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 2010

Volume 7 Coast Guard Hearing Office 

Detachment

“Hearing Office is our Name, 

Maritime Safety and Security is our Aim”

GREETINGS 

From CAPT R. Trabocchi, USCG

Commanding Officer, Coast Guard Hearing Office Detachment

Greetings,

And a Happy New Year to all. 

The Coast Guard Hearing Office Detachment is wrapping up violation cases from 2009. If you have violations from 2009 to be processed for civil penalty action, 

please do not delay in getting them to us. We will soon 

begin to receive violations with a 2010 date and will turn 

our attention to processing and adjudicating them in a 

timely fashion.

In this issue, we address issues that we periodically encounter either due to general misunderstanding or 

because of lack of familiarity with a particular law or 

regulation. We also readdress some items that have 

been previously discussed. 

Finally, we want to stress that the process employed by 

the Coast Guard Hearing Office Detachment is an informal administrative process that is remedial in nature. 

That means the penalties imposed for violations are 

meant to gain compliance with laws and regulations and 

to deter future violations. Hearing Officers review facts 

and evidence and independently determine if a violation 

occurred and if so, whether a penalty is warranted, and 

if so the amount of the penalty. In this issue we discuss 

the responsibility of Hearing Officers to make these determinations and why Coast Guard field personnel 

should not suggest to mariners or facility personnel 

whether a penalty will or will not be imposed for any 

particular violation discovered during a boarding, examination, inspection or investigation.

These newsletters will be posted on our website

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

 

HEARING OFFICE NEWS 

 

To further refine our process for returning case files due 

to deficiencies, the following has been implemented. 

Until now, if a case file contained an error that prevented 

the commencement of penalty action, the entire case file 

was returned to the unit with a memorandum stating the 

reason(s) for its return. If the unit desired to pursue the 

violation(s) for civil penalty action, the unit would take 

corrective action and resubmit the case file to the Hearing 

Office Detachment. The back and forth mailing of the 

case file incurred unnecessary expense and time in those 

instances where the processing official did not need the 

case file to effect corrective action. Such an instance is 

when the corrective action only affects the Enforcement 

Summary (the document prepared by the processing official that summarizes the violations and identifies the 

charged party). 

In the future, when the error that prevents our commencement of civil penalty action affects only the Enforcement Summary or when the file is not needed by the 

processing official to effect corrective action, the memorandum stating the reason for its ―return‖ will be scanned 

and emailed to the unit instead of mailing the memorandum with the case file. If the unit chooses to pursue the 

violation(s) for civil penalty action, the unit may effect 

corrective action and provide us email notification when 

their corrective action is complete. We will print the corrected Enforcement Summary or other corrective action 

taken from the Marine Information and Safety Law Enforcement ((MISLE) database, insert it in the case file 

and proceed with adjudication. If the corrective action 

necessitates that the processing official have the case file 

in hand, the case file will be mailed with the memorandum in accordance with our normal practice. 

* * * * * * * * 

 
Coast Guard Hearing Office Detachment Vol : VII Newsletter Date: Jan 2010

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

BUI AND DOUBLE JEOPARDY 

CDR Mark E. Hammond

Often during boardings involving boating under the influence (BUI), mariners are turned over to local law enforcement authorities and subsequently prosecuted under state law for intoxicated operation of a vessel. Hearing Officers routinely hear from these mariners because 

they have also received a notice of civil penalty action 

from a Coast Guard Hearing Officer for BUI under Title 

46 United States Code (U.S.C.) Section 2302(c). In their 

responses, the mariners claim the civil penalty action 

constitutes ―double jeopardy‖ because they are being 

prosecuted by the state for the same incident. 

The Fifth Amendment of the U. S. Constitution prohibits 

that a person be put twice in ―jeopardy of life and limb‖ 

for the same offense. Double jeopardy is a concept that 

applies to criminal proceedings. Where the conduct violates the laws of the nation and an individual state, a 

person may be ―prosecuted‖ and punished at both the 

national and state level. This is because the laws are 

considered different because they arise from separate 

sovereigns. 

