[Federal Register Volume 59, Number 61 (Wednesday, March 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7541]
[[Page Unknown]]
[Federal Register: March 30, 1994]
_______________________________________________________________________
Part VIII
Department of Transportation
_______________________________________________________________________
Coast Guard
_______________________________________________________________________
33 CFR Part 20
Class II Civil Penalties; Final Rule
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 20
[CGD 91-228]
RIN: 2115-AE39
Class II Civil Penalties Under the Federal Water Pollution
Control Act and the Comprehensive Environmental Response, Compensation
and Liability Act
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is issuing final regulations addressing
practice and procedure for cases assessing class II civil penalties
under section 311(b) of the Federal Water Pollution Control Act
(FWPCA), as amended by the Oil Pollution Act of 1990 (OPA 90), and
section 109 of the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA). All class II penalties will be assessed
following notice and opportunity to be heard in proceedings that meet
the requirements of the Administrative Procedure Act (APA). The
regulations provide for public notice of a class II civil penalty
action and an opportunity for interested persons to comment on the
proposed civil penalty, to present evidence at a hearing, and to seek a
hearing if none is held. The regulations make available the enhanced
enforcement capabilities provided by the OPA 90 amendments to the
FWPCA.
EFFECTIVE DATE: March 30, 1994.
FOR FURTHER INFORMATION CONTACT: Walter D. Rabe, Marine Investigation
Division (G-MMI), U.S. Coast Guard Headquarters, between 8 a.m. and 4
p.m., Monday through Friday, except Federal holidays, (202) 267-1430.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal persons involved in drafting this document are George
J. Jordan, Attorney-Advisor, Office of the Chief Administrative Law
Judge, U.S. Coast Guard Headquarters and Pamela M. Pelcovits, Attorney-
Advisor, OPA 90 Staff, U.S. Coast Guard Headquarters.
Background and Purpose
Section 4301 of OPA 90 (Pub. L. 101-380) amends the civil penalties
provisions of section 311(b) of the FWPCA (33 U.S.C. 1321(b)) by
establishing three types of civil penalties: Class I, class II, and
judicial. Under 33 U.S.C. 1321(b)(6), the owner, operator, or person in
charge of a vessel or onshore or offshore facility from which oil or
hazardous substances are discharged in violation of 33 U.S.C.
1321(b)(3) may be assessed a class I or class II civil penalty. Also, a
failure or refusal to comply with regulations issued under 33 U.S.C.
1321(j), dealing with, among other things, pollution prevention,
removal, and response planning, may lead to the assessment of a class I
or class II penalty. OPA 90 also amends 33 U.S.C. 1321(b) by increasing
the maximum civil penalty which may be assessed for those violations in
accordance with the procedures set out in 33 CFR subpart 1.07. Where
those procedures are used, the dollar amount has been increased from
$5,000 to a maximum of $10,000 per violation with a penalty not to
exceed $25,000 (``Class I'')
OPA 90 also provided a ``Class II'' civil penalty assessment
authority. The amount of a class II civil penalty assessment must not
exceed $10,000 per violation per day with a maximum penalty assessment
not to exceed $125,000. The OPA 90 amendments provide extensive
procedural requirements for a class II civil penalty assessment
resulting from a violation of section 311 of the FWPCA. In order to
assess a class II civil penalty, the person charged with a violation of
section 311 of the FWPCA (the ``respondent'') in the preamble and the
regulations) must be afforded notice and opportunity for a hearing on
the record in accordance with the formal procedures set out in the APA
(5 U.S.C. 554). Additionally, there must be public notice and an
opportunity for comment before the Coast Guard issues an order
assessing a class II civil penalty for a violation of section 311 of
the FWPCA. The Coast Guard must provide an opportunity for all persons
who commented on the proposed assessment (the ``interested person'' in
the preamble and the regulations) to attend and present evidence at any
hearing held in the case or to petition for a hearing if there has been
none. This final rule establishes procedures for class II civil
penalties.
The Coast Guard also is responsible for the assessment of civil
penalties under section 109 of CERCLA (42 U.S.C. 9609(b)). Section 109
of the CERCLA also divides administratively assessed penalties into
class I and class II. With the exception of public notice and
interested person participation, that section's penalty provisions and
procedural requirements for assessing class II penalties are similar to
those in section 311 of the FWPCA. Since these regulations will also
address the assessment of class II civil penalties under section 109 of
the CERCLA, they provide for public notice and interested person
participation in class II proceedings under section 109 of the CERCLA,
to the extent permitted by law.
Regulatory Procedure
The Coast Guard published these procedural regulations as an
interim final rule (IFR) (58 FR 17926, April 6, 1993), effective upon
publication, in order to make available the enhanced enforcement
capabilities provided by the OPA 90 amendments to the FWPCA. At the
same time, the Coast Guard requested comment on these rules and
provided that the rules would not apply to respondents so requesting.
No Class II civil penalty complaints have been filed to date. Since it
is in the public interest to have all class II civil penalty cases
processed under the same procedural rules and in order not to delay the
application of the regulations, the Coast Guard has determined that,
under 5 U.S.C. 553(d), good cause also exists for making the final
regulations effective upon publication.
Discussion of Comments and Changes
The Coast Guard received eight letters commenting on the IFR. One
letter suggested that class II penalty assessments should vary
according to the nature of the violation, the damages caused, and any
prior violations. Under section 311(b)(8) of the FWPCA and the
regulations, the Administrative Law Judge has sufficient authority to
consider these elements in reaching a decision. This commenter also
urged that penalties be assessed under these regulations against
employees for personal and willful neglect of safety, in the case where
an employer makes efforts to comply. As provided in section
311(b)(6)(A) of the FWPCA, penalties for violations are assessed
against the owner, operator, or person in charge of a vessel or certain
facilities. No changes to the regulations were made in response to this
letter.
Three commenters stated that the regulated community needs to know
under what circumstances the Coast Guard will apply the class I or
class II civil penalty procedures. The Coast Guard agrees with this
comment. On June 1, 1993 the Coast Guard issued COMDTNOTE 5830 which
amends COMDTINST 16200.3A and advises local units on how to choose a
class I or class II civil penalty proceeding. That selection process
relates to enforcement decisionmaking and lies outside the scope of
rulemaking. Copies of COMDTNOTE 5830 are available to the public from
the Marine Investigation Division at the telephone number listed under
For Further Information.
Six commenters addressed the issue of what kind of participation
should be available to anyone other than a party to a class II
proceeding. The IFR incorporated the limited participation for
interested persons described in the OPA amendments to the FWPCA. Three
comments endorsed the exclusion of interested persons from settlement
conferences, and two of the comments also stressed that interested
persons should not have the right to cross-examine witnesses or to
subpoena witnesses to appear at hearings. Two commenters supported the
Coast Guard's decision in the IFR not to provide for intervention.
Another commenter stated that intervention should be permitted, in
limited circumstances, if the potential intervenor has a property,
financial, or other legitimate interest that would be affected by a
decision. In support of this position, the commenter noted that since
the outcome of a class II proceeding might be admissible in subsequent
proceedings, someone whose interests are directly affected should be
permitted to participate.
After reviewing these comments, the Coast Guard concludes that
permitting non-parties to intervene would not be appropriate for its
class II proceedings. The Coast Guard finds that the provisions of the
IFR allow an appropriate mechanism for non-parties to present
additional relevant information to the Administrative Law Judge. To
avoid disparate procedures for class II proceedings under section
311(b) of the FWPCA and section 109 of CERCLA, the Coast Guard has
revised the language of Sec. 20.402 and Sec. 20.404 to delete the
language limiting their application to cases arising under section
311(b) of the FWPCA.
One comment supported the Coast Guard's reference to alternative
dispute resolution in the regulations.
Five commenters addressed issues related to service of documents.
One commenter suggested that the Coast Guard use the term ``mail,''
rather than ``first class mail,'' consistently through the regulations.
The Coast Guard agrees and has revised the regulations. This commenter
also said that 14 days was inadequate time to allow for service by mail
to foreign countries. The Coast Guard agrees and has extended the time
allowed for service by mail in Sec. 20.306(c) to 20 days.
One commenter stated that provisions concerning service were
inadequate with respect to the owners and operators of foreign flag
vessels, as the Coast Guard lacks authority for service in foreign
countries, either by mail or in person. The Coast Guard finds that no
changes to the regulations are necessary in response to this comment.
While the Coast Guard recognizes that there is a potential for problems
associated with service and enforcement of civil penalties against
owners and operators of foreign flag vessels, its experience with the
administrative assessment of civil penalties under section 311 of the
FWPCA and other statutes demonstrates this not to be a serious concern.
