[Federal Register Volume 63, Number 65 (Monday, April 6, 1998)]
[Proposed Rules]
[Pages 16731-16751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8830]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 20

46 CFR Part 5

[USCG-98-3472]
RIN 2115-AF59


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

AGENCY: Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Coast Guard seeks to improve its adjudication process. 
This improvement would also affect certain actions involving merchant 
mariners. First, the proposed rule would consolidate all Coast Guard 
adjudicative procedures to include the following: the suspension and 
revocation (S&R) of merchant mariners' licenses, certificates of 
registry, and documents and the procedures involving class II civil 
penalties. Second, the proposed rule would eliminate unnecessary 
procedures from S&R proceedings. The Coast Guard expects the proposed 
rule to facilitate the efficient use of administrative resources 
relating to Coast Guard adjudication. It would save time, effort, and 
money for all parties who are or may become involved in Coast Guard 
actions.

DATES: Comments must reach the Coast Guard on or before May 6, 1998.

ADDRESSES: You may mail comments to the Docket Management Facility, 
[USCG-98-3472], U.S. Department of Transportation (DOT), Room PL-401, 
400 Seventh Street SW., Washington, DC 20590-0001, or deliver them to 
room PL-401, located on the Plaza Level of the Nassif Building at the 
same address between 10 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The telephone number is 202-366-9329.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments, and documents as indicated in this preamble, will 
become part of this docket and will be available for inspection or 
copying at room PL-401, located on the Plaza Level of the Nassif 
Building at the above address between 10 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. You may also electronically 
access the public docket for this rulemaking on the Internet at http://
dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For information on the public docket, 
contact Carol Kelley, Coast Guard Dockets Team Leader or Paulette 
Twine, Chief, Documentary Services Division, U.S. Department of 
Transportation, telephone 202-366-9329; for information concerning the 
notice of proposed rulemaking (NPRM) provisions, contact George J. 
Jordan, Attorney-Advisor, Office of the Chief Administrative Law Judge, 
between 8:00 a.m. and 4:00 p.m., Monday through Friday, except Federal 
holidays. His telephone number is 202-267-0006.

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages interested persons to participate in 
this rulemaking by submitting written data, views, or arguments. 
Persons submitting comments should include their names and addresses, 
identify this rulemaking [USCG-98-3472] and the specific section of 
this document to which each comment applies, and give the reason for 
each comment. Please submit one copy of all comments and attachments

[[Page 16732]]

in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing to the DOT Docket Management Facility at 
the address under ADDRESSES. If you want acknowledgment of receipt of 
your comment, enclose a stamped, self-addressed postcard or envelope.
    The Coast Guard will consider all comments received during the 
comment period. It may change this proposed rule in view of the 
comments.
    The Coast Guard plans no public meeting. Persons may request a 
public meeting by writing to the Marine Safety Council at the address 
under ADDRESSES. The request should include the reasons why a public 
meeting would be helpful to this rulemaking. If an opportunity for oral 
presentations will help the rulemaking procedures, the Coast Guard will 
hold a public meeting at a time and place announced by a later notice 
in the Federal Register.

Background and Purpose

    The Coast Guard derives its authority to issue this proposed rule 
in part from 46 U.S.C. 7702. This law, amended by the Oil Pollution Act 
of 1990 (Pub. L. 101-380), authorizes the Coast Guard, in certain 
situations, to temporarily suspend merchant mariners' credentials. The 
Coast Guard also derives its authority under 33 U.S.C. 1321(b)(6) to 
issue rules affecting class II proceedings.
    This rulemaking is necessary as part of a Coast Guard effort to 
improve both: (1) the administrative efficiency of all Coast Guard 
adjudicative procedures; and (2) specific procedures related to actions 
involving mariners' credentials. It follows an overall Coast Guard 
initiative to streamline its resources, yet maintain effectiveness in 
all affected areas.
    The Coast Guard maintains two separate sets of procedural rules 
that govern administrative adjudication. 46 CFR Part 5 contains the 
rules for Suspension and Revocation (S&R). The rules of criminal 
procedure form the basis of the S&R rules. 33 CFR Part 20 contains the 
rules for class II civil penalties. These rules have their basis in the 
Model Rules of Administrative Procedure and on other modern rules for 
civil procedure. Both sets of rules however, contain outdated and 
inefficient procedures, many of which are not effective in the 
adjudication of Coast Guard actions.
    This rulemaking proposes to consolidate both sets of rules in 33 
CFR Part 20. It also seeks to remove those procedures that impede the 
efficient handling of cases. In addition, it would amend those rules 
which are not consistent with relevant legal standards and practices.
    Another relevant factor adds to the need for this proposed rule. 
The Coast Guard reduced the number of administrative law judges (ALJs) 
and field offices in a major effort to streamline its resources. Only 
six full time ALJs are available to preside over 900-1000 S&R cases in 
60 cities throughout the United States, its Commonwealths and 
Territories. The reduction in personnel that handle adjudicative 
matters creates the need for a system that can docket and process cases 
more efficiently.
    The ALJ Docketing Center now operates such a system. It manages 
class II civil penalty cases, S&R cases, and civil penalty and permit 
sanction cases for the National Oceanographic and Atmospheric 
Administration (NOAA). This proposed rule would assist in the 
processing of Coast Guard S&R cases at the ALJ Docketing Center. This 
rule would allow the ALJ Docketing Center to better administer the 
adjudication of Coast Guard actions.
    In addition, this proposed rule would produce several other 
benefits. It would ensure that similar cases follow similar procedures. 
It would eliminate unnecessary hearings and the costs associated with 
these hearings, such as travel and court reporting costs. It seeks to 
employ the use of rules that are more familiar to civilian attorneys. 
It would also incorporate many recommendations of the former 
Administrative Conference of the United States and practices prevalent 
in the Department of Transportation and other agencies. This would 
promote uniformity and consistency in certain proceedings. Finally, 
this proposed rule would help to promote the settlement process in 
cases that are undisputed. This would further help to eliminate 
unnecessary hearings.
    This rulemaking proposes to promote and ensure consistent 
procedural guidelines in the adjudication proceedings involving 
mariners' certificates, documents, and licenses, class II civil 
penalties, and other proceedings before Coast Guard ALJs. It would also 
enable the Coast Guard to maintain regulations in keeping with modern 
rules of civil and criminal procedure, where applicable.

Discussion of Proposed Rule

1. Consolidated Rules of Procedure and Rules of Evidence

    This proposed rule would consolidate all rules of procedure and 
evidence for administrative adjudication into 33 CFR Part 20. The 
proposed rule would do so in the following ways--
     Remove the rules of procedure and evidence for S&R cases 
from 46 CFR Part 5;
     Supersede those rules of procedure and evidence from 46 
CFR Part 5 and provide equivalent rules in Part 20;
     Amend certain sections of Part 20 to accommodate specific 
requirements for S&R in the areas of procedure, for example, regarding 
the opening of cases; and
     Create certain special rules of evidence relating only to 
S&R cases into a new subpart in 33 Part 20.

2. Changes in the Rules of Procedure and the Rules of Evidence

    The proposed rule would change the rules of procedure and evidence 
in administrative proceedings in the following ways:
     Complaints replace Notices of Hearings. Under the proposed 
rule, the investigating officer would file a complaint and propose the 
place for a hearing, as opposed to the current system in which the 
investigating officer files charges and serves them on the mariner, 
telling the mariner where and when to appear to answer the charges. In 
addition, the complaint would identify the order of suspension or 
revocation sought, or, in a class II case, the penalty sought.
     Complaint must be Answered in Writing and Within Twenty 
Days. Under the proposed rule, the mariner must answer the complaint in 
writing within 20 days. Under the current S&R rules, the mariner 
answers at a hearing.
     Administrative Law Judge to schedule hearings. Under the 
proposed rule, the ALJ schedules the hearing after receiving the answer 
and considering the convenience of both parties. Under the current S&R 
rule, the investigating officer schedules the hearing in the Notice and 
the ALJ schedules continuances, etc.
     The Coast Guard May Seek a Default Judgment. Under the 
proposed rule, if a mariner fails to answer or does not attend a 
hearing, the Coast Guard may seek a default judgment. Under the current 
S&R rules, a hearing in the absence of the mariner is required.
     New Procedures for Settlement Agreements. Under the 
proposed rule, settlement agreements are encouraged. In addition the 
proposed rule establishes procedures for the process of settlement. 
Under present S&R practices, although settlement agreements have been 
encouraged, there is no consistent procedure involved in achieving 
them.

[[Page 16733]]

     Administrative Law Judges to Issue Oral Decisions. This 
rule proposes that ALJs issue oral decisions in simple cases, when the 
rights of the parties are not impaired and in order to speed justice. 
The present S&R rule, 46 CFR 5.571, Delivery of decision, does not 
allow for such decisions, under any circumstance.
     Expedited Hearings Established. This rule proposes that in 
certain prescribed circumstances, the ALJ may expedite a hearing. Under 
46 U.S.C. 7702(d), a mariner whose license, certificate or document is 
temporarily suspended is entitled to an expedited hearing. However, a 
hearing is required within 30 days after the suspension. This proposed 
rule requires that an ALJ be immediately assigned to the case in order 
that the matter be resolved within the statutory period. Under the 
current S&R rules, there is no provision for this circumstance.
     The Coast Guard will have the right of appeal in S&R 
cases. Under the current S&R rules, the Coast Guard reviews only cases 
in which the charges were found proved and the respondent files an 
appeal. The inability of the agency to seek review or appeal, in cases 
where the ALJ ruled against it, is unique to those rules. Neither the 
APA nor the statutory authority for S&R cases prohibit appeal by an 
agency. All other Federal administrative agencies can appeal ALJ 
rulings, and the proposed rules in Part 20 provide for such an appeal.

3. Changes in the Rules of Evidence

    This rule proposes to apply the Administrative Procedures Act (APA) 
rules of evidence as the standard for evidence brought in S&R cases. In 
current practice some ALJs apply the Federal Rules of Evidence. This 
proposed rule seeks to have one consistent standard, the APA standard, 
used in S&R cases.

4. Special Rules of Evidence--Suspension and Revocation Cases

    This rule proposes to adopt additional rules of evidence in S&R 
cases. The Coast Guard recognizes a need for special rules of evidence 
created specifically for S&R cases. The proposed rule places these 
special rules in a separate subpart. Current Part 20 Rules do not allow 
for special rules of evidence to address the unique circumstances that 
may arise involving an S&R case.

5. Changes in Case Filing

    With the opening of the ALJ Docketing Center in Baltimore, 
Maryland, efficient and effective case management in administrative 
proceedings is now in effect. The proposed rule seeks to optimize the 
capabilities of the Docketing Center and improve case filing procedure 
in the following ways:
     Central Location of Filed Documents. This proposed rule 
changes the place and method of filing for all administrative 
proceedings. Parties may now file all pleadings, motions, decisions, 
and other appropriate documents with the ALJ Docketing Center in 
Baltimore, Maryland. The current S&R rules require parties to file 
documents in the Coast Guard District where the case originated. The 
current rules in 33 CFR Part 20 also require parties to file multiple 
copies of documents. This proposed rule requires parties to submit only 
a single signed copy of a specified form instead of the previously 
required formatted documents.

6. Changes in the Rules of Discovery

    This proposed rule would change the discovery rules in all 
administrative proceedings. The rules would be changed in the following 
ways:
     Fifteen-Day Limit to Submit Final Exhibits and Witnesses. 
The rules would be changed to require that parties submit final lists 
of witnesses and proposed exhibits 15 days or more before a hearing, 
unless otherwise allowed at the discretion of the ALJ. The current 
class II rules require parties to submit final exhibits 5 days or more 
before a hearing.
     Consistent Discovery Procedures Established. Under the 
current S&R rules, there are no formal discovery procedures. This can 
create problems when copies of exhibits and witnesses are not presented 
in a timely manner and with sufficient notice to the other party. Most 
ALJs have introduced requirements for discovery on their own, but these 
differ from judge to judge.