The Coast Guard enforces federal regulations by imposing civil penalties (described in Title 33, Code of Federal 

Regulations, Part 1.07), This process is an informal, administrative process governed by basic due process standards found in administrative law. This process is separate and distinct from state judicial proceedings. Where 

there is an overlap of jurisdiction between federal, state 

and local law enforcement agencies, each agency may 

proceed with enforcement actions within the bounds of 

their jurisdiction and authority. Mariners who receive a 

civil penalty notice for BUI from a Hearing Officer are 

not being "tried" for a "crime" and as such there is no 

jeopardy of life or limb. Additionally the civil penalty 

action arises from violation of federal law separate and 

apart from any state prosecution for the same conduct 

under state law. As such, the Coast Guard civil penalty 

action does not create double jeopardy for the mariner.

Additionally, Hearing Officers often receive responses 

from mariners demanding that the Hearing Officer dismiss the violation and civil penalty action because their 

case was dismissed in state civil court or they were 

found guilty in state civil court and have already paid a 

significant fine. Hearing Officers are not bound by the 

findings of state proceedings in determining whether a 

violation of federal regulations did or did not occur. 

Hearing Officers may however, consider penalties and 

punishment imposed by a state as factors in mitigation. 

* * * * * * * * 

 

FIRE EXTINGUISHER VIOLATIONS 

CDR Evan D. Hudspeth

Not having the proper number of fire extinguishers, or 

having unserviceable fire extinguishers are common violations for both recreational vessels and commercial fishing vessels. Processing officials require detailed information to determine the proper cite to be used when 

charging a party for a fire extinguisher violation. Hearing Officers consider and weigh facts presented to determine if a violation occurred. Therefore, presenting detailed information is necessary to that determination.

46 CFR 25.30-20(a) reflects the hand portable fire extinguisher requirements for motorboats less than 65 feet. 

There is not a separate regulatory cite to reference for 

unserviceable fire extinguishers (unless the fire extinguisher doesn’t have a pressure gauge and was manufactured prior to January 1, 1965..see 46 CFR 25.30-10(g)). 

In some cases, a violation of 46 USC 4102(a) has been 

cited for lack of serviceable fire extinguishers on recreational motorboats, but this cite is only applicable to uninspected vessels, which by definition under 46 USC 

2101 (43) does not include recreational vessels. 

Certain details are needed to determine if a hand portable fire extinguisher is required on a motorboat and if 

so, how many. Fire extinguishers need not be carried on 

motorboats that are less than 26 feet in length, propelled 

by outboard motors, and not carrying passengers if the 

construction of the motorboat ―will not permit the entrapment of explosive or flammable gases or vapors.‖ 

Details concerning the location of the motor and fuel 

tank, as well as whether the fuel tank is fixed or portable are necessary to a violation determination. 46 CFR 

25.30-20 provides a table for determining how many fire 

extinguishers are required. In order to use Table 25.30-

20(a)(1) the length of the vessel and whether the vessel 

has a fixed fire extinguishing system in the vessel machinery space must be known and documented. 

For commercial fishing vessels, the proper cite to use for 

fire extinguisher violations is 46 CFR 28.160. Fishing 

vessels less than 65 feet in length must meet the requirements of 46 CFR 25.30. If the fishing vessel is 65 

feet or greater in length, then Table 28.160 is applied 

instead of 46 CFR 25.30. Table 28.160 provides for space 

requirements, quantity, location, and classification of the 

fire extinguishers. The details gathered as to whether a 

vessel has complied with each of the requirements in 

this table should be clearly documented.

There is not a separate regulatory cite to reference if the 

fire extinguisher on a commercial fishing vessel is 

deemed unserviceable, although a violation of 46 USC 
Coast Guard Hearing Office Detachment Vol : VII Newsletter Date: Jan 2010

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

4502(a)(1) may be appropriate if the fishing vessel is uninspected. 

Note that in addition to setting forth the requirements for 

motorboats as identified above, 46 CFR 25.30 also sets 

forth fire extinguisher requirements for uninspected passenger vessels, motor vessels, and barges. 