Notably, the bond or other surety which may be obtained instead of
clearance denial under section 311(b)(12) of the FWPCA may assist in
this regard.
Three commenters asked the Coast Guard to limit service to personal
service because of the possibility that respondents may be at sea for
lengthy periods and to avoid unnecessary default judgments. The Federal
Rules of Civil Procedure already provide for service by mail and are
currently being revised to permit additional flexibility. The Coast
Guard believes it would be inappropriate to more in a more restrictive
direction in these regulations and has made no change.
One comment suggested that a statement in the preamble to the IFR
concerning official notice by an Administrative Law Judge was
inconsistent with the evidentiary standard of ``preponderance of the
evidence'' set out in the IFR. While language in the preamble may have
been confusing, the Coast Guard finds that the language of Sec. 20.806,
which describes the kind of information that may be officially noticed
and provides for the opportunity to show the contrary, is clear and
appropriate.
One comment stated that the discovery provisions of the IFR are not
adequate in that discovery is permitted not as a matter of right but
only at the discretion of the Administrative Law Judge. The Coast Guard
does not agree. The statute at section 311(b)(6)(B)(ii) of the FWPCA
makes it clear that the provision of discovery is within the discretion
of the Coast Guard. Furthermore, the Model Adjudication Rules of the
Administrative Conference note that the scope of discovery is not
mandatory, but is a matter for agency discretion. The Coast Guard finds
that its discovery rules will permit flexible, but expedited,
proceedings.
Finally, one commenter suggested that references to 49 CFR part 7
in Secs. 20.903, 1002, 1102 should properly be to part 10. The Coast
Guard has determined that the references to part 7 are correct.
The Coast Guard has revised Sec. 20.311(a)(3) to clarify the basis
for a Coast Guard Representative filing a notice of withdrawal after
the filing of a responsive pleading by the respondent. The Coast Guard
Representative will file the notice together with a certification that
the withdrawal is made in response to a request by the Attorney General
that the Coast Guard refrain from administrative enforcement. The
authority of the Attorney General to review Coast Guard enforcement
actions in these proceedings is provided in section 10(d) of Executive
Order 12777 (56 FR 54757) which delegated the President's authority
under OPA 90.
The Coast Guard also has revised the language in Sec. 20.310,
Sec. 20.311, Sec. 20.404, and Sec. 20.1001 and renumbered Sec. 20.904
as Sec. 20.1102 to clarify that an interested person may appeal to the
Commandant when no hearing is held and to allow 30 days for filing an
appeal. Such an appeal would be limited to a request that a hearing be
held.
Regulatory Assessment
This rulemaking is not major under Executive Order 12866 and not
significant under the Department of Transportation Regulatory Policies
and Procedures (44 FR 11040, February 26, 1979). Because the Coast
Guard finds that these procedural rules will not have a direct economic
impact, no Regulatory Assessment is necessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rulemaking will have a
significant economic impact on a substantial number of small entities.
``Small entities'' include independently owned and operated small
businesses that are not dominant in their field and that otherwise
qualify as ``small business concerns'' under section 3 of the Small
Business Act (15 U.S.C. 632). Because it expects the impact of the
rulemaking to be minimal, the Coast Guard certifies under 5 U.S.C.
605(b) that this rulemaking will not have a significant economic impact
on a substantial number of small entities.
Collection of Information
This rulemaking contains no collection of information requirement
under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient Federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impact of this
rulemaking and concluded that under section 2.B.2 of Commandant
Instruction M16475.1B, this rule is categorically excluded from further
environmental documentation. Procedural rules do not require
environmental impact studies. As described in the IFR, a Categorical
Exclusion Determination has been placed in the docket for this
rulemaking.
List of Subjects in 33 CFR Part 20
Administrative practice and procedure, Authority delegations
(Government agencies), Penalties, Water pollution control, Waterways.
For the reasons set forth in the preamble, 33 CFR part 20 is
revised as follows:
PART 20--CLASS II CIVIL PENALTIES
Subpart A--General
Sec.
20.101 Scope.
20.102 Definitions.
20.103 Construction and waiver of rules.
Subpart B--Administrative Law Judges
20.201 Assignment.
20.202 Powers.
20.203 Unavailability.
20.204 Withdrawal or disqualification.
20.205 Ex parte communications.
20.206 Separation of functions.
Subpart C--Pleadings and Motions
20.301 Representation.
20.302 Filing of documents and other materials.
20.303 Form and content of filed documents.
20.304 Service of documents.
20.305 Amendment or supplementation of filed documents.
20.306 Computation of time.
20.307 Complaint.
20.308 Answer.
20.309 Motions.
20.310 Default by respondent.
20.311 Withdrawal or dismissal.
Subpart D--Proceedings
20.401 Initiation of class II civil penalty proceedings.
20.402 Public notice.
20.403 Consolidation or severance of class II civil penalty
proceedings.
20.404 Interested persons.
Subpart E--Conferences and Settlement
20.501 Conferences.
20.502 Settlement.
20.503 Alternative dispute resolution.
Subpart F--Discovery
20.601 General.
20.602 Additional response.
20.603 Interrogatories.
20.604 Requests for production of documents or things for
inspection or other purposes.
20.605 Depositions.
20.606 Protective order.
20.607 Sanctions for failure to comply.
20.608 Subpoenas.
20.609 Motions to quash or modify.
Subpart G--Hearings
20.701 Standard of proof.
20.702 Burden of proof.
20.703 Presumptions.
20.704 Scheduling and notice of hearing.
20.705 Failure to appear.
20.706 Witnesses.
20.707 Telephone testimony.
20.708 Witness fees.
20.709 Closing of the record.
20.710 Proposed findings, closing arguments, and briefs.
Subpart H--Evidence
20.801 General.
20.802 Admissibility of evidence.
20.803 Hearsay evidence.
20.804 Objections and offers of proof.
20.805 Proprietary information.
20.806 Official notice.
20.807 Exhibits and documents.
20.808 Written testimony.
20.809 Stipulations.
Subpart I--Decisions
20.901 Summary decision.
20.902 Decision of Administrative Law Judge.
20.903 Record of proceedings.
20.904 Reopening.
Subpart J--Appeals
20.1001 General.
20.1002 Record on appeal.
20.1003 Procedures for appeal.
20.1004 Civil penalty appeal decisions.
Subpart K--Finality, Petition for Hearing, and Availability of
Decisions
20.1101 Finality.
20.1102 Petitions to set aside a decision and provide a hearing.
20.1103 Availability of decisions.
Authority: 33 U.S.C. 1321; 42 U.S.C. 9609; 49 CFR 1.46.
Subpart A--General
Sec. 20.101 Scope.
(a) Except as specifically noted, these rules of practice and
procedure apply to the following civil penalty proceedings before the
United States Coast Guard:
(1) Class II civil penalties assessed under section 311(b) of the
Federal Water Pollution Control Act, (33 U.S.C. 1321(b)(6)).
(2) Class II civil penalties assessed under section 109 of the
Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. 9609(b)).
(b) In the absence of a specific provision in this part, the
Federal Rules of Civil Procedure will be generally followed.
Sec. 20.102 Definitions.
(a) Administrative Law Judge means any person designated by the
Commandant under the Administrative Procedure Act (5 U.S.C. 556(b)) for
the purpose of conducting hearings arising under 33 U.S.C. 1321(b) and
42 U.S.C. 9609(b).
(b) Chief Administrative Law Judge means the Administrative Law
Judge appointed as the Chief Administrative Law Judge of the U.S. Coast
Guard by the Commandant.
(c) 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 Administrative Law Judge.
(d) Coast Guard Representative means a Coast Guard official who has
been designated to prosecute a class II civil penalty.
(e) Commandant means the Commandant of the U.S. Coast Guard. The
term Commandant includes the Vice-Commandant of the Coast Guard acting
on behalf of the Commandant in any proceeding.
(f) Complaint means a document issued by a Coast Guard
Representative alleging a violation for which a penalty may be
administratively assessed under 33 U.S.C. 1321(b) or 42 U.S.C. 9609(b).
(g) Hearing Docket Clerk means an employee of the Office of the
Chief Administrative Law Judge who is responsible for receiving
documents, determining their completeness and legibility, and
distributing them to the Administrative Law Judge and others, as
required by this part.
(h) Interested person means a person who, as provided in
Sec. 20.404, files written comments on a proposed class II civil
penalty assessment or files written notice of intent to present
evidence in any hearing held on the proposed class II civil penalty
assessment.
(i) Mail includes U.S. first-class mail, U.S. certified mail, U.S.
registered mail, or an express courier service.
(j) Motion means a request for an order or ruling from an
Administrative Law Judge.
(k) Party means a respondent or the Coast Guard.
(l) Person includes an individual, partnership, corporation,
association, public or private organization, or a government agency.
