[Title 46 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2018 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 46
Shipping
________________________
Part 500 to End
Revised as of October 1, 2018
Containing a codification of documents of general
applicability and future effect
As of October 1, 2018
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 46:
Chapter IV--Federal Maritime Commission 3
Finding Aids:
Table of CFR Titles and Chapters........................ 287
Alphabetical List of Agencies Appearing in the CFR...... 307
List of CFR Sections Affected........................... 317
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 46 CFR 501.1 refers
to title 46, part 501,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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To determine whether a Code volume has been amended since its
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(b) The matter incorporated is in fact available to the extent
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What if the material incorporated by reference cannot be found? If
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2018
[[Page ix]]
THIS TITLE
Title 46--Shipping is composed of nine volumes. The parts in these
volumes are arranged in the following order: Parts 1-40, 41-69, 70-89,
90-139, 140-155, 156-165, 166-199, 200-499, and 500 to end. The first
seven volumes containing parts 1-199 comprise chapter I--Coast Guard,
DHS. The eighth volume, containing parts 200--499, includes chapter II--
Maritime Administration, DOT and chapter III--Coast Guard (Great Lakes
Pilotage), DHS. The ninth volume, containing part 500 to end, includes
chapter IV--Federal Maritime Commission. The contents of these volumes
represent all current regulations codified under this title of the CFR
as of October 1, 2018.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 46--SHIPPING
(This book contains part 500 to end)
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Part
chapter iv--Federal Maritime Commission..................... 501
[[Page 3]]
CHAPTER IV--FEDERAL MARITIME COMMISSION
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SUBCHAPTER A--GENERAL AND ADMINISTRATIVE PROVISIONS
Part Page
500
[Reserved]
501 The Federal Maritime Commission--General.... 5
502 Rules of practice and procedure............. 20
503 Public information.......................... 93
504 Procedures for environmental policy analysis 127
505 Administrative offset....................... 132
506 Civil monetary penalty inflation adjustment. 134
507 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Federal
Maritime Commission..................... 136
508 Employee ethical conduct standards and
financial disclosure regulations........ 142
SUBCHAPTER B--REGULATIONS AFFECTING OCEAN SHIPPING IN FOREIGN COMMERCE
515 Licensing, financial responsibility
requirements, and general duties for
ocean transportation intermediaries..... 143
520 Carrier automated tariffs................... 171
525 Marine terminal operator schedules.......... 186
530 Service contracts........................... 189
531 NVOCC Service arrangements.................. 201
532 NVOCC Negotiated rate arrangements.......... 205
535 Ocean common carrier and marine terminal
operator agreements subject to the
Shipping Act of 1984.................... 207
540 Passenger vessel financial responsibility... 244
[[Page 4]]
545 Interpretations and statements of policy.... 264
SUBCHAPTER C--REGULATIONS AND ACTIONS TO ADDRESS RESTRICTIVE FOREIGN
MARITIME PRACTICES
550 Regulations to adjust or meet conditions
unfavorable to shipping in the foreign
trade of the United States.............. 265
551 Actions to adjust or meet conditions
unfavorable to shipping in the U.S.
foreign trade........................... 270
555 Actions to address adverse conditions
affecting U.S.-flag carriers that do not
exist for foreign carriers in the United
States.................................. 270
560 Actions to address conditions unduly
impairing access of U.S.-flag vessels to
ocean trade between foreign ports....... 274
565 Controlled carriers......................... 279
566-599
[Reserved]
SUBCHAPTER D--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED
ACTIVITIES IN FOREIGN COMMERCE [RESERVED]
[[Page 5]]
SUBCHAPTER A_GENERAL AND ADMINISTRATIVE PROVISIONS
PART 500 [RESERVED]
PART 501_THE FEDERAL MARITIME COMMISSION_GENERAL--Table of Contents
Subpart A_Organization and Functions
Sec.
501.1 Purpose.
501.2 General.
501.3 Organizational components of the Federal Maritime Commission.
501.4 Lines of responsibility.
501.5 Functions of the organizational components of the Federal Maritime
Commission.
