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

October 2010

Volume 9 Coast Guard Hearing Office 

“Hearing Office is our Name, 

Maritime Safety and Security is our Aim”

 

 

GREETINGS 

From Robert Bruce

Chief, Coast Guard Hearing Office 

Greetings,

It is a privilege for me to address you as the new chief of 

the Coast Guard Hearing Office. I relieved Captain 

Trabocchi on August 9, 2010, and she has moved on to a 

new assignment with the Coast Guard. I want to thank 

Captain Trabocchi for her capable leadership of the 

Hearing Office from 2007 to 2010, and wish her continued success in her Coast Guard career. 

This is not completely new territory for me, as I served 

as Commanding Officer, Coast Guard Hearing Office 

from 2000 to 2003, when I retired from active duty after 

thirty years of service. For the most part, the types of 

cases we see has not changed very much and the fundamentals of the civil penalty process are still the same. 

The mission of the Coast Guard Hearing Office is set out 

above, just under the masthead. All of us here will continue to work hard to accomplish that mission, while always being mindful of the need to demonstrate that ours 

is a process that is fair and impartial. The civil penalty 

process is designed to be informal and efficient, giving 

the parties notice of the alleged violations and an opportunity to be heard, without incurring great expense. 

I hope you will continue to find that this newsletter provides valuable insight into the civil penalty hearing process. 

This and previous newsletters are posted on our website

www.uscg.mil/legal/cgho and on the Coast Guard’s website HOMEPORT. 

 

 

.

 

HEARING OFFICE NEWS 

 

As mentioned in the adjoining column, Mr. Robert Bruce 

has relieved Captain Trabocchi and he is serving now as 

the chief of the Coast Guard Hearing Office. Over the 

last few years, the Coast Guard and the Office of the 

Judge Advocate General (Chief Counsel) have undergone 

a modernization of their organizational structures. The 

position of the Coast Guard Hearing Office has changed 

along with other organizations supervised by the Judge 

Advocate General. The Hearing Office Command was 

recently disestablished, and the Hearing Office was 

briefly reorganized as a detachment of the Judge Advocate General’s staff. Currently, the Coast Guard Hearing 

Office is organized as a staff element within the Office of 

the Judge Advocate General, with the chief of the Hearing Office reporting to the Deputy Judge Advocate General. What has not changed throughout this process is 

the separation of the Coast Guard Hearing Office from 

the Coast Guard programs and units that conduct boardings and inspections, identify alleged violations, and produce the civil penalty cases that are forwarded to the 

Hearing Office for adjudication. Instead, the Coast 

Guard Hearing Office is supervised by the Office of the 

Judge Advocate General, which is primarily concerned 

with assuring that the civil penalty process is conducted 

fairly and impartially, in accordance with the law. With 

the modernization of the Office of the Judge Advocate 

General largely complete, the place of the Coast Guard 

Hearing Office in the organization’s structure seems fixed 

for some time to come. 

 

* * * * * * * * 

 
Coast Guard Hearing Office Vol : IX Newsletter Date: Oct 2010 

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

MUCH ADO ABOUT RING LIFE BOUYS 

CDR E. Hudspeth

The Coast Guard Commandant’s approval and associated 

number, the amount, size, length of attached line, color, 

markings, availability, and condition are all requirements 

for ring life buoys on board commercial fishing industry 

vessels. This article will briefly identify where exactly 

these requirements are found in Title 46, Code of Federal 

Regulations, Part 28 (46 CFR 28).

According to 46 CFR 28.105(b), lifesaving equipment must 

be approved by the Commandant of the Coast Guard. 

However the acceptable approval numbers; whether a 

buoyant cushion, ring life buoy, or no throwable flotation 

device is required; the amount; the size; and the color are 

all specified in 46 CFR 28.115 on Table 28.115, and depend 

on the length of the vessel. A copy of the table is provided 

below.

Table 28.115--Throwable Flotation Devices

-------------------------------------------------------------------------------------------------

 Vessel length Devices required

-------------------------------------------------------------------------------------------------

Less than 16 feet (4.9 meters) None.

16 feet (4.9 meters) or more, 1 buoyant cushion, or

but less than 26 feet (7.9 meters) ring life buoy (Type IV PFD). 

