FEDERAL REGISTER ON February 26, 1979 (44 FR 11034);

(2) Have been shown to raise substantial issues concerning the reasonable needs of navigation; or

(3) Have been shown to generate controversy on an issue of importance to a particular locality.

(5 U.S.C. 553; 14 U.S.C. 632; Pub. L. 92-63, 85 Stat. 165, (33 U.S.C. 1201-8); 33 U.S.C. 471, 180, 258, 322, and 499; 46 U.S.C. 1488; 49 U.S.C. 1655, 1657; 49 CFR 1.4(a), (g), 1.45(b), and 1.46)

[CGFR 69-115, 35 FR 8279, May 27, 1970]

NOTE: For amendments to § 1.05-1, see the List of CFR Sections Affected in the Finding Aids section in the back of this volume.

§ 1.05-3 Advance notice of proposed rulemaking.

An advance notice of proposed rulemaking may be issued under the Coast Guard policy for the early institution of public rulemaking proceedings. An advance notice is issued if the resources of the Coast Guard and a reasonable inquiry outside the Coast Guard do not yield a sufficient basis for identifying and selecting tentative or alternate courses of action upon which a rulemaking proceeding might be undertaken. An advance notice is also issued if it is helpful to invite early public participation in the identification and selection of tentative or alternate courses of action upon which a rulemaking proceeding might be undertaken.

[CGD 75-193, 41 FR 7506, Feb. 19, 1976]

§ 1.05-5 Notices of proposed rulemaking. (a) Whenever proposed changes in or additions to regulations relating to Coast Guard activities come within the scope of section 4 of the Administrative Procedure Act or are required by the provisions of a particular statute under which the authority to promulgate such regulations is given, notice of intention to consider enacting or amending rules and regulations or granting or withdrawing approvals of equipment for use on vessels will be published in the FEDERAL REGISTER, and will be distributed to interested parties for review and comment, upon request. Publication of the notice will be made approximately 30 days, or more if possible, before either the

hearing or the final date for submission of comments, except that in certain cases circumstances may make it necessary to give less than 30 days' notice.

(b) Copies of the notice of proposed rulemaking or the full text of proposed regulations or type approvals of equipment will be distributed to interested parties for review and comment, so long as such copies are available. The notice will state where copies are available for inspection purposes only.

§ 1.05-10 Hearings.

(a) When required by the provisions of the particular statute under which the proposed regulations are to be promulgated, a public hearing shall be held in accordance with the notice of proposed rulemaking unless an emergency exists or it is contrary to the public interest to hold such a hearing.

(b) When the proposed regulations regarding activities under the cognizance of the United States Coast Guard may be of such scope and future effect that it would be in the public interest and would tend to promote safety of life and property at sea, a public hearing may also be held to allow for the orderly presentation of comments, suggestions, and recommendations.

(R.S. 4233A, as amended, 4417a, as amended, 4472, as amended, sec. 1, 30 Stat. 96, as amended; 33 U.S.C. 353, 46 U.S.C. 391a, 170, 33 U.S.C. 157)

[CGFR 48-72, 13 FR 9330, Dec. 31, 1948, as amended by CGFR 61-55, 26 FR 12570, Dec. 28, 1961]

§ 1.05-15 Hearing officer or panel of offi

cers.

(a) Except as provided under § 1.0525, each hearing under § 1.05-10 is conducted by a Hearing Officer or a panel of officers appointed by the Marine Safety Council.

(b) Each Hearing Officer or panel of officers described in paragraph (a) hears the comments on proposed rules and regulations that are presented at each hearing.

[CGD 75-193, 41 FR 7506, Feb. 19, 1976]

§ 1.05-25 Hearings on regulations having only local applicability.

When proposed regulations have only local local applicability, hearings, whenever practicable, will be held in the locality to which such regulations apply by an officer designated by the Commandant, U.S. Coast Guard. [CGFR 48-72, 13 FR 9330, Dec. 31, 1948]

§ 1.05-30 Final action.

(a) After the hearing or after the final date when comments may be subImitted in accordance with the notice of proposed rulemaking, the Merchant Safety Council or the official designated in the notice shall consider all the data, views or arguments submitted and shall forward to the appropriate officer recommendations regarding the proposed regulations.

(b) Final action on the proposed regulation will be determined and the regulation issued by the Commandant or any other person delegated or otherwise authorized to issue rules.

(c) Amendments to the regulations or new regulations will be published in the FEDERAL REGISTER. The effective date will be not less than 30 days after the date of publication except when otherwise provided by the Administrative Procedure Act.

(5 U.S.C. 553; 49 U.S.C. 1655, 1657; 49 CFR 1.4(a) and (g), 1.46(b))

[CGFR 69-115, 35 FR 8279, May 27, 1970, as amended by CGD 72-105R, 37 FR 16546, Aug. 16, 1972; CGD 75-193, 41 FR 7506, Feb. 19, 1976]

Subpart 1.07-Enforcement; Civil and

Criminal Penalty Proceedings

AUTHORITY: Sec. 3, 60 Stat. 238, and sec. 633, 63 Stat. 545, sec. 2, 63 Stat 496, as amended; 5 U.S.C. 552, 14 U.S.C. 2, 633.

SOURCE: CGD 78-82, 43 FR 54186, Nov. 20, 1978, unless otherwise noted.

§ 1.07-1 Purpose.

This part describes procedures for enforcement and administration of all statutory penalty provisions that the Coast Guard is authorized to enforce.