Subpart B_Official Seal
501.11 Official seal.
Subpart C_Delegation and Redelegation of Authorities
501.21 Delegation of authorities.
501.22 [Reserved]
501.23 Delegation to the General Counsel.
501.24 Delegation to the Secretary.
501.25 Delegation to and redelegation by the Managing Director.
501.26 Delegation to and redelegation by the Director, Bureau of
Certification and Licensing.
501.27 Delegation to and redelegation by the Director, Bureau of Trade
Analysis.
501.28 Delegation to the Director, Bureau of Enforcement.
Subpart D_Public Requests for Information
501.41 Public requests for information and decisions.
Appendix A to Part 501--Federal Maritime Commission Organization Chart
Authority: 5 U.S.C. 551-557, 701-706, 2903 and 6304; 31 U.S.C. 3721;
41 U.S.C. 414 and 418; 44 U.S.C. 501-520 and 3501-3520; 46 U.S.C. 301-
307, 40101-41309, 42101-42109, 44101-44106; Pub. L. 89-56, 70 Stat. 195;
5 CFR Part 2638; Pub. L. 104-320, 110 Stat. 3870.
Source: 70 FR 7659, Feb. 15, 2005, unless otherwise noted.
Subpart A_Organization and Functions
Sec. 501.1 Purpose.
This part describes the organization, functions and Official Seal
of, and the delegation of authority within, the Federal Maritime
Commission (``Commission'').
Sec. 501.2 General.
(a) Statutory functions. The Commission regulates common carriers by
water and other persons involved in the oceanborne foreign commerce of
the United States under provisions of the Shipping Act of 1984 (46
U.S.C. 40101-41309); section 19 of the Merchant Marine Act, 1920 (46
U.S.C. 42101-42109); the Foreign Shipping Practices Act of 1988 (46
U.S.C. 42301-42307); sections 2 and 3, Public Law 89-777, Financial
Responsibility for Death or Injury to Passengers and for Non-Performance
of Voyages (46 U.S.C. 44101-44106); and other applicable statutes.
(b) Establishment and composition of the Commission. The Commission
was established as an independent agency by Reorganization Plan No. 7 of
1961, effective August 12, 1961, and is composed of five Commissioners
(``Commissioners'' or ``members''), appointed by the President, by and
with the advice and consent of the Senate. Not more than three
Commissioners may be appointed from the same political party. The
President designates one of the Commissioners to serve as the Chairman
of the Commission (``Chairman'').
(c) Terms and vacancies. (1) Length of terms. The term of each
member of the Commission is five years and begins when the term of the
predecessor of that member ends (i.e., on June 30 of each successive
year).
(2) Removal. The President may remove a Commissioner for
inefficiency, neglect of duty, or malfeasance in office.
(3) Vacancies. A vacancy in the office of any Commissioner is filled
in the
[[Page 6]]
same manner as the original appointment. An individual appointed to fill
a vacancy is appointed only for the unexpired term of the individual
being succeeded.
(4) Term Limits. (i) Commissioners initially appointed and confirmed
before December 18, 2014. When a Commissioner's term ends, the
Commissioner may continue to serve until a successor is appointed and
qualified.
(ii) Commissioners initially appointed and confirmed on or after
December 18, 2014. (A) When a Commissioner's term ends, the Commissioner
may continue to serve until a successor is appointed and qualified,
limited to a period not to exceed one year.
(B) No individual may serve more than two terms, except that an
individual appointed to fill a vacancy may serve two terms in addition
to the remainder of the term for which the predecessor of that
individual was appointed.
(d) Quorum. A vacancy or vacancies in the Commission shall not
impair the power of the Commission to execute its functions. The
affirmative vote of a majority of the members of the Commission is
required to dispose of any matter before the Commission. For purposes of
holding a formal meeting for the transaction of the business of the
Commission, the actual presence of two Commissioners shall be
sufficient. Proxy votes of absent members shall be permitted.
