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 

 January 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 18 

GREETINGS

From Robert Bruce 

Chief, Coast Guard Hearing Office HEARING OFFICE NEWS 

Happy 2013; have a safe and prosperous new year! 

Our major article in this newsletter addresses cases 

alleging violations involving requirements for accurately maintaining oil record books. Until recently, 

the Hearing Office rarely, if ever, saw this type of 

case. Now, we seem to be getting these cases on a 

fairly regular basis. 

As the article notes, these cases can present challenges that are absent when enforcing less complex 

requirements. It is especially important to note that 

33 U.S.C. § 1908(b) includes two civil penalty provisions. Under one, a penalty up to $40,000 may be assessed for violations of applicable laws and regulations, whereas a penalty of up to $8,000 may be assessed for false, fictitious or fraudulent statements or 

representations related to the same laws and regulations. If a unit wants the higher maximum penalty to 

apply, the case file should make it clear that the unit 

is alleging a violation of a specifically indentified law 

or regulation, even if there was some falsification of 

the oil record book. If the case file places the emphasis on the falsification of the oil record book and suggests that the violation being alleged is falsification of 

the oil record book, then the Hearing Officer may find 

that the lower maximum penalty, specifically for false 

statements, is applicable. I commend the article to 

anyone dealing with an oil record book case. 

These newsletters are posted on our website 

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

website HOMEPORT. 

 

Section 201 of the Coast Guard and Maritime Transportation 

Act of 2012 amended 14 U.S.C. § 88 by adding a new subsection (e), prohibiting intentional interference with Coast Guard 

transmissions for maritime safety. This new law authorizes 

the assessment of a $1,000 civil penalty, in addition to making 

such interference a class E felony. 

That same Act also delayed new mandatory examination requirements for certain fishing vessels to October 15, 2015, 

that were originally scheduled to go into effect after October 15, 2012. For details about this change, go to http://

www.fishsafe.info. Notwithstanding the new compliance date, 

the Coast Guard is recommending that fishing vessels undergo 

the free dockside safety examination as soon as possible. 

 

 

 * * * * * * * * 

Articles in this issue: 

OIL RECORD BOOK VIOLATION CASES...p. 2 

K.N.O.T ON RECENT APPEAL DECISION...p. 5 

 

JUST FOR FUN...p. 6 

WHAT’S IN A NUMBER?...p. 6 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVIII Newsletter Date: JAN 2013 

2 

17 covers the requirements for machinery space operations, while Regulation 36 discusses the cargo/

ballast operations. The corresponding U.S. regulations pertaining to Oil Record Books can be found 

at Title 33 Code of Federal Regulations (C.F.R.), 

Part 151. The regulations in 33 C.F.R. § 151.25, 

which mirror the regulations and requirements in 

Annex I, require that each oil tanker of 150 gross 

tons and above, ship of 400 gross tons and above 

other than an oil tanker, and manned fixed or floating drilling rig or other platform maintain an Oil 

Record Book for machinery space operations. Oil 

tankers of 150 gross tons and above, or a non oil 

tanker that carries 200 cubic meters or more of oil 

in bulk, must also maintain a separate Oil Record 

Book on cargo/ballast operations. 

 The regulations describe the specific operations, 

depending on vessel type, for which entries in the 

Oil Record Book are required. The described operations are required to be fully recorded without 

delay in the Oil Record Book. Each entry in the Oil 

Record Book must be 

signed by the person or 

persons in charge of the 

operations concerned 

and each completed 

page shall be signed by 

the master or other person having charge of 

the ship. Additionally, 

accidental or other exceptional discharges of oil or 

oily mixture must also be described in the Oil Record Book, including the circumstances of, and the 

reasons for, the discharge. The Oil Record Book 

must be kept in such a place as to be readily available for inspection at all reasonable times and shall 

be kept on board the ship and maintained by the 

master or other person having charge of a ship. 

