[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.

-----------------------------------------------------------------------

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