Class II Civil Penalties Under the Federal Water Pollution Control Act and the Comprehensive Environmental Response, Compensation and Liability Act

Federal RegisterMar 30, 1994

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SUMMARY: The Coast Guard is issuing final regulations addressing

practice and procedure for cases assessing class II civil penalties

under section 311(b) of the Federal Water Pollution Control Act

(FWPCA), as amended by the Oil Pollution Act of 1990 (OPA 90), and

section 109 of the Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA). All class II penalties will be assessed

following notice and opportunity to be heard in proceedings that meet

the requirements of the Administrative Procedure Act (APA). The

regulations provide for public notice of a class II civil penalty

action and an opportunity for interested persons to comment on the

proposed civil penalty, to present evidence at a hearing, and to seek a

hearing if none is held. The regulations make available the enhanced

enforcement capabilities provided by the OPA 90 amendments to the

FWPCA.

EFFECTIVE DATE: March 30, 1994.

FOR FURTHER INFORMATION CONTACT: Walter D. Rabe, Marine Investigation

Division (G-MMI), U.S. Coast Guard Headquarters, between 8 a.m. and 4

p.m., Monday through Friday, except Federal holidays, (202) 267-1430.

SUPPLEMENTARY INFORMATION:

Drafting Information

The principal persons involved in drafting this document are George

J. Jordan, Attorney-Advisor, Office of the Chief Administrative Law

Judge, U.S. Coast Guard Headquarters and Pamela M. Pelcovits, Attorney-

Advisor, OPA 90 Staff, U.S. Coast Guard Headquarters.

Background and Purpose

Section 4301 of OPA 90 (Pub. L. 101-380) amends the civil penalties

provisions of section 311(b) of the FWPCA (33 U.S.C. 1321(b)) by

establishing three types of civil penalties: Class I, class II, and

judicial. Under 33 U.S.C. 1321(b)(6), the owner, operator, or person in

charge of a vessel or onshore or offshore facility from which oil or

hazardous substances are discharged in violation of 33 U.S.C.

1321(b)(3) may be assessed a class I or class II civil penalty. Also, a

failure or refusal to comply with regulations issued under 33 U.S.C.

1321(j), dealing with, among other things, pollution prevention,

removal, and response planning, may lead to the assessment of a class I

or class II penalty. OPA 90 also amends 33 U.S.C. 1321(b) by increasing

the maximum civil penalty which may be assessed for those violations in

accordance with the procedures set out in 33 CFR subpart 1.07. Where

those procedures are used, the dollar amount has been increased from

$5,000 to a maximum of $10,000 per violation with a penalty not to

exceed $25,000 (``Class I'')

OPA 90 also provided a ``Class II'' civil penalty assessment

authority. The amount of a class II civil penalty assessment must not

exceed $10,000 per violation per day with a maximum penalty assessment

not to exceed $125,000. The OPA 90 amendments provide extensive

procedural requirements for a class II civil penalty assessment

resulting from a violation of section 311 of the FWPCA. In order to

assess a class II civil penalty, the person charged with a violation of

section 311 of the FWPCA (the ``respondent'') in the preamble and the

regulations) must be afforded notice and opportunity for a hearing on

the record in accordance with the formal procedures set out in the APA

(5 U.S.C. 554). Additionally, there must be public notice and an

opportunity for comment before the Coast Guard issues an order

assessing a class II civil penalty for a violation of section 311 of

the FWPCA. The Coast Guard must provide an opportunity for all persons

who commented on the proposed assessment (the ``interested person'' in

the preamble and the regulations) to attend and present evidence at any

hearing held in the case or to petition for a hearing if there has been

none. This final rule establishes procedures for class II civil

penalties.

The Coast Guard also is responsible for the assessment of civil

penalties under section 109 of CERCLA (42 U.S.C. 9609(b)). Section 109

of the CERCLA also divides administratively assessed penalties into

class I and class II. With the exception of public notice and

interested person participation, that section's penalty provisions and

procedural requirements for assessing class II penalties are similar to

those in section 311 of the FWPCA. Since these regulations will also

address the assessment of class II civil penalties under section 109 of

the CERCLA, they provide for public notice and interested person

participation in class II proceedings under section 109 of the CERCLA,

to the extent permitted by law.

Regulatory Procedure

The Coast Guard published these procedural regulations as an

interim final rule (IFR) (58 FR 17926, April 6, 1993), effective upon

publication, in order to make available the enhanced enforcement

capabilities provided by the OPA 90 amendments to the FWPCA. At the

same time, the Coast Guard requested comment on these rules and

provided that the rules would not apply to respondents so requesting.

No Class II civil penalty complaints have been filed to date. Since it

is in the public interest to have all class II civil penalty cases

processed under the same procedural rules and in order not to delay the

application of the regulations, the Coast Guard has determined that,

under 5 U.S.C. 553(d), good cause also exists for making the final

regulations effective upon publication.

Discussion of Comments and Changes

The Coast Guard received eight letters commenting on the IFR. One

letter suggested that class II penalty assessments should vary

according to the nature of the violation, the damages caused, and any

prior violations. Under section 311(b)(8) of the FWPCA and the

regulations, the Administrative Law Judge has sufficient authority to

consider these elements in reaching a decision. This commenter also

urged that penalties be assessed under these regulations against

employees for personal and willful neglect of safety, in the case where

an employer makes efforts to comply. As provided in section

311(b)(6)(A) of the FWPCA, penalties for violations are assessed

against the owner, operator, or person in charge of a vessel or certain

facilities. No changes to the regulations were made in response to this

letter.

Three commenters stated that the regulated community needs to know

under what circumstances the Coast Guard will apply the class I or

class II civil penalty procedures. The Coast Guard agrees with this

comment. On June 1, 1993 the Coast Guard issued COMDTNOTE 5830 which

amends COMDTINST 16200.3A and advises local units on how to choose a

class I or class II civil penalty proceeding. That selection process

relates to enforcement decisionmaking and lies outside the scope of

rulemaking. Copies of COMDTNOTE 5830 are available to the public from

the Marine Investigation Division at the telephone number listed under

For Further Information.

Six commenters addressed the issue of what kind of participation

should be available to anyone other than a party to a class II

proceeding. The IFR incorporated the limited participation for

interested persons described in the OPA amendments to the FWPCA. Three

comments endorsed the exclusion of interested persons from settlement

conferences, and two of the comments also stressed that interested

persons should not have the right to cross-examine witnesses or to

subpoena witnesses to appear at hearings. Two commenters supported the

Coast Guard's decision in the IFR not to provide for intervention.

Another commenter stated that intervention should be permitted, in

limited circumstances, if the potential intervenor has a property,

financial, or other legitimate interest that would be affected by a

decision. In support of this position, the commenter noted that since

the outcome of a class II proceeding might be admissible in subsequent

proceedings, someone whose interests are directly affected should be

permitted to participate.

After reviewing these comments, the Coast Guard concludes that

permitting non-parties to intervene would not be appropriate for its

class II proceedings. The Coast Guard finds that the provisions of the

IFR allow an appropriate mechanism for non-parties to present

additional relevant information to the Administrative Law Judge. To

avoid disparate procedures for class II proceedings under section

311(b) of the FWPCA and section 109 of CERCLA, the Coast Guard has

revised the language of Sec. 20.402 and Sec. 20.404 to delete the

language limiting their application to cases arising under section

311(b) of the FWPCA.

One comment supported the Coast Guard's reference to alternative

dispute resolution in the regulations.

