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

January 2011

Volume 10 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,

This January Newsletter should be reaching you soon 

after the New Year and the Holiday season. We at the 

Hearing Office hope that all of our readers have enjoyed 

some traditional festivities with family and friends. 

Our work here continues even during the Holiday season. Some people seem to believe that we take some 

perverse pleasure in spoiling their Holiday by sending 

them notice of a civil penalty in the mail along with 

their Christmas cards. But, the fact is, we have to keep 

our process going year-round to keep up with the steady 

flow of cases we receive and try to provide notice to the 

charged party as soon as possible. 

In this issue of the Newsletter you will find articles 

about some recent law-making that has created new 

civil penalties or, in the case of anchorages, increased 

the maximum civil penalty; issues related to the charging of boating while intoxicated and negligent operation 

in the same case; how Hearing Officers handle multiplicious charging based on a single act or incident; and 

some tips on providing persuasive evidence of compliance. 

As always, the reason for this Newsletter is to make the 

Hearing Office part of the Coast Guard civil penalty 

process more transparent. The better you understand 

our process, the easier it is to see that our actions are 

based on principles of fairness and impartiality. 

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 

 

On December 1, 2010, a member of the Hearing Office 

administrative staff, Victor Anderson, was advanced to 

Yeoman Second Class (YN2). YN2 Anderson has worked 

at the Hearing Office since August, 2007, and he has 

made important contributions to the processes used by 

the administrative staff to support the work of our hearing officers and keep the flow of case files moving efficiently. 

We could not function effectively without our administrative staff. The administrative staff keeps our case files 

organized, processes the in-coming mail, and takes care of 

the out-going mail. They also respond to most of the telephone calls and emails the Hearing Office receives from 

the general public and from Coast Guard personnel. 

With his promotion, YN2 Anderson earns more pay and 

gains seniority within the enlisted ranks of the Coast 

Guard. Congratulations YN2 Anderson! 

 

* * * * * * * * 

 

EVIDENCE OF COMPLIANCE 

CDR E. Hudspeth

So you were cited for a vessel safety violation, and without delay you corrected the discrepancy. According to the 

pamphlet you received in the mail from the Hearing Office, you may submit written statements, photographs, 

receipts, diagrams or other evidence relating to the case. 

However, before you decide to include evidence to support 

your statement that the discrepancy has been corrected, 

take the time to consider what you’re sending, and 

whether it will persuasively show that you and your vessel are in compliance.

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

First, how can you show that you now have the previously 

missing item? They say that a picture is worth a thousand 

words, but make sure that the picture is meaningful. For example, only providing a picture of the item by itself is not very 

convincing. More helpful would be an additional picture of the 

item next to or on board your vessel, with the name and/or 

state number of the vessel prominently displayed. 

Second, what if the item has an expiration date (Certificate of 

Number, hydrostatic release, life raft, visual distress signals, 

etc.)? It would be most advantageous to your cause if you included a close-up picture or copy of the document or item that 

clearly shows the non-expired expiration date. 

Finally, how can you show that you corrected the discrepancy 

in a timely manner? Obviously, if a receipt or invoice is available, you’ll want to provide a copy that clearly shows the date 

of purchase, for comparison to the date of the violation. Another possibility is to arrange for a vessel safety inspection/

exam. You may contact a local Coast Guard unit to arrange a 

follow-up boarding, or a Coast Guard Auxiliary Vessel Safety 

Check using the following website: http://SafetySeal.net. You 

should receive a dated document afterwards that you can copy 

and include with your response letter. Hearing Officers give 

substantial weight to a mariner's timely compliance efforts, 

and such efforts will often result in a mitigation of the final 

penalty amount. 

* * * * * * * *

IS IT BUI? — NEGLIGENT OPERATIONS? — OR BOTH? 

