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, vessel safety, and security at facilities, ports and waterways. 

Newsletter Date 

APRIL 2009 

Volume 4 

Coast Guard Hearing Office

“Hearing Office is our Name, 

Maritime Safety and Security is our Aim” 

GREETINGS 

From CAPT R. Trabocchi, USCG 

Commanding Officer, Coast Guard Hearing Office 

Happy Spring to all, 

For most of us, spring brings increased activity on our 

waterways and in our ports. The Coast Guard Hearing 

Office sees an increase in workload as Coast Guard field 

personnel refer safety, security, pollution and other vessel 

and facility violations for civil penalty action. 

Although our workload increases, our careful consideration of each document and piece of evidence presented in 

the case file is not diminished. Diligence and attention to 

detail during every boarding, investigation, or inspection 

are necessary to the successful adjudication of violations 

referred for civil penalty action. The information, data, 

and materials collected during a boarding, investigation, 

or inspection are relied upon by the Hearing Officer in 

making the proper assessments during the process. 

Everyone involved in the civil penalty process plays an 

important role to ensure that violations referred for civil 

penalty action are based upon information, data or materials that are complete, properly prepared, and put together in a case file in an orderly, logical, and legible 

manner. All documents and evidence are reviewed to determine if there is sufficient evidence to find a violation 

more likely than not did occur. All aggravating, mitigating, and extenuating factors are considered during the 

formulation of a penalty. Due process is afforded to every 

party during the process and all final penalty assessments are centered around the goal of achieving compliance and deterring future violations in the maritime 

arena. 

These newsletters will be posted on our website 

www.uscg.mil/legal/cgho . 

 

 

HEARING OFFICE NEWS 

The Hearing Office has been busy with a 

number of violation case files received at 

year end. Please do not delay mailing any case files with 

violations that occurred in 2008 to the Coast Guard Hearing Office. We will soon be concentrating all of our efforts 

on case files with violations that occur in 2009. 

We conduct civil penalty hearings by video-teleconference 

between our location in Arlington, Virginia and the Coast 

Guard District or Sector with video-teleconference capability nearest to the charged party. So in the future, you 

may be hearing from our Administrative Support Staff 

who handles all the coordination and logistics for these 

hearings. 

In January 2009 some of you may have experienced a delay in contacting us or hearing from us. This was due to 

renovations causing us to relocate temporarily to one big 

room with limited capability. We lost an office but gained 

freshly painted walls, new carpet and a new front door! 

This summer will see the transfer of our two current 

Hearing Officers. The two incoming Hearing Officers 

bring a wealth of field experience. We look forward to 

them coming aboard. 

 * * * * * * * 

HEARING OFFICERS

Danielle Davis 

Hearing Officers primarily “hear you” through the written word. Whether it is the Coast Guard unit forwarding 

a violation case to the Coast Guard Hearing Officer or a 

party responding to an assessment letter, the Hearing 

Officer must be able to read and understand or, in other 

words, “hear” what is being said. If the Hearing Officer 

cannot “hear” what is being said, the message being conveyed fails. The result is that the case may be dismissed, 

or the party’s response doesn’t achieve the party’s desired 

outcome. There are a couple of things that you can do 
Coast Guard Hearing Office Vol : IV Newsletter Date: Apr 2009 

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

to prevent the Hearing Officer from failing to “hear” the 

message being conveyed: 

1. Use of Acronyms: 

When providing a narrative on the Enforcement Summary or Activity Summary Report please use plain language and eliminate or limit the use of acronyms. The 

party, who may not have any affiliation with the military, may have difficulty understanding what it is you 

are trying to say. Although acronyms are prevalent in 

the military community, many people outside the military find them difficult to decipher. Acronyms are used 

to shorten words, but using them may get you shortchanged. You have to be precise and detailed in your 

narrative when explaining the details of a specific violation. Both the Hearing Officer and the party must be 

able to know what you are trying to convey and be able 

to understand it. Neither the Hearing Officer nor the 

party should be confused by acronyms (either official or 

unofficial), so it’s best to limit or eliminate their usage 

entirely when writing the narrative. If you do use them, 

ensure that the acronym is fully spelled out and defined 

before using it. 