Five commenters addressed issues related to service of documents.

One commenter suggested that the Coast Guard use the term ``mail,''

rather than ``first class mail,'' consistently through the regulations.

The Coast Guard agrees and has revised the regulations. This commenter

also said that 14 days was inadequate time to allow for service by mail

to foreign countries. The Coast Guard agrees and has extended the time

allowed for service by mail in Sec. 20.306(c) to 20 days.

One commenter stated that provisions concerning service were

inadequate with respect to the owners and operators of foreign flag

vessels, as the Coast Guard lacks authority for service in foreign

countries, either by mail or in person. The Coast Guard finds that no

changes to the regulations are necessary in response to this comment.

While the Coast Guard recognizes that there is a potential for problems

associated with service and enforcement of civil penalties against

owners and operators of foreign flag vessels, its experience with the

administrative assessment of civil penalties under section 311 of the

FWPCA and other statutes demonstrates this not to be a serious concern.

Notably, the bond or other surety which may be obtained instead of

clearance denial under section 311(b)(12) of the FWPCA may assist in

this regard.

Three commenters asked the Coast Guard to limit service to personal

service because of the possibility that respondents may be at sea for

lengthy periods and to avoid unnecessary default judgments. The Federal

Rules of Civil Procedure already provide for service by mail and are

currently being revised to permit additional flexibility. The Coast

Guard believes it would be inappropriate to more in a more restrictive

direction in these regulations and has made no change.

One comment suggested that a statement in the preamble to the IFR

concerning official notice by an Administrative Law Judge was

inconsistent with the evidentiary standard of ``preponderance of the

evidence'' set out in the IFR. While language in the preamble may have

been confusing, the Coast Guard finds that the language of Sec. 20.806,

which describes the kind of information that may be officially noticed

and provides for the opportunity to show the contrary, is clear and

appropriate.

One comment stated that the discovery provisions of the IFR are not

adequate in that discovery is permitted not as a matter of right but

only at the discretion of the Administrative Law Judge. The Coast Guard

does not agree. The statute at section 311(b)(6)(B)(ii) of the FWPCA

makes it clear that the provision of discovery is within the discretion

of the Coast Guard. Furthermore, the Model Adjudication Rules of the

Administrative Conference note that the scope of discovery is not

mandatory, but is a matter for agency discretion. The Coast Guard finds

that its discovery rules will permit flexible, but expedited,

proceedings.

Finally, one commenter suggested that references to 49 CFR part 7

in Secs. 20.903, 1002, 1102 should properly be to part 10. The Coast

Guard has determined that the references to part 7 are correct.

The Coast Guard has revised Sec. 20.311(a)(3) to clarify the basis

for a Coast Guard Representative filing a notice of withdrawal after

the filing of a responsive pleading by the respondent. The Coast Guard

Representative will file the notice together with a certification that

the withdrawal is made in response to a request by the Attorney General

that the Coast Guard refrain from administrative enforcement. The

authority of the Attorney General to review Coast Guard enforcement

actions in these proceedings is provided in section 10(d) of Executive

Order 12777 (56 FR 54757) which delegated the President's authority

under OPA 90.

The Coast Guard also has revised the language in Sec. 20.310,

Sec. 20.311, Sec. 20.404, and Sec. 20.1001 and renumbered Sec. 20.904

as Sec. 20.1102 to clarify that an interested person may appeal to the

Commandant when no hearing is held and to allow 30 days for filing an

appeal. Such an appeal would be limited to a request that a hearing be

held.

Regulatory Assessment

This rulemaking is not major under Executive Order 12866 and not

significant under the Department of Transportation Regulatory Policies

and Procedures (44 FR 11040, February 26, 1979). Because the Coast

Guard finds that these procedural rules will not have a direct economic

impact, no Regulatory Assessment is necessary.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the

Coast Guard must consider whether this rulemaking will have a

significant economic impact on a substantial number of small entities.

``Small entities'' include independently owned and operated small

businesses that are not dominant in their field and that otherwise

qualify as ``small business concerns'' under section 3 of the Small

Business Act (15 U.S.C. 632). Because it expects the impact of the

rulemaking to be minimal, the Coast Guard certifies under 5 U.S.C.

605(b) that this rulemaking will not have a significant economic impact

on a substantial number of small entities.

Collection of Information

This rulemaking contains no collection of information requirement

under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.).

Federalism

The Coast Guard has analyzed this rule under the principles and

criteria contained in Executive Order 12612 and has determined that

this rule does not have sufficient Federalism implications to warrant

the preparation of a Federalism Assessment.

Environment

The Coast Guard has considered the environmental impact of this

rulemaking and concluded that under section 2.B.2 of Commandant

Instruction M16475.1B, this rule is categorically excluded from further

environmental documentation. Procedural rules do not require

environmental impact studies. As described in the IFR, a Categorical

Exclusion Determination has been placed in the docket for this

rulemaking.

List of Subjects in 33 CFR Part 20

Administrative practice and procedure, Authority delegations

(Government agencies), Penalties, Water pollution control, Waterways.

For the reasons set forth in the preamble, 33 CFR part 20 is

revised as follows:

PART 20--CLASS II CIVIL PENALTIES

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 Complaint.

20.308 Answer.

20.309 Motions.

20.310 Default by respondent.

20.311 Withdrawal or dismissal.

Subpart D--Proceedings

20.401 Initiation of class II civil penalty proceedings.

20.402 Public notice.

20.403 Consolidation or severance of class II civil penalty

proceedings.

20.404 Interested persons.

Subpart E--Conferences and Settlement

20.501 Conferences.

20.502 Settlement.

20.503 Alternative dispute resolution.

Subpart F--Discovery

20.601 General.

20.602 Additional response.

20.603 Interrogatories.

20.604 Requests for production of documents or things for

inspection or other purposes.

20.605 Depositions.

20.606 Protective order.

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 hearing.

20.705 Failure to appear.

20.706 Witnesses.

20.707 Telephone testimony.

20.708 Witness 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 decision.

20.902 Decision of Administrative Law Judge.

20.903 Record of proceedings.

20.904 Reopening.

Subpart J--Appeals

20.1001 General.

20.1002 Record on appeal.

20.1003 Procedures for appeal.

20.1004 Civil penalty appeal decisions.

Subpart K--Finality, Petition for Hearing, and Availability of

Decisions

20.1101 Finality.

20.1102 Petitions to set aside a decision and provide a hearing.

20.1103 Availability of decisions.

Authority: 33 U.S.C. 1321; 42 U.S.C. 9609; 49 CFR 1.46.

Subpart A--General

Sec. 20.101 Scope.

(a) Except as specifically noted, these rules of practice and

procedure apply to the following civil penalty proceedings before the

United States Coast Guard:

(1) Class II civil penalties assessed under section 311(b) of the

Federal Water Pollution Control Act, (33 U.S.C. 1321(b)(6)).

(2) Class II civil penalties assessed under section 109 of the

Comprehensive Environmental Response, Compensation and Liability Act

(42 U.S.C. 9609(b)).

(b) In the absence of a specific provision in this part, the

Federal Rules of Civil Procedure will be generally followed.

Sec. 20.102 Definitions.

(a) Administrative Law Judge means any person designated by the

Commandant under the Administrative Procedure Act (5 U.S.C. 556(b)) for

the purpose of conducting hearings arising under 33 U.S.C. 1321(b) and

42 U.S.C. 9609(b).

(b) Chief Administrative Law Judge means the Administrative Law

Judge appointed as the Chief Administrative Law Judge of the U.S. Coast

Guard by the Commandant.

assessment of a civil penalty that offers an opportunity for an oral,

fact-finding hearing before an Administrative Law Judge.