(e) Meetings; records; rules and regulations. The Commission shall,
through its Secretary, keep a true record of all its meetings and the
yea-and-nay votes taken therein on every action and order approved or
disapproved by the Commission. In addition to or in aid of its
functions, the Commission adopts rules and regulations in regard to its
powers, duties and functions under the shipping statutes it administers.
[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009; 81
FR 10518, Mar. 1, 2016]
Sec. 501.3 Organizational components of the Federal Maritime Commission.
The major organizational components of the Commission are set forth
in the Organization Chart attached as Appendix A to this part. An
outline table of the components/functions follows:
(a) Office of the Chairman of the Federal Maritime Commission.
(Chief Executive and Administrative Officer, FOIA and Privacy Act
Appeals Officer.)
(1) Information Security Officer.
(2) Designated Agency Ethics Official.
(b) Offices of the Members of the Federal Maritime Commission.
(c) Office of the Secretary. (FOIA and Privacy Act Officer, Federal
Register Liaison, Performance Improvement Officer.)
(d) Office of the General Counsel. (Ethics Official, Legislative
Counsel.)
(e) Office of Administrative Law Judges.
(f) Office of Equal Employment Opportunity.
(g) Office of the Inspector General.
(h) Office of the Managing Director. (Chief Operating Officer, Chief
Acquisition Officer, Audit Follow-up and Management Controls Official,
Chief Information Officer, Chief Financial Officer, Competition
Advocate, Senior Agency Official for Privacy.)
(1) Office of Budget and Finance.
(2) Office of Human Resources. (Information Security Officer.)
(3) Office of Information Technology. (Chief Technology Officer, IT
Security Officer.)
(4) Office of Management Services. (Physical Security, FMC
Contracting Officer.)
(5) Bureau of Certification and Licensing.
(i) Office of Passenger Vessels and Information Processing.
(ii) Office of Ocean Transportation Intermediaries.
(6) Bureau of Trade Analysis.
(i) Office of Agreements.
(ii) Office of Economics and Competition Analysis.
(iii) Office of Service Contracts and Tariffs.
(7) Bureau of Enforcement.
(8) Area Representatives.
(i) Office of Consumer Affairs and Dispute Resolution Services.
(Ombudsman, Senior Dispute Resolution Specialist.)
(j) Boards and Committees.
(1) Executive Resources Board.
[[Page 7]]
(2) Performance Review Board.
[70 FR 7659, Feb. 15, 2005, as amended at 75 FR 29452, May 26, 2010]
Sec. 501.4 Lines of responsibility.
(a) Chairman. The Office of the Secretary, the Office of the General
Counsel, the Office of Administrative Law Judges, the Office of Consumer
Affairs and Dispute Resolution Services, the Office of Equal Employment
Opportunity, the Office of the Managing Director, and officials
performing the functions of Information Security Official, report to the
Chairman of the Commission.
(b) Commission. The Inspector General reports to the Commission.
(c) Office of the Managing Director. The Bureau of Certification and
Licensing, Bureau of Enforcement, Bureau of Trade Analysis, Area
Representatives, Office of Budget and Finance, Office of Human
Resources, Office of Information Technology, and Office of Management
Services report to the Office of the Managing Director. The Office of
Equal Employment Opportunity and the Office of the Inspector General
receive administrative guidance from the Managing Director. All other
units of the Commission receive administrative direction from the
Managing Director.
[75 FR 29452, May 26, 2010, as amended at 75 FR 31321, June 3, 2010; 77
FR 59128, Sept. 26, 2012]
Sec. 501.5 Functions of the organizational components of the
Federal Maritime Commission.
As further provided in subpart C of this part, the functions,
including the delegated authority of the Commission's organizational
components and/or officials to exercise their functions and to take all
actions necessary to direct and carry out their assigned duties and
responsibilities under the lines of responsibility set forth in Sec.
