Adjudicate civil penalty cases in support of the Marine Ssfety Mission and Vision, in the Coast Guard’s Marine Safety 

Performance Plan, regarding compliance enforcement, to: ensure the safety of U.S. mariners, passengers on ferries and 

other vessels, and recreational boaters; protect the marine environment; and minimize disruptions to maritime commerce. 

Newsletter Date 

 October 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 17 

GREETINGS

From Robert Bruce 

Chief, Coast Guard Hearing Office HEARING OFFICE NEWS 

Hearing Officers are very conscientious about performing their duties in civil penalty proceedings. 

They work hard to be fair and impartial in every case, 

and to sort through the evidence in case files to make 

accurate findings of fact. When the facts show that a 

violation has occurred, Hearing Officers are thoughtful about considering any factors required by law before finally assessing a penalty, and about assessing a 

penalty that is remedial rather than punitive. That 

means that the Hearing Officer will strive to assess a 

penalty that is fair and that will achieve the remedial 

goals of compliance and deterrence. 

Coast Guard personnel and the parties charged in 

civil penalty cases both have opportunities to properly 

influence the Hearing Officers’ decisions, in compliance with the rules for the civil penalty process. It is 

important for both the Coast Guard personnel preparing civil penalty cases and the charged parties to understand the relevant issues and to focus their efforts 

on persuading the Hearing Officer on the issues in 

dispute with sound evidence and discussion of the law. 

In order to effectively persuade the Hearing Officer, it 

is important to understand the regulation or statute 

that is cited for the alleged violation and the elements 

involved in proving a violation of the law, including 

the meaning of terms that are defined in the law. 

Taking the time to understand the relevant issues in a 

case should be a great help in preparing submissions 

for the Hearing Officer that are credible and persuasive. 

These newsletters are posted on our website 

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

website HOMEPORT. 

As of now, the Hearing Office is receiving mostly cases with a 

violation date in 2012, with only a very small number of cases 

from earlier years. In September, we received about 130 new 

cases as opposed to about 100 cases a month in July and August. September, October and November are generally the 

months in which the Hearing Office receives the largest number of new cases. As a result, this is the busy season for the 

Hearing Officers and their support staff. Even so, the Hearing 

Office much prefers to see cases submitted in a timely manner, 

rather than many months or even years after the alleged violations. To the extent a case involves lack of compliance, the 

sooner a civil penalty can achieve compliance the better. 

Similarly, if a civil penalty is going to be assessed to deter 

future violations of the same sort, the sooner the case can be 

processed the better. 

 

 * * * * * * * * 

Articles in this issue: 

THE RECOMMENDED PENALTY (Reprint)...p. 2 

ENFORCEMENT OF COMMERCIAL FISHING VESSEL 

SURVIVAL CRAFT REQUIRMENTS ((Revisited)...p. 3 

K.N.O.T ON FIRE EXTINGUISHER VIOLATIONS...p. 4

 

DECKPLATE RIVETS...p. 5 

COMMERCIAL ACTIVITY ≠ COASTWISE TRADE...p. 6 

ANTIFOULING SYSTEMS...p. 7 

WHAT’S IN A NUMBER?...p. 7 

JUST FOR FUN...p. 8
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVII Newsletter Date: OCT 2011 

2 

Remember, the goals of the civil penalty amount are 

compliance and deterrence. Penalty amounts are 

formulated to gain mariner compliance with laws 

and regulations that the Coast Guard enforces and to 

deter mariners from future violations. 

For these reasons, the Hearing Officer’s preliminary 

penalty may be higher than the recommended penalty. The civil penalty process is not a process that 

seeks to punish mariners for violations as a criminal 

process might do. Therefore, penalty amounts are 

not determined in the context of being 

“punishment” for violations. In a case of a declined 

Notice of Violation (NOV), the party is not 

“punished” in the civil penalty process for declining 

the NOV. Penalty amounts are determined in such 

cases in the same manner as non-NOV civil penalty 

cases. 

Additionally, it is important to remember that the 

recommended penalty is based on the unit’s view of 

the alleged violation. Often the final penalty is substantially lower than what the unit might have recommended. The unit at the time of determining the 

recommended penalty amount does not have the 

benefit of having seen or heard the party’s evidence. 