 

26 feet (7.9 meters) or more, 1 ring life buoy approval

but less than 65 feet (19.8 meters) number starting with

 160.009 or 160.050; or- 

 ange; at least 24 inch 

(0.61meters) size.

65 feet (19.8 meters) or more 3 ring life buoys, approval

 number 160.050; orange; 

 at last 24 inch (0.61 meters) size.

----------------------------------------------------------------------------------

In addition to the above table, 46 CFR 28.115 (a) describes 

the length of line (60 feet or 90 feet) needed for at least one 

life ring buoy on board, again depending on the length of 

the vessel (less than 65 feet, or 65 feet and greater). 

Also, according to 46 CFR 28.115 (b), if certain conditions 

are met, the size of the ring life buoy may be 20 inches or 

larger, instead of the 24 inch or larger size described in 

Table 28.115.

Markings for ring life buoys are covered in 46 CFR 28.135, 

Table 28.135, and include the requirement for the name of 

the vessel to be in block capital letters, and the requirement that Type II retroflective material be arranged to 

meet IMO Resolution A.658(16).

Finally, the requirement for the ring life buoys to be 

readily accessible and in good working order is covered 

in 46 CFR 28.140.

When it comes to ring life buoys, it seems apparent from 

the applicable regulations that the smaller the vessel, 

the fewer the requirements.

* * * * * * * *

PENALTY ASSESSMENT FACTORS APPLICABLE TO 

VIOLATIONS OF 33 U.S.C. § 1321 (b)(3) 

CDR M. Hammond

In determining an appropriate civil penalty amount for 

violations found proved under Title 33 United States 

Code (U.S.C.), Section 1321(b)(3) for a discharge of oil or 

a hazardous substance into the navigable waters of the 

U.S., Hearing Officers are required by 33 U.S.C. § 1321

(b)(8) to consider the following:

“the seriousness of the violation, the economic benefit to 

the violator, if any, resulting from the violation, the degree of culpability involved, any other penalty for the 

same incident, any history of prior violations, the nature, 

extent, and degree of success of any efforts of the violator 

to minimize or mitigate the effects of the discharge, the 

economic impact of the penalty on the violator, and any 

other matters as justice may require.”

In considering these factors, (whether aggravating or 

mitigating), Hearing Officers can only rely on the information contained within the case file; (i.e., the Coast 

Guard’s enforcement activity case and the evidence the 

party presents). The case file should contain a sufficient 

amount of detail in order for the Hearing Officer to fully 

address these considerations. In addition to specific details of the discharge (i.e., product type, source, amount, 

location responsible party, cause, etc.), the case file 

should contain among other factors information regarding the responsible party’s culpability, the impact of the 

discharge, the party’s response and mitigating efforts (or 

lack thereof); and the success of such efforts to minimize 

the impact of the discharge. Depending on the circumstances of the case, the degree of a party’s culpability for 

a discharge, and their actions taken to minimize environmental impact could significantly influence the Hearing officer’s determination of the final assessed civil penalty amount.

Because the Hearing Officer must by law, consider several factors in determining the final assessed penalty 

amount for violations under 1321(b)(3), careful attention 

should be given to documenting important details in support of the above factors when putting a case together, or 

when responding to a preliminary assessment letter. 

 

 
Coast Guard Hearing Office Vol : IX Newsletter Date: Oct 2010 

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

 

This will greatly assist the Hearing Officer in formulating 

an appropriate final assessment commensurate with the 

circumstances of each case while supporting the overarching goal of compelling compliance and deterring future 

violations.

 

* * * * * * * *

DISTRICT COURT REJECTS CHALENGES TO THE 

ASSESSMENT OF A CIVIL PENALTY 

Robert Bruce

On July 26, 2010, the Honorable Judge Coar of the U.S. 

District Court for the Northern District of Illinois issued 

his Memorandum Opinion and Order in the case of Egan 

Marine Corporation v. Allen. In this case, the plaintiff, 

Egan Marine Corporation (Egan), raised several challenges against a $21,000.00 penalty assessed for six violations involving the failure to have tank barges properly 

inspected. Egan asserted that the Coast Guard’s civil 

penalty process denied it due process because it was not 

afforded a hearing before an impartial factfinder, it did 

not have a meaningful opportunity to question Coast 

Guard witnesses, and the penalty was not assessed in a 

timely manner. Judge Coar rejected these assertions. He 

stated that Egan’s argument, that the civil penalty process was not impartial because the penalty was assessed 

by the same agency that brought the charges against it, 

was frivolous. Judge Coar also stated that Egan’s subjective opinion that the Coast Guard could not be impartial 

did not give Egan the right to bypass the Coast Guard’s 

administrative process and have the case tried in district 

court instead. Judge Coar also stated that the hearing 

officer’s determination that the evidence did not prove 

some of the charges showed that the hearing officer was 

capable of impartial judgments. 