501.4, are briefly set forth as follows:
(a) Chairman. As the chief executive and administrative officer of
the Commission, the Chairman presides at meetings of the Commission,
administers the policies of the Commission to its responsible officials,
and ensures the efficient discharge of their responsibilities. The
Chairman provides management direction to the Offices of Equal
Employment Opportunity, Secretary, General Counsel, Administrative Law
Judges, Consumer Affairs and Dispute Resolution Services, and Managing
Director with respect to all matters concerning overall Commission
workflow, resource allocation (both staff and budgetary), work
priorities and similar managerial matters; and establishes, as
necessary, various committees and boards to address overall operations
of the agency. The Chairman serves as appeals officer under the Freedom
of Information Act, the Privacy Act, and the Federal Activities
Inventory Reform Act of 1998. The Chairman appoints the heads of major
administrative units after consultation with the other Commissioners. In
addition, the Chairman, as ``head of the agency,'' has certain
responsibilities under Federal laws and directives not specifically
related to shipping. For example, the special offices or officers within
the Commission, listed under paragraphs (a)(1) through (a)(3) of this
section, are appointed or designated by the Chairman, are under his or
her direct supervision and report directly to the Chairman:
(1) Under the direction and management of the Office Director, the
Office of Equal Employment Opportunity (``EEO'') ensures that statutory
and regulatory prohibitions against discrimination in employment and the
requirements for related programs are fully implemented. As such, the
Office administers and implements comprehensive programs on
discrimination complaints processing, affirmative action and special
emphasis. The Director, EEO, advises the Chairman regarding EEO's plans,
procedures, regulations, reports and other matters pertaining to policy
and the agency's programs. Additionally, the Director provides
leadership and advice to managers and supervisors in carrying out their
respective responsibilities in equal employment opportunity. The EEO
Office administers and implements these program responsibilities in
accordance with Equal Employment Opportunity Commission (``EEOC'')
Regulations at 29 CFR Part 1614 and other relevant EEOC Directives and
Bulletins.
[[Page 8]]
(2) The Information Security Officer is a senior agency official
designated under Sec. 503.52 of this chapter to direct and administer
the Commission's information security program, which includes an active
oversight and security education program to ensure effective
implementation of Executive Orders 12958 and 12968.
(3) The Designated Agency Ethics Official and Alternate are
appropriate agency employees formally designated under 5 CFR 2638.202
and Sec. 508.101 of this chapter to coordinate and manage the ethics
program as set forth in 5 CFR 2638.203, which includes the functions of
advising on matters of employee responsibilities and conduct, and
serving as the Commission's designee(s) to the Office of Government
Ethics on such matters. They provide counseling and guidance to
employees on conflicts of interest and other ethical matters.
(b) Commissioners. The members of the Commission, including the
Chairman, implement various shipping statutes and related directives by
rendering decisions, issuing orders, and adopting and enforcing rules
and regulations governing persons subject to the shipping statutes; and
perform other duties and functions as may be appropriate under
reorganization plans, statutes, executive orders, and regulations. In
addition, the Inspector General reports to and is under the general
supervision of the Commission.
(1) Under the direction and management of the Inspector General, the
Office of Inspector General conducts, supervises and coordinates audits
and investigations relating to the programs and operations of the
Commission; reviews existing and proposed legislation and regulations
pertaining to such programs and operations; provides leadership and
coordination and recommends policies for activities designed to promote
economy, efficiency, and effectiveness in the administration of, and to
prevent and detect waste, fraud and abuse in, such programs and
operations; and advises the Commission and the Congress fully and
currently about problems and deficiencies relating to the administration
of such programs and operations and the necessity for and progress of
corrective action.
(2) [Reserved]
(c) Secretary. Under the direction and management of the Secretary,
the Office of the Secretary:
(1) Is responsible for the preparation, maintenance and disposition
of the official files and records documenting the business of the
Commission. In this regard, the Office:
(i) Prepares and, as appropriate, publishes agenda of matters for
action by the Commission; prepares and maintains the minutes with
respect to such actions; signs, serves and issues, on behalf of the
Commission, documents implementing such actions, and coordinates follow-
up thereon.
(ii) Receives and processes formal and informal complaints involving
alleged statutory violations, petitions for relief, special dockets
applications, applications to correct clerical or administrative errors
in service contracts, requests for conciliation service, staff
recommendations for investigation and rulemaking proceedings, and
motions and filings relating thereto.
