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United States Regulations
33 CFR PART 20—RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD
Title 33: Navigation and Navigable Waters
PART 20—RULES OF PRACTICE, PROCEDURE, AND EVIDENCE FOR FORMAL ADMINISTRATIVE PROCEEDINGS OF THE COAST GUARD
Authority: 33 U.S.C. 1321; 42 U.S.C. 9609; 46 U.S.C. 7701, 7702; 49 CFR 1.46.
Source: CGD 98–3472, 64 FR 28062, May 24, 1999, unless otherwise noted.
§ 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.
§ 20.102 Definitions.
Administrative Law Judge or ALJ means any person designated by the Commandant under paragraph 556(b)(3) of the Administrative Procedure Act (APA) (5 U.S.C. 556(b)(3)) to conduct hearings arising under 33 U.S.C. 1321(b); 42 U.S.C. 9609(b); or 46 U.S.C. Chapter 77.
Chief Administrative Law Judge or Chief ALJ means the Administrative Law Judge appointed as the Chief Administrative Law Judge of the Coast Guard by the Commandant.
Class II Civil penalty proceeding means a trial-type proceeding for the assessment of a civil penalty that 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 §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.
§ 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
§ 20.201 Assignment.
An ALJ, assigned by the Chief ALJ after receipt of the complaint, shall preside over each administrative proceeding under this part.
§ 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.
§ 20.203 Unavailability.
(a) If an ALJ cannot perform the duties described in §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.
§ 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.
§ 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)).
§ 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
§ 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 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.
§ 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.
§ 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.
§ 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 §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__.
(d) This table describes how to serve filed documents.
Table 20.304(D)_How To Serve Filed Documents
Acceptable methods of
Type of filed document service
(1) Complaint............................. (i) Certified mail, return
(ii) Personal delivery.
service that has receipt
(2) Default Motion........................ (i) Certified mail, return
(ii) Personal delivery.
service that has receipt
(3) Answer................................ (i) Mail.
(ii) Personal delivery.
(4) Any other filed document.............. (i) Mail.
(ii) Personal delivery.
(v) Other electronic means
(at the discretion of the
(e)(1) Unless the ALJ orders otherwise, if a party files a document under §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
Is not represented..................... The last known address of the
residence or principal place
of business of the person to
(g) This table describes when service of a filed document is complete.
Table 20.304(g)_When Service Is Complete
Then service is complete when the
If method of service used is_ 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
(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
(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
(5) Fax or other electronic Transmitted.
(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.
[CGD 98–3472, 64 FR 28062, May 24, 1999; 64 FR 34540, June 28, 1999, as amended by USCG–2000–7223, 65 FR 40054, June 29, 2000]
§ 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.
§ 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.
(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
(2) You file your request as follows:
Table 20.306(c)(2)_Where to File an Extension Request
Then you file your request with
An ALJ has not been assigned........... Hearing Docket Clerk.
An ALJ has been assigned............... ALJ.
Your case is on appeal................. Hearing Docket Clerk.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 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.
§ 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.
§ 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.
§ 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.
§ 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 §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
§ 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.
§ 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.
§ 20.601 General.
(a) Unless the ALJ orders otherwise, each party—and each interested person who has filed written notice of intent to present evidence at any hearing in the proceeding under §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 §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.
§ 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 §20.305.
§ 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.
§ 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.
§ 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
(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.
§ 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.
§ 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.
§ 20.608 Subpoenas.
(a) Any party may request the ALJ to issue a subpoena for the attendance of a person, the giving of testimony, or the production of books, papers, documents, or any other relevant evidence 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 offact. (continued)