argument must be included as part of the record of the proceeding.

Subpart H-Evidence

$20.801 General.

A party is entitled to present its case or defense by oral, documentary, or demonstrative evidence; to submit rebuttal evidence; and to conduct any crossexamination that may be required for a full and true disclosure of the facts.

$20.802 Admissibility of evidence.

(a) The Administrative Law Judge may admit any relevant oral, documentary, or physical evidence, unless privileged.

(b) Relevant evidence is evidence having any tendency to make the existence of any material fact more probable or less probable than it would be without the evidence.

(c) The Administrative Law Judge may exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, by confusion of the issues, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

$20.803 Hearsay evidence.

Hearsay evidence is admissible in proceedings governed by this part. The fact that evidence is hearsay may be considered by the Administrative Law Judge when determining the probative weight of the evidence.

§ 20.804 Objections and offers of proof.

(a) A party shall state briefly the grounds for objection to the admission or exclusion of evidence. Rulings on all objections must appear in the record. Only objections made before the Administrative Law Judge may be raised on appeal.

(b) Whenever evidence is excluded, the party offering such evidence may make an offer of proof, which must be included in the record.

§ 20.805 Proprietary information.

(a) Without limiting the discretion of the Administrative Law Judge to give effect to applicable privileges, the Administrative Law Judge may limit in

troduction of evidence or issue such protective or other orders that in his or her judgment may be consistent with the objective of preventing undue disclosure of proprietary matters, including, but not limited to, matters of a business nature.

(b) Where the Administrative Law Judge determines that information in documents containing proprietary matters should be made available to another party, the Administrative Law Judge may direct the party having possession of the documents to prepare a non-proprietary summary or extract of the original. The summary or extract may be admitted as evidence in the record.

(c) If the Administrative Law Judge determines that this procedure is inadequate and that proprietary matters must form part of the record in order to avoid prejudice to a party, the Administrative Law Judge may advise the parties and provide opportunity for arrangements to permit a party or representative to have access to the evidence.

[CGD 91-228, 59 FR 15022, Mar. 30, 1994; 59 FR 45757, Sept. 2, 1994]

§ 20.806 Official notice.

The Administrative Law Judge may take official notice of such matters as might be judicially noticed by the courts or of other facts within the specialized knowledge of the Coast Guard as an expert body. Where a decision or part of a decision rests on the official notice of a material fact not appearing in the evidence in the record, the fact of official notice must be stated in the decision, and any party, upon timely request, shall be afforded an opportunity to show the contrary.

§ 20.807 Exhibits and documents.

(a) All exhibits must be numbered and marked with a designation identifying the party or interested person introducing the exhibit. The original of each exhibit offered in evidence or marked for identification must be filed and retained in the record of the proceeding, unless the Administrative Law Judge permits the substitution of copies for the original document. Copies of each exhibit must be supplied by the party or interested person introducing

the exhibit to the Administrative Law Judge and to every party to the proceeding.

(b) Unless otherwise directed by the Administrative Law Judge, proposed exhibits to be offered upon direct examination should be exchanged or made available for inspection 5 days prior to the hearing. The authenticity of all exhibits submitted prior to the hearing will be deemed admitted unless written objection is filed and served on all parties, or unless good cause is shown for failure to file a written objection.

§ 20.808 Written testimony.

The Administrative Law Judge may enter into the record written statements of witnesses that are sworn or affirmed under penalties of perjury. Witnesses whose testimony is presented by written statement shall be or have been available for oral cross-examination.

$20.809 Stipulations.

The parties and interested persons may stipulate, in writing, at any stage of the proceeding or orally at the hearing, to any pertinent facts or other matters fairly susceptible of stipulation. Stipulations are binding on the parties to the stipulation.

Subpart 1-Decisions

§ 20.901 Summary decision.