(iii) Disseminates information regarding the proceedings,
activities, functions, and responsibilities of the Commission to the
maritime industry, news media, general public, and other government
agencies. In this capacity the Office also:
(A) Administers the Commission's Freedom of Information Act, Privacy
Act and Government in the Sunshine Act responsibilities; the Secretary
serves as the Freedom of Information Act and Privacy Act Officer.
(B) Authenticates records of the Commission.
(C) Compiles and publishes the bound volumes of Commission
decisions.
(D) Coordinates publication of documents, including rules and
modifications thereto with the Office of the Federal Register; the
Secretary serves as the Federal Register Liaison Officer and Certifying
Officer.
(E) Oversees the content and organization of the Commission's Web
site and authorizes the publication of documents thereon.
(2) Through the Secretary and, in the absence or preoccupation of
the Secretary, through the Assistant Secretary, administers oaths
pursuant to 5 U.S.C. Sec. 2903(b).
[[Page 9]]
(3) Manages the Commission's library and related services.
(4) Serves as the lead executive responsible for development, in
coordination with the Managing Director, of the agency's strategic plan,
monitoring of results of strategic goals and objectives, and preparation
of all required reports.
(d) General Counsel. Under the direction and management of the
General Counsel, the Office of the General Counsel:
(1) Reviews for legal sufficiency all staff memoranda and
recommendations that are presented for Commission action and staff
actions acted upon pursuant to delegated authority under Sec. Sec.
501.27(e) and 501.27(g).
(2) Provides written or oral legal opinions to the Commission, to
the staff, and to the general public in appropriate cases.
(3) Prepares and/or reviews for legal sufficiency, before service,
all final Commission decisions, orders, and regulations.
(4) Monitors, reviews and, as requested by the Committees of the
Congress, the Office of Management and Budget, or the Chairman, prepares
comments on all legislation introduced in the Congress affecting the
Commission's programs or activities, and prepares draft legislation or
amendments to legislation; coordinates such matters with the appropriate
Bureau, Office or official and advises appropriate Commission officials
of legislation that may impact the programs and activities of the
Commission; prepares testimony for congressional hearings and responses
to requests from congressional offices.
(5) Serves as the legal representative of the Commission in courts
and in administrative proceedings before other government agencies.
(6) Monitors and reports on international maritime developments,
including laws and practices of foreign governments which affect ocean
shipping; and identifies potential state-controlled carriers within the
meaning of section 3(8) of the Shipping Act of 1984 (46 U.S.C.
40102(8)), researches their status, and makes recommendations to the
Commission concerning their classification.
(7) Represents the Commission in U.S. Government interagency groups
dealing with international maritime issues; represents the Commission
and acts as technical advisor in bilateral and multilateral maritime
discussions; and coordinates Commission activities through liaison with
other government agencies and programs and international organizations.
(8) Screens, routes, and maintains custody of U.S. Government and
international organization documents, subject to the classification and
safekeeping controls administered by the Commission's Information
Security Officer.
(9) Reviews for legal sufficiency all adverse personnel actions,
procurement activities, Freedom of Information Act, Privacy Act matters,
requests for testimony by employees and production of official records
in litigation and other administrative actions.
(e) Administrative Law Judges. Under the direction and management of
the Chief Administrative Law Judge, the Office of Administrative Law
Judges holds hearings and renders initial or recommended decisions in
formal rulemaking and adjudicatory proceedings as provided in the
Shipping Act of 1984, and other applicable laws and other matters
assigned by the Commission, in accordance with the Administrative
Procedure Act and the Commission's Rules of Practice and Procedure.