The Hearing Officer in formulating the final penalty 

considers all of the party’s evidence in defense, 

mitigation, and extenuation. It is this evidence that 

often causes the final penalty to be lower than the 

recommended penalty amount. 

 * * * * * * * * 

THE RECOMMENDED PENALTY 

(Reprinted from the July 2009 Newsletter) 

THE RECOMMENDED PENALTY

Periodically parties will question the “recommended 

penalty” amount on an Enforcement Summary and 

also the preliminary penalty amount assessed by a 

Hearing Officer. 

The recommended penalty amount reflected on an 

Enforcement Summary is simply an amount that the 

processing official recommends as appropriate for 

the cited violations. It is but one factor among many 

factors that the Hearing Officer considers. 

All too often, a processing official fails to articulate 

the factors that led to the determination of the recommended penalty amount thereby diminishing its 

usefulness as a factor for consideration by the Hearing Officer. Hearing Officers consider all evidence 

from the unit including any aggravating factors that 

are articulated and sufficiently explained. 

It is important to understand that Hearing Officers 

are impartial and independent in the execution of 

their duties and are not bound by the recommended 

penalty amount. They make a determination as to 

the penalty amount based on the facts and circumstances of the violation. 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVII Newsletter Date: OCT 2011 

 3 

• Documented vessels 

• Undocumented vessels with not more than 

16 individuals on board 

• Undocumented vessels with more than 16 

individuals on board 

A detailed description of vessel type (documented 

or undocumented) should be included in the enforcement summary as well as an accurate count of 

the number of individuals on board. The vessels 

must carry the appropriate survival craft in aggregate capacity to accommodate the total number of 

individuals on board. 

Location, location, location

Location information is crucial for 

processing a violation case under the 

survival craft regulations. This information is used to 

establish carriage 

requirements based 

on distance from the coastline, and is also used in 

making cold water determinations which can significantly alter specific carriage requirements. It is 

vitally important to document the location of the 

boarding in the Enforcement Summary and to verify 

its accuracy. It is also important to ascertain and 

document the vessel’s typical route. The specific 

areas of vessel operation that trigger the various survival craft requirements are delineated in the regulations as follows: 

• Beyond 50 miles of the coastline 

• Between 20 and 50 miles of the coast line 

• Beyond the boundary line within 20 miles of 

the coastline 

• Beyond the boundary line, within 12 miles 

of the coastline 

• Inside the boundary line, or lakes, bays, 

sounds, or rivers 

• Great Lakes (beyond and within 3 miles of 

the coastline) 

Cold vs. Warm Water

Water temperature is another key factor in properly 

determining survival craft carriage requirements. 

(Continued on page 4) 

ENFORCEMENT OF COMMERCIAL FISHING VESSEL SURVIVAL CRAFT REQUIREMENTS (Revisited)

CDR M. Hammond, USCG 

This topic was previously discussed in an article 

that appeared in Volume VI, October 2009, of the 

Hearing Office Newsletter. The article is reprinted 

here (in edited form) to provide a brief overview of 

the commercial fishing vessel (CFV) survival craft 

regulations and to re-emphasize some of the key 

elements that should be considered when units are 

processing enforcement cases for Hearing Officer 

adjudication. 

Survival craft carriage requirements are contained 

in 46 CFR § 28.120. This part applies to all U.S. 

flag, uninspected vessels that are commercial fishing, fish processing, or fish tender vessels. This 

part applies to documented vessels and vessels numbered (registered) by a state. Specific carriage requirements vary significantly depending on a number of factors, including the vessel’s documentation 

status, the number of individuals on board, the vessel’s area of operation, as well as the temperature of 

the water in which the vessel is operating. 

When processing an enforcement case for an alleged violation of survival craft carriage requirements, careful consideration should be given to capturing and documenting the following essential elements of information. 

Vessel Details / Number of Individuals on board

Specific requirements for survival craft are contained in 46 CFR § 28.120 and are listed within tables 28.120(a), 28.120(b), and 28.120(c). The tables breakdown the requirements for the following 

categories of vessels: 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVII Newsletter Date: OCT 2011 

4 

K.N.O.T.

(Knowledge Note or Tip) 

 

Fire Extinguisher Violations 

(Know the regs and choose the appropriate cite) 

The Hearing Office receives many cases each week 

involving alleged violations of the fire extinguishing equipment requirements. These cases typically 

involve the failure to have the required number of 

Coast Guard approved fire extinguishers on board 

because of the fire extinguisher/s’ unserviceability, 

insufficient charge, or complete absence. 