Jurisdiction (Foreign vessels and the date of violation) 

Jurisdictional elements should be given careful attention in Oil Record Book violation cases involv-

(Continued on page 3) 

Oil Record Book Violation Cases 

CDR M. Hammond 

One of the of the more challenging types of civil 

penalty cases the Hearing Office receives are Oil 

Record Book violation cases. Such cases typically 

arise from the discovery during a Port State Control 

Examination of an apparent overboard discharge of 

oily waste through the misuse of the vessel’s oily 

water separator, or via a bypass configuration 

(sometimes referred to as a “magic pipe”), and the 

failure to properly record such discharges in the Oil 

Record Book. Oil Record Book violation cases tend 

to be complex, very technical in nature and, depending on the circumstances of the case, may require 

the analysis of a significant amount of evidence. 

This article is intended to provide a review the legal 

basis for the requirements pertaining to Oil Record 

Books, and highlight important considerations regarding jurisdiction when foreign-flagged vessels 

are involved. It will also discuss the different maximum penalties applicable to violations of certain oil 

record book requirements as opposed to violations 

involving false or fraudulent statements relating to 

the Act to Prevent Pollution From Ships (APPS) 

and the International Convention for the Prevention 

of Pollution From Ships (MARPOL) requirements. 

The Requirements 

APPS both implements MARPOL and makes it 

unlawful to violate MARPOL. 33 U.S.C. § 1907. 

Oil Record Book entry and maintenance requirements can be found in regulations 17 and 36 and 

Appendix 3 of Annex I of MARPOL. Regulation 
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Coast Guard Hearing Office Vol: XVIII Newsletter Date: JAN 2013 

 3 

to prove the elements of an Oil Record Book violation. Nevertheless, however relevant those acts may 

be to the substantive Oil Record Book violations, 

they are not what you should be focusing on for 

meeting the jurisdictional elements of the Oil Record Book violations under 33 C.F.R. § 151.25. For 

that purpose, focus instead on presentment of the 

Oil Record Book after the vessel arrived in the U.S. 

Failure to maintain vs. false, fictitious statements 

APPS and the regulations thereunder address both 

the failure to maintain an oil record book and false, 

fictitious or fraudulent statements. Pursuant to 33 

U.S.C. § 1908(b)(1), a person is liable for a civil 

penalty of up to $40,000 per violation per day, including the failure to maintain an oil record book. 

See also 33 C.F.R. § 151.04(a). Additionally, 33 

U.S.C. § 1908(b)(2) makes a person liable for making a false, fictitious or fraudulent statement in any 

statement or representation that is required to be 

made under MARPOL, APPS, or the regulations 

thereunder. 33 C.F.R. 151.04(b). The civil penalty 

for this violation can be up to $8,000 for each statement or representation made. (See 33 C.F.R. § 

27.3, Penalty Adjustment Table). 

It is important to consider the nature of the violations for which civil penalties may be assessed under 33 U.S.C. § 1908(b)(1) and (2), and to decide if 

you want to allege a violation of the requirement to 

maintain the Oil Record Book, for which the maximum penalty is $40,000, or allege a false statement 

type violation, for which the maximum penalty is 

$8,000. Although the facts of a case may support 

alleging either type of violation or both, it is important to understand the different nature of the violations that come within one penalty provision or the 

other. First, in order for a violation of 33 C.F.R. § 

151.25 to have occurred, the evidence must show 

that a required Oil Record Book entry was not fully 

recorded without delay. Second, in order to have a 

violation for a false, fictitious or fraudulent statement, the evidence must show that the oil record 

book was presented as true, even though it was 

(Continued on page 4) 

ing foreign-flagged vessels. It is very important to 

clearly lay out the evidence supporting jurisdiction 

and to allege a violation date that relates to acts occurring while the vessel is subject to U.S. jurisdiction. Oil Record 

Book requirements 

may be enforced 

against foreignflagged vessels only 

for violations that 

occur within the 

navigable waters of 

the United States or 

at a port or terminal under the jurisdiction of the 

United States. 33 U.S.C. § 1902(a). See also 33 

C.F.R. § 151.09. When a foreign flag vessel is involved, the jurisdictional elements should focus on 

the date that the Oil Record Book was presented to 

the boarding team for inspection while the vessel 

was at a port or terminal subject to U.S. jurisdiction. 

