

a hearing, or pay the amount specified in the notice as being

appropriate. A hearing must be requested in writing; the request must

specify the issues which are in dispute. Failure to specify a

nonjurisdictional issue will preclude its consideration.

 (b) The right to a hearing is waived if the party does not submit

the request to the Hearing Officer within 30 days after receiving 

notice

of the alleged violation. At the discretion of the Hearing Officer, a

hearing may be granted if the party submits a late request.

 (c) The Hearing Officer must promptly schedule all hearings which

are requested. The Hearing Officer shall grant any delays or

continuances which may be necessary or desirable in the interest of

fairly resolving the case.

 (d) A party who has requested a hearing may amend the specification

of the issues in dispute at any time up to 10 days before the scheduled

date of the hearing. Issues raised later than 10 days before the

scheduled hearing may be presented only at the discretion of the 

Hearing

Officer.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 85-001A, 51 

FR

19329, May 29, 1986]

Sec. 1.07-30 Disclosure of evidence.

 The alleged violator may, upon request, receive a free copy of all

the written evidence in the case file, except material that would

disclose or lead to the disclosure of the identity of a confidential

informant. Other evidence or material, such as blueprints, sound or

video tapes, oil samples, and photographs may be examined in the 

Hearing

Officer's offices. The Hearing Officer may provide for examination or

testing of evidence at other locations if there are adequate safeguards

to prevent loss or tampering.

Sec. 1.07-35 Request for confidential treatment.

 (a) In addition to information treated as confidential under

Sec. 1.07-30, a request for confidential treatment of a document or
portion thereof may be made by the person supplying the information on

the basis that the information is:

 (1) Confidential financial information, trade secrets, or other

material exempt from disclosure by the Freedom of Information Act (5

U.S.C. 552);

 (2) Required to be held in confidence by 18 U.S.C. 1905; or

 (3) Otherwise exempt by law from disclosure.

 (b) The person desiring confidential treatment must submit the

request to

[[Page 18]]

the Hearing Officer in writing and state the reasons justifying

nondisclosure. Failure to make a timely request may result in a 

document

being considered as nonconfidential and subject to release.

 (c) Confidential material is not considered by the Hearing Officer

in reaching a decision unless:

 (1) It has been furnished by a party, or

 (2) It has been furnished pursuant to a subpena.

Sec. 1.07-40 Counsel.

 A party has the right to be represented at all stages of the

proceeding by counsel. After receiving notification that a party is

represented by counsel, the Hearing Officer directs all further

communications to that counsel.

Sec. 1.07-45 Location of hearings and change of venue.

 (a) The hearing is normally held at the office of the Hearing

Officer.

 (b) The Hearing Officer may transfer a case to another Hearing

Officer on request or on the Hearing Officer's own motion.

 (c) A request for change of location of a hearing or transfer to

another Hearing Officer must be in writing and state the reasons why 

the

requested action is necessary or desirable. Action on the request is at

the discretion of the Hearing Officer.

[CGD 87-008a, 52 FR 17554, May 11, 1987]

Sec. 1.07-50 Witnesses.

 A party may present the testimony of any witness either through a

personal appearance or through a written statement. The party may

request the assistance of the Hearing Officer in obtaining the personal

appearance of a witness. The request must be in writing and state the

reasons why a written statement would be inadequate, the issue or 

issues

to which the testimony would be relevant, and the substance of the

expected testimony. If the Hearing Officer determines that the personal

appearance of the witness may materially aid in the decision on the

case, the Hearing Officer seeks to obtain the witness' appearance.

Because many statutes prescribing civil penalties do not provide 

subpena

power, there may be cases where a witness cannot be required to attend.
In such a case, the Hearing Officer may move the hearing to the 

witness'

location, accept a written statement, or accept a stipulation in lieu 

of

testimony. If none of these procedures is practical, the Hearing 

Officer

shall proceed on the basis of the evidence before him.

Sec. 1.07-55 Hearing procedures.

 (a) The Hearing Officer must conduct a fair and impartial 

proceeding

in which the party is given a full opportunity to be heard. At the

outset of the hearing, the Hearing Officer insures that the party is

aware of the nature of the proceeding and of the alleged violation, and

of the provisions of the law or regulation allegedly violated.

 (b) The material in the case file pertinent to the issues to be

determined by the Hearing Officer is presented. The party has the right

to examine, and to respond to or rebut, this material. The party may

offer any facts, statements, explanations, documents, sworn or unsworn

testimony, or other exculpatory items which bear on appropriate issues,

or which may be relevant to the size of an appropriate penalty. The

Hearing Officer may require the authentication of any written exhibit 

or

statement.