 

Regarding the claim that Egan had been denied a meaningful opportunity to question Coast Guard witnesses, 

Judge Coar found that Egan had not raised this issue in 

its appeal to the Commandant of the Coast Guard, and 

that the record did not support Egan’s claim that it was 

not advised of its right to request witnesses because the 

record included correspondence in which Egan was advised of the regulations governing civil penalty hearings. 

Those regulations explain the right to request witnesses. 

On the issue of timeliness of the assessment of the civil 

penalty, Judge Coar rejected the claim because Egan did 

not show that it was prejudiced by any relevant delay in 

assessing the penalty. He found that Egan offered only 

speculation that certain Coast Guard witnesses may have 

been unavailable and noted that Egan never even tried to 

have Coast Guard witnesses testify at its hearing. 

 

Finally, Judge Coar rejected Egan’s claim that the civil 

penalty violated the Excessive Fines Clause of the 

Eighth Amendment. Egan asserted that the $21,000.00 

penalty was excessive because it violated the Coast 

Guard’s own guidelines and because the Coast Guard 

did not consider Egan’s ability to pay the penalty. The 

judge found that Egan had not raised these issues in its 

appeal to the Commandant of the Coast Guard. Additionally, he found that the guidelines relied upon by 

Egan were only recommendations and that they did not 

apply to a case such as this where one party was 

charged with a series of recurring violations. Judge 

Coar also noted that the assessed penalty was only 

about one/ninth of the maximum penalty that could 

have been assessed. With respect to ability to pay, the 

judge found that Egan had not offered any information 

about ability to pay at its hearing. 

Ultimately, Judge Coar found that the Coast Guard 

action assessing the civil penalty was supported by substantial evidence and was not arbitrary and capricious. 

He granted the United States’ motion for summary 

judgment and dismissed the case. 

* * * * * * * * 

 

K N O T 

(Knowledge Note Or Tip) 

1. Although a passenger “bowriding” 

on a recreational vessel is specifically 

addressed in many State’s boating 

regulations, for purposes of Coast 

Guard law enforcement it is typically 

charged as “negligent operations.” One way to prove 

negligence is to show that the action alleged violated an 

applicable state law. As a result, if an applicable state 

law was violated, the case file should include the state 

law and a description of how it was violated. Where 

there is no state law, or the alleged action does not violate state law, a detailed description of the “bowriding” 

event is needed in order to determine if the vessel operator was negligent. Helpful information for the 

boarding officer to include would be the type of vessel 

(sailing or motor); the approximate speed of the vessel; 

the sea conditions; the location of the "bowrider" in relationship to the gunwale and/or rails; and whether the 

vessel is designed in such a way as to safely accommodate riding on the bow of the vessel.

2. Often times in BUI cases the party refuses to cooperate with any field sobriety tests (FST). This alone does 

not create a presumption of intoxication. 33 CFR 
Coast Guard Hearing Office Vol : IX Newsletter Date: Oct 2010 

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

 

95.040 states: “If an individual refuses to submit to or 

cooperate in the administration of a timely chemical test 

when directed by a law enforcement officer based on reasonable cause, evidence of the refusal is admissible in 

evidence in any administrative proceeding and the individual will be presumed to be under the influence of alcohol or a dangerous drug.”

33 CFR 95.040 expressly requires that the chemical test 

be directed by the law enforcement officer. Refusal to 

perform FSTs, along with the observations that make 

the administration of FSTs appropriate, can provide reasonable cause to direct a chemical test. But, if the 

boarding officers do not specifically direct a party to submit to chemical testing, after the refusal to perform 

FSTs, the refusal to perform FSTs by itself will not give 

rise to a presumption of being under the influence as 

provided for in 33 CFR 95.040.

