[Federal Register Volume 63, Number 65 (Monday, April 6, 1998)]
[Proposed Rules]
[Pages 16731-16751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8830]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 20
46 CFR Part 5
[USCG-98-3472]
RIN 2115-AF59
Rules of Practice, Procedure, and Evidence for Administrative
Proceedings of the Coast Guard
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard seeks to improve its adjudication process.
This improvement would also affect certain actions involving merchant
mariners. First, the proposed rule would consolidate all Coast Guard
adjudicative procedures to include the following: the suspension and
revocation (S&R) of merchant mariners' licenses, certificates of
registry, and documents and the procedures involving class II civil
penalties. Second, the proposed rule would eliminate unnecessary
procedures from S&R proceedings. The Coast Guard expects the proposed
rule to facilitate the efficient use of administrative resources
relating to Coast Guard adjudication. It would save time, effort, and
money for all parties who are or may become involved in Coast Guard
actions.
DATES: Comments must reach the Coast Guard on or before May 6, 1998.
ADDRESSES: You may mail comments to the Docket Management Facility,
[USCG-98-3472], U.S. Department of Transportation (DOT), Room PL-401,
400 Seventh Street SW., Washington, DC 20590-0001, or deliver them to
room PL-401, located on the Plaza Level of the Nassif Building at the
same address between 10 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. The telephone number is 202-366-9329.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments, and documents as indicated in this preamble, will
become part of this docket and will be available for inspection or
copying at room PL-401, located on the Plaza Level of the Nassif
Building at the above address between 10 a.m. and 5 p.m., Monday
through Friday, except Federal holidays. You may also electronically
access the public docket for this rulemaking on the Internet at http://
dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: For information on the public docket,
contact Carol Kelley, Coast Guard Dockets Team Leader or Paulette
Twine, Chief, Documentary Services Division, U.S. Department of
Transportation, telephone 202-366-9329; for information concerning the
notice of proposed rulemaking (NPRM) provisions, contact George J.
Jordan, Attorney-Advisor, Office of the Chief Administrative Law Judge,
between 8:00 a.m. and 4:00 p.m., Monday through Friday, except Federal
holidays. His telephone number is 202-267-0006.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this rulemaking [USCG-98-3472] and the specific section of
this document to which each comment applies, and give the reason for
each comment. Please submit one copy of all comments and attachments
[[Page 16732]]
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing to the DOT Docket Management Facility at
the address under ADDRESSES. If you want acknowledgment of receipt of
your comment, enclose a stamped, self-addressed postcard or envelope.
The Coast Guard will consider all comments received during the
comment period. It may change this proposed rule in view of the
comments.
The Coast Guard plans no public meeting. Persons may request a
public meeting by writing to the Marine Safety Council at the address
under ADDRESSES. The request should include the reasons why a public
meeting would be helpful to this rulemaking. If an opportunity for oral
presentations will help the rulemaking procedures, the Coast Guard will
hold a public meeting at a time and place announced by a later notice
in the Federal Register.
Background and Purpose
The Coast Guard derives its authority to issue this proposed rule
in part from 46 U.S.C. 7702. This law, amended by the Oil Pollution Act
of 1990 (Pub. L. 101-380), authorizes the Coast Guard, in certain
situations, to temporarily suspend merchant mariners' credentials. The
Coast Guard also derives its authority under 33 U.S.C. 1321(b)(6) to
issue rules affecting class II proceedings.
This rulemaking is necessary as part of a Coast Guard effort to
improve both: (1) the administrative efficiency of all Coast Guard
adjudicative procedures; and (2) specific procedures related to actions
involving mariners' credentials. It follows an overall Coast Guard
initiative to streamline its resources, yet maintain effectiveness in
all affected areas.
The Coast Guard maintains two separate sets of procedural rules
that govern administrative adjudication. 46 CFR Part 5 contains the
rules for Suspension and Revocation (S&R). The rules of criminal
procedure form the basis of the S&R rules. 33 CFR Part 20 contains the
rules for class II civil penalties. These rules have their basis in the
Model Rules of Administrative Procedure and on other modern rules for
civil procedure. Both sets of rules however, contain outdated and
inefficient procedures, many of which are not effective in the
adjudication of Coast Guard actions.
This rulemaking proposes to consolidate both sets of rules in 33
CFR Part 20. It also seeks to remove those procedures that impede the
efficient handling of cases. In addition, it would amend those rules
which are not consistent with relevant legal standards and practices.
Another relevant factor adds to the need for this proposed rule.
The Coast Guard reduced the number of administrative law judges (ALJs)
and field offices in a major effort to streamline its resources. Only
six full time ALJs are available to preside over 900-1000 S&R cases in
60 cities throughout the United States, its Commonwealths and
Territories. The reduction in personnel that handle adjudicative
matters creates the need for a system that can docket and process cases
more efficiently.
The ALJ Docketing Center now operates such a system. It manages
class II civil penalty cases, S&R cases, and civil penalty and permit
sanction cases for the National Oceanographic and Atmospheric
Administration (NOAA). This proposed rule would assist in the
processing of Coast Guard S&R cases at the ALJ Docketing Center. This
rule would allow the ALJ Docketing Center to better administer the
adjudication of Coast Guard actions.
In addition, this proposed rule would produce several other
benefits. It would ensure that similar cases follow similar procedures.
It would eliminate unnecessary hearings and the costs associated with
these hearings, such as travel and court reporting costs. It seeks to
employ the use of rules that are more familiar to civilian attorneys.
It would also incorporate many recommendations of the former
Administrative Conference of the United States and practices prevalent
in the Department of Transportation and other agencies. This would
promote uniformity and consistency in certain proceedings. Finally,
this proposed rule would help to promote the settlement process in
cases that are undisputed. This would further help to eliminate
unnecessary hearings.
This rulemaking proposes to promote and ensure consistent
procedural guidelines in the adjudication proceedings involving
mariners' certificates, documents, and licenses, class II civil
penalties, and other proceedings before Coast Guard ALJs. It would also
enable the Coast Guard to maintain regulations in keeping with modern
rules of civil and criminal procedure, where applicable.
Discussion of Proposed Rule
1. Consolidated Rules of Procedure and Rules of Evidence
This proposed rule would consolidate all rules of procedure and
evidence for administrative adjudication into 33 CFR Part 20. The
proposed rule would do so in the following ways--
Remove the rules of procedure and evidence for S&R cases
from 46 CFR Part 5;
Supersede those rules of procedure and evidence from 46
CFR Part 5 and provide equivalent rules in Part 20;
Amend certain sections of Part 20 to accommodate specific
requirements for S&R in the areas of procedure, for example, regarding
the opening of cases; and
Create certain special rules of evidence relating only to
S&R cases into a new subpart in 33 Part 20.
2. Changes in the Rules of Procedure and the Rules of Evidence
The proposed rule would change the rules of procedure and evidence
in administrative proceedings in the following ways:
Complaints replace Notices of Hearings. Under the proposed
rule, the investigating officer would file a complaint and propose the
place for a hearing, as opposed to the current system in which the
investigating officer files charges and serves them on the mariner,
telling the mariner where and when to appear to answer the charges. In
addition, the complaint would identify the order of suspension or
revocation sought, or, in a class II case, the penalty sought.
Complaint must be Answered in Writing and Within Twenty
Days. Under the proposed rule, the mariner must answer the complaint in
writing within 20 days. Under the current S&R rules, the mariner
answers at a hearing.
Administrative Law Judge to schedule hearings. Under the
proposed rule, the ALJ schedules the hearing after receiving the answer
and considering the convenience of both parties. Under the current S&R
rule, the investigating officer schedules the hearing in the Notice and
the ALJ schedules continuances, etc.
The Coast Guard May Seek a Default Judgment. Under the
proposed rule, if a mariner fails to answer or does not attend a
hearing, the Coast Guard may seek a default judgment. Under the current
S&R rules, a hearing in the absence of the mariner is required.
New Procedures for Settlement Agreements. Under the
proposed rule, settlement agreements are encouraged. In addition the
proposed rule establishes procedures for the process of settlement.
Under present S&R practices, although settlement agreements have been
encouraged, there is no consistent procedure involved in achieving
them.
[[Page 16733]]
Administrative Law Judges to Issue Oral Decisions. This
rule proposes that ALJs issue oral decisions in simple cases, when the
rights of the parties are not impaired and in order to speed justice.
The present S&R rule, 46 CFR 5.571, Delivery of decision, does not
allow for such decisions, under any circumstance.
Expedited Hearings Established. This rule proposes that in
certain prescribed circumstances, the ALJ may expedite a hearing. Under
46 U.S.C. 7702(d), a mariner whose license, certificate or document is
temporarily suspended is entitled to an expedited hearing. However, a
hearing is required within 30 days after the suspension. This proposed
rule requires that an ALJ be immediately assigned to the case in order
that the matter be resolved within the statutory period. Under the
current S&R rules, there is no provision for this circumstance.
The Coast Guard will have the right of appeal in S&R
cases. Under the current S&R rules, the Coast Guard reviews only cases
in which the charges were found proved and the respondent files an
appeal. The inability of the agency to seek review or appeal, in cases
where the ALJ ruled against it, is unique to those rules. Neither the
APA nor the statutory authority for S&R cases prohibit appeal by an
agency. All other Federal administrative agencies can appeal ALJ
rulings, and the proposed rules in Part 20 provide for such an appeal.
3. Changes in the Rules of Evidence
This rule proposes to apply the Administrative Procedures Act (APA)
rules of evidence as the standard for evidence brought in S&R cases. In
current practice some ALJs apply the Federal Rules of Evidence. This
proposed rule seeks to have one consistent standard, the APA standard,
used in S&R cases.
4. Special Rules of Evidence--Suspension and Revocation Cases
This rule proposes to adopt additional rules of evidence in S&R
cases. The Coast Guard recognizes a need for special rules of evidence
created specifically for S&R cases. The proposed rule places these
special rules in a separate subpart. Current Part 20 Rules do not allow
for special rules of evidence to address the unique circumstances that
may arise involving an S&R case.
5. Changes in Case Filing
With the opening of the ALJ Docketing Center in Baltimore,
Maryland, efficient and effective case management in administrative
proceedings is now in effect. The proposed rule seeks to optimize the
capabilities of the Docketing Center and improve case filing procedure
in the following ways:
Central Location of Filed Documents. This proposed rule
changes the place and method of filing for all administrative
proceedings. Parties may now file all pleadings, motions, decisions,
and other appropriate documents with the ALJ Docketing Center in
Baltimore, Maryland. The current S&R rules require parties to file
documents in the Coast Guard District where the case originated. The
current rules in 33 CFR Part 20 also require parties to file multiple
copies of documents. This proposed rule requires parties to submit only
a single signed copy of a specified form instead of the previously
required formatted documents.
6. Changes in the Rules of Discovery
This proposed rule would change the discovery rules in all
administrative proceedings. The rules would be changed in the following
ways:
Fifteen-Day Limit to Submit Final Exhibits and Witnesses.
The rules would be changed to require that parties submit final lists
of witnesses and proposed exhibits 15 days or more before a hearing,
unless otherwise allowed at the discretion of the ALJ. The current
class II rules require parties to submit final exhibits 5 days or more
before a hearing.
Consistent Discovery Procedures Established. Under the
current S&R rules, there are no formal discovery procedures. This can
create problems when copies of exhibits and witnesses are not presented
in a timely manner and with sufficient notice to the other party. Most
ALJs have introduced requirements for discovery on their own, but these
differ from judge to judge.
