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 2011

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 13

GREETINGS 

From Robert Bruce

Chief, Coast Guard Hearing Office 

 HEARING OFFICE NEWS 

 It is the mission of the Hearing Office to fairly and 

accurately decide civil penalty cases by a process that 

is reasonably informal and inexpensive. For persons 

who have been charged with a violation, the information that the Hearing Office sends with the preliminary assessment letter provides guidance for successfully navigating the civil penalty process. In addition, 

the Hearing Office website provides more information 

for anyone who is interested. 

 Hearing Officers only consider evidence that has 

been properly presented to them; they do not independently investigate the facts of a case. They start 

with a case file alleging one or more violations, and if 

the case file meets the standard of showing on its face 

that a violation occurred, the complete case file is sent 

to the charged party. The charged party then has the 

opportunity to submit any evidence and comment on 

the allegations. 

 Sometimes, persons with experience in more formal 

processes, like litigation in a state or federal court, 

seem to have a hard time believing our process is 

really as simple and straightforward as it is. As a result, we sometimes receive requests to dismiss an alleged charge and to have a hearing if the charge is not 

dismissed. The Hearing Officer then has to explain 

that the party has a right to a hearing, but our process does not provide for the Hearing Officer to make a 

decision on the case until all evidence has been presented. If a party wants to reserve their right to submit additional evidence, they cannot at the same time 

ask for an immediate decision on the case. It would be 

premature for the Hearing Officer to make a decision 

before the charged party has fully exercised his or her 

right to submit evidence and comments. 

 Our office is located in Arlington, Virginia, and in 

the last few weeks we have experienced the east coast 

earthquake, Hurricane Irene, and torrential rains 

from the remnants of Tropical Storm Lee. Some of the 

folks here had flooding in their yards and had to avoid 

flooded streets on the way to work, but the Hearing 

Office staff was fortunate to avoid any serious damage. We are also more prepared, now, to protect ourselves if there is another earthquake. 

 Even with the unusual natural phenomena, our work 

routine has continued and all of our cases are being 

efficiently processed. Like the proverbial mail person, 

nothing that nature has dealt us recently has kept us 

from our daily rounds. 

* * * * * * *_______* 

 

 

 

 

 

Articles in this issue: 

 

Civil Penalty Appeals...p. 2 

 

Requests for Waivers of Citizenship Requirements 

Aboard Commercial Fishing Vessels...p. 3 

 

Drawbridge Violations—Unreasonable Delays and 

Unnecessary Openings...p. 4 

 

Deckplate Rivets...p. 6 

 

KNOT...p. 7 

 

Just for Fun...p. 8 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XIII Newsletter Date: Oct 2011 

2

CIVIL PENALTY APPEALS 

LCDR Michele Bouziane

 By direction of the Commandant, the Chief 

Judge of the Coast Guard Court of Criminal Appeals is also the Coast Guard Civil Penalty Appellate Authority. 

 As of this writing, 49 cases are pending review 

by the Coast Guard Civil Penalty Authority, down 

from approximately 100 on average in previous 

years, according to appellate staff. The bulk of the 

appeals cases are Boating Under the Influence 

cases. 

 

 Most filers of civil penalty appeals hope that the 

Civil Penalty Appellate Authority will overturn the 

findings, and hence, the civil penalties, handed 

down by the Hearing Officer in their cases.

 The Civil Penalty Appellate Authority reviews 

the Hearing Officer‟s decision to see if the findings 

of fact are based on substantial evidence. A good 

explanation of the term “substantial evidence” can 

be found in the below excerpt from 2009 Civil 

Penalty Appeal Decision No. 2405585, posted on 

the Hearing Office website:

Pursuant to our procedural rules 

at 33 CFR 1.07, the Hearing Officer‟s 

decision must be “based upon substantial 

evidence in the record.” See 33 CFR 1.07

-65(a). The Supreme Court defined substantial evidence, both affirmatively and 

negatively, in Consolidated Edison Co. 

of New York v. NLRB, 305 U.S. 197 

(1938). The affirmative definition makes 

clear that “substantial evidence” “means 

such relevant evidence as a reasonable 

mind might accept as adequate to support a 

conclusion.” Id. at 229. In the negative, the 

Court stated that “[m]ere uncorroborated 

hearsay or rumor does not constitute substantial evidence.” Id. at 230. Later court 

decisions have clarified the definition, stating that “substantial evidence” is the quantum and quality of relevant evidence that is 

more than a scintilla but less than a preponderance and that “a reasoning mind 

would accept as sufficient to support a particular conclusion.” (Emphasis added) See 

LeFebre v. Westinghouse Elec. Corp., 747 

F.2d 197, 208 (4th Cir. 1984) (overruled on 

other grounds); see also United Seniors 

Ass’n v. Social Sec. Admin., 423 F.3d 397, 

404 (4th Cir. 2005).