While the improper entry or failure to record a required entry in the Oil Record Book may have occurred outside U.S. waters, it is when the vessel entered U.S. waters and presented an improperly 

maintained Oil Record Book that matters. 

This position is consistent with court decisions addressing the issue: U.S. v. Ionia Management S.A., 

555 F.3d 303 (2d Cir. 2009); U.S. v. Jho, 534 

F.3d398 (5th Cir. 2008); U.S. v. Petraia Maritime, 

Ltd.,483 F. Supp.2d 34 (D.Me. 2007). In U.S. v. 

Jho, the court stated, at page 403: “...[W]e read the 

requirement that an oil record book be ‘maintained’ 

as imposing a duty upon a foreign-flagged vessel to 

ensure that its oil record book is accurate (or at least 

not knowingly inaccurate) upon entering the ports 

of the navigable waters of the United States . . .” 

[Emphasis added.] Think about this when putting 

together a civil penalty case involving a foreignflagged vessel’s failure to make required oil record 

book entries related to use of a “magic pipe,” improper use of the oily water separator, or overboard 

discharges. While those acts may have occurred 

outside U.S. jurisdiction and the acts themselves 

may not be cognizable violations, they may be used 

(Continued from page 2) 
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Coast Guard Hearing Office Vol: XVIII Newsletter Date: JAN 2013 

4 

ments about the Oil Record Book or related operations to investigators during a Port State Control 

examination, in addition to presenting an inaccurate 

Oil Record Book, it may be appropriate to allege 

both of the violations. If a unit believes that the circumstances surrounding a single act or transaction 

warrants more than one violation and one penalty, 

they should contact their servicing legal office for 

assistance. 

Supporting evidence (more is not always better) 

Oil Record Book violation cases usually contain a 

significant amount of evidence. For the most part 

this evidence is relevant, but oftentimes units include extraneous, irrelevant information. When 

putting a case together, careful consideration should 

be given to what evidence should be included in the 

case file. As always, the focus should be on that 

evidence that clearly supports jurisdiction, the elements of the violation, and any aggravating or mitigating factors. 

Including irrelevant information can be a distraction 

and is not helpful for the Hearing Officer in determining whether the violation as alleged did or did 

not occur. Also, if copies of an entire Oil Record 

Book, Tank Sounding Logs or other large documents are included the case file, it should be made 

clear which specific portion(s) of each document 

has/have probative value. (For further discussion 

on case evidence, see Hearing Office Newsletter 

Vol. XII, July 2011 article “Finding the Happy Medium.” You can also find useful information in the 

Civil Penalty Case Guide found on the Hearing Office website.) A clear understanding of the regulation that was allegedly violated is helpful when determining the details necessary to be documented to 

constitute prima facie evidence in support of each 

element of the violation. This will not only aid in 

the Hearing Officer’s decision, but will also provide 

the charged party with a clear understanding of the 

alleged violation and the basis upon which to make 

an informed decision when responding to the allegations. 

 * * * * * * * *

false, fictitious or fraudulent, during the course of 

the investigation to inspectors or investigators as 

required by MARPOL or APPS. 

In cases where there clearly is evidence that the 

chief engineer and master made false or fraudulent 

entries in the oil record book, for example, it may 

be possible to charge either a failure to maintain 

type violation or a false statement type violation, or 

both. If the party is charged pursuant to 33 USC 

1908(b)(1) or 33 C.F.R. § 151.25, then the factual 

elements of the case file should clearly show a failure to comply with the requirement to fully record 

without delay certain required operations. Evidence 

of the Oil Record Book entry and the dates of entry 

are important to show that the entry was not fully 

recorded; meaning it was incomplete or inaccurate. 