Summary of Proposed Changes
33 CFR Part 20--Rules of Practice, Procedure, and Evidence for Coast
Guard Administrative Proceedings
1. Revise the title of 33 CFR Part 20 to indicate that it applies
to all formal adjudicative proceedings of the Coast Guard.
2. Revise the authority citation for part 20 to include the
authority for S&R of merchant mariners' licenses, certificates of
registry, and documents.
3. Where the term ``administrative proceeding'' appears throughout
part 20, it would now refer to S&R cases and class II civil penalty
cases.
4. In section 20.101, the reference to the statutory authority for
S&R is now added.
5. In section 20.102, Definitions, S&R proceedings are defined and
appropriate references to S&R cases are added in other definitions.
6. In section 20.302, Filing of documents and other materials, the
address of the ALJ Docketing Center is added. This eliminates the
requirement to file multiple copies of cases with the docket clerk.
7. In section 20.307, Complaint, changes to section would enable
the Coast Guard to propose a sanction early in the complaint. Under
current S&R procedures, the Coast Guard may not propose a sanction
until the penalty phase.
8. Revise section 20.601(c)(2), Discovery--General, to eliminate
the reference to 33 CFR 20.807.
9. Revise section 20.807, Exhibits and Documents, paragraph (b), to
now require 15 days to submit final exhibits instead of 5 days. This
would provide for the timely submittal of pertinent information by both
parties, well before the hearing. It would preclude undue confusion and
disruption by allowing both parties adequate time in which to review
documents and exhibits.
10. Section 33 CFR 20.902, Decision of Administrative Law Judge,
allows an ALJ to issue an oral decision instead of a written decision
in appropriate cases.
11. Section 20.903, Record of Proceedings, changes the site for
public examination of record to the ALJ Docketing Center.
12. Section 20.904, Reopening, already allows the reopening of a
record for the taking of added evidence. The new procedures deal with
the subsequent reversal of a conviction that served as the basis for a
suspension or revocation and with the issuance under 46 U.S.C. 7702(c)
of a new document in certain circumstances after revocation.
13. Section 20.1001, Appeals--General, changes the address to file
notices and briefs to the ALJ Docketing Center.
14. Section 20.1103, Availability of Decisions, adds the ALJ
Docketing Center as a public reading room. It also provides the
Internet address for filing appeal decisions and the index of appeal
decisions.
15. A new Subpart L, Expedited Hearings, provides procedures for an
expedited hearing after the temporary suspension of a license,
certificate, or document.
16. A new Subpart M, Evidentiary rules for Suspension and
Revocation Hearings, added to Part 20, includes the sections of Part 5
that deal with
[[Page 16734]]
evidentiary matters which are specific to S&R cases.
17. Changes to 46 CFR Part 5 would remove similar rules now covered
in part 33 CFR Part 20. In addition, some rules are now governed by the
power of the ALJ to regulate the course of the hearing. For specific
information, refer to the chart below:
BILLING CODE 4910-14-P
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[GRAPHIC] [TIFF OMITTED] TP06AP98.000
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[GRAPHIC] [TIFF OMITTED] TP06AP98.001
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[GRAPHIC] [TIFF OMITTED] TP06AP98.002
BILLING CODE 4910-14-C
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Regulatory Evaluation
This proposal is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. It
has not been reviewed by the Office of Management and Budget under that
Order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) [44 FR 11040
(February 26, 1979)]. The Coast Guard expects the economic impact of
this Rule to be so minimal that a full Regulatory Evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary.
Benefits: The Coast Guard assumes savings to all parties by
simplifying administrative proceedings that help to expedite cases. The
Coast Guard's use of Administrative Law Judges (ALJs) is undergoing
major change. In the first phase of this process, the Coast Guard
established a Docketing Center in Baltimore. It provides administrative
law services for all pertinent cases. In the second phase, the
Docketing Center would expand its services to permit on-line access to
decisions and indices and to improve case management. A part of that
effort would be to rewrite 33 CFR Part 20, as here augmented, in plain
English.
Executive Order 12988 [61 FR 4728 (February 5, 1996)], on Reform of
Civil Justice, also established ``Principles to Promote Just and
Efficient Administrative Adjudications.'' It recommends that agencies
use case management techniques as a tool for improving their
administrative proceedings. It also recommends that they review their
adjudication procedures and develop specific ones to--
Reduce delay in decision making;
Facilitate self representation where appropriate;
Expand non-lawyer counseling and representation where
appropriate;
Invest maximal discretion in fact-finding officers;
Encourage appropriate settlement of claims as early as
possible; and
Develop effective and simple methods, including the use of
electronic technology, to educate the public about their policies and
procedures.
The primary reason for this entire effort is to achieve and sustain
effective case management. First, a central docket permits more
efficient assignment of ALJ and staff to contested cases. Second,
enhanced office automation (workflow) permits the routine handling of
dockets and files by a small staff. Third, a central database permits
active supervision of cases.
At present, Notices of Hearings hinder an ALJ's schedule in S&R
cases because current rules require notice but do not also require
responses from mariners. The result is that ALJs (and the Coast Guard)
must prepare for hearings as if all mariners will dispute the charges.
Almost half of these cases conclude without ever going to hearings
through settlement agreements or withdrawal by the prosecution.
However, it is not currently possible to use the hearing date for a
case that ends without a hearing to hear another case.
With responsive pleading, ALJs are able to identify which cases
would be amenable to disposal by motion and which would need hearings.
In cases of class II civil penalties, ALJs are able to schedule
hearings only if necessary. Almost half of these cases, through
settlement agreements or motions, likewise conclude without ever going
to hearings. (Unlike S&R cases, these cases have had a negligible
effect on ALJs' schedules.)
Each ALJ depends upon a single Legal Assistant (LA). Each case
docketed usually takes three days of an LA's time for docketing;
scheduling; arranging for court reporters, hearing rooms, and the ALJ's
travel; preparing reports; maintaining the docket record and closing
the file; preparing the hearing report; and arranging for final
disposition of the case record.
This demand on time holds in every case filed, whether contested or
not. (For example: The Coast Guard files a case, and the respondent
seeks a change of venue unopposed by the agency. The ALJ would not
spend more than an hour or less, on the case; but the LA must still
prepare the record for transfer to another ALJ and file it.) This
claims almost as much time from respondents as from the Coast Guard.
The adjudication procedures of this rule would drastically reduce the
demands of the time required of all parties concerned.
Small Entities
Under the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the
Coast Guard considers whether this proposed rule, if adopted, would
have a significant economic impact on a substantial number of small
entities. These include independently owned and operated small
businesses that are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000.
The Coast Guard expects that this proposed rule would have a
minimal direct impact on small entities. Holders of licenses,
certificates, and documents are not small entities, though they may
work for small entities. This rule simplifies many adjudicatory
procedures and adds only the requirement to reply by written answer, in
most cases, rather than by oral response at hearing.
Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule, if adopted, would not have a significant economic impact on
a substantial number of small entities. If, however, you think that
your business or organization qualifies as a small entity and that this
rule would have a significant economic impact on your business or
organization, please submit a comment (see ADDRESSES) explaining why
you think it qualifies and in what way and to what degree this rule
would economically affect it.
Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard
wants to assist small entities in understanding this proposed rule so
that they can better evaluate its effects on them and participate in
the rulemaking process. If this rule would affect your small business
or organization, and if you have questions concerning its provisions or
options for compliance, please contact Mr. George J. Jordan, Attorney
Advisor, Office of the Chief Administrative Law Judge (G-CJ), Room
6302, 202-267-0006.
Collection of Information
This proposed rule does not call for a collection of information
under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq.].
Between simplified, expedited adjudicatory procedures and greater use
of electronic devices, this rule would reduce the burden of paperwork
on the public and private sectors in large and about equal measure.
Unfunded Mandate
Under the Unfunded Mandates Reform Act (Pub. L. 104-4), the Coast
Guard must consider whether this rule will result in an annual
expenditure by State, local and tribal governments, in the aggregate,
or by the private sector, of $100 million (adjusted annually for
inflation). The Act also requires (in Section 205) that the Coast Guard
identify and consider a reasonable number of regulatory alternatives,
and from those alternatives, select the least costly, cost-effective,
or least burdensome alternative that achieves the objective of the
rule.
No State, local, or tribal government entities would be affected by
this
[[Page 16739]]
proposed rule. Therefore, this proposed rule would not result in annual
or aggregate costs of $100 million or more either to State, local, or
tribal governments or to the private sector.
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient implications for federalism to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
proposal and concluded that, under paragraph 2.B.2.e(34) (b) and (c) of
COMDTINST M16475.1B, this proposed rule is categorically excluded from
further environmental documentation. A ``Categorical Exclusion
Determination'' is available in the docket for inspection or copying
where indicated under ADDRESSES.
List of Subjects
33 CFR Part 20
Administrative Law Judges, Administrative practice and procedure,
Appeals, Discovery, Evidence, Hearings.
46 CFR Part 5
Administrative practice and procedure, Alcohol abuse, rug abuse,
Investigations, Licensing, Mariners, Seamen, Penalties.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR Part 20 and 46 CFR Part 5 as follows:
1. Revise 33 CFR Part 20 consisting of Secs. 20.101 through 20.1103
to read as follows:
PART 20--RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL
ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD
Subpart A--General
Sec.
20.101 Scope.
20.102 Definitions.
20.103 Construction and waiver of rules.
Subpart B--Administrative Law Judges
20.201 Assignment.
20.202 Powers.
20.203 Unavailability.
20.204 Withdrawal or disqualification.
20.205 Ex parte communications.
20.206 Separation of functions.
Subpart C--Pleadings and Motions
20.301 Representation.
20.302 Filing of documents and other materials.
20.303 Form and content of filed documents.
20.304 Service of documents.
20.305 Amendment or supplementation of filed documents.
20.306 Computation of time.
20.307 Complaints.
20.308 Answers.
20.309 Motions.
20.310 Default by respondent.
20.311 Withdrawal or dismissal.
Subpart D--Proceedings
20.401 Initiation of administrative proceedings.
20.402 Public notice.
20.403 Consolidation and severance.
20.404 Interested persons.
Subpart E--Conferences and Settlements
20.501 Conferences.
20.502 Settlements.
Subpart F--Discovery
20.601 General.
20.602 Amendatory or supplementary responses.
20.603 Interrogatories.
20.604 Requests for production of documents or things for
inspection or other purposes.
20.605 Depositions.
20.606 Protective orders.
20.607 Sanctions for failure to comply.
20.608 Subpoenas.
20.609 Motions to quash or modify.
Subpart G--Hearings
20.701 Standard of proof.
20.702 Burden of proof.
20.703 Presumptions.
20.704 Scheduling and notice of hearings.
20.705 Failure to appear.
20.706 Witnesses.
20.707 Telephonic testimony.
20.708 Witnesses' fees.
20.709 Closing of the record.
20.710 Proposed findings, closing arguments, and briefs.
Subpart H--Evidence
20.801 General.
20.802 Admissibility of Evidence.
20.803 Hearsay evidence.
20.804 Objections and offers of proof.
20.805 Proprietary information.
20.806 Official notice.
20.807 Exhibits and documents.
20.808 Written testimony.
20.809 Stipulations.
Subpart I--Decisions
20.901 Summary decisions.
20.902 Decisions of the ALJ.
20.903 Records of proceedings.
20.904 Reopening.
Subpart J--Appeals
20.1001 General.
20.1002 Records on appeal.
20.1003 Procedures for appeal.
20.1004 Decisions on appeal.
Subpart K--Finality, Petitions for Hearing, and Availability of Orders
20.1101 Finality.
20.1102 Petitions to set aside decisions and provide hearings for
civil penalty proceedings.