CDR M. Hammond

Consider this hypothetical scenario: A small boat crew discovers a 16-foot recreational boat with one person on board, 

adrift, and without its navigation lights energized after sunset. Based on that and additional observations during a 

boarding of the vessel, the boarding officer has reasonable 

cause to suspect the operator is intoxicated. Following the administration of field sobriety tests and a breath test, the operator is determined to be intoxicated and is subsequently 

charged for operating under the influence of alcohol or a dangerous drug (BUI), under Title 46 United States Code 2302(c). 

The operator is also charged under 33 CFR 83.20 for failing to 

comply with the rules for lights after sunset. Further, the operator is cited for a third charge under 46 U.S.C. 2302(a) –

negligent operations. However, the only evidence in the case 

file to support the third charge is the brief statement ―subject 

operated vsl with no lights and BAC of .086.‖ When the case is 

reviewed by the Hearing Officer, the negligent operations 

charge is dismissed. Why? 

Cases involving BUI are unfortunately common amongst the 

cases received by the Hearing Office for adjudication. Generally speaking, charging units are doing an excellent job of 

thoroughly documenting the critical factual elements of each

case and providing the necessary evidence to support a 

charge of BUI. Hearing Officers routinely receive cases 

in which a charge under 46 U.S.C. 2302(a) for ―Negligent 

Operations‖ is also included in addition to the BUI 

charge. However, more times than not, these cases do 

not contain additional evidence beyond that pertaining 

to the BUI charge and therefore the charge under 2302

(a) is typically dismissed. That’s not to say that negligence did not occur in a particular circumstance; only 

that the case file did not contain sufficient evidence to 

support a prima facie case in order to proceed with a 

charge under 46 U.S.C. 2302(a). 

According 46 U.S.C. 2302(a), a person operating a vessel 

in a negligent manner or interfering with the safe operation of a vessel, so as to endanger the life, limb, or property of a person is liable to the U.S. Government for a 

civil penalty. Negligence is the omission to do something 

which a reasonable person, guided by those common 

sense considerations which ordinarily regulate human 

affairs, would do; or the doing of something which a reasonable and prudent person would not do. It is the failure to use such care as a reasonably prudent and careful 

person would use under similar circumstances. 

Negligence can also be established by showing that a 

person violated an applicable safety law. But 46 U.S.C. 

2302(a) also requires proof that the negligent act endangered the life, limb or property of a person. In the example given above, the party is already charged for operating under the influence and for failing to have navigation lights energized after sunset. However, the case file 

does not contain evidence to show that these alleged violations of safety law endangered the life, limb or property of a person. And, even if there was such proof, the 

Hearing Officer would have two violations based on the 

same failure to comply with a safety law. That may be 

considered a case of multiplicious charging (see the accompanying article), which means that the Hearing Officer may consider the two violations as a single violation 

for purposes of assessing an appropriate penalty. That 

would not be the case if the alleged negligent operations 

violation was based on an act that was independent of 

the already-charged BUI and navigation lights violations. 

Generally, in a case where BUI or another safety law 

violation is alleged, it may be appropriate to also charge 

a negligent operation violation if it is based on an independent act that would support pursuing a civil penalty 

case by itself. Some examples could include: colliding 

with properly moored or anchored vessels; operating 

 

 
Coast Guard Hearing Office Vol : X Newsletter Date: Jan 2011 

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

 

 

erratically in dense traffic causing other boaters to take 

evasive action to avoid collision; operating at a high rate 

of speed in a no wake zone; and allowing children without 

PFDs to bow ride at a high speed, etc. 

As always, careful attention to ensuring that civil penalty 

cases forwarded to the Hearing Office contain good and 

sufficient evidence to support each element of each charge 

cited will assist in the timely and proper notice to parties. 

 

* * * * * * * *

COAST GUARD AUTHORIZATION ACT OF 2010 INCLUDES CHANGES AFFECTING CIVIL PENLATIES. 

Robert Bruce

On October 15, 2010, President Obama signed the Coast Guard 

Authorization Act of 2010, Public Law 111-281, into law. This 

new law contains many provisions on a wide variety of subjects 

related to the Coast Guard. Three of the provisions provide new 

authority to assess civil penalties or increase the amount of the 

civil penalty that may be assessed. 