2. Consistency 

Please be consistent when referring to the party 

throughout the case file. The party’s name should be the 

same on all relevant evidence. An example of this is if 

the party’s name is United Railroad Services on the witness statements, the party should not be referred to as 

United Railroad, Inc. in the Enforcement Summary’s 

Narrative Overview. The charged party name on the 

Enforcement Summary must be the same party as identified in the evidence supporting the violations. Similarly, in declined Notice of Violation cases, the party 

name on the Enforcement Summary should be the same 

party name as reflected on the Notice of Violation. If 

they must be different, the case file should include an 

explanation of why they are different. If the name is not 

consistent throughout the case file, the file will be returned for correction. In order to determine if a violation 

has occurred, the Paralegal Specialist and Hearing Officer must be certain that the party being charged is the 

correct party as supported by the evidence. Always ensure the party names on the Enforcement Summary, 

Activity Summary Report, Boarding Report CG-4100 

and evidence are the same or include an explanation of 

why they are not the same. 

 * * * * * * * 

 

KNOT 

The Hearing Office receives many enforcement activities 

(cases) that cannot be adjudicated. This is because one 

or more deficiencies relating to one or more violations 

are identified upon receipt. More often than not, these 

deficiencies can be avoided with a little knowledge and 

attention to detail. In each newsletter publication we 

will include a KNOT corner. No, not the kind you tie but 

rather a Knowledge Note Or Tip. Be sure to watch for 

this corner. You may see the same subject addressed 

more than once...it will be because our first KNOT on 

the subject failed! 

 

“CAPACITY IN WHICH CHARGED” 

BLOCK ON THE ENFORCEMENT SUMMARY 

Remember that not everyone on a vessel 

can be charged with a violation. Certain violations can 

only be charged to certain persons. That requires knowledge of the “applicability” language in the statute or 

regulation. You must know if the law or regulation applies to the person you intend to charge with the violation. For instance, only the “operator” of a vessel can be 

charged with boating under the influence. Other laws or 

regulations may apply to everyone such as the regulation prohibiting the draining of oil into the bilges of a 

vessel. It states “no one” may do the prohibited act. Still 

other laws or regulations may apply to two or three persons such as operator, master or person-in-charge. 

The question to ask is what is the “capacity of party” 

(COP) being charged and does the law or regulation violated apply to that “capacity.” You can think about 

“capacity” as the role of the person such as operator or 

owner. A regulation may apply only to the vessel master 

meaning that the vessel owner cannot be charged with 

its violation. Similarly, a regulation may only apply to a 

facility owner meaning that the facility operator cannot 

be charged with violation of that regulation. 

 

If you identify a violation of a regulation, you must 

identify what capacity can be held responsible under 

the regulation. Ensure you correctly identify the party 

and the COP (owner, operator, master, person-incharge, etc) in the boarding report, investigation or inspection report. Processing officials must be diligent to 

ensure that the Enforcement Summary reflects that the 

charged party’s “capacity” is one that can be held responsible under the cited law or regulation. 

 The KNOT is know your COP. 

 * * * * * * * 

 

COMPLIANCE 

Alicia Scott and YN3 Christopher Brown 

The civil penalty process at the Coast Guard Hearing 
Coast Guard Hearing Office Vol : IV Newsletter Date: Apr 2009 

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

Office is remedial in nature, or in other words, the process is meant to “remedy” parties’ noncompliance with 

laws and regulations. The goals of our process are compliance and deterrence. 

Since compliance is a goal, it is necessary that when a 

party provides proof of compliance after receiving a warning or violation that the compliance is immediately 

documented. Often a party, upon learning that he or she 

is not in compliance with a law or regulation, will remedy 

the noncompliance immediately. The party generally 

wants to tell the Coast Guard that he or she has remedied 

the noncompliance and proceeds to a local Coast Guard 

unit to do that. The party may show new visual distress 

signals or vessel numbers newly affixed to his or her vessel to a USCG member and receive a “well done.” But the 

USCG member must do much more. That USCG member 

should enter the compliance into the boarding activity in 

MISLE or if unable to do so, notify the unit that conducted the boarding so that the unit can enter the compliance in MISLE. Also, if the violation has been forwarded 

to a processing official for civil penalty action, the processing official should be notified. The processing official 

can then take appropriate action at his or her level, or if 

the violation has already been referred to the Coast 

Guard Hearing Office, the processing official should then 

notify the Coast Guard Hearing Office of the compliance. 

