DOT 49 CFR PART 825-2010 RULES OF PROCEDURE FOR MERCHANT MARINE APPEALS FROM DECISIONS OF THE COMMANDANT U S COAST GUARD.pdf

1、590 49 CFR Ch. VIII (10110 Edition) Pt. 825 anticipate the need to make their own defense. (b) Stay pending judicial review. No re-quest for a stay pending judicial review will be entertained if it is received by the Board after the effective date of the Boards order (see 821.50(b). If a stay action

2、 is to be timely, any request must be filed sufficiently in advance of the effective date of the Boards order to allow for a reply and Board review. PART 825RULES OF PROCEDURE FOR MERCHANT MARINE AP-PEALS FROM DECISIONS OF THE COMMANDANT, U.S. COAST GUARD Sec. 825.1 Applicability. 825.5 Notice of ap

3、peal. 825.10 Referral of record. 825.15 Issues on appeal. 825.20 Briefs in support of appeal. 825.25 Oral argument. 825.30 Action by the Board. 825.35 Action after remand. 825.40 Ex parte communications. AUTHORITY: Sec. 304(a)(9)(B), Independent Safety Board Act of 1974, Pub. L. 93633, 88 Stat. 2169

4、 (49 U.S.C. 1903(a)(9)(B). SOURCE: 40 FR 30248, July 17, 1975, unless otherwise noted. 825.1 Applicability. The provisions of this part govern all proceedings before the National Trans-portation Safety Board (Board) on ap-peals taken from decisions, on or after April 1, 1975, of the Commandant, U.S.

5、 Coast Guard, sustaining orders of an administrative law judge, revoking, suspending, or denying a license, cer-tificate, document, or register in pro-ceedings under: (a) R.S. 4450, as amended (46 U.S.C. 239); (b) Act of July 15, 1954 (46 U.S.C. 239a b); or (c) Section 4, Great Lakes Pilotage Act (4

6、6 U.S.C. 216(b). 825.5 Notice of appeal. (a) A party may appeal from the Commandants decision sustaining an order of revocation, suspension, or de-nial of a license, certificate, document, or register in proceedings described in 825.1, by filing a notice of appeal with the Board within 10 days after

7、 service of the Commandants decision upon the party or his designated attorney. Upon good cause shown, the time for filing may be extended. (b) Notice of appeal shall be ad-dressed to the Docket Clerk, National Transportation Safety Board, Wash-ington, DC 20594. At the same time, a copy shall be ser

8、ved on the Com-mandant (GL), U.S. Coast Guard, Washington, DC 20590. (c) The notice of appeal shall state the name of the party, the number of the Commandants decision, and, in brief, the grounds for the appeal. 825.10 Referral of record. Upon receipt of a notice of appeal, the Commandant shall imme

9、diately transmit to the Board the complete record of the hearing upon which his decision was based. This includes the charges, the transcript of testimony, and hearing proceedings (including ex-hibits), briefs filed by the party, the de-cision of the administrative law judge, and the Commandants dec

10、ision on ap-peal. It does not include intra-agency staff memoranda provided as advice to the Commandant to aid in his decision. 825.15 Issues on appeal. The only issues that may be consid-ered on appeal are: (a) A finding of a material fact is er-roneous; (b) A necessary legal conclusion is without

11、governing precedent or is a de-parture from or contrary to law or precedent; (c) A substantial and important ques-tion of law, policy, or discretion is in-volved; or (d) A prejudicial procedural error has occurred. 825.20 Briefs in support of appeal. (a) Within 20 days after the filing of a notice o

12、f appeal, the appellant must file, in the same manner as prescribed for the notice in 825.5, a brief in sup-port of the appeal. (b) This document shall set forth: (1) The name and address of the ap-pellant; (2) The number and a description of the license, certificate, document, or register involved;

13、 VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00600 Fmt 8010 Sfmt 8010 Y:SGML220218.XXX 220218wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-591 National Transportation Safety Board 825.40 (3) A summar

14、y of the charges af-firmed by the Commandant as proved; (4) Fact findings by the Commandant disputed by the appellant; (5) Specific statements of errors of laws asserted; (6) Specific statements of any abuse of discretion asserted; and (7) The relief requested. (c) Objection based upon evidence of r

15、ecord need not be considered unless the appeal contains specific record ci-tation to the pertinent evidence. (d) When a brief has been filed by ap-pellant under this section, the Coast Guard may, within 15 days of service of the brief on the Commandant, submit to the Board a reply brief. (e) If a pa

16、rty who has filed a notice of appeal does not perfect the appeal by the timely filing of an appeal brief, the Board may dismiss the appeal on its own initiative or on motion of the Coast Guard. 825.25 Oral argument. (a) If any party desires to argue a case orally before the Board, he should request

17、leave to make such argument in his brief filed pursuant to 825.20. (b) Oral argument before the Board will normally not be granted unless the Board finds good cause for such argu-ment. If granted, the parties will be ad-vised of the date. 825.30 Action by the Board. (a) On review by the Board, if no

18、 re-versible error is found in the Com-mandants decision on appeal, that de-cision will be affirmed. (b) On review by the Board, if revers-ible error is found in the Com-mandants decision on appeal, the Board may: (1) Set aside the entire decision and dismiss the charges if it finds the error incura