* * * * * * * * 

CITATION CHANGES 

CDR Evan D. Hudspeth

This article highlights one of the changes to the United 

States Code that has not yet been made in MISLE. This 

particular change affects 46 USC §12110 which stated 

that ―a documented vessel, other than a vessel with only a 

recreational endorsement, or an unmanned barge operating outside of the territorial waters of the United States, 

may be placed under the command only of a citizen of the 

United States.‖ This requirement now appears at 46 

USC §12131, although in a slightly different format. The 

cite for the penalty for failure to satisfy this requirement 

has also changed. It was 46 USC §12122 and is now 46 

USC §12151. The civil penalty for violation of this law 

remains the same. A person who violates this law is liable for a civil penalty of not more than $10,000 which 

has been adjusted for inflation to $15,000. Each day of a 

continuing violation is a separate violation.

The Hearing Office Detachment will pen the new cites as 

necessary until MISLE is updated.

* * * * * * * * 

MARINE CASUALTY REPORTING 

CDR Mark E. Hammond

This article briefly describes the reporting requirements 

for marine casualties involving commercial vessels and 

discusses the important elements of violations of the reporting requirements. 

What is a marine casualty? A marine casualty is defined 

in Title 46 Code of Federal Regulations (CFR), Part 4.03-

1. Essentially it is casualty or accident involving a vessel 

(other than a public vessel), that occurs upon the navigable waters of the United States, its territories or possessions. 46 CFR 4.03-1(b) indicates the term ―marine casualty‖ applies to events caused by or involving a vessel, 

and it goes on to list specific occurrences or incidents that 

constitute a marine casualty. Some examples include loss 

of life, collisions, groundings, loss of propulsion, and incidents involving significant harm to the environment.

Reportable Marine Casualties

46 CFR 4.05-1 contains the requirement for immediate 

notice to the Coast Guard of certain marine casualties 

involving vessels. Paragraph (a) of this subpart states: 

―Immediately after addressing the resultant safety 

concerns, the owner, agent, master, operator, or persons 

in charge, shall notify the nearest Sector Office, Marine 

Inspection Office, or Coast Guard Group Office whenever a vessel is involved in a marine casualty consisting 

in...‖ and then it goes on to list the specific casualties 

for which an immediate notice is required.

Often mariners violate the immediate notice requirement but just as often there are legitimate reasons for a 

delay in reporting a marine casualty. It is necessary to 

know and document the facts and circumstances surrounding what at first might appear as a failure to provide immediate notification. Details that should be 

known and analyzed might include the type of casualty 

and why pursuant to regulation it qualifies as a marine 

casualty requiring reporting, the date and time of occurrence, and how it was discovered. If there is a substantial delay in notification, it would be important to 

know and document when the party was aware of the 

casualty, and how the party had the opportunity to 

make timely notification but failed to do so. Was there 

a reason given for the delay or failure to provide notification altogether? For cases of untimely notifications, 

careful consideration should be given to any actions 

that were required of the party to address any safety 

concerns as a result of the casualty. And in cases of 

lack of any reporting, perhaps what first appeared as a 

marine casualty requiring reporting was instead some 

event that did not require reporting. Only after analyzing the details can a fair assessment be made as to 

whether there was failure to immediately report a marine casualty.

Written Notification Requirements

In addition to the immediate notice requirement above, 

a written report is required. According the 46 CFR 4.05-

10(a) the owner, agent, master, operator, or person in 

charge, shall within five days, file a written report of 

any marine casualty required to be reported under 4.05-

1. The written report must be submitted on Form CG2692 (Report of Marine Accident Injury, or Death). It is 

important to note that in accordance with 4.05-10(b), if 

the 2692 is filed without delay after a marine casualty, 

then it serves to satisfy the immediate notice required 

by subpart 4.05-1 discussed above. 