(f) Office of the Managing Director. (1) The Managing Director:
(i) As Chief Operating Officer, is responsible to the Chairman for
the management and coordination of Commission programs managed by the
Bureaus of Certification and Licensing; Trade Analysis; Enforcement; the
Commission's Area Representatives; Offices of Budget and Finance; Human
Resources; Management Services; and Information Technology, as more
fully described below, and thereby implements the regulatory policies of
the Commission and the administrative policies and directives of the
Chairman. The Managing Director also provides administrative guidance to
the Offices of Equal Employment Opportunity and Inspector General;
[[Page 10]]
(ii) The Office initiates recommendations, collaborating with other
elements of the Commission as warranted, for long-range plans, new or
revised policies and standards, and rules and regulations;
(iii) Ensures the periodic review and updating of Commission Orders;
(iv) Interprets and administers governmental policies and programs
in a manner consistent with Federal guidelines, including those
involving financial management, human resources, information technology,
and procurement;
(v) Is responsible for coordinating records management activities
and developing Paperwork Reduction Act clearances for submission to the
Office of Management and Budget;
(vi) Is responsible for directing and administering the Commission's
training and development function;
(vii) Acts as the Commission's representative to the Small Agency
Council;
(viii) Is the agency's Chief Acquisition Officer under the Services
Acquisition Reform Act of 2003, Public Law 108-136, 117 Stat. 1663 and
Commission Order 112;
(ix) Is the Audit Follow-up and Management (Internal) Controls
Official for the Commission under Commission Orders 103 and 106;
(x) Is the agency's Chief Financial Officer;
(xi) Is the agency's Chief Operating Officer;
(xii) Serves as the Senior Agency Official for Privacy under
Commission Order 89;
(2) The Deputy Managing Director is the Commission's Competition
Advocate under Commission Order 112.
(3) The Assistant Managing Director is the Commission's Chief
Information Officer and Records Management Officer. The Assistant
Managing Director provides direction to the Office of Information
Technology in interpreting and administering governmental policies and
programs for information technology in a manner consistent with federal
guidelines. The Assistant Managing Director initiates recommendations,
collaborating with other elements of the Commission as warranted, for
long-range plans, new or revised policies and standards, and rules and
regulations with respect to the use and security of information and
technology.
(4) Other offices under the management direction of the Managing
Director are as follows:
(i) The Office of Budget and Finance, under the direction and
management of the Office Director, administers the Commission's
financial management program, including fiscal accounting activities,
fee and forfeiture collections, and payments, and ensures that
Commission obligations and expenditures of appropriated funds are
proper; develops annual budget justifications for submission to the
Congress and the Office of Management and Budget; develops and
administers internal controls systems that provide accountability for
agency funds; administers the Commission's travel and cash management
programs, ensures accountability for official passports; and assists in
the development of proper levels of user fees.
(ii) The Office of Human Resources, under the direction and
management of the Office Director, plans and administers a complete
personnel management program including: Recruitment and placement;
position classification and pay administration; occupational safety and
health; employee counseling services; employee relations; workforce
discipline; performance appraisal; incentive awards; retirement;
personnel security; and the Commission's Human Capital Management Plan.
The Office Director serves as the Commission's Human Capital Management
Officer. A human resources specialist within the Office serves as the
Information Security Officer under Commission Order 80.
(iii) The Office of Information Technology, under the direction and
management of the Office Director, administers the Commission's
information technology (``IT'') program under the Paperwork Reduction
Act of 1995, as amended, as well as other applicable laws that prescribe
responsibility for operating the IT program. The Office provides
administrative support with respect to information technology to the
program operations of the Commission. The Office's functions include:
[[Page 11]]
Conducting IT management studies and surveys; managing data and voice
telecommunications; developing and managing databases and applications;
and administering IT contracts. The Office is also responsible for
managing the computer security program. The Director of the Office
serves as the Commission's Chief Technology Officer; the IT Security
Officer reports to the Director of the Office under Commission Order 80.
(iv) The Office of Management Services, under the direction and
management of the Office Director, directs and administers a variety of
management support service functions of the Commission including
conducting internal management reviews and recommending changes in
organization and workflow processes. The Director of the Office is the
Commission's principal Contracting Officer under Commission Order 112.