 Appellate staff would like to remind charged 

parties that the civil penalty hearing and appellate 

processes are informal. The charged party‟s due 

process rights in these proceedings are not the 

same as an accused person‟s rights in a criminal 

proceeding.

 According to appellate staff, typed appeal letters are preferable to hand-written ones, preferably 

proof-read and spell-checked. See 33 CFR §§ 1.07

-70 and 1.07-75 for more information on the appeal 

process.

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

Coast Guard Hearing Office Vol: XIII Newsletter Date: Oct 2011 

3

REQUESTS FOR WAIVER OF CITIZENSHIP 

REQUIREMENTS ABOARD COMMERCIAL 

FISHING VESSELS

CDR Evan Hudspeth

 Occasionally in response to a preliminary assessment letter (PAL) regarding an alleged violation of the citizenship requirements aboard commercial fishing vessels (46 U.S.C. § 8103(i)), the 

Hearing Officer has been asked to grant a waiver 

or has been sent an official request for a waiver. 

 This request stems from 46 U.S.C. § 8103(b)

(3), which states: “The Secretary may waive a citizenship requirement under this section, other than 

a requirement 

that applies to 

the master of a 

documented 

vessel, with 

respect to—... 

(C) any other 

vessel if the 

Secretary determines, after 

an investigation, that qualified seamen who are citizens of the United States 

are not available.” This authority has been delegated to the Commandant, and, with respect to 

commercial fishing vessels, it was further delegated to the Director of Prevention Policy, Office 

of Vessel Activities, Fishing Vessels Division (CG

-5433). Hearing Officers have no authority to 

grant a waiver. 

 The current procedure is to submit official 

waiver requests directly to Commandant CG-5433 

(formerly “G-MOC-3”), according to a Commandant policy letter dated June 28, 2001. Please keep 

in mind that although a copy of an official waiver 

request to CG-5433 may indicate the charged 

party‟s efforts to comply with applicable law, more 

helpful to the Hearing Officer would be to include 

evidence of the date the waiver request was sent, 

and whether or not the waiver request was approved by 

CG-5433. 

When CG5433 grants/

approves a 

waiver request, it 

sends a letter 

to the party saying so, a copy of which is placed in 

MISLE. During vessel inspections, boarding officers can be on the lookout for these waiver requests. If there is evidence that the waiver was approved for the vessel and the individuals in question, then it is likely that a violation did not occur.

 The Coast Guard has initiated the rulemaking 

process to incorporate its waiver request policy 

into federal regulations. The proposed rule is at 76 

Federal Register 51317 and comments must be 

submitted to the Coast Guard by November 16, 

2011. 

* * * * * * *______* 

 

 

 

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

Coast Guard Hearing Office Vol: XIII Newsletter Date: Oct 2011 

4

DRAWBRIDGE VIOLATIONS – UNREASONABLE DELAYS AND UNNECESSARY 

OPENINGS

CDR Mark Hammond

 Unreasonable delays and unnecessary openings 

constitute the majority of the drawbridge operation 

cases received at the Hearing Office. This article 

briefly discusses each type of case, and highlights 

the important elements of each violation as well as 

challenges that arise in the adjudication of these 

cases.

 The regulations governing the operation of 

drawbridges are found at Title 33 Code of Federal 

Regulations (CFR), Part 117. These regulations 

are divided into two subparts. Subpart A prescribes the general and special drawbridge operating regulations that apply to all drawbridges across 

the navigable waters of the United States. Subpart 

B contains the specific requirements for the operation of some individual drawbridges, which may 

supersede the general requirements of Subpart A 

where specified. Violations of drawbridge operating regulations are serious and can result in civil 

penalties of up to $25,000.00.

Unreasonable Delays

 33 CFR § 117.5 requires that drawbridges open 

“promptly and fully” when a request or signal is 

given. (The means of signaling that may be used 

are described at § 117.15). Title 33 CFR § 117.9 

states: No person shall unreasonably delay the 

opening of a draw after the signals required by 

§ 117.15 have been given.” To find a violation of 

this cite, there must have been a delay in the opening of the particular drawbridge, and the delay 

must have been unreasonable--but what constitutes 

an unreasonable delay? 

