[Federal Register Volume 64, Number 99 (Monday, May 24, 1999)]
[Rules and Regulations]
[Pages 28054-28075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12750]



[[Page 28053]]

_______________________________________________________________________

Part III





Department of Transportation





_______________________________________________________________________



Coast Guard



_______________________________________________________________________



33 CFR Part 20



46 CFR Part 5



Rules of Practice, Procedure, and Evidence for Administrative 
Proceedings of the Coast Guard; Interim Final Rule

  Federal Register / Vol. 64, No. 99 / Monday, May 24, 1999 / Rules and 
Regulations  

[[Page 28054]]



DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 20

46 CFR Part 5

[USCG-1998-3472]
RIN 2115-AF59


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

AGENCY: Coast Guard, DOT.

ACTION: Interim rule and request for comments.

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

SUMMARY: The Coast Guard is revising the rules for Practice, Procedure, 
and Evidence for Administrative Proceedings. We are revising the rules 
to consolidate all Coast Guard adjudicative procedures for the 
suspension and revocation (S&R) of merchant mariners' licenses, 
certificates of registry, and documents and for class II civil 
penalties. The rule will eliminate unnecessary procedures from S&R 
proceedings and will use the Coast Guard's adjudicative resources more 
efficiently.

DATES: This interim rule is effective on June 23, 1999. Comments must 
reach the Coast Guard on or before July 23, 1999.

ADDRESSES: You may submit your comments and related material by only 
one of the following methods:
    (1) By mail to the Docket Management Facility, (USCG-1998-3472), 
U.S. Department of Transportation, room PL-401, 400 Seventh Street SW, 
Washington, DC 20590-0001.
    (2) By hand to room PL-401 on the Plaza level of the Nassif 
Building, 400 Seventh Street SW, Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    (3) By fax to the Docket Management Facility at 202-493-2251.
    (4) Electronically through the Web Site for the Docket Management 
System at http://dms.dot.gov.
    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 on the Plaza Level of the Nassif Building at the 
same address between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. You may also access this docket on the Internet at 
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For questions on this interim rule, 
call George J. Jordan, Attorney-Advisor, Office of the Chief 
Administrative Law Judge, telephone 202-267-0006. For questions on 
viewing, or submitting material to, the docket, call Dorothy Walker, 
Chief, Dockets, Department of Transportation, telephone 202-366-9329.

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-1998-3472] and the specific section of 
this document to which each comment applies, and give the reason for 
each comment. Please submit one copy of all comments and attachments in 
an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing to the DOT Docket Management Facility at 
the address under ADDRESSES. If you want acknowledgment of receipt of 
your comment, enclose a stamped, self-addressed postcard or envelope.
    The Coast Guard will consider all comments received during the 
comment period. It may change this interim 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, the Coast Guard will hold a 
public meeting at a time and place announced by a later notice in the 
Federal Register.

Regulatory History

    On April 6, 1998, we published a Notice of Proposed Rulemaking 
(NPRM) in the Federal Register (63 FR 16731), entitled ``Rules of 
Practice, Procedure, and Evidence for Administrative Proceedings of the 
Coast Guard.''
    On May 20, 1998, we published a notice, in the Federal Register (63 
FR 27700), reopening the NPRM comment period for an additional 30 days. 
The Coast Guard received seven letters commenting on the proposed 
rulemaking.
    We received one request for a public meeting. Since we received a 
total of only seven comments during both comment periods, we held no 
public meetings on this rulemaking.

Background and Purpose

    The Coast Guard derives its authority to issue this interim final 
rule in part from 46 U.S.C. 7702, amended by the Oil Pollution Act of 
1990 (Pub. L. 101-380). The Coast Guard also derives its authority to 
issue rules affecting class II proceedings from 33 U.S.C. 1321(b)(6).
    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) the 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). These rules have their basis 
in criminal procedure. 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 will consolidate both sets of rules in 33 CFR Part 
20. It will remove those procedures that impede the efficient handling 
of cases. In addition, it will revise those rules that are not 
consistent with relevant legal standards and practices.
    The Coast Guard has 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 annually in 60 cities throughout the United States and 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 
cases of class II civil penalty, of S&R, and of civil penalties and 
permit sanctions for the National Oceanographic and Atmospheric 
Administration (NOAA). This rule will assist in the processing of Coast 
Guard S&R cases at the ALJ Docketing Center. This rule will allow the 
Center to better administer the adjudication of Coast Guard actions.
    In addition, this rule will produce several other benefits. It will 
ensure that similar cases follow similar procedures. It will eliminate 
unnecessary hearings

[[Page 28055]]

and the costs associated with these hearings, such as travel and court-
reporting costs. It will employ the use of rules more familiar to 
civilian attorneys. It will also incorporate many recommendations of 
the former Administrative Conference of the United States and many 
practices prevalent in the Department of Transportation and other 
agencies. This will promote uniformity and consistency in certain 
proceedings. Finally, this rule will help to promote settlement in 
cases that are undisputed. This will further help to eliminate 
unnecessary hearings.
    This rule will promote and ensure consistent procedural guidelines 
in adjudication over mariners' certificates, documents, and licenses, 
class II civil penalties, and other proceedings before Coast Guard 
ALJs. It will also enable the Coast Guard to maintain regulations in 
keeping with modern rules of civil and criminal procedure, where 
applicable.

1. Consolidated Rules of Procedure and Rules of Evidence

    This rule will consolidate all rules of procedure and evidence for 
administrative adjudication into 33 CFR Part 20. It will--
     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 
procedural requirements for S&R, for example, regarding the opening of 
cases; and
     Move certain 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

    This rule will change the rules of procedure and evidence in 
administrative proceedings in the following ways:
     Complaints replace Notices of Hearings. Under the rule, 
the investigating officer will 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. The 
complaint will 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 20 days. 
Under the 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 will schedule hearings. Under the 
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 
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. The rule 
encourages settlement agreements. It also establishes procedures for 
settlement. Although present S&R practices encourage settlement 
agreements, there is no consistent procedure involved in achieving 
them.
     Administrative Law Judges may issue oral decisions. Under 
this rule ALJs will issue oral decisions in simple cases, when the 
rights of the parties are not impaired, 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 are established. This rule establishes 
procedure for processing cases whenever the Coast Guard temporarily 
suspends a mariner's license, certificate, or document before hearing.
    OPA 90 gave the Coast Guard temporary suspension authority. There 
are no procedures for temporary suspension in the Part 5 rules. The 
Coast Guard and the presiding ALJ established ad hoc procedures in the 
few times in which the Coast Guard ordered temporary suspensions.
    The responsive pleadings used in these rules generally are not 
appropriate in temporary suspension cases, because of the time delays 
involved. The ALJ must hold a hearing within 30 days of the temporary 
suspension. To meet this requirement, the ALJ must hold an immediate 
pre-hearing conference, receive an answer, and issue appropriate orders 
to meet the statutorily mandated deadlines.
     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 are 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 among Federal administrative 
practices. Neither the Administrative Procedure Act (APA) nor the 
statutory authority for S&R cases prohibits appeal by an agency. The 
rules in Part 20 now provide for such an appeal.

3. Changes in the Rules of Evidence

    This rule will apply the rules of evidence from the APA. In current 
practice some ALJs apply the Federal Rules of Evidence. This rule will 
have one consistent standard, the APA standard, used in S&R cases.