Summary of Proposed Changes

33 CFR Part 20--Rules of Practice, Procedure, and Evidence for Coast 
Guard Administrative Proceedings
    1. Revise the title of 33 CFR Part 20 to indicate that it applies 
to all formal adjudicative proceedings of the Coast Guard.
    2. Revise the authority citation for part 20 to include the 
authority for S&R of merchant mariners' licenses, certificates of 
registry, and documents.
    3. Where the term ``administrative proceeding'' appears throughout 
part 20, it would now refer to S&R cases and class II civil penalty 
cases.
    4. In section 20.101, the reference to the statutory authority for 
S&R is now added.
    5. In section 20.102, Definitions, S&R proceedings are defined and 
appropriate references to S&R cases are added in other definitions.
    6. In section 20.302, Filing of documents and other materials, the 
address of the ALJ Docketing Center is added. This eliminates the 
requirement to file multiple copies of cases with the docket clerk.
    7. In section 20.307, Complaint, changes to section would enable 
the Coast Guard to propose a sanction early in the complaint. Under 
current S&R procedures, the Coast Guard may not propose a sanction 
until the penalty phase.
    8. Revise section 20.601(c)(2), Discovery--General, to eliminate 
the reference to 33 CFR 20.807.
    9. Revise section 20.807, Exhibits and Documents, paragraph (b), to 
now require 15 days to submit final exhibits instead of 5 days. This 
would provide for the timely submittal of pertinent information by both 
parties, well before the hearing. It would preclude undue confusion and 
disruption by allowing both parties adequate time in which to review 
documents and exhibits.
    10. Section 33 CFR 20.902, Decision of Administrative Law Judge, 
allows an ALJ to issue an oral decision instead of a written decision 
in appropriate cases.
    11. Section 20.903, Record of Proceedings, changes the site for 
public examination of record to the ALJ Docketing Center.
    12. Section 20.904, Reopening, already allows the reopening of a 
record for the taking of added evidence. The new procedures deal with 
the subsequent reversal of a conviction that served as the basis for a 
suspension or revocation and with the issuance under 46 U.S.C. 7702(c) 
of a new document in certain circumstances after revocation.
    13. Section 20.1001, Appeals--General, changes the address to file 
notices and briefs to the ALJ Docketing Center.
    14. Section 20.1103, Availability of Decisions, adds the ALJ 
Docketing Center as a public reading room. It also provides the 
Internet address for filing appeal decisions and the index of appeal 
decisions.
    15. A new Subpart L, Expedited Hearings, provides procedures for an 
expedited hearing after the temporary suspension of a license, 
certificate, or document.
    16. A new Subpart M, Evidentiary rules for Suspension and 
Revocation Hearings, added to Part 20, includes the sections of Part 5 
that deal with

[[Page 16734]]

evidentiary matters which are specific to S&R cases.
    17. Changes to 46 CFR Part 5 would remove similar rules now covered 
in part 33 CFR Part 20. In addition, some rules are now governed by the 
power of the ALJ to regulate the course of the hearing. For specific 
information, refer to the chart below:

BILLING CODE 4910-14-P
       

[[Page 16735]]

[GRAPHIC] [TIFF OMITTED] TP06AP98.000



[[Page 16736]]

[GRAPHIC] [TIFF OMITTED] TP06AP98.001



[[Page 16737]]

[GRAPHIC] [TIFF OMITTED] TP06AP98.002



BILLING CODE 4910-14-C

[[Page 16738]]

Regulatory Evaluation

    This proposal is not a significant regulatory action under section 
3(f) of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that Order. It 
has not been reviewed by the Office of Management and Budget under that 
Order. It is not significant under the regulatory policies and 
procedures of the Department of Transportation (DOT) [44 FR 11040 
(February 26, 1979)]. The Coast Guard expects the economic impact of 
this Rule to be so minimal that a full Regulatory Evaluation under 
paragraph 10e of the regulatory policies and procedures of DOT is 
unnecessary.
    Benefits: The Coast Guard assumes savings to all parties by 
simplifying administrative proceedings that help to expedite cases. The 
Coast Guard's use of Administrative Law Judges (ALJs) is undergoing 
major change. In the first phase of this process, the Coast Guard 
established a Docketing Center in Baltimore. It provides administrative 
law services for all pertinent cases. In the second phase, the 
Docketing Center would expand its services to permit on-line access to 
decisions and indices and to improve case management. A part of that 
effort would be to rewrite 33 CFR Part 20, as here augmented, in plain 
English.
    Executive Order 12988 [61 FR 4728 (February 5, 1996)], on Reform of 
Civil Justice, also established ``Principles to Promote Just and 
Efficient Administrative Adjudications.'' It recommends that agencies 
use case management techniques as a tool for improving their 
administrative proceedings. It also recommends that they review their 
adjudication procedures and develop specific ones to--
     Reduce delay in decision making;
     Facilitate self representation where appropriate;
     Expand non-lawyer counseling and representation where 
appropriate;
     Invest maximal discretion in fact-finding officers;
     Encourage appropriate settlement of claims as early as 
possible; and
     Develop effective and simple methods, including the use of 
electronic technology, to educate the public about their policies and 
procedures.
    The primary reason for this entire effort is to achieve and sustain 
effective case management. First, a central docket permits more 
efficient assignment of ALJ and staff to contested cases. Second, 
enhanced office automation (workflow) permits the routine handling of 
dockets and files by a small staff. Third, a central database permits 
active supervision of cases.
    At present, Notices of Hearings hinder an ALJ's schedule in S&R 
cases because current rules require notice but do not also require 
responses from mariners. The result is that ALJs (and the Coast Guard) 
must prepare for hearings as if all mariners will dispute the charges. 
Almost half of these cases conclude without ever going to hearings 
through settlement agreements or withdrawal by the prosecution. 
However, it is not currently possible to use the hearing date for a 
case that ends without a hearing to hear another case.
    With responsive pleading, ALJs are able to identify which cases 
would be amenable to disposal by motion and which would need hearings. 
In cases of class II civil penalties, ALJs are able to schedule 
hearings only if necessary. Almost half of these cases, through 
settlement agreements or motions, likewise conclude without ever going 
to hearings. (Unlike S&R cases, these cases have had a negligible 
effect on ALJs' schedules.)
    Each ALJ depends upon a single Legal Assistant (LA). Each case 
docketed usually takes three days of an LA's time for docketing; 
scheduling; arranging for court reporters, hearing rooms, and the ALJ's 
travel; preparing reports; maintaining the docket record and closing 
the file; preparing the hearing report; and arranging for final 
disposition of the case record.
    This demand on time holds in every case filed, whether contested or 
not. (For example: The Coast Guard files a case, and the respondent 
seeks a change of venue unopposed by the agency. The ALJ would not 
spend more than an hour or less, on the case; but the LA must still 
prepare the record for transfer to another ALJ and file it.) This 
claims almost as much time from respondents as from the Coast Guard. 
The adjudication procedures of this rule would drastically reduce the 
demands of the time required of all parties concerned.

Small Entities

    Under the Regulatory Flexibility Act [5 U.S.C. 601 et seq.], the 
Coast Guard considers whether this proposed rule, if adopted, would 
have a significant economic impact on a substantial number of small 
entities. These include independently owned and operated small 
businesses that are not dominant in their fields, and governmental 
jurisdictions with populations of less than 50,000.
    The Coast Guard expects that this proposed rule would have a 
minimal direct impact on small entities. Holders of licenses, 
certificates, and documents are not small entities, though they may 
work for small entities. This rule simplifies many adjudicatory 
procedures and adds only the requirement to reply by written answer, in 
most cases, rather than by oral response at hearing.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule, if adopted, would not have a significant economic impact on 
a substantial number of small entities. If, however, you think that 
your business or organization qualifies as a small entity and that this 
rule would have a significant economic impact on your business or 
organization, please submit a comment (see ADDRESSES) explaining why 
you think it qualifies and in what way and to what degree this rule 
would economically affect it.

Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard 
wants to assist small entities in understanding this proposed rule so 
that they can better evaluate its effects on them and participate in 
the rulemaking process. If this rule would affect your small business 
or organization, and if you have questions concerning its provisions or 
options for compliance, please contact Mr. George J. Jordan, Attorney 
Advisor, Office of the Chief Administrative Law Judge (G-CJ), Room 
6302, 202-267-0006.

Collection of Information

    This proposed rule does not call for a collection of information 
under the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq.]. 
Between simplified, expedited adjudicatory procedures and greater use 
of electronic devices, this rule would reduce the burden of paperwork 
on the public and private sectors in large and about equal measure.

Unfunded Mandate

    Under the Unfunded Mandates Reform Act (Pub. L. 104-4), the Coast 
Guard must consider whether this rule will result in an annual 
expenditure by State, local and tribal governments, in the aggregate, 
or by the private sector, of $100 million (adjusted annually for 
inflation). The Act also requires (in Section 205) that the Coast Guard 
identify and consider a reasonable number of regulatory alternatives, 
and from those alternatives, select the least costly, cost-effective, 
or least burdensome alternative that achieves the objective of the 
rule.
    No State, local, or tribal government entities would be affected by 
this

[[Page 16739]]

proposed rule. Therefore, this proposed rule would not result in annual 
or aggregate costs of $100 million or more either to State, local, or 
tribal governments or to the private sector.

Federalism

    The Coast Guard has analyzed this proposal under the principles and 
criteria contained in Executive Order 12612 and has determined that 
this rule does not have sufficient implications for federalism to 
warrant the preparation of a Federalism Assessment.

Environment

    The Coast Guard considered the environmental impact of this 
proposal and concluded that, under paragraph 2.B.2.e(34) (b) and (c) of 
COMDTINST M16475.1B, this proposed rule is categorically excluded from 
further environmental documentation. A ``Categorical Exclusion 
Determination'' is available in the docket for inspection or copying 
where indicated under ADDRESSES.

List of Subjects

33 CFR Part 20

    Administrative Law Judges, Administrative practice and procedure, 
Appeals, Discovery, Evidence, Hearings.

46 CFR Part 5

    Administrative practice and procedure, Alcohol abuse, rug abuse, 
Investigations, Licensing, Mariners, Seamen, Penalties.
    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR Part 20 and 46 CFR Part 5 as follows:
    1. Revise 33 CFR Part 20 consisting of Secs. 20.101 through 20.1103 
to read as follows:

PART 20--RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL 
ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD

Subpart A--General

Sec.
20.101  Scope.
20.102  Definitions.
20.103  Construction and waiver of rules.

Subpart B--Administrative Law Judges

20.201  Assignment.
20.202  Powers.
20.203  Unavailability.
20.204  Withdrawal or disqualification.
20.205  Ex parte communications.
20.206  Separation of functions.

Subpart C--Pleadings and Motions

20.301  Representation.
20.302  Filing of documents and other materials.
20.303  Form and content of filed documents.
20.304  Service of documents.
20.305  Amendment or supplementation of filed documents.
20.306  Computation of time.
20.307  Complaints.
20.308  Answers.
20.309  Motions.
20.310  Default by respondent.
20.311  Withdrawal or dismissal.

Subpart D--Proceedings

20.401  Initiation of administrative proceedings.
20.402  Public notice.
20.403  Consolidation and severance.
20.404  Interested persons.

Subpart E--Conferences and Settlements

20.501  Conferences.
20.502  Settlements.

Subpart F--Discovery

20.601  General.
20.602  Amendatory or supplementary responses.
20.603  Interrogatories.
20.604  Requests for production of documents or things for 
inspection or other purposes.
20.605  Depositions.
20.606  Protective orders.
20.607  Sanctions for failure to comply.
20.608  Subpoenas.
20.609  Motions to quash or modify.

Subpart G--Hearings

20.701  Standard of proof.
20.702  Burden of proof.
20.703  Presumptions.
20.704  Scheduling and notice of hearings.
20.705  Failure to appear.
20.706  Witnesses.
20.707  Telephonic testimony.
20.708  Witnesses' fees.
20.709  Closing of the record.
20.710  Proposed findings, closing arguments, and briefs.

Subpart H--Evidence

20.801  General.
20.802  Admissibility of Evidence.
20.803  Hearsay evidence.
20.804  Objections and offers of proof.
20.805  Proprietary information.
20.806  Official notice.
20.807  Exhibits and documents.
20.808  Written testimony.
20.809  Stipulations.