20.1103 Availability of decisions.
Subpart L--Expedited Hearings
20.1201 Application.
20.1202 Filing of pleadings.
20.1203 Commencement of expedited hearings.
20.1205 Motion for return of temporarily suspended license,
certificate of registry, or document.
20.1206 Discontinuance of expedited hearings.
20.1207 Pre-hearing conferences.
20.1208 Expedited Hearings.
20.1209 Appeals of ALJ's decisions.
Subpart M--Supplementary Evidentiary Rules for Suspension and
Revocation Hearings
20.1301 Purpose.
20.1303 Authentication and certification of extracts from shipping
articles, logbooks, and the like.
20.1305 Admissibility and weight of entries from logbooks.
20.1307 Use of judgments of conviction.
20.1309 Admissibility of respondents' criminal records and records
with the Coast Guard before entry of findings and conclusions.
20.1311 Admissions by respondent.
20.1313 Medical examination of respondents.
20.1315 Submission of prior records and evidence in aggravation or
mitigation.
Authority: 33 U.S.C. 1321; 42 U.S.C. 9609; 46 U.S.C. 7701, 7702;
49 CFR 1.46.
Subpart A--General
Sec. 20.101 Scope.
Except as otherwise noted, the rules of practice, procedure, and
evidence in this part apply to the following subjects of administrative
proceedings before the United States Coast Guard:
(a) Class II civil penalties assessed under section 311(b) of the
Federal Water Pollution Control Act [33 U.S.C. 1321(b)(6)].
(b) Class II civil penalties assessed under section 109 of the
Comprehensive Environmental Response, Compensation, and Liability Act
[42 U.S.C. 9609(b)].
(c) Suspensions and revocations conducted under 46 U.S.C. Chapter
77.
Sec. 20.102 Definitions.
Administrative Law Judge or ALJ means any person designated by the
Commandant under paragraph 556(b)(3) of the Administrative Procedure
Act (APA) [5 U.S.C. 556(b)(3)] to conduct hearings arising under 33
U.S.C. 1321(b); 42 U.S.C. 9609(b); or 46 U.S.C. Chapter 77.
Chief Administrative Law Judge or Chief ALJ means the
Administrative Law Judge appointed as the Chief
[[Page 16740]]
Administrative Law Judge of the Coast Guard by the Commandant.
Class II Civil penalty proceeding means a trial-type proceeding for
the assessment of a civil penalty that offers an opportunity for an
oral, fact-finding hearing before an ALJ.
Coast Guard Representative means an official of the Coast Guard
designated to prosecute an administrative proceeding.
Commandant means the Commandant of the Coast Guard. It includes the
Vice-Commandant of the Coast Guard acting on behalf of the Commandant
in any matter.
Complaint means a document issued by a Coast Guard representative
alleging a violation for which a penalty may be administratively
assessed under 33 U.S.C. 1321(b) or 42 U.S.C. 9609(b), or a merchant
mariner's license, certificate of registry, or document suspended or
revoked under 46 U.S.C. 7703 or 7704.
Hearing Docket Clerk means an employee of the Office of the Chief
ALJ who is responsible for receiving documents, determining their
completeness and legibility, and distributing them to ALJs and others,
as required by this part.
Interested person means a person who, as allowed in Sec. 20.404,
files written comments on a proposed assessment of a class II civil
penalty or files written notice of intent to present evidence in any
such hearing held on the proposed assessment.
Mail means first-class, certified, or registered matter sent by the
Postal Service, or matter sent by an express-courier service.
Motion means a request for an order or ruling from an ALJ.
Party means a respondent or the Coast Guard.
Person means an individual, a partnership, a corporation, an
association, a public or private organization, or a governmental
agency.
Personal delivery means delivery by hand or in person, or through
use of a contract service or an express-courier service. It does not
include use of governmental interoffice mail.
Pleading means a complaint, an answer and any amendment to such
document permitted under this part.
Respondent means a person charged with a violation in a complaint
issued under this part.
Suspension and revocation proceeding or S&R proceeding means a
trial-type proceeding for the suspension or revocation of a merchant
mariner's license, certificate of registry, or document issued by the
Coast Guard that affords an opportunity for an oral, fact-finding
hearing before an ALJ.
Sec. 20.103 Construction and waiver of rules.
(a) Each person with a duty to construe the rules in this part in
an administrative proceeding shall construe them so as to secure a
just, speedy, and inexpensive result.
(b) Except to the extent that a waiver would be contrary to law,
the Commandant, the Chief ALJ, or a presiding ALJ may, after notice,
waive any of the rules in this part either to prevent undue hardship or
manifest injustice or to secure a just, speedy, and inexpensive result.
(c) Absent a specific provision in this part, the Federal Rules of
Civil Procedure control.
Subpart B--Administrative Law Judges
Sec. 20.201 Assignment.
An ALJ, assigned by the Chief ALJ after receipt of the complaint,
shall preside over each administrative proceeding under this part.
Sec. 20.202 Powers.
The ALJ shall have all powers necessary to the conduct of fair,
fast, and impartial hearings, including the powers to--
(a) Administer oaths and affirmations;
(b) Issue subpoenas authorized by law;
(c) Rule on motions;
(d) Order discovery as provided for in this part;
(e) Hold hearings or settlement conferences;
(f) Regulate the course of hearings;
(g) Call and question witnesses;
(h) Issue decisions;
(i) Exclude any person from a hearing or conference for disrespect,
or disorderly or rebellious conduct; and
(j) Institute policy authorized by the Chief ALJ.
Sec. 20.203 Unavailability.
(a) If an ALJ cannot perform the duties described in Sec. 20.202
or otherwise becomes unavailable, the Chief ALJ shall designate a
successor.
(b) If a hearing has commenced and the assigned ALJ cannot proceed
with it, a successor ALJ may. The successor ALJ may, at the request of
a party, recall any witness whose testimony is material and disputed,
and who is available to testify again without undue burden. The
successor ALJ may, within his or her discretion, recall any other
witness.
Sec. 20.204 Withdrawal or disqualification.
(a) An ALJ may disqualify herself or himself at any time.
(b) Until the filing of the ALJ's decision, either party may move
that the ALJ disqualify herself or himself for personal bias or other
valid cause. The party shall file with the ALJ, promptly upon discovery
of the facts or other reasons allegedly constituting cause, an
affidavit setting forth in detail the reasons.
(1) The ALJ shall rule upon the motion, stating the grounds for the
ruling. If the ALJ concludes that the motion is timely and meritorious,
she or he shall disqualify herself or himself and withdraw from the
proceeding. If the ALJ does not disqualify herself or himself and
withdraw from the proceeding, the ALJ shall carry on with the
proceeding, or, if a hearing has concluded, issue a decision.
(2) If an ALJ denies a motion to disqualify herself or himself, the
moving party may, according to the procedures in subpart J of this
part, appeal to the Commandant once the hearing has concluded. When
that party does appeal, the ALJ shall forward the motion, the
affidavit, and supporting evidence to the Commandant along with the
ruling.
Sec. 20.205 Ex parte communications.
Ex parte communications are governed by subsection 557(d) of the
Administrative Procedure Act [5 U.S.C. 557(d)].
Sec. 20.206 Separation of functions.
(a) No ALJ may be responsible to, or supervised or directed by, an
officer, employee, or agent who investigates or represents the Coast
Guard.
(b) No officer, employee, or agent of the Coast Guard who
investigates for or represents the Coast Guard in connection with any
administrative proceeding may, in that proceeding or one factually
related, participate or advise in the decision of the ALJ or of the
Commandant in an appeal, except as a witness or counsel in the
proceeding or the appeal.
Subpart C--Pleadings and Motions
Sec. 20.301 Representation.
(a) A party may appear--
(1) Without counsel;
(2) With an attorney; or
(3) With other duly authorized representative.
(b) Any attorney, or by other duly authorized representative shall
file a notice of appearance. The notice must indicate--
(1) The name of the case, including docket number if assigned;
(2) The person on whose behalf the appearance is made; and
(3) The person's and the representative's mailing addresses and
telephone numbers.
[[Page 16741]]
(c) Any attorney or other duly authorized representative shall also
file a notice, including the items listed in paragraph (a) of this
section, for any withdrawal of appearance.
(d) Any attorney shall be a member in good standing of the bar of
the highest court of a State, the District of Columbia, or any
territory or commonwealth of the United States. A personal
representation of membership is sufficient proof, unless otherwise
ordered by the ALJ.
(e) Any person who would act as a duly authorized representative
and who is not an attorney shall file a statement setting forth the
basis of his or her authority to so act. The ALJ may deny appearance as
representative to any person who, the ALJ finds, lacks either the
qualifications to represent others or the requisite character,
integrity, or proper personal conduct.
Sec. 20.302 Filing of documents and other materials.
(a) The proper address at which to file all documents and other
materials relating to an administrative proceeding is: U. S. Coast
Guard Administrative Law Judge Docketing Center; Attention: Hearing
Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-4022.
(b) The telephone number is: 410-962-5100.
(c) The fax number is: 410-962-1746.
(d) The appropriate party shall file with the Hearing Docket Clerk
an executed original of each document (including any exhibit and
supporting affidavit).
(e) A party may file by mail or personal delivery. The ALJ or the
Hearing Docket Clerk may permit other methods, such as fax or other
electronic means.
(f) When the Hearing Docket Clerk determines that a document, or
other material, offered for filing does not comply with requirements of
this part, the Clerk may decline to accept the document, or other
material, for filing, and return it unfiled. Alternatively, the Clerk
may accept it, advise the person offering it of the defect, and require
that person to correct the defect.
Sec. 20.303 Form and content of filed documents.
(a) Each filed document must clearly--
(1) State the title of the case;
(2) State the docket number of the case, if one has been assigned;
(3) Designate the type of filing (for instance: petition, notice,
or motion to dismiss);
(4) Identify the filing party by name and capacity acted in; and
(5) State the address, telephone number, and any fax number of the
filing party and, if that party is represented, the name, address,
telephone number, and any fax number of the representative.
(b) Each filed document must--
(1) Measure 8-\1/2\ by 11 inches, except that a table, chart, or
other attachment may be larger if folded to the size of the filed
document to which it is physically attached;
(2) Be printed on just one side of the page and be clearly
typewritten, printed, or otherwise reproduced by a process that yields
legible and permanent copies;
(3) Be double-spaced except for footnotes and long quotations,
which may be single-spaced;
(4) Have a left margin of at least 1-1/2 inches and other margins
of at least 1 inch; and
(5) Be bound on the left side, if bound.
(c) Each filed document must be in English or, if in another
language, accompanied by a certified translation. The original of each
filed document must be signed by the filing party or her or his
representative. Unless the rules in this part or the ALJ requires it to
be, no filed document need be verified or accompanied by an affidavit.
The signature constitutes a certification by the signer that she or he
has read the document; that, to the best of her or his knowledge,
information, and belief, the statements made in it are true; and that
she or he does not intend it to cause delay.
(d) Complaints, answers, and simple motions may employ forms
approved for use in proceedings of the Coast Guard instead of the
format set out in this section.
Sec. 20.304 Service of documents.
(a) The ALJ shall serve upon each party to the proceeding a copy of
each document issued by the ALJ in it. The ALJ shall serve upon each
interested person, as determined under Sec. 20.404, a copy of the
notice of hearing. Unless this part provides otherwise, the ALJ shall
upon request furnish to each such interested person a copy of each
document filed with the Hearing Docket Clerk or issued by the ALJ.
(b) Unless the ALJ orders otherwise, each person filing a document
with the Hearing Docket Clerk shall serve upon each party a copy of it.