Section 301 of the Authorization Act amends 33 U.S.C. § 471 

which authorizes the Coast Guard to establish and regulate 

anchorages. Among other things, the maximum civil penalty for 

violating an anchorage regulation is increased from $100 to 

$10,000. This appears to be the first change to the civil penalty 

amount since the $100 maximum penalty was enacted in 1915. 

Clearly, in some circumstances, the old $100 maximum penalty 

was too small to be a serious factor in obtaining compliance with 

anchorage regulations. As a result, in at least one instance, the 

Coast Guard turned to its Ports and Waterways Safety Act authority, which is backed up by a civil penalty of up to $40,000, 

for enforcement of anchorage regulations. See 33 C.F.R. §§ 

109.07 and 110.1a (anchorages included within the Port of New 

York). The new maximum civil penalty for violating anchorage 

regulations should provide a stronger incentive for mariners to 

comply with those regulations. 

Section 302 of the Authorization Act amends 46 U.S.C. 70506, 

part of the Maritime Drug Law Enforcement Act, to add a 

$5,000 civil penalty for simple possession of a controlled substance on a vessel subject to the jurisdiction of the United 

States. Before the enactment of this provision, only criminal 

penalties were available for simple possession of controlled substances. Many of these cases occur in areas of concurrent state 

and federal jurisdiction. Generally, state laws have provisions 

that can adequately deal with infractions of this nature. As a 

result, cases involving simple possession of personal use quantities of controlled substances have routinely been turned over to 

state authorities for prosecution. Some unusual circumstances 

that created a strong federal interest in the case would have 

typically been present to justify bringing such a criminal case in 

federal court. With the new authority to assess civil penalties 

 

 

for simple possession of controlled substances, there is likely 

to be less reluctance to pursue federal action. In fact, as we 

frequently see with boating while intoxicated cases, there may 

often be cases where both the state authorities and the Coast 

Guard will commence actions based on the same incident. 

Although Coast Guard Hearing Officers will consider the results of state actions for the same incident when acting on a 

civil penalty case, they are not bound by state action and 

there is no bar to assessing a Coast Guard civil penalty even 

after an individual has been sentenced by a state court for the 

same violation. 

Finally, Title X of the Authorization Act implements the International Convention on the Control of Harmful AntiFouling Systems on Ships, 2001, and Section 1042 of the Authorization Act creates civil penalties to enforce the new law. 

The maximum penalty for a violation of 33 U.S.C. Chapter 38 

or implementing regulations is $37,500, except that, for a recreational vessel the maximum is $5,000. There is also a civil 

penalty of up to $50,000 for false statements or representations related to these requirements. 

The National Oceanic and Atmospheric Administration’s General Counsel website includes this information on the Harmful Anti-Fouling Systems (―AFS‖) Convention:

―The International Convention on the Control of Harmful 

Anti-Fouling Systems on Ships entered into force on September 17, 2008. Adopted under the auspices of the International 

Maritime Organization on October 5, 2001, the AFS Convention was signed by the United States on December 12, 2002, 

and President Bush transmitted it to the Senate for its advice 

and consent on January 23, 2008. The Senate Foreign Relations Committee reported a proposed resolution of ratification 

with two declarations on July 29, 2008, and the full Senate 

approved the proposed resolution of ratification on September 

26, 2008. The Convention, which NOAA played an important 

role in negotiating and developing, bans the application or use 

of tributyltin (an anti-fouling agent used on the hulls of ships 

to prevent the growth of marine organisms), calls for its removal from existing anti-fouling systems by January 1, 2008, 

and establishes a detailed and science-based framework for 

considering future restrictions on antifouling systems.‖ 

Certain vessels, of at least 400 

gross tons or of at least 24 meters in length, will be required 

to have documentation attesting that their anti-fouling system is not harmful. 