Subpart I--Decisions

20.901  Summary decisions.
20.902  Decisions of the ALJ.
20.903  Records of proceedings.
20.904  Reopening.

Subpart J--Appeals

20.1001  General.
20.1002  Records on appeal.
20.1003  Procedures for appeal.
20.1004  Decisions on appeal.

Subpart K--Finality, Petitions for Hearing, and Availability of Orders

20.1101  Finality.
20.1102  Petitions to set aside decisions and provide hearings for 
civil penalty proceedings.
20.1103  Availability of decisions.

Subpart L--Expedited Hearings

20.1201  Application.
20.1202  Filing of pleadings.
20.1203  Commencement of expedited hearings.
20.1205  Motion for return of temporarily suspended license, 
certificate of registry, or document.
20.1206  Discontinuance of expedited hearings.
20.1207  Pre-hearing conferences.
20.1208  Expedited Hearings.
20.1209  Appeals of ALJ's decisions.

Subpart M--Supplementary Evidentiary Rules for Suspension and 
Revocation Hearings

20.1301  Purpose.
20.1303  Authentication and certification of extracts from shipping 
articles, logbooks, and the like.
20.1305  Admissibility and weight of entries from logbooks.
20.1307  Use of judgments of conviction.
20.1309  Admissibility of respondents' criminal records and records 
with the Coast Guard before entry of findings and conclusions.
20.1311  Admissions by respondent.
20.1313  Medical examination of respondents.
20.1315  Submission of prior records and evidence in aggravation or 
mitigation.

    Authority: 33 U.S.C. 1321; 42 U.S.C. 9609; 46 U.S.C. 7701, 7702; 
49 CFR 1.46.

Subpart A--General


Sec. 20.101  Scope.

    Except as otherwise noted, the rules of practice, procedure, and 
evidence in this part apply to the following subjects of administrative 
proceedings before the United States Coast Guard:
    (a) Class II civil penalties assessed under section 311(b) of the 
Federal Water Pollution Control Act [33 U.S.C. 1321(b)(6)].
    (b) Class II civil penalties assessed under section 109 of the 
Comprehensive Environmental Response, Compensation, and Liability Act 
[42 U.S.C. 9609(b)].
    (c) Suspensions and revocations conducted under 46 U.S.C. Chapter 
77.


Sec. 20.102  Definitions.

    Administrative Law Judge or ALJ means any person designated by the 
Commandant under paragraph 556(b)(3) of the Administrative Procedure 
Act (APA) [5 U.S.C. 556(b)(3)] to conduct hearings arising under 33 
U.S.C. 1321(b); 42 U.S.C. 9609(b); or 46 U.S.C. Chapter 77.
    Chief Administrative Law Judge or Chief ALJ means the 
Administrative Law Judge appointed as the Chief

[[Page 16740]]

Administrative Law Judge of the Coast Guard by the Commandant.
    Class II Civil penalty proceeding means a trial-type proceeding for 
the assessment of a civil penalty that offers an opportunity for an 
oral, fact-finding hearing before an ALJ.
    Coast Guard Representative means an official of the Coast Guard 
designated to prosecute an administrative proceeding.
    Commandant means the Commandant of the Coast Guard. It includes the 
Vice-Commandant of the Coast Guard acting on behalf of the Commandant 
in any matter.
    Complaint means a document issued by a Coast Guard representative 
alleging a violation for which a penalty may be administratively 
assessed under 33 U.S.C. 1321(b) or 42 U.S.C. 9609(b), or a merchant 
mariner's license, certificate of registry, or document suspended or 
revoked under 46 U.S.C. 7703 or 7704.
    Hearing Docket Clerk means an employee of the Office of the Chief 
ALJ who is responsible for receiving documents, determining their 
completeness and legibility, and distributing them to ALJs and others, 
as required by this part.
    Interested person means a person who, as allowed in Sec. 20.404, 
files written comments on a proposed assessment of a class II civil 
penalty or files written notice of intent to present evidence in any 
such hearing held on the proposed assessment.
    Mail means first-class, certified, or registered matter sent by the 
Postal Service, or matter sent by an express-courier service.
    Motion means a request for an order or ruling from an ALJ.
    Party means a respondent or the Coast Guard.
    Person means an individual, a partnership, a corporation, an 
association, a public or private organization, or a governmental 
agency.
    Personal delivery means delivery by hand or in person, or through 
use of a contract service or an express-courier service. It does not 
include use of governmental interoffice mail.
    Pleading means a complaint, an answer and any amendment to such 
document permitted under this part.
    Respondent means a person charged with a violation in a complaint 
issued under this part.
    Suspension and revocation proceeding or S&R proceeding means a 
trial-type proceeding for the suspension or revocation of a merchant 
mariner's license, certificate of registry, or document issued by the 
Coast Guard that affords an opportunity for an oral, fact-finding 
hearing before an ALJ.


Sec. 20.103  Construction and waiver of rules.

    (a) Each person with a duty to construe the rules in this part in 
an administrative proceeding shall construe them so as to secure a 
just, speedy, and inexpensive result.
    (b) Except to the extent that a waiver would be contrary to law, 
the Commandant, the Chief ALJ, or a presiding ALJ may, after notice, 
waive any of the rules in this part either to prevent undue hardship or 
manifest injustice or to secure a just, speedy, and inexpensive result.
    (c) Absent a specific provision in this part, the Federal Rules of 
Civil Procedure control.

Subpart B--Administrative Law Judges


Sec. 20.201  Assignment.

    An ALJ, assigned by the Chief ALJ after receipt of the complaint, 
shall preside over each administrative proceeding under this part.


Sec. 20.202  Powers.

    The ALJ shall have all powers necessary to the conduct of fair, 
fast, and impartial hearings, including the powers to--
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas authorized by law;
    (c) Rule on motions;
    (d) Order discovery as provided for in this part;
    (e) Hold hearings or settlement conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Issue decisions;
    (i) Exclude any person from a hearing or conference for disrespect, 
or disorderly or rebellious conduct; and
    (j) Institute policy authorized by the Chief ALJ.


Sec. 20.203  Unavailability.

    (a) If an ALJ cannot perform the duties described in Sec.  20.202 
or otherwise becomes unavailable, the Chief ALJ shall designate a 
successor.
    (b) If a hearing has commenced and the assigned ALJ cannot proceed 
with it, a successor ALJ may. The successor ALJ may, at the request of 
a party, recall any witness whose testimony is material and disputed, 
and who is available to testify again without undue burden. The 
successor ALJ may, within his or her discretion, recall any other 
witness.


Sec. 20.204  Withdrawal or disqualification.

    (a) An ALJ may disqualify herself or himself at any time.
    (b) Until the filing of the ALJ's decision, either party may move 
that the ALJ disqualify herself or himself for personal bias or other 
valid cause. The party shall file with the ALJ, promptly upon discovery 
of the facts or other reasons allegedly constituting cause, an 
affidavit setting forth in detail the reasons.
    (1) The ALJ shall rule upon the motion, stating the grounds for the 
ruling. If the ALJ concludes that the motion is timely and meritorious, 
she or he shall disqualify herself or himself and withdraw from the 
proceeding. If the ALJ does not disqualify herself or himself and 
withdraw from the proceeding, the ALJ shall carry on with the 
proceeding, or, if a hearing has concluded, issue a decision.
    (2) If an ALJ denies a motion to disqualify herself or himself, the 
moving party may, according to the procedures in subpart J of this 
part, appeal to the Commandant once the hearing has concluded. When 
that party does appeal, the ALJ shall forward the motion, the 
affidavit, and supporting evidence to the Commandant along with the 
ruling.


Sec. 20.205  Ex parte communications.

    Ex parte communications are governed by subsection 557(d) of the 
Administrative Procedure Act [5 U.S.C. 557(d)].


Sec. 20.206  Separation of functions.

    (a) No ALJ may be responsible to, or supervised or directed by, an 
officer, employee, or agent who investigates or represents the Coast 
Guard.
    (b) No officer, employee, or agent of the Coast Guard who 
investigates for or represents the Coast Guard in connection with any 
administrative proceeding may, in that proceeding or one factually 
related, participate or advise in the decision of the ALJ or of the 
Commandant in an appeal, except as a witness or counsel in the 
proceeding or the appeal.

Subpart C--Pleadings and Motions


Sec. 20.301  Representation.

    (a) A party may appear--
    (1) Without counsel;
    (2) With an attorney; or
    (3) With other duly authorized representative.
    (b) Any attorney, or by other duly authorized representative shall 
file a notice of appearance. The notice must indicate--
    (1) The name of the case, including docket number if assigned;
    (2) The person on whose behalf the appearance is made; and
    (3) The person's and the representative's mailing addresses and 
telephone numbers.

[[Page 16741]]

    (c) Any attorney or other duly authorized representative shall also 
file a notice, including the items listed in paragraph (a) of this 
section, for any withdrawal of appearance.
    (d) Any attorney shall be a member in good standing of the bar of 
the highest court of a State, the District of Columbia, or any 
territory or commonwealth of the United States. A personal 
representation of membership is sufficient proof, unless otherwise 
ordered by the ALJ.
    (e) Any person who would act as a duly authorized representative 
and who is not an attorney shall file a statement setting forth the 
basis of his or her authority to so act. The ALJ may deny appearance as 
representative to any person who, the ALJ finds, lacks either the 
qualifications to represent others or the requisite character, 
integrity, or proper personal conduct.


Sec. 20.302  Filing of documents and other materials.

    (a) The proper address at which to file all documents and other 
materials relating to an administrative proceeding is: U. S. Coast 
Guard Administrative Law Judge Docketing Center; Attention: Hearing 
Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-4022.
    (b) The telephone number is: 410-962-5100.
    (c) The fax number is: 410-962-1746.
    (d) The appropriate party shall file with the Hearing Docket Clerk 
an executed original of each document (including any exhibit and 
supporting affidavit).
    (e) A party may file by mail or personal delivery. The ALJ or the 
Hearing Docket Clerk may permit other methods, such as fax or other 
electronic means.
    (f) When the Hearing Docket Clerk determines that a document, or 
other material, offered for filing does not comply with requirements of 
this part, the Clerk may decline to accept the document, or other 
material, for filing, and return it unfiled. Alternatively, the Clerk 
may accept it, advise the person offering it of the defect, and require 
that person to correct the defect.


Sec. 20.303  Form and content of filed documents.

    (a) Each filed document must clearly--
    (1) State the title of the case;
    (2) State the docket number of the case, if one has been assigned;
    (3) Designate the type of filing (for instance: petition, notice, 
or motion to dismiss);
    (4) Identify the filing party by name and capacity acted in; and
    (5) State the address, telephone number, and any fax number of the 
filing party and, if that party is represented, the name, address, 
telephone number, and any fax number of the representative.
    (b) Each filed document must--
    (1) Measure 8-\1/2\ by 11 inches, except that a table, chart, or 
other attachment may be larger if folded to the size of the filed 
document to which it is physically attached;
    (2) Be printed on just one side of the page and be clearly 
typewritten, printed, or otherwise reproduced by a process that yields 
legible and permanent copies;
    (3) Be double-spaced except for footnotes and long quotations, 
which may be single-spaced;
    (4) Have a left margin of at least 1-1/2 inches and other margins 
of at least 1 inch; and
    (5) Be bound on the left side, if bound.
    (c) Each filed document must be in English or, if in another 
language, accompanied by a certified translation. The original of each 
filed document must be signed by the filing party or her or his 
representative. Unless the rules in this part or the ALJ requires it to 
be, no filed document need be verified or accompanied by an affidavit. 
The signature constitutes a certification by the signer that she or he 
has read the document; that, to the best of her or his knowledge, 
information, and belief, the statements made in it are true; and that 
she or he does not intend it to cause delay.
    (d) Complaints, answers, and simple motions may employ forms 
approved for use in proceedings of the Coast Guard instead of the 
format set out in this section.


Sec. 20.304  Service of documents.