(d) Coast Guard Representative means a Coast Guard official who has

been designated to prosecute a class II civil penalty.

(e) Commandant means the Commandant of the U.S. Coast Guard. The

term Commandant includes the Vice-Commandant of the Coast Guard acting

on behalf of the Commandant in any proceeding.

(f) 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).

(g) Hearing Docket Clerk means an employee of the Office of the

Chief Administrative Law Judge who is responsible for receiving

documents, determining their completeness and legibility, and

distributing them to the Administrative Law Judge and others, as

required by this part.

(h) Interested person means a person who, as provided in

Sec. 20.404, files written comments on a proposed class II civil

penalty assessment or files written notice of intent to present

evidence in any hearing held on the proposed class II civil penalty

assessment.

(i) Mail includes U.S. first-class mail, U.S. certified mail, U.S.

registered mail, or an express courier service.

(j) Motion means a request for an order or ruling from an

Administrative Law Judge.

(k) Party means a respondent or the Coast Guard.

(l) Person includes an individual, partnership, corporation,

association, public or private organization, or a government agency.

(m) Personal delivery includes hand delivery or use of a contract

or express courier service. ``Personal delivery'' does not include the

use of government interoffice mail service.

(n) Pleading means a complaint, an answer, any document and any

amendment to a document permitted under this part.

(o) Respondent means a person charged with a violation in a

complaint issued under this part.

Sec. 20.103 Construction and waiver of rules.

(a) These rules will be construed to secure a just, speedy, and

inexpensive determination in every class II civil penalty proceeding.

(b) Except to the extent that a waiver would be contrary to law,

the Commandant, the Chief Administrative Law Judge or a presiding

Administrative Law Judge may, after notice, waive any of these rules to

prevent undue hardship or manifest injustice, or if the expeditious

conduct of a case so requires.

Subpart B--Adminstrative Law Judges

Sec. 20.201 Assignment.

An Administrative Law Judge, assigned by the Chief Administrative

Law Judge following receipt of the complaint, shall preside over each

class II civil penalty proceeding.

Sec. 20.202 Powers.

The Administrative Law Judge shall have all powers necessary to the

conduct of fair, expeditious, and impartial hearings, including the

power to--

(a) Administer oaths and affirmations;

(b) Issue subpoenas authorized by law;

(d) Order discovery as provided in this part;

(e) Hold hearing 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,

disorderly or rebellious conduct; and

(j) Take any other action consistent with law and Coast Guard

policy authorized by the Chief Administrative Law Judge;

Sec. 20.203 Unavailability.

(a) In the event that an Administrative Law Judge is unable to

perform the duties described in Sec. 20.202 or otherwise becomes

unavailable, the Chief Administrative Law Judge shall designate a

successor.

(b) If a hearing has been commenced and an Administrative Law Judge

is unable to proceed, a successor Administrative Law Judge may proceed

with a hearing in a case. The successor Administrative Law Judge may,

at the request of a party, recall any witness whose testimony is

material and disrupted and who is available to testify again without

undue burden. The successor Administrative Law Judge may, within his or

her discretion, recall any other witness.

Sec. 20.204 Withdrawal or disqualification.

(a) An Administrative Law Judge may at any time disqualify herself

or himself.

(b) Prior to the filing of the Administrative Law Judge's decision,

either party may move that the Administrative Law Judge disqualify

herself or himself on the ground of personal bias or other

disqualification, by filing with the Administrative Law Judge promptly

upon discovery of the alleged facts an affidavit setting forth in

detail the matters alleged to constitute grounds for disqualification.

(1) The Administrative Law Judge shall rule upon the motion,

stating the grounds for the ruling. If the Administrative Law Judge

concludes that the motion is timely and has merit, the Administrative

Law Judge shall disqualify herself or himself and withdraw from the

proceeding. If the Administrative Law Judge does not disqualify herself

or himself and withdraw from the proceeding, the Administrative Law

Judge shall proceed with the proceeding, or if a hearing has been

concluded, proceed with the issuance of a decision.

(2) An Administrative Law Judge's denial of a motion for

disqualification may be appealed to the Commandant at the conclusion of

the hearing according to the procedures in subpart J of this part. When

the appeal is made, the Administrative Law Judge forwards the motion

and supporting affidavits or sworn statements with the ruling to the

Commandant.

Sec. 20.205 Ex parte communications.

Ex parte communications are governed by section 557(d) of the

Administrative Procedure Act (5 U.S.C. 557(d)).

Sec. 20.206 Separtion of functions.

(a) An Administrative Law Judge may not be responsible to or

subject the supervision or direction of an officer, employee, or agent

engaged in the performance of investigating or prosecuting functions

for the Coast Guard.

(b) No officer, employee, or agent of the Coast Guard engaged in

the performance of investigations or prosecutorial functions in

connection with any class II civil penalty proceeding shall, in that

proceeding or one that is factually related, participate or advise in

the decision of the Administrative Law Judge or the Commandant on

appeal, except as a witness or counsel in the proceeding or appellate

review.

Subpart C--Pleadings and Motions

Sec. 20.301 Representation.

(a) A party may appear either without counsel or other

representatives, by an attorney, or by other duly authorized

representative. An attorney or 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 representative's mailing addresses and

telephone numbers.

(b) Notice, including the items listed in paragraph (a) of this

section, must also be given for any withdrawal of appearance.

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 Administrative Law Judge.

(d) Any person who is not an attorney shall file a statement

setting forth the basis of his or her authority to act as a duly

authorized representative. The Administrative Law Judge may deny

appearance as a representative to any person whom the Administrative

Law Judge finds does not possess the requisite qualifications to

represent others or is lacking in character, integrity, or proper

personal conduct.

Sec. 20.302 Filing of documents and other materials.

(a) All documents and material relating to a class II civil penalty

proceeding must be filed at the following address: Chief Administrative

Law Judge, Commandant (G-CJ), U.S. Coast Guard, 2100 Second St., SW.,

Washington, DC 20593-0001. Attention: Hearing Docket Clerk. Phone:

(202) 267-2940, Fax: (202) 267-4753.

(b) An executed original and one copy of each document (including

exhibits and supporting affidavits) must be filed with the Hearing

Docket Clerk. One additional copy of each filed document must be filed

with the assigned Administrative Law Judge. Copies need not be signed,

but the name of the person signing the original must be shown on each

copy.

Law Judge, the Administrative Law Judge's copy will be filed with the

Chief Administrative Law Judge.

(d) Filing may be made by mail or personal delivery. Other methods,

such as facsimile transmission or other electronic means, may be

permitted at the discretion of the Hearing Docket Clerk or the

Administrative Law Judge.

(e) When the Hearing Docket Clerk determines that a document, or

other material, offered for filing does not comply with requirements of

this part, the Hearing Docket Clerk may decline to accept the document,

or other material, for filing, and return it unfiled. Alternatively,

the Hearing Docket Clerk may accept it, advise the person offering it

of the deficiency, and require the deficiency to be corrected.

Sec. 20.303 Form and content of filed documents.

(a) A filed document must identify clearly--

(1) The title of the proceeding;

(2) The docket number of the case if one has been assigned;

(3) A designation of the type of filing (e.g., petition, notice,

motion to dismiss, etc.);

(4) The name and designation of the filing party; and

(5) The filer's address, telephone number, and facsimile

transmission number (if any) and, if represented, the name, address,

telephone number, and facsimile transmission number (if any) of the

filer's representative.