(a) Any party may, after commencement of the proceeding and at least 15 days before the date fixed for the hearing, with or without supporting affidavits, move for a summary decision in the party's favor in all or any part of the proceeding on the grounds that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. Any other party may, within 10 days after service of the motion, serve opposing affidavits or countermove for summary decision. The Administrative Law Judge may set the matter for argument and call for the submission of briefs.

(b) The Administrative Law Judge may grant the motion if the filed documents, affidavits, material obtained by discovery or otherwise, or matters offi

cially noted show that there is no genuine issue as to any material fact and that a party is entitled to a summary decision as a matter of law.

(c) Affidavits must set forth such matters as would be admissible in evidence and must show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of facts contained in the opposing party's pleadings. The response to the motion, by affidavits or as otherwise provided in this section, must provide a specific basis to show that there is a genuine issue of fact for the hearing.

(d) Should it appear from the affidavits of a party opposing the motion that the opposing party cannot, for reasons stated, present by affidavit matters essential to justify the party's opposition, the Administrative Law Judge may deny the motion for summary decision, may order a continuance to permit information to be obtained, or may make such other order as is just.

(e) The denial of all or any part of a motion for summary decision shall not be subject to interlocutory appeal.

§ 20.902 Decision of the Administrative Law Judge.

(a) After the closing of the record of the proceeding, the Administrative Law Judge shall prepare a decision containing

(1) Findings on all material issues of fact and conclusions of law, and the basis for each;

(2) The disposition of the case, including the assessment of a class II civil penalty, as appropriate;

(3) The date upon which the decision will become effective;

(4) A statement of further right to appeal; and

(5) If no hearing was held, a statement of the right of any interested person to petition the Commandant to set aside the decision.

(b) The decision of the Administrative Law Judge must be based upon a consideration of the whole record of the proceedings.

$20.903 Record of proceedings.

(a) The record of testimony at the hearing, all exhibits received into evidence, any items marked as exhibits and not received into evidence, all motions, all applications, all requests, and all rulings will constitute the official record of a proceeding. Any proceedings regarding the disqualification of an Administrative Law Judge will be included in the record.

(b) Any person may examine the record of a proceeding at the Hearing Docket Office, U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001. Any person may secure a copy of part or all of the record after payment of reasonable costs for duplication in accordance with 49 CFR part 7.

[CGD 91-228, 59 FR 15022, Mar. 30, 1994; 59 FR 45757, Sept. 2, 1994]

$20.904 Reopening.

(a) To the extent permitted by law, the Administrative Law Judge, for good cause shown in accordance with paragraph (c) of this section, may reopen the record of a proceeding for the purpose of taking additional evidence.

(b) Any party may file a motion to reopen the record within 30 days of the closing of the record of a proceeding.

(1) Any motion to reopen the record must clearly set forth the facts sought to be proven and the reasons claimed to constitute grounds for reopening the record.

(2) A party who does not file a response to any motion to reopen the record will be deemed to have waived any objection to the motion.

(c) If the Administrative Law Judge has reason to believe that reopening the record of a proceeding is warranted by any changes in conditions of fact or of law or by the public interest, the record of the proceeding may be reopened by the Administrative Law Judge before the Administrative Law Judge's decision becomes an order of the Commandant assessing or denying a class II civil penalty.

(d) The filing of a motion to reopen the record does not affect the appeals periods specified in subpart J of this part, except that a motion to reopen the record tolls any time remaining in

the appeals periods from the date of îlling the motion until the Administrative Law Judge acts on the motion or the motion is withdrawn.

Subpart J-Appeals

§20.1001 General.

(a) A party may appeal the Administrative Law Judge's decision by filing a notice of appeal with the Commandant. A party shall file the notice of appeal with the Commandant (G-CJ), U.S. Coast Guard Headquarters, 2100 Second Street, SW., Washington, DC 20593-0001, Attention: Hearing Docket Clerk. A party shall file the notice of appeal not later than 30 days after issuance of the Administrative Law Judge's decision, and shall serve a copy of the notice of appeal on the other party and each interested person.