    (a) The ALJ shall serve upon each party to the proceeding a copy of 
each document issued by the ALJ in it. The ALJ shall serve upon each 
interested person, as determined under Sec. 20.404, a copy of the 
notice of hearing. Unless this part provides otherwise, the ALJ shall 
upon request furnish to each such interested person a copy of each 
document filed with the Hearing Docket Clerk or issued by the ALJ.
    (b) Unless the ALJ orders otherwise, each person filing a document 
with the Hearing Docket Clerk shall serve upon each party a copy of it.
    (c) If a party filing a document must serve a copy of it upon each 
party, each copy must bear a certificate of service, signed by or on 
behalf of the first party, stating that she or he has so served it. The 
certificate shall be in substantially the following form:

    I hereby certify that I have served the foregoing document[s] 
upon the following parties (or their designated representatives) to 
this proceeding at the addresses indicated by [specify the method]:
----------------------------------------------------------------------
(1) [name, address of party]

----------------------------------------------------------------------
(2) [name, address of party]

    Done at ____________________, this ________________ day of 
____________________, 19____ or 20____.

    [Signature]

For--------------------------------------------------------------------
    [Capacity]

    (d) Service of any document may be by mail or personal delivery. 
Service of any document other than the complaint and the answer may be 
by fax or other electronic means, at the discretion of the ALJ; but the 
Hearing Docket Clerk may limit the times and circumstances of service 
by fax or other electronic means.
    (e) Unless the ALJ orders otherwise, each document filed in 
accordance with Sec. 20.302 must be served upon each counsel or other 
representative or, if the party is not represented, upon the party 
herself or himself. Service upon counsel or representative constitutes 
service upon the person to be served.
    (f) Service must be made at the address of the counsel or 
representative, or, if the party is not represented, at the last known 
address of the residence or principal place of business of the person 
to be served.
    (g) If service is by personal delivery, it is complete when the 
document is handed to the person to be served, is delivered to the 
person's office during business hours, or, if the person to be served 
has no office, is delivered to the person's residence and deposited in 
a conspicuous place. If service is by mail, fax, or other electronic 
means, it is complete either upon deposit in the mail or with the 
electronic transmission.
    (h) If a person refuses to accept delivery or fails to claim a 
properly addressed document sent under this subpart, the document is 
deemed served anyway. Service is valid at the date and the time of 
mailing, of deposit with a contract service or express-courier service, 
or of refusal to accept delivery.


Sec. 20.305  Amendment or supplementation of filed documents.

    (a) Each party or interested person shall amend or supplement a 
previously filed pleading or other document if she or he learns of a 
material change that may affect the outcome of the administrative 
proceeding. However, no amendment or supplement may broaden the issues 
without an opportunity for

[[Page 16742]]

any other party or interested person both to reply to it and to prepare 
for the broadened issues.
    (b) The ALJ may allow other amendments or supplements to previously 
filed pleadings or other documents.
    (c) Each party or interested person shall notify the Hearing Docket 
Clerk, the ALJ, and every other party or interested person, or her or 
his representative, of any change of address.


Sec. 20.306  Computation of time.

    (a) In the computation of any period of time prescribed in this 
part--
    (1) The first day of the period is not included; and,
    (2) When the period is 7 days or less, intermediate Saturdays, 
Sundays, and Federal holidays are not included either; but,
    (3) Unless the last day of the period is a Saturday, Sunday, or 
Federal holiday, it is included.
    (b) If service or filing is by domestic mail, the period for 
response would run an added 3 days.
    (c) An ALJ, for cause shown, may----
    (1) Upon request for extension made before the end of the original 
period or of the period as extended by a previous order, with or 
without motion or notice, order a period extended; or
    (2) Upon motion made after the end of the original period or of the 
period as extended, permit the act to be done when the failure to do it 
before the end was excusable.


Sec. 20.307  Complaints.

    (a) The complaint must set forth----
    (1) The statute or rule allegedly violated;
    (2) The pertinent facts involved; and
    (3)(i) The amount of the class II civil penalty sought; or
    (ii) The order of suspension or revocation proposed.
    (b) The Coast Guard shall propose a place of hearing when filing 
the complaint.
    (c) The complaint must conform to the requirements of this subpart 
for filing and service.


Sec. 20.308  Answers.

    (a) The respondent shall file a written answer to the complaint 20 
days or less after service of the complaint. The answer must conform to 
the requirements of this subpart for filing and service.
    (b) The person filing the answer shall, in the answer, either agree 
to the place of hearing proposed in the complaint or propose an 
alternative.
    (c) Each answer must state whether the respondent intends to 
contest any of the allegations set forth in the complaint. It must 
include any affirmative defenses that the respondent intends to assert 
at the hearing.
    (1) The answer must admit or deny each numbered paragraph of the 
complaint. If it states that the respondent lacks sufficient knowledge 
or information to admit or deny a particular paragraph, it denies that 
paragraph. If it does not specifically deny a particular allegation 
made in the complaint, it admits that allegation.
    (2) If an answer generally denies the complaint, it constitutes a 
failure to file an answer.
    (d) A respondent's failure without good cause to file an answer 
admits each allegation made in the complaint.


Sec. 20.309  Motions.

    (a) A person may apply for an order or ruling not specifically 
provided for in this subpart, but shall apply for it by motion. Each 
written motion must comply with the requirements of this subpart for 
form, filing, and service. Each motion must state clearly and 
concisely--
    (1) Its purpose, and the relief sought;
    (2) Its statutory or regulatory authority; and
    (3) The facts constituting the grounds for the relief it seeks.
    (b) A proposed order may accompany a motion.
    (c) Each motion must be in writing; except that one made at a 
hearing will be sufficient if stated orally upon the record, unless the 
ALJ directs that it be reduced to writing.
    (d) Except as otherwise required by this part, a party shall file 
any response to a written motion 10 days or less after service of the 
motion. When a party makes a motion at a hearing, an oral response to 
the motion made at the hearing is timely.
    (e) Unless the ALJ orders otherwise, the filing of a motion does 
not stay a proceeding.
    (f) The ALJ will rule on the record either orally or in writing. 
She or he may summarily deny any dilatory, repetitive, or frivolous 
motion.


Sec. 20.310  Default by respondent.

    (a) The ALJ may find a respondent in default upon failure to file a 
timely answer to the complaint or, after motion, upon failure to appear 
at a conference or hearing without good cause shown.
    (b) Each motion for default must conform to the rules of form, 
service, and filing of this subpart and must include a proposed 
decision. The respondent alleged to be in default shall file a reply to 
the motion 20 days or less after service of the motion.
    (c) Default by respondent constitutes, for purposes of the pending 
action only, an admission of all facts alleged in the complaint and a 
waiver of her or his right to a hearing on those facts.
    (d) Upon finding a respondent in default, the ALJ shall issue a 
decision against her or him.
    (e) For good cause shown, the ALJ may set aside a finding of 
default.


Sec. 20.311  Withdrawal or dismissal.

    (a) An administrative proceeding may end in withdrawal without any 
act by an ALJ in any of the following ways:
    (1) By the filing of a stipulation by all parties who have appeared 
in the proceeding.
    (2) By the filing of a notice of withdrawal by the Coast Guard 
representative at any time before the respondent has served a 
responsive pleading.
    (3) With respect to a complaint filed under section 311(b)(6) of 
the Federal Water Pollution Control Act [33 U.S.C. 1321 (b)(6)] or 
section 109(d) of the Comprehensive Environmental Response, 
Compensation and Liablility Act [42 U.S.C. 9609 (b)], by the filing of
    (i) A notice of withdrawal by the Coast Guard representative at any 
time after the respondent has served a responsive pleading, but before 
the issuance of an order of the Commandant assessing or denying a class 
II civil penalty, together with
    (ii) A certification by the representative that the filing of the 
notice is due to a request by the Attorney General--in accordance with 
subsection 10(d) of Executive Order 12777 [56 FR 54757; 3 CFR, 1991 
Comp., p. 351]--that the Coast Guard refrain from conducting an 
administrative proceeding.
    (b) Unless the stipulation or notice of withdrawal states 
otherwise, a withdrawal under paragraph (a) of this section is without 
prejudice.
    (c) Except as provided in paragraph (a) of this section, no 
administrative proceeding may end in withdrawal unless approved by an 
ALJ upon such terms as she or he deems proper.
    (d) Any party may move to dismiss the complaint, or may lodge a 
request for relief, for failure of another party to--
    (1) Comply with the requirements of this part or with any order of 
the ALJ;
    (2) Show a right to relief based upon the facts or law; or
    (3) Prosecute the proceeding.
    (e) A dismissal resides within the discretion of the ALJ.

[[Page 16743]]

Subpart D--Proceedings


Sec. 20.401  Initiation of administrative proceedings.

    An administrative proceeding commences when the Coast Guard 
representative files the complaint with the Hearing Docket Clerk and 
serves a copy of it on the respondent.


Sec. 20.402  Public notice.

    Upon the filing of a complaint under 33 U.S.C. 1321(b) (6), the 
Coast Guard provides public notice of a class II civil penalty 
proceeding. The notice appears in the Federal Register.


Sec. 20.403  Consolidation and severance.

    (a) A presiding ALJ may for good cause, with the approval of the 
Chief ALJ and with all parties given notice and opportunity to object, 
consolidate any matters at issue in two or more administrative 
proceedings docketed under this part. (Good cause includes the 
proceedings' possessing common parties, questions of fact, and issues 
of law and presenting the likelihood that consolidation would expedite 
the proceedings and serve the interests of justice.) The ALJ may not 
consolidate any matters if consolidation would prejudice any rights 
available under this part or impair the right of any party to place any 
matters at issue.
    (b) Unless directed otherwise by the Chief ALJ, a presiding ALJ 
may, either in response to a motion or on his or her own motion, for 
good cause, sever any administrative proceeding with respect to some or 
all parties, claims, and issues.


Sec. 20.404  Interested persons.

    (a) Any person not a party to a class II civil penalty proceeding 
under 33 U.S.C. 1321(b)(6) who wishes to be an interested person in the 
proceeding shall, 30 days or less after publication in the Federal 
Register of the public notice required by Sec. 20.402, file with the 
Hearing Docket Clerk either--
    (1) Written comments on the proceeding; or
    (2) Written notice of intent to present evidence at any hearing in 
the proceeding.
    (b) The presiding ALJ may, for good cause, accept late comments or 
late notice of intent to present evidence.
    (c) Each interested person shall receive notice of any hearing due 
in the proceeding and of the decision in the proceeding. He or she may 
have a reasonable opportunity to be heard and to present evidence in 
any hearing.
    (d) The opportunity secured by paragraph (c) of this section does 
not extend to--
    (1) The issuance of subpoenas for witnesses;
    (2) The cross-examination of witnesses; or
    (3) Appearance at any settlement conference.

Subpart E--Conferences and Settlements


Sec. 20.501  Conferences.

    (a) Any party may by motion request a conference.
    (b) The ALJ may direct the parties to attend one or more 
conferences before or during a hearing.
    (c) The ALJ may invite interested persons to attend a conference, 
other than a settlement conference, as the ALJ deems appropriate.
    (d) The ALJ shall give reasonable notice of the time and place of 
any conference to the parties, and to interested persons if invited. A 
conference may occur in person, by telephone, or by other appropriate 
means.
    (e) Each party, and any interested person invited, shall be fully 
prepared for a useful discussion of all issues properly before the 
conference, both procedural and substantive, and be authorized to 
commit themselves or those they represent respecting those issues.
    (f) Unless the ALJ excuses a party, the failure of a party to 
attend or participate in a conference, after being served with 
reasonable notice of its time and place, waives all objections to any 
agreements reached in it and to any consequent orders or rulings.
    (g) The ALJ may direct that any of the following be addressed or 
furnished before, during, or after the conference:
    (1) Methods of service and filing.
    (2) Motions for consolidation or severance of parties or issues.
    (3) Motions for discovery.
    (4) Identification, simplification, and clarification of the 
issues.
    (5) Requests for amendment of the pleadings.
    (6) Stipulations and admissions of fact and of the content and 
authenticity of documents.
    (7) The desirability of limiting and grouping witnesses, so as to 
avoid duplication.
    (8) Requests for official notice and particular matters to be 
resolved by reliance upon the substantive standards, rules, and other 
policies of the Coast Guard.
    (9) Offers of settlement.
    (10) Proposed date, time, and place of the hearing.
    (11) Other matters that may aid in the disposition of the 
proceeding.
    (h) No one may stenographically report or otherwise record a 
conference unless the ALJ allows.
    (i) During a conference, the ALJ may dispose of any procedural 
matters on which he or she is authorized to rule.
    (j) Actions taken at a conference may be memorialized in--
    (1) A stenographic report if authorized by the ALJ;
    (2) A written transcript from a magnetic tape or the equivalent if 
authorized by the ALJ; or
    (3) A statement by the ALJ on the record at the hearing summarizing 
them.


