Adjudicate civil penalty cases in support of the Marine Ssfety Mission and Vision, in the Coast Guard’s Marine Safety Performance Plan, regarding 

compliance enforcement, to: ensure the safety of U.S. mariners, passengers on ferries and other vessels, and recreational boaters; protect the 

marine environment; and minimize disruptions to maritime commerce. The assessment of appropriate civil penalties through a fair and informal 

administative process promotes compliance with standards developed to ensure maritime safety, security and environmental protection. 

Newsletter Date 

 July 2012 

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 16 

GREETINGS 

From Robert Bruce 

Chief, Coast Guard Hearing Office 

 HEARING OFFICE NEWS 

The Hearing Office Newsletter is intended to serve 

two purposes. One purpose is to provide information 

about the civil penalty adjudication process, so the 

process is more transparent and easier to understand. 

The other purpose is to improve the civil penalty process by discussing topics that arise frequently in civil 

penalty cases but that seem to be poorly understood. 

In this edition we have an original article concerning 

how compliance incentive programs work with the 

civil penalty process. Compliance incentive programs 

are not under the control or direction of the Hearing 

Office. Once a civil penalty case is referred to the 

Hearing Office, the Hearing Officer will assess the 

case on its merits. Evidence of timely compliance is 

usually a strong mitigating factor in safety equipment 

violation cases. 

Some topics seem to come up again and again, and 

there is little we can say that hasn’t already been 

said. For that reason we are reprinting a couple of 

articles from previous editions of the Newsletter. 

With the summer boating season there is usually an 

uptick in Boating Under the Influence cases. We are 

reprinting an article discussing the basics of Boating 

Under the Influence case preparation. The topic of 

warnings regularly presents itself in all seasons. 

Have a safe and enjoyable summer ! 

These newsletters are posted on our website 

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

website HOMEPORT. 

The Hearing Office is located in Arlington, Virginia, 

but we afford charged parties the opportunity to have 

a hearing at locations all around the country. Hearings that are not held in Arlington are conducted by 

video teleconference (VTC). Most often the VTC hearings are held at Coast Guard District Offices in major 

US cities. Sometimes arrangements are made for a 

VTC Hearing at a Coast Guard Sector or at the 

charged party’s expense. Affording the right to a 

hearing, when a party wants one, is an indispensable 

part of the civil penalty process. We appreciate the 

assistance of Coast Guard personnel who assist us 

with making the arrangements for VTC hearings. 

Articles in this issue: 

RESPONDING TO A COMPLIANCE INCENTIVE PROGRAM OR A CIVIL PENALTY 

CASE—Know the difference...p. 2 

SUMMER BOATING SEASON AND “BOATING 

UNDER THE INFLUENCE” (Reprint)...p. 4 

PROMISE OF A WARNING FROM THE 

BOARDING OFFICER (Reprint)...p. 4 

K.N.O.T....p. 5

DECKPLATE RIVET...p. 5 

JUST FOR FUN...p. 6 

WHAT’S IN A NUMBER?...p. 6 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVI Newsletter Date: July 2012 

2 

Once a case is received by the Hearing Office, the 

case file is examined by a Hearing Officer. If the 

Hearing Officer finds prima facie evidence that the 

alleged violation(s) occurred, the Hearing Officer 

then issues a Preliminary Assessment Letter 

(“PAL”) to the charged party. The PAL notifies the 

charged party of the alleged violation(s) against 

him/her, the maximum civil penalty that may be assessed, and the preliminary penalty amount assessed 

for each violation. The PAL also explains the 

party’s options to respond within 30 days of receipt. 

(See Hearing Office Newsletter article: “The Public in our Process,” Vol: VI, Oct 2009.) In formulating a final assessment for violations found to 

have been proved, Hearing Officers take into consideration, among other things, mitigating factors 

such as timely compliance. (See Hearing Office 

Newsletter article: “Evidence of Compliance,” 

Vol: 10, Jan 2011.) 

It is important, however, for charged parties to realize that compliance incentive programs are separate 

and distinct from the civil penalty process. Once 

civil penalty action has 

been initiated and a party 

receives a PAL from a 

Hearing Officer, the party 

must respond to the Hearing Officer and not back 

to the unit or processing 

center office that originally offered the opportunity to participate in a 

compliance incentive program. If a party fails to 

respond to the Hearing 

Officer’s PAL within 30 

days, a final assessment letter (“FLAN”), will automatically be generated and sent to the party, and the 

preliminary assessed amount will become the final 

civil penalty amount assessed. 

Hearing Officers often receive evidence forwarded 

from the boarding officer’s unit or the processing 

center office that the party submitted after the PAL 

(Continued on page 3) 

RESPONDING TO A COMPLIANCE INCENTIVE PROGRAM OR A CIVIL PENALTY 

CASE—Know the difference 

CDR Mark Hammond 

Coast Guard compliance incentive programs allow 

persons cited for violations of federal boating safety 

regulations the opportunity to avoid a civil penalty 

by correcting the specific violation(s) and showing 

compliance within a prescribed timeframe. While 

the specifics of compliance incentive programs vary 

depending on the Coast Guard unit or office offering the program, the common goal is to promote 

public awareness and improve boating safety by ensuring compliance with applicable federal boating 

safety regulations. 

A compliance incentive program may be offered by 

the boarding officer’s unit, a civil penalty processing office, or both. Typically, persons cited are 

given 30 to 45 days to respond with evidence showing that any alleged violations were corrected in order to avoid further enforcement action. If satisfactory proof of compliance is shown within the timeframe given, the matter is closed. Failure to respond within the prescribed timeframe, however, 

will most likely result in civil penalty action. This 

means your case file will be forwarded to the Hearing Office for adjudication. 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVI Newsletter Date: July 2012 

 3 

ter (PAL), from 

a Hearing Officer notifying you 

of an alleged 

violation against 

you, you must 

respond to the 

Hearing Officer 

in accordance 

with the PAL 

even if you were 

previously sent a 

compliance incentive program 

letter. 

Of course, the one sure-fire way to avoid either of 

the above scenarios is to ensure at the outset that 

your vessel is in compliance with all applicable federal boating safety regulations. 

 * * * * * * * * 

had been mailed and well beyond the compliance 

incentive program deadline. In such cases, the 

Hearing Officer will typically consider the eventual 

compliance as a mitigating factor but will likely not 

give it the same weight as compliance that is 

achieved in a more timely manner. 

Hearing Officers occasionally receive responses in 

which the party claims they had previously submitted evidence of timely compliance to the boarding 

officer’s unit or the processing center office within 

the compliance incentive program deadline. For 

this reason, it is important for unit and 

case processing officials to closely track 

and log compliance 

achieved under a 

compliance incentive 

program, and take 

appropriate action to 

ensure civil penalty 

cases are not initiated 

inadvertently. Generally, in this case, if a party presents proof that evidence of compliance had previously been submitted in accordance with a compliance incentive program, and civil penalty action 

was initiated inadvertently, the Hearing Officer will 

dismiss the case. 

Remember: 

(1) If you are cited for an alleged violation of a 

federal boating safety regulation and you are offered 

the option of complying with the regulation in a 

timely fashion, then, in order to avoid civil penalty 

action, and assuming you do not dispute the alleged 

violation: 

(a) send proof of compliance within the prescribed deadline to avoid further action; and 

(b) keep copies of any documentation you submit. 

(2) If you receive a Preliminary Assessment Let-

(Continued from page 2) 
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Coast Guard Hearing Office Vol: XVI Newsletter Date: July 2012 

4 

either personal observations or a chemical test sufficient to form a basis for a charge that the mariner is 

Boating Under the Influence. 

Boating Under the Influence is a serious violation. 

Mariners have a responsibility to avoid Boating Under the Influence. Boarding teams have a responsibility to properly 

and accurately record the events, 

FSTs, breathalyzer 

readings or refusal 

of breathalyzer testing when alleging 

that a mariner has 

been Boating Under 

the Influence. 

 * * * * * * * * 

The below article first appeared in the Vol: VII, Jan 

2010 Newsletter. The information bears repeating 

and is reprinted here with minor edits. 

PROMISE OF A WARNING FROM THE 

BOARDING OFFICER

YN3 Victor Anderson, YN3 Christopher Brown

The Coast Guard Hearing Office receives calls from 

mariners after they have received our letters making 

preliminary civil penalty (monetary ) assessments 

against them for violations of marine safety regulations. In these calls, mariners often claim that the 

Boarding Officer issued a warning for the violations 

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 

violations if the mariner fixes the discrepancies and 

brings proof of compliance to the local Coast Guard 

unit. 

Although well-intentioned, the Boarding Officer 

cannot foresee what action will ultimately take 

place concerning a noted violation. Generally, once 

(Continued on page 5) 

The below article first appeared in the Vol: I, May 

2008 Newsletter. It is valid, timely and relevant, 

and reprinted here with minor edits. 

SUMMER BOATING SEASON AND 

“BOATING UNDER THE INFLUENCE” 

Danielle Davis 

It is that time of the year when we begin to see a 

rise in the number of alcohol-related boating violations. “Boating Under the Influence” is a violation 

of 46 USC § 2302(c). Coast Guard boarding teams 

may conduct Field Sobriety Tests (FSTs), obtain 

breathalyzer readings, and observe the overall behavior and appearance of a mariner to make a determination whether the mariner is under the influence 

of alcohol or a dangerous drug. Frequently these 

tests are done by local authorities. Anyone operating a vessel while found to be under the influence 

may be charged with this violation and subject to a 

civil penalty. 

Copies of the FST forms with all of the blocks completed in a readable manner and with signatures as 

required, breathalyzer readings obtained by Coast 

Guard and local 

authorities, 

documented observations of behavior and appearance, and a 

narrative of the 

events of the 

boarding help to 

determine and 

support that a 

violation occurred. Additionally, if the 

mariner refuses a 

breathalyzer test, 

the circumstances of the offer and refusal of the test 

should be documented. Regulation 33 CFR § 

95.040 provides that a refusal creates a presumption 

of intoxication. Regulation 33 CFR § 95.030 makes 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVI Newsletter Date: July 2012 

 5 

“oceangoing” ship. A US ship that is engaged in 

international voyages, and US ships with a Certificate Of Inspection for ocean service or coastwise 

service beyond three miles from land are 

“oceangoing” ships. Aside from those vessels, a 

US ship is an “oceangoing” ship if it operates seaward of the outermost boundary of the US territorial sea. Hearing Officers have recently 

dismissed several 

cases alleging a failure to comply with 

the waste management plan requirement because there 

was no evidence that 

the party’s vessel 

was an “oceangoing” 

ship. These cases involved uninspected fishing 

vessels that were boarded within the US territorial 

sea. Although it is likely that these fishing vessels 

sometimes operate at sea outside the US territorial 

sea, unless there is evidence in the case file to 

show that, the requirement cannot be enforced in a 

civil penalty case. If a Boarding Officer is going to 

allege a violation of the waste management plan 

requirement, s/he should be mindful of proving 

that the vessel involved is an “oceangoing” ship. 

 * * * * * * * * 

 

DECKPLATE RIVET

Sometimes the following words appear at 

the end of an Activity Summary Report: 

“Activity conducted using P[ersonal] D[igital] 

A[ssistant].” In such a case, the Hearing Officer 

expects to see, and should see, the PDA-generated 

Boarding Report in the case file. If the PDAgenerated Boarding Report is unavailable, there 

should be an explanation of why it could not be 

included in the case file. The case file will still 

need to contain all of the evidence gathered during 

the boarding that is relevant to the alleged violations. 

 * * * * * * * * 

a violation is noted, the potential for civil penalty 

action exists. There is one exception to this general 

rule, and that is when a written warning is issued in 

accordance with 33 CFR Subpart 1.08. 

Boarding Officers do not issue “verbal” warnings. 

Nor should they make any “promise” that a warning 

will be 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 Subpart 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 Newsletter articles concerning written warnings and mariners who show proof of compliance. 

(See especially Vol: II, Sep 2008, “Written Warning 

v. Civil Penalty,” and Vol IV: 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 “Aggravating/Mitigating Factors.” 

 * * * * * * * * 

K.N.O.T.

(Knowledge Note or Tip) 

WASTE MANAGEMENT PLAN REQUIREMENT 

Certain vessels 40 feet or more in length are required to have a written waste management plan by 

33 CFR § 151.57. The applicability provisions for 

the waste management plan requirement are unusually complex, and, among other things, require 

proof that a vessel is an “oceangoing” ship. The 

definitions of “oceangoing” and “ship” are located 

in 33 CFR § 151.05. A non-US ship is an 

(Continued from page 4) 
Hearing Office is our Name, Maritime Safety and Security is our Aim

Coast Guard Hearing Office Vol: XVI Newsletter Date: July 2012 

6 

JUST FOR FUN by ADMIN staff 

1. Which lighthouse can be found in the channel of San Francisco Bay? It was built in 1852 and was a functional lighthouse until 1906 when an earthquake destroyed it beyond repair. Later the lighthouse tower was rebuilt and served as a 

military prison and later upgraded to a max security prison for 

the federal government. 

A. Alligator Reef 

B. Bird Island 

C. Old Cape Henry 

D. Alcatraz Island 

2. This lighthouse can be found on the old stomping grounds 

of Edward Teach, a.k.a. Blackbeard. This lighthouse is the 

shortest on the Outer Banks because it marks an inlet rather 

than the coast. 

A. Ocracoke Island Light House 

B. Sullivan’s Island 

C. Cape Hatteras 

D. Cape Lookout 

3. In Lake Superior you can find one of the prettiest lighthouses around. This lighthouse was built in 1896 and was the 

location of a murder in the book and movie “Anatomy of a 

Murder.” This lighthouse was known to be haunted, but it is 

said that the ghost has been quiet these days. 

A. Big Bay Point Lighthouse 

B. Bass Harbor 

C. Long Point 

D. Intake Crib 

4. The area of this lighthouse got its name from John Meares. 

He attempted to cross over the Columbia River bar, but he 

missed. Because of intense fog in this location a 1600 pound 

bronze bell was used as a fog signal. But the bell was inadequate due to the pounding surf and dead spots. 

A. Long Point 

B. Cape Lookout 

C. Cape Disappointment Lighthouse 

D. Brier Island 

5. This lighthouse is the tallest in the State of Washington. 

This lighthouse serves both as a harbor light for Port of Westport and a coastal light between Willapa Bay and Destruction 

Island. 

A. Bass Harbor 

B. Grays Harbor Lighthouse 

C. Cape Disappointment Lighthouse 

D. Bird Island 

Information found on www.us-lighthouses.com 

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 June 30, 2012) that provide a “how 

goes it” glimpse into our work: 

 

Number of case files received by the Hearing Office with violation dates in 2008: 947 

Number of case files received by the Hearing Office with violation dates in 2009: 1443 

Number of case files received by the Hearing Office with violation dates in 2010: 1497 

Number of case files received by the Hearing Office with violation dates in 2011: 1610 

 Number of case files received by the Hearing Office with violation dates in 2012: 221 

Number of case files received by the Hearing Office in 2012 regardless of violation date: 583 

Number of preliminary assessments issued in 

2012: 621 

Number of final assessments (FLAP, FLAN, 

FLW, and FLD) issued in 2012: 584 

Number of violation case files returned to the 

program manager for deficiencies in 2012: 76 

 

Number of hearings held in 2012: 8 

* * * * * * * *