(a) The term "District Commander," when used in this subpart, means the District Commander or a member of his staff.

(b) The term "Hearing Officer" means a Coast Guard officer or employee who has been delegated the authority to assess civil penalties.

(c) The term "party" means the person alleged to have violated a statute or regulation to which a civil penalty applies and includes an individual or public or private corporation, partnership or other association, or a governmental entity.

§ 1.07-10 Reporting and investigation.

(a) Any person may report an apparent violation of any law, regulation, or order that is enforced by the Coast Guard to any Coast Guard facility. When a report of an apparent violation has been received, or when an apparent violation has been detected by any Coast Guard personnel, the matter is investigated or evaluated by Coast Guard personnel.

(b) Reports of any investigation conducted by the Coast Guard or received from any other agency which indicate that a violation may have occurred are forwarded to the District Commander of the District in which the violation is believed to have occurred. The District Commander reviews the reports to determine if there is sufficient evidence to establish a prima facie case. If there is insufficient evidence, the case is either returned for further investigation or closed if further action is unwarranted. The case is closed in situations in which the investigation has established that a violation did not occur, the violator is unknown, or there is little likelihood of discovering additional relevant facts. If it is determined that a prima facie case does exist, a case file is prepared and forwarded to the Hearing Officer, with a recommended action. A record of any prior violations by the same person or entity, is forwarded with the case file. § 1.07-15 Hearing officer.

(a) Each District Commander delegates to one or more Coast Guard officers or employees on his staff the au

thority to act as Hearing Officer. The Hearing Officer has no other responsibility, direct or supervisory, for the investigation of cases referred to him for the assessment of civil penalties.

(b) The Hearing Officer decides each case on the basis of the evidence before him, and must have no prior connection with the case. The Hearing Officer is solely responsible for the decision in each case referred to him.

(c) The Hearing Officer is authorized to administer oaths and issue subpenas necessary to the conduct of a hearing, to the extent provided by law.

§ 1.07-20 Initiation of action.

(a) When a case is received for action, the Hearing Officer makes a preliminary examination of the material submitted. If, on the basis of the preliminary examination, the Hearing Officer determines that there is insufficient evidence to proceed, or that there is any other reason which would make penalty action inappropriate, the Hearing Officer returns the case to the District Commander with a written statement of the reason. The District Commander may close the case or cause a further investigation of the alleged violation to be made with a view toward resubmittal of the case to the Hearing Officer.

(b) If on the basis of the preliminary examination of the case file, the Hearing Officer determines that a violation appears to have been committed, the Hearing Officer notifies the party in writing of:

(1) The alleged violation and the applicable law or regulations;

(2) The amount of the maximum penalty that may be assessed for each violation;

(3) The general nature of the procedure for assessing and collecting the penalty;

(4) The amount of penalty that appears to be appropriate, based on the material then available to the Hearing Officer;

(5) The right to examine all materials in the case file and have a copy of all written documents provided upon request; and,

(6) The fact that the party may demand a hearing prior to any actual assessment of a penalty.

(c) If at any time it appears that the addition of another party to the proceedings is necessary or desirable, the Hearing Officer provides the additional party with notice as described above.

§ 1.07-25 Preliminary matters.

(a) Within 30 days after receipt of notice of the initiation of the action, as described above, the party, or counsel for the party, may request a hearing, provide any written evidence and arguments in lieu of a hearing, or pay the amount specified in the notice as being appropriate. A hearing must be requested in writing; the request must specify the issues which are in dispute. Failure to specify a nonjurisdictional issue will preclude its consideration.

(b) The right to a hearing is waived if the party does not submit the request to the Hearing Officer within 30 days after receiving notice of the alleged violation. At the discretion of the Hearing Officer, a hearing may be granted if the party submits a late request.

(c) The Hearing Officer must promptly schedule all hearings which are requested. The Hearing Officer shall grant any delays or continuances which may be necessary or desirable in the interest of fairly resolving the

case.

(d) A party who has requested a hearing may amend the specification of the issues in dispute at any time up to 10 days before the scheduled date of the hearing. Issues raised later than 10 days before the scheduled hearing may be presented only at the discretion of the Hearing Officer.

§ 1.07-30 Disclosure of evidence.

The alleged violator may, upon request, receive a free copy of all the written evidence in the case file, except material that would disclose or lead to the disclosure of the identity of a confidential informant. Other evidence or material, such as blueprints, sound or video tapes, oil samples, and photographs may be examined in the Hearing Officer's offices. The Hearing Officer may provide for examination or testing of evidence at other loca

tions if there are adequate safeguards to prevent loss or tampering.

§ 1.07-35 Request for confidential treatment.

(a) In addition to information treated as confidential under § 1.07-30, a request for confidential treatment of a document or portion thereof may be made by the person supplying the information on the basis that the information is:

(1) Confidential financial information, trade secrets, or other material exempt from disclosure by the Freedom of Information Act (5 U.S.C. 552); (2) Required to be held in confidence by 18 U.S.C. 1905; or

(3) Otherwise exempt by law from disclosure.

(b) The person desiring confidential treatment must submit the request to the Hearing Officer in writing and state the reasons justifying nondisclosure. Failure to make a timely request may result in a document being considered as nonconfidential and subject to release.

(c) Confidential material is not considered by the Hearing Officer in reaching a decision unless

§ 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 Offi

cer 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.

§ 1.07-65 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.

§ 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. Any comments which the District Commander desires to submit must be received by the Hearing Offi