Sec. 20.502  Settlements.

    (a) The parties may submit a proposed settlement to the ALJ.
    (b) The proposed settlement must be in the form of a proposed 
decision, accompanied by a motion for its entry. The decision must 
recite the reasons that make it acceptable, and it must be signed by 
the parties or their representatives.
    (c) The proposed decision must contain--
    (1) An admission of all jurisdictional facts;
    (2) An express waiver of--
    (i) Any further procedural steps before the ALJ; and
    (ii) All rights to seek judicial review, or otherwise challenge or 
contest the validity, of the decision;
    (3) A statement that the decision will have the same force and 
effect as would a decision made after a hearing; and
    (4) A statement that the decision resolves all matters needing to 
be adjudicated.

Subpart F--Discovery


Sec. 20.601  General.

    (a) Unless the ALJ orders otherwise, each party--and each 
interested person who has filed written notice of intent to present 
evidence at any hearing in the proceeding under Sec. 20.404--shall make 
available to the ALJ and to every other party and interested person--
    (1) The name of each expert and other witness the party intends to 
call, together with a brief narrative summary of their expected 
testimony; and,
    (2) A copy, marked as an exhibit, of each document the party 
intends to introduce into evidence or use in the presentation of its 
case.
    (b) During a pre-hearing conference ordered under Sec.  20.501, the 
ALJ may direct that the parties exchange witness lists and exhibits 
either at once or by correspondence.
    (c) The ALJ may establish a schedule for discovery and shall serve 
a copy of any such schedule on each party.

[[Page 16744]]

    (1) The schedule may include dates by which the parties shall 
exchange witness lists and exhibits and file any requests for discovery 
and objections to such requests.
    (2) Unless the ALJ orders otherwise, the parties shall exchange 
witness lists and exhibits 15 days or more before hearing.
    (d) Further discovery may occur only by order, and then only when 
the ALJ determines that--
    (1) It will not unreasonably delay the proceeding;
    (2) The information sought is not otherwise obtainable;
    (3) The information sought has significant probative value;
    (4) The information sought is neither cumulative nor repetitious; 
and
    (5) The method or scope of the discovery is not unduly burdensome 
and is the least burdensome method available.
    (e) A motion for discovery must set forth--
    (1) The circumstances warranting the discovery;
    (2) The nature of the information sought; and
    (3) The proposed method and scope of discovery and the time and 
place where the discovery would occur.
    (f) If the ALJ determines that he or she should grant the motion, 
he or she shall issue an order for the discovery, together with the 
terms on which it will occur.


Sec. 20.602  Amendatory or supplementary responses.

    (a) Each party or interested person shall promptly amend or 
supplement--
    (1) The name of each expert and other witness he or she intends to 
call, together with a brief narrative summary of their expected 
testimony;
    (2) The list of documents he or she intends to introduce into 
evidence; and
    (3) Any information previously provided, if he or she knows that--
    (i) It was incorrect or incomplete when provided; or,
    (ii) Though correct when provided, it no longer is and that, in the 
circumstances, a failure to amend or supplement it amounts to a knowing 
concealment.
    (b) The ALJ may impose a further duty to amend or supplement.


Sec. 20.603  Interrogatories.

    (a) Any party requesting interrogatories shall so move to the ALJ. 
The motion must include--
    (1) A statement of the purpose and scope of the interrogatories; 
and
    (2) The proposed interrogatories.
    (b) The ALJ shall review the proposed interrogatories, and may 
enter an order either--
    (1) Approving the service of some or all of the proposed 
interrogatories or;
    (2) Denying the motion.
    (c) A party shall serve on the party named in the interrogatories 
the approved written interrogatories.
    (d) Each interrogatory must be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons for the objection shall be stated instead of a 
response. A party, the party's attorney, or the party's representative 
shall sign the party's responses to interrogatories.
    (e) Responses or objections must be filed within 30 days after the 
service of the interrogatories.
    (f) A response to an interrogatory is considered sufficient when--
    (1) The burden of ascertaining the information in a response to an 
interrogatory is substantially the same for all parties involved in the 
action;
    (2) The information may be obtained from an examination, audit, or 
inspection of records, or from a compilation, abstract, or summary 
based on such records; and
    (3) The records from which such answers may be derived or 
ascertained are fully specified.
    (g) The party serving the interrogatory shall be afforded 
reasonable opportunity to examine, audit, or inspect the resource and 
to make copies, compilations, abstracts, or summaries. The 
specification must include sufficient detail to permit the 
interrogating party to locate and identify the individual records from 
which the answer may be ascertained.


Sec. 20.604  Requests for production of documents or things, for 
inspection or other purposes.

    (a) Any party seeking production of documents or things for 
inspection or other purposes shall so move to the ALJ. The motion must 
state with particularity--
    (1) The purpose and scope of the request; and
    (2) The documents and materials which are requested to be produced.
    (b) The ALJ shall review the motion and enter an order approving or 
denying it in whole or in part.
    (c) A party shall serve on the party in possession, custody, or 
control of the documents the order to produce or to permit inspection 
and copying of documents.
    (d) A party may, after approval of an appropriate motion by the 
ALJ, inspect and copy, test, or sample any tangible things that 
contain, or may lead to, relevant information, and that are in the 
possession, custody, or control of the party upon whom the request is 
served.
    (e) A party may, after approval of an appropriate motion by the 
ALJ, serve on another party a request to permit entry upon designated 
property in the possession or control of the other party for the 
purpose of inspecting, measuring, surveying, photographing, testing, or 
sampling the property or any designated object or area. A request to 
permit entry upon property must set forth with reasonable particularity 
the feature to be inspected and must specify a reasonable time, place, 
and manner for making the inspection and performing the related acts.
    (f) The party upon whom the request is served shall respond within 
30 days after the service of the request.
    Inspection and related activities will be permitted as requested, 
unless there are objections, in which case the request for each 
objection must be stated.


Sec. 20.605  Depositions.

    (a) The ALJ may order a deposition only upon a showing of good 
cause and upon a finding that--
    (1) The information sought is not obtainable more readily by 
alternative methods; or
    (2) There is a substantial reason to believe that relevant and 
probative evidence may otherwise not be preserved for a witness to 
present at the hearing.
    (b) Testimony may be taken by deposition upon approval of the ALJ 
of a motion made by any party.
    (1) The motion must state--
    (i) The purpose and scope of the deposition;
    (ii) The time and place it is to be taken;
    (iii) The name and address of the person before whom the deposition 
is to be taken;
    (iv) The name and address of each witness from whom a deposition is 
to be taken;
    (v) The documents and materials which the witness is to produce; 
and
    (vi) Whether it is intended that the deposition be used at a 
hearing instead of live testimony.
    (2) The motion must state if the deposition is to be by oral 
examination, by written interrogatories, or a combination of the two. 
The deposition may be taken before any disinterested person authorized 
to administer oaths in the place where the deposition is to be taken.
    (c) Upon a showing of good cause the ALJ may enter, and serve upon 
the parties, an order to obtain the testimony of the witness.
    (d) If the deposition of a public or private corporation, 
partnership, association, or governmental agency is

[[Page 16745]]

ordered, the organization named must designate one or more officers, 
directors, or agents to testify on its behalf, and may set forth, for 
each person designated, the matters on which he or she will testify. 
Subject to the provisions of 49 CFR part 9 with respect to Coast Guard 
witnesses, the designated persons shall testify as to matters 
reasonably known to them.
    (e) Each witness deposed shall be placed under oath or affirmation, 
and the other parties shall have the right to cross-examine.
    (f) The witness being deposed may have counsel or another 
representative present during the deposition.
    (g) Except as provided in paragraph (n) of this section, 
depositions shall be stenographically recorded and transcribed at the 
expense of the party requesting the deposition. Unless waived by the 
deponent, the transcription must be read by or read to the deponent, 
subscribed by the deponent, and certified by the person before whom the 
deposition was taken.
    (h) Subject to objections to the questions and responses as were 
noted at the taking of the deposition and which would have been 
sustained if the witness were personally present and testifying, a 
deposition may be offered into evidence by the party taking it against 
any party who was present or represented at the taking of the 
deposition or who had notice of the deposition.
    (i) The party requesting the deposition shall make appropriate 
arrangements for necessary facilities and personnel.
    (j) During the taking of a deposition, a party or the witness may 
request suspension of the deposition on the grounds of bad faith in the 
conduct of the examination, oppression of the witness or party, or 
improper questioning or conduct. Upon request for suspension, the 
deposition will be adjourned. The objecting party or witness must 
immediately move the ALJ for a ruling on the objection(s). The ALJ may 
then limit the scope or manner of the taking of the deposition.
    (k) When a deposition is taken in a foreign country, it may be 
taken before a person having power to administer oaths in that 
location, or before a secretary of an embassy or legation, consul 
general, consul, vice consul or consular agent of the United States, or 
before such other person or officer as may be agreed upon by the 
parties by written stipulation filed with the ALJ.
    (l) Objection to taking a deposition because of the 
disqualification of the officer before whom it is to be taken is waived 
unless made before the taking of the deposition begins, or as soon as 
the disqualification becomes known or could have been discovered with 
reasonable diligence.
    (m) A deposition may be taken by telephone conference call upon 
such terms, conditions, and arrangements as are prescribed in the order 
of the ALJ.
    (n) The testimony at a deposition hearing may be recorded on 
videotape, upon such terms, conditions and arrangements as are 
prescribed in the order of the ALJ, at the expense of the party 
requesting the recording. The video recording may be in conjunction 
with an oral examination by telephone conference held pursuant to 
paragraph (m) of this section. After the deposition has been taken, and 
copies of the video recording are provided to parties requesting them, 
the person recording the deposition shall immediately place the 
videotape in a sealed envelope or a sealed videotape container, 
attaching to it a statement identifying the proceeding and the deponent 
and certifying as to the authenticity of the video recording, and 
return the videotape by accountable means to the ALJ. The deposition 
becomes a part of the record of the proceedings in the same manner as a 
transcribed deposition. The videotape, if admitted into evidence, will 
be played during the hearing and transcribed into the record by the 
reporter.


Sec. 20.606  Protective orders.

    (a) In considering a motion for an order of discovery--or a motion, 
by a party or other person from whom discovery is sought, to reconsider 
or amend an order of discovery--the ALJ may enter any order that 
justice requires, to protect a person from annoyance, embarrassment, 
oppression, or undue burden or expense. This order may--
    (1) Confine discovery to specific terms and conditions, such as a 
particular time and place;
    (2) Confine discovery to a method other than that selected by the 
party seeking it;
    (3) Preclude inquiry into certain matters;
    (4) Ordain that discovery occur with no one present except persons 
designated by the ALJ;
    (5) Preclude the disclosure of a trade secret or other proprietary 
information, or allow its disclosure only in a designated way or only 
to designated persons; or
    (6) Require that the person from whom discovery is sought file 
specific documents or information under seal for opening at the 
direction of the ALJ.
    (b) When a person from whom discovery is sought seeks a protective 
order, the ALJ may let him or her make all or part of the showing of 
good cause in camera. The ALJ shall record any proceedings in camera. 
If he or she enters a protective order, he or she shall seal any 
proceedings so recorded. These shall be releasable only as required by 
law.
    (c) Upon motion by a person from whom discovery is sought, the ALJ 
may--
    (1) Restrict or defer disclosure by a party either of the name of a 
witness or, if the witness comes from the Coast Guard, of any prior 
statement of the witness; and
    (2) Prescribe other appropriate measures to protect a witness.
    (d) Any party affected by a protective order shall have an adequate 
opportunity, once learning the name of the witness and obtaining a 
narrative summary of expected testimony--or, if the witness comes from 
the Coast Guard, obtaining any prior statement--to prepare for cross-
examination and for the presentation of the party's case.


Sec. 20.607  Sanctions for failure to comply.