Boarding officers must not assume that refusal to perform FSTs means the party is also refusing to submit to 

a chemical test. If a party refuses to perform FSTs and 

the boarding officer has reasonable cause to suspect the 

individual of being in violation of the standards in 

33CFR 95.020 or 95.025, the boarding officer must specifically direct the party to conduct a chemical test in 

order for a refusal to raise the presumption under 33 

CFR 95.040.

* * * * * * * * 

 

JUST FOR FUN

Alicia Scott, YN3 Victor Anderson

Test your knowledge; choose the right answer.

1. In the mid- 1960s the U.S. Coast Guard was asked by 

the Army, Navy, and Air Force to participate in this war.

 a. World War II

 b. World War I

 c. Vietnam War

 d. Operation Desert Storm

2. During the Vietnam War, the Navy lacked 

_____________ water craft for operations inshore.

 a. Shallow

 b. Deep

 c. Armed

 d. Bullet proof

. 

3. The Coast Guard provided twenty-six of these _____ 

Cutters to Vietnam.

 a. 82-Foot

 b. 65-Foot

 c. 110-Foot

 d. 123-Foot

4. During the Vietnam War, Coast Guard pilots flew 

combat search and rescue with the Air Force in Southeast Asia, under the inter-service exchange program.

 a. True

 b. False

5. How Many Coast Guardsmen served in Vietnam?

 a. 259

 b. 3692

 c. 5000

 d. 8000

6. On________________ Secretaries of the Navy and 

Transportation Signed a memorandum of agreement 

creating the Maritime Defense Zones(MDZ’s).

 a. March 13, 1979

 b. December 25, 1984

 c. March 07, 1984

 d. April 01, 1985

 

7. The Coast Guard assisted the U.S. Army with port 

security and harbor security to bring in the ammunitions 

needed for the Vietnam War.

 a. True

 b. False

8. During the Vietnam War, Coast Guard Buoy tenders 

in the Pacific made periodic trips to Vietnam to install 

and maintain buoys for navigation.

 a. True

 b. False

 

(See answers on last page) 

. 

* * * * * * * * 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
Coast Guard Hearing Office Vol : IX Newsletter Date: Oct 2010 

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

 

 

DECKPLATE RIVETS 

 

 

Copies of all documents in the civil penalty case file are 

provided to the charged party; therefore careful attention should be given to what is included, 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 charge. All 

PII should be removed from a case file or the PII itself 

should be redacted. If redacting the PII, ensure the redacting method used is effective, so that there is no possibility that the PII can be read. 

For enforcement cases forwarded to the Hearing Officer 

for adjudication where an Notice of Violation (NOV) was 

previously issued and declined, be sure to include a copy 

of the declined NOV in the case file. If the NOV was declined via letter from the charged party, include a copy of 

the party's declination letter. 

The Coast Guard does not conduct “preliminary breath 

tests” (PBTs). The Coast Guard administers chemical 

breath tests to confirm an individual’s BAC level after 

determining reasonable cause exists that an individual 

is suspected of being under the influence in accordance 

with the standards described in 33 CFR 95.020. In BUI 

cases, reasonable cause to direct a chemical breath test 

should be well-documented. 

Case Processing officials should pay close attention to 

the quality of case enclosures; particularly when generating the party's copy of the case file. A party has the 

right to review all evidence contained within the case 

file. Copies of case documents that are of poor quality or 

are not legible altogether must be regenerated and can 

delay the adjudication process. 

 

* * * * * * * * 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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’s some Coast Guard Hearing Office metrics 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 2007: 1449 

Number of case files received by the Coast Guard Hearing Office with violation dates in 2008: 944 

Number of case files received by the Coast Guard Hearing Office with violation dates in 2009: 1410 

Number of case files received by the Coast Guard Hearing Office with violation dates in 2010: 491 

Number of case files received by the Coast Guard Hearing Office Jan 2010 - Aug 2010 regardless of violation 

date: 888 

Number of preliminary assessments issued Jan 2010 -

Aug 2010: 913 

Number of final assessments issued Jan 2010 - Aug 

2010: 164 

Number of violation case files returned to the program 

manager for deficiencies Jan 2010 - Aug 2010: 88 

Number of hearings held Jan 2010 - Aug 2010: 9 

* * * * * * * *

Quiz Answers: 1.) C 2.) A 3.) A 4.) A 5.) D 

 6.) C 7.) A 8.) A