New language was added to the regulations in 2005 to 

include ―any occurrence involving a vessel that involves 

significant harm to the environment‖ as a reportable 

marine casualty which requires the submission of a 

2692. 46 CFR 4.03-65 defines ―Significant harm to the 

environment‖, and includes the following: a of discharge 

of oil into the navigable waters of the United States as 
Coast Guard Hearing Office Detachment Vol : VII Newsletter Date: Jan 2010

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

set forth in 40 CFR 110.3 – which causes a film, sheen, 

or discoloration of the surface of the water and a discharge of a hazardous substance in quantities equal to or 

exceeding in any 24 hour period, the reportable quantity 

determined in 40 CFR 117.

It should also be noted that if a marine casualty exclusively involves an occurrence involving significant harm 

to the environment, a report made pursuant to 33 CFR 

153.203, 40 CFR 117.21, or 40 CFR 302.6 satisfies the 

immediate notification requirement of 46 CFR 4.05-1. 

For example, if a commercial tug operator experiences a 

discharge of oil from his vessel and he/she makes an immediate notification to the National Response Center in 

accordance with 33 CFR 153.203, the immediate notice 

requirement of 46 CFR 4.05-1 is satisfied. A written report is still necessary.

Reporting exclusion

Recreational vessels are excluded from the requirements of 46 CFR 4.05, and fall under the reporting requirements of 33 CFR 173.51.

* * * * * * * * 

PROMISE OF A WARNING FROM THE BOARDING 

OFFICER 

YN3 Victor A. Anderson, YN3 Christopher J. Brown

The Coast Guard Hearing Office Detachment 

receives calls from mariners after they have received our letter that we have made a preliminary civil 

penalty (monetary) assessment against them for a violation. In these calls, mariners often claim that the boarding officer issued a warning for the violation and advised 

that no civil penalty would be assessed. Other calls concern the boarding officer’s promise that a warning only 

will be issued concerning the violation if the mariner 

fixes the discrepancies and brings proof of compliance to 

the local Coast Guard unit. 

While well-intentioned, the boarding officer cannot 

forsee what action will ultimately take place concerning 

a noted violation. Generally, once a violation is noted 

the potential for civil penalty action exists. There is one 

exception to this and that is when a written warning is 

issued in accordance with 33 CFR 1.08. 

Boarding officers do not issue ―verbal‖ warnings. Nor 

should they make any ―promise‖ of a warning being issued at a later time or in lieu of civil penalty action. 

Hearing Officers do not automatically dismiss violations 

or issue a warning in every case where there is proof of 

compliance. If a written warning is issued in accordance 

with 33 CFR 1.08, then it should be documented as part 

of the boarding. This is the only type of warning that 

can be issued by the boarding officer. Please refer to our 

articles concerning written warnings and mariners who 

show proof of compliance. See our newsletters, VOL: 2 

issued in SEP 2008, ―Written Warning VS. Civil Penalty‖, and VOL: 4 issued in APR 2009, ―Compliance‖. 

Processing officials may recommend to the Hearing Officer that a warning be issued for a violation included in a 

civil penalty case. This should be clearly reflected on the 

Enforcement Summary and include the rationale and / 

or support for the recommendation under the Aggravating/Mitigating Factors. 

* * * * * * * * 

THE LETTER OF WARNING FROM THE HEARING 

OFFICER 

Alicia Scott

The Coast Guard Hearing Office Detachment also receives many calls from field units advising us that a 

mariner has contacted them because the mariner received notice of civil penalty action from a Hearing Officer. 

Field units and personnel are reminded that if a mariner 

has received a letter from a Hearing Officer the party 

should respond in writing to the Hearing Officer. If the 

party has questions about the process, they can be advised to contact the Hearing Office Detachment at 202-

493-6870 and the Administrative Support Staff will assist them with questions they have regarding the civil 

penalty letter and how to respond. Personnel can also 

refer the mariner to our website www.uscg.mil/legal/

cgho. The website offers information as to options available to the party and how to respond to the Preliminary 

Assessment Letter (PAL) . There is also guidance regarding the conduct of hearings and where to send evidence in defense, extenuation and mitigation. Our website also offers important information on how to make a 

payment should they choose to pay their penalty in full 

or set up a payment plan. The website offers some background information about our mission.