    If a party fails to provide or permit discovery, the ALJ may take 
such action as is just. This may include the following:
    (a) Infer that the testimony, document, or other evidence would 
have been adverse to the party.
    (b) Order that, for the purposes of the proceeding, designated 
facts are established.
    (c) Order that the party not introduce into evidence--or otherwise 
rely upon, in support of any claim or defense--that evidence that was 
withheld.
    (d) Order that the party not introduce into evidence, or otherwise 
use in the hearing, information obtained in discovery.
    (e) Allow the use of secondary evidence to show what the evidence 
withheld would have shown.


Sec. 20.608  Subpoenas.

    (a) An ALJ may issue a subpoena for the attendance of a person, the 
giving of testimony, or the production of books, papers, documents, or 
any other relevant evidence. A party seeking a subpoena shall request 
its issuance by motion.
    (b) An ALJ may, for good cause shown, apply to the United States 
District Court for the issuance of an order compelling the appearance 
and testimony of a witness or the production of evidence.
    (c) A person serving a subpoena shall prepare a written statement 
setting forth either the date, time, and manner of service or the 
reason for failure of service. He or she shall swear to or

[[Page 16746]]

affirm the statement, attach it to a copy of the subpoena, and return 
it to the ALJ who issued the subpoena.


Sec. 20.609  Motions to quash or modify.

    (a) A person to whom a subpoena is directed may, by motion with 
notice to the party requesting the subpoena, ask the ALJ to quash or 
modify the subpoena.
    (b) Except when made at a hearing, the motion must be filed
    (1) 10 days or less after service of a subpoena compelling the 
appearance and testimony of a witness or the production of evidence or
    (2) At or before the time specified in the subpoena for compliance, 
whichever is earlier.
    (c) If the subpoena is served at a hearing, the person to whom it 
is directed may, in person at the hearing or in writing within a 
reasonable time fixed by the ALJ, ask the ALJ to quash or modify it.
    (d) The ALJ may quash or modify the subpoena if it is unreasonable 
or requires evidence not relevant to any matter in issue.

Subpart G--Hearings


Sec. 20.701  Standard of proof.

    The party that bears the burden of proof shall prove his or her 
case or affirmative defense by a preponderance of the evidence.


Sec. 20.702  Burden of proof.

    (a) Except for an affirmative defense, or as provided by paragraph 
(b) of this section, the Coast Guard bears the burden of proof.
    (b) Except as otherwise provided by statute or rule, the proponent 
of a motion, request, or order bears the burden of proof.


Sec. 20.703  Presumptions.

    In each administrative hearing, a presumption--
    (a) Imposes on the party against whom it lies the duty of going 
forward with evidence to rebut or meet the presumption; but
    (b) Does not shift to that party the risk of non-persuasion, which 
remains throughout the hearing upon the party that bears it.


Sec. 20.704  Scheduling and notice of hearings.

    (a) With due regard for the convenience of the parties, and of 
their representatives or witnesses, the ALJ shall, as early as 
possible, fix the date, time, and place for the hearing and notify all 
parties and interested persons.
    (b) The ALJ may grant a request for a change in the date, time, or 
place of a hearing.
    (c) At any time after commencement of a proceeding, any party may 
move to expedite the proceeding. A party moving to expedite shall--
    (1) Explain in the motion the circumstances justifying the motion 
to expedite; and
    (2) Incorporate in the motion affidavits supporting any 
representations of fact.
    (d) After timely receipt of the motion and any responses, the ALJ 
may expedite pleadings, pre-hearing conferences, and the hearing, as 
appropriate.


Sec. 20.705  Failure to appear.

    The ALJ may enter a default under Sec. 20.310 against a respondent 
threatening to fail, or having failed, to appear at a hearing unless--
    (a) Before the time for the hearing, the respondent shows good 
cause why neither the respondent nor his or her representative can 
appear; or
    (b) 30 days or less after an order to show good cause, the 
respondent shows good cause for his or her failure to appear.


Sec. 20.706  Witnesses.

    (a) Each witness shall testify under oath or affirmation.
    (b) If a witness fails or refuses to answer any question the ALJ 
finds proper, the failure or refusal constitutes grounds for the ALJ to 
strike all or part of the testimony given by the witness or to take any 
other measure he or she deems appropriate.


Sec. 20.707  Telephonic testimony.

    (a) The ALJ may order the taking of the testimony of a witness by 
telephonic conference call. A person presenting evidence may by motion 
ask for the taking of testimony by this means. The arrangement of the 
call must let each participant listen to and speak to each other within 
the hearing of the ALJ, who shall ensure the full identification of 
each so the reporter can create a proper record.
    (b) The ALJ may issue a subpoena directing a witness to testify by 
telephonic conference call. The subpoena in any such instance issues 
under the procedures in Sec. 20.608.


Sec. 20.708  Witnesses' fees.

    (a) Each witness summoned in an administrative proceeding shall 
receive the same fees and mileage as a witness in a District Court of 
the United States.
    (b) The party or interested person who calls a witness is 
responsible for all fees and mileage due under paragraph (a) of this 
section.


Sec. 20.709  Closing of the record.

    (a) When the ALJ closes the hearing, he or she shall also close the 
record of the proceeding, as described in Sec. 20.903, unless he or she 
directs otherwise. Even after the ALJ closes it, he or she may reopen 
it.
    (b) The ALJ may correct the transcript of the hearing by 
appropriate order.


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

    (a) Before the ALJ closes the hearing, he or she may hear oral 
argument so far as he or she deems appropriate. Before the ALJ decides 
the case, and upon terms he or she finds reasonable, any party may file 
a brief, proposed findings of fact and conclusions of law, or both.
    (b) Any oral argument, brief, or proposed findings of fact and 
conclusions of law form part of the record of the proceeding, as 
described in Sec. 20.903.

Subpart H--Evidence


Sec. 20.801  General.

    Any party may present his or her case or defense by oral, 
documentary, or demonstrative evidence; submit rebuttal evidence; and 
conduct any cross-examination that may be necessary for a full and true 
disclosure of the facts.


Sec. 20.802  Admissibility of evidence.

    (a) The ALJ may admit any relevant oral, documentary, or 
demonstrative evidence, unless privileged. Relevant evidence is 
evidence tending to make the existence of any material fact more 
probable or less probable than it would be without the evidence.
    (b) The ALJ may exclude evidence if its probative value is 
substantially outweighed by the danger of prejudice, by confusion of 
the issues, or by reasonable concern for undue delay, waste of time, or 
needless presentation of cumulative evidence.


Sec. 20.803  Hearsay evidence.

    Hearsay evidence is admissible in proceedings governed by this 
part. The ALJ may consider the fact that evidence is hearsay when 
determining its probative value.


Sec. 20.804  Objections and offers of proof.

    (a) Any party objecting to the admission or exclusion of evidence 
shall concisely state the grounds. A ruling on every objection must 
appear in the record. No party may raise an objection on appeal unless 
he or she raised it before the ALJ.
    (b) Whenever evidence is excluded, the party offering such evidence 
may make an offer of proof, which must appear in the record.

[[Page 16747]]

Sec. 20.805  Proprietary information.

    (a) The ALJ may limit introduction of evidence or issue such 
protective or other orders as in his or her judgment are consistent 
with the object of preventing undue disclosure of proprietary matters, 
including, among others, ones of a commercial nature.
    (b) When the ALJ determines that information in a document 
containing proprietary matters should be made available to another 
party, the ALJ may direct the party possessing the document to prepare 
a non-proprietary summary or extract of it. The summary or extract may 
be admitted as evidence in the record.
    (c) If the ALJ determines that a non-proprietary summary or extract 
is inadequate and that proprietary matters must form part of the record 
to avert prejudice to a party, the ALJ may so advise the parties and 
arrange access to the evidence for a party or representative.


Sec. 20.806  Official notice.

    The ALJ may take official notice of such matters as could courts, 
or of other facts within the specialized knowledge of the Coast Guard 
as an expert body. When all or part of a decision rests on the official 
notice of a material fact not appearing in the evidence in the record, 
the decision must state as much; and any party, upon timely request, 
shall receive an opportunity to rebut the fact.


Sec. 20.807  Exhibits and documents.

    (a) Each exhibit must be numbered and marked for identification by 
the party offering it. The original of each exhibit so marked, whether 
or not offered or admitted into evidence, must be filed and retained in 
the record of the proceeding, unless the ALJ permits the substitution 
of a copy. The party introducing each exhibit so marked shall supply 
the exhibit to the ALJ and to every party to the proceeding.
    (b) Unless the ALJ directs otherwise, each party who would offer an 
exhibit upon direct examination shall make it available to every other 
party for inspection 15 days or more before the hearing. The ALJ will 
deem admitted the authenticity of each exhibit submitted before the 
hearing unless a party either files written objection and serves it on 
all parties or shows good cause for failure to do both.
    (c) In class II civil penalty proceedings under 33 U.S.C. 
1321(b)(6), each exhibit introduced by an interested person must be 
marked, and filed and retained in the record of the proceeding, unless 
the ALJ permits the substitution of a copy. The interested person shall 
supply the exhibit to the ALJ and to every party to the proceeding. The 
requirements of paragraph (b) of this section apply to any interested 
person who would offer an exhibit upon direct examination.


Sec. 20.808  Written testimony.

    The ALJ may enter into the record the written testimony of a 
witness. The witness shall be, or have been, available for oral cross-
examination. The statement must be sworn to, or affirmed, under penalty 
of perjury.


Sec. 20.809  Stipulations.

    Any party or interested person may stipulate, in writing, at any 
stage of the proceeding, or orally at the hearing, to any pertinent 
fact or other matter fairly susceptible of stipulation. A stipulation 
binds all parties to it.

Subpart I--Decisions


Sec. 20.901  Summary decisions.

    (a) Any party, after commencement of the proceeding and 15 days or 
more before the date fixed for the hearing, may, with or without 
supporting affidavits, move for a summary decision in all or any part 
of the proceeding on the grounds that there is no genuine issue of 
material fact and that the party is entitled to a decision as a matter 
of law. Any other party may, 10 days or less after service of the 
motion, serve opposing affidavits or countermove for summary decision. 
The ALJ may set the matter for argument and call for the submission of 
briefs.
    (b) The ALJ may grant the motion if the filed affidavits, 
documents, material obtained by discovery or otherwise, or matters 
officially noted show that there is no genuine issue of material fact 
and that a party is entitled to a summary decision as a matter of law.
    (c) Each affidavit must set forth such matters as would be 
admissible in evidence and must show affirmatively that the affiant is 
competent to testify to the matters stated in the affidavit. Once a 
party has moved for summary decision and supported his or her motion as 
provided in this section, no party opposing the motion may rest upon 
the mere allegations or denials of facts contained in his or her own 
pleadings. The response to the motion, by affidavit or as otherwise 
provided in this section, must provide a specific basis to show that 
there is a genuine issue of material fact for the hearing.
    (d) If it appears from the affidavit of a party opposing the motion 
that this party cannot, for reasons stated, present by affidavit 
matters essential to justify his or her opposition, the ALJ may deny 
the motion for summary decision, may order a continuance to enable the 
obtaining of information, or may make such other order as is just.
    (e) No denial of all or any part of a motion for summary decision 
is subject to interlocutory appeal.


Sec. 20.902  Decisions of the ALJ.

    (a) After closing the record of the proceeding, the ALJ shall 
prepare a decision containing--
    (1) A finding on each material issue of fact and conclusion of law, 
and the basis for each finding;
    (2) The disposition of the case, including the assessment of a 
class II civil penalty or an order of suspension or revocation, as 
appropriate;
    (3) The date upon which the decision will become effective;
    (4) A statement of further right to appeal; and,
    (5) If no hearing was held, a statement of the right of any 
interested person to petition the Commandant to set aside the decision.
    (b) The decision of the ALJ must rest upon a consideration of the 
whole record of the proceedings.
    (c) The ALJ may, upon motion of any party or in his or her own 
discretion, render the initial decision from the bench (orally) at the 
close of the hearing and prepare and serve a written order on the 
parties or their authorized representatives. In rendering his or her 
decision from the bench, the ALJ shall state the issues in the case and 
make clear, on the record, his or her findings of fact and conclusions 
of law.
    (d) If the ALJ renders the initial decision orally, and if a party 
asks for a copy, the Hearing Docket Clerk shall furnish a copy 
excerpted from the transcript of the record. The date of the decision 
is the actual date of the oral rendering of the decision by the ALJ.