(b) All filed documents must be--

(1) 8\1/2\ by 11 inches in size except, when necessary, tables,

charts, and other attachments may be larger if folded to the size of

the filed documents to which they are physically attached;

(2) Printed on one side of the page and be clearly typewritten,

printed, or otherwise reproduced by a process that produces permanent

and plainly legible copies;

(3) 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) Bound on the left side, if bound.

foreign language, accompanied by a certified translation.

(d) The original of every filed document must be signed by the

submitting person or his or her attorney or representative. Except as

otherwise provided, filed documents need not be verified or accompanied

by an affidavit. The signature constitutes a certification by the

signing person that he or she has read the filed document, that to the

best of his or her knowledge, information, and belief the statements

made in it are true, and that it is not intended to cause delay.

Sec. 20.304 Service of documents.

(a) A copy of each document issued by the Administrative Law Judge

in the proceeding is served upon each party. The Administrative Law

Judge shall serve a copy of notices of hearings upon each interested

person, as determined under Sec. 20.404. Unless otherwise provided in

this part, a copy of each document filed with or issued by the

Administrative Law Judge in the proceeding shall be provided to an

interested person upon request by the interested person to the

Administrative Law Judge.

(b) Unless otherwise ordered by the Administrative Law Judge, one

copy of all documents filed with the Hearing Docket Clerk must be

served upon each party by the persons filing them.

to be served upon all parties must be accompanied by a certificate of

service signed by or on behalf of the party or person making the

service, stating that service has been made. Certificates of service

should be in substantially the following form:

I hereby certify that I have this day served the foregoing

document(s) upon the following parties (or designated

representatives) in this proceeding at the address indicated by

(specify the method):

(1) [name/address]-----------------------------------------------------

(2) [name/address]-----------------------------------------------------

Dated at ______, this ____ day of ______, 19____.

[Signature]

For--------------------------------------------------------------------

Capacity.--------------------------------------------------------------

(d) Service may be made by mail or personal delivery. Other methods

of service, such as facsimile transmission or other electronic means,

may be used, other than for service of the complaint and answer, at the

discretion of the Administrative Law Judge. The Hearing Docket Clerk

may place limitations on the times of and circumstances for service by

facsimile transmission or other electronic means.

(e) Unless otherwise ordered by the Administrative Law Judge, all

documents filed in accordance with Sec. 20.302 must be served upon

counsel and representatives or, if not represented, the persons

themselves. Service upon counsel or representative will constitute

service upon the person to be served.

(f) Service must be made at the address of the counsel or

representative, or, if 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 made by personal delivery, delivery is complete

when the document is handed to the person to be served or 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 location. If service is by mail, facsimile

transmission, or other electronic means, service is complete upon

deposit in the mail or completion of the electronic transmission.

(h) A document that was properly addressed, was sent in accordance

with this subpart, and returned, showing that it was not claimed, or

was refused, is deemed to have been served in accordance with this

subpart. The service will be considered valid as of the date and the

time that the document was deposited with a contract or express

messenger, the document was mailed, or personal delivery of the

document was refused.

Sec. 20.305 Amendment or supplementation of filed documents.

(a) A party or interested person shall amend or supplement a

previously filed pleading or document if the person learns of a

material change that may affect the outcome of the class II civil

penalty proceeding. However, no amendment will be allowed that would

broaden the issues without an opportunity for the parties to reply to

the amendment and to allow preparation for the broadened issues.

(b) The Administrative Law Judge may approve other amendments or

supplements to filed documents.

Law Judge, and all other parties or their representatives of any change

of address.

Sec. 20.306 Computation of time.

(a) In computing any period of time prescribed in this part, the

day on which the designated period begins to run is not included. The

last day of the period so computed is included unless it is a Saturday,

Sunday, or Federal holiday. When the period of time prescribed is 7

days or less, intermediate Saturdays, Sundays, and Federal holidays are

excluded in the computation.

(b) If service or filing is by domestic mail, 3 days will be added

to the designated period for response.

will be added to the designated period for response.

(d) An Administrative Law Judge, for cause shown, may at any time

in his or her discretion--

(1) With or without motion or notice, order a time period extended

if request for extension is made before the end of the original time

period, or as extended by a previous order; or

(2) Upon motion made after the expiration of the time period,

permit the act to be done where the failure to act was excusable.

Sec. 20.307 Complaint.

(a) The complaint must set forth--

(1) The statute or regulation allegedly violated;

(2) The pertinent facts involved; and

(3) The amount of the requested class II civil penalty.

(b) The Coast Guard Representative should request the place of

hearing when filing the complaint.

requirements of this subpart.

Sec. 20.308 Answer.

(a) The respondent shall file a written answer to the complaint not

later than 20 days after service of the complaint. The answer must

conform with the filing and service requirements of this subpart.

(b) The person filing an answer shall indicate whether he or she

agrees with the place of hearing proposed in the complaint and, if

necessary, shall request another location for the hearing when filing

the answer.

contest any of the violations set forth in the complaint. The answer

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. A statement that the person is without sufficient knowledge

or information to admit or deny will have the effect of a denial.

Except as provided in this paragraph, any allegation in the complaint

that is not specifically denied in the answer is deemed admitted.

(2) A general denial of the complaint is deemed a failure to file

an answer.

(d) A respondent's failure to file an answer without good cause

will be deemed an admission of the truth of each allegation contained

in the complaint.

Sec. 20.309 Motions.

(a) A person applying for an order or ruling not specifically

provided in this subpart shall do so by motion. All written motions

must comply with the form, filing, and service requirements of this

subpart. All motions must state clearly and concisely--

(1) The purpose of and the relief sought by the motion;

(2) The statutory or regulatory authority relied upon; and

(3) The facts alleged to constitute the grounds requiring the

relief requested.

(b) A proposed order may be attached to a motion.

hearing will be sufficient if stated orally upon the record unless the

Administrative Law Judge directs that it be reduced to writing.

(d) Except as otherwise provided in this part, a party must file

any response to a motion within 10 days following service of a written

motion. When a motion is made during a hearing, an oral response may be

made at the hearing or in writing, within a reasonable time, as

determined by the Administrative Law Judge.

(e) Unless otherwise ordered by the Administrative Law Judge, the

filing of a motion does not stay a proceeding.

(f) Rulings will be made on the record either orally or in writing.

The Administrative Law Judge may summarily deny dilatory, repetitive,

or frivolous motions.

Sec. 20.310 Default by respondent.

(a) A respondent may be found to be 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 being shown.

(b) Any 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 has 20 days from

service to file a reply to the motion.

action only, an admission of all facts alleged in the complaint and a

waiver of respondent's right to a hearing on such factual allegations.

(d) Upon finding that a default has occurred, the Administrative

Law Judge shall issue a decision against the defaulting party.

(e) For good cause shown, the Administrative Law Judge may set

aside a finding of a default.

Sec. 20.311 Withdrawal or dismissal.

(a) A class II civil penalty proceeding may be withdrawn without

any action by an Administrative Law Judge in the following manner:

(1) By the filing of a stipulation by all parties who have appeared

in the class II civil penalty proceeding;

(2) By the filing of a notice of withdrawal by the Coast Guard

Representative at any time before the respondent has serviced a

responsive pleading; or

(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)), by the

filing of a notice of withdrawal by the Coast Guard Representative at

any time after the respondent has served a responsive pleading and

prior to the issuance of an order of the Commandant assessing or

denying a class II civil penalty, together with a certification by the

Representative that the withdrawal is made in response to a request by

the Attorney General that the Coast Guard refrain from administrative

action, as provided in section 10(d) of Executive Order 12777 (56 FR

54757, 3 CFR 1991 Comp., p. 351).

