We 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 

SEPTEMBER 2008 

Volume 2 

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

 Hello again, 

 It has been a busy summer for all and especially for 

the boarding teams who seem to be identifying a tremendous number of “boating under the influence” 

violations. 

With so much work for Coast Guard field personnel 

to do and the transfer in / out of new personnel, we 

are finding that the case files sent to us are lacking 

in ways that prevent us from processing them. This 

edition will highlight some of the deficiencies we 

are seeing and the impact they have on the activities 

forwarded to us for adjudication. 

For reference, these newsletters will be posted on 

our website. 

www.uscg.mil/legal/cgho 

 

HEARING OFFICE NEWS 

To date, we have received approximately 

1,850 enforcement activities with violation dates in 2007 and 2008. Due to deficiencies, some of these will be dismissed. 

See what that means on page 5. 

The Hearing Office is happy to announce that it has 

added a new member to our Administrative Support 

Staff. Alicia Scott comes to us from the Department 

of Justice. We applaud our two yeomen, YN3 Victor 

Anderson and YN3 Christopher Brown on their extraordinary efforts during the last several months 

that the personnel vacancy existed. 

The Hearing office said farewell to newly “pinned” 

CAPT Mark Rizzo and welcomes CDR David Strong 

aboard. CDR Strong transfers in from the DOG. 

THE FIELD SOBRIETY TESTS 

 AND DOCUMENTATION 

 CDR D. Strong 

 We addressed the following in our previous 

 Newsletter. However, we see a need to 

 address this subject again. Boating Under 

 the Influence (BUI) is a serious threat to 

safety on our waterways. One of the critical pieces 

of information from any suspected BUI violation is 

the Field Sobriety Battery Test (FST) worksheet. 

As Hearing Officers we rely on this document to 

provide the necessary reflection of a mariner’s performance and the boarding officer’s observations. 

Recently we have been seeing an alarming number 

of discrepancies with FST worksheets that potentially could lead to a case file’s dismissal or cause it 

to be returned for correction. 

First and foremost, the copies need to be legible and 

complete. A bad photo copy does not get better 

with age. We have had numerous occasions where 

critical observation information was cut off, the signature block was cut off or the quality of the copy 

was so poor that we were unable to read the information. In addition some cases arrive with the 

front or back page missing. 

Another disturbing trend is missing information 

from the worksheet. Remember all items are on 

the FST worksheet for a purpose. Initial observations are key factors in determining reasonable 

cause to complete the FSTs and the chemical test. 

Secondly, when completing the chemical test portion, the entire signature block must be filled out. 

The information must include machine serial number, calibration date, BWI qualification date for the 

boarding officer and the witness signature along 

with the actual BAC reading. In the case of a refusal, a witness signature is still necessary.
Coast Guard Hearing Office Vol : 2 Newsletter Date: Sep 2008 

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

Attention to these critical details prior to submitting the case for adjudication` will assist us in the 

timely and successful processing of cases and ensure mariners’ are provided accurate documentation upon which to exercise their opportunity to 

comment. 

 FATAL FLAW: THE MISSING LOU 

 CDR P. Bartz 

The Letter of Undertaking (LOU) is a crucial document in the case file. It can mean the difference 

between an enforcement activity proceeding to a 

preliminary review by a Hearing Officer or being 

dismissed outright. 

The LOU is a legal agreement requested by the 

Coast Guard to secure payment of a civil penalty 

should one be assessed against a foreign entity. 

Typically, when the foreign entity is a foreign commercial vessel, a Captain of the Port (COTP) order 

will initiate the requirement for the LOU. This occurs when the COTP is made aware of an alleged 

violation by the vessel, the statutory authority to 

impose a civil penalty exists, and the vessel is desirous of leaving the port. Securing the LOU allows 

the vessel to depart and conduct business elsewhere while the civil penalty process proceeds. 

Should a civil penalty be imposed, the civil penalty 

is collected “against” the LOU. The party’s issuance of an LOU does not “admit” that a violation 

occurred. The LOU provides for payment in the 

event a violation is “proved” and a civil penalty is 

imposed. 

The LOU is a powerful document. Without this 

document, international trade would be adversely 

impacted. It guarantees payment of a civil penalty 

despite where the vessel or its owner may be located at the time the civil penalty is assessed. If 

there is no LOU the chance of collecting a civil penalty against the foreign entity is very difficult. 

Therefore, before a Hearing Officer will begin review of alleged violations against a foreign commercial entity, the Hearing Officer will look to see if the 

original LOU is in the file. If it is missing, the enforcement activity will be dismissed. The original 

is necessary. The original reflects the original signature and “seal.” A copy cannot be substituted. 

Therefore, in accordance with the Marine Safety 

Manual and Coast Guard Hearing Office 

requirements, always insert the original LOU in 

the case file before mailing it to the Hearing Office. 

KNOT 

Knowledge Note Or Tip 

Felita Jackson 

1. The Hearing Office receives 

many enforcement activities that 

began as Notice of Violation 

(NOV) “ticket” cases. We receive 

many NOV cases that have been changed to enforcement activities without evidence showing that 

the charged party declined the NOV. The Hearing 

Office will not adjudicate an enforcement activity 

without either the NOV form (both sides) reflecting 

that the box on the reverse side of the NOV has 

been marked "declined" OR a letter from the party 

or its counsel stating that the NOV is declined OR a 

signed statement from a Coast Guard member stating that the party verbally notified the unit that 

the party chose to decline the NOV. 

2. The Hearing Office receives many enforcement 

activities that begin with a party failing to comply 

with a Captain of the Port (COTP) order. When a 

violation is alleged based on failure to comply with 

a COTP order, the Hearing Office must determine 

if the COTP order was properly issued and received. The copy of the COTP order in the case file 

must reflect the signature of a Coast Guard officer 

authorized to issue COTP orders at the particular 

unit. The case file must also include evidence that 

the COTP order was presented to, and received by, 

the party. This might be accomplished by including 

in the case file a copy of the COTP order with the 

party’s signature and date on the bottom of the 

COTP order, a statement by the person who delivered it to the party, or, if mailed, a copy of the returned registered receipt with the party’s signature 

and date. 

DOCUMENTATION IS EVERYTHING 

 Danielle Davis and Vernon Slape

 The preliminary review of an enforcement 

 activity begins with checking to see if certain “requirements” have been met. Most often, 

this takes no more than a few minutes. But if one 

or more of the “requirements” have not been met, 

the result may be that the enforcement activity is 
Coast Guard Hearing Office Vol : 2 Newsletter Date: Sep 2008 

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

dismissed outright. Here’s a laundry list of some of 

the “requirements” we look for during our initial 

review. These are not new, but we are finding a 

need to re-emphasize them. 

1. A complete copy of the entire case file is needed 

for the party. Don’t forget to copy the back of documents that are 2-sided. 

2. In addition to the Enforcement Summary, the 

Activity Summary Report (if one exists) must be 

included in the enforcement activity / case file. The 

party’s copy must also include both documents. 

3. Remember, whatever is submitted to the Hearing Officer must be sent to the party. Sending a 

full-size chart for the Hearing Officer means another full-size chart MUST be provided for the 

party. 

4. Processing Officials should not add comments to 

the Narrative Summary of the Enforcement Summary. This block is meant for information relative 

to the violations. Remember, the Enforcement 

Summary is about the alleged violations, aggravating and mitigating factors, and prior violation history. It is not a place for administrative comments, 

processing official’s musings about the violations, 

case tracking information, etc. There are appropriate places in MISLE for such “comments.” 

5. Submitting an enforcement activity without a 

narrative in the Activity Summary Report or Enforcement Summary summarizing the boarding or 

inspection could hinder adjudication. It is akin to 

submitting a listing of violations with NO supporting description of the boarding or inspection. This 

is especially true when a CG-4100 or PDA printout 

is not included in the enforcement activity. 

6. Violations can be alleged but it means nothing 

without evidence. Don’t forget the details in the 

evidence: number of items required, number of 

items missing; if unserviceable, how is the item unserviceable; if a Rules of the Road violation, specify 

inland or COLREGs waters, and so on. 

 BREAKIN’ OUR STRIDE 

 Alicia Scott, YN3 V. Anderson and YN3 C. Brown 

When entering the party’s information into MISLE, 

(example: name and address) do so by entering the 

information in all CAPITAL letters and placing the 

first and last name in the proper order. By doing 

these simple tasks at the time of MISLE entry, the 

Hearing Office can prepare party correspondence 

without being slowed down to “fix” the MISLE data 

entries previously made by the field. Also, checking 

for correct grammar, spelling and punctuation at 

the time of data entry will help us in our efforts to 

meet the timeliness demands of the field and the 

boating public. On any given day “the demands” 

could mean that 100 or more letters and case files 

must be readied for mailing. Maintaining that 

“fast-pace” stride is all important! 

 THE ALL-IMPORTANT E-SIGNATURE 

 Danielle Davis 

An Electronic Signature (e-signature) authenticates 

or validates a statement of events pertaining to a 

boarding, inspection, or investigation on a document that is electronically produced. The Activity 

Summary Report (ASR) reflects a boarding. The 

ASR should always reflect the name of the Team 

Lead and Subject POC at the top of the report in 

the designated spaces. When the Team Lead and 

Subject POC name is the same, then it is this name 

that should appear on the ASR as an e-signature in 

the Narrative Summary block of the ASR. If there 

is a narrative, then place the e-signature after the 

narrative. If the Team Lead and Subject POC 

names are different, then either one of these names 

may appear as the e-signature. If there is no ASR 

(pollution case) the inspector’s or investigator’s esignature or penned signature should appear on 

any investigative report or summary including the 

narrative on the face of the Enforcement Summary. 

All statements by any boarding team members, 

inspectors, and investigators should be signed—

either electronically or penned. 

The e-signature signifies that the statements and 

information are true and accurately recorded as 

known by the person whose name appears in the esignature. The accepted e-signature format is: 

//s//First name, middle initial, last name, rate/rank// 

 

YOU SEE IT, BUT DO THEY? 

CAPT M. Rizzo 

We all know the old saying that “a picture is worth 

a thousand words.” The use of pictures and/or 

video as evidence in a case can benefit both the 

Hearing Officer and the Party as the case is adjudicated. In a sense, the Hearing Officer is “taken” to 

the scene through visual evidence. If properly presented, visual evidence can assist a Hearing Officer 

 

 
Coast Guard Hearing Office Vol : 2 Newsletter Date: Sep 2008 

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

in understanding the facts prior to making a final 

decision. However, sometimes the improper submission of pictures and / or video causes the opposite result. Rather than enhancing the case review, 

improperly submitted pictures and / or video hinders the review. The following guidelines are provided should you have a need to submit pictures 

and / or video as supporting evidence. 

Printed pictures are preferred to avoid the obvious 

difficulties that might be encountered with digital 

media. Whenever possible, print the pictures and 

send them instead of digital media. When sending 

pictures, ensure first that they are relevant to the 

violation. If so, label them accordingly, including 

the date and time the picture was taken and the 

name of the person who took the picture. Every 

picture should have a description of what it reflects 

and an exhibit or enclosure number that can be 

matched to a exhibit or enclosure number on the 

Enforcement Summary. Remember, two 

identical copies are necessary—one for the Hearing 

Office and one for the party. If the pictures are in 

color, then the party’s copy must be in color. 

If sending digital media as evidence, there are 

some special considerations to keep in mind: 

The Hearing Officer and the party must be able to 

“view” the CD or DVD. Please do not send VHS 

tapes. If we can’t see it, then the evidence is not in 

the case file. Use a standard format compatible 

with most computer media viewers. Always send 

two copies of the CD or DVD as the party must receive a copy. 

Only include pictures or video clips that are 

“relevant’ to the violations alleged. Sending two 

hours of video generally isn’t helpful. 

Ensure you label each CD or DVD as an exhibit. 

The enforcement activity should include a full description of what is presented in the CD or DVD, 

who prepared the CD or DVD, the date it was prepared and its exhibit or enclosure number. 

 MAXIMUM CIVIL PENALTY AMOUNTS 

 Vernon Slape 

All enforcement activities are created in MISLE. 

The creation of an Enforcement Summary includes 

a “charge” page for each violation identified. At the 

top of each “charge” page, the MISLE database will 

populate the fields “Law or Regulation Cite,” 

“Description,” “Statutory Authority,” and 

“Maximum Penalty.” The data in MISLE that populates these fields can be inaccurate due to changes 

in law or regulation. This is especially true with 

respect to the Maximum Penalty. 

The Maximum Penalty allowed for a violation is 

dependent upon the statutory authority for that 

particular violation. For instance, the statutory 

authority to impose a monetary penalty for violation of the requirement to report a marine casualty 

under 46 CFR 4.05-1 is 46 USC 6103. A review of 

this statutory authority indicates that the maximum penalty amount allowed is $25,000. However, 

it is important to note that such amounts may be 

adjusted for inflation. 

33 CFR Part 27, Adjustment of Civil Monetary Penalties for Inflation, lists the sections of the United 

States Code that authorize civil monetary penalties 

for laws administered by the Coast Guard. In our 

example, a review of the penalty table reflects that 

the maximum penalty for violation of 46 CFR 4.05-

1 is $27,500; that is the statutory maximum of 

$25,000 adjusted for inflation. 

With respect to 33 USC 1321(b) listed in the penalty table, note that some of the entries are followed by the words “Judicial Assessment.” The 

penalty table in this Part reflects civil penalties 

that may be assessed by the Hearing Office and by 

those in a judicial role such as Administrative Law 

Judges. Depending on the forum, the maximum 

penalties may differ. Penalty amounts associated 

with the words “Judicial Assessment” are maximum penalty amounts that are not applicable to 

enforcement activities sent to the Hearing Office. 