Sec. 20.903  Records of proceedings.

    (a) The transcript of testimony at the hearing, all exhibits 
received into evidence, any items marked as exhibits and not received 
into evidence, all motions, all applications, all requests, and all 
rulings constitute the official record of a proceeding. This record 
also includes any motions or other matters regarding the 
disqualification of the ALJ.
    (b) Any person may examine the record of a proceeding at the U.S. 
Coast Guard Administrative Law Judge Docketing Center; Room 412; 40 S. 
Gay Street; Baltimore, MD 21201-4022. Any person may obtain a copy of 
part or all of the record after payment of reasonable costs for 
duplicating it in accordance with 49 CFR part 7.

[[Page 16748]]

Sec. 20.904  Reopening.

    (a) To the extent permitted by law, the ALJ may, for good cause 
shown in accordance with paragraph (c) of this section, reopen the 
record of a proceeding to take added evidence.
    (b) Any party may move to reopen the record of a proceeding 30 days 
or less after the closing of the record.
    (1) Each motion to reopen the record must clearly set forth the 
facts that the movant would try to prove and the grounds for reopening 
the record.
    (2) Any party who does not respond to any motion to reopen the 
record waives any objection to the motion.
    (c) The ALJ may reopen the record of a proceeding if he or she 
believes that any change in fact or law, or that the public interest, 
warrants reopening it.
    (d) The filing of a motion to reopen the record of a proceeding 
does not affect the periods for appeals specified in subpart J of this 
part, except that a motion to reopen the record tolls the running of 
whatever time remains in the period from the date of filing the motion 
until either the ALJ acts on the motion or the party filing it 
withdraws it.
    (e)(1) The ALJ shall rescind any order suspending or revoking a 
merchant mariner's license, certificate of registry, or document if--
    (i) The order rests on a conviction--
    (A) For violation of a dangerous drug law;
    (B) Of an offense that would prevent the issuance or renewal of the 
license, certificate, or document; or
    (C) Of an offense described in subparagraph 205(a)(3)(A) or (B) of 
the National Driver Register Act of 1982 [23 U.S.C. 401, note]; and
    (ii) The respondent submits a specific order of court to the effect 
that the conviction has been unconditionally set aside for all 
purposes.
    (2) The ALJ, however, may not rescind his or her order on account 
of any law that provides for a subsequent conditional setting aside, 
modification, or expunging of the order of court, by way of granting 
clemency or other relief after the conviction has become final, without 
regard to whether punishment was imposed.
    (f) Three years or less after an S&R proceeding has resulted in 
revocation of a license, certificate, or document, the respondent may 
move the reopening of the proceeding to modify the order of revocation 
to the ALJ Docketing Center.
    (1) Any motion to reopen the record must clearly state why the 
basis for the order of revocation is no longer valid and how the 
issuance of a new license, certificate, or document is compatible with 
the requirement of good discipline and safety at sea.
    (2) Any party who does not respond to any motion to reopen the 
record waives any objection to the motion.

Subpart J--Appeals


Sec. 20.1001  General.

    Any party may appeal the ALJ's decision by filing a notice of 
appeal. The party shall file the notice with the U. S. Coast Guard 
Administrative Law Judge Docketing Center; Attention: Hearing Docket 
Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-4022. The party 
shall file the notice 30 days or less after issuance of the decision, 
and shall serve a copy of it on the other party and each interested 
person.
    (b) No party may appeal except on the following issues:
    (1) Whether each finding of fact is supported by substantial 
evidence.
    (2) Whether each conclusion of law accords with applicable law, 
precedent, and public policy.
    (3) Whether the ALJ abused his or her discretion.
    (4) The ALJ's denial of a motion for disqualification.
    (c) No interested person may appeal a summary decision except on 
the issue that no hearing was held or that in the issuance of the 
decision the ALJ did not consider evidence that that person would have 
presented.
    (d) The appeal must follow the procedural requirements of this 
subpart.


Sec. 20.1002  Records on appeal.

    (a) The record of the proceeding constitutes the record for 
decision on appeal.
    (b) If the respondent requests a copy of the transcript of the 
hearing as part of the record of proceeding, then,--
    (1) If the hearing was recorded at Federal expense, the Coast Guard 
will provide the transcript on payment of the fees prescribed in 49 CFR 
7.95; but,
    (2) If the hearing was recorded by a Federal contractor, the 
contractor will provide the transcript on the terms prescribed in 49 
CFR 7.99.


Sec. 20.1003  Procedures for appeal.

    (a) Each party appealing the ALJ's decision or ruling shall file an 
appellate brief with the Commandant at the following address: 
Commandant (G-LMI); U.S. Coast Guard Headquarters; 2100 Second St., 
S.W.; Washington, D.C. 20593 and shall serve a copy of the brief on 
every other party.
    (1) The appellate brief must set forth the appellant's specific 
objections to the decision or ruling. The brief must set forth, in 
detail, the--
    (i) Basis for the appeal;
    (ii) Reasons supporting the appeal; and
    (iii) Relief requested in the appeal.
    (2) When the appellant relies on material contained in the record 
for the appeal, the appellate brief must specifically refer to the 
pertinent parts of the record.
    (3) The appellate brief must reach the Commandant 60 days or less 
after service of the ALJ's decision. If a brief is not filed within 
this time, or within another time period authorized in writing by the 
Commandant, it will be considered not timely.
    (b) Any party may file a reply brief with the Commandant 35 days or 
less after service of the appellate brief. Each such party shall serve 
a copy on every other party. If the party filing the reply brief relies 
on evidence contained in the record for the appeal, that brief must 
specifically refer to the pertinent parts of the record.
    (c) No party may file more than one appellate brief or reply brief, 
unless
    (1) The party has petitioned the Commandant in writing and
    (2) The Commandant has granted leave to file an added brief. The 
Commandant will allow a reasonable time for the party to file any 
additional brief.
    (d) The Commandant may accept an amicus curiae brief from any 
person in an appeal of an ALJ's decision.


Sec. 20.1004  Decisions on appeal.

    (a) The Commandant shall review the record on appeal to determine 
whether the ALJ committed prejudicial error in the proceedings, and 
whether the Commandant should affirm, modify, or reverse the ALJ's 
decision or should remand the case for further proceedings. The 
Commandant may take any of these four actions.
    (b) The Commandant shall issue a decision on every appeal in 
writing and shall serve a copy of the decision on each party and 
interested person.

Subpart K--Finality, Petitions for Hearing, and Availability of 
Orders


Sec. 20.1101  Finality.

    (a) Civil penalty proceeding. (1) Unless appealed pursuant to 
Subpart J of this part, an ALJ's decision becomes an order assessing or 
denying a class II civil penalty 30 days after the date of its 
issuance.
    (2) If the Commandant issues a decision under subpart J of this 
part, the decision constitutes an order of the Commandant assessing or 
denying a class II civil penalty on the date of its issuance.
    (b) S&R proceedings. (1) Unless appealed pursuant to Subpart J of 
this part, an ALJ's decision becomes final

[[Page 16749]]

action of the Coast Guard 30 days after the date of its issuance.
    (2) If the Commandant issues a decision under subpart J of this 
part, this decision constitutes final action of the Coast Guard on the 
date of its issuance.


Sec. 20.1102  Petitions to set aside decisions and provide hearings for 
civil penalty proceedings.

    (a) If no hearing takes place on a complaint for a class II civil 
penalty, any interested person may file a petition, 30 days or less 
after the issuance of an order assessing or denying a civil penalty, 
asking the Commandant to set aside the order and to provide a hearing.
    (b) If the Commandant decides that evidence presented by an 
interested person in support of a petition under paragraph (a) of this 
section is material and that the ALJ did not consider the evidence in 
the issuance of the decision, the Commandant shall set aside the 
decision and direct that a hearing take place in accordance with the 
requirements of this part.
    (c) If the Commandant denies a hearing sought under this section, 
he or she shall provide to the interested person, and publish in the 
Federal Register, notice of and the reasons for the denial.


Sec. 20.1103  Availability of decisions.

    (a)(1) Copies and indices of decisions on appeal are available for 
inspection and copying at--
    (i) The document inspection facility at the office of any Coast 
Guard District, Activity, or Marine Safety Office;
    (ii) The public reading room at Coast Guard Headquarters; and
    (iii) The public reading room of the Coast Guard ALJ Docketing 
Center; Baltimore, Maryland.
    (2) Appellate decisions in S&R proceedings, and both appellate and 
ALJs' decisions on class II civil penalties, are available on the 
Department of Transportation Home Page at www.dot.gov or the Coast 
Guard Home Page at www.uscg.mil.
    (b) Any person wanting a copy of a decision may place a request 
with the Hearing Docket Clerk. The Clerk will bill the person on the 
terms prescribed in 49 CFR 7.93.

Subpart L--Expedited Hearings


Sec. 20.1201  Application.

    (a) This subpart applies whenever the Coast Guard suspends a 
merchant mariner's license, certificate of registry, or document 
without a hearing under 46 U.S.C 7702(d).
    (b) The Coast Guard may, for 45 days or less, suspend and seize a 
license, certificate, or document if, when acting under the authority 
of the license, certificate, or document--
    (1) A mariner performs a safety-sensitive function on a vessel; and
    (2) There is probable cause to believe that he or she--
    (i) Has performed the safety-sensitive function in violation of law 
or Federal regulation regarding use of alcohol or a dangerous drug;
    (ii) Has been convicted of an offense that would prevent the 
issuance or renewal of the license, certificate, or document; or,
    (iii) Three years or less before the start of an S&R proceeding, 
has been convicted of an offense described in subparagraph 205(a)(3) 
(A) or (B) of the National Driver Register Act of 1982 [23 U.S.C. 401, 
note].


Sec. 20.1202  Filing of pleadings.

    (a) Complaint. If the Coast Guard has temporarily suspended a 
merchant mariner's license, certificate of registry, or document, it 
shall immediately file a complaint under Sec. 20.307. The complaint 
must contain both a copy of a notice of temporary suspension and an 
affidavit stating the authority and reason for temporary suspension.
    (b) Answer. In a case under this subpart,
    (1) Sec. 20.308 does not govern answers and
    (2) The respondent shall therefore enter his or her answer at the 
pre-hearing conference.


Sec. 20.1203  Commencement of expedited hearings.

    Upon receipt of a complaint with a copy of the notice of temporary 
suspension and the affidavit supporting the complaint, the Chief ALJ 
will immediately assign an ALJ and designate the case for expedited 
hearing.


Sec. 20.1205  Motion for return of temporarily suspended license, 
certificate of registry, or document.

    (a) Procedure. At any time during the proceedings, the respondent 
may move that his or her license, certificate of registry, or document 
be returned on the grounds that the agency lacked probable cause for 
temporary suspension. The motion must be in writing and explain why the 
agency lacked probable cause.
    (b) Ruling. If the ALJ grants the motion, the ALJ may issue such 
orders as are necessary for the return of the suspended license, 
certificate, or document and for the matter to continue in an orderly 
way under standard procedure.


Sec. 20.1206  Discontinuance of expedited hearings.

    (a) Procedure. At any time during the proceedings, the respondent 
may move that the expedited hearing discontinue and that the matter 
continue under standard procedure. A motion to discontinue must be in 
writing and explain why the case is inappropriate for expedited 
hearing.
    (b) Ruling. If the ALJ grants the motion to discontinue, the ALJ 
may issue such orders as are necessary for the matter to continue in an 
orderly way under standard procedure.


Sec. 20.1207  Pre-hearing conferences.

