§1.07-45 Location of hearings and change of venue.

(a) The hearing is normally held at the office of the Hearing Officer.

(b) The Hearing Officer may transfer a case to another Hearing Officer on request or on the Hearing Officer's own motion.

(c) A request for change of location of a hearing or transfer to another Hearing Officer must be in writing and state the reasons why the requested action is necessary or desirable. Action on the request is at the discretion of the Hearing Officer.

[CGD 87-008a, 52 FR 17554, May 11, 1987]

§1.07-50 Witnesses.

A party may present the testimony of any witness either through a personal appearance or through a written statement. The party may request the assistance of the Hearing Officer in obtaining the personal appearance of a witness. The request must be in writing and state the reasons why a written statement would be inadequate, the issue or issues to which the testimony would be relevant, and the substance of the expected testimony. If the Hearing Officer determines that the personal appearance of the witness may materially aid in the decision on the case, the Hearing Officer seeks to obtain the witness' appearance. Because many statutes prescribing civil penalties do not provide subpena power, there may be

cases where a witness cannot be required to attend. In such a case, the Hearing Officer may move the hearing to the witness' location, accept a written statement, or accept a stipulation in lieu of testimony. If none of these procedures is practical, the Hearing Officer shall proceed on the basis of the evidence before him.

$1.07-55 Hearing procedures.

(a) The Hearing Officer must conduct a fair and impartial proceeding in which the party is given a full opportunity to be heard. At the outset of the hearing, the Hearing Officer insures that the party is aware of the nature of the proceeding and of the alleged violation, and of the provisions of the law or regulation allegedly violated.

(b) The material in the case file pertinent to the issues to be determined by the Hearing Officer is presented. The party has the right to examine, and to respond to or rebut, this material. The party may offer any facts, statements, explanations, documents, sworn or unsworn testimony, or other exculpatory items which bear on appropriate issues, or which may be relevant to the size of an appropriate penalty. The Hearing Officer may require the authentication of any written exhibit or statement.

(c) At the close of the party's presentation of evidence, the Hearing Officer may allow the introduction of rebuttal evidence. The Hearing Officer may allow the party to respond to any such evidence submitted.

(d) In receiving evidence, the Hearing Officer is not bound by strict rules of evidence. In evaluating the evidence presented, the Hearing Officer must give due consideration to the reliability and relevance of each item of evidence.

(e) The Hearing Officer may take notice of matters which are subject to a high degree of indisputability and are commonly known in the community or are ascertainable from readily available sources of known accuracy. Prior to taking notice of a matter, the Hearing Officer gives the party an opportunity to show why notice should not be taken. In any case in which notice is taken, the Hearing Officer places a written statement of the matters as to

which notice was taken in the record, with the basis for such notice, including a statement that the party consented to notice being taken or a summary of the party's objections.

(f) After the evidence in the case has been presented, the party may present argument on the issues in the case. The party may also request an opportunity to submit a written statement for consideration by the Hearing Officer and for further review. The Hearing Officer shall allow a reasonable time for submission of the statement and shall specify the date by which it must be received. If the statement is not received within the time prescribed, or within the limits of any extension of time granted by the Hearing Officer, the Hearing Officer renders his decision in the case.

§1.07-60 Records.

(a) A verbatim transcript will not normally be prepared. The Hearing Officer prepares notes on the material and points raised by the party, in sufficient detail to permit a full and fair review and resolution of the case, should it be appealed.

(b) A party may, at its own expense, cause a verbatim transcript to be made. If a verbatim transcript is made, the party shall submit two copies to the Hearing Officer not later than the time of filing and administrative appeal. The Hearing Officer includes them in the record.

§1.07-65 Hearing Officer's decisions.

(a) The Hearing Officer issues a written decision. Any decision to assess a penalty is based upon substantial evidence in the record. If the Hearing Officer finds that there is not substantial evidence in the record establishing the alleged violation or some other violation of which the party had full and fair notice, the Hearing Officer shall dismiss the case and remand it to the District Commander. A dismissal is without prejudice to the District Commander's right to refile the case and have it reheard if additional evidence is obtained. A dismissal following a rehearing is final and with prejudice.

(b) If the Hearing Officer assesses a penalty, the Hearing Officer's decision contains a statement advising the

party of the right to an administrative appeal. The party is advised that failure to submit an appeal within the prescribed time will bar its consideration and that failure to appeal on the basis of a particular issue will constitute a waiver of that issue in any subsequent proceeding.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 85-001A, 51 FR 19329, May 29, 1986]

§1.07-70 Right to appeal.

(a) Any appeal from the decision of the Hearing Officer must be submitted by a party within 30 days from the date of receipt of the decision. The appeal and any supporting brief must be submitted to the Hearing Officer. The only issues which will be considered on appeal are those issues specified in the appeal which were properly raised before the Hearing Officer and jurisdictional questions.

(b) The failure to file an appeal within the prescribed time limit results in the action of the Hearing Officer becoming the final agency action in the

case.

§1.07-75 Action on appeals.

(a) Upon receipt, the Hearing Officer provides a copy of the appeal and any supporting brief to the District Commander who referred the case. Any comments which the District Commander desires to submit must be received by the Hearing Officer within 30 days. The Hearing Officer includes the District Commander's comments, or not later than 30 days after receipt of the appeal if no comments are submitted by the District Commander, the Hearing Officer forwards all materials in the case to the Commandant.

(b) The Commandant issues a written decision in each case and furnishes copies to the party, the District Commander, and the Hearing Officer, The Commandant may affirm, reverse, or modify the decision, or remand the case for new or additional proceedings. In the absence of a remand, the decision of the Commandant on appeal shall be final. In addition to the actions which may be taken by the Commandant on appeal, the Commandant may also remit, mitigate or suspend the assessment in whole or in part.

Upon the taking of remission, mitigation, or suspension action, the Commandant will inform the party of the action and any conditions placed on the action.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87-008a, 52 FR 17555, May 11, 1987]

§1.07-80 Reopening of hearings.

(a) At any time prior to final agency action in a civil penalty case, a party may petition to reopen the hearing on the basis of newly discovered evidence.

(b) Petitions to reopen must be in writing describing the newly found evidence and must state why the evidence would probably produce a different result favorable to the petitioner, whether the evidence was known to the petitioner at the time of the hearing and, if not, why the newly found evidence could not have been discovered in the exercise of due diligence. The party must submit the petition to the Hearing Officer.

(c) The District Commander may file comments in opposition to the petition. If comments are filed, a copy is provided the party.

(d) A petition to reopen is considered by the Hearing Officer unless an appeal has been filed, in which case the petition is considered by the Commandant.

(e) The decision on the petition is decided on the basis of the record, the petition, and the comments in opposition, if any. The petition is granted only when newly found evidence is described which has a direct and material bearing on the issues and when a valid explanation is provided as to why the evidence was not and could not have been, in the exercise of due diligence, produced at the hearing. The decision is rendered in writing.

(f) Following a denial of a petition to reopen, the party is given 30 days to file an appeal if one has not already been filed, or to amend an appeal which has already been filed.

[CGD 78-82, 43 FR 54186, Nov. 20, 1978, as amended by CGD 87-008a, 52 FR 17555, May 11, 1987]

§1.07-85 Collection of civil penalties.

(a) Payment of a civil penalty may be made by check or postal money order payable to the U.S. Coast Guard.

(b) Within 30 days after receipt of the Commandant's decision on appeal, or the Hearing Officer's decision in a case in which no appeal has been filed, the party must submit payment of any assessed penalty to the office specified in the assessment notice. Failure to make timely payment will result in the insititution of appropriate action under the Federal Claims Collection Act and the regulations issued thereunder.

(c) When a penalty of not more than $200 has been assessed under Chapter 43 or 123 of Title 46 U.S.C., the matter may be referred for collection of the penalty directly to the Federal Magistrate of the jurisdiction wherein the person liable may be found, for the institution of collection procedures under supervision of the district court, if the court has issued an order delegating such authority under section 636(b) of Title 28, United States Code.

[CGD 87-008a, 52 FR 17555, May 11, 1987] §1.07-90 Criminal penalties.

(a) Prosecution in the Federal courts for violations of those laws or regulations enforced by the Coast Guard which provide, upon conviction, for punishment by fine or imprisonment is a matter finally determined by the Department of Justice. This final determination consists of deciding whether and under what conditions to prosecute or to abandon prosecution.

(b) Except in those cases where the approval of the Commandant is required, the District Commander is authorized to refer the case to the U.S. attorney. The Commandant's approval is required in the following cases where evidence of a criminal offense is disclosed:

(1) Marine casualties or accidents resulting in death.

(2) Marine Boards (46 CFR part 4).

(3) Violations of port security regulations (33 CFR parts 6, 121 to 126 inclusive).

(c) The District Commander will identify the laws or regulations which were violated and make specific recommendations concerning the proceedings to be instituted by the U.S. attorney in every case.

§ 1.07-95 Civil and criminal penalties. (a) If a violation of law or regulation carries both a civil and a criminal penalty, the District Commander is authorized to determine whether to institute civil penalty proceedings or to refer the case to the U.S. attorney for prosecution in accordance with §1.07

90.

(b) When the U.S. Attorney declines to institute criminal proceedings, the District Commander decides whether to initiate civil penalty proceedings or to close the case.

§1.07-100 Summons in lieu of seizure of commercial fishing industry vessels.

(a) As used in this section, the following terms have the meanings specified:

(1) Commercial fishing industry vessel means a fishing vessel, a fish processing vessel, or a fish tender vessel as defined in 46 U.S.C. 2101 (1la), (11b), or (11c), respectively.

(2) Personal use quantity means a quantity of a controlled substance as specified in 19 CFR 171.51.

(b) When a commercial fishing industry vessel is subject to seizure for a violation of 21 U.S.C. 881(a)(4), (6), or (7); of 19 U.S.C. 1595a(a); or of 49 U.S.C. App. 782 and the violation involves the possession of a personal use quantity of a controlled substance, the vessel shall be issued a summons to appear as prescribed in subpart F of 19 CFR part 171 in lieu of seizure, provided that the vessel is:

(1) Proceeding to or from a fishing area or intermediate port of call; or

(2) Actively engaged in fishing operations.

[CGD 89-003, 54 FR 37615, Sept. 11, 1989]

Subpart 1.08-Written Warnings by Coast Guard Boarding Officers

AUTHORITY: 14 U.S.C. 633; 49 CFR 1.46(b).

§ 1.08-1 Applicability.

(a) The regulations in this subpart apply to certain violations of the following statutes and regulations for which Coast Guard boarding officers are authorized to issue written warnings instead of recommending

civil or criminal penalty procedures under subpart 1.07 of this part:

(1) 46 CFR 25.05 whistles or other sound producing devices;

(2) 33 CFR part 175, subpart B and 46 CFR subpart 25.25, Personal Flotation Devices.

(3) 46 CFR 25.35 backfire flame control;

(4) 46 CFR 25.40 ventilation; (5) 33 CFR part 173 numbering; (6) 46 U.S.C. 103, documented yachts; (7) 33 CFR part 155 oil pollution prevention; and

(8) 46 CFR 25.30 fire extinguishers; (9) 33 CFR part 159 marine sanitation devices;

(10) 33 CFR part 175 subpart C, Visual Distress Signals.

(11) 33 CFR 88.05 Copy of rules.

(b) The Commandant authorizes designated boarding officers to issue warnings for certain minor violations of the statutes and regulations listed in paragraph (a) of this section. Written warnings are not authorized for all violations of these statutes and regulations.

(14 U.S.C. 633, 85 Stat. 228 (46 U.S.C. 1488); 86 Stat. 871 (33 U.S.C. 1322); 49 CFR 1.46(b), (m), and (n)(1))

[CGD 74-155, 41 FR 17894, Apr. 29, 1976, as amended by CGD 77-182, 43 FR 22657, May 25, 1978; CGD 82-040, 47 FR 21042, May 17, 1982; CGD 85-009, 50 FR 10761, Mar. 18, 1985]

§1.08-5 Procedures.

(a) A written warning may be issued where the boarding officer determines that:

(1) The observed violation is a first offense; and

(2) The operator states that the violation will be promptly corrected.

(b) A written warning may not be issued where:

(1) The operator is required to be licensed;

(2) The violation is a failure to have required safety equipment on board; or (3) The boarding officer notes three or more violations during one boarding.

(c) Each district office maintains a record of each written warning issued within that district for a period of not more than one year after date of issue except in cases involving violations of

33 CFR part 159 marine sanitation devices, records of which are maintained by each district office for not more than three years after date of issue.

(d) The district commander of the district in which the warning is issued may rescind a written warning and institute civil penalty action under §1.079 of this part if a record check discloses a prior written warning or violation issued within one year or in the case of a violation of 33 CFR part 159 a prior written warning or violation issued within three years.

(e) Within 15 days after the date of issue, any person issued a written warning by a Coast Guard boarding officer may appeal the issuance of the warning to the district commander by providing in writing or in person any information that denies, explains, or mitigates the violations noted in the warning.

(f) Each written warning shall indicate that:

(1) The warning is kept on file for a period of not more than one year after date of issue or in the case of a violation of 33 CFR part 159 a period of not more than three years for reference in determining appropriate penalty action if there is a subsequent violation;

(2) If a record check reveals a prior written warning or violation within the time period designated in §1.08–5(d) of this part, the warning may be revoked and civil penalty action instituted;

(3) If an additional violation occurs within the time period designated in §1.08-5(d) the warning may be used as a basis for the assessment of a higher penalty for the subsequent violation; and

(4) Within 15 days after the date of issue, the person who is issued the warning may appeal to the District Commander by providing in writing or in person any information or material

that denies, explains, or mitigates the violations noted in the warning.

(14 U.S.C. 633; 85 Stat. 228 (46 U.S.C. 1488); 86 Stat. 871 (33 U.S.C. 1322); 49 CFR 1.46 (b), (m), and (n)(1))

[CGD 74-155, 41 FR 17894, Apr. 29, 1976, as amended by CGD 77-182, 43 FR 22657, May 25, 1978]

Subpart 1.10-Public Availability of Information

AUTHORITY: 5 U.S.C. 552, 14 U.S.C. 633, sec. 6(b)(1), 80 Stat. 937 (49 U.S.C. 1655(b)(1)); 49 CFR 1.46(b).

SOURCE: CGD-73-54R, 38 FR 12396, May 11, 1973, unless otherwise noted.

1.10-1 Official records and documents.

Identifiable records and documents of the Coast Guard are made available to the public in accordance with the Department of Transportation regulations contained in part 7 of title 49, Code of Federal Regulations.

§1.10-5 Public availability of records and documents.

(a) Each person desiring to inspect a record or document covered by this subpart that is located in Headquarters, or to obtain a copy of such a record or document, must make a written request to the Chief, Office of Information Management, U.S. Coast Guard Headquarters, 2100 Second Street SW., Washington, DC 20593-0001.

(b) Each person desiring to inspect a record or document covered by this subpart that is located in a Coast Guard district, or to obtain a copy of such a record or document, must make a written request to the district commander in command of the district, or to the officer-in-charge of the appropriate marine inspection zone. Coast Guard districts and marine inspection zones are listed in part 3 of this chapter.