(c) If a party filing a document must serve a copy of it upon each
party, each copy must bear a certificate of service, signed by or on
behalf of the first party, stating that she or he has so served it. The
certificate shall be in substantially the following form:
I hereby certify that I have served the foregoing document[s]
upon the following parties (or their designated representatives) to
this proceeding at the addresses indicated by [specify the method]:
----------------------------------------------------------------------
(1) [name, address of party]
----------------------------------------------------------------------
(2) [name, address of party]
Done at ____________________, this ________________ day of
____________________, 19____ or 20____.
[Signature]
For--------------------------------------------------------------------
[Capacity]
(d) Service of any document may be by mail or personal delivery.
Service of any document other than the complaint and the answer may be
by fax or other electronic means, at the discretion of the ALJ; but the
Hearing Docket Clerk may limit the times and circumstances of service
by fax or other electronic means.
(e) Unless the ALJ orders otherwise, each document filed in
accordance with Sec. 20.302 must be served upon each counsel or other
representative or, if the party is not represented, upon the party
herself or himself. Service upon counsel or representative constitutes
service upon the person to be served.
(f) Service must be made at the address of the counsel or
representative, or, if the party is not represented, at the last known
address of the residence or principal place of business of the person
to be served.
(g) If service is by personal delivery, it is complete when the
document is handed to the person to be served, is delivered to the
person's office during business hours, or, if the person to be served
has no office, is delivered to the person's residence and deposited in
a conspicuous place. If service is by mail, fax, or other electronic
means, it is complete either upon deposit in the mail or with the
electronic transmission.
(h) If a person refuses to accept delivery or fails to claim a
properly addressed document sent under this subpart, the document is
deemed served anyway. Service is valid at the date and the time of
mailing, of deposit with a contract service or express-courier service,
or of refusal to accept delivery.
Sec. 20.305 Amendment or supplementation of filed documents.
(a) Each party or interested person shall amend or supplement a
previously filed pleading or other document if she or he learns of a
material change that may affect the outcome of the administrative
proceeding. However, no amendment or supplement may broaden the issues
without an opportunity for
[[Page 16742]]
any other party or interested person both to reply to it and to prepare
for the broadened issues.
(b) The ALJ may allow other amendments or supplements to previously
filed pleadings or other documents.
(c) Each party or interested person shall notify the Hearing Docket
Clerk, the ALJ, and every other party or interested person, or her or
his representative, of any change of address.
Sec. 20.306 Computation of time.
(a) In the computation of any period of time prescribed in this
part--
(1) The first day of the period is not included; and,
(2) When the period is 7 days or less, intermediate Saturdays,
Sundays, and Federal holidays are not included either; but,
(3) Unless the last day of the period is a Saturday, Sunday, or
Federal holiday, it is included.
(b) If service or filing is by domestic mail, the period for
response would run an added 3 days.
(c) An ALJ, for cause shown, may----
(1) Upon request for extension made before the end of the original
period or of the period as extended by a previous order, with or
without motion or notice, order a period extended; or
(2) Upon motion made after the end of the original period or of the
period as extended, permit the act to be done when the failure to do it
before the end was excusable.
Sec. 20.307 Complaints.
(a) The complaint must set forth----
(1) The statute or rule allegedly violated;
(2) The pertinent facts involved; and
(3)(i) The amount of the class II civil penalty sought; or
(ii) The order of suspension or revocation proposed.
(b) The Coast Guard shall propose a place of hearing when filing
the complaint.
(c) The complaint must conform to the requirements of this subpart
for filing and service.
Sec. 20.308 Answers.
(a) The respondent shall file a written answer to the complaint 20
days or less after service of the complaint. The answer must conform to
the requirements of this subpart for filing and service.
(b) The person filing the answer shall, in the answer, either agree
to the place of hearing proposed in the complaint or propose an
alternative.
(c) Each answer must state whether the respondent intends to
contest any of the allegations set forth in the complaint. It must
include any affirmative defenses that the respondent intends to assert
at the hearing.
(1) The answer must admit or deny each numbered paragraph of the
complaint. If it states that the respondent lacks sufficient knowledge
or information to admit or deny a particular paragraph, it denies that
paragraph. If it does not specifically deny a particular allegation
made in the complaint, it admits that allegation.
(2) If an answer generally denies the complaint, it constitutes a
failure to file an answer.
(d) A respondent's failure without good cause to file an answer
admits each allegation made in the complaint.
Sec. 20.309 Motions.
(a) A person may apply for an order or ruling not specifically
provided for in this subpart, but shall apply for it by motion. Each
written motion must comply with the requirements of this subpart for
form, filing, and service. Each motion must state clearly and
concisely--
(1) Its purpose, and the relief sought;
(2) Its statutory or regulatory authority; and
(3) The facts constituting the grounds for the relief it seeks.
(b) A proposed order may accompany a motion.
(c) Each motion must be in writing; except that one made at a
hearing will be sufficient if stated orally upon the record, unless the
ALJ directs that it be reduced to writing.
(d) Except as otherwise required by this part, a party shall file
any response to a written motion 10 days or less after service of the
motion. When a party makes a motion at a hearing, an oral response to
the motion made at the hearing is timely.
(e) Unless the ALJ orders otherwise, the filing of a motion does
not stay a proceeding.
(f) The ALJ will rule on the record either orally or in writing.
She or he may summarily deny any dilatory, repetitive, or frivolous
motion.
Sec. 20.310 Default by respondent.
(a) The ALJ may find a respondent in default upon failure to file a
timely answer to the complaint or, after motion, upon failure to appear
at a conference or hearing without good cause shown.
(b) Each motion for default must conform to the rules of form,
service, and filing of this subpart and must include a proposed
decision. The respondent alleged to be in default shall file a reply to
the motion 20 days or less after service of the motion.
(c) Default by respondent constitutes, for purposes of the pending
action only, an admission of all facts alleged in the complaint and a
waiver of her or his right to a hearing on those facts.
(d) Upon finding a respondent in default, the ALJ shall issue a
decision against her or him.
(e) For good cause shown, the ALJ may set aside a finding of
default.
Sec. 20.311 Withdrawal or dismissal.
(a) An administrative proceeding may end in withdrawal without any
act by an ALJ in any of the following ways:
(1) By the filing of a stipulation by all parties who have appeared
in the proceeding.
(2) By the filing of a notice of withdrawal by the Coast Guard
representative at any time before the respondent has served a
responsive pleading.
(3) With respect to a complaint filed under section 311(b)(6) of
the Federal Water Pollution Control Act [33 U.S.C. 1321 (b)(6)] or
section 109(d) of the Comprehensive Environmental Response,
Compensation and Liablility Act [42 U.S.C. 9609 (b)], by the filing of
(i) A notice of withdrawal by the Coast Guard representative at any
time after the respondent has served a responsive pleading, but before
the issuance of an order of the Commandant assessing or denying a class
II civil penalty, together with
(ii) A certification by the representative that the filing of the
notice is due to a request by the Attorney General--in accordance with
subsection 10(d) of Executive Order 12777 [56 FR 54757; 3 CFR, 1991
Comp., p. 351]--that the Coast Guard refrain from conducting an
administrative proceeding.
(b) Unless the stipulation or notice of withdrawal states
otherwise, a withdrawal under paragraph (a) of this section is without
prejudice.
(c) Except as provided in paragraph (a) of this section, no
administrative proceeding may end in withdrawal unless approved by an
ALJ upon such terms as she or he deems proper.
(d) Any party may move to dismiss the complaint, or may lodge a
request for relief, for failure of another party to--
(1) Comply with the requirements of this part or with any order of
the ALJ;
(2) Show a right to relief based upon the facts or law; or
(3) Prosecute the proceeding.
(e) A dismissal resides within the discretion of the ALJ.
[[Page 16743]]
Subpart D--Proceedings
Sec. 20.401 Initiation of administrative proceedings.
An administrative proceeding commences when the Coast Guard
representative files the complaint with the Hearing Docket Clerk and
serves a copy of it on the respondent.
Sec. 20.402 Public notice.
Upon the filing of a complaint under 33 U.S.C. 1321(b) (6), the
Coast Guard provides public notice of a class II civil penalty
proceeding. The notice appears in the Federal Register.
Sec. 20.403 Consolidation and severance.
(a) A presiding ALJ may for good cause, with the approval of the
Chief ALJ and with all parties given notice and opportunity to object,
consolidate any matters at issue in two or more administrative
proceedings docketed under this part. (Good cause includes the
proceedings' possessing common parties, questions of fact, and issues
of law and presenting the likelihood that consolidation would expedite
the proceedings and serve the interests of justice.) The ALJ may not
consolidate any matters if consolidation would prejudice any rights
available under this part or impair the right of any party to place any
matters at issue.
(b) Unless directed otherwise by the Chief ALJ, a presiding ALJ
may, either in response to a motion or on his or her own motion, for
good cause, sever any administrative proceeding with respect to some or
all parties, claims, and issues.
Sec. 20.404 Interested persons.
(a) Any person not a party to a class II civil penalty proceeding
under 33 U.S.C. 1321(b)(6) who wishes to be an interested person in the
proceeding shall, 30 days or less after publication in the Federal
Register of the public notice required by Sec. 20.402, file with the
Hearing Docket Clerk either--
(1) Written comments on the proceeding; or
(2) Written notice of intent to present evidence at any hearing in
the proceeding.
(b) The presiding ALJ may, for good cause, accept late comments or
late notice of intent to present evidence.
(c) Each interested person shall receive notice of any hearing due
in the proceeding and of the decision in the proceeding. He or she may
have a reasonable opportunity to be heard and to present evidence in
any hearing.
(d) The opportunity secured by paragraph (c) of this section does
not extend to--
(1) The issuance of subpoenas for witnesses;
(2) The cross-examination of witnesses; or
(3) Appearance at any settlement conference.
Subpart E--Conferences and Settlements
Sec. 20.501 Conferences.
(a) Any party may by motion request a conference.
(b) The ALJ may direct the parties to attend one or more
conferences before or during a hearing.
(c) The ALJ may invite interested persons to attend a conference,
other than a settlement conference, as the ALJ deems appropriate.
(d) The ALJ shall give reasonable notice of the time and place of
any conference to the parties, and to interested persons if invited. A
conference may occur in person, by telephone, or by other appropriate
means.
(e) Each party, and any interested person invited, shall be fully
prepared for a useful discussion of all issues properly before the
conference, both procedural and substantive, and be authorized to
commit themselves or those they represent respecting those issues.
(f) Unless the ALJ excuses a party, the failure of a party to
attend or participate in a conference, after being served with
reasonable notice of its time and place, waives all objections to any
agreements reached in it and to any consequent orders or rulings.
(g) The ALJ may direct that any of the following be addressed or
furnished before, during, or after the conference:
(1) Methods of service and filing.
(2) Motions for consolidation or severance of parties or issues.
(3) Motions for discovery.
(4) Identification, simplification, and clarification of the
issues.
(5) Requests for amendment of the pleadings.
(6) Stipulations and admissions of fact and of the content and
authenticity of documents.
(7) The desirability of limiting and grouping witnesses, so as to
avoid duplication.
(8) Requests for official notice and particular matters to be
resolved by reliance upon the substantive standards, rules, and other
policies of the Coast Guard.
(9) Offers of settlement.
(10) Proposed date, time, and place of the hearing.
(11) Other matters that may aid in the disposition of the
proceeding.
(h) No one may stenographically report or otherwise record a
conference unless the ALJ allows.
(i) During a conference, the ALJ may dispose of any procedural
matters on which he or she is authorized to rule.