(b) Unless otherwise stated in the stipulation or notice of

withdrawal, a withdrawal under paragraph (a) of this section is without

prejudice.

civil penalty proceeding may not be withdrawn except by an

Administrative Law Judge upon such terms and conditions as the

Administrative Law Judge deems proper.

(d) Any party may move to dismiss the complaint, including a

request for relief, for--

(1) Failure of another party to comply with the requirements of

this part or with any order of the Administrative Law Judge;

(2) Failure to prosecute the civil penalty proceeding; or

(3) Failure to show a right to relief based upon the facts or law.

(E) A dismissal is the decision of the Administrative Law Judge.

Subpart D--Proceedings

Sec. 20.401 Initiation of class II civil penalty proceedings.

A class II civil penalty proceeding is initiated when the complaint

is filed with the Hearing Docket Clerk and served on the respondent.

Sec. 20.402 Public notice.

Upon the filing of a complaint, the Coast Guard provides notice of

the proposed issuance of an order assessing a class II civil penalty

which is responsive to the complaint. The notice will be published in

the Federal Register.

Sec. 20.403 Consolidation or severance of class II civil penalty

proceedings.

(a) An Administrative Law Judge may for good cause, with the

approval of the Chief Administrative Law Judge and with notice and

opportunity to object provided to all parties, consolidate any or all

matters at issue in two or more class II civil penalty proceedings

docketed under this part. Good cause includes cases where there are

common parties or questions of fact and where such consolidation would

expedite the cases, and the interests of justice would be served.

Consolidation will not be granted if it will prejudice any rights

available under this part or if it will affect the right of any party

to raise issues that could have been raised if consolidation had not

occurred.

(b) Unless directed otherwise by the Chief Administrative Law

Judge, the presiding Administrative Law Judge may in response to a

motion or on his or her own motion, for good cause shown, order any

class II civil penalty proceeding severed with respect to some or all

parties, claims, and issues.

Sec. 20.404 Interested persons.

(a) A person not a party to a class II civil penalty proceeding

under this part, who wishes to be an interested person in the

proceeding, must file with the Hearing Docket Clerk within 30 days

after publication in the Federal Register of the public notice required

by Sec. 20.402 either--

(1) Written comments on the proceeding; or

(2) Written notice of intent to present evidence at any hearing to

be held in the proceeding.

(b) For good cause shown, the Administrative Law Judge may accept

late comments or late notice of intent to present evidence.

held in the proceeding and of the decision in the proceeding. In any

hearing the interested person shall have a reasonable opportunity to be

heard and to present evidence

(d) For the purposes of paragraph (c) of this section, a reasonable

opportunity to be heard and to present evidence does not include--

(1) Subpoena requests for witnesses;

(2) Cross-examination of witnesses; or

(3) Appearance at settlement conference(s).

Subpart E--Conferences and Settlement

Sec. 20.501 Conferences.

(a) The Administrative Law Judge may direct the parties to attend

one or more conferences prior to or during the course of the hearing.

Parties may request a conference by motion.

(b) The Administrative Law Judge may provide notice of a

conference, other than a settlement conference, to interested persons,

as the Administrative Law Judge deems appropriate.

be given to the parties. A conference may be held in person, by

telephone conference, or by other appropriate means.

(d) Parties and interested persons when participating, shall be

fully prepared for a useful discussion of all issues involved in the

conference, both procedural and substantive, and authorized to make

commitments with respect to the proceedings.

(e) Unless excused by the Administrative Law Judge, failure of a

party to attend or participate in a conference, after being served with

reasonable notice of the time and place, will constitute a waiver of

all objections to the agreements reached in the conference and to any

order or ruling that results.

(f) The Administrative Law Judge may order that any or all of the

following be addressed or furnished before, during, or after, the

conference:

(1) Motions for discovery.

(2) Motions for consolidation or severance of parties or issues in

the civil penalty proceeding.

(3) Method of service and filing.

(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) A discussion of 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 agency's substantive standards,

regulations, and rules.

(9) Offers of settlement.

(10) Proposed date, time, and place of the hearing.

(11) Other matters that may aid in the disposition of the civil

penalty proceeding.

(g) A conference is not to be stenographically reported or

otherwise recorded unless authorized by the Administrative Law Judge.

(h) During a conference, the Administrative Law Judge may dispose

of any procedural matters on which he or she is authorized to rule.

(i) Actions taken as a result of a conference may be recorded in--

(1) A written report;

(2) A stenographic transcript if ordered by the Administrative Law

Judge; or

(3) A statement by the Administrative Law Judge on the record at

the hearing summarizing the actions taken.

Sec. 20.502 Settlement.

(a) The parties shall have the opportunity to submit a proposed

settlement to the Administrative Law Judge.

(b) A settlement must be in the form of a proposed decision and a

motion for its entry. It must also include the reasons why it should be

accepted, and it must be signed by the parties or their

representatives.

(1) An admission of all jurisdictional facts;

(2) An express waiver of further procedural steps before the

Administrative Law Judge, of any right to challenge or contest the

validity of the decision entered into in accordance with the

settlement, and of all rights to seek judicial review or otherwise to

contest the validity of the decision;

(3) A statement that the decision will have the same force and

effect as a decision made after at a full hearing; and

(4) A statement that matters in the pleading, if any, required to

be adjudicated have been resolved by the proposed decision.

Sec. 20.503 Alternative dispute resolution.

The Administrative Law Judge may appoint a settlement adjudicator

or order alternative dispute resolution proceeding with the consent of

all parties.

Subpart F--Discovery

Sec. 20.601 General.

(a) Unless otherwise ordered by the Administrative Law Judge, each

party and interested person who has filed written notice of intent to

present evidence under Sec. 20.404 shall make available to all other

parties, to the Administrative Law Judge and, upon request, to

interested persons--

(1) The names of any expert and other witnesses intended to be

called, together with a brief narrative summary of their expected

testimony or written testimony; and

(2) Copies of all documents and exhibits which are to be introduced

into evidence.

(b) The Administrative Law Judge may direct the exchange of witness

lists and documents during a prehearing conference ordered under

Sec. 20.501 or may direct the exchange be accomplished by

correspondence.

conducting discovery in the proceedings and shall serve a copy of the

schedule on each party.

(1) The schedule may include dates by which exchanges of witness

lists and exhibits, requests for discovery, and any objections to

discovery requests are to be filed.

(2) Unless otherwise ordered by the Administrative Law Judge,

exchange of witness lists and documents shall be completed no less than

15 days prior to hearing, and final exchanges of proposed exhibits

should be made in accordance with Sec. 20.807.

(d) Further discovery shall be permitted only by order upon

determination by the Administrative Law Judge--

(1) That such discovery will not in any way unreasonably delay the

proceeding;

(2) That the information to be obtained is not otherwise

obtainable;

(3) That such information has significant probative value;

(4) That the information requested is not cumulative or

repetitious; and

(5) That the method or scope of discovery requested by the party is

not unduly burdensome or expensive and is the least burdensome method

available.

(e) A motion for discovery shall set forth--

(1) The circumstances warranting the taking of the discovery;

(2) The nature of the information expected to be discovered; and

(3) The proposed method of discovery and the time and place where

it will be taken.