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

    This rule retains special rules of evidence for S&R cases. It 
places these special rules in a separate subpart. The rule adds a 
subpart that contains evidentiary rules from Part 5.
    The existing suspension and revocation rules contain special rules 
concerning the admission and use of judgments of conviction, log book 
entries, medical examinations, and admissions made by respondents. We 
are not changing these rules at this time. We moved them to a separate 
subpart (subpart M) in Part 20.

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 rule will optimize the capabilities 
of the Docketing Center and improve case-filing procedures by creating 
a central location for filing documents. This 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 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 rule changes the discovery rules in all administrative 
proceedings, in the following ways:
     Fifteen-Day Limit on Submittal of Final Exhibits and 
Witnesses. Parties must now submit final lists of witnesses and 
proposed exhibits at least 15 days before a hearing, unless otherwise 
allowed at the discretion of the ALJ. The current class II rules allow 
parties to submit final exhibits as few as 5 days

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before a hearing; they encourage the disfavored ``trial by ambush''.
     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 
with sufficient notice to the other party. Most ALJs have introduced 
requirements for discovery on their own, but these differ from judge to 
judge.

Discussion of Comments and Changes

    The Coast Guard received seven letters commenting on the notice of 
proposed rulemaking (NPRM). The following paragraphs contain a 
discussion of comments received and an explanation of changes, if any, 
to the proposed regulations. The comments discussed are in the 
following three categories--
    (A) General comments;
    (B) Comments that refer to issues discussed in the preamble, but 
not discussed in specific sections of the rule; and
    (C) Comments that concern specific sections of the rule.
(A) General Comments
    Rulemaking Process. Comment: One comment concerns the rulemaking 
process and suggests making this rule a collaborative effort among the 
Coast Guard, trade unions, mariners, and their counsel. The comment 
also suggests that workshops be held in order that the rulemaking 
receive adequate input from its audience. Finally, the comment suggests 
that we publish successive drafts of the rule.
    Response: This rule is an ongoing project. We will publish a 
Supplemental Notice of Proposed Rulemaking (SNPRM) re-writing these 
procedural rules in plain language. We request comments from the public 
on how to improve these rules. We may hold public meetings with 
industry to develop the rules in plain language. We use the process set 
out in the Administrative Procedures Act (APA), 5 U.S.C. 553. However, 
the suggestion that we publish successive drafts of proposed rules is 
not in keeping with the APA.
    We are issuing the rule as an interim rule with further opportunity 
for comment. Later, we will issue an SNPRM in a ``plain language'' 
version.
    The Docketing Center. Comment: One comment states that the 
Docketing Center should not be allowed to dictate major procedural 
changes to the rule without comment from the public.
    Response: The Docketing Center does not dictate procedural changes 
to rules. The Docketing Center is a place for the public to read and 
file documents in administrative proceedings. We will publish changes 
to these rules in accordance with the APA.
    Potential of Additional Penalties for Mariners. Comment: One 
comment expresses concern about the potential for mariners to be 
subject to both S&R proceedings and civil penalty proceedings. The 
comment states that the proposed rule does not address this concern.
    Response: An individual who holds a license, certificate, or 
document may also be subject to civil penalty proceedings. This rule 
neither increases nor decreases the possibility that this will occur. 
Our policy has generally been to bring one type of action or the other. 
Usually, the owner is subject to civil penalty proceedings, while the 
operator is subject to S&R proceedings.
    The Use of Marine Casualty Investigations as Evidence. Comment: One 
comment concerns barring use of reports of marine casualty 
investigations as evidence in S&R proceedings. In addition, the comment 
suggests that the ALJ's decision not be based solely or substantially 
on the findings of a marine casualty investigation. The comment cites 
46 U.S.C. 6308 for this opinion.
    Response: We disagree with this comment. Section 6308 specifically 
allows the use of reports of marine casualty investigations as evidence 
in administrative proceedings initiated by the United States, such as 
S&R proceedings or administrative penalty proceedings. (Admissions made 
by respondents during these investigations remain inadmissible.)
    Comment: One comment suggests that we provide more ALJs to 
adjudicate these matters. The comment also suggests that we provide 
this service by an offset of users' fees from Regional Examination 
Centers, since the S&R program is essential to ensuring competency.
    Response: Funds for more ALJs would have to come from either or 
both of two sources: appropriated funds and users' fees. Appropriated 
funds are not an offer for the foreseeable future. Users' fees under 14 
U.S.C. 664, 31 U.S.C. 9701, and 46 U.S.C. 2110 appeared available until 
late last year. Then, however, by Section 207 of the ``Coast Guard 
Authorization Act of 1998'' [Pub. L. 105-383], Congress added to 
Sec. 2110 a subsection (R) that forbids, until 1 October 2001 at the 
earliest, the collecting of any users' fees not already being 
collected. So users' fees are not an offer for the immediate future, 
either.
(B) Issues Discussed in the Preamble
    ALJ may Issue Oral Decisions. Comment: One comment states concern 
for the protection of the mariner's right to due process, when the ALJ 
issues an oral decision. The commenter suggests that we provide the 
mariner with a free transcribed copy of the opinion.
    Response: The language in Sec. 20.902(d) states that ``. . . 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.''
    Notice Requirement. Comment: One comment states concern about the 
notice requirement that will apply to mariners. It requests that we 
draft the rule to give the mariner a maximum of certainty and fairness. 
The comment states that the rule should require personal service of 
process or at least service by certified mail, with return receipt 
requested.
    Response: A number of the comments specifically mention the notice 
requirement of the rule. We address this issue fully in the sections 
regarding notice (Secs. 20.304, 20.308, and 20.310) in the section 
titled Specific Sections in 33 CFR Part 20.
    Rule Based on Inconsistent Standards. Comment: One comment suggests 
that the Commandant and the Coast Guard express inconsistent standards 
as the basis for the S&R rules. The comment cites the Coast Guard as 
stating that the rules of criminal procedure are the basis for the S&R 
proceedings. The comment cites the Commandant as stating the license 
proceedings are remedial and not punitive in nature (Commandant's 
Decision 2316 (McNAUGHTON)).
    Response: An S&R proceeding is not a criminal proceeding, it is an 
administrative proceeding (46 CFR 5.5). That is why one of our primary 
purposes in this rulemaking is to remove criminal-style or military-
justice-style processes from this remedial S&R proceeding. The present 
rules of part 5 include processes that are similar to an arraignment; 
the effect of an answer is similar to a ``not guilty'' plea requiring 
the government to prove each element of the offense. This interim rule 
replaces those with civil-style responsive pleadings, which use a 
written answer instead of a hearing and which allow a respondent to 
admit some allegations while denying others.
    General Comments--Part 5. Special Rules of Evidence. Comment: A 
comment states concern that ``special rules of evidence'' will be more 
complicated than the current rules. The writer suggests that we require 
the ALJ