(j) Actions taken at a conference may be memorialized in--
(1) A stenographic report if authorized by the ALJ;
(2) A written transcript from a magnetic tape or the equivalent if
authorized by the ALJ; or
(3) A statement by the ALJ on the record at the hearing summarizing
them.
Sec. 20.502 Settlements.
(a) The parties may submit a proposed settlement to the ALJ.
(b) The proposed settlement must be in the form of a proposed
decision, accompanied by a motion for its entry. The decision must
recite the reasons that make it acceptable, and it must be signed by
the parties or their representatives.
(c) The proposed decision must contain--
(1) An admission of all jurisdictional facts;
(2) An express waiver of--
(i) Any further procedural steps before the ALJ; and
(ii) All rights to seek judicial review, or otherwise challenge or
contest the validity, of the decision;
(3) A statement that the decision will have the same force and
effect as would a decision made after a hearing; and
(4) A statement that the decision resolves all matters needing to
be adjudicated.
Subpart F--Discovery
Sec. 20.601 General.
(a) Unless the ALJ orders otherwise, each party--and each
interested person who has filed written notice of intent to present
evidence at any hearing in the proceeding under Sec. 20.404--shall make
available to the ALJ and to every other party and interested person--
(1) The name of each expert and other witness the party intends to
call, together with a brief narrative summary of their expected
testimony; and,
(2) A copy, marked as an exhibit, of each document the party
intends to introduce into evidence or use in the presentation of its
case.
(b) During a pre-hearing conference ordered under Sec. 20.501, the
ALJ may direct that the parties exchange witness lists and exhibits
either at once or by correspondence.
(c) The ALJ may establish a schedule for discovery and shall serve
a copy of any such schedule on each party.
[[Page 16744]]
(1) The schedule may include dates by which the parties shall
exchange witness lists and exhibits and file any requests for discovery
and objections to such requests.
(2) Unless the ALJ orders otherwise, the parties shall exchange
witness lists and exhibits 15 days or more before hearing.
(d) Further discovery may occur only by order, and then only when
the ALJ determines that--
(1) It will not unreasonably delay the proceeding;
(2) The information sought is not otherwise obtainable;
(3) The information sought has significant probative value;
(4) The information sought is neither cumulative nor repetitious;
and
(5) The method or scope of the discovery is not unduly burdensome
and is the least burdensome method available.
(e) A motion for discovery must set forth--
(1) The circumstances warranting the discovery;
(2) The nature of the information sought; and
(3) The proposed method and scope of discovery and the time and
place where the discovery would occur.
(f) If the ALJ determines that he or she should grant the motion,
he or she shall issue an order for the discovery, together with the
terms on which it will occur.
Sec. 20.602 Amendatory or supplementary responses.
(a) Each party or interested person shall promptly amend or
supplement--
(1) The name of each expert and other witness he or she intends to
call, together with a brief narrative summary of their expected
testimony;
(2) The list of documents he or she intends to introduce into
evidence; and
(3) Any information previously provided, if he or she knows that--
(i) It was incorrect or incomplete when provided; or,
(ii) Though correct when provided, it no longer is and that, in the
circumstances, a failure to amend or supplement it amounts to a knowing
concealment.
(b) The ALJ may impose a further duty to amend or supplement.
Sec. 20.603 Interrogatories.
(a) Any party requesting interrogatories shall so move to the ALJ.
The motion must include--
(1) A statement of the purpose and scope of the interrogatories;
and
(2) The proposed interrogatories.
(b) The ALJ shall review the proposed interrogatories, and may
enter an order either--
(1) Approving the service of some or all of the proposed
interrogatories or;
(2) Denying the motion.
(c) A party shall serve on the party named in the interrogatories
the approved written interrogatories.
(d) Each interrogatory must be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event the reasons for the objection shall be stated instead of a
response. A party, the party's attorney, or the party's representative
shall sign the party's responses to interrogatories.
(e) Responses or objections must be filed within 30 days after the
service of the interrogatories.
(f) A response to an interrogatory is considered sufficient when--
(1) The burden of ascertaining the information in a response to an
interrogatory is substantially the same for all parties involved in the
action;
(2) The information may be obtained from an examination, audit, or
inspection of records, or from a compilation, abstract, or summary
based on such records; and
(3) The records from which such answers may be derived or
ascertained are fully specified.
(g) The party serving the interrogatory shall be afforded
reasonable opportunity to examine, audit, or inspect the resource and
to make copies, compilations, abstracts, or summaries. The
specification must include sufficient detail to permit the
interrogating party to locate and identify the individual records from
which the answer may be ascertained.
Sec. 20.604 Requests for production of documents or things, for
inspection or other purposes.
(a) Any party seeking production of documents or things for
inspection or other purposes shall so move to the ALJ. The motion must
state with particularity--
(1) The purpose and scope of the request; and
(2) The documents and materials which are requested to be produced.
(b) The ALJ shall review the motion and enter an order approving or
denying it in whole or in part.
(c) A party shall serve on the party in possession, custody, or
control of the documents the order to produce or to permit inspection
and copying of documents.
(d) A party may, after approval of an appropriate motion by the
ALJ, inspect and copy, test, or sample any tangible things that
contain, or may lead to, relevant information, and that are in the
possession, custody, or control of the party upon whom the request is
served.
(e) A party may, after approval of an appropriate motion by the
ALJ, serve on another party a request to permit entry upon designated
property in the possession or control of the other party for the
purpose of inspecting, measuring, surveying, photographing, testing, or
sampling the property or any designated object or area. A request to
permit entry upon property must set forth with reasonable particularity
the feature to be inspected and must specify a reasonable time, place,
and manner for making the inspection and performing the related acts.
(f) The party upon whom the request is served shall respond within
30 days after the service of the request.
Inspection and related activities will be permitted as requested,
unless there are objections, in which case the request for each
objection must be stated.
Sec. 20.605 Depositions.
(a) The ALJ may order a deposition only upon a showing of good
cause and upon a finding that--
(1) The information sought is not obtainable more readily by
alternative methods; or
(2) There is a substantial reason to believe that relevant and
probative evidence may otherwise not be preserved for a witness to
present at the hearing.
(b) Testimony may be taken by deposition upon approval of the ALJ
of a motion made by any party.
(1) The motion must state--
(i) The purpose and scope of the deposition;
(ii) The time and place it is to be taken;
(iii) The name and address of the person before whom the deposition
is to be taken;
(iv) The name and address of each witness from whom a deposition is
to be taken;
(v) The documents and materials which the witness is to produce;
and
(vi) Whether it is intended that the deposition be used at a
hearing instead of live testimony.
(2) The motion must state if the deposition is to be by oral
examination, by written interrogatories, or a combination of the two.
The deposition may be taken before any disinterested person authorized
to administer oaths in the place where the deposition is to be taken.
(c) Upon a showing of good cause the ALJ may enter, and serve upon
the parties, an order to obtain the testimony of the witness.
(d) If the deposition of a public or private corporation,
partnership, association, or governmental agency is
[[Page 16745]]
ordered, the organization named must designate one or more officers,
directors, or agents to testify on its behalf, and may set forth, for
each person designated, the matters on which he or she will testify.
Subject to the provisions of 49 CFR part 9 with respect to Coast Guard
witnesses, the designated persons shall testify as to matters
reasonably known to them.
(e) Each witness deposed shall be placed under oath or affirmation,
and the other parties shall have the right to cross-examine.
(f) The witness being deposed may have counsel or another
representative present during the deposition.
(g) Except as provided in paragraph (n) of this section,
depositions shall be stenographically recorded and transcribed at the
expense of the party requesting the deposition. Unless waived by the
deponent, the transcription must be read by or read to the deponent,
subscribed by the deponent, and certified by the person before whom the
deposition was taken.
(h) Subject to objections to the questions and responses as were
noted at the taking of the deposition and which would have been
sustained if the witness were personally present and testifying, a
deposition may be offered into evidence by the party taking it against
any party who was present or represented at the taking of the
deposition or who had notice of the deposition.
(i) The party requesting the deposition shall make appropriate
arrangements for necessary facilities and personnel.
(j) During the taking of a deposition, a party or the witness may
request suspension of the deposition on the grounds of bad faith in the
conduct of the examination, oppression of the witness or party, or
improper questioning or conduct. Upon request for suspension, the
deposition will be adjourned. The objecting party or witness must
immediately move the ALJ for a ruling on the objection(s). The ALJ may
then limit the scope or manner of the taking of the deposition.
(k) When a deposition is taken in a foreign country, it may be
taken before a person having power to administer oaths in that
location, or before a secretary of an embassy or legation, consul
general, consul, vice consul or consular agent of the United States, or
before such other person or officer as may be agreed upon by the
parties by written stipulation filed with the ALJ.
(l) Objection to taking a deposition because of the
disqualification of the officer before whom it is to be taken is waived
unless made before the taking of the deposition begins, or as soon as
the disqualification becomes known or could have been discovered with
reasonable diligence.
(m) A deposition may be taken by telephone conference call upon
such terms, conditions, and arrangements as are prescribed in the order
of the ALJ.
(n) The testimony at a deposition hearing may be recorded on
videotape, upon such terms, conditions and arrangements as are
prescribed in the order of the ALJ, at the expense of the party
requesting the recording. The video recording may be in conjunction
with an oral examination by telephone conference held pursuant to
paragraph (m) of this section. After the deposition has been taken, and
copies of the video recording are provided to parties requesting them,
the person recording the deposition shall immediately place the
videotape in a sealed envelope or a sealed videotape container,
attaching to it a statement identifying the proceeding and the deponent
and certifying as to the authenticity of the video recording, and
return the videotape by accountable means to the ALJ. The deposition
becomes a part of the record of the proceedings in the same manner as a
transcribed deposition. The videotape, if admitted into evidence, will
be played during the hearing and transcribed into the record by the
reporter.
Sec. 20.606 Protective orders.
(a) In considering a motion for an order of discovery--or a motion,
by a party or other person from whom discovery is sought, to reconsider
or amend an order of discovery--the ALJ may enter any order that
justice requires, to protect a person from annoyance, embarrassment,
oppression, or undue burden or expense. This order may--
(1) Confine discovery to specific terms and conditions, such as a
particular time and place;
(2) Confine discovery to a method other than that selected by the
party seeking it;
(3) Preclude inquiry into certain matters;
(4) Ordain that discovery occur with no one present except persons
designated by the ALJ;
(5) Preclude the disclosure of a trade secret or other proprietary
information, or allow its disclosure only in a designated way or only
to designated persons; or
(6) Require that the person from whom discovery is sought file
specific documents or information under seal for opening at the
direction of the ALJ.
(b) When a person from whom discovery is sought seeks a protective
order, the ALJ may let him or her make all or part of the showing of
good cause in camera. The ALJ shall record any proceedings in camera.
If he or she enters a protective order, he or she shall seal any
proceedings so recorded. These shall be releasable only as required by
law.
(c) Upon motion by a person from whom discovery is sought, the ALJ
may--
(1) Restrict or defer disclosure by a party either of the name of a
witness or, if the witness comes from the Coast Guard, of any prior
statement of the witness; and
(2) Prescribe other appropriate measures to protect a witness.
(d) Any party affected by a protective order shall have an adequate
opportunity, once learning the name of the witness and obtaining a
narrative summary of expected testimony--or, if the witness comes from
the Coast Guard, obtaining any prior statement--to prepare for cross-
examination and for the presentation of the party's case.
Sec. 20.607 Sanctions for failure to comply.
If a party fails to provide or permit discovery, the ALJ may take
such action as is just. This may include the following:
(a) Infer that the testimony, document, or other evidence would
have been adverse to the party.
(b) Order that, for the purposes of the proceeding, designated
facts are established.