* * * * * * * * 

 
Coast Guard Hearing Office Vol : X Newsletter Date: Jan 2011 

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

 

 

APPLYING COMMON SENSE TO AVOID MULTIPLICIOUS 

CHARGES 

CDR Mark Hammond

Hearing Officers routinely receive cases where the party is 

charged under multiple cites for a single action or incident. 

Black’s Law Dictionary, 9th edition defines ―multiplicity‖ as 

―The improper charging of the same offense in more than one 

count of a single indictment or information.‖ It’s important to 

know that in the Coast Guard’s civil penalty process, the Hearing Officer has wide discretion in deciding what is a fair penalty amount when the same action is charged in two (or more) 

different ways. In cases where it appears the party has been 

charged under different regulatory cites for the same violation, 

the Hearing Officer will typically dismiss one of the charges as 

being multiplicious. 

Here are a few common examples of the types of cases for 

which we might see charges dismissed for being improper or 

multiplicious:

* During the boarding of a 25 net ton Commercial fishing 

vessel engaged in fishing, the boarding team discovers 

that the vessel is not documented as required by 46 CFR 

67.7. The evidence in this case indicates the vessel owner/

operator never documented his vessel. The vessel owner 

is subsequently charged under 46 CFR 67.323 – Operation 

without documentation. However, the owner is also 

charged under 46 CFR 67.325 for operating without a fisheries endorsement, and under 46 CFR 67.313 and 315 for 

failing to have the original Certificate of Documentation 

(COD), on board and for failing to produce the original 

COD on demand. Clearly the violation in this example is 

the vessel was not properly documented as required. 

Common sense tells us that since the vessel has no COD, 

there would be no endorsement, a COD would not be on 

the vessel and the person in command would not be able 

to produce a COD on demand. 

* During an oil transfer from a mobile transfer facility, it is 

discovered that there is no operations manual on site. 

The party is then charged under 33 CFR 154.300 for the 

operations manual not being readily available to the person in charge, and 33 CFR 156.120 for failure to comply 

with the requirements for oil transfer – specifically (t)(2) 

which requires that the person in charge have in their 

possession a copy of the facility’s operations manual. As 

you can see in this case, the party is being charged twice 

for the same act of failing to have an operations manual 

readily available to the person in charge.

 * During an inspection of a HAZMAT container, it is discovered that the container is not properly placarded. Upon 

further inspection, it is also discovered that several individual packages containing HAZMAT within the container 

are not properly labeled. The party in this case is subsequently charged under 49 CFR 172.504 for failing to comply with the general placarding requirements, and 49 

 

 

 

 

 

 

 

 

CFR 172.400 for failing to comply with general labeling 

requirements. Additionally, because there were labeling 

and placarding violations discovered on a container being 

offered for shipment, the charging unit also charged the 

party under 49 CFR 172.2 for failing to comply with the 

general requirements for HAZMAT shipments contained 

in subchapter C. For the alleged violations in this example, the additional charge under 49 CFR 172.2 charge 

would appear multiplicitous since the party is already 

charged with specific placarding and labeling violations 

detailed in charges 1 and 2. 

When choosing a regulatory cite, applicability to the vessel, 

party, etc should be verified. The cite used for a particular 

charge should be supported by the factual elements of the case. 

If there are multiple charges, each charge should be based on 

independent evidence that supports the particular violation 

alleged. There may be cases where exigencies of proof or other 

factors make it prudent to charge a single act or incident in 

more than one way. Still, attention should be given to ensure 

you’re not needlessly ―piling on‖ and charging the party under 

different cites for the same activity. Applying common sense 

when determining how to charge a single act or incident can 

save all of the participants in the civil penalty process from 

having to spend time on multiple charges that really add nothing in terms of establishing the charged party’s culpability or 

that the alleged act violated more than one distinct standard of 

conduct. 

 

* * * * * * * * 

 

K N O T 

(Knowledge Note Or Tip) 

Proof of Knowledge/Notice. In most of 

the cases the Hearing Office decides, 

there is an alleged violation of a statute or regulation of which all persons 

subject to our jurisdiction are deemed 

to have knowledge. This presumed knowledge is referred to as ―constructive notice.‖ Because the applicable 

statutes and regulations are matters of public record, as 

a matter of law, persons are deemed to have knowledge 

of them, whether or not they actually possess such 

knowledge. There are some regulations and orders that 

the Coast Guard enforces which are not considered matters of public record because they are triggered by an 

exercise of judgment or discretion of a Coast Guard officer in a particular situation. When ―constructive notice‖ 

is not available to establish knowledge of the law or another required fact, the Coast Guard must provide evidence of actual knowledge of the law or fact. The best 

evidence of actual knowledge is direct evidence such as 

an admission from the charged party that he or she had 
Coast Guard Hearing Office Vol : X Newsletter Date: Jan 2011 

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

knowledge of the order to be enforced, or a statement 

that the order was physically delivered to the charged 

party in person, either orally or in writing. However, 

circumstantial evidence might also be sufficient to prove 

actual knowledge. Further discussion of the difference 

between direct and circumstantial evidence is beyond 

the scope of this ―KNOT,‖ but if you have questions 

about it in a particular case, you should seek legal advice. 

* * * * * * * *

 

 

 

JUST FOR FUN 

Alicia Scott, YN2 Pamela Conlee, and YN2 Victor Anderson

SCRABBLE GRAMS

Make a word using no less than two letters. Your goal is 

to use all the letters in all the boxes; you can only use 

each of the letters in your tray once. Under each letter 

in your tray is a point value number for that letter. 

Once you have made your word, use the number to add 

up your point value. If you use all the letters, you get an 

additional ten points for the word. Here is a hint. For 

the best score make words found in 33 C.F.R. 95.010. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DECKPLATE RIVETS 

 

 For alleged violations under 46 USC 8103 it is a good 

practice to ensure that the correct citation for the violation is reflected on the Enforcement Summary (ES). The 

evidence must directly support the citation on the ES. 

With respect to violations under 46 USC 8103, citing the 

entire section can be ambiguous and confusing. The case 

package should cite the specific subsection alleged to 

have been violated, such as 46 USC 8103(i). Cases submitted to the Hearing Office without the correct cite will 

typically be returned to the program manager. (see Volume 3. of our Newsletter, "Special Edition" for useful 

information in preparing 8103 violations for referral to 

the CGHO).

 Always check for applicability when selecting an appropriate cite for an alleged violation. Improper cites 

will result in the case being returned to the program 

manger and slow the adjudication process. The following are some common errors encountered by the CGHO: 

(1) using a cite pertaining to a recreational vessel when 

the subject vessel in the case is a commercial fishing vessel; (2) citing for a missing Certificate of Number or temporary certificate on board when the vessel is a Documented vessel; (3) citing for missing safety equipment 

where not required due to vessel length, gross tonnage, 

or route of service; (4) using the "applicability" or 

"definitions" cite as the charged cite; (5) using a cite that 

pertains specifically to a vessel operator when the party 

is charged as the vessel owner.

 For cases involving more than one charge, the Violation details and Factual Elements contained the Enforcement Summary should be specific to each charge. It 

is not helpful to the Hearing Officer if all factual elements are identical (cut and pasted) from other charges.

* * * * * * * * 

 

 

 

 

 

 
Coast Guard Hearing Office Vol : X Newsletter Date: Jan 2011 

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

 

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: 1435 

Number of case files received by the Coast Guard Hearing Office with violation dates in 2010: 1004 

Number of case files received by the Coast Guard Hearing Office in 2010 regardless of violation date: 1420

Number of preliminary assessments issued in 2010: 

1391

Number of final assessments issued in 2010: 956

Number of violation case files returned to the program 

manager for deficiencies in 2010: 145

Number of hearings held in 2010: 12

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