(m) Personal delivery includes hand delivery or use of a contract
or express courier service. ``Personal delivery'' does not include the
use of government interoffice mail service.
(n) Pleading means a complaint, an answer, any document and any
amendment to a document permitted under this part.
(o) Respondent means a person charged with a violation in a
complaint issued under this part.
Sec. 20.103 Construction and waiver of rules.
(a) These rules will be construed to secure a just, speedy, and
inexpensive determination in every class II civil penalty proceeding.
(b) Except to the extent that a waiver would be contrary to law,
the Commandant, the Chief Administrative Law Judge or a presiding
Administrative Law Judge may, after notice, waive any of these rules to
prevent undue hardship or manifest injustice, or if the expeditious
conduct of a case so requires.
Subpart B--Adminstrative Law Judges
Sec. 20.201 Assignment.
An Administrative Law Judge, assigned by the Chief Administrative
Law Judge following receipt of the complaint, shall preside over each
class II civil penalty proceeding.
Sec. 20.202 Powers.
The Administrative Law Judge shall have all powers necessary to the
conduct of fair, expeditious, and impartial hearings, including the
power to--
(a) Administer oaths and affirmations;
(b) Issue subpoenas authorized by law;
(c) Rule on motions;
(d) Order discovery as provided in this part;
(e) Hold hearing or settlement conferences;
(f) Regulate the course of hearings;
(g) Call and question witnesses;
(h) Issue decisions;
(i) Exclude any person from a hearing or conference for disrespect,
disorderly or rebellious conduct; and
(j) Take any other action consistent with law and Coast Guard
policy authorized by the Chief Administrative Law Judge;
Sec. 20.203 Unavailability.
(a) In the event that an Administrative Law Judge is unable to
perform the duties described in Sec. 20.202 or otherwise becomes
unavailable, the Chief Administrative Law Judge shall designate a
successor.
(b) If a hearing has been commenced and an Administrative Law Judge
is unable to proceed, a successor Administrative Law Judge may proceed
with a hearing in a case. The successor Administrative Law Judge may,
at the request of a party, recall any witness whose testimony is
material and disrupted and who is available to testify again without
undue burden. The successor Administrative Law Judge may, within his or
her discretion, recall any other witness.
Sec. 20.204 Withdrawal or disqualification.
(a) An Administrative Law Judge may at any time disqualify herself
or himself.
(b) Prior to the filing of the Administrative Law Judge's decision,
either party may move that the Administrative Law Judge disqualify
herself or himself on the ground of personal bias or other
disqualification, by filing with the Administrative Law Judge promptly
upon discovery of the alleged facts an affidavit setting forth in
detail the matters alleged to constitute grounds for disqualification.
(1) The Administrative Law Judge shall rule upon the motion,
stating the grounds for the ruling. If the Administrative Law Judge
concludes that the motion is timely and has merit, the Administrative
Law Judge shall disqualify herself or himself and withdraw from the
proceeding. If the Administrative Law Judge does not disqualify herself
or himself and withdraw from the proceeding, the Administrative Law
Judge shall proceed with the proceeding, or if a hearing has been
concluded, proceed with the issuance of a decision.
(2) An Administrative Law Judge's denial of a motion for
disqualification may be appealed to the Commandant at the conclusion of
the hearing according to the procedures in subpart J of this part. When
the appeal is made, the Administrative Law Judge forwards the motion
and supporting affidavits or sworn statements with the ruling to the
Commandant.
Sec. 20.205 Ex parte communications.
Ex parte communications are governed by section 557(d) of the
Administrative Procedure Act (5 U.S.C. 557(d)).
Sec. 20.206 Separtion of functions.
(a) An Administrative Law Judge may not be responsible to or
subject the supervision or direction of an officer, employee, or agent
engaged in the performance of investigating or prosecuting functions
for the Coast Guard.
(b) No officer, employee, or agent of the Coast Guard engaged in
the performance of investigations or prosecutorial functions in
connection with any class II civil penalty proceeding shall, in that
proceeding or one that is factually related, participate or advise in
the decision of the Administrative Law Judge or the Commandant on
appeal, except as a witness or counsel in the proceeding or appellate
review.
Subpart C--Pleadings and Motions
Sec. 20.301 Representation.
(a) A party may appear either without counsel or other
representatives, by an attorney, or by other duly authorized
representative. An attorney or other duly authorized representative
shall file a notice of appearance. The notice must indicate--
(1) The name of the case, including docket number if assigned;
(2) The person on whose behalf the appearance is made; and
(3) The person's and representative's mailing addresses and
telephone numbers.
(b) Notice, including the items listed in paragraph (a) of this
section, must also be given for any withdrawal of appearance.
(c) An 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 Administrative Law Judge.
(d) Any person who is not an attorney shall file a statement
setting forth the basis of his or her authority to act as a duly
authorized representative. The Administrative Law Judge may deny
appearance as a representative to any person whom the Administrative
Law Judge finds does not possess the requisite qualifications to
represent others or is lacking in character, integrity, or proper
personal conduct.
Sec. 20.302 Filing of documents and other materials.
(a) All documents and material relating to a class II civil penalty
proceeding must be filed at the following address: Chief Administrative
Law Judge, Commandant (G-CJ), U.S. Coast Guard, 2100 Second St., SW.,
Washington, DC 20593-0001. Attention: Hearing Docket Clerk. Phone:
(202) 267-2940, Fax: (202) 267-4753.
(b) An executed original and one copy of each document (including
exhibits and supporting affidavits) must be filed with the Hearing
Docket Clerk. One additional copy of each filed document must be filed
with the assigned Administrative Law Judge. Copies need not be signed,
but the name of the person signing the original must be shown on each
copy.
(c) In the absence of the assignment of a case to an Administrative
Law Judge, the Administrative Law Judge's copy will be filed with the
Chief Administrative Law Judge.
(d) Filing may be made by mail or personal delivery. Other methods,
such as facsimile transmission or other electronic means, may be
permitted at the discretion of the Hearing Docket Clerk or the
Administrative Law Judge.
(e) When the Hearing Docket Clerk determines that a document, or
other material, offered for filing does not comply with requirements of
this part, the Hearing Docket Clerk may decline to accept the document,
or other material, for filing, and return it unfiled. Alternatively,
the Hearing Docket Clerk may accept it, advise the person offering it
of the deficiency, and require the deficiency to be corrected.
Sec. 20.303 Form and content of filed documents.
(a) A filed document must identify clearly--
(1) The title of the proceeding;
(2) The docket number of the case if one has been assigned;
(3) A designation of the type of filing (e.g., petition, notice,
motion to dismiss, etc.);
(4) The name and designation of the filing party; and
(5) The filer's address, telephone number, and facsimile
transmission number (if any) and, if represented, the name, address,
telephone number, and facsimile transmission number (if any) of the
filer's representative.
(b) All filed documents must be--
(1) 8\1/2\ by 11 inches in size except, when necessary, tables,
charts, and other attachments may be larger if folded to the size of
the filed documents to which they are physically attached;
(2) Printed on one side of the page and be clearly typewritten,
printed, or otherwise reproduced by a process that produces permanent
and plainly legible copies;
(3) Double-spaced except for footnotes and long quotations, which
may be single-spaced;
(4) Have a left margin of at least 1\1/2\ inches and other margins
of at least 1 inch; and
(5) Bound on the left side, if bound.
(c) All documents must be in the English language or, if in a
foreign language, accompanied by a certified translation.
(d) The original of every filed document must be signed by the
submitting person or his or her attorney or representative. Except as
otherwise provided, filed documents need not be verified or accompanied
by an affidavit. The signature constitutes a certification by the
signing person that he or she has read the filed document, that to the
best of his or her knowledge, information, and belief the statements
made in it are true, and that it is not intended to cause delay.
Sec. 20.304 Service of documents.
(a) A copy of each document issued by the Administrative Law Judge
in the proceeding is served upon each party. The Administrative Law
Judge shall serve a copy of notices of hearings upon each interested
person, as determined under Sec. 20.404. Unless otherwise provided in
this part, a copy of each document filed with or issued by the
Administrative Law Judge in the proceeding shall be provided to an
interested person upon request by the interested person to the
Administrative Law Judge.
(b) Unless otherwise ordered by the Administrative Law Judge, one
copy of all documents filed with the Hearing Docket Clerk must be
served upon each party by the persons filing them.
(c) Every document filed with the Hearing Docket Clerk and required
to be served upon all parties must be accompanied by a certificate of
service signed by or on behalf of the party or person making the
service, stating that service has been made. Certificates of service
should be in substantially the following form:
I hereby certify that I have this day served the foregoing
document(s) upon the following parties (or designated
representatives) in this proceeding at the address indicated by
(specify the method):
(1) [name/address]-----------------------------------------------------
(2) [name/address]-----------------------------------------------------
Dated at ______, this ____ day of ______, 19____.