 Given the high-speed, time constrained nature 

of today‟s society, I‟d be willing to bet that most 

vessel operators would say that any delay in the 

opening of a drawbridge is unreasonable. Clearly, 

there are some vessel operations for which a delay 

in a bridge opening is more burdensome, and presents a greater safety risk, than others. Depending 

on the circumstances of a particular case, however, 

a delay may not be deemed “unreasonable” under 

the applicable regulations. 

 

 The term 

“unreasonable 

delay” is not defined in 33 CFR 

117 Subpart A. 

The maximum 

time permitted for 

delay for some 

specific bridges 

however, is defined in Subpart B. For example, for 

bridges across the Hackensack River, 33 CFR § 

117.723(a)(3) states: “Train and locomotives shall 

be controlled so that any delay in opening the draw 

shall not exceed 10 minutes...” 

 The typical cases received by the Hearing Office for alleged violations under 33 CFR § 117.9 

involve railroad bridges and delays associated with 

train crossings. 33 CFR § 117.9 contains a note 

which states: “Trains are usually controlled by the 

block method. That is, the track is divided into 

blocks or segments of a mile or more in length. 

When a train is in a block with a drawbridge, the 

draw may not be able to open until the train has 

passed out of the block and the yardmaster or other 

(Continued on page 5)
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XIII Newsletter Date: Oct 2011 

5

manager has „unlocked‟ the drawbridge controls...” 

 For example, a delay might not be unreasonable 

if a train were “in the block” of a drawbridge at the 

time that the signal to open was received. If a 

drawbridge operator were to allow additional trains 

to approach and enter the block while the first train 

was crossing the bridge, however, and delayed the 

bridge opening further until subsequent trains 

cleared the bridge, then the resultant delay might 

be considered unreasonable. 

 Oftentimes case files received by the Hearing 

Office lack sufficient evidence to support a conclusion that a delay was unreasonable. Detailed evidence, including logbook entries showing times, 

locations, communications, mechanical issues etc., 

is helpful to the Hearing Officer in determining if a 

violation under 33 CFR § 117.9 did or did not occur. 

Unnecessary Openings

 According to 33 CFR § 117.11, no vessel owner 

or operator shall 

“(a) Signal a 

drawbridge to 

open if the vertical clearance is 

sufficient to allow the vessel, 

after all lowerable non-structural vessel appurtenances that are 

not essential to navigation have been lowered, to 

safely pass under the drawbridge in the closed position; or (b) Signal a drawbridge to open for any 

purpose other than to pass through the drawbridge 

opening.” 

 In the typical case received by the Hearing Office for an alleged violation under this cite, a sport 

fishing vessel operator requests a bridge opening to 

accommodate the height of the vessel‟s outriggers 

or antennae. In most cases those outriggers or antennae can be made lowerable. These types of 

(Continued from page 4) cases are often returned for correction or dismissed 

for lack of evidence. 

 In order for a violation under this cite to have 

occurred, it must be shown that after all lowerable, 

non-structural 

vessel appurtenances that are 

not essential to 

navigation have 

been lowered, 

the vertical 

clearance of the 

subject bridge 

was sufficient to 

allow the vessel to safely pass. It must also be 

shown that the appurtenance(s) for which the 

bridge opening was requested is/are lowerable, non

-structural, and not essential to navigation. 

 It‟s important to have a clear understanding of 

what “lowerable non-essential vessel appurtenances not essential to navigation” means. The 

following definitions are found at 33 CFR § 117.4: 

Lowerable means a non-structural vessel appurtenance that is or can be made flexible, hinged, 

collapsible or telescopic so that it can be mechanically or manually lowered. (Underlining 

added.)

Nonstructural means that the item is not rigidly 

fixed to the vessel and can be relocated or altered.

Appurtenance means an attachment or accessory 

extending beyond the hull or superstructure 

that is not an integral part of the vessel and is 

not needed for a vessel piloting, propelling, 

controlling, or collision avoidance capabilities.

Not essential to navigation means that a nonstructural vessel appurtenance, when in the lowered 

position would not adversely affect the vessel‟s piloting, propulsion, control, or collisionavoidance capabilities.