If the party has shown compliance before the violation 

has been sent to the Coast Guard Hearing Office and no

further civil penalty action is desired, then there is no 

reason to refer that violation to the Coast Guard Hearing 

Office. Often, after a party has shown compliance, the 

unit or processing official refers the violation to the Coast 

Guard Hearing Office with a recommended penalty 

amount of $0. This conveys to the Coast Guard Hearing 

Office that no civil penalty action is desirable and causes 

us to wonder why the violation was referred to us. If a 

unit or processing official desires that the Coast Guard 

Hearing Office consider a “Warning” in such a case, then 

the recommended penalty amount should reflect 

“Warning.” In such a case, it would be helpful to include 

an explanation as to why a warning is being recommended after the party has shown proof of compliance. 

 

 

 

 * * * * * * * 

 

STANDARDS AND PROCESSES 

The Coast Guard Hearing Office is a unit that handles a 

lot of paper neatly packaged in hundreds of violation case 

files. It is also a unit that must accord fairness to both 

Coast Guard field personnel that work to enforce 

maritime laws and regulations, and to the members of 

the maritime public subject to civil penalty action. One 

critical and very important pillar to providing this fairness is timeliness. Often, that means establishing time 

standards for processing steps so that any given violation case file continues to move through the process efficiently and without unnecessary stagnation. 

To this end, the Coast Guard Hearing Office requires that files returned to the program manager for correction be returned 

to the Coast Guard Hearing Office within 

20 days. Requests made to a unit for rebuttal comments to a party’s response or appeal comments to a 

party’s appeal letter require a response to the Coast 

Guard Hearing Office within 30 days. “Within” means 

physically received by the Coast Guard Hearing Office 

no later than the number of days specified. 

Additionally, units have 4 days to respond to a request 

to transfer control of an enforcement activity in MISLE 

to the Coast Guard Hearing Office. Units have 15 days 

to respond to a request for a new mailing address for a 

party because the address in MISLE resulted in a failed 

delivery. 

The time standards above may be shortened or lengthened by the Coast Guard Hearing Office for reasons not 

obvious to the reader but necessary for the appropriate 

handling of the violation case file. Extensions to any of 

the above time standards may be requested. 

A word about rebuttal and appeal comments. The 

Hearing Officer will cause a request for rebuttal or appeal comments to be sent directly to the Executive Officer of the unit that initiated the violation for civil penalty action. The unit’s response is required to be in 

Coast Guard memorandum format (vice email) and forwarded to the Coast Guard Hearing Office. In all but 

dismissed cases, a copy of the response is provided to 

the party so it is important that the response answer 

any points raised by the party or the Hearing Officer, 

and that it be professional in tone and content. 

Units and processing officials are reminded that the 

Coast Guard Hearing Office may determine that a violation case file was not processed timely by a unit or 

processing official and the lack of timeliness has affected the ability to fairly adjudicate the case. While 

there are acceptable reasons for delaying the timely 

referral of a violation for civil penalty action, those reasons are few once the boarding, inspection or investigation is complete. Units and processing officials are encouraged to monitor enforcement actions and if wanting 
Coast Guard Hearing Office Vol : IV Newsletter Date: Apr 2009 

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

to refer violations for civil penalty action, that the violation case files are prepared and forwarded without delay. 

* * * * * * * 

FACTUAL ELEMENTS AND DUE PROCESS 

Lane Mc Clelland 

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 

was not followed. 

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: 
Coast Guard Hearing Office Vol : IV Newsletter Date: Apr 2009 

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

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 companyspecific, 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. 

 * * * * * * * 

JUST FOR FUN

YN3 Victor Anderson 

Many of us in the Coast Guard have heard the 

term “Bravo Zulu” before. Whether it was at 

recruit basic training, the Coast Guard Academy, during 

rescue operations, or just simply after spending all day 

chasing rust and wiping down a salty bulkhead, everyone can recall those famous words by the BM1 in charge, 

“Bravo Zulu” for “Well Done”. We all (hopefully!) have 

heard the term several times throughout our careers. 