    (a) When held. As early as practicable, the ALJ shall order and 
conduct a pre-hearing conference. He or she may order the holding of 
the conference in person, or by telephonic or electronic means.
    (b) Answer. The respondent shall enter his or her answer at the 
pre-hearing conference. If the answer is an admission, the ALJ shall 
either issue an appropriate order or schedule a hearing on the order.
    (c) Content. At the pre-hearing conference, the parties shall:
    (1) Identify and simplify the issues in dispute and prepare an 
agreed statement of issues, facts, and defenses.
    (2) Establish a simplified procedure appropriate to the matter.
    (3) Fix a time and place for the hearing 30 days or less after the 
temporary suspension.
    (4) Discuss witnesses and exhibits. The ALJ shall issue an order 
directing the exchange of witness lists and documents.
    (d) Order. Before the close of the pre-hearing conference, the ALJ 
shall issue an order setting forth any agreements reached by the 
parties. The order must specify the issues for the parties to address 
at the hearing.
    (e) Procedures not to cause delay. Neither any filing of pleadings 
or motions, nor any conduct of discovery, may interfere with:
    (1) The holding of the hearing 30 days or less after the temporary 
suspension or
    (2) The closing of the record early enough for the issuance of an 
initial decision 45 days or less after the temporary suspension.
    (f) Times. The ALJ may shorten the time for any act required or 
permitted under this subpart to enable him or her to issue an initial 
decision 45 days or less after the temporary suspension.


Sec. 20.1208  Expedited hearings.

    (a) Procedures. As soon as practicable after the close of the pre-
hearing conference, the ALJ shall hold a hearing, under subpart G of 
this part, on any issue that remains in dispute.

[[Page 16750]]

    (b) Oral and written argument. Each party may present oral argument 
at the close of the hearing. The ALJ shall issue a schedule, such as 
will enable him or her to consider the findings and briefs without 
delaying the issuance of the decision, for the filing of:
    (1) Proposed findings of fact and conclusions of law and
    (2) Post-hearing briefs, both under Sec. 20.710.
    (c) ALJ's decision. The ALJ may render his or her decision from the 
bench. Alternatively, he or she may issue a written decision. He or she 
shall render or issue the decision 45 days or less after the temporary 
suspension.


Sec. 20.1209  Appeals of ALJs' decisions.

    Any party may appeal the ALJ's decision as provided in Subpart J.

Subpart M--Evidentiary Rules for Suspension and Revocation Hearings


Sec. 20.1301  Purpose.

    This subpart contains evidentiary rules that apply only in certain 
circumstances in S&R proceedings. They supplement, not supplant, the 
evidentiary rules in Subpart H.


Sec. 20.1303  Authentication and certification of extracts from 
shipping articles, logbooks, and the like.

    (a) The investigating officer, the Coast Guard representative, any 
other commissioned officer of the Coast Guard, or any official 
custodian of extracts from shipping articles, logbooks, or records in 
the custody of the Coast Guard may authenticate and certify the 
extracts.
    (b) Authentication and certification must include a statement that 
the person acting has seen the original, compared the copy with it, and 
found the copy to be a true one. This person shall sign his or her name 
and identify himself or herself by rank or title and by duty station.


Sec. 20.1305  Admissibility and weight of entries from logbooks.

    (a) Any entry in any official logbook of a vessel concerning an 
offense enumerated in 46 U.S.C. 11501, made in substantial compliance 
with the procedural requirements of 46 U.S.C. 11502, is admissible in 
evidence and constitutes prima facie evidence of the facts recited.
    (b)(1) Any entry in any logbook of a vessel is admissible into 
evidence as a record of a regularly conducted activity and, therefore, 
does not constitute hearsay.
    (2) Any entry in any such logbook made in substantial compliance 
with the procedural requirements of 46 U.S.C. 11502 may receive added 
weight from the ALJ.


Sec. 20.1307  Use of judgments of conviction.

    (a) A judgment of conviction by a Federal court is conclusive in 
any S&R proceeding under this part concerning any incident described in 
46 U.S.C. 7703 when an act or offense forming the basis of the charge 
in the proceeding is the same as in the court.
    (b) Except as provided in paragraph (c) of this section, no 
judgment of conviction by a State court is conclusive in any S&R 
proceeding under this part concerning any incident described in 46 
U.S.C. 7703, even when an act or offense forming the basis of the 
charge in the proceeding is the same as in the court. But the judgment 
is admissible in evidence and constitutes substantial evidence adverse 
to the respondent.
    (c) An S & R proceeding is conclusive if it is based on a 
conviction by a Federal or State court for--
    (1) The violation of a dangerous drug law;
    (2) An offense that would prevent the issuance or renewal of the 
merchant mariner's license, certificate of registry, or document; or
    (3) An offense described in subparagraph 205(a)(3)(A) or (B) of the 
National Driver Register Act of 1982 [23 U.S.C. 401, note].
    (d) If the respondent participates in the scheme of a State for the 
expunging of convictions, and if he or she pleads guilty or no contest 
or, by order of the trial court, has to attend classes, contribute time 
or money, receive treatment, submit to any manner of probation or 
supervision, or forgo appeal of finding of the trial court, the Coast 
Guard regards him or her, for the purposes of 46 U.S.C. 7704, as having 
received a final conviction. The Coast Guard does not consider the 
conviction expunged without proof that the expunging is due to the 
conviction's having been in error.
    (e) No respondent may challenge the jurisdiction of a Federal or 
State court in any proceeding under 46 U.S.C. 7703 or 7704.


Sec. 20.1309  Admissibility of respondents' criminal records and 
records with the Coast Guard before entry of findings and conclusions.

    (a) The prior disciplinary record of the respondent is admissible 
when offered by him or her.
    (b) The prior disciplinary record of the respondent is admissible 
when offered by the Coast Guard representative to impeach the 
credibility of evidence offered by the respondent.
    (c) The use of a judgment of conviction is permissible on the terms 
prescribed by Sec. 20.1307.


Sec. 20.1311  Admissions by respondent.

    No person may testify regarding admissions made by the respondent 
during an investigation under 46 CFR part 4, except to impeach the 
credibility of evidence offered by the respondent.


Sec. 20.1313  Medical examination of respondents.

    In any proceeding in which the physical or mental condition of the 
respondent is relevant, the ALJ may order him or her to undergo a 
medical examination. Any examination ordered by the ALJ is conducted, 
at Federal expense, by a physician designated by the ALJ. If the 
respondent fails or refuses to undergo any such examination, the 
failure or refusal receives due weight and may be sufficient for the 
ALJ to infer that the results would have been adverse to the 
respondent.


Sec. 20.1315  Submission of prior records and evidence in aggravation 
or mitigation.

    (a) The prior disciplinary record of the respondent comprises the 
following items less than 10 years old:
    (1) Any written warning issued by the Coast Guard and not contested 
by the respondent.
    (2) Final agency action by the Coast Guard on any S&R proceeding in 
which at least one charge was proved.
    (3) Any agreement for voluntary surrender entered into by the 
respondent.
    (4) Any final judgment of conviction in Federal or State courts.
    (5) Final agency action by the Coast Guard resulting in the 
imposition against the respondent of any civil penalty or warning in a 
proceeding administered by the Coast Guard under 33 CFR subpart 1.07.
    (6) Any official commendatory information concerning the respondent 
of which the Coast Guard representative is aware. The Coast Guard 
representative may offer evidence and argument in aggravation of any 
charge proved. The respondent may offer evidence of, and argument on, 
prior maritime service, including both the record introduced by the 
Coast Guard representative and any commendatory evidence.
    (b) The respondent may offer evidence and argument in mitigation of 
any charge proved.
    (c) The Coast Guard representative may offer evidence and argument 
in rebuttal of any evidence and argument offered by the respondent in 
mitigation.

[[Page 16751]]

PART 5--MARINE INVESTIGATION REGULATIONS--PERSONNEL ACTION

    2. The authority citation for 46 CFR Part 5 continues to read as 
follows:

    Authority: 46 U.S.C. 2103, 7101, 7301, 7701; 49 CFR 1.46.


Sec. 5.1  [Removed]

    3. Remove Sec. 5.1


Sec. 5.3  [Amended]

    4. In Sec. 5.3 remove the words ``and procedures.''


Sec. 5.11  [Removed]

    5. Remove Sec. 5.11.


Sec. 5.13  [Removed]

    6. Remove Sec. 5.13.


Sec. 5.23  [Removed]

    7. Remove Sec. 5.23.


Sec. 5.25  [Removed]

    8. Remove Sec. 5.25.


Sec. 5.33  [Amended]

    9. In Sec. 5.33 remove the words ``the charge shall be violation of 
law or violation of regulation. The specification shall'', and add, in 
their place, the words ``the complaint in any case of violation of law 
or violation of regulation shall''.


Sec. 5.35  [Amended]

    10. In Sec. 5.35 remove the words ``the charge will be'' from the 
first sentence and add, in their place, the words ``the complaint will 
allege''; and in the first and second sentences remove the words 
``circumstances. The specification'' and add, in their place, the words 
``circumstances and''.


Sec. 5.53  [Removed]

    11. Remove Sec. 5.53.


Sec. 5.55  [Amended]

    12. In the section heading for Sec. 5.55 remove the words ``charges 
and specifications'' and add, in their place, the words ``a 
complaint''; and in paragraph (a) remove the words ``various charges 
and specifications'' and add, in their place, the words ``a 
complaint''.


Sec. 5.63  [Removed]

    13. Remove Sec. 5.63.


Sec. 5.65  [Removed]

    13a. Remove Sec. 5.65.


Sec. 5.105  [Amended]

    14. In Sec. 5.105(a) remove the words ``Prefer charges'', and add, 
in their place, ``Issue complaint''.
    15. Revise Sec. 5.107 to read as follows:


Sec. 5.107  Service of complaints.

    (a) When the investigating officer prefers charges, he or she shall 
prepare and serve a complaint in accordance with 33 CFR part 20.
    (b) When the investigating officer serves the complaint, he or she 
shall also advise the respondent--
    (1) Of the nature of suspension and revocation proceedings and 
their possible results;
    (2) Of the right to be represented at the hearing by another 
person, who may, but need not, be a lawyer;
    (3) Of the right to obtain witnesses, records, and other evidence 
by subpoena; and
    (4) That failure or refusal to answer the complaint or to appear at 
the time, date, and place specified for the hearing may result in a 
finding of default, which will constitute an admission of the facts 
alleged in the complaint and the waiver of his or her right to a 
hearing.
    16. Revise Sec. 5.305 to read as follows:


Sec. 5.305  Quashing a subpoena.

    Any person subpoenaed to appear to produce evidence at a hearing 
may request that the subpoena be quashed or modified using the 
procedures in 33 CFR 20.609.
    17. Revise Sec. 5.501 to read as follows:


Sec. 5.501  General.

    A hearing concerning the suspension or revocation of a merchant 
mariner's license, certificate of registry, or document is a formal 
adjudication under the Administrative Procedure Act (APA) [5 U.S.C. 
551, et seq.]. It is presided over by, and conducted under the 
exclusive control of, an Administrative Law Judge in accordance with 
applicable requirements in the APA, the rules in this part, and the 
rules of administrative practice at 33 CFR part 20. The Judge shall 
regulate and conduct the hearing so as to bring out all the relevant 
and material facts and to ensure a fair and impartial hearing.


Secs. 5.503 through 5.519  [Removed]

    18. Remove Secs. 5.503 through 5.519.


Secs. 5.523 through 5.565  [Removed]

    19. Remove Secs. 5.523 through 5.565.


Secs. 5.571 through 5.577  [Removed]

    20. Remove Secs. 5.571 through 5.577.


Secs. 5.601 through 5.607  [Removed]

    21. Remove and reserve subpart I, consisting of Secs. 5.601 through 
5.607.
    22. Revise Sec. 5.701 to read as follows:


Sec. 5.701  Appeals in general.

    A party may appeal the decision of an Administrative Law Judge 
under the procedures in subpart J of 33 CFR part 20. A party may appeal 
only the following issues:
    (a) Whether each finding of fact rests on substantial evidence.
    (b) Whether each conclusion of law accords with applicable law, 
precedent, and public policy.
    (c) Whether the Judge committed any abuses of discretion.
    (d) The Judge's denial of a motion for his or her disqualification.


Secs. 5.703 through 5.705  [Removed]

    23. Remove Secs. 5.703 through 5.705.


Sec. 5.709  [Removed]

    24. Remove Sec. 5.709.


Sec. 5.711  [Removed]

    25. Remove Sec. 5.711.

    Dated: March 29, 1998.
P.M. Blayney,
Chief Counsel.
[FR Doc. 98-8830 Filed 4-3-98; 8:45 am]
BILLING CODE 4910-14-P