* * * * * * * * 

K N O T 

(Knowledge Note Or Tip) 

When conducting a vessel safety inspection, facility inspection, response to a 

spill, or any other type of examination or 

investigation and a violation of a law or regulation is 

discovered, remember that noting the violation is not 

enough. If the violation is processed for civil penalty, 

then the information and evidence gathered must be sufficient to convince a Hearing Officer that there is a 

prima facie case of a violation in order for the Hearing 

Officer to proceed with a civil penalty action.
Coast Guard Hearing Office Detachment Vol : VII Newsletter Date: Jan 2010

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

A prima facie case presents to the Hearing Officer some 

evidence in support of each of the elements of a violation. 

It should be good and sufficient evidence to find the violation occurred as alleged if it is not rebutted or contradicted by other evidence. 

Remember a simple statement that a violation of a certain regulation occurred is not evidence. Conclusory 

statements are not evidence. A statement that a person 

acted negligently in the operation of a vessel is not evidence. In such a case it is important that witness statements explain how the person acted negligently. In the 

case of the lack of safety equipment, a statement that 

the vessel is required to have a certain number of the 

item and only had a certain number on board helps to 

understand why a violation was found. Or in the case of 

an item being expired such as visual distress signals, a 

statement that the item was expired because the expiration date on the item is a certain date is helpful. 

These details are important not only to a Hearing Officer 

reviewing a case file for civil penalty action but also to 

the mariner who should understand why a violation has 

been alleged. Reflecting the details helps the mariner 

exercise their meaningful opportunity to comment on the 

evidence and that is a due process right afforded to every 

mariner who is subject to the civil penalty process.

* * * * * * * * 

DECKPLATE RIVETS 

For visual distress signal (VDS) violations involving 

recreational vessels, the applicable regulation is dependent on the nature of the violation. 

For missing VDS, the applicable cite is 

33 CFR 175.110. If the vessel has VDS 

on board but they are expired, the 

proper cite is 33 CFR 175.125, under 

"serviceability". To determine if an expired VDS violation exists, the expiration date of the 

vessel’s VDS should be known and documented. 

 

When processing violations under 46 U.S.C. 8103(b) 

and (i), careful attention should be given to the specific fishing activity involved. 8103(b)(1) and (i) do not 

apply to fishing vessels fishing exclusively for highly migratory species as defined in section 3 of the MagnusonStevens Fishery Conservation and Management Act (16 

U.S.C. 1802). Highly migratory species include: tuna 

species, marlin, oceanic sharks, sailfishes, and swordfishes. Also included are "dorado", a.k.a. dolphinfish 

and mahi-mahi. 

After all the hard work in putting together a violation case file for the Hearing Officer and the Party, 

make sure to STAPLE the Party’s copy so the individual 

pages are not lost or misplaced in the process.

When sending a violation case file to the Hearing 

Officer, please make sure to label the case file on the 

RIGHT side of the file with the Enforcement Activity 

Number. This is the number for the administrative civil 

penalty action and NOT the boarding activity number.

 Example: 

 

* * * * * * * * 

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 metrics that provide a glimpse into ―how it 

goes‖ at the Coast Guard Hearing Office Detachment:

Number of case files received by the Coast Guard Hearing Office with violation dates in 2007: 1,448

Number of case files received by the Coast Guard Hearing Office with violation dates in 2008: 938

Number of case files received by the Coast Guard Hearing Office with violation dates in 2009: 1,044

Number of case files received by the Coast Guard Hearing Office Oct 2009—Dec 2009 regardless of violation 

date: 435

Number of preliminary assessments issued Oct 2009—

Dec 2009: 399

Number of final assessments issued Oct 2009—Dec 

2009: 254

Number of violation case files returned to the 

program manager for deficiencies Oct 2009—

Dec 2009: 11

Number of hearings held Oct 2009—Dec 2009: 4

* * * * * * * *