(c) Order that the party not introduce into evidence--or otherwise
rely upon, in support of any claim or defense--that evidence that was
withheld.
(d) Order that the party not introduce into evidence, or otherwise
use in the hearing, information obtained in discovery.
(e) Allow the use of secondary evidence to show what the evidence
withheld would have shown.
Sec. 20.608 Subpoenas.
(a) An ALJ may issue a subpoena for the attendance of a person, the
giving of testimony, or the production of books, papers, documents, or
any other relevant evidence. A party seeking a subpoena shall request
its issuance by motion.
(b) An ALJ may, for good cause shown, apply to the United States
District Court for the issuance of an order compelling the appearance
and testimony of a witness or the production of evidence.
(c) A person serving a subpoena shall prepare a written statement
setting forth either the date, time, and manner of service or the
reason for failure of service. He or she shall swear to or
[[Page 16746]]
affirm the statement, attach it to a copy of the subpoena, and return
it to the ALJ who issued the subpoena.
Sec. 20.609 Motions to quash or modify.
(a) A person to whom a subpoena is directed may, by motion with
notice to the party requesting the subpoena, ask the ALJ to quash or
modify the subpoena.
(b) Except when made at a hearing, the motion must be filed
(1) 10 days or less after service of a subpoena compelling the
appearance and testimony of a witness or the production of evidence or
(2) At or before the time specified in the subpoena for compliance,
whichever is earlier.
(c) If the subpoena is served at a hearing, the person to whom it
is directed may, in person at the hearing or in writing within a
reasonable time fixed by the ALJ, ask the ALJ to quash or modify it.
(d) The ALJ may quash or modify the subpoena if it is unreasonable
or requires evidence not relevant to any matter in issue.
Subpart G--Hearings
Sec. 20.701 Standard of proof.
The party that bears the burden of proof shall prove his or her
case or affirmative defense by a preponderance of the evidence.
Sec. 20.702 Burden of proof.
(a) Except for an affirmative defense, or as provided by paragraph
(b) of this section, the Coast Guard bears the burden of proof.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order bears the burden of proof.
Sec. 20.703 Presumptions.
In each administrative hearing, a presumption--
(a) Imposes on the party against whom it lies the duty of going
forward with evidence to rebut or meet the presumption; but
(b) Does not shift to that party the risk of non-persuasion, which
remains throughout the hearing upon the party that bears it.
Sec. 20.704 Scheduling and notice of hearings.
(a) With due regard for the convenience of the parties, and of
their representatives or witnesses, the ALJ shall, as early as
possible, fix the date, time, and place for the hearing and notify all
parties and interested persons.
(b) The ALJ may grant a request for a change in the date, time, or
place of a hearing.
(c) At any time after commencement of a proceeding, any party may
move to expedite the proceeding. A party moving to expedite shall--
(1) Explain in the motion the circumstances justifying the motion
to expedite; and
(2) Incorporate in the motion affidavits supporting any
representations of fact.
(d) After timely receipt of the motion and any responses, the ALJ
may expedite pleadings, pre-hearing conferences, and the hearing, as
appropriate.
Sec. 20.705 Failure to appear.
The ALJ may enter a default under Sec. 20.310 against a respondent
threatening to fail, or having failed, to appear at a hearing unless--
(a) Before the time for the hearing, the respondent shows good
cause why neither the respondent nor his or her representative can
appear; or
(b) 30 days or less after an order to show good cause, the
respondent shows good cause for his or her failure to appear.
Sec. 20.706 Witnesses.
(a) Each witness shall testify under oath or affirmation.
(b) If a witness fails or refuses to answer any question the ALJ
finds proper, the failure or refusal constitutes grounds for the ALJ to
strike all or part of the testimony given by the witness or to take any
other measure he or she deems appropriate.
Sec. 20.707 Telephonic testimony.
(a) The ALJ may order the taking of the testimony of a witness by
telephonic conference call. A person presenting evidence may by motion
ask for the taking of testimony by this means. The arrangement of the
call must let each participant listen to and speak to each other within
the hearing of the ALJ, who shall ensure the full identification of
each so the reporter can create a proper record.
(b) The ALJ may issue a subpoena directing a witness to testify by
telephonic conference call. The subpoena in any such instance issues
under the procedures in Sec. 20.608.
Sec. 20.708 Witnesses' fees.
(a) Each witness summoned in an administrative proceeding shall
receive the same fees and mileage as a witness in a District Court of
the United States.
(b) The party or interested person who calls a witness is
responsible for all fees and mileage due under paragraph (a) of this
section.
Sec. 20.709 Closing of the record.
(a) When the ALJ closes the hearing, he or she shall also close the
record of the proceeding, as described in Sec. 20.903, unless he or she
directs otherwise. Even after the ALJ closes it, he or she may reopen
it.
(b) The ALJ may correct the transcript of the hearing by
appropriate order.
Sec. 20.710 Proposed findings, closing arguments, and briefs.
(a) Before the ALJ closes the hearing, he or she may hear oral
argument so far as he or she deems appropriate. Before the ALJ decides
the case, and upon terms he or she finds reasonable, any party may file
a brief, proposed findings of fact and conclusions of law, or both.
(b) Any oral argument, brief, or proposed findings of fact and
conclusions of law form part of the record of the proceeding, as
described in Sec. 20.903.
Subpart H--Evidence
Sec. 20.801 General.
Any party may present his or her case or defense by oral,
documentary, or demonstrative evidence; submit rebuttal evidence; and
conduct any cross-examination that may be necessary for a full and true
disclosure of the facts.
Sec. 20.802 Admissibility of evidence.
(a) The ALJ may admit any relevant oral, documentary, or
demonstrative evidence, unless privileged. Relevant evidence is
evidence tending to make the existence of any material fact more
probable or less probable than it would be without the evidence.
(b) The ALJ may exclude evidence if its probative value is
substantially outweighed by the danger of prejudice, by confusion of
the issues, or by reasonable concern for undue delay, waste of time, or
needless presentation of cumulative evidence.
Sec. 20.803 Hearsay evidence.
Hearsay evidence is admissible in proceedings governed by this
part. The ALJ may consider the fact that evidence is hearsay when
determining its probative value.
Sec. 20.804 Objections and offers of proof.
(a) Any party objecting to the admission or exclusion of evidence
shall concisely state the grounds. A ruling on every objection must
appear in the record. No party may raise an objection on appeal unless
he or she raised it before the ALJ.
(b) Whenever evidence is excluded, the party offering such evidence
may make an offer of proof, which must appear in the record.
[[Page 16747]]
Sec. 20.805 Proprietary information.
(a) The ALJ may limit introduction of evidence or issue such
protective or other orders as in his or her judgment are consistent
with the object of preventing undue disclosure of proprietary matters,
including, among others, ones of a commercial nature.
(b) When the ALJ determines that information in a document
containing proprietary matters should be made available to another
party, the ALJ may direct the party possessing the document to prepare
a non-proprietary summary or extract of it. The summary or extract may
be admitted as evidence in the record.
(c) If the ALJ determines that a non-proprietary summary or extract
is inadequate and that proprietary matters must form part of the record
to avert prejudice to a party, the ALJ may so advise the parties and
arrange access to the evidence for a party or representative.
Sec. 20.806 Official notice.
The ALJ may take official notice of such matters as could courts,
or of other facts within the specialized knowledge of the Coast Guard
as an expert body. When all or part of a decision rests on the official
notice of a material fact not appearing in the evidence in the record,
the decision must state as much; and any party, upon timely request,
shall receive an opportunity to rebut the fact.
Sec. 20.807 Exhibits and documents.
(a) Each exhibit must be numbered and marked for identification by
the party offering it. The original of each exhibit so marked, whether
or not offered or admitted into evidence, must be filed and retained in
the record of the proceeding, unless the ALJ permits the substitution
of a copy. The party introducing each exhibit so marked shall supply
the exhibit to the ALJ and to every party to the proceeding.
(b) Unless the ALJ directs otherwise, each party who would offer an
exhibit upon direct examination shall make it available to every other
party for inspection 15 days or more before the hearing. The ALJ will
deem admitted the authenticity of each exhibit submitted before the
hearing unless a party either files written objection and serves it on
all parties or shows good cause for failure to do both.
(c) In class II civil penalty proceedings under 33 U.S.C.
1321(b)(6), each exhibit introduced by an interested person must be
marked, and filed and retained in the record of the proceeding, unless
the ALJ permits the substitution of a copy. The interested person shall
supply the exhibit to the ALJ and to every party to the proceeding. The
requirements of paragraph (b) of this section apply to any interested
person who would offer an exhibit upon direct examination.
Sec. 20.808 Written testimony.
The ALJ may enter into the record the written testimony of a
witness. The witness shall be, or have been, available for oral cross-
examination. The statement must be sworn to, or affirmed, under penalty
of perjury.
Sec. 20.809 Stipulations.
Any party or interested person may stipulate, in writing, at any
stage of the proceeding, or orally at the hearing, to any pertinent
fact or other matter fairly susceptible of stipulation. A stipulation
binds all parties to it.
Subpart I--Decisions
Sec. 20.901 Summary decisions.
(a) Any party, after commencement of the proceeding and 15 days or
more before the date fixed for the hearing, may, with or without
supporting affidavits, move for a summary decision in all or any part
of the proceeding on the grounds that there is no genuine issue of
material fact and that the party is entitled to a decision as a matter
of law. Any other party may, 10 days or less after service of the
motion, serve opposing affidavits or countermove for summary decision.
The ALJ may set the matter for argument and call for the submission of
briefs.
(b) The ALJ may grant the motion if the filed affidavits,
documents, material obtained by discovery or otherwise, or matters
officially noted show that there is no genuine issue of material fact
and that a party is entitled to a summary decision as a matter of law.
(c) Each affidavit must set forth such matters as would be
admissible in evidence and must show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. Once a
party has moved for summary decision and supported his or her motion as
provided in this section, no party opposing the motion may rest upon
the mere allegations or denials of facts contained in his or her own
pleadings. The response to the motion, by affidavit or as otherwise
provided in this section, must provide a specific basis to show that
there is a genuine issue of material fact for the hearing.
(d) If it appears from the affidavit of a party opposing the motion
that this party cannot, for reasons stated, present by affidavit
matters essential to justify his or her opposition, the ALJ may deny
the motion for summary decision, may order a continuance to enable the
obtaining of information, or may make such other order as is just.
(e) No denial of all or any part of a motion for summary decision
is subject to interlocutory appeal.
Sec. 20.902 Decisions of the ALJ.
(a) After closing the record of the proceeding, the ALJ shall
prepare a decision containing--
(1) A finding on each material issue of fact and conclusion of law,
and the basis for each finding;
(2) The disposition of the case, including the assessment of a
class II civil penalty or an order of suspension or revocation, as
appropriate;
(3) The date upon which the decision will become effective;
(4) A statement of further right to appeal; and,
(5) If no hearing was held, a statement of the right of any
interested person to petition the Commandant to set aside the decision.
(b) The decision of the ALJ must rest upon a consideration of the
whole record of the proceedings.
(c) The ALJ may, upon motion of any party or in his or her own
discretion, render the initial decision from the bench (orally) at the
close of the hearing and prepare and serve a written order on the
parties or their authorized representatives. In rendering his or her
decision from the bench, the ALJ shall state the issues in the case and
make clear, on the record, his or her findings of fact and conclusions
of law.
(d) If the ALJ renders the initial decision orally, and if a party
asks for a copy, the Hearing Docket Clerk shall furnish a copy
excerpted from the transcript of the record. The date of the decision
is the actual date of the oral rendering of the decision by the ALJ.