(f) If the Administrative Law Judge determines that the motion

should be granted, the Administrative Law Judge shall issue an order

for the taking of discovery together with conditions and terms.

Sec. 20.602 Additional response.

(a) A party or an interested person shall amend or supplement in a

timely fashion--

(1) The documents and exhibits that the party or interested person

intends to introduce into evidence;

(2) The identity of each person expected to be called as a witness,

the subject matter on which the person is expected to testify, and a

summary of the testimony; and

(3) Any information previously provided if--

(i) The party or interested person knows the information was

incorrect or incomplete when made; or

(ii) The party or interested person knows that the information,

though correct when made, is no longer accurate and the circumstances

are such that a failure to amend or supplement the response is, in

substance, a knowing concealment.

(b) An additional duty to amend or supplement may be imposed by

order of the Administrative Law Judge.

Sec. 20.603 Interrogatories.

(a) Any party requesting interrogatories shall make a motion to the

Administrative Law Judge. The motion must include--

(1) A statement of the purpose and general scope of the

interrogatories; and

(2) The proposed interrogatories.

(b) The Administrative Law Judge will review the proposed

interrogatories and may enter an order approving the service of some or

all of the proposed interrogatories or may deny the motion.

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) If the response to an interrogatory may be derived or

ascertained from the records of the party upon whom the interrogatory

has been served, from an examination, audit, or inspection of such

records, or from a compilation, abstract, or summary based thereon, and

the burden of deriving or ascertaining the response is substantially

the same for the party serving the interrogatory as for the party

served, it is a sufficient response to specify the records from which

the answer may be derived or ascertained. The party serving the

interrogatory shall be afforded reasonable opportunity to examine,

audit, or inspect the records 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 requesting production of documents or things for

inspection or other purposes shall make a motion to the Administrative

Law Judge. 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 Administrative Law Judge will review the motion and may

enter an order approving or denying the motion in whole or in part.

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

Administrative Law Judge, 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

Administrative Law Judge, serve on another party a request to permit

entry upon designated property in the possession or control of the

party upon whom the request is served 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 item 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 reasons for each objection must be stated.

Sec. 20.605 Depositions.

(a) The Administrative Law Judge shall order depositions only upon

a showing of good cause and upon a finding that--

(1) The information sought cannot be obtained 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 presentation by a

witness at the hearing.

(b) Testimony may be taken by deposition upon approval of the

Administrative Law Judge 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 requested 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.

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 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 time of 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 Administrative Law Judge for a ruling on the

objection(s). The Administrative Law Judge may then limit the scope or

manner of taking 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 Administrative Law Judge.

(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

thereafter 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 Administrative Law Judge.

(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 Administrative Law Judge, 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

Administrative Law Judge. 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 order.

(a) In considering a motion for an order of discovery, or a motion

by a party or the person from whom discovery is sought to reconsider or

amend an order of discovery, the Administrative Law Judge may make any

order that justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense,

including--

(1) That the discovery may be had only on specified terms and

conditions, including a designation of the time and place;

(2) That the discovery may be had only by a method of discovery

other than that selected by the seeking party;

(3) That particular matters may not be inquired into, or that the

scope of the discovery shall be limited to particular matters;

(4) That discovery shall be conducted with no one present except

persons designated by the Administrative Law Judge;

(5) That a trade secret or other proprietary information may not be

disclosed, may be disclosed only in a designated way, or may be

disclosed only to designated persons; or

(6) That the party or the other person from whom discovery is

sought file specified documents or information under seal to be opened

as directed by the Administrative Law Judge.

(b) The Administrative Law Judge may permit a party or a person

from whom discovery is sought and who is seeking a protective order to

make all or part of the showing of good cause in camera. A record of

the in camera proceedings must be made. If the Administrative Law Judge

enters a protective order, any in camera record of the showing must be

sealed and only released as required by law.

person from whom discovery is sought--

(1) Restrict or defer disclosure by a party of the name of a

witness or, in the case of an agency witness, any prior statement of

the witness; and

(2) Prescribe other appropriate measures to protect a witness.

(d) Any party affected by any such order shall have an adequate

opportunity, once learning of the name of the witness and obtaining a

narrative summary of expected testimony, or in the case of a Coast

Guard witness, any prior statement or statements, 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 Administrative

Law Judge may take such action as is just, including but not limited to

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 class II civil penalty

proceeding, designated facts will be considered to be established.

evidence or otherwise rely, in support of any claim or defense, upon

documents or other evidence withheld.

(d) Order that the party withholding discovery not introduce into

evidence, or otherwise use in the hearing, information obtained in

discovery.

(e) Order that the party withholding discovery not be heard to

object to introduction and use of secondary evidence to show what the

withheld admission, testimony, documents, or other evidence would have

shown.

Sec. 20.608 Subpoenas.

(a) The Administrative Law Judge may issue subpoenas for the

attendance and the giving of testimony or for the production of books,

papers, documents, or any other relevant evidence. Parties shall

request the issuance of subpoenas by motion.

(b) Upon application and for good cause shown, the Administrative

Law Judge shall apply to the United States District Court to issue an

order compelling the appearance and testimony of witnesses or for the

production of evidence.

setting forth the date, time and manner of service or setting forth the

reasons the subpoena was not served. The statement shall be under oath

or affirmed under the penalties of perjury. The statement shall be

attached to a copy of the subpoena and returned to the Administrative

Law Judge who issued the subpoena.

Sec. 20.609 Motion to quash or modify.

(a) The person to whom a subpoena is directed may, by motion with

notice to the party requesting the subpoena, petition the

Administrative Law Judge to quash or modify the subpoena.

(b) Except when made at a hearing, the motion must be filed within

10 days after service of a subpoena for attendance of a witness or a

subpoena for production of evidence, but in any event at or before the

time specified in the subpoena for compliance.

directed may, by oral application at the hearing, or within a

reasonable time fixed by the Administrative Law Judge, petition the

Administrative Law Judge to quash or modify the subpoena.

(d) The Administrative Law Judge may quash or modify the subpoena

if it is unreasonable or requires evidence not relevant to any matter

in issue or may deny the request.

Subpart G--Hearings

Sec. 20.701 Standard of proof.

The party with the burden of proof shall prove the party's case or

affirmative defense by a preponderance of the evidence.

Sec. 20.702 Burden of proof.

(a) Except in the case of an affirmative defense, or as provided in

paragraph (b) of this section, the burden of proof is on the Coast

Guard.

(b) Except as otherwise provided by statute or rule, the proponent

of a motion, request, or order has the burden of proof.

Sec. 20.703 Presumptions.

In all class II civil penalty proceedings, a presumption imposes on

the party against whom it is directed the burden of going forward with

evidence to rebut or meet the presumption, but a presumption does not

shift to such party the burden of proof in the sense of the risk of

nonpersuasion, which remains throughout the hearing upon the party on

whom it was originally placed.

Sec. 20.704 Scheduling and notice of hearing.

(a) The Administrative Law Judge shall be responsible for

scheduling the hearing. With due regard for the convenience of the

parties, their representatives, or witnesses, the Administrative Law

Judge, as early as possible, shall fix the time, place, and date for

the hearing and shall notify all parties and interested persons.

(b) A request for a change in the time, place, or date of a hearing

may be granted by the Administrative Law Judge.

move to expedite the scheduling of a proceeding. A party moving to

expedite a proceeding shall--

(1) Describe the circumstances justifying the motion to expedite;

and

(2) Incorporate in the motion affidavits to support any

representations of fact.