(b) A party may appeal only the following issues:

(1) Whether each finding of fact is supported by substantial evidence.

(2) Whether each conclusion of law is made in accordance with applicable law, precedent, and public policy.

(3) Whether there were any abuses of discretion by the Administrative Law Judge.

(4) The Administrative Law Judge's denial of a motion for disqualification. (c) An interested person may appeal a summary decision but only on the issue that a hearing was not held and that evidence to be presented by the interested person was not considered in the issuance of the decision by the Administrative Law Judge. The appeal shall be made in accordance with the procedural requirements of this subpart.

§ 20.1002 Record on appeal.

(a) The record of the proceeding will constitute the record for decision on appeal.

(b) If the respondent requests a copy of the transcript of the hearing in the notice of appeal and the hearing was recorded or transcribed at government expense, the transcript will be provided upon payment of the fees prescribed in 49 CFR 7.95. If the services of a government contractor were utilized, the transcript must be obtained under the provisions of 49 CFR 7.99.

§ 20.1003 Procedures for appeal.

(a) A party seeking appeal shall file an appeal brief with the Commandant and shall serve a copy of the appeal brief on each other party.

(1) The appeal brief must set forth the party's specific objections to the initial decision or rulings. The appeal brief must set forth, in detail—

(i) The basis for the appeal;

(ii) The reasons supporting the appeal; and

(iii) The relief requested in the appeal.

(2) When the party relies on material contained in the record for the appeal, the appeal brief must specifically refer to the pertinent portions of the record.

(3) The appeal brief must be submitted to the Commandant within 60 days after service of the Administrative Law Judge's decision. After this time has elapsed, additional filings will not be considered as a part of the record of the appeal, unless an extension of time has been granted in writing by the Commandant or the Commandant's designee and the extended time limit has been met.

(b) Any party may file a reply brief with the Commandant no later than 35 days after being served with the appeal brief. The party filing a reply brief will serve a copy on all parties. If the party filing a reply brief relies on evidence contained in the record for the appeal, the party shall specifically refer to the pertinent evidence contained in the transcript of the hearing in the reply brief.

(c) A party may not file more than one appeal brief or reply brief, unless the party has petitioned the Commandant in writing, and the Commandant or the Commandant's designee has granted leave to file an additional brief. The Commandant will allow a reasonable time for the party to file the additional brief.

(d) The Commandant has sole discretion to permit oral argument on the appeal. On the Commandant's own initiative or upon written petition by any part, the Commandant may find that oral argument will contribute substantially to the development of the issues on appeal and may grant the parties an opportunity for oral argument.

(e) The Commandant may allow any person to file an amicus curiae brief in an appeal of an Administrative Law Judge's decision. .

[CGD 91-228, 59 FR 15022, Mar. 30, 1994; 59 FR 45757, Sept. 2, 1994]

§ 20.1004 Civil penalty appeal decisions.

(a) The Commandant shall review the record on appeal to determine if the Administrative Law Judge committed prejudicial error in the proceedings or if the Administrative Law Judge's decision should be affirmed, modified, or reversed. The Commandant may affirm, modify, or reverse the Administrative Law Judge's decision or may remand the case for further proceedings.

(b) The Commandant shall issue a decision on an appeal in writing and shall serve a copy of the decision on each party and interested person.

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

§ 20.1101 Finality.

(a) Unless appealed pursuant to subpart J of this part, a decision by the Administrative Law Judge becomes an order assessing or denying a class II civil penalty 30 days after the date of the issuance of Administrative Law Judges's decision.

(b) If the Commandant issues a decision under subpart J of this part, the decision of the Commandant constitutes an order assessing or denying a class II civil penalty on the date issued.

(c) The order assessing or denying a class II civil penalty is the order of the Commandant.

§ 20.1102 Petitions to set aside a decision and provide a hearing.

(a) If no hearing is held on a class II civil penalty complaint, any interested person may file a petition, within 30 days after the issuance of the order, asking the Commandant to set aside an order assessing or denying a civil penalty and to provide a hearing.

(b) If the Commandant decides that evidence presented by the interested

person in support of the petition is material and was not considered in the issuance of the decision, the Commandant sets aside the decision and directs that a hearing be held in accordance with the requirements of this part.

(c) If the Commandant denies a hearing requested under this section, the Commandant provides to the interested person, and publishes in the FEDERAL REGISTER, notice of and the reasons for the denial.

§ 20.1103 Availability of decisions.

(a) Copies of decisions made in the adjudication of class II civil penalties are available for inspection and copying at

(1) The document inspection facility at any Coast Guard District office; or (2) The Coast Guard Headquarters Hearing Docket Office Public Reading Room.

(b) Requests for a copy of a decision may be made to the Hearing Docket Clerk. The person requesting a copy will be billed for the copying costs in accordance with 49 CFR 7.93.

PART 23-DISTINCTIVE MARKINGS FOR COAST GUARD VESSELS AND AIRCRAFT

Sec.

23.01 Basis and purpose.

23.05 Where and when displayed. 23.10 Coast Guard emblem.

23.12 Coast Guard identifying insignia. 23.15 Coast Guard ensign.

23.20 Coast Guard commission pennant. 23.30 Penalty.

AUTHORITY: Secs. 638, 639, 63 Stat. 546; 14 U.S.C. 638, 639, E.O. 10707, 3 CFR, 1954-1958 Comp., p. 364.

§23.01 Basis and purpose.

(a) This subpart establishes instructions for the display of distinctive markings of Coast Guard vessels and aircraft, including Coast Guard ensign and commission pennant and Coast Guard emblem.

(b) Coast Guard vessels and aircraft are distinguished from other vessels and aircraft by an ensign; a personal flag, command pennant, or commis

sioned pennant, if so authorized; or other identifying insignia or marking. [CGFR 57-35, 22 FR 6765, Aug. 22, 1957, as amended by CGFR 66-67, 31 FR 15239, Dec. 6, 1966]

§ 23.05 Where and when displayed.

(a) The Coast Guard Ensign is a mark of authority and is required to be displayed whenever a Coast Guard vessel takes active measures in connection with boarding, examining, seizing, stopping or heaving to of a vessel for the purposes of enforcing the laws of the United States. The distinctive markings of Coast Guard aircraft serve the same purpose.

(b) The Coast Guard Commission pennant indicates a Coast Guard cutter under the command of a commissioned officer or commissioned warrant officer.

(c) When applicable, these distinctive marks shall be displayed, the Coast Guard Ensign at the masthead of the foremast, and the commission pennant at the after masthead. On ships having but one mast the Coast Guard Ensign and commission pennant shall be at the masthead on the sanie halyard. In mastless ships they shall be displayed from the most conspicuous hoist. [CGFR 67-26, 32 FR 6576, Apr. 28, 1967]

§ 23.10 Coast Guard emblem.

(a) The distinctive emblem of the Coast Guard shall be as follows:

On a disc the shield of the Coat of Arms of the United States circumscribed by an annulet edged and inscribed "UNITED STATES COAST GUARD 1790" all in front of two crossed anchors.

(b) The emblem in full color is described as follows:

White anchors and white ring all outlined in medium blue (Coast Guard blue), letters and numerals medium blue (Coast Guard blue), white area within ring, shield with medium blue (Coast Guard blue) chief and 13 alternating white and red (Coast Guard red) stripes (7 white and 6 red) with narrow medium blue (Coast Guard blue) outline.

(c) The Coast Guard emblem is intended primarily for use as identification on Coast Guard ensigns, flags, pennants, vessels, aircraft, vehicles, and shore units. It may also be reproduced

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