Rules of Practice, Procedure, and Evidence for Administrative Proceedings of the Coast Guard

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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

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

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

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

ly 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

es 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

ines 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

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.

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

cision, 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

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

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.

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

rovides 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

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

[GRAPHIC] [TIFF OMITTED] TP06AP98.000

[GRAPHIC] [TIFF OMITTED] TP06AP98.001

[GRAPHIC] [TIFF OMITTED] TP06AP98.002

BILLING CODE 4910-14-C

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

OT 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

ore

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

nd 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

ntial 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

$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

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

t 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

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

20.1202 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)].

e 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)].

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

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

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.

on 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.

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;

(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.

arings;

(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.

) 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.

th 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.

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.

(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.

4022.

(b) The telephone number is: 410-962-5100.

(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.

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.

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.

rson, 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.

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.

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

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.

nt 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

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.

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.

(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.

for filing and service.

Sec. 20.308 Answers.

h----

(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.

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.

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.

n 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.

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.

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.

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.

administrative proceeding may end in withdrawal unless approved by an

ALJ upon such terms as she or he deems proper.

--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.

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.

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.

. (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

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.

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.

other than a settlement conference, as the ALJ deems appropriate.

(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.

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.

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.

(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.

y 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.

a copy of any such schedule on each party.

(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.

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.

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.

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.

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.

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.

the parties, an order to obtain the testimony of the witness.

he 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.

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 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.

tion 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.

ause 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.

ponent

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.

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.

shall seal any

proceedings so recorded. These shall be releasable only as required by

law.

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.

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.

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.

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

reason for failure of service. He or she shall swear to or

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.

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.

quires 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.

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

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.

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.

; 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.

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.

isclosure 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.

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.

ss 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.

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.

or 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.

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.

ty 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.

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.

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.

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.

believes that any change in fact or law, or that the public interest,

warrants reopening it.

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.

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

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.

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.

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.

onclusion 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.

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.

ant 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.

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.

hould 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

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.

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.

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--

r'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.

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.

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.

(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.

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.

(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.

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.

n 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.

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.

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.

, 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.

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.

tion 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.

d 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.

in rebuttal of any evidence and argument offered by the respondent in

mitigation.

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]

.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.

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.

ls 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.

(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

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.