(d) Following timely receipt of the motion and any responses, the

Administrative Law Judge may expedite pleading schedules, prehearing

conferences, and the hearing, as appropriate.

Sec. 20.705 Failure to appear.

A default under Sec. 20.310 may be entered against a respondent

failing to appear at a hearing unless--

(a) Prior to the time for the hearing, the respondent shows good

cause as to why neither the respondent nor the respondent's

representative can appear; or

(b) Within 30 days of an order to show good cause, the respondent

shows good cause for failure to appear.

Sec. 20.706 Witnesses.

(a) Witnesses shall testify under oath or affirmation.

(b) If a witness fails or refuses to testify, the failure or

refusal to answer any question found by the Administrative Law Judge to

be proper shall be grounds for striking all or part of the testimony

which may have been given by the witness, or for any other action

deemed appropriate by the Administrative Law Judge.

Sec. 20.707 Telephone testimony.

(a) The Administrative Law Judge may order that testimony of a

witness be taken by telephone conference call. A person presenting

evidence may request by motion to have testimony taken by telephone

conference call. The telephone conference call will be arranged so that

all participants can listen to and speak to each other in the hearing

of the Administrative Law Judge. The Administrative Law Judge shall

ensure that all participants in the telephone conference are properly

identified to allow a proper record to be made by the reporter.

Telephone conferences are governed by this part.

(b) A witness may be subpoenaed to testify by telephone conference

call. The subpoena in such instances is issued under the procedures in

Sec. 20.608.

Sec. 20.708 Witness fees.

(a) Witnesses summoned in a class II civil penalty proceeding shall

receive the same fees and mileage as witnesses in the courts of the

United States.

(b) The party or interested person who calls a witness is

responsible for any fees and mileage to be received by the witness

under paragraph (a) of this section.

Sec. 20.709 Closing of the record.

At the conclusion of the hearing, the record of the proceeding, as

described in Sec. 20.903, will be closed unless the Administrative Law

Judge directs otherwise. Once the record is closed, it may be reopened

at the discretion of the Administrative Law Judge. The Administrative

Law Judge may correct the transcript of the hearing by appropriate

order.

Sec. 20.710 Proposed findings, closing arguments, and briefs.

Before the Administrative Law Judge's decision and upon terms which

the Administrative Law Judge may find reasonable, any party shall be

entitled to file a brief, a proposed findings of fact and conclusions

of law, or both. Before the close of the hearing, the Administrative

Law Judge may hear oral argument to the extent the Administrative Law

Judge deems appropriate. Any brief, proposed findings of fact and

conclusions of law, and oral argument must be included as part of the

record of the proceeding.

Subpart H--Evidence

Sec. 20.801 General.

A party is entitled to present its case or defense by oral,

documentary, or demonstrative evidence; to submit rebuttal evidence;

and to conduct any cross-examination that may be required for a full

and true disclosure of the facts.

Sec. 20.802 Admissibility of evidence.

(a) The Administrative Law Judge may admit any relevant oral,

documentary, or physical evidence, unless privileged.

(b) Relevant evidence is evidence having any tendency to make the

existence of any material fact more probable or less probable than it

would be without the evidence.

probative value is substantially outweighed by the danger of unfair

prejudice, by confusion of the issues, or by considerations of 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 fact that evidence is hearsay may be considered by the

Administrative Law Judge when determining the probative weight of the

evidence.

Sec. 20.804 Objections and offers of proof.

(a) A party shall state briefly the grounds for objection to the

admission or exclusion of evidence. Rulings on all objections must

appear in the record. Only objections made before the Administrative

Law Judge may be raised on appeal.

(b) Whenever evidence is excluded, the party offering such evidence

may make an offer of proof, which must be included in the record.

Sec. 20.805 Proprietary information.

(a) Without limiting the discretion of the Administrative Law Judge

to give effect to applicable privileges, the Administrative Law Judge

may limit introduction of evidence or issues such protective or other

orders that in his or her judgment may be consistent with the objective

of preventing undue disclosure of proprietary matters, including, but

not limited to, matters of a business nature.

(b) Where the Administrative Law Judge determines that information

in documents containing proprietary matters should be made available to

another party, the Administrative Law Judge may direct the party having

possession of the documents to prepare a non-proprietary summary or

extract of the original. The summary or extract may be admitted as

evidence in the record.

is inadequate and that proprietary matters must form part of the record

in order to avoid prejudice to a party, the Administrative Law Judge

may advise the parties and provide opportunity for arrangements to

permit a party or representative to have access to the evidence.

Sec. 20.806 Official notice.

The Administrative Law Judge may take official notice of such

matters as might be judicially noticed by the courts or of other facts

within the specialized knowledge of the Coast Guard as an expert body.

Where a decision or part of a decision rests on the official notice of

a material fact not appearing in the evidence in the record, the fact

of official notice must be stated in the decision, and any party, upon

timely request, shall be afforded an opportunity to show the contrary.

Sec. 20.807 Exhibits and documents.

(a) All exhibits must be numbered and marked with a designation

identifying the party or interested person introducing the exhibit. The

original of each exhibit offered in evidence or marked for

identification must be filed and retained in the record of the

proceeding, unless the Administrative Law Judge permits the

substitution of copies for the original document. Copies of each

exhibit must be supplied by the party or interested person introducing

the exhibit to the Administrative Law Judge and to every party to the

proceeding.

(b) Unless otherwise directed by the Administrative Law Judge,

proposed exhibits to be offered upon direct examination should be

exchanged or made available for inspection 5 days prior to the hearing.

The authenticity of all exhibits submitted prior to the hearing will be

deemed admitted unless written objection is filed and served on all

parties, or unless good cause is shown for failure to file a written

objection.

Sec. 20.808 Written testimony.

The Administrative Law Judge may enter into the record written

statements of witnesses that are sworn or affirmed under penalties of

perjury. Witnesses whose testimony is presented by written statement

shall be or have been available for oral cross-examination.

Sec. 20.809 Stipulations.

The parties and interested persons may stipulate, in writing, at

any stage of the proceeding or orally at the hearing, to any pertinent

facts or other matters fairly susceptible of stipulation. Stipulations

are binding on the parties to the stipulation.

Subpart I--Decisions

Sec. 20.901 Summary decision.

(a) Any party may, after commencement of the proceeding and at

least 15 days before the date fixed for the hearing, with or without

supporting affidavits, move for a summary decision in the party's favor

in all or any part of the proceeding on the grounds that there is no

genuine issue as to any material fact and that the moving party is

entitled to a decision as a matter of law. Any other party may, within

10 days after service of the motion, serve opposing affidavits or

countermove for summary decision. The Administrative Law Judge may set

the matter for argument and call for the submission of briefs.

(b) The Administrative Law Judge may grant the motion if the filed

documents, affidavits, material obtained by discovery or otherwise, or

matters officially noted show that there is no genuine issue as to any

material fact and that a party is entitled to a summary decision as a

matter of law.

in evidence and must show affirmatively that the affiant is competent

to testify to the matters stated in the affidavit. When a motion for

summary decision is made and supported as provided in this section, a

party opposing the motion may not rest upon the mere allegations or

denials of facts contained in the opposing party's pleadings. The

response to the motion, by affidavits or as otherwise provided in this

section, must provide a specific basis to show that there is a genuine

issue of fact for the hearing.