Programs include: Acquisition of all goods and services used by the
Commission; building security and emergency preparedness; real and
personal property management; printing and copying; mail services;
graphic design; equipment maintenance; and transportation. The Office
Director is the agency's liaison with the Small Agency Council's
Procurement and Administrative Services Committees and with the General
Services Administration (``GSA'') and the Department of Homeland
Security (``DHS'') on the Building Security Committee.
(g) Under the direction and management of the Bureau Director, the
Bureau of Certification and Licensing:
(1) Through the Office of Transportation Intermediaries, has
responsibility for reviewing applications for Ocean Transportation
Intermediary (``OTI'') licenses, and maintaining records about
licensees.
(2) Through the Office of Passenger Vessels and Information
Processing, has responsibility for reviewing applications for
certificates of financial responsibility with respect to passenger
vessels, reviewing requests for substitution of alternative forms of
financial protection, managing all activities with respect to evidence
of financial responsibility for OTIs and passenger vessel owner/
operators, and for developing and maintaining all Bureau database and
records of OTI applicants and licensees.
(h) Under the direction and management of the Bureau Director, the
Bureau of Trade Analysis, through its Office of Agreements; Office of
Economics and Competition Analysis; and Office of Service Contracts and
Tariffs, reviews agreements and monitors the concerted activities of
common carriers by water, reviews and analyzes service contracts,
monitors rates of government controlled carriers, reviews carrier
published tariff systems under the accessibility and accuracy standards
of the Shipping Act of 1984 (46 U.S.C. 40501(a)-(g)), responds to
inquiries or issues that arise concerning service contracts or tariffs,
and is responsible for competition oversight and market analysis.
(i) Under the direction and management of the Bureau Director, the
Bureau of Enforcement:
(1) Participates as trial counsel in formal Commission proceedings
when designated by Commission order, or when intervention is granted;
(2) Initiates, processes and negotiates the informal compromise of
civil penalties under Sec. 501.28 and Sec. 502.604 of this chapter,
and represents the Commission in proceedings and circumstances as
designated;
(3) [Reserved]
(4) Coordinates with other bureaus and offices to provide legal
advice, attorney liaison, and prosecution, as warranted, in connection
with enforcement matters;
(5) Conducts investigations leading to enforcement action, advises
the Commission of evolving competitive practices in international
oceanborne commerce, and assesses the practical repercussions of
Commission regulations.
(j) Area Representatives. Maintain a presence in locations other
than Washington, DC, with activities including the following:
(1) Representing the Commission within their respective geographic
areas;
(2) Providing liaison between the Commission and the shipping
industry and interested public; conveying pertinent information
regarding regulatory
[[Page 12]]
activities and problems; and recommending courses of action and
solutions to problems as they relate to the shipping public, the
affected industry, and the Commission;
(3) Furnishing to interested persons information, advice, and access
to Commission public documents;
(4) Receiving and resolving informal complaints, in coordination
with the Director, Office of Consumer Affairs and Dispute Resolution
Services;
(5) Investigating potential violations of the shipping statutes and
the Commission's regulations;
(6) Conducting shipping industry surveillance programs to ensure
compliance with the shipping statutes and the Commission's regulations.
Such programs include common carrier audits, service contract audits and
compliance checks of OTIs;
(7) Upon request of the Bureau of Certification and Licensing,
auditing passenger vessel operators to determine the adequacy of
performance bonds and the availability of funds to pay liability claims
for death or injury, and assisting in the background surveys of OTI
applicants;
(8) Conducting special surveys and studies, and recommending
policies to strengthen enforcement of the shipping laws;
(9) Maintaining liaison with Federal and State agencies with respect
to areas of mutual concern; and
(10) Providing assistance to the various bureaus and offices of the
Commission, as appropriate and when requested.
(k) The Office of Consumer Affairs and Dispute Resolution Services,
under the direction and management of the Office Director, has
responsibility for developing and implementing the Alternative Dispute
Resolution Program, responds to consumer inquiries and complaints, and
coordinates the Commission's efforts to resolve disputes within the
shipping industry. The Office reviews existing and proposed legislation
and regulations for impact on the shipping industry and its consumers
and recommends appropriate policies and regulations to facilitate trade.