 (c) At the close of the party's presentation of evidence, the

Hearing Officer may allow the introduction of rebuttal evidence. The

Hearing Officer may allow the party to respond to any such evidence

submitted.

 (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.

 (e) The Hearing Officer may take notice of matters which are 

subject

to a high degree of indisputability and are commonly known in the

community or are ascertainable from readily available sources of known

accuracy. Prior to taking notice of a matter, the Hearing Officer gives

the party an opportunity to show why notice should not be taken. In any

case in which notice is taken, the Hearing Officer places a written

statement of the matters as to

[[Page 19]]

which notice was taken in the record, with the basis for such notice,

including a statement that the party consented to notice being taken or

a summary of the party's objections.

 (f) After the evidence in the case has been presented, the party 

may

present argument on the issues in the case. The party may also request

an opportunity to submit a written statement for consideration by the

Hearing Officer and for further review. The Hearing Officer shall allow

a reasonable time for submission of the statement and shall specify the

date by which it must be received. If the statement is not received

within the time prescribed, or within the limits of any extension of

time granted by the Hearing Officer, the Hearing Officer renders his

decision in the case.
Sec. 1.07-60 Records.

 (a) A verbatim transcript will not normally be prepared. The 

Hearing

Officer prepares notes on the material and points raised by the party,

in sufficient detail to permit a full and fair review and resolution of

the case, should it be appealed.

 (b) A party may, at its own expense, cause a verbatim transcript to

be made. If a verbatim transcript is made, the party shall submit two

copies to the Hearing Officer not later than the time of filing and

administrative appeal. The Hearing Officer includes them in the record.

Sec. 1.07-65 Hearing Officer's decisions.

 (a) The Hearing Officer issues a written decision. Any decision to

assess a penalty is based upon substantial evidence in the record. If

the Hearing Officer finds that there is not substantial evidence in the

record establishing the alleged violation or some other violation of

which the party had full and fair notice, the Hearing Officer shall

dismiss the case and remand it to the District Commander. A dismissal 

is

without prejudice to the District Commander's right to refile the case

and have it reheard if additional evidence is obtained. A dismissal

following a rehearing is final and with prejudice.

 (b) If the Hearing Officer assesses a penalty, the Hearing 

Officer's

decision contains a statement advising the party of the right to an

administrative appeal. The party is advised that failure to submit an

appeal within the prescribed time will bar its consideration and that

failure to appeal on the basis of a particular issue will constitute a

waiver of that issue in any subsequent proceeding.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 85-001A, 51 

FR

19329, May 29, 1986]

Sec. 1.07-70 Right to appeal.

 (a) Any appeal from the decision of the Hearing Officer must be

submitted by a party within 30 days from the date of receipt of the

decision. The appeal and any supporting brief must be submitted to the

Hearing Officer. The only issues which will be considered on appeal are

those issues specified in the appeal which were properly raised before

the Hearing Officer and jurisdictional questions.

 (b) The failure to file an appeal within the prescribed time limit

results in the action of the Hearing Officer becoming the final agency

action in the case.

Sec. 1.07-75 Action on appeals.

 (a) Upon receipt, the Hearing Officer provides a copy of the appeal

and any supporting brief to the District Commander who referred the

case. Any comments which the District Commander desires to submit must

be received by the Hearing Officer within 30 days. The Hearing Officer

includes the District Commander's comments, or not later than 30 days
after receipt of the appeal if no comments are submitted by the 

District

Commander, the Hearing Officer forwards all materials in the case to 

the

Commandant.

 (b) The Commandant issues a written decision in each case and

furnishes copies to the party, the District Commander, and the Hearing

Officer, The Commandant may affirm, reverse, or modify the decision, or

remand the case for new or additional proceedings. In the absence of a

remand, the decision of the Commandant on appeal shall be final. In

addition to the actions which may be taken by the Commandant on appeal,

the Commandant may also remit, mitigate or suspend the assessment in

whole or in part.

[[Page 20]]

Upon the taking of remission, mitigation, or suspension action, the

Commandant will inform the party of the action and any conditions

placed

on the action.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87-008a, 52 

FR

17555, May 11, 1987]

Sec. 1.07-80 Reopening of hearings.

 (a) At any time prior to final agency action in a civil penalty

case, a party may petition to reopen the hearing on the basis of newly

discovered evidence.