(d) Should it appear from the affidavits of a party opposing the

motion that the opposing party cannot, for reasons stated, present by

affidavit matters essential to justify the party's opposition, the

Administrative Law Judge may deny the motion for summary decision, may

order a continuance to permit information to be obtained, or may make

such other order as is just.

(e) The denial of all or any part of a motion for summary decision

shall not be subject to interlocutory appeal.

Sec. 20.902 Decision of the Administrative Law Judge.

(a) After the closing of the record of the proceeding, the

Administrative Law Judge shall prepare a decision containing--

(1) Findings on all material issues of fact and conclusions of law,

and the basis for each;

(2) The disposition of the case, including the assessment of a

class II civil penalty, 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 Administrative Law Judge must be based upon

a consideration of the whole record of the proceedings.

Sec. 20.903 Record of Proceedings.

(a) The record 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

will constitute the official record of a proceeding. Any proceedings

regarding the disqualification of an Administrative Law Judge will be

included in the record.

(b) Any person may examine the record of a proceeding at the

Hearing Docket Office, U.S. Coast Guard Headquarters, 2100 Second

Street, SW., Washington, DC 20593-0001. Any person may secure a copy of

part or all of the record after payment of reasonable costs for

duplication in accordance with 49 CFR part 7.

Sec. 20.904 Reopening.

(a) To the extent permitted by law, the Administrative Law Judge,

for good cause shown in accordance with paragraph (c) of this section,

may reopen the record of a proceeding for the purpose of taking

additional evidence.

(b) Any party may file a motion to reopen the record within 30 days

of the closing of the record of a proceeding.

(1) Any motion to reopen the record must clearly set forth the

facts sought to be proven and the reasons claimed to constitute grounds

for reopening the record.

(2) A party who does not file a response to any motion to reopen

the record will be deemed to have waived any objection to the motion.

reopening the record of a proceeding is warranted by any changes in

conditions of fact or of law or by the public interest, the record of

the proceeding may be reopened by the Administrative Law Judge before

the Administrative Law Judge's decision becomes an order of the

Commandant assessing or denying a class II civil penalty.

(d) The filing of a motion to reopen the record does not affect the

appeals periods specified in subpart J of this part, except that a

motion to reopen the record tolls any time remaining in the appeals

periods from the date of filing the motion until the Administrative Law

Judge acts on the motion or the motion is withdrawn.

Subpart J--Appeals

Sec. 20.1001 General.

(a) A party may appeal the Administrative Law Judge's decision by

filing a notice of appeal with the Commandant. A party shall file the

notice of appeal with the Commandant (G-CJ), U.S. Coast Guard

Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001,

Attention: Hearing Docket Clerk. A party shall file the notice of

appeal not later than 30 days after issuance of the Administrative Law

Judge's decision, and shall serve a copy of the notice of appeal on the

other party and each interested person.

(b) A party may appeal only the following issues:

(1) Whether each finding of fact is supported by substantial

evidence.

(2) Whether each conclusion of law is made in accordance with

applicable law, precedent, and public policy.

(3) Whether there were any abuses of discretion by the

Administrative Law Judge.

(4) The Administrative Law Judge's denial of a motion for

disqualification.

the issue that a hearing was not held and that evidence to be presented

by the interested person was not considered in the issuance of the

decision by the Administrative Law Judge. The appeal shall be made in

accordance with the procedural requirements of this subpart.

Sec. 20.1002 Record on appeal.

(a) The record of the proceeding will constitute the record for

decision on appeal.

(b) If the respondent requests a copy of the transcript of the

hearing in the notice of appeal and the hearing was recorded or

transcribed at government expense, the transcript will be provided upon

payment of the fees prescribed in 49 CFR 7.95. If the services of a

government contractor were utilized, the transcript must be obtained

under the provisions of 49 CFR 7.99.

Sec. 20.1003 Procedures of appeal.

(a) A party seeking appeal shall file an appeal brief with the

Commandant and shall serve a copy of the appeal brief on each other

party.

(1) The appeal brief must set forth the party's specific objections

to the initial decision or rulings. The appeal brief must set forth, in

detail--

(i) The basis for the appeal;

(ii) The reasons supporting the appeal; and

(iii) The relief requested in the appeal.

(2) When the party relies on material contained in the record for

the appeal, the appeal brief must specifically refer to the pertinent

portions of the record.

(3) The appeal brief must be submitted to the Commandant within 60

days after service of the Administrative Law Judge's decision. After

this time has elapsed, additional filings will not be considered as a

part of the record of the appeal, unless an extension of time has been

granted in writing by the Commandant or the Commandant's designee and

the extended time limit has been met.

(b) Any party may file a reply brief with the Commandant no later

than 35 days after being served with the appeal brief. The party filing

a reply brief will serve a copy on all parties. If the party filing a

reply brief relies on evidence contained in the record for the appeal,

the party shall specifically refer to the pertinent evidence contained

in the transcript of the hearing in the reply brief.

unless the party has petitioned the Commandant in writing, and the

Commandant or the Commandant's designee has granted leave to file an

additional brief. The Commandant will allow a reasonable time for the

party to file the additional brief.

(d) The Commandant has sole discretion to permit oral argument on

the appeal. On the Commandant's own initiative or upon written petition

by any part, the Commandant may find that oral argument will contribute

substantially to the development of the issues on appeal and may grant

the parties an opportunity for oral argument.

(e) The Commandant may allow any person to file an amicus curiae

brief in an appeal of an Administrative Law Judge's decision.

Sec. 20.1004 Civil penalty appeal decisions.

(a) The Commandant shall review the record on appeal to determine

if the Administrative Law Judge committed prejudicial error in the

proceedings or if the Administrative Law Judge's decision should be

affirmed, modified, or reversed. The Commandant may affirm, modify, or

reverse the Administrative Law Judge's decision or may remand the case

for further proceedings.

(b) The Commandant shall issue a decision on an 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) Unless appealed pursuant to subpart J of this part, a decision

by the Administrative Law Judge becomes an order assessing or denying a

class II civil penalty 30 days after the date of the issuance of

Administrative Law Judges's decision.

(b) If the Commandant issues a decision under subpart J of this

part, the decision of the Commandant constitutes an order assessing or

denying a class II civil penalty on the date issued.

order of the Commandant.

Sec. 20.1102 Petitions to set aside a decision and provide a hearing.

(a) If no hearing is held on a class II civil penalty complaint,

any interested person may file a petition, within 30 days after the

issuance of the order, asking the Commandant to set aside an order

assessing or denying a civil penalty and to provide a hearing.

(b) If the Commandant decides that evidence presented by the

interested person in support of the petition is material and was not

considered in the issuance of the decision, the Commandant sets aside

the decision and directs that a hearing be held in accordance with the

requirements of this part.

section, the Commandant provides to the interested person, and

publishes in the Federal Register, notice of and the reasons for the

denial.

Sec. 20.1103 Availability of decisions.

(a) Copies of decisions made in the adjudication of class II civil

penalties are available for inspection and copying at--

(1) The document inspection facility at any Coast Guard District

office; or

(2) The Coast Guard Headquarters Hearing Docket Office Public

Reading Room.

(b) Requests for a copy of a decision may be made to the Hearing

Docket Clerk. The person requesting a copy will be billed for the

copying costs in accordance with 49 CFR 7.93.

Dated: March 23, 1994.

J.W. Kime,

Admiral, U.S. Coast Guard Commandant.

[FR Doc. 94-7541 Filed 3-29-94; 8:45 am]

BILLING CODE 4910-14-M

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.