The Director of the Office of Consumer Affairs and Dispute Resolution
Services is designated as the agency's Senior Dispute Resolution
Specialist pursuant to section 3 of the Administrative Dispute
Resolution Act, Public Law 101-552, as amended by section 4(a) of Public
Law 104-320. The Director also serves as the Commission's Ombudsman.
(l) Boards and Committees. The following boards and committees are
established by separate Commission orders to address matters relating to
the overall operations of the Commission:
(1) The Executive Resources Board (``ERB'') is composed of members
of the Senior Executive Service as designated by the Chairman. The
Chairman shall designate an ERB chair on a rotational basis beginning
October 1 of each year. The Board meets on an ad hoc basis to discuss,
develop and submit recommendations to the Chairman on matters related to
the merit staffing process for career appointments in the Senior
Executive Service, including the executive qualifications of candidates
for career appointment. The Board also plans and manages the
Commission's executive development programs. Serving the Board in a non-
voting advisory capacity are the Director, Office of Equal Employment
Opportunity, the Training Officer, and the Director, Office of Human
Resources, who also serves as the Board's secretary. [Commission Order
No. 95.]
(2) The Performance Review Board (``PRB'') is chaired by a
Commissioner designated by the Chairman, and is composed of a standing
register of members which is published in the Federal Register. Once a
year, the PRB Chairman appoints performance review panels from the
membership to review individual performance appraisals and other
relevant information pertaining to Senior Executives at the Commission,
and to recommend final performance ratings to the Chairman. [Commission
Order No. 115.] Every three years, the PRB considers supervisors'
recommendations as to whether Senior Executives of the Commission should
be recertified under the Ethics Reform Act of 1989, and makes
appropriate recommendations to the Commission's Chairman. [Commission
Order No. 118.]
(3) The Maritime Environmental Committee (``MEC'') is an internal
Committee made up of Commission staff as
[[Page 13]]
designated by the Chairman. The MEC advises the Chairman and the
Commission on issues involving environmental and sustainable shipping
practices, initiatives, operational proposals, and similar matters
affecting entities regulated by the Commission to assist the Commission
in its review and regulation of agreements and in its statutory
responsibility for ensuring an efficient ocean transportation system.
[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009; 75
FR 29452, May 26, 2010; 75 FR 31321, June 3, 2010; 77 FR 59128, Sept.
26, 2012; 78 FR 13277, Feb. 27, 2013; 79 FR 24351, Apr. 30, 2014]
Subpart B_Official Seal
Sec. 501.11 Official seal.
(a) Description. Pursuant to section 201(c) of the Merchant Marine
Act, 1936, as amended (46 U.S.C. 301(d)), the Commission prescribes its
official seal, as adopted by the Commission on August 14, 1961, which
shall be judicially noticed. The design of the official seal is
described as follows:
(1) A shield argent paly of six gules, a chief azure charged with a
fouled anchor or; shield and anchor outlined of the third; on a wreath
argent and gules, an eagle displayed proper; all on a gold disc within a
blue border, encircled by a gold rope outlined in blue, and bearing in
white letters the inscription ``Federal Maritime Commission'' in upper
portion and ``1961'' in lower portion.
(2) The shield and eagle above it are associated with the United
States of America and denote the national scope of maritime affairs. The
outer rope and fouled anchor are symbolic of seamen and waterborne
transportation. The date ``1961'' has historical significance,
indicating the year in which the Commission was created.
(b) Design.
[GRAPHIC] [TIFF OMITTED] TR15FE05.000
[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009]
Subpart C_Delegation and Redelegation of Authorities
Sec. 501.21 Delegation of authorities.
(a) Authority and delegation. Section 105 of Reorganization Plan No.
7 of 1961, August 12, 1961, authorizes the Commission to delegate, by
published order or rule, any of its functions to a division of the
Commission, an individual Commissioner, an administrative law judge, or
an employee or employee board, including functions with respect to
hearing, determining, ordering, certifying, reporting or otherