FACTUAL ELEMENTS AND DUE PROCESS 

Written by Lane McClelland

We've all heard the term “due process,” but what does it really 

mean? Literally, it means “the process that is due.” The phrase 

comes from the Bill of Rights of the U.S. Constitution. The Fifth 

Amendment is well known to give a criminal suspect the right to 

remain silent, but it also says that no person may be deprived of life, 

liberty, or property, without due process of law. In other words, a 

person can't be executed or imprisoned or fined without a trial of 

some sort. When a civil penalty is assessed, we are depriving a 

person of property (money), so we must first follow the process that 

is due. The specifics of the process are found in 33 CFR 1.07. Those 

specific requirements are intended to ensure that the party receives 

notice of what they are accused of and the evidence against them, 

and the opportunity to respond to that accusation and evidence. 

To ensure that the party has notice of what they are accused of, a 

very important part of the case file is Factual Elements. This is 

where the specific allegation against the party is to be stated. In a 

case where a person is charged with one or more simple violations 

(e.g. equipment requirements, boating under the influence), Factual 

Elements are simply stated and everyone knows what the party is 

accused of. However, when more complex or multipart regulations 

are violated, or a course of conduct constitutes the violation, Factual 

Elements require more thought.

A common example where this comes into play is 33 CFR 156.120, 

Requirements for Transfer pertaining to transfers of oil and other 

regulated bulk liquids. Section 156.120 has thirty-one subsections 

from a to ee, some of which are further subdivided. The citation in 
MISLE is simply 33 CFR 156.120. The Factual Elements must 

clearly describe what was violated in that regulation, ideally the 

specific subsection or subsections alleged to have been violated. 

There are many other sections in the Pollution Prevention 

Regulations, MTSA Regulations, Safety Management Regulations, to 

name just a few categories, that state more than one requirement. 

When a regulation containing more than one requirement is cited, it 

is essential that the Factual Elements make clear specifically what 

was done wrong and which part of the regulation 

Another example where Factual Elements require special attention 

arises when a violation occurs in the course of a lengthy scenario. 

Consider the situation of a cruise terminal where a group of 

passengers arrived late for the sailing of a cruise ship. The 

passengers’ baggage was screened through x-ray machines in the 

terminal, but the passengers were never screened ashore. They were 

escorted aboard the vessel, where they were screened by wand. The 

Factual Elements should give the regulation violated, 33 CFR 

105.290, and a succinct statement of what was done wrong. Simply 

telling the whole story under Factual Elements does not serve the 

purpose of providing notice of what, specifically, the party is accused 

of. Simply state what they violated and how they violated it. Any 

lengthy narrative that may be necessary to convey the relevant 

circumstances of the violation may be placed in the narrative 

overview of the activity.

Similarly, it is insufficient for Factual Elements to simply say, “See 

enclosed statements.” It is also insufficient to say, under a citation of 

33 CFR 96.230 (Failure to establish and implement Safety 

Management System), "The validity and/or implementation of the 

vessel's SMS is in question based on numerous deficiencies issued 

during a routine Port State Control Boarding of the vessel." Factual 

Elements should make clear what is alleged to have been wrong that 

is a violation of the cited regulation, i.e. what conditions were found 
that showed the Safety Management System was not really 

implemented.

While the typical recreational boat violation does not present much 

of challenge in formulating Factual Elements, the task should not be 

done mindlessly. Most of the citations used for recreational boat 

violations are in MISLE with text listing the generic elements of the 

offense. When Factual Elements are added for a specific case, they 

should not simply repeat the generic text.

For example, under Factual Elements for 33 USC § 2033(b) (Inland 

Navigation Rule 33(b)), “Failure to have some means of making an 

efficient sound signal for vessel less than 12 meters in length,” the 

following text automatically appears:

ACT: 1. Must be a vessel LESS THAN 12 METERS in length

2. not carrying a sound producing device.

For the above, when preparing a case involving a 22-ft. vessel, that 

text should not be repeated. Instead, the following is appropriate:

Vessel is 22 ft. 

No SPD aboard.

Similarly, under Factual Elements for 33 CFR 175.15(a), “No person 

may use a recreational vessel unless at least one Type I, II, or III 

PFD is on board for each person,” the following text automatically 

appears:

ACT: 1. A recreational vessel.

2. Vessel is used without one PFD (may be Type I, II, or III) for 

EACH person onboard. EXCEPTION: vessel is one of the following: a 

foreign boat temporarily using U.S. waters; a military or public boat 

of the U.S.; a boat owned by a State and used principally for 

governmental purposes; a lifeboat; a seaplane on the water.
For the above, when preparing a case involving 4 POB and no PFDs, 

rather than repeating the above generic language, text such as the 

following should be filled in:

1. Recreational vessel, 4 POB.

2. No PFDs aboard.

In the same manner, equipment failures should be described in 

detail in the Factual Elements. For instance, don’t say “Fire 

extinguisher was inoperable.” Rather, describe how the fire 

extinguisher was inoperable. Don’t say, “Visual distress signals 

expired.” Rather, state the number of the visual distress signals and 

expiration month/year stamped on the visual distress signals. 

Always describe how the personal flotation device was unserviceable. 

For instance, state the length of the tear in the fabric or describe 

how much of the buoyancy material was deteriorated or missing. 

Describe how the vessel’s numbers were improperly displayed rather 

than simply stating “Improper display of vessel numbers.”

For those enforcing MTSA regulations, the Factual Elements should 

describe the actual offense under the cited regulation. As in all cases, 

the Factual Elements must be supported by evidence of each element 

of the offense. For example, 33 CFR 104.220, “Company or vessel 

personnel with security duties,” specifies a number of subjects of 

which these personnel must have knowledge. Many of the subjects 

are vessel-specific or company-specific, such as “(g) Knowledge of 

emergency procedures and contingency plans,” and “(k) Relevant 

provisions of the Vessel Security Plan (VSP).” Violations of these 

types of knowledge requirements are typically discovered during an 

inspection when facility or vessel personnel are asked questions and 

they fail to give the right answers. In such cases, the Factual 

Elements must state or describe the specific security plan 

provision(s) not known by the personnel and how the personnel 

showed they did not know the provision(s). The evidence should 

include either a copy of the provision, a restatement of the provision, 

or copy of the relevant VSP page(s), sufficiently identified. 33 CFR 

105.210 works the same way for facilities. Other sections of the 
MTSA regulations work this way too—where the violation relates to 

a security plan provision, you must specify the VSP or FSP 

provision, and provide evidence of it.

To sum up: Factual Elements should be a succinct statement of what 

the party has done wrong, so as to focus both the Hearing Officer 

and the party on the specific regulation allegedly violated and what 

the party did that violated it. 

From the Factual Elements, the Hearing Officer should know what 

the field was thinking that caused them to believe a violation 

occurred, and the party should know what it is they allegedly did not 

do or did wrongly so they can appropriately respond in defense, 

mitigation or extenuation.