Sec. 20.903 Records of proceedings.
(a) The transcript of testimony at the hearing, all exhibits
received into evidence, any items marked as exhibits and not received
into evidence, all motions, all applications, all requests, and all
rulings constitute the official record of a proceeding. This record
also includes any motions or other matters regarding the
disqualification of the ALJ.
(b) Any person may examine the record of a proceeding at the U.S.
Coast Guard Administrative Law Judge Docketing Center; Room 412; 40 S.
Gay Street; Baltimore, MD 21201-4022. Any person may obtain a copy of
part or all of the record after payment of reasonable costs for
duplicating it in accordance with 49 CFR part 7.
[[Page 16748]]
Sec. 20.904 Reopening.
(a) To the extent permitted by law, the ALJ may, for good cause
shown in accordance with paragraph (c) of this section, reopen the
record of a proceeding to take added evidence.
(b) Any party may move to reopen the record of a proceeding 30 days
or less after the closing of the record.
(1) Each motion to reopen the record must clearly set forth the
facts that the movant would try to prove and the grounds for reopening
the record.
(2) Any party who does not respond to any motion to reopen the
record waives any objection to the motion.
(c) The ALJ may reopen the record of a proceeding if he or she
believes that any change in fact or law, or that the public interest,
warrants reopening it.
(d) The filing of a motion to reopen the record of a proceeding
does not affect the periods for appeals specified in subpart J of this
part, except that a motion to reopen the record tolls the running of
whatever time remains in the period from the date of filing the motion
until either the ALJ acts on the motion or the party filing it
withdraws it.
(e)(1) The ALJ shall rescind any order suspending or revoking a
merchant mariner's license, certificate of registry, or document if--
(i) The order rests on a conviction--
(A) For violation of a dangerous drug law;
(B) Of an offense that would prevent the issuance or renewal of the
license, certificate, or document; or
(C) Of an offense described in subparagraph 205(a)(3)(A) or (B) of
the National Driver Register Act of 1982 [23 U.S.C. 401, note]; and
(ii) The respondent submits a specific order of court to the effect
that the conviction has been unconditionally set aside for all
purposes.
(2) The ALJ, however, may not rescind his or her order on account
of any law that provides for a subsequent conditional setting aside,
modification, or expunging of the order of court, by way of granting
clemency or other relief after the conviction has become final, without
regard to whether punishment was imposed.
(f) Three years or less after an S&R proceeding has resulted in
revocation of a license, certificate, or document, the respondent may
move the reopening of the proceeding to modify the order of revocation
to the ALJ Docketing Center.
(1) Any motion to reopen the record must clearly state why the
basis for the order of revocation is no longer valid and how the
issuance of a new license, certificate, or document is compatible with
the requirement of good discipline and safety at sea.
(2) Any party who does not respond to any motion to reopen the
record waives any objection to the motion.
Subpart J--Appeals
Sec. 20.1001 General.
Any party may appeal the ALJ's decision by filing a notice of
appeal. The party shall file the notice with the U. S. Coast Guard
Administrative Law Judge Docketing Center; Attention: Hearing Docket
Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-4022. The party
shall file the notice 30 days or less after issuance of the decision,
and shall serve a copy of it on the other party and each interested
person.
(b) No party may appeal except on the following issues:
(1) Whether each finding of fact is supported by substantial
evidence.
(2) Whether each conclusion of law accords with applicable law,
precedent, and public policy.
(3) Whether the ALJ abused his or her discretion.
(4) The ALJ's denial of a motion for disqualification.
(c) No interested person may appeal a summary decision except on
the issue that no hearing was held or that in the issuance of the
decision the ALJ did not consider evidence that that person would have
presented.
(d) The appeal must follow the procedural requirements of this
subpart.
Sec. 20.1002 Records on appeal.
(a) The record of the proceeding constitutes the record for
decision on appeal.
(b) If the respondent requests a copy of the transcript of the
hearing as part of the record of proceeding, then,--
(1) If the hearing was recorded at Federal expense, the Coast Guard
will provide the transcript on payment of the fees prescribed in 49 CFR
7.95; but,
(2) If the hearing was recorded by a Federal contractor, the
contractor will provide the transcript on the terms prescribed in 49
CFR 7.99.
Sec. 20.1003 Procedures for appeal.
(a) Each party appealing the ALJ's decision or ruling shall file an
appellate brief with the Commandant at the following address:
Commandant (G-LMI); U.S. Coast Guard Headquarters; 2100 Second St.,
S.W.; Washington, D.C. 20593 and shall serve a copy of the brief on
every other party.
(1) The appellate brief must set forth the appellant's specific
objections to the decision or ruling. The brief must set forth, in
detail, the--
(i) Basis for the appeal;
(ii) Reasons supporting the appeal; and
(iii) Relief requested in the appeal.
(2) When the appellant relies on material contained in the record
for the appeal, the appellate brief must specifically refer to the
pertinent parts of the record.
(3) The appellate brief must reach the Commandant 60 days or less
after service of the ALJ's decision. If a brief is not filed within
this time, or within another time period authorized in writing by the
Commandant, it will be considered not timely.
(b) Any party may file a reply brief with the Commandant 35 days or
less after service of the appellate brief. Each such party shall serve
a copy on every other party. If the party filing the reply brief relies
on evidence contained in the record for the appeal, that brief must
specifically refer to the pertinent parts of the record.
(c) No party may file more than one appellate brief or reply brief,
unless
(1) The party has petitioned the Commandant in writing and
(2) The Commandant has granted leave to file an added brief. The
Commandant will allow a reasonable time for the party to file any
additional brief.
(d) The Commandant may accept an amicus curiae brief from any
person in an appeal of an ALJ's decision.
Sec. 20.1004 Decisions on appeal.
(a) The Commandant shall review the record on appeal to determine
whether the ALJ committed prejudicial error in the proceedings, and
whether the Commandant should affirm, modify, or reverse the ALJ's
decision or should remand the case for further proceedings. The
Commandant may take any of these four actions.
(b) The Commandant shall issue a decision on every appeal in
writing and shall serve a copy of the decision on each party and
interested person.
Subpart K--Finality, Petitions for Hearing, and Availability of
Orders
Sec. 20.1101 Finality.
(a) Civil penalty proceeding. (1) Unless appealed pursuant to
Subpart J of this part, an ALJ's decision becomes an order assessing or
denying a class II civil penalty 30 days after the date of its
issuance.
(2) If the Commandant issues a decision under subpart J of this
part, the decision constitutes an order of the Commandant assessing or
denying a class II civil penalty on the date of its issuance.
(b) S&R proceedings. (1) Unless appealed pursuant to Subpart J of
this part, an ALJ's decision becomes final
[[Page 16749]]
action of the Coast Guard 30 days after the date of its issuance.
(2) If the Commandant issues a decision under subpart J of this
part, this decision constitutes final action of the Coast Guard on the
date of its issuance.
Sec. 20.1102 Petitions to set aside decisions and provide hearings for
civil penalty proceedings.
(a) If no hearing takes place on a complaint for a class II civil
penalty, any interested person may file a petition, 30 days or less
after the issuance of an order assessing or denying a civil penalty,
asking the Commandant to set aside the order and to provide a hearing.
(b) If the Commandant decides that evidence presented by an
interested person in support of a petition under paragraph (a) of this
section is material and that the ALJ did not consider the evidence in
the issuance of the decision, the Commandant shall set aside the
decision and direct that a hearing take place in accordance with the
requirements of this part.
(c) If the Commandant denies a hearing sought under this section,
he or she shall provide to the interested person, and publish in the
Federal Register, notice of and the reasons for the denial.
Sec. 20.1103 Availability of decisions.
(a)(1) Copies and indices of decisions on appeal are available for
inspection and copying at--
(i) The document inspection facility at the office of any Coast
Guard District, Activity, or Marine Safety Office;
(ii) The public reading room at Coast Guard Headquarters; and
(iii) The public reading room of the Coast Guard ALJ Docketing
Center; Baltimore, Maryland.
(2) Appellate decisions in S&R proceedings, and both appellate and
ALJs' decisions on class II civil penalties, are available on the
Department of Transportation Home Page at www.dot.gov or the Coast
Guard Home Page at www.uscg.mil.
(b) Any person wanting a copy of a decision may place a request
with the Hearing Docket Clerk. The Clerk will bill the person on the
terms prescribed in 49 CFR 7.93.
Subpart L--Expedited Hearings
Sec. 20.1201 Application.
(a) This subpart applies whenever the Coast Guard suspends a
merchant mariner's license, certificate of registry, or document
without a hearing under 46 U.S.C 7702(d).
(b) The Coast Guard may, for 45 days or less, suspend and seize a
license, certificate, or document if, when acting under the authority
of the license, certificate, or document--
(1) A mariner performs a safety-sensitive function on a vessel; and
(2) There is probable cause to believe that he or she--
(i) Has performed the safety-sensitive function in violation of law
or Federal regulation regarding use of alcohol or a dangerous drug;
(ii) Has been convicted of an offense that would prevent the
issuance or renewal of the license, certificate, or document; or,
(iii) Three years or less before the start of an S&R proceeding,
has been convicted of an offense described in subparagraph 205(a)(3)
(A) or (B) of the National Driver Register Act of 1982 [23 U.S.C. 401,
note].
Sec. 20.1202 Filing of pleadings.
(a) Complaint. If the Coast Guard has temporarily suspended a
merchant mariner's license, certificate of registry, or document, it
shall immediately file a complaint under Sec. 20.307. The complaint
must contain both a copy of a notice of temporary suspension and an
affidavit stating the authority and reason for temporary suspension.
(b) Answer. In a case under this subpart,
(1) Sec. 20.308 does not govern answers and
(2) The respondent shall therefore enter his or her answer at the
pre-hearing conference.
Sec. 20.1203 Commencement of expedited hearings.
Upon receipt of a complaint with a copy of the notice of temporary
suspension and the affidavit supporting the complaint, the Chief ALJ
will immediately assign an ALJ and designate the case for expedited
hearing.
Sec. 20.1205 Motion for return of temporarily suspended license,
certificate of registry, or document.
(a) Procedure. At any time during the proceedings, the respondent
may move that his or her license, certificate of registry, or document
be returned on the grounds that the agency lacked probable cause for
temporary suspension. The motion must be in writing and explain why the
agency lacked probable cause.
(b) Ruling. If the ALJ grants the motion, the ALJ may issue such
orders as are necessary for the return of the suspended license,
certificate, or document and for the matter to continue in an orderly
way under standard procedure.
Sec. 20.1206 Discontinuance of expedited hearings.
(a) Procedure. At any time during the proceedings, the respondent
may move that the expedited hearing discontinue and that the matter
continue under standard procedure. A motion to discontinue must be in
writing and explain why the case is inappropriate for expedited
hearing.
(b) Ruling. If the ALJ grants the motion to discontinue, the ALJ
may issue such orders as are necessary for the matter to continue in an
orderly way under standard procedure.
Sec. 20.1207 Pre-hearing conferences.
(a) When held. As early as practicable, the ALJ shall order and
conduct a pre-hearing conference. He or she may order the holding of
the conference in person, or by telephonic or electronic means.
(b) Answer. The respondent shall enter his or her answer at the
pre-hearing conference. If the answer is an admission, the ALJ shall
either issue an appropriate order or schedule a hearing on the order.
(c) Content. At the pre-hearing conference, the parties shall:
(1) Identify and simplify the issues in dispute and prepare an
agreed statement of issues, facts, and defenses.
(2) Establish a simplified procedure appropriate to the matter.
(3) Fix a time and place for the hearing 30 days or less after the
temporary suspension.