Two cites cover the bulk of the violations: 46 CFR 

§ 25.30-20 and 46 CFR § 28.160. Note that although the first paragraph of 28.160 makes the requirements of 46 CFR Part 25, Subpart 25.30, applicable to commercial fishing vessels, 28.160(b) is the 

actual charging cite for fishing vessels 65 feet or 

more in length. For commercial fishing vessels that 

are less than 65 feet in length and are missing the 

required number of fire extinguishers, use 46 CFR § 

25.30-20. 

Oftentimes, however, charging units apply the 

wrong cites for such violations and, as a result, 

cases are returned, slowing the adjudication process. 

For example, we see cases in which parties are 

charged under 46 CFR 25.30-10(g), for having a 

fire extinguisher (without a pressure gauge) that has 

been determined to be 

unserviceable or empty. 

It is important to note 

however, that just because 

an empty or unserviceable 

fire extinguisher does not 

have a pressure gauge, it 

does not necessarily mean 

a violation of § 25.30-

10(g) has occurred. It is important to have a good 

understanding of the elements of this regulation to 

determine whether the cite applies to a particular 

case. 

46 CFR § 25.30-10(g) states in part: “The use of dry 

chemical, stored pressure, fire extinguishers not fitted with pressure gauges or indicating devices, 

(Continued on page 5) 

For example, a 37-foot documented CFV that operates within 12 miles from the coastline in cold waters is required to carry an Inflatable Buoyant Apparatus, whereas the same vessel, if operating the 

same distance from the coastline in warm waters, is 

only required to carry a Life Float. For the purposes 

of this regulation, cold water means water where the 

monthly mean low water temperature is normally 

59o F or less. Detailed information regarding cold 

water determinations, with associated chartlets broken down by month for the Atlantic and Pacific 

Ocean, are contained in Navigation and Vessel Inspection Circular No. 7-91 (available via homeport.uscg.mil within the “Library” tab). 

Exceptions

These requirements do not apply to vessels less than 

36 feet, with three or fewer individuals on board 

that operate within 12 miles of the coastline. For 

vessels greater than 36 feet, with 3 or fewer individuals on board, and operating within 12 miles of 

the coast line, they currently may substitute a Buoyant Apparatus for the survival craft requirement. 

Always remember: Details are important! A welldocumented, detailed violation case can go a long 

way toward achieving compliance goals, to improve 

the safety of the commercial fishing industry, as 

well as help deter violations in the future. 

 * * * * * * * * 

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

Coast Guard Hearing Office Vol: XVII Newsletter Date: OCT 2011 

 5 

supporting evidence. Getting it right the first time 

will help avoid delays in the adjudication process. 

 * * * * * * * * 

DECKPLATE RIVETS 

The Coast Guard issued a final rule on 28 

March 2012 entitled, “Changes to Standard 

Numbering System, Vessel Identification System, 

and Boating Accident Report Database” (77 FR 

18689-01). 

The rule became effective 27 April 2012. The rule 

amends several sections in 33 CFR Part 173 “to 

align with statutory language.” For example, the 

words “use” and “used” in 33 CFR § 173.21 have 

been replaced with the words “operate” and 

“operated,” respectively. Similarly, the word 

“using” in § 173.23 is now “operating,” and the 

word “use” in § 173.25 is now “operate.” Boarding Officers, especially, should take note of these 

changes. 

The Hearing Office has recently received a rash 

of Activity Summary Reports featuring bad 

spelling. Spelling errors are avoidable. Today 

there are innumerable free on-line tools to assist 

the writer, for example: dictionary.com, oxforddictionaries.com, and dailygrammar.com. At least 

get someone to proofread your work. Remember 

that the party and/or his/her representative will be 

reading the Activity Summary Report. A narrative 

containing simple, complete, declarative sentences 

that are free of spelling errors reflects well on the 

Coast Guard.

manufactured 

prior to January 1, 1965

may be permitted on 

motorboats 

and other 

vessels so 

long as such 

extinguishers 

are maintained in 

good and serviceable condition...” 

(Emphasis 

added). Obviously, in 

order for a 

violation to 

have occurred 

under this 

cite, there 

must be evidence to support that the particular fire 

extinguisher is not fitted with a pressure gauge or 

indicating device, and was manufactured prior to 

January 1, 1965. 

46 CFR § 25.30-10(h) states: “The dry chemical, 

stored pressure fire extinguishers without pressure 

gauges or indicating devices manufactured after 

January 1, 1965, shall not labeled with the marine 

type labeled in § 162.028-4 of this title nor shall 

such extinguishers manufactured after January 1, 

1965, be carried on board motorboats or other vessels as required equipment.” (Emphasis added.) 

So, for cases where a required fire extinguisher with 

no pressure gauge or indicating device is found on 

board a vessel and it is determined to be empty or 

unserviceable, unless there is evidence to show the 

extinguisher was manufactured prior to January 1, 

1965, the most appropriate cite to use would be 46 

CFR § 25.30-20 or 46 CFR § 28.160 depending on 

the vessel size. This is because the vessel failed to 

have the required number Coast Guard approved 

fire extinguishers on board. 

 Here’s the K.N.O.T.: Know the regulations and 

ensure the charged cite is appropriate to the alleged 

violation by verifying that the case file contains 

(Continued from page 4) 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVII Newsletter Date: OCT 2011 

6 

Commercial Activity ≠ Coastwise Trade 

Mr. Robert Bruce 

The Hearing Office occasionally receives a case alleging that a vessel has engaged in coastwise trade 

without a Certificate of Documentation evidencing 

a coastwise endorsement. This type of case would 

involve an alleged violation of 46 U.S.C. § 12102

(a), 46 C.F.R. § 67.323, § 67.325, or § 67.327. In 

order to prove that such a violation occurred, there 

must be evidence that the vessel was engaged in 

coastwise trade, among other things. 

Coastwise trade is defined in various sections of 46 

U.S.C. Chapter 551. The Coast Guard is authorized 

to enforce the coastwise laws (14 U.S.C. § 100), but 

Customs and Border Protection is the agency responsible for determining what activities are included within the definition of coastwise trade. It 

may be that coastwise trade always involves some 

commercial activity, but it is not true that all commercial activity is coastwise trade. For example, a 

vessel that lays cable or pipe in a U.S. harbor may 

not be engaged in the coastwise trade if it does not 

transport any passengers or merchandise. 

In cases where the vessel’s activity clearly falls 

within the statutory definition of coastwise trade, it 

may be sufficient to provide evidence showing the 

activity in which the vessel was engaged. For example, a ferry carrying passengers from Orient 

Point, New York to New London, Connecticut, 

would fall squarely within 46 U.S.C. § 55103 and 

there could not be much of an argument that it was 

not engaged in coastwise trade. 

In cases that are more ambiguous, the Hearing Officer will need to be provided with evidence that 

clearly shows the activity the vessel was engaged in, 

plus some authority for the Coast Guard’s position 

that the vessel is engaged in coastwise trade. A 

valid authority would be a ruling by Customs and 

Border Patrol or a decision by a court of competent 

jurisdiction. In an ambiguous situation, a determination by the Coast Guard that a vessel activity constituted coastwise trade would not necessarily be 

persuasive, because the Coast Guard is not the 

agency responsible for making those determinations. 

In the past few months, the Hearing Office has been 

presented with two problematic cases. One involved a vessel laying pipe in a harbor. The case 

file only vaguely described the activity the vessel 

was engaged in and contained no authority that laying pipe was coastwise trade. In another case, a 

vessel carried passengers on a harbor cruise that 

started and ended at the same point. Again, the case 

file did not include any authority to support the allegation that such an activity is coastwise trade. 

In some cases, the issue of proving that the vessel 

was engaged in coastwise trade can be avoided by 

using a different approach. For instance, in the passenger vessel case above, it is likely that a Coast 

Guard Certificate of Inspection (COI) would be required for carrying passengers for hire. If the vessel 

did not have a valid COI, then a civil penalty case 

could be based on the invalid or missing COI, rather 

than on a coastwise trade violation. 

A civil penalty case involving proof that a vessel 

engaged in coastwise trade can require more research and preparation than the typical civil penalty 

case. If in doubt, contact your servicing legal office 

for assistance. 

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

Coast Guard Hearing Office Vol: XVII Newsletter Date: OCT 2011 

 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 SEP 30, 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: 1619 

 Number of case files received by the Hearing 

Office with violation dates in 2012: 623 

Number of case files received by the Hearing 

Office in 2012 regardless of violation date: 905 

Number of preliminary assessments issued in 

2012: 902 

Number of final assessments (FLAP, FLAN, 

FLW, and FLD) issued in 2012: 732 

Number of violation case files returned to the 

program manager for deficiencies in 2012: 115 

 

Number of hearings held in 2012: 10 

ANTIFOULING SYSTEMS

According to the CG-CVC Policy Letter #12-08 

dated 15 October 2012, the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (AFS Convention) was adopted by 

the International Maritime Organization “to prohibit the use of harmful organotins in anti-fouling 

paints used on ships and to establish a mechanism 

to prevent the potential future use of other harmful 

substances in anti-fouling systems. 

“Starting on November 21, 2012, U.S 

flagged vessels, 

wherever located, 

and foreign flagged 

vessels in the internal 

waters of the United 

States, in any port, 

shipyard, offshore 

terminal, or other 

place in the United 

States, must comply with the applicable portions of 

the AFS Convention” as outlined in the Policy Letter document. 

The Policy Letter goes on to say, “[f]or applicable 

U.S. vessels, the Coast Guard or Recognized Classification Society (RCS), will verify compliance 

with the provisions of the AFS Convention and 

issue [International Anti-fouling Systems] IAFS 

Certificates and...[Record of Anti-fouling Systems]...ROAFS during routine scheduled inspections... 

The Policy Letter is guidance and is not intended 

as a substitute for applicable legal requirements. 

The Letter suggests that in egregious cases of noncompliance with the AFS Convention, the Captain 

of the Port may wish to pursue a civil penalty 

against the offending vessel. 

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

Coast Guard Hearing Office Vol: XVII Newsletter Date: OCT 2011 

8 

TERMS IN THE COAST GUARD 

I J I R I S A D E W B O J N R I U B S G J S K 

H C J L U Z Y Z D I F B Z R E A V X O L N P L 

M J T S G H E C I W K V V Z K A D N P I L Z J 

Z E W X A L A O S V W E N N C B E U S F C M L 

H A B L E Y Y M P B C M F P A U C O R E G X Q 

B Y H A B C E P O S I E L V R P K G A J A L U 

S O H D D P M A T R E O N D T I T P K A T S A 

N I B D L X B R F J P P F M E R K V U C Y R R 

I Q T E I Q Z T L P C M A Y C R V P Y K T O T 

Y J G R G B T M S J D Z W E N V Y L V E U L E 

U Q O V F Y U E K R Q W D K A H D R V T L O R 

B M A A M C W N C H I V K H M J B Q X S N C D 

U A D D R K F T A I Y A E D R U J E H K U R E 

Q R J Z U O V D R B Y A L P O U S F L F G W C 

Y E Z M K W R U U I D O L F F Y A R S O K O K 

M Z G K A S Y W Z J M X R L R R X F M Z W E G 

A S C U T T L E B U T T N Y E X B W D C R P D 

M Y T Z V Q S T B G J B G E P N I E I K P V W 

Z Z B U L K H E A D W B X Q X R B X L Q E N U 

K O D M S A Q V A V A S T M O E X E T A G C X 

K G G J V T Z X U H K V C S Q X M T S H Y J E 

B X J P Y T B X S P M D L O V E R H E A D P G 

N O I T C E P S N I F O E T A C I F I T R E C 

JUST FOR FUN by Ms. Alicia Scott 

Note: THE WORDS CAN BE IN ANY DIRECTION. 

AVAST 

COMPARTMENT PERFORMANCE TRACKER 

AYEAYE DECK QUARTERDECK 

BELAY FLAIRS RACK 

BELOW HEAD SCUTTLEBUTT 

BUI LADDER SIR 

BULKHEAD LIFE JACKETS SWAB 

CERTIFICATE OF 

INSPECTION 

MAAM TOPSIDE 

COLORS OVERHEAD 

AVAST 

COMPARTMENT PERFORMANCE TRACKER 

AYEAYE DECK QUARTERDECK 

BELAY FLAIRS RACK 

BELOW HEAD SCUTTLEBUTT 

BUI LADDER SIR 

BULKHEAD LIFE JACKETS SWAB 

CERTIFICATE OF 

INSPECTION 

MAAM TOPSIDE 

COLORS OVERHEAD