[Signature]
For--------------------------------------------------------------------
Capacity.--------------------------------------------------------------
(d) Service may be made by mail or personal delivery. Other methods
of service, such as facsimile transmission or other electronic means,
may be used, other than for service of the complaint and answer, at the
discretion of the Administrative Law Judge. The Hearing Docket Clerk
may place limitations on the times of and circumstances for service by
facsimile transmission or other electronic means.
(e) Unless otherwise ordered by the Administrative Law Judge, all
documents filed in accordance with Sec. 20.302 must be served upon
counsel and representatives or, if not represented, the persons
themselves. Service upon counsel or representative will constitute
service upon the person to be served.
(f) Service must be made at the address of the counsel or
representative, or, if not represented, at the last known address of
the residence or principal place of business of the person to be
served.
(g) If service is made by personal delivery, delivery is complete
when the document is handed to the person to be served or delivered to
the person's office during business hours or, if the person to be
served has no office, is delivered to the person's residence and
deposited in a conspicuous location. If service is by mail, facsimile
transmission, or other electronic means, service is complete upon
deposit in the mail or completion of the electronic transmission.
(h) A document that was properly addressed, was sent in accordance
with this subpart, and returned, showing that it was not claimed, or
was refused, is deemed to have been served in accordance with this
subpart. The service will be considered valid as of the date and the
time that the document was deposited with a contract or express
messenger, the document was mailed, or personal delivery of the
document was refused.
Sec. 20.305 Amendment or supplementation of filed documents.
(a) A party or interested person shall amend or supplement a
previously filed pleading or document if the person learns of a
material change that may affect the outcome of the class II civil
penalty proceeding. However, no amendment will be allowed that would
broaden the issues without an opportunity for the parties to reply to
the amendment and to allow preparation for the broadened issues.
(b) The Administrative Law Judge may approve other amendments or
supplements to filed documents.
(c) Parties shall notify the Hearing Docket Clerk, Administrative
Law Judge, and all other parties or their representatives of any change
of address.
Sec. 20.306 Computation of time.
(a) In computing any period of time prescribed in this part, the
day on which the designated period begins to run is not included. The
last day of the period so computed is included unless it is a Saturday,
Sunday, or Federal holiday. When the period of time prescribed is 7
days or less, intermediate Saturdays, Sundays, and Federal holidays are
excluded in the computation.
(b) If service or filing is by domestic mail, 3 days will be added
to the designated period for response.
(c) If service or filing is by mail to a foreign country, 20 days
will be added to the designated period for response.
(d) An Administrative Law Judge, for cause shown, may at any time
in his or her discretion--
(1) With or without motion or notice, order a time period extended
if request for extension is made before the end of the original time
period, or as extended by a previous order; or
(2) Upon motion made after the expiration of the time period,
permit the act to be done where the failure to act was excusable.
Sec. 20.307 Complaint.
(a) The complaint must set forth--
(1) The statute or regulation allegedly violated;
(2) The pertinent facts involved; and
(3) The amount of the requested class II civil penalty.
(b) The Coast Guard Representative should request the place of
hearing when filing the complaint.
(c) The complaint must conform with the filing and service
requirements of this subpart.
Sec. 20.308 Answer.
(a) The respondent shall file a written answer to the complaint not
later than 20 days after service of the complaint. The answer must
conform with the filing and service requirements of this subpart.
(b) The person filing an answer shall indicate whether he or she
agrees with the place of hearing proposed in the complaint and, if
necessary, shall request another location for the hearing when filing
the answer.
(c) An answer must state whether or not the respondent intends to
contest any of the violations set forth in the complaint. The answer
must include any affirmative defenses that the respondent intends to
assert at the hearing.
(1) The answer must admit or deny each numbered paragraph of the
complaint. A statement that the person is without sufficient knowledge
or information to admit or deny will have the effect of a denial.
Except as provided in this paragraph, any allegation in the complaint
that is not specifically denied in the answer is deemed admitted.
(2) A general denial of the complaint is deemed a failure to file
an answer.
(d) A respondent's failure to file an answer without good cause
will be deemed an admission of the truth of each allegation contained
in the complaint.
Sec. 20.309 Motions.
(a) A person applying for an order or ruling not specifically
provided in this subpart shall do so by motion. All written motions
must comply with the form, filing, and service requirements of this
subpart. All motions must state clearly and concisely--
(1) The purpose of and the relief sought by the motion;
(2) The statutory or regulatory authority relied upon; and
(3) The facts alleged to constitute the grounds requiring the
relief requested.
(b) A proposed order may be attached to a motion.
(c) Motions must be in writing, except that a motion made at a
hearing will be sufficient if stated orally upon the record unless the
Administrative Law Judge directs that it be reduced to writing.
(d) Except as otherwise provided in this part, a party must file
any response to a motion within 10 days following service of a written
motion. When a motion is made during a hearing, an oral response may be
made at the hearing or in writing, within a reasonable time, as
determined by the Administrative Law Judge.
(e) Unless otherwise ordered by the Administrative Law Judge, the
filing of a motion does not stay a proceeding.
(f) Rulings will be made on the record either orally or in writing.
The Administrative Law Judge may summarily deny dilatory, repetitive,
or frivolous motions.
Sec. 20.310 Default by respondent.
(a) A respondent may be found to be in default upon failure to file
a timely answer to the complaint or, after motion, upon failure to
appear at a conference or hearing without good cause being shown.
(b) Any motion for default must conform to the rules of form,
service, and filing of this subpart and must include a proposed
decision. The respondent alleged to be in default has 20 days from
service to file a reply to the motion.
(c) Default by respondent constitutes, for purposes of the pending
action only, an admission of all facts alleged in the complaint and a
waiver of respondent's right to a hearing on such factual allegations.
(d) Upon finding that a default has occurred, the Administrative
Law Judge shall issue a decision against the defaulting party.
(e) For good cause shown, the Administrative Law Judge may set
aside a finding of a default.
Sec. 20.311 Withdrawal or dismissal.
(a) A class II civil penalty proceeding may be withdrawn without
any action by an Administrative Law Judge in the following manner:
(1) By the filing of a stipulation by all parties who have appeared
in the class II civil penalty proceeding;
(2) By the filing of a notice of withdrawal by the Coast Guard
Representative at any time before the respondent has serviced a
responsive pleading; or
(3) With respect to a complaint filed under section 311(b)(6) of
the Federal Water Pollution Control Act (33 U.S.C. 1321(b)(6)), by the
filing of a notice of withdrawal by the Coast Guard Representative at
any time after the respondent has served a responsive pleading and
prior to the issuance of an order of the Commandant assessing or
denying a class II civil penalty, together with a certification by the
Representative that the withdrawal is made in response to a request by
the Attorney General that the Coast Guard refrain from administrative
action, as provided in section 10(d) of Executive Order 12777 (56 FR
54757, 3 CFR 1991 Comp., p. 351).
(b) Unless otherwise stated in the stipulation or notice of
withdrawal, a withdrawal under paragraph (a) of this section is without
prejudice.
(c) Except as provided in paragraph (a) of this section, a class II
civil penalty proceeding may not be withdrawn except by an
Administrative Law Judge upon such terms and conditions as the
Administrative Law Judge deems proper.
(d) Any party may move to dismiss the complaint, including a
request for relief, for--
(1) Failure of another party to comply with the requirements of
this part or with any order of the Administrative Law Judge;
(2) Failure to prosecute the civil penalty proceeding; or
(3) Failure to show a right to relief based upon the facts or law.
(E) A dismissal is the decision of the Administrative Law Judge.
Subpart D--Proceedings
Sec. 20.401 Initiation of class II civil penalty proceedings.
A class II civil penalty proceeding is initiated when the complaint
is filed with the Hearing Docket Clerk and served on the respondent.
Sec. 20.402 Public notice.
Upon the filing of a complaint, the Coast Guard provides notice of
the proposed issuance of an order assessing a class II civil penalty
which is responsive to the complaint. The notice will be published in
the Federal Register.
Sec. 20.403 Consolidation or severance of class II civil penalty
proceedings.
(a) An Administrative Law Judge may for good cause, with the
approval of the Chief Administrative Law Judge and with notice and
opportunity to object provided to all parties, consolidate any or all
matters at issue in two or more class II civil penalty proceedings
docketed under this part. Good cause includes cases where there are
common parties or questions of fact and where such consolidation would
expedite the cases, and the interests of justice would be served.
Consolidation will not be granted if it will prejudice any rights
available under this part or if it will affect the right of any party
to raise issues that could have been raised if consolidation had not
occurred.