Report errors in the MISLE populated fields 

(maximum penalty, statutory authority citations, 

etc) to HQ MISLE representatives. Errors must be 

corrected manually and for that to occur, the representatives must be made aware of the error. 

WRITTEN WARNING V. CIVIL PENALTY 

Activity Summary Reports that reflect 

that a “Written Warning” was issued should 

generally not be sent to the Hearing Office for civil 

penalty action. Boarding Officers have the authority per 33 CFR 1.08 to issue written warnings for 

certain violations. The reverse side of the Boarding 

Report, CG-4100, expressly states that if a written 

warning was issued then no civil penalty will be 

instituted. There is an exception to this general 

 
Coast Guard Hearing Office Vol : 2 Newsletter Date: Sep 2008 

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

rule. 33 CFR 1.08-5 describes the exception. If the 

Activity Summary Report reflects a written warning” was issued and the processing official determines that civil penalty action is warranted, then 

the narrative should be annotated to reflect that 

the written warning has been rescinded, a prior 

written warning or violation issued within the described time period and, civil penalty action is being instituted as a result. Failure to do so may result in dismissal of the violations for which a written warning has been issued. 

LACK OF RECORDS DOES NOT ALWAYS MEAN 

FAILURE TO DO THE ACTS REQUIRED 

 Inspections often involve the request for 

 records or documentation to reflect that an 

event occurred. But the lack of documentation does 

not always mean that the event did not occur. Take 

for example, the enforcement activity forwarded to 

the Hearing Office for violation of the requirement 

to conduct facility security exercises once each calendar year. The violation is “discovered” during a 

spring 2007 inspection and is based upon the facility’s failure to produce, upon Coast Guard request, 

the records documenting the occurrence of the exercises. The Hearing Office sends a preliminary assessment letter to the party notifying the party of 

the violation and the amount of civil penalty that 

appears to be warranted. The party responds to 

the Hearing Office and forwards a copy of a letter 

the facility sent to the Coast Guard unit who conducted the inspection, three weeks after the inspection occurred. The letter to the unit included copies 

of previous annual exercise records and explained 

that the records were not at the facility at the time 

of the inspection because they had been destroyed 

by water during Hurricane Katrina. New copies of 

the records were obtained from the facility’s contractor responsible for conducting the exercises. 

The Coast Guard unit, assumed to have received 

the letter and records three weeks after the inspection, should have considered the records as highly 

relevant evidence and cleared the violation. If the 

records were insufficient to clear the violation, then 

the enforcement activity should have included the 

letter and records along with an explanation as to 

why the records were insufficient. In this case, the 

enforcement activity did not include the party’s letter or the records. 

The lesson to be learned is to consider all evidence 

available before identifying a violation. When identifying the violation, be careful to focus on what the 

party did or did not do. The lack of records or documentation may simply mean lost paper and the inability to present it at the time, and nothing more. 

The party presented the records within three weeks 

of the inspection. The violation for failure to conduct the exercises was in error. The appropriate 

violation in this case would have been for failure to 

make the records available to the Coast Guard 

upon request. 

THE DISMISSED ENFORCEMENT ACTIVITY 

An enforcement activity is dismissed when the deficiency identified is not one that is amenable to simple correction. For instance, a case is returned to 

the program manager with a statement of what is 

deficient when the deficiency is an obvious error 

such as the cite for the violation, the second page of 

the Field Sobriety Tests (FSTs) worksheet is missing and so on. Enforcement activities are dismissed when there is insufficient evidence to establish a prima facie case or the deficiency is not one 

that is believed to be quickly or easily corrected. 

An example might be the case in which the operator is charged but only the owner can be held responsible under the cited regulation and the enforcement activity shows no evidence that the 

owner is known. 

A dismissal is not a death knell for the enforcement 

activity but really quite the opposite. A dismissal 

is without prejudice. This means that the unit may 

endeavor to correct the reason for the dismissal and 

resubmit the enforcement activity for Hearing Office adjudication. However there is a caveat. Due 

process requires timely notice to the mariner of the 

violation. Units should proceed at deliberate speed 

to correct the deficiency and resubmit a dismissed 

enforcement activity so that the necessary due 

process can be afforded to the mariner. 

SPECIAL EDITION COMING 

Watch our website for a Special Edition newsletter. 

An article by CAPT M. Rizzo and CDR P. Bartz will 

discuss the 75/25 rule (46 USC 8103) as seen from 

the decks of the Hearing Office.