[[Page 28057]]

to comply with the Federal Rules of Evidence (FRE).
    Response: The ``special rules of evidence'' proposed for subpart M 
of part 20 are not new. They have been in use for nearly 50 years, and 
we do not wish to change them at this time. We moved them from part 5 
to part 20. We will consider changes to simplify them in the later, 
plain-language version. We invite your comments on the rule. The APA's 
intent is that administrative proceedings be simpler than court 
proceedings. For this reason, we adopt the APA standard, and not the 
FRE, for our rules on evidence.
    The Right to Remain Silent. Comment: One comment states concern 
about the removal of the respondent's right to remain silent 
(Sec. 5.519). The comment states that the right should be recognized.
    Response: The right to remain silent pertains to criminal 
proceedings. Because these proceedings are civil-style hearings, the 
right no longer applies. However, the Fifth Amendment right against 
self-incrimination applies to these proceedings, and the respondent may 
assert this right. Also, admissions by the respondent made in the 
course of marine casualty investigations are inadmissible.
    The Table Printed in the NPRM. Comment: One comment states concern 
with Sec. 5.101(b). The comment states that the table printed in the 
NPRM does not address whether Sec. 5.101(b) will be deleted.
    Response: Section 5.101 remains unchanged. The table provided in 
the NPRM erroneously omitted this section.
    Concern Over Changes in Part 5. Comment: Several comments state the 
belief that we are going to remove certain sections of part 5 (e.g., 
Secs. 5.19, 5.65(a), 5.201-5.205).
    Response: We printed a table with the NPRM. The table sets out all 
changes to part 5, except that, as just noted, it omitted Sec. 5.101. 
Otherwise, if we changed or removed any section, we published it in the 
NPRM (63 FR 16735). The NPRM as printed clearly indicates where part 5 
will remain unchanged by the statement, referring to the respective 
section, ``Retained, no change.'' This interim rule contains no table. 
However, if you downloaded the NPRM as a TXT file, you may have found 
that the table was omitted.
(C) Specific Sections in 33 CFR Part 20
    Section 20.103  Construction and waiver of rules. Comment: One 
comment suggests the use of the phrase ``economical determination'' 
instead of the phrase, ``inexpensive result'' in paragraphs (a) and 
(b).
    Response: We agree that the term ``inexpensive result'' may be 
misleading. The purpose of this section is to ensure that we can 
quickly and fairly resolve administrative adjudication, without undue 
cost to participants. We replaced the term ``inexpensive result'' with 
``inexpensive determination'' similar to Rule 1 of the Federal Rules of 
Civil Procedure (FRCP).
    Section 20.301  Representation. Comment: The comment states that we 
should include in the rule a provision that will prevent parties from 
placing an undue burden on the government, where a party fails to 
obtain counsel before the hearing. The comment states that the rule 
would place an undue burden on the government and on counsel by 
allowing the respondent a continuance when he has failed to obtain 
counsel. The comment states that the rule should provide that, when a 
party cannot show good cause for the failure to obtain counsel, the 
party will automatically waive his or her right to counsel.
    Response: We have removed the requirement that an ALJ advise a 
respondent of a right to counsel at the beginning of a hearing. The 
elimination of arraignment-style proceedings should eliminate most 
instances of last-minute requests for counsel. If an ALJ believes that 
a respondent had a reasonable opportunity to obtain counsel and failed 
to do so, then the ALJ can deny the respondent's request for a 
continuance.
    Section 20.302  Filing of Documents and Other materials. Comment: 
One comment expresses concern about allowing the docket clerk to refuse 
documents. It cites subsection (f) of the FRCP, which prohibits a court 
clerk from refusing defective documents. The comment urges that this 
rule allow all documents to be filed with the clerk and not leave to 
his or her discretion which documents may be filed.
    Response: Paragraph (f) of this section gives the clerk an option 
to decline material and return it without filing it or to accept it and 
require the correction of defects. We recognize the potential impact of 
this paragraph and have amended the interim rule to state that the 
docketing staff will accept all filed documents and to permit the 
docketing clerk to notify a filer of a defective document and to 
require correction. If the defect was improper service on another 
party, it may extend response periods for those parties.
    Section 20.303  Form and Content of Filed Documents. Comment: One 
comment urges that we establish a specific typeface for the text of the 
document, without the use of bold, italic, or script typeface, to 
enhance legibility. The comment also urges that the rule specify who is 
to issue or establish forms acceptable for use in these proceedings. It 
should also indicate the process for issuing or establishing them.
    Response: We establish specific guidelines for format in the rules. 
We do not believe that we need to adopt more restrictive guidelines. We 
will issue any necessary forms under our current procedures.
    Section 20.304  Service of Documents. Comment: One comment urges 
that the rule comply with accepted State and federal practice, where a 
person serving a complaint or other document certifies, under oath or 
affirmation, how the document was served. Usually, a party to a 
proceeding may not serve another party with documents. The party's 
counsel or representative may.
    Response: We added tables to paragraphs (d), (e), (f), and (g). The 
tables indicate that we require the government to serve any complaint 
by either (1) certified mail, return receipt requested; (2) personal 
delivery; or (3) express courier service, that has return-receipt 
capability. A person of suitable age and discretion residing at the 
individual's residence must accept service.
    Comment: One comment also proposes that paragraph (h) remain as it 
is in the current rule because the re-wording is awkward. The comment 
suggests that, if the Coast Guard serves mariners by certified mail to 
the most current address listed with the Coast Guard Regional 
Examination Center, then that service should be considered proper.
    Response: The Coast Guard maintains a database containing addresses 
of mariners, in keeping with 46 U.S.C. 7319. The database is not 
necessarily current, since mariners are not bound to notify the Coast 
Guard when they move. Requiring them to do so is beyond the scope of 
this rulemaking.
    Section 20.305  Amendment or Supplementation of Filed Documents. 
Comment: One comment urges that we revise this section of the rule 
because, now, a respondent can file any amendment to an answer in order 
to trigger a continuance.
    Response: We do not agree that we should revise this section to 
deter a party from filing amendments. That would increase the 
complexity of the process. The intent of this section is to have 
parties notify each other as soon as they become aware of significant 
changes. This section and 33 CFR 20.303(c) ensure that parties may not 
wait until the last minute to do so.

[[Page 28058]]

    Comment: A comment suggests that we require each party to file 
proof of service of notice on the other, to avoid delay of the 
proceedings.
    Response: Secs. 20.304(g) and 20.306(b) state the rules on the 
proper methods of service of process. The rules establish how you are 
to serve documents on a party after you have filed the documents with 
the court. If we require return receipt or similar proof, then we will 
be establishing a more complex process. We do not want to require 
return receipt, because it would entail delays.
    Section 20.306  Computation of Time. Comment: One comment 
recommends that we eliminate Sec. 20.306(a)(2), which contains the 
procedure for computing time periods of 7 days or less. The comment 
states that this subparagraph is unnecessary because the rules do not 
mandate response in less than 7 days.
    Response: We disagree. Judges may order motions or replies in under 
7 days.
    Section 20.307  Complaints. Comment: One comment prefers the 
language in part 5 because the language clearly identifies charges and 
specifications.
    Response: Again, we believe that the terms ``charges'' and 
``specifications,'' borrowed from criminal law, are not appropriate for 
a civil adjudication. However, considering the varying jurisdictional 
requirements for S&R proceedings, we have amended this section and will 
use the terms ``type of case'' instead of ``charge'', and 
``allegation'' instead of ``specification.''
    Section 20.308  Answers. Comment: One comment states a concern that 
the respondent will need an attorney's assistance to complete an answer 
in response to a complaint, at a cost in time and money.
    Response: We do not agree that the respondent will have to use an 
attorney to respond to a complaint. Under this rule, the complaint 
describes the acts or omissions of the person that constitute the basis 
for the proceedings. We have determined that this is the information 
needed to give a respondent ``meaningful notice'' of the charges so 
that the respondent can prepare a defense.
    Responses help both parties in the hearing process. When the 
government presents specific allegations in a complaint, and when the 
respondent makes specific responses in an answer, this helps the ALJ to 
review all the pertinent information in a case. Specific responses help 
the ALJ to eliminate uncontested issues and to focus in on contested 
issues. (In 5 U.S.C. 554(b), the APA states, ``* * * agencies may by 
rule require responsive pleading.'')
    A respondent must address each numbered paragraph in the complaint. 
If a respondent disagrees with any allegations in a paragraph, he or 
she may simply deny the entire paragraph.
    Also, the respondent may answer the complaint brought against him 
by filling out a form. In many cases, the respondent can fill out the 
form by listing the number of the paragraph that he or she will deny or 
by checking a box. This does not require the assistance of an attorney. 
In general, we do not intend that the rules require the respondent's 
answer to be expressed in the same degree of detail as required for 
civil litigation, unless the type of case requires it. The respondent 
may use the form where (1) the allegations brought against him or her 
do not require a detailed reply and (2) the respondent can adequately 
reply to them by using the form.
    Section 20.310  Default by Respondent. Comment: Several comments 
also oppose the default provisions of 33 CFR 20.310, specifically the 
use of regular mail to complete service on the mariner. The comments 
state that, through irregular mail delivery, a mariner could be held in 
default because he did not receive service. This could happen because 
mariners are often away on long voyages. The comments state that the 
rule works to substantially interfere with the mariner's due process: 
the right to be notified of any charges brought against him or her 
involving suspension, revocation, or other act against his or her 
license. The comments state that current 46 CFR 5.515, requiring a 
hearing in absentia, is preferable to the new rule.
    Response: We are changing the language to clearly establish that 
any complaint must be sent to the respondent's last known address and 
that the Coast Guard must produce a receipt of service before an ALJ 
can enter a default judgement against the respondent. We are also 
revising Sec. 20.310(b) to read, ``Each motion must include a proposed 
decision and proof of service * * *''.
    Comment: Another comment states that the proposed rule--by allowing 
the ALJ to issue a decision against a licensee if a licensee fails to 
appear for the hearing, regardless of the strength of the Coast Guard's 
case--abrogates the licensee's due process. Previously the Coast Guard 
had to prove the case.
    Response: We disagree. The costs of hearings in absentia are 
significant. The APA gives a party the opportunity to be heard. If a 
party fails to use that opportunity, the agency should not have to bear 
the cost of a meaningless hearing.
    Section 20.401  Initiation of Proceedings. Comment: One comment 
prefers the current text of 46 CFR 5.53, which specifies the 
commencement of a proceeding as the time charges are served. The 
comment interprets the proposed text of 33 CFR 20.401 to mean that the 
proceeding begins when the Coast Guard files its complaint with the 
Hearing Docket Clerk and serves a copy of it on the respondent. The 
comment states that the time of service may differ from the time of the 
filing of the complaint.
    Response: We disagree. The 20-day response period does not start 
with the Docketing Center. It starts when the government serves the 
complaint on the respondent. This is a public proceeding; the filing 
with the Docketing Center opens the case and permits a docket to be 
established.
    Section 20.501  Conferences. Comment: Comments on this section 
state several concerns. One comment asks who is responsible for any 
monetary reimbursement for travel and time?
    Response: The ALJ schedules hearings and pre-hearing conferences at 
his or her discretion. Parties must pay their own expenses.
    Comment: One comment would like to know how, if at all, a party may 
appeal from an ALJ's picking a location, date, and time of a conference 
that conflicts with already scheduled agenda?
    Response: We did not establish any way for an interlocutory appeal 
in these rules. If an ALJ abuses his or her discretion so as to deny a 
party due process, he or she creates a ground for appeal under Subpart 
J.
    Comment: It is difficult to have settlement discussions with the 
ALJ present because these often divulge admissions of guilt.
    Response: The ALJ does not have to attend settlement discussions. 
Under the APA, the ALJ may request the appointment of a separate ALJ to 
conduct them, if the parties wish.
    Sections 20.502  Settlements. Comment: One writer would like to 
know whether an ALJ can reject a proposed settlement, even if agreed to 
by the parties?
    Response: Under Sec. 20.502(b) any motion for proposed settlement 
must include the reasons why the ALJ should accept it. The ALJ will 
review such a settlement for the following information:
    (1) Did the appropriate parties sign the agreement?

[[Page 28059]]

    (2) Does the complaint allege sufficient facts?
    (3) Does the government have jurisdiction over the respondent?
    (4) Does the law permit the order?

(For example, on convictions in dangerous-drug cases, the statute 
mandates revocation of mariners' licenses. The parties may not agree to 
rehabilitation in these cases.)
    (5) Is the settlement fair under the circumstances?
    (6) Is the settlement clear?
    If the ALJ rejects the proposed settlement, the ALJ must state the 
reason(s) in writing and will return the motion to the parties.
    Section 20.601  General. Comment: One comment states that the ALJ 
should not be allowed to receive written discovery.
    Response: We disagree in part. Under Sec. 20.601 the ALJ receives 
lists of witnesses and exhibits and copies of exhibits that the party 
intends to introduce. All exhibits filed under Sec. 20.601 become part 
of the administrative record, whether or not formally introduced or 
admitted. The ALJ is responsible for maintaining the administrative 
record and needs copies of all potential exhibits. The ALJ receives no 
other written discovery before the hearing.
    Section 20.604  Request for Production of Documents or Things for 
Inspection for Other Purposes. Comment: One comment states that 
``[t]his part states that any party wanting to obtain evidence has to 
do so through the ALJ. . . . Why change the process in place now, the 
IO (investigating officer) can subpoena evidence as needed; not having 
to work with the ALJ.''
    Response: Our rule does not change current practices. 46 CFR 
5.301(b) grants the investigating officer broad subpoena authority.
    Section 20.608  Subpoenas. Comment: One comment urges that ``[t]his 
section does not state whether the IO may issue a subpoena. Recommend 
amending [this section] to state that the IO can issue subpoenas, in 
[the same way] as an ALJ.''
    Response: We believe that 46 CFR Parts 4 and 5 adequately describe 
the authority of investigating officers to issue subpoenas. However, in 
the interim rule we add a paragraph (d) to Sec. 20.608 stating that 
investigating officers can also issue subpoenas in S&R cases.
    Section 20.701  Standard of Proof. Comment: Two comments state that 
the interim rule establishes ``preponderance of the evidence'' as the 
standard of proof. One comment urges that the standard of proof 
contained in 46 CFR 5.63, which is a higher standard and is preferable 
to the standard proposed, become the standard.
    Response: The interim rule does not establish a new standard of 
proof; it restates the standard for administrative proceedings. The 
Supreme Court interprets the language in 46 CFR 5.63 to mean 
preponderance of the evidence. The Court, in Steadman v. Securities and 
Exchange Commission, 450 U.S. 91, 101 S. Ct. 999, 67 L.Ed.2d 69 (1981), 
determined that in administrative hearings the burden of proof required 
for purposes of due process is ``preponderance of the evidence.'' Coast 
Guard appeal decisions have followed that Supreme Court decision for 
several years. In Commandant Decision on Appeal 2468 (LEWIN), the Coast 
Guard interpreted 46 CFR 5.63 to mean preponderance of the evidence. 
See also Appeal Decisions 2477 (TOMBARI) and 2485 (YATES). Accordingly, 
we made no changes to this section.
    Section 20.703  Presumptions. Comment: One comment states that the 
``presumption of negligence'' has presented problems in maritime law 
because of different views as to how it should operate. We should 
explain it or abolish it.
    Response: Sec. 20.703 merely restates Federal Rule of Evidence 
(FRE) 301 on presumptions. It is not a presumption ``of'' negligence or 
anything else. This interim rule does not change the administrative 
practice or judicial precedent concerning presumptions in S&R cases. 
There are many cases that establish the law in this area. They remain 
unaffected by this rulemaking.
    Section 20.706  Witnesses. Comment: One writer opposes subsection 
(b), which allows the ALJ to strike all or part of a witness's 
testimony if the witness fails or refuses to answer any question the 
ALJ thinks is proper to ask of the respondent at the hearing.
    Response: We disagree. The ALJ must control the proceedings and 
establish the administrative record. We based this section on Model 
Adjudication Rule 328. Other administrative agencies have similar 
procedural rules. See, e.g., 29 CFR 40.252(c). The rule states a well-
established principle of administrative law and evidence in general.
    Section 20.707  Telephonic Testimony. Comment: One comment suggests 
that this section state that any testimony by telephone has to be 
approved by the ALJ. He asked who is responsible for costs of travel 
and lodging of a witness if the ALJ will permit a witness to testify 
only in person. In his opinion, this section gives the ALJ authority to 
disrupt evidence.
    Response: We disagree. We have not changed the rules nor the 
policies for telephonic testimony. The ALJ determines whether the 
testimony can be given by telephone. Under 33 CFR 20.710 and 46 CFR 
5.553(f), parties must move (request) to use telephonic testimony and 
each party must pay any costs associated with having the testimony 
taken.
    Section 20.710  Proposed findings, closing arguments, and briefs 
Comment: One comment recommends amending this section to let the ALJ 
keep the hearing open for proposed findings only on motion by a party 
involved in the hearing. The comment stated that several investigating 
officers have had experiences in which an ALJ required each party to 
file findings of facts, when neither party has so moved; this is an 
administrative burden on both parties.
    Response: The APA permits parties to file proposed findings of fact 
and conclusions of law [5 U.S.C. 557(c)]. The ALJ sets a schedule for 
submission or allows the parties to waive submission. No ALJ may 
require parties to file proposed findings or conclusions, but the 
parties may file them. Section 20.710 does not permit an ALJ to require 
filing of proposed findings or conclusions. An ALJ might require 
parties to file briefs on a particular issue, but that is very rare.
    Section 20.902  Decision of the ALJ. Comment: One comment 
recommends establishing a time within which an ALJ must issue a 
decision, to ensure that the respondent gets one within a reasonable 
time.
    Response: We believe that establishing a time period within which 
an ALJ must issue a decision by regulation would serve no useful 
purpose. The guidelines for the ALJs' workflow call for issuance of a 
decision in a simple case within 30 days. Complex cases entailing 
research and the requirement to review a complex record and develop an 
administrative record often need more than 30 days.
    Section 20.904  Reopening. Comment: One comment notes that an ALJ 
already may reopen and modify an order of revocation. The comment 
recommends that this paragraph also remove the 3-year limit and 
eliminate the current procedures for administrative clemency. The 
comment further recommends adding a paragraph providing that ``a 
mariner, who has voluntarily surrendered his or her document, [rather 
than undergo] S&R proceedings, and who later wishes to reapply for that 
document, will be subject to the same administrative procedures as 
though an ALJ had issued an order of revocation in the matter.''

[[Page 28060]]

    Response: We believe that this comment has merit. We will review 
the whole program of administrative clemency and may consider its 
procedures in a future rulemaking.
    Section 20.1001  General (Appeals). Comment: Several comments 
oppose allowing the Coast Guard the right to appeal an ALJ's decision. 
One comment would like the right of appeal restricted to the respondent 
because it feels that the Coast Guard will have had a chance to prove 
its case during the hearing, at the ALJ level.
    Response: The APA recognizes the agencies' right of appeal [5 
U.S.C. 557(b)]. The Coast Guard is the only agency that does not use 
such a right. The Coast Guard does not believe that its exercise of 
this right will impair the rights of respondents.
    The ALJ is the finder of facts, and his or her findings will not be 
overturned lightly. Under existing case law, the Commandant will 
overturn such findings or determinations of credibility by ALJs only if 
they are clearly erroneous.
    If the agency seeks an appeal, then there must be grounds for 
appeal. The agency, like a respondent, may seek appeal only 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.
    If an ALJ errs in finding against the Coast Guard, there should be 
review to ensure consistency. Any detriment to a respondent is offset 
by improved consistency in the administrative process.
    We believe that the Equal Access to Justice Act is a sufficient 
deterrent to an agency's abuse of its right of appeal. Accordingly, the 
Coast Guard will retain its right in these rules.
    Section 20.1103  Availability of decisions. Comment: One comment 
recommends that the Docketing Center make all S&R Decisions and Orders, 
not just Commandant Decisions of Appeal, available for review. This 
would greatly assist in preparing for upcoming cases.
    Response: At present, ALJs' decisions are available for inspection 
and copying at Coast Guard Headquarters and at the public reading room 
in the district where they were issued (49 CFR Part 7). Under recent 
amendment to the Freedom of Information Act (FOIA), (H.R. 3802, Pub. L. 
104-231, Electronic Freedom of Information Act Amendments of 1996 
(approved October 2, 1996, 110 Stat. 3048), agencies must publish these 
decisions on-line. The Coast Guard has published precedent-setting 
Appeals Decisions on-line. We will publish ALJ decisions also. The 
Coast Guard is working on making them available on the Internet under 
FOIA. We will amend Sec. 20.1103 when they are available.
    Section 20.1309  Admissibility of respondent's criminal records 
with the Coast Guard before entry of findings and conclusions. Comment: 
The proposed section would permit the use of these records for the 
purpose of impeaching the credibility of the evidence offered by the 
respondent. Current 46 CFR 5.549(b) permits their use for ``the limited 
purpose of impeaching * * *''. One commenter prefers the language in 
current Sec. 5.549.
    Response: Sec. 20.1309 restates the current rule in 46 CFR 
5.549(b). We revised the section to remove unnecessary language. We do 
not believe that we need to make further changes at this time.
    Section 20.1313  Medical examination of respondent. Comment: One 
comment objects to the last sentence of the section, which states that, 
``[I]f 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.''
    Response: This section restates the law in S&R proceedings more 
clearly than the current language [46 CFR 5.557] states it. There is no 
substantive change to this section.
    Section 20.1315  Submission of prior records and evidence in 
aggravation or mitigation. Comment: One comment prefers the language of 
46 CFR 5.565(a), which specifically states when a prior record may be 
disclosed. The proposed section, the comment asserts, does not clearly 
state whether this requirement remains the same.
    Response: This section's predecessor (46 CFR 5.565(a)) contained a 
general prohibition of disclosure of prior records before the ALJ makes 
his findings (made on the facts of the case). We believe that we should 
not totally prohibit the disclosure of prior records. Judgments of 
convictions are now the basis for three different types of cases 
contemplated by 46 U.S.C. 7703 and 7704. Much of what constitutes prior 
record is in the public record. We made no changes to this section.
    Comment: Another comment states that we do not clearly define the 
term ``conviction.'' The writer recommends that we use the definition 
of conviction in 46 CFR Part 10.
    Response: We believe that Sec. 20.1307 establishes a definition of 
the term ``conviction'' that both is adequate and is consistent with 
the definition in 46 CFR 10.103.

Regulatory Evaluation

    This interim rule 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. This rule is not significant under the 
regulatory policies and procedures of the Department of Transportation 
(DOT) [44 FR 11040 (February 26, l979)]. 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 indexes and to improve case management. A part of that 
effort would be to rewrite 33 CFR Part 20 in plain English.
    Executive Order 12988 [61 FR 4728 (February 5, 1996)], on Civil 
Justice Reform, 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 
adjudicative 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

[[Page 28061]]

ALJs 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 would 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 reassign the unused or vacated 
hearing date for such a 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 applies 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 on the case; but the LA must still prepare the 
record for transfer to another ALJ and file it.) This costs respondents 
time as it does the Coast Guard. The procedures of this interim rule 
would drastically reduce the demands of the time required of all 
parties concerned.
    The Coast Guard estimates that the annual costs attributable to the 
interim rule will total $36,000. This figure includes costs associated 
with preparing witness and exhibit lists for contested cases, as well 
as costs associated with cases appealed by the Coast Guard.
    The 10-year present value of the costs, discounted at 7 percent and 
expressed in 1998 dollars, will total $252,849.
    This interim rule will benefit the regulated public as well as the 
taxpaying public. Both publics will benefit from the uniform 
application of procedural rules to the administrative proceedings. 
Rather than operating under a judge-specific collection of procedural 
rules, the adjudicative actions of the Coast Guard will come into line 
with the APA.
    The monetary benefits of this rule are the cost savings which will 
total $279,000 annually. The 10-year present value of the cost savings, 
discounted at 7 percent and expressed in 1998 dollars, will total 
$1,959,579.
    New costs attributable to the rule should reach a discounted total 
of $252,849 for the 10-year period. Therefore, the 10-year benefit-cost 
ratio is 7.7 to 1.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard must consider whether this interim rule will 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 rule will 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; it adds 
only the requirement to reply by written answer, in most cases, rather 
than by oral response at hearing, and this may prove less, not more, 
onerous.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this rule will 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 will 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 will 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 interim rule so 
that they can better evaluate its effects on them and participate in 
the rulemaking. If this rule will affect your small business or 
organization, and if you have questions concerning its provisions or 
options for compliance, please call Mr. George J. Jordan, Attorney 
Advisor, Office of the Chief Administrative Law Judge (G-CJ), Room 
6302, 202-267-0006.
    The Small Business and Agriculture Regulatory Enforcement Ombudsman 
and 10 Regional Fairness Boards were established to receive comments 
from small businesses about enforcement by Federal agencies. The 
Ombudsman will annually evaluate the enforcement activities and rate 
each agency's responsiveness to small businesses. If you wish to 
comment on the enforcement by the Coast Guard, call 1-888-REG-FAIR (1-
888-734-3247).

Collection of Information

    This interim 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 will reduce the burden of paperwork on 
the public and private sectors in large and about equal measure.

Unfunded Mandates

    Under the Unfunded Mandates Reform Act (Pub. L. 104-4), the Coast 
Guard must consider whether this interim 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, most cost-
effective, or least burdensome alternative that achieves the objective 
of the rule.
    No State, local, or tribal governments will be affected by this 
rule. Therefore, this rule will 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 analyzed this interim rule under the principles and 
criteria contained in Executive Order 12612 and 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 interim 
rule and concluded that, under figure 2-1, paragraphs (34)(b) and (c) 
of COMDTINST M16475.1C, this rule is categorically excluded from 
further environmental documentation. A ``Categorical Exclusion 
Determination''

[[Page 28062]]

is available in the docket for inspection or copying where indicated 
under ADDRESSES.

Other Executive Orders on the Regulatory Process

    In addition to the statutes and Executive Orders already addressed 
in this preamble, the Coast Guard considered the following executive 
orders in developing this rule and reached the following conclusions:
    E.O. 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights. This rule will not effect a 
taking of private property or otherwise have taking implications under 
this Order.
    E.O. 12875, Enhancing the Intergovernmental Partnership. This rule 
will not impose, on any State, local, or tribal government, a mandate 
that is not required by statute and that is not funded by the Federal 
government.
    E.O. 12988, Civil Justice Reform. This rule meets applicable 
standards in sections 3(a) and 3(b)(2) of this Order to minimize 
litigation, eliminate ambiguity, and reduce burden.
    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks. This rule is not an economically significant rule and 
does not concern an environmental risk to safety disproportionately 
affecting children.

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, Drug 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 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 subsection 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)

[[Page 28063]]

of the Administrative Procedure Act (APA) (5 U.S.C. 556(b)(3)) to 
conduct hearings arising under 33 U.S.C. 1321(b); 42 U.S.C. 9609(b); or 
46 U.S.C. Chapter 77.
    Chief Administrative Law Judge or Chief ALJ means the 
Administrative Law Judge appointed as the Chief Administrative Law 
Judge of the Coast Guard by the Commandant.
    Class II Civil penalty proceeding means a trial-type proceeding for 
the assessment of a civil penalty that affords 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 determination.
    (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 
determination.
    (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 for 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 any other duly authorized representative, 
shall file a

[[Page 28064]]

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.
    (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 the ALJ orders 
more evidence.
    (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 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 will accept it, and may advise the person offering 
it of the defect, and require that person to correct the defect. If the 
defect is failure to serve copies on other parties, the parties' 
response period begins when properly served.


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 verified or accompanied by an affidavit, no filed document need be. 
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 filing 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) This table describes how to serve filed documents.

                                 Table 20.304(d).--How To Serve Filed Documents
----------------------------------------------------------------------------------------------------------------
    Type of filed document                               Acceptable methods of service
----------------------------------------------------------------------------------------------------------------
(1) Complaint................  certified mail, return receipt requested.
(2) Default Motion...........  (i) Personal delivery.
                               (ii) Express-courier service that has receipt capability.
(3) Answer...................  (i) Mail.
                               (ii) Personal delivery.
                               (iii) Express-courier service.
                               (iv) Fax.

[[Page 28065]]

 
(4) Any other filed document.  (i) Mail.
                               (ii) Personal delivery.
                               (iii) Express-courier service.
                               (iv) Fax.
                               (v) Other electronic means(at the discretion of the ALJ).
----------------------------------------------------------------------------------------------------------------

    (e)(i) Unless the ALJ orders otherwise, if a party files a document 
under Sec. 20.302, the party must serve a copy to the person indicated 
in this table.

                            Table 20.304(e).--Who Receives Copies of Filed Documents
----------------------------------------------------------------------------------------------------------------
                If a party--                                 Then the serving party must serve--
----------------------------------------------------------------------------------------------------------------
Is represented.............................  The counsel or other representative.
Is not represented.........................  The party.
----------------------------------------------------------------------------------------------------------------

    (2) Service upon counsel or representative constitutes service upon 
the person to be served.
    (f) The serving party must send service copies to the address 
indicated in this table.

             Table 20.304(f).--Where To Send Service Copies
------------------------------------------------------------------------
                                           Then the serving party must
             If the party--                    send the copies to--
------------------------------------------------------------------------
Is represented.........................  The address of the counsel or
                                          representative.
Is not represented.....................  The last known address of the
                                          residence or principal place
                                          of business of the person to
                                          be served.
------------------------------------------------------------------------

    (g) This table describes when service of a filed document is 
complete.

               Table 20.304(g).--When Service Is Complete
------------------------------------------------------------------------
If method of service used is--     Then service is complete when the
                                             document is--
------------------------------------------------------------------------
(1) Personal delivery          (i) Handed to the person to be served.
 (Complaint or Default         (ii) Delivered to the person's office
 Motion).                       during business hours.
                               (iii) Delivered to the person's residence
                                and service made to a person of suitable
                                age and discretion residing at the
                                individual's residence.
(2) Personal delivery (all     (i) Handed to the person to be served.
 other filed documents).       (ii) Delivered to the person's office
                                during business hours.
                               (iii) Delivered to the person's residence
                                and deposited in a conspicuous place.
(3) Certified Mail or express- (i) Delivered to the person's residence
 courier (Complaint or          and signed for by a person of suitable
 Default Motion).               age and discretion residing at the
                                individual's residence.
                               (ii) Delivered to the person's office
                                during business hours and signed for by
                                a person of suitable age and discretion.
(4) Mail or express-courier    (i) Mailed (postmarked).
 service (all other filed      (ii) Deposited with express-courier
 documents).                    service.
(5) Fax or other electronic    Transmitted.
 means.
------------------------------------------------------------------------

    (h) If a person refuses to accept delivery of any document or fails 
to claim a properly addressed document other than a complaint sent 
under this subpart, the Coast Guard considers the document served 
anyway. Service is valid at the date and the time of mailing, of 
deposit with a contract service or express-courier service, or of 
refusal to accept delivery.


Sec. 20.305  Amendment or supplementation of filed documents.

    (a) Each party or interested person shall amend or supplement a 
previously filed pleading or other document if she or he learns of a 
material change that may affect the outcome of the administrative 
proceeding. However, no amendment or supplement may broaden the issues 
without an opportunity for any other party or interested person both to 
reply to it and to prepare for the broadened issues.
    (b) The ALJ may allow other amendments or supplements to previously 
filed pleadings or other documents.
    (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) We compute time periods as follows:
    (1) We do not include the first day of the period.
    (2) If the last day of the period is a Saturday, Sunday, or Federal 
holiday, we extend the period to the next business day.
    (3) If the period is 7 days or less, we do not include Saturdays, 
Sundays, or Federal holidays.
    (b) If you were served a document (by domestic mail) that requires 
or permits a response, you may add 3 days to any period for response.

[[Page 28066]]

    (c) If you need additional time to file a response, follow the 
rules in these tables.
    (1) You may request an extension--

            Table 20.306(c)(1).--How to Request an Extension
------------------------------------------------------------------------
        If the response period--                       By--
------------------------------------------------------------------------
Has not expired........................  Telephone, letter, or motion.
Has expired............................  Only by motion describing why
                                          the failure to file was
                                          excusable.
------------------------------------------------------------------------

    (2) You file your request as follows:

         Table 20.306(c)(2).--Where to File an Extension Request
------------------------------------------------------------------------
                                         Then you file your request with
                  If--                                the--
------------------------------------------------------------------------
An ALJ has not been assigned...........  Hearing Docket Clerk.
An ALJ has been assigned...............  ALJ.
Your case is on appeal.................  Hearing Docket Clerk.
------------------------------------------------------------------------

Sec. 20.307  Complaints.

    (a) The complaint must set forth--
    (1) The type of case;
    (2) The statute or rule allegedly violated;
    (3) The pertinent facts alleged; and
    (4)(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. 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 numbered 
paragraph, it denies that paragraph. If it does not specifically deny a 
particular numbered paragraph, it admits that paragraph.
    (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) Any statutory or regulatory authority; and
    (3) The facts constituting the grounds for the relief sought.
    (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. Each motion must include a 
proposed decision and proof of service under section 20.304(d). 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 Liability 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 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

[[Page 28067]]

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 respondent may move to dismiss a complaint, the government 
may move to dismiss a petition, or any party may lodge a request for 
relief, for failure of another party to--
    (1) Comply with the requirements of this part or with any order of 
the ALJ;
    (2) Show a right to relief based upon the facts or law; or
    (3) Prosecute the proceeding.
    (e) A dismissal resides within the discretion of the ALJ.

Subpart D--Proceedings


Sec. 20.401  Initiation of administrative proceedings.

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


Sec. 20.402  Public notice.

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


Sec. 20.403  Consolidation and severance.

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

[[Page 28068]]

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 the 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.
    (1) The schedule may include dates by which the parties shall both 
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) Any party or interested person shall amend or supplement 
information previously provided upon learning that the information--
    (1) Was incorrect or incomplete when provided; or,
    (2) Though correct or complete when provided, no longer is.
    (b) The party or interested person shall amend or supplement that 
information by following the procedures in Sec. 20.305.


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) The party requesting interrogatories 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 party named shall state the reasons for the objection instead 
of a response. This 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 sufficient when--
    (1) The responder lists the records from which such answers may be 
derived or ascertained; and
    (2) The burden of ascertaining the information in a response to an 
interrogatory is substantially the same for all parties involved in the 
action; and
    (3) The information may be obtained from an examination, audit, or 
inspection of records, or from a compilation, abstract, or summary 
based on such records.
    (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 sought.
    (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 reason 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 presentation 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

[[Page 28069]]

    (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 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 that were 
noted at the taking of the deposition and that would have been 
sustained if the witness had been personally present and testifying at 
a hearing, 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) Direct 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) The ALJ will give any party an adequate opportunity to prepare 
for cross-examination or other presentation concerning witnesses and 
statement subject to protective orders.


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--the 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) Any party may request the ALJ to issue a subpoena for the 
attendance of

[[Page 28070]]

a person, the giving of testimony, or the production of books, papers, 
documents, or any other relevant evidence during discovery or for any 
hearing. Any party seeking a subpoena from the ALJ 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 affirm the 
statement, attach it to a copy of the subpoena, and return it to the 
ALJ who issued the subpoena.
    (d) Coast Guard investigating officers have separate subpoena power 
in S&R proceedings under 46 CFR 5.301.


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 burden of going 
forward with evidence to rebut or meet the presumption; but
    (b) Does not shift the burden of proof in the sense of the risk of 
non-persuasion.


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 will 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.
    (b) 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. Any party may waive this right. If all 
parties waive it, then the ALJ may issue an oral order at the close of 
the hearing.
    (c) 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.

[[Page 28071]]

    (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 to the admission 
or exclusion of evidence on appeal unless he or she raised it before 
the ALJ.
    (b) Whenever evidence is objected to, the party offering it may 
make an offer of proof, which must appear in the record.


Sec. 20.805  Proprietary information.

    (a) The ALJ may limit introduction of evidence or issue such 
protective or other orders as in his or her judgment are consistent 
with the object of preventing undue disclosure of proprietary matters, 
including, among others, ones of a commercial nature.
    (b) When the ALJ determines that information in a document 
containing proprietary matters should be made available to another 
party, the ALJ may direct the party possessing the document to prepare 
a non-proprietary summary or extract of it. The summary or extract may 
be admitted as evidence in the record.
    (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 a 
copy of 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 a copy of 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 may 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. The party must file the motion no later than 15 days before the 
date fixed for the hearing and may include supporting affidavits with 
the motion. Any other party, 10 days or less after service of a motion 
for summary decision, may 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, the filed 
documents, the 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 any appropriate order;
    (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.

[[Page 28072]]

    (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 date of the oral rendering of the decision by the ALJ.


Sec. 20.903  Records of proceedings.

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


Sec. 20.904  Reopening.

    (a) To the extent permitted by law, the ALJ may, for good cause 
shown in accordance with paragraph (c) of this section, reopen the 
record of a proceeding to take added evidence.
    (b) Any party may move to reopen the record of a proceeding 30 days 
or less after the closing of the record.
    (1) Each motion to reopen the record must clearly set forth the 
facts that the movant would try to prove and the grounds for reopening 
the record.
    (2) Any party who does not respond to any motion to reopen the 
record waives any objection to the motion.
    (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 any period for appeals specified in subpart J of this 
part, except that the filing of such a motion tolls the running of 
whatever time remains in the period for appeals until either the ALJ 
acts on the motion or the party filing it withdraws it.
    (e)(1) At any time, a party may file a petition to reopen with the 
Docketing Center for the ALJ to 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 
file a motion for reopening of the proceeding to modify the order of 
revocation with 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 petition to reopen the 
record waives any objection to the motion.

Subpart J--Appeals


Sec. 20.1001  General.

    (a) 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 
7.45; but,
    (2) If the hearing was recorded by a Federal contractor, the 
contractor will provide the transcript on the terms prescribed in 49 
CFR 7.45.


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: U.S. 
Coast Guard Administrative Law Judge Docketing Center; Attention: 
Hearing Docket Clerk; Room 412; 40 S. Gay Street; Baltimore, MD 21201-
4022, 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, 
the appellate brief must specifically refer to the pertinent parts of 
the record.
    (3) The appellate brief must reach the Docketing Center 60 days or 
less after service of the ALJ's decision. Unless filed within this 
time, or within another time period authorized in writing by the 
Docketing Center, the brief will be untimely.
    (b) Any party may file a reply brief with the Docketing Center 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, in 
which event the Commandant will allow a reasonable time for the party 
to file that 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

[[Page 28073]]

the ALJ committed 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.
    (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 proceedings.
    (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 issuance of the 
Commandant's decisions.
    (b) S&R Proceedings. (1) Unless appealed pursuant to subpart J of 
this part, an ALJ's decision becomes final action of the Coast Guard 30 
days after the date of its issuance.
    (2) If the Commandant issues a decision under Subpart J of this 
part, the 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 indexes 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 7.43.

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 expedited hearing, 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 expedited hearing, the 
respondent may move that the 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. (1) At the pre-hearing conference, the parties shall:
    (i) Identify and simplify the issues in dispute and prepare an 
agreed statement of issues, facts, and defenses.
    (ii) Establish a simplified procedure appropriate to the matter.
    (iii) Fix a time and place for the hearing 30 days or less after 
the temporary suspension.
    (iv) Discuss witnesses and exhibits.

[[Page 28074]]

    (2) 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.
    (b) Oral and written argument. (1) Each party may present oral 
argument at the close of the hearing or present--
    (i) Proposed findings of fact and conclusions of law; and
    (ii) Post-hearing briefs, under Sec. 20.710.
    (2) 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.
    (c) ALJ's decision. The ALJ may issue his or her decision as an 
oral decision from the bench. Alternatively, he or she may issue a 
written decision. He or she shall 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--Supplementary 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) 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 act or offense 
described in 46 U.S.C. 7703 or 7704 when the act or offense is the same 
as in the Federal conviction.
    (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 act or offense described in 
46 U.S.C. 7703 or 7704, even when an act or offense forming the basis 
of the charge in the proceeding is the same as in the State conviction. 
But the judgment is admissible in evidence and constitutes substantial 
evidence adverse to the respondent.
    (c) A judgment of conviction by a Federal or State court for a 
violation is conclusive in the proceeding if an S&R proceeding alleges 
conviction for--
    (1) A violation of a dangerous-drug law;
    (2) An offense that would prevent the issuance or renewal of a 
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.S. 401, note).
    (d) If the respondent participates in the scheme of a State for the 
expungement 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 the finding of the trial 
court, the Coast Guard regards him or her, for the purposes of 46 
U.S.C. 7703 or 7704, as having received a conviction. The Coast Guard 
does not consider the conviction expunged without proof that the 
expungement 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 a sanction or consent order was entered.
    (3) Any agreement for voluntary surrender entered into by the 
respondent.

[[Page 28075]]

    (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 this title.
    (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.

46 CFR PART 5--MARINE INVESTIGATION REGULATIONS--PERSONNEL ACTION

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

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

Subpart A--Purpose--[Amended]

    3. Revise subpart A heading to read as set forth above.


Sec. 5.1  [Removed]

    4. Remove Sec. 5.1.


Sec. 5.3  [Amended]

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


Sec. 5.11  [Removed]

    6. Remove Sec. 5.11.


Sec. 5.13  [Removed]

    7. Remove Sec. 5.13.


Sec. 5.23  [Removed]

    8. Remove Sec. 5.23.


Sec. 5.25  [Removed]

    9. Remove Sec. 5.25.


Sec. 5.33  [Amended]

    10. 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 must''.


Sec. 5.35  [Amended]

    11. 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]

    12. Remove Sec. 5.53.


Sec. 5.55  [Amended]

    13. 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]

    14. Remove Sec. 5.63.


Sec. 5.105  [Amended]

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


Sec. 5.107  Service of complaints.

    (a) When the investigating officer determines that an S&R 
proceeding is appropriate, 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 S&R 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.
    17. 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.
    18. 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 ALJ 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 ALJ 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]

    19. Remove Secs. 5.503 through 5.519.


Secs. 5.523 through 5.565  [Removed]

    20. Remove Secs. 5.523 through 5.565.
    21. Revise Sec. 5.567(a) to read as follows:


Sec. 5.567  Order.

    (a) The Administrative Law Judge enters an order which recites the 
disposition of the case. When the finding is not proved, the 
Administrative Law Judge issues an order dismissing the proceeding with 
or without prejudice to refile. When the finding is proved, the 
Administrative Law Judge may order an admonition, suspension with or 
without probation, or revocation.
* * * * *


Secs. 5.571 through 5.577  [Removed]

    22. Remove Secs. 5.571 through 5.577.


Secs. 5.601 through 5.607  [Removed]

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


Sec. 5.701  Appeals in general.

    A party may appeal the decision of an ALJ 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 ALJ committed any abuses of discretion.
    (d) The ALJ's denial of a motion for his or her disqualification.


Secs. 5.703 through 5.705  [Removed]

    25. Remove Secs. 5.703 through 5.705.


Sec. 5.709  [Removed]

    26. Remove Sec. 5.709.


Sec. 5.711  [Removed]

    27. Remove Sec. 5.711.

    Dated: May 17, 1999.
J.E. Shkor,
Chief Counsel.
[FR Doc. 99-12750 Filed 5-19-99; 1:17 pm]
BILLING CODE 4910-15-P