(b) Unless directed otherwise by the Chief Administrative Law
Judge, the presiding Administrative Law Judge may in response to a
motion or on his or her own motion, for good cause shown, order any
class II civil penalty proceeding severed with respect to some or all
parties, claims, and issues.
Sec. 20.404 Interested persons.
(a) A person not a party to a class II civil penalty proceeding
under this part, who wishes to be an interested person in the
proceeding, must file with the Hearing Docket Clerk within 30 days
after publication in the Federal Register of the public notice required
by Sec. 20.402 either--
(1) Written comments on the proceeding; or
(2) Written notice of intent to present evidence at any hearing to
be held in the proceeding.
(b) For good cause shown, the Administrative Law Judge may accept
late comments or late notice of intent to present evidence.
(c) An interested person shall be given notice of any hearing to be
held in the proceeding and of the decision in the proceeding. In any
hearing the interested person shall have a reasonable opportunity to be
heard and to present evidence
(d) For the purposes of paragraph (c) of this section, a reasonable
opportunity to be heard and to present evidence does not include--
(1) Subpoena requests for witnesses;
(2) Cross-examination of witnesses; or
(3) Appearance at settlement conference(s).
Subpart E--Conferences and Settlement
Sec. 20.501 Conferences.
(a) The Administrative Law Judge may direct the parties to attend
one or more conferences prior to or during the course of the hearing.
Parties may request a conference by motion.
(b) The Administrative Law Judge may provide notice of a
conference, other than a settlement conference, to interested persons,
as the Administrative Law Judge deems appropriate.
(c) Reasonable notice of the time and place of the conference will
be given to the parties. A conference may be held in person, by
telephone conference, or by other appropriate means.
(d) Parties and interested persons when participating, shall be
fully prepared for a useful discussion of all issues involved in the
conference, both procedural and substantive, and authorized to make
commitments with respect to the proceedings.
(e) Unless excused by the Administrative Law Judge, failure of a
party to attend or participate in a conference, after being served with
reasonable notice of the time and place, will constitute a waiver of
all objections to the agreements reached in the conference and to any
order or ruling that results.
(f) The Administrative Law Judge may order that any or all of the
following be addressed or furnished before, during, or after, the
conference:
(1) Motions for discovery.
(2) Motions for consolidation or severance of parties or issues in
the civil penalty proceeding.
(3) Method of service and filing.
(4) Identification, simplification, and clarification of the
issues.
(5) Requests for amendment of the pleadings.
(6) Stipulations and admissions of fact and of the content and
authenticity of documents.
(7) A discussion of the desirability of limiting and grouping
witnesses, so as to avoid duplication.
(8) Requests for official notice and particular matters to be
resolved by reliance upon the agency's substantive standards,
regulations, and rules.
(9) Offers of settlement.
(10) Proposed date, time, and place of the hearing.
(11) Other matters that may aid in the disposition of the civil
penalty proceeding.
(g) A conference is not to be stenographically reported or
otherwise recorded unless authorized by the Administrative Law Judge.
(h) During a conference, the Administrative Law Judge may dispose
of any procedural matters on which he or she is authorized to rule.
(i) Actions taken as a result of a conference may be recorded in--
(1) A written report;
(2) A stenographic transcript if ordered by the Administrative Law
Judge; or
(3) A statement by the Administrative Law Judge on the record at
the hearing summarizing the actions taken.
Sec. 20.502 Settlement.
(a) The parties shall have the opportunity to submit a proposed
settlement to the Administrative Law Judge.
(b) A settlement must be in the form of a proposed decision and a
motion for its entry. It must also include the reasons why it should be
accepted, and it must be signed by the parties or their
representatives.
(c) A proposed settlement must contain--
(1) An admission of all jurisdictional facts;
(2) An express waiver of further procedural steps before the
Administrative Law Judge, of any right to challenge or contest the
validity of the decision entered into in accordance with the
settlement, and of all rights to seek judicial review or otherwise to
contest the validity of the decision;
(3) A statement that the decision will have the same force and
effect as a decision made after at a full hearing; and
(4) A statement that matters in the pleading, if any, required to
be adjudicated have been resolved by the proposed decision.
Sec. 20.503 Alternative dispute resolution.
The Administrative Law Judge may appoint a settlement adjudicator
or order alternative dispute resolution proceeding with the consent of
all parties.
Subpart F--Discovery
Sec. 20.601 General.
(a) Unless otherwise ordered by the Administrative Law Judge, each
party and interested person who has filed written notice of intent to
present evidence under Sec. 20.404 shall make available to all other
parties, to the Administrative Law Judge and, upon request, to
interested persons--
(1) The names of any expert and other witnesses intended to be
called, together with a brief narrative summary of their expected
testimony or written testimony; and
(2) Copies of all documents and exhibits which are to be introduced
into evidence.
(b) The Administrative Law Judge may direct the exchange of witness
lists and documents during a prehearing conference ordered under
Sec. 20.501 or may direct the exchange be accomplished by
correspondence.
(c) The Administrative Law Judge may establish a schedule for
conducting discovery in the proceedings and shall serve a copy of the
schedule on each party.
(1) The schedule may include dates by which exchanges of witness
lists and exhibits, requests for discovery, and any objections to
discovery requests are to be filed.
(2) Unless otherwise ordered by the Administrative Law Judge,
exchange of witness lists and documents shall be completed no less than
15 days prior to hearing, and final exchanges of proposed exhibits
should be made in accordance with Sec. 20.807.
(d) Further discovery shall be permitted only by order upon
determination by the Administrative Law Judge--
(1) That such discovery will not in any way unreasonably delay the
proceeding;
(2) That the information to be obtained is not otherwise
obtainable;
(3) That such information has significant probative value;
(4) That the information requested is not cumulative or
repetitious; and
(5) That the method or scope of discovery requested by the party is
not unduly burdensome or expensive and is the least burdensome method
available.
(e) A motion for discovery shall set forth--
(1) The circumstances warranting the taking of the discovery;
(2) The nature of the information expected to be discovered; and
(3) The proposed method of discovery and the time and place where
it will be taken.
(f) If the Administrative Law Judge determines that the motion
should be granted, the Administrative Law Judge shall issue an order
for the taking of discovery together with conditions and terms.
Sec. 20.602 Additional response.
(a) A party or an interested person shall amend or supplement in a
timely fashion--
(1) The documents and exhibits that the party or interested person
intends to introduce into evidence;
(2) The identity of each person expected to be called as a witness,
the subject matter on which the person is expected to testify, and a
summary of the testimony; and
(3) Any information previously provided if--
(i) The party or interested person knows the information was
incorrect or incomplete when made; or
(ii) The party or interested person knows that the information,
though correct when made, is no longer accurate and the circumstances
are such that a failure to amend or supplement the response is, in
substance, a knowing concealment.
(b) An additional duty to amend or supplement may be imposed by
order of the Administrative Law Judge.
Sec. 20.603 Interrogatories.
(a) Any party requesting interrogatories shall make a motion to the
Administrative Law Judge. The motion must include--
(1) A statement of the purpose and general scope of the
interrogatories; and
(2) The proposed interrogatories.
(b) The Administrative Law Judge will review the proposed
interrogatories and may enter an order approving the service of some or
all of the proposed interrogatories or may deny the motion.
(c) A party shall serve on the party named in the interrogatories
the approved written interrogatories.
(d) Each interrogatory must be answered separately and fully in
writing under oath or affirmation, unless it is objected to, in which
event the reasons for the objection shall be stated instead of a
response. A party, the party's attorney, or the party's representative
shall sign the party's responses to interrogatories.
(e) Responses or objections must be filed within 30 days after the
service of the interrogatories.
(f) If the response to an interrogatory may be derived or
ascertained from the records of the party upon whom the interrogatory
has been served, from an examination, audit, or inspection of such
records, or from a compilation, abstract, or summary based thereon, and
the burden of deriving or ascertaining the response is substantially
the same for the party serving the interrogatory as for the party
served, it is a sufficient response to specify the records from which
the answer may be derived or ascertained. The party serving the
interrogatory shall be afforded reasonable opportunity to examine,
audit, or inspect the records and to make copies, compilations,
abstracts, or summaries. The specification must include sufficient
detail to permit the interrogating party to locate and identify the
individual records from which the answer may be ascertained.
Sec. 20.604 Requests for production of documents or things for
inspection or other purposes.
(a) Any party requesting production of documents or things for
inspection or other purposes shall make a motion to the Administrative
Law Judge. The motion must state with particularity--
(1) The purpose and scope of the request; and
(2) The documents and materials which are requested to be produced.
(b) The Administrative Law Judge will review the motion and may
enter an order approving or denying the motion in whole or in part.