Some may think and wonder, who, when and where, was 

this term first introduced to the maritime community. 

Unlike many catchy phrases today that come from 

MTV or some sort of music video, some say the term 

“Bravo Zulu” was used by the Royal Navy long ago. Legend has it that “Bravo Zulu” was once used as a flag signal to “issue an extra tot of rum to the crew.” Now, that 

would be a Morale Day! Sadly, the legend is not real 

because the term did not exist that long ago. It was first 

introduced as a naval signal in 1949 from the Allied Signal Book. Before the “B Z” was known as “Bravo Zulu”, 

it was known as “Baker Zebra.” It was not until the 

birth of the International Civil Aviation Organization 

when the aviators developed a radio alphabet for international aviation use. It was then that “Baker Zebra” 

became known as “Bravo Zulu”. So if there is one thing 

that we can say that aviators and sailors have in common it would be “Bravo Zulu.” 

 * * * * * * * 
Coast Guard Hearing Office Vol : IV Newsletter Date: Apr 2009 

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

DECKPLATE RIVETS 

+We have a clarification to make regarding our past 

articles on entering party names and 

addresses into MISLE. When entering 

the party name and address into the 

party details tab of MISLE, we request 

that this information is entered in all 

upper case letters. We also request that 

the first and last name be entered in the proper order. 

Letters generated by MISLE automatically pull the 

party name and address from the party details tab. If 

the party name and address is not done correctly, the 

letter has a good chance of not being delivered by the 

post office. When using the party name and address in 

documentation in MISLE, it is appropriate to use upper 

and lower case letters. 

+Don’t forget the all important e-signature!! See our 

Newsletter, Vol II, September 2008, page 3. 

+Beware of the PII (personally identifiable information), SSI (sensitive security information), FOUO (for 

official use only) information, and LES (law enforcement 

sensitive) information that finds its way into a violation 

case file. Remember that inclusion of such information 

is often not “evidence” necessary to support an alleged 

violation. If it is not necessary, it may be omitted from 

the case file. But if you do include such information in a 

violation case file, know the policies concerning the public release of the information and comply with them to 

ensure that the civil penalty process may proceed without delay. Failure to comply will cause the violation case 

file to be returned for corrective action. 

Why? Because the charged party gets a copy of the violation case file and that means all information contained 

within the file will be released to the party. If you include information that requires authorization from the 

originator or other authority before public release, the 

violation case file must contain evidence that the information has received proper authorization for release. 

You should consult program managers, message traffic, 

and applicable manuals for instruction on handling 

these types of information: 

SSI is related to maritime security activities such as security plans, maritime security directives and certain 

NVICs. It also includes information obtained or developed in the conduct of transportation security activities. 

PII is information about an individual that can be used 

to distinguish or trace an individual’s identity such as 

social security number, name, date and place of birth, 

biometric record data and so on. 

 

FOUO is unclassified information of a sensitive nature 

and which the unauthorized disclosure could adversely 

affect a person’s welfare or privacy, conduct of a federal 

program, or operations essential to the national interest. 

Generally release of this material requires authorization 

from the originator. 

LES includes materials that reveal law enforcement investigative methods or policies/procedures, reveal official 

law enforcement or regulatory functions, or reveal sensitive Coast Guard operations. 

 * * * * * * * 

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. 

The Coast Guard Hearing Office has some business metrics for you to consider. We hope to periodically provide 

a glimpse into our business through these metrics: 

Number of case files received by the Coast Guard Hearing Office with violation dates in 2007: 1,442 

Number of case files received by the Coast Guard Hearing Office with violation dates in 2008: 808 

Number of case files received by the Coast Guard Hearing Office Jan 2009—Mar 2009 regardless of violation 

date: 250 

Number of preliminary assessments issued Jan 2009—

Mar 2009: 409 

Number of final assessments issued Jan 2009—Mar 

2009: 343 

Number of violation case files returned to the program 

manager for deficiencies Jan 2009—Mar 2009: 53 

Number of hearings held Jan 2009—Mar 2009: 10