19、ble; or (2) Set aside the order, or conclu-sions, or findings of the Commandant and remand the case to him for further consideration if it finds the error cur-able. (c) When a matter has been remanded to the Commandant under paragraph (b) of this section, the Commandant may act in accordance with th

20、e terms of the order of remand, or he may, as appropriate, further remand the matter to the administrative law judge of the Coast Guard who heard the case, or to another administrative law judge of the Coast Guard, with appropriate di-rections. 825.35 Action after remand. When a case has been remand

21、ed under 825.30, a party shall retain all rights of review under 46 CFR part 5 and this part, as applicable. 825.40 Ex parte communications. (a) As used in this section: Board decisional employee means a Board Member or employee who is or who may reasonably be expected to be involved in the decision

22、al process of the proceeding; Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include re-quests for status reports on any matter or proceeding covered by this part. (b)

23、The prohibition of paragraph (c) of this section shall apply from the time a proceeding is noticed for hear-ing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibition shall apply at the time of the acquisition of such knowledge. (c) E

24、xcept to the extent required for the disposition of ex parte matters as authorized by law: (1) No interested person outside the Board shall make or knowingly cause to be made to any Board employee an ex parte communication relevant to the merits of the proceeding; (2) No Board employee shall make or

25、 knowingly cause to be made to any in-terested person outside the Board an ex parte communication relevant to the merits of the proceeding. Ex parte communications regarding solely matters of Board procedure or practice are not prohibited by this paragraph. (d) A Board employee who receives or who m

26、akes or knowingly causes to be made a communication prohibited by paragraph (c) of this section, shall place on the public record of the pro-ceeding: (1) All such written communications; VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00601 Fmt 8010 Sfmt 8010 Y:SGML220218.XXX 220218wwoods

27、2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-592 49 CFR Ch. VIII (10110 Edition) Pt. 826 (2) Memoranda stating the substance of all such oral communication; and (3) All written responses, and memo-randa stating the subs

28、tance of all oral responses, to materials described in paragraphs (d) (1) and (2) of this sec-tion. (e) Upon receipt of a communication knowingly made or caused to be made in violation of paragraph (c) of this sec-tion, the Board may, to the extent con-sistent with the interests of justice and the p

29、olicy of the underlying statutes, require the party to show cause why his or her interest in the proceeding should not be dismissed, denied, dis-regarded, or otherwise adversely af-fected on account of such violation. (f) The Board may, to the extent con-sistent with the interests of justice and the

30、 policy of the underlying statutes administered by the Board, consider a violation of this section sufficient grounds for a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur. (Authority: Sec. 4, Government in the Sun-shine Act, Pub. L.

31、 94409, amending 5 U.S.C. 556 (d) and 5 U.S.C. 557; Independent Safety Board Act of 1974, Pub. L. 93633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.) 42 FR 21614, Apr. 28, 1977 PART 826RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980 Subpart AGeneral Provisions Sec. 826.1 Purpose of these rules.

32、 826.2 When the Act applies. 826.3 Proceedings covered. 826.4 Eligibility of applicants. 826.5 Standards for awards. 826.6 Allowable fees and expenses. 826.7 Rulemaking on maximum rates for at-torney fees. 826.8 Awards against the Federal Aviation Administration. Subpart BInformation Required From A

33、pplicants 826.21 Contents of application. 826.22 Net worth exhibit. 826.23 Documentation of fees and expenses. 826.24 When an application may be filed. Subpart CProcedures for Considering Applications 826.31 Filing and service of documents and general procedures. 826.32 Answer to application. 826.33

34、 Reply. 826.34 Comments by other parties. 826.35 Settlement. 826.36 Further proceedings. 826.37 Decision. 826.38 Board review. 826.39 Judicial review. 826.40 Payment of award. AUTHORITY: Section 203(a)(1) Pub. L. 9980, 99 Stat. 186 (5 U.S.C. 504). SOURCE: 46 FR 48209, Oct. 1, 1981, unless otherwise

35、noted. Subpart AGeneral Provisions 826.1 Purpose of these rules. The Equal Access to Justice Act, 5 U.S.C. 504 (the Act), provides for the award of attorney fees and other ex-penses to eligible individuals and enti-ties who are parties to certain adminis-trative proceedings (adversary adju-dications

36、) before the National Trans-portation Safety Board (Board). An eli-gible party may receive an award when it prevails over the Federal Aviation Administration (FAA), unless the Gov-ernment agencys position in the pro-ceeding was substantially justified or special circumstances make an award unjust. T

37、he rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that this Board will use to make them. As used hereinafter, the term agency applies to the FAA. 826.2 When the Act applies.

38、 The Act applies to any adversary ad-judication identified in 826.3 as cov-ered under the Act. 59 FR 30531, June 14, 1994 826.3 Proceedings covered. (a) The Act applies to certain adver-sary adjudications conducted by the Board. These are adjudications under 5 U.S.C. 554 in which the position of the FAA is presented by an attorney or VerDate Mar2010 10:10 Dec 13, 2010 Jkt 220218 PO 00000 Frm 00602 Fmt 8010 Sfmt 8010 Y:SGML220218.XXX 220218wwoods2 on DSK1DXX6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-