If no entry was made, then the evidence must show 

what entry should have been made and why. 

If the party is charged pursuant to 33 U.S.C. § 1908

(b)(2) or 33 C.F.R. § 151.04(b), the evidence in the 

case file should show the false, fictitious or fraudulent statement or representation made that was required to be made as part of the port state control 

examination. The dates of this incident should be 

the dates of the boarding when the Oil Record Book was presented as true to inspectors or investigators (or 

any other statement 

made to inspectors/

investigators as part of 

the administrative inspection). The evidence must show that the statement or representation made was one that was required to be made as part of the port state control 

exam. If one charged party is charged with a failure 

to maintain type of violation and a false statement 

type violation, based on the same Oil Record Book 

entries, the Hearing Officer may decide that it is fair 

to assess just one penalty for the violations arising 

from a single act or transaction. On the other hand, 

if the chief engineer or master make false state-

(Continued from page 3) 
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Coast Guard Hearing Office Vol: XVIII Newsletter Date: JAN 2013 

 5 

trating instead on the limited role the operator 

played in this case, and the owner’s stated willingness and ability, during the boarding and during the 

civil penalty phase, to assume all responsibility for 

the alleged violations and to correct the deficiencies. 

Although the appeal decision in this case seems to 

be limited to its particular facts, it serves as a reminder that civil penalty cases are submitted to 

achieve compliance with the law and to deter future violations, and that the charging decision can 

have an impact on how effective the case will be in 

achieving those objectives. 

 * * * * * * * *

K.N.O.T. 

(Knowledge Note or Tip) 

Whom do you charge if the 

boat owner is on board but is not operating the 

boat?

Civil penalty case processing officials take note—

recently the Coast Guard Appellate Authority dismissed a Coast Guard Hearing Officer-assessed 

Warning against an operator in circumstances where 

both the operator and the vessel owner had written 

to the Hearing Officer, stating that: 1) the operator 

was only temporarily conning the vessel while the 

owner was showing Coast Guard Boarding Officers 

around the vessel; and 2) the vessel owner was assuming full responsibility for the deficiencies revealed by the boarding (Activity No. 4037521). 

Both owner and operator had asked the Hearing Officer to dismiss the case against the operator. 

The Enforcement Summary had charged the operator, not the onboard owner. The vessel owner nevertheless supplied the Hearing Officer with proof of 

compliance (i.e. presented evidence of new flares, 

placard, registration, etc.). The Activity Summary 

Report (ASR) had described the vessel as a 38-foot 

recreational vessel with 16 people aboard. Both 

owner and operator were named in the report, and 

the words “Owner on board—not operator” appeared under “Owner Status.” The ASR made no 

mention of the operator “temporarily” operating the 

vessel while the owner escorted the Boarding Officers. 

The decision to charge a particular individual is up 

to the charging unit, based on the available evidence 

and the provision of law involved. Sometimes more 

than one person can be charged for the same violation. If, instead of charging everyone who might be 

liable, only one person is going to be charged, 

which person should it be? 

Tellingly, the Appellate Authority declined to state 

that it was unlawful to charge the operator, concen-
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVIII Newsletter Date: JAN 2013 

6 

JUST FOR FUN by ADMIN 

JUMBLE 

 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 December 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: 947 

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: 1622 

 Number of case files received by the Hearing Office with violation dates in 2012: 1024 

Number of case files received by the Hearing Office in 2012 regardless of violation date: 1405 

Number of preliminary assessments issued in 

2012: 1293 

Number of final assessments (FLAP, FLAN, 

FLW, and FLD) issued in 2012: 963 

Number of violation case files returned to the 

program manager for deficiencies in 2012: 149 

 

Number of hearings held in 2012: 11