(4) Discuss witnesses and exhibits. The ALJ shall issue an order
directing the exchange of witness lists and documents.
(d) Order. Before the close of the pre-hearing conference, the ALJ
shall issue an order setting forth any agreements reached by the
parties. The order must specify the issues for the parties to address
at the hearing.
(e) Procedures not to cause delay. Neither any filing of pleadings
or motions, nor any conduct of discovery, may interfere with:
(1) The holding of the hearing 30 days or less after the temporary
suspension or
(2) The closing of the record early enough for the issuance of an
initial decision 45 days or less after the temporary suspension.
(f) Times. The ALJ may shorten the time for any act required or
permitted under this subpart to enable him or her to issue an initial
decision 45 days or less after the temporary suspension.
Sec. 20.1208 Expedited hearings.
(a) Procedures. As soon as practicable after the close of the pre-
hearing conference, the ALJ shall hold a hearing, under subpart G of
this part, on any issue that remains in dispute.
[[Page 16750]]
(b) Oral and written argument. Each party may present oral argument
at the close of the hearing. The ALJ shall issue a schedule, such as
will enable him or her to consider the findings and briefs without
delaying the issuance of the decision, for the filing of:
(1) Proposed findings of fact and conclusions of law and
(2) Post-hearing briefs, both under Sec. 20.710.
(c) ALJ's decision. The ALJ may render his or her decision from the
bench. Alternatively, he or she may issue a written decision. He or she
shall render or issue the decision 45 days or less after the temporary
suspension.
Sec. 20.1209 Appeals of ALJs' decisions.
Any party may appeal the ALJ's decision as provided in Subpart J.
Subpart M--Evidentiary Rules for Suspension and Revocation Hearings
Sec. 20.1301 Purpose.
This subpart contains evidentiary rules that apply only in certain
circumstances in S&R proceedings. They supplement, not supplant, the
evidentiary rules in Subpart H.
Sec. 20.1303 Authentication and certification of extracts from
shipping articles, logbooks, and the like.
(a) The investigating officer, the Coast Guard representative, any
other commissioned officer of the Coast Guard, or any official
custodian of extracts from shipping articles, logbooks, or records in
the custody of the Coast Guard may authenticate and certify the
extracts.
(b) Authentication and certification must include a statement that
the person acting has seen the original, compared the copy with it, and
found the copy to be a true one. This person shall sign his or her name
and identify himself or herself by rank or title and by duty station.
Sec. 20.1305 Admissibility and weight of entries from logbooks.
(a) Any entry in any official logbook of a vessel concerning an
offense enumerated in 46 U.S.C. 11501, made in substantial compliance
with the procedural requirements of 46 U.S.C. 11502, is admissible in
evidence and constitutes prima facie evidence of the facts recited.
(b)(1) Any entry in any logbook of a vessel is admissible into
evidence as a record of a regularly conducted activity and, therefore,
does not constitute hearsay.
(2) Any entry in any such logbook made in substantial compliance
with the procedural requirements of 46 U.S.C. 11502 may receive added
weight from the ALJ.
Sec. 20.1307 Use of judgments of conviction.
(a) A judgment of conviction by a Federal court is conclusive in
any S&R proceeding under this part concerning any incident described in
46 U.S.C. 7703 when an act or offense forming the basis of the charge
in the proceeding is the same as in the court.
(b) Except as provided in paragraph (c) of this section, no
judgment of conviction by a State court is conclusive in any S&R
proceeding under this part concerning any incident described in 46
U.S.C. 7703, even when an act or offense forming the basis of the
charge in the proceeding is the same as in the court. But the judgment
is admissible in evidence and constitutes substantial evidence adverse
to the respondent.
(c) An S & R proceeding is conclusive if it is based on a
conviction by a Federal or State court for--
(1) The violation of a dangerous drug law;
(2) An offense that would prevent the issuance or renewal of the
merchant mariner's license, certificate of registry, or document; or
(3) An offense described in subparagraph 205(a)(3)(A) or (B) of the
National Driver Register Act of 1982 [23 U.S.C. 401, note].
(d) If the respondent participates in the scheme of a State for the
expunging of convictions, and if he or she pleads guilty or no contest
or, by order of the trial court, has to attend classes, contribute time
or money, receive treatment, submit to any manner of probation or
supervision, or forgo appeal of finding of the trial court, the Coast
Guard regards him or her, for the purposes of 46 U.S.C. 7704, as having
received a final conviction. The Coast Guard does not consider the
conviction expunged without proof that the expunging is due to the
conviction's having been in error.
(e) No respondent may challenge the jurisdiction of a Federal or
State court in any proceeding under 46 U.S.C. 7703 or 7704.
Sec. 20.1309 Admissibility of respondents' criminal records and
records with the Coast Guard before entry of findings and conclusions.
(a) The prior disciplinary record of the respondent is admissible
when offered by him or her.
(b) The prior disciplinary record of the respondent is admissible
when offered by the Coast Guard representative to impeach the
credibility of evidence offered by the respondent.
(c) The use of a judgment of conviction is permissible on the terms
prescribed by Sec. 20.1307.
Sec. 20.1311 Admissions by respondent.
No person may testify regarding admissions made by the respondent
during an investigation under 46 CFR part 4, except to impeach the
credibility of evidence offered by the respondent.
Sec. 20.1313 Medical examination of respondents.
In any proceeding in which the physical or mental condition of the
respondent is relevant, the ALJ may order him or her to undergo a
medical examination. Any examination ordered by the ALJ is conducted,
at Federal expense, by a physician designated by the ALJ. If the
respondent fails or refuses to undergo any such examination, the
failure or refusal receives due weight and may be sufficient for the
ALJ to infer that the results would have been adverse to the
respondent.
Sec. 20.1315 Submission of prior records and evidence in aggravation
or mitigation.
(a) The prior disciplinary record of the respondent comprises the
following items less than 10 years old:
(1) Any written warning issued by the Coast Guard and not contested
by the respondent.
(2) Final agency action by the Coast Guard on any S&R proceeding in
which at least one charge was proved.
(3) Any agreement for voluntary surrender entered into by the
respondent.
(4) Any final judgment of conviction in Federal or State courts.
(5) Final agency action by the Coast Guard resulting in the
imposition against the respondent of any civil penalty or warning in a
proceeding administered by the Coast Guard under 33 CFR subpart 1.07.
(6) Any official commendatory information concerning the respondent
of which the Coast Guard representative is aware. The Coast Guard
representative may offer evidence and argument in aggravation of any
charge proved. The respondent may offer evidence of, and argument on,
prior maritime service, including both the record introduced by the
Coast Guard representative and any commendatory evidence.
(b) The respondent may offer evidence and argument in mitigation of
any charge proved.
(c) The Coast Guard representative may offer evidence and argument
in rebuttal of any evidence and argument offered by the respondent in
mitigation.
[[Page 16751]]
PART 5--MARINE INVESTIGATION REGULATIONS--PERSONNEL ACTION
2. The authority citation for 46 CFR Part 5 continues to read as
follows:
Authority: 46 U.S.C. 2103, 7101, 7301, 7701; 49 CFR 1.46.
Sec. 5.1 [Removed]
3. Remove Sec. 5.1
Sec. 5.3 [Amended]
4. In Sec. 5.3 remove the words ``and procedures.''
Sec. 5.11 [Removed]
5. Remove Sec. 5.11.
Sec. 5.13 [Removed]
6. Remove Sec. 5.13.
Sec. 5.23 [Removed]
7. Remove Sec. 5.23.
Sec. 5.25 [Removed]
8. Remove Sec. 5.25.
Sec. 5.33 [Amended]
9. In Sec. 5.33 remove the words ``the charge shall be violation of
law or violation of regulation. The specification shall'', and add, in
their place, the words ``the complaint in any case of violation of law
or violation of regulation shall''.
Sec. 5.35 [Amended]
10. In Sec. 5.35 remove the words ``the charge will be'' from the
first sentence and add, in their place, the words ``the complaint will
allege''; and in the first and second sentences remove the words
``circumstances. The specification'' and add, in their place, the words
``circumstances and''.
Sec. 5.53 [Removed]
11. Remove Sec. 5.53.
Sec. 5.55 [Amended]
12. In the section heading for Sec. 5.55 remove the words ``charges
and specifications'' and add, in their place, the words ``a
complaint''; and in paragraph (a) remove the words ``various charges
and specifications'' and add, in their place, the words ``a
complaint''.
Sec. 5.63 [Removed]
13. Remove Sec. 5.63.
Sec. 5.65 [Removed]
13a. Remove Sec. 5.65.
Sec. 5.105 [Amended]
14. In Sec. 5.105(a) remove the words ``Prefer charges'', and add,
in their place, ``Issue complaint''.
15. Revise Sec. 5.107 to read as follows:
Sec. 5.107 Service of complaints.
(a) When the investigating officer prefers charges, he or she shall
prepare and serve a complaint in accordance with 33 CFR part 20.
(b) When the investigating officer serves the complaint, he or she
shall also advise the respondent--
(1) Of the nature of suspension and revocation proceedings and
their possible results;
(2) Of the right to be represented at the hearing by another
person, who may, but need not, be a lawyer;
(3) Of the right to obtain witnesses, records, and other evidence
by subpoena; and
(4) That failure or refusal to answer the complaint or to appear at
the time, date, and place specified for the hearing may result in a
finding of default, which will constitute an admission of the facts
alleged in the complaint and the waiver of his or her right to a
hearing.
16. Revise Sec. 5.305 to read as follows:
Sec. 5.305 Quashing a subpoena.
Any person subpoenaed to appear to produce evidence at a hearing
may request that the subpoena be quashed or modified using the
procedures in 33 CFR 20.609.
17. Revise Sec. 5.501 to read as follows:
Sec. 5.501 General.
A hearing concerning the suspension or revocation of a merchant
mariner's license, certificate of registry, or document is a formal
adjudication under the Administrative Procedure Act (APA) [5 U.S.C.
551, et seq.]. It is presided over by, and conducted under the
exclusive control of, an Administrative Law Judge in accordance with
applicable requirements in the APA, the rules in this part, and the
rules of administrative practice at 33 CFR part 20. The Judge shall
regulate and conduct the hearing so as to bring out all the relevant
and material facts and to ensure a fair and impartial hearing.
Secs. 5.503 through 5.519 [Removed]
18. Remove Secs. 5.503 through 5.519.
Secs. 5.523 through 5.565 [Removed]
19. Remove Secs. 5.523 through 5.565.
Secs. 5.571 through 5.577 [Removed]
20. Remove Secs. 5.571 through 5.577.
Secs. 5.601 through 5.607 [Removed]
21. Remove and reserve subpart I, consisting of Secs. 5.601 through
5.607.
22. Revise Sec. 5.701 to read as follows:
Sec. 5.701 Appeals in general.
A party may appeal the decision of an Administrative Law Judge
under the procedures in subpart J of 33 CFR part 20. A party may appeal
only the following issues:
(a) Whether each finding of fact rests on substantial evidence.
(b) Whether each conclusion of law accords with applicable law,
precedent, and public policy.
(c) Whether the Judge committed any abuses of discretion.
(d) The Judge's denial of a motion for his or her disqualification.
Secs. 5.703 through 5.705 [Removed]
23. Remove Secs. 5.703 through 5.705.
Sec. 5.709 [Removed]
24. Remove Sec. 5.709.
Sec. 5.711 [Removed]
25. Remove Sec. 5.711.
Dated: March 29, 1998.
P.M. Blayney,
Chief Counsel.
[FR Doc. 98-8830 Filed 4-3-98; 8:45 am]
BILLING CODE 4910-14-P