(c) A party shall serve on the party in possession, custody or
control of the documents the order to produce, or to permit inspection
and copying of documents.
(d) A party may, after approval of an appropriate motion by the
Administrative Law Judge, inspect and copy, test, or sample any
tangible things that contain or may lead to relevant information and
that are in the possession, custody, or control of the party upon whom
the request is served.
(e) A party may, after approval of an appropriate motion by the
Administrative Law Judge, serve on another party a request to permit
entry upon designated property in the possession or control of the
party upon whom the request is served for the purpose of inspecting,
measuring, surveying, photographing, testing, or sampling the property
or any designated object or area. A request to permit entry upon
property must set forth with reasonable particularity the item to be
inspected and must specify a reasonable time, place, and manner for
making the inspection and performing the related acts.
(f) The party upon whom the request is served shall respond within
30 days after the service of the request. Inspection and related
activities will be permitted as requested, unless there are objections,
in which case the reasons for each objection must be stated.
Sec. 20.605 Depositions.
(a) The Administrative Law Judge shall order depositions only upon
a showing of good cause and upon a finding that--
(1) The information sought cannot be obtained more readily by
alternative methods; or
(2) There is a substantial reason to believe that relevant and
probative evidence may otherwise not be preserved for presentation by a
witness at the hearing.
(b) Testimony may be taken by deposition upon approval of the
Administrative Law Judge of a motion made by any party.
(1) The motion must state--
(i) The purpose and scope of the deposition;
(ii) The time and place it is to be taken;
(iii) The name and address of the person before whom the deposition
is to be taken;
(iv) The name and address of each witness from whom a deposition is
to be taken;
(v) The documents and materials which the witness is requested to
produce; and
(vi) Whether it is intended that the deposition be used at a
hearing instead of live testimony.
(2) The motion must state if the deposition is to be by oral
examination, by written interrogatories, or a combination of the two.
The deposition may be taken before any disinterested person authorized
to administer oaths in the place where the deposition is to be taken.
(c) Upon a showing of good cause the Administrative Law Judge may
enter and serve upon the parties an order to obtain the testimony of
the witness.
(d) If the deposition of a public or private corporation,
partnership, association, or governmental agency is ordered, the
organization named must designate one or more officers, directors, or
agents to testify on its behalf, and may set forth, for each person
designated, the matters on which he or she will testify. Subject to the
provisions of 49 CFR part 9 with respect to Coast Guard witnesses, the
designated persons shall testify as to matters reasonably known to
them.
(e) Each witness deposed shall be placed under oath or affirmation,
and the other parties shall have the right to cross-examine.
(f) The witness being deposed may have counsel or another
representative present during the deposition.
(g) Except as provided in paragraph (n) of this section,
depositions shall be stenographically recorded and transcribed at the
expense of the party requesting the deposition. Unless waived by the
deponent, the transcription must be read by or read to the deponent,
subscribed by the deponent, and certified by the person before whom the
deposition was taken.
(h) Subject to objections to the questions and responses as were
noted at the time of taking of the deposition and which would have been
sustained if the witness were personally present and testifying, a
deposition may be offered into evidence by the party taking it against
any party who was present or represented at the taking of the
deposition or who had notice of the deposition.
(i) The party requesting the deposition shall make appropriate
arrangements for necessary facilities and personnel.
(j) During the taking of a deposition, a party or the witness may
request suspension of the deposition on the grounds of bad faith in the
conduct of the examination, oppression of the witness or party, or
improper questioning or conduct. Upon request for suspension, the
deposition will be adjourned. The objecting party or witness must
immediately move the Administrative Law Judge for a ruling on the
objection(s). The Administrative Law Judge may then limit the scope or
manner of taking the deposition.
(k) When a deposition is taken in a foreign country, it may be
taken before a person having power to administer oaths in that
location, or before a secretary of an embassy or legation, consul
general, consul, vice consul or consular agent of the United States, or
before such other person or officer as may be agreed upon by the
parties by written stipulation filed with the Administrative Law Judge.
(l) Objection to taking a deposition because of the
disqualification of the officer before whom it is to be taken is waived
unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could have been
discovered with reasonable diligence.
(m) A deposition may be taken by telephone conference call upon
such terms, conditions, and arrangements as are prescribed in the order
of the Administrative Law Judge.
(n) The testimony at a deposition hearing may be recorded on
videotape, upon such terms, conditions and arrangements as are
prescribed in the order of the Administrative Law Judge, at the expense
of the party requesting the recording. The video recording may be in
conjunction with an oral examination by telephone conference held
pursuant to paragraph (m) of this section. After the deposition has
been taken, and copies of the video recording are provided to parties
requesting them, the person recording the deposition shall immediately
place the videotape in a sealed envelope or a sealed videotape
container, attaching to it a statement identifying the proceeding and
the deponent and certifying as to the authenticity of the video
recording, and return the videotape by accountable means to the
Administrative Law Judge. The deposition becomes a part of the record
of the proceedings in the same manner as a transcribed deposition. The
videotape, if admitted into evidence, will be played during the hearing
and transcribed into the record by the reporter.
Sec. 20.606 Protective order.
(a) In considering a motion for an order of discovery, or a motion
by a party or the person from whom discovery is sought to reconsider or
amend an order of discovery, the Administrative Law Judge may make any
order that justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense,
including--
(1) That the discovery may be had only on specified terms and
conditions, including a designation of the time and place;
(2) That the discovery may be had only by a method of discovery
other than that selected by the seeking party;
(3) That particular matters may not be inquired into, or that the
scope of the discovery shall be limited to particular matters;
(4) That discovery shall be conducted with no one present except
persons designated by the Administrative Law Judge;
(5) That a trade secret or other proprietary information may not be
disclosed, may be disclosed only in a designated way, or may be
disclosed only to designated persons; or
(6) That the party or the other person from whom discovery is
sought file specified documents or information under seal to be opened
as directed by the Administrative Law Judge.
(b) The Administrative Law Judge may permit a party or a person
from whom discovery is sought and who is seeking a protective order to
make all or part of the showing of good cause in camera. A record of
the in camera proceedings must be made. If the Administrative Law Judge
enters a protective order, any in camera record of the showing must be
sealed and only released as required by law.
(c) The Administrative Law Judge may upon motion by a party or by a
person from whom discovery is sought--
(1) Restrict or defer disclosure by a party of the name of a
witness or, in the case of an agency witness, any prior statement of
the witness; and
(2) Prescribe other appropriate measures to protect a witness.
(d) Any party affected by any such order shall have an adequate
opportunity, once learning of the name of the witness and obtaining a
narrative summary of expected testimony, or in the case of a Coast
Guard witness, any prior statement or statements, to prepare for cross-
examination and for the presentation of the party's case.
Sec. 20.607 Sanctions for failure to comply.
If a party fails to provide or permit discovery, the Administrative
Law Judge may take such action as is just, including but not limited to
the following:
(a) Infer that the testimony, document, or other evidence would
have been adverse to the party.
(b) Order that, for the purposes of the class II civil penalty
proceeding, designated facts will be considered to be established.
(c) Order that the party withholding discovery not introduce into
evidence or otherwise rely, in support of any claim or defense, upon
documents or other evidence withheld.
(d) Order that the party withholding discovery not introduce into
evidence, or otherwise use in the hearing, information obtained in
discovery.
(e) Order that the party withholding discovery not be heard to
object to introduction and use of secondary evidence to show what the
withheld admission, testimony, documents, or other evidence would have
shown.
Sec. 20.608 Subpoenas.
(a) The Administrative Law Judge may issue subpoenas for the
attendance and the giving of testimony or for the production of books,
papers, documents, or any other relevant evidence. Parties shall
request the issuance of subpoenas by motion.
(b) Upon application and for good cause shown, the Administrative
Law Judge shall apply to the United States District Court to issue an
order compelling the appearance and testimony of witnesses or for the
production of evidence.
(c) The person making service shall prepare a written statement
setting forth the date, time and manner of service or setting forth the
reasons the subpoena was not served. The statement shall be under oath
or affirmed under the penalties of perjury. The statement shall be
attached to a copy of the subpoena and returned to the Administrative
Law Judge who issued the subpoena.
Sec. 20.609 Motion to quash or modify.
(a) The person to whom a subpoena is directed may, by motion with
notice to the party requesting the subpoena, petition the
Administrative Law Judge to quash or modify the subpoena.
(b) Except when made at a hearing, the motion must be filed within
10 days after service of a subpoena for attendance of a witness or a
subpoena for production of evidence, but in any event at or before the
time specified in the subpoena for compliance.
(c) If served at the hearing, the person to whom the subpoena is
directed may, by oral application at the hearing, or within a
reasonable time fixed by the Administrative Law Judge, petition the
Administrative Law Judge to quash or modify the subpoena.