 (b) Petitions to reopen must be in writing describing the newly

found evidence and must state why the evidence would probably produce a

different result favorable to the petitioner, whether the evidence was

known to the petitioner at the time of the hearing and, if not, why the

newly found evidence could not have been discovered in the exercise of

due diligence. The party must submit the petition to the Hearing

Officer.

 (c) The District Commander may file comments in opposition to the

petition. If comments are filed, a copy is provided the party.

 (d) A petition to reopen is considered by the Hearing Officer 

unless

an appeal has been filed, in which case the petition is considered by

the Commandant.

 (e) The decision on the petition is decided on the basis of the

record, the petition, and the comments in opposition, if any. The

petition is granted only when newly found evidence is described which

has a direct and material bearing on the issues and when a valid

explanation is provided as to why the evidence was not and could not

have been, in the exercise of due diligence, produced at the hearing.

The decision is rendered in writing.

 (f) Following a denial of a petition to reopen, the party is given

30 days to file an appeal if one has not already been filed, or to 

amend

an appeal which has already been filed.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87-008a, 52 

FR
17555, May 11, 1987]

Sec. 1.07-85 Collection of civil penalties.

 (a) Payment of a civil penalty may be made by check or postal money

order payable to the U.S. Coast Guard.

 (b) Within 30 days after receipt of the Commandant's decision on

appeal, or the Hearing Officer's decision in a case in which no appeal

has been filed, the party must submit payment of any assessed penalty 

to

the office specified in the assessment notice. Failure to make timely

payment will result in the insititution of appropriate action under the

Federal Claims Collection Act and the regulations issued thereunder.

 (c) When a penalty of not more than $200 has been assessed under

Chapter 43 or 123 of Title 46 U.S.C., the matter may be referred for

collection of the penalty directly to the Federal Magistrate of the

jurisdiction wherein the person liable may be found, for the 

institution

of collection procedures under supervision of the district court, if 

the

court has issued an order delegating such authority under section 

636(b)

of Title 28, United States Code.

[CGD 87-008a, 52 FR 17555, May 11, 1987]

Sec. 1.07-90 Criminal penalties.

 (a) Prosecution in the Federal courts for violations of those laws

or regulations enforced by the Coast Guard which provide, upon

conviction, for punishment by fine or imprisonment is a matter finally

determined by the Department of Justice. This final determination

consists of deciding whether and under what conditions to prosecute or

to abandon prosecution.

 (b) Except in those cases where the approval of the Commandant is

required, the District Commander is authorized to refer the case to the

U.S. attorney. The Commandant's approval is required in the following

cases where evidence of a criminal offense is disclosed:

 (1) Marine casualties or accidents resulting in death.

 (2) Marine Boards (46 CFR part 4).

 (3) Violations of port security regulations (33 CFR parts 6, 121 to

126 inclusive).

 (c) The District Commander will identify the laws or regulations

which were violated and make specific recommendations concerning the

proceedings to be instituted by the U.S. attorney in every case.

[[Page 21]]

Sec. 1.07-95 Civil and criminal penalties.

 (a) If a violation of law or regulation carries both a civil and a

criminal penalty, the District Commander is authorized to determine

whether to institute civil penalty proceedings or to refer the case to

the U.S. attorney for prosecution in accordance with Sec. 1.07-90.

 (b) When the U.S. Attorney declines to institute criminal

proceedings, the District Commander decides whether to initiate civil

penalty proceedings or to close the case.
Sec. 1.07-100 Summons in lieu of seizure of commercial fishing 

industry

 vessels.

 (a) As used in this section, the following terms have the meanings

specified:

 (1) Commercial fishing industry vessel means a fishing vessel, a

fish processing vessel, or a fish tender vessel as defined in 46 U.S.C.

2101 (11a), (11b), or (11c), respectively.

 (2) Personal use quantity means a quantity of a controlled 

substance

as specified in 19 CFR 171.51.

 (b) When a commercial fishing industry vessel is subject to seizure

for a violation of 21 U.S.C. 881(a)(4), (6), or (7); of 19 U.S.C.

1595a(a); or of 49 U.S.C. App. 782 and the violation involves the

possession of a personal use quantity of a controlled substance, the

vessel shall be issued a summons to appear as prescribed in subpart F 

of

19 CFR part 171 in lieu of seizure, provided that the vessel is:

 (1) Proceeding to or from a fishing area or intermediate port of

call; or

 (2) Actively engaged in fishing operations.

[CGD 89-003, 54 FR 37615, Sept. 11, 1989]