(Continued on page 6)
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XIII Newsletter Date: Oct 2011 

6

Detailed evidence, including the vertical clearance 

of the bridge involved, the reason for the requested 

opening, and the subject vessel‟s height when all 

non-structural appurtenances are lowered, among 

other factors, can be helpful to the Hearing Officer 

in making her/his determination.

* * * * * * *

(Continued from page 5) DECKPLATE RIVETS

Prior to forwarding a case for adjudication, 

case processing officials should carefully review the entire case file and 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 totally illegible must be regenerated, which may delay the adjudication process. 

Remember to redact from the documents Personally 

Identifiable Information, such as Dates of Birth, Social Security Numbers, etc., that do not belong to 

the charged party.

For alleged violations under 46 USC 8103(b) 

or (i), in addition to information pertaining to 

the vessel and its operation, it is a good practice to 

list the name, citizenship, and position held of each 

person on board the vessel in question. This information not only helps with the Hearing Officer‟s 

determination in such cases; it also provides 

charged parties with a better understanding of the 

alleged violation and the basis upon which to make 

informed decisions. Conclusory statements such as: 

“One of the three unlicensed crewmen on board was 

a non-U.S. citizen with a valid work visa”; or, “Two 

of the vessel crew self-admitted to being in the U.S. 

illegally,” may not be as persuasive in establishing 

that a violation occurred as detailed information that 

identifies each individual on board and provides 

his/her citizenship status. This becomes particularly 

important when a party responds with evidence of a 

waiver of the crew citizenship requirements, or 

proof of citizenship, for persons that were not previously identified in the Coast Guard‟s case package. (Refer to Hearing Office Newsletter Volume 

3, December, 2008, for more specific information 

pertaining to charging violations of 46 USC 8103.) 

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

Coast Guard Hearing Office Vol: XIII Newsletter Date: Oct 2011 

7

 Boarding Officers should routinely check the 

driver‟s license of the party responsible for alleged 

violations observed during a boarding, and use the 

information from the license to fill out the Boarding 

Report. It is also a good practice for Boarding Officers to ask the party if the address on the license is 

in fact the party‟s current address. If the party‟s 

current address is different from the address shown 

on the license, the Boarding Officer should record 

the current address in the Boarding Report. The 

Boarding Officer should also record the old address 

shown on the driver‟s license and include that information in the civil penalty case file. In most cases, 

the current address supplied by the party will be 

valid. If not, the old address may help in finding a 

valid address. 

* * * * * * *

K N O T

 

(Knowledge Note or Tip) 

 

 The only valid authority for assessment of a civil 

penalty for simple possession of a controlled substance by a CG Hearing Officer, is 46 USC 

§ 70506, which is part of the Maritime Drug Law 

Enforcement Act (MDLEA).* 

 Authority to enforce this section has not yet been 

delegated by the DHS Secretary to the Coast Guard. 

Additionally, Coast Guard program managers may 

want to provide guidance to the field on the CG's 

enforcement posture with respect to civil penalties 

for simple possession in violation of the MDLEA. 

Until such time as the delegation from DHS occurs, 

the Hearing Office is not authorized to process 

charges alleging simple possession of a controlled 

substance.

* Subsection (c) of 46 USC § 70506 states, “...Any individual 

on a vessel subject to the jurisdiction of the United States who 

is found by the Secretary, after notice and an opportunity for a 

hearing, to have knowingly or intentionally possessed a controlled substance...shall be liable to the United States for a 

civil penalty of not to exceed $5,000 for each violation...” 

This was an amendment to the MDLEA made by section 302 

of The Coast Guard Authorization Act of 2010 (Public Law 

111-281). 

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 September 30, 2011) that provide a 

“how goes it” glimpse into our work:

Number of case files received by the Hearing Office with violation dates in 2008: 946 

Number of case files received by the Hearing Office with violation dates in 2009: 1442 

Number of case files received by the Hearing Office with violation dates in 2010: 1486 

Number of case files received by the Coast Guard 

Hearing Office with violation dates in 2011: 734 

Number of case files received by the Hearing Office in 2011 regardless of violation date: 1192

Number of preliminary assessments issued in 

2011: 1056 

Number of final assessments (FLAP, FLAN, FLW, 

and FLD) issued in 2011: 710 

Number of violation case files returned to the program manager for deficiencies in 2011: 155 

Number of hearings held in 2011: 14
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XIII Newsletter Date: Oct 2011 

8

JUST FOR FUN: Word Search