(d) The Administrative Law Judge may quash or modify the subpoena
if it is unreasonable or requires evidence not relevant to any matter
in issue or may deny the request.
Subpart G--Hearings
Sec. 20.701 Standard of proof.
The party with the burden of proof shall prove the party's case or
affirmative defense by a preponderance of the evidence.
Sec. 20.702 Burden of proof.
(a) Except in the case of an affirmative defense, or as provided in
paragraph (b) of this section, the burden of proof is on the Coast
Guard.
(b) Except as otherwise provided by statute or rule, the proponent
of a motion, request, or order has the burden of proof.
Sec. 20.703 Presumptions.
In all class II civil penalty proceedings, a presumption imposes on
the party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but a presumption does not
shift to such party the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the hearing upon the party on
whom it was originally placed.
Sec. 20.704 Scheduling and notice of hearing.
(a) The Administrative Law Judge shall be responsible for
scheduling the hearing. With due regard for the convenience of the
parties, their representatives, or witnesses, the Administrative Law
Judge, as early as possible, shall fix the time, place, and date for
the hearing and shall notify all parties and interested persons.
(b) A request for a change in the time, place, or date of a hearing
may be granted by the Administrative Law Judge.
(c) At any time after commencement of a proceeding, any party may
move to expedite the scheduling of a proceeding. A party moving to
expedite a proceeding shall--
(1) Describe the circumstances justifying the motion to expedite;
and
(2) Incorporate in the motion affidavits to support any
representations of fact.
(d) Following timely receipt of the motion and any responses, the
Administrative Law Judge may expedite pleading schedules, prehearing
conferences, and the hearing, as appropriate.
Sec. 20.705 Failure to appear.
A default under Sec. 20.310 may be entered against a respondent
failing to appear at a hearing unless--
(a) Prior to the time for the hearing, the respondent shows good
cause as to why neither the respondent nor the respondent's
representative can appear; or
(b) Within 30 days of an order to show good cause, the respondent
shows good cause for failure to appear.
Sec. 20.706 Witnesses.
(a) Witnesses shall testify under oath or affirmation.
(b) If a witness fails or refuses to testify, the failure or
refusal to answer any question found by the Administrative Law Judge to
be proper shall be grounds for striking all or part of the testimony
which may have been given by the witness, or for any other action
deemed appropriate by the Administrative Law Judge.
Sec. 20.707 Telephone testimony.
(a) The Administrative Law Judge may order that testimony of a
witness be taken by telephone conference call. A person presenting
evidence may request by motion to have testimony taken by telephone
conference call. The telephone conference call will be arranged so that
all participants can listen to and speak to each other in the hearing
of the Administrative Law Judge. The Administrative Law Judge shall
ensure that all participants in the telephone conference are properly
identified to allow a proper record to be made by the reporter.
Telephone conferences are governed by this part.
(b) A witness may be subpoenaed to testify by telephone conference
call. The subpoena in such instances is issued under the procedures in
Sec. 20.608.
Sec. 20.708 Witness fees.
(a) Witnesses summoned in a class II civil penalty proceeding shall
receive the same fees and mileage as witnesses in the courts of the
United States.
(b) The party or interested person who calls a witness is
responsible for any fees and mileage to be received by the witness
under paragraph (a) of this section.
Sec. 20.709 Closing of the record.
At the conclusion of the hearing, the record of the proceeding, as
described in Sec. 20.903, will be closed unless the Administrative Law
Judge directs otherwise. Once the record is closed, it may be reopened
at the discretion of the Administrative Law Judge. The Administrative
Law Judge may correct the transcript of the hearing by appropriate
order.
Sec. 20.710 Proposed findings, closing arguments, and briefs.
Before the Administrative Law Judge's decision and upon terms which
the Administrative Law Judge may find reasonable, any party shall be
entitled to file a brief, a proposed findings of fact and conclusions
of law, or both. Before the close of the hearing, the Administrative
Law Judge may hear oral argument to the extent the Administrative Law
Judge deems appropriate. Any brief, proposed findings of fact and
conclusions of law, and oral argument must be included as part of the
record of the proceeding.
Subpart H--Evidence
Sec. 20.801 General.
A party is entitled to present its case or defense by oral,
documentary, or demonstrative evidence; to submit rebuttal evidence;
and to conduct any cross-examination that may be required for a full
and true disclosure of the facts.
Sec. 20.802 Admissibility of evidence.
(a) The Administrative Law Judge may admit any relevant oral,
documentary, or physical evidence, unless privileged.
(b) Relevant evidence is evidence having any tendency to make the
existence of any material fact more probable or less probable than it
would be without the evidence.
(c) The Administrative Law Judge may exclude evidence if its
probative value is substantially outweighed by the danger of unfair
prejudice, by confusion of the issues, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.
Sec. 20.803 Hearsay evidence.
Hearsay evidence is admissible in proceedings governed by this
part. The fact that evidence is hearsay may be considered by the
Administrative Law Judge when determining the probative weight of the
evidence.
Sec. 20.804 Objections and offers of proof.
(a) A party shall state briefly the grounds for objection to the
admission or exclusion of evidence. Rulings on all objections must
appear in the record. Only objections made before the Administrative
Law Judge may be raised on appeal.
(b) Whenever evidence is excluded, the party offering such evidence
may make an offer of proof, which must be included in the record.
Sec. 20.805 Proprietary information.
(a) Without limiting the discretion of the Administrative Law Judge
to give effect to applicable privileges, the Administrative Law Judge
may limit introduction of evidence or issues such protective or other
orders that in his or her judgment may be consistent with the objective
of preventing undue disclosure of proprietary matters, including, but
not limited to, matters of a business nature.
(b) Where the Administrative Law Judge determines that information
in documents containing proprietary matters should be made available to
another party, the Administrative Law Judge may direct the party having
possession of the documents to prepare a non-proprietary summary or
extract of the original. The summary or extract may be admitted as
evidence in the record.
(c) If the Administrative Law Judge determines that this procedure
is inadequate and that proprietary matters must form part of the record
in order to avoid prejudice to a party, the Administrative Law Judge
may advise the parties and provide opportunity for arrangements to
permit a party or representative to have access to the evidence.
Sec. 20.806 Official notice.
The Administrative Law Judge may take official notice of such
matters as might be judicially noticed by the courts or of other facts
within the specialized knowledge of the Coast Guard as an expert body.
Where a decision or part of a decision rests on the official notice of
a material fact not appearing in the evidence in the record, the fact
of official notice must be stated in the decision, and any party, upon
timely request, shall be afforded an opportunity to show the contrary.
Sec. 20.807 Exhibits and documents.
(a) All exhibits must be numbered and marked with a designation
identifying the party or interested person introducing the exhibit. The
original of each exhibit offered in evidence or marked for
identification must be filed and retained in the record of the
proceeding, unless the Administrative Law Judge permits the
substitution of copies for the original document. Copies of each
exhibit must be supplied by the party or interested person introducing
the exhibit to the Administrative Law Judge and to every party to the
proceeding.
(b) Unless otherwise directed by the Administrative Law Judge,
proposed exhibits to be offered upon direct examination should be
exchanged or made available for inspection 5 days prior to the hearing.
The authenticity of all exhibits submitted prior to the hearing will be
deemed admitted unless written objection is filed and served on all
parties, or unless good cause is shown for failure to file a written
objection.
Sec. 20.808 Written testimony.
The Administrative Law Judge may enter into the record written
statements of witnesses that are sworn or affirmed under penalties of
perjury. Witnesses whose testimony is presented by written statement
shall be or have been available for oral cross-examination.
Sec. 20.809 Stipulations.
The parties and interested persons may stipulate, in writing, at
any stage of the proceeding or orally at the hearing, to any pertinent
facts or other matters fairly susceptible of stipulation. Stipulations
are binding on the parties to the stipulation.
Subpart I--Decisions
Sec. 20.901 Summary decision.
(a) Any party may, after commencement of the proceeding and at
least 15 days before the date fixed for the hearing, with or without
supporting affidavits, move for a summary decision in the party's favor
in all or any part of the proceeding on the grounds that there is no
genuine issue as to any material fact and that the moving party is
entitled to a decision as a matter of law. Any other party may, within
10 days after service of the motion, serve opposing affidavits or
countermove for summary decision. The Administrative Law Judge may set
the matter for argument and call for the submission of briefs.
(b) The Administrative Law Judge may grant the motion if the filed
documents, affidavits, material obtained by discovery or otherwise, or
matters officially noted show that there is no genuine issue as to any
material fact and that a party is entitled to a summary decision as a
matter of law.
(c) Affidavits must set forth such matters as would be admissible
in evidence and must show affirmatively that the affiant is competent
to testify to the matters stated in the affidavit. When a motion for
summary decision is made and supported as provided in this section, a
party opposing the motion may not rest upon the mere allegations or
denials of facts contained in the opposing party's pleadings. The
response to the motion, by affidavits or as otherwise provided in this
section, must provide a specific basis to show that there is a genuine
issue of fact for the hearing.
(d) Should it appear from the affidavits of a party opposing the
motion that the opposing party cannot, for reasons stated, present by
affidavit matters essential to justify the party's opposition, the
Administrative Law Judge may deny the motion for summary decision, may
order a continuance to permit information to be obtained, or may make
such other order as is just.
(e) The denial of all or any part of a motion for summary decision
shall not be subject to interlocutory appeal.
Sec. 20.902 Decision of the Administrative Law Judge.
(a) After the closing of the record of the proceeding, the
Administrative Law Judge shall prepare a decision containing--
(1) Findings on all material issues of fact and conclusions of law,
and the basis for each;
(2) The disposition of the case, including the assessment of a
class II civil penalty, as appropriate;
(3) The date upon which the decision will become effective;
(4) A statement of further right to appeal; and
(5) If no hearing was held, a statement of the right of any
interested person to petition the Commandant to set aside the decision.
(b) The decision of the Administrative Law Judge must be based upon
a consideration of the whole record of the proceedings.
Sec. 20.903 Record of Proceedings.
(a) The record of testimony at the hearing, all exhibits received
into evidence, any items marked as exhibits and not received into
evidence, all motions, all applications, all requests, and all rulings
will constitute the official record of a proceeding. Any proceedings
regarding the disqualification of an Administrative Law Judge will be
included in the record.
(b) Any person may examine the record of a proceeding at the
Hearing Docket Office, U.S. Coast Guard Headquarters, 2100 Second
Street, SW., Washington, DC 20593-0001. Any person may secure a copy of
part or all of the record after payment of reasonable costs for
duplication in accordance with 49 CFR part 7.
Sec. 20.904 Reopening.
(a) To the extent permitted by law, the Administrative Law Judge,
for good cause shown in accordance with paragraph (c) of this section,
may reopen the record of a proceeding for the purpose of taking
additional evidence.
(b) Any party may file a motion to reopen the record within 30 days
of the closing of the record of a proceeding.
(1) Any motion to reopen the record must clearly set forth the
facts sought to be proven and the reasons claimed to constitute grounds
for reopening the record.
(2) A party who does not file a response to any motion to reopen
the record will be deemed to have waived any objection to the motion.
(c) If the Administrative Law Judge has reason to believe that
reopening the record of a proceeding is warranted by any changes in
conditions of fact or of law or by the public interest, the record of
the proceeding may be reopened by the Administrative Law Judge before
the Administrative Law Judge's decision becomes an order of the
Commandant assessing or denying a class II civil penalty.
(d) The filing of a motion to reopen the record does not affect the
appeals periods specified in subpart J of this part, except that a
motion to reopen the record tolls any time remaining in the appeals
periods from the date of filing the motion until the Administrative Law
Judge acts on the motion or the motion is withdrawn.
Subpart J--Appeals
Sec. 20.1001 General.
(a) A party may appeal the Administrative Law Judge's decision by
filing a notice of appeal with the Commandant. A party shall file the
notice of appeal with the Commandant (G-CJ), U.S. Coast Guard
Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001,
Attention: Hearing Docket Clerk. A party shall file the notice of
appeal not later than 30 days after issuance of the Administrative Law
Judge's decision, and shall serve a copy of the notice of appeal on the
other party and each interested person.
(b) A party may appeal only the following issues:
(1) Whether each finding of fact is supported by substantial
evidence.
(2) Whether each conclusion of law is made in accordance with
applicable law, precedent, and public policy.
(3) Whether there were any abuses of discretion by the
Administrative Law Judge.
(4) The Administrative Law Judge's denial of a motion for
disqualification.
(c) An interested person may appeal a summary decision but only on
the issue that a hearing was not held and that evidence to be presented
by the interested person was not considered in the issuance of the
decision by the Administrative Law Judge. The appeal shall be made in
accordance with the procedural requirements of this subpart.
Sec. 20.1002 Record on appeal.
(a) The record of the proceeding will constitute the record for
decision on appeal.
(b) If the respondent requests a copy of the transcript of the
hearing in the notice of appeal and the hearing was recorded or
transcribed at government expense, the transcript will be provided upon
payment of the fees prescribed in 49 CFR 7.95. If the services of a
government contractor were utilized, the transcript must be obtained
under the provisions of 49 CFR 7.99.
Sec. 20.1003 Procedures of appeal.
(a) A party seeking appeal shall file an appeal brief with the
Commandant and shall serve a copy of the appeal brief on each other
party.
(1) The appeal brief must set forth the party's specific objections
to the initial decision or rulings. The appeal brief must set forth, in
detail--
(i) The basis for the appeal;
(ii) The reasons supporting the appeal; and
(iii) The relief requested in the appeal.
(2) When the party relies on material contained in the record for
the appeal, the appeal brief must specifically refer to the pertinent
portions of the record.
(3) The appeal brief must be submitted to the Commandant within 60
days after service of the Administrative Law Judge's decision. After
this time has elapsed, additional filings will not be considered as a
part of the record of the appeal, unless an extension of time has been
granted in writing by the Commandant or the Commandant's designee and
the extended time limit has been met.
(b) Any party may file a reply brief with the Commandant no later
than 35 days after being served with the appeal brief. The party filing
a reply brief will serve a copy on all parties. If the party filing a
reply brief relies on evidence contained in the record for the appeal,
the party shall specifically refer to the pertinent evidence contained
in the transcript of the hearing in the reply brief.
(c) A party may not file more than one appeal brief or reply brief,
unless the party has petitioned the Commandant in writing, and the
Commandant or the Commandant's designee has granted leave to file an
additional brief. The Commandant will allow a reasonable time for the
party to file the additional brief.
(d) The Commandant has sole discretion to permit oral argument on
the appeal. On the Commandant's own initiative or upon written petition
by any part, the Commandant may find that oral argument will contribute
substantially to the development of the issues on appeal and may grant
the parties an opportunity for oral argument.
(e) The Commandant may allow any person to file an amicus curiae
brief in an appeal of an Administrative Law Judge's decision.
Sec. 20.1004 Civil penalty appeal decisions.
(a) The Commandant shall review the record on appeal to determine
if the Administrative Law Judge committed prejudicial error in the
proceedings or if the Administrative Law Judge's decision should be
affirmed, modified, or reversed. The Commandant may affirm, modify, or
reverse the Administrative Law Judge's decision or may remand the case
for further proceedings.
(b) The Commandant shall issue a decision on an appeal in writing
and shall serve a copy of the decision on each party and interested
person.
Subpart K--Finality, Petitions for Hearing, and Availability of
Orders
Sec. 20.1101 Finality.
(a) Unless appealed pursuant to subpart J of this part, a decision
by the Administrative Law Judge becomes an order assessing or denying a
class II civil penalty 30 days after the date of the issuance of
Administrative Law Judges's decision.
(b) If the Commandant issues a decision under subpart J of this
part, the decision of the Commandant constitutes an order assessing or
denying a class II civil penalty on the date issued.
(c) The order assessing or denying a class II civil penalty is the
order of the Commandant.
Sec. 20.1102 Petitions to set aside a decision and provide a hearing.
(a) If no hearing is held on a class II civil penalty complaint,
any interested person may file a petition, within 30 days after the
issuance of the order, asking the Commandant to set aside an order
assessing or denying a civil penalty and to provide a hearing.
(b) If the Commandant decides that evidence presented by the
interested person in support of the petition is material and was not
considered in the issuance of the decision, the Commandant sets aside
the decision and directs that a hearing be held in accordance with the
requirements of this part.
(c) If the Commandant denies a hearing requested under this
section, the Commandant provides to the interested person, and
publishes in the Federal Register, notice of and the reasons for the
denial.
Sec. 20.1103 Availability of decisions.
(a) Copies of decisions made in the adjudication of class II civil
penalties are available for inspection and copying at--
(1) The document inspection facility at any Coast Guard District
office; or
(2) The Coast Guard Headquarters Hearing Docket Office Public
Reading Room.
(b) Requests for a copy of a decision may be made to the Hearing
Docket Clerk. The person requesting a copy will be billed for the
copying costs in accordance with 49 CFR 7.93.
Dated: March 23, 1994.
J.W. Kime,
Admiral, U.S. Coast Guard Commandant.
[FR Doc. 94-7541 Filed 3-29-94; 8:45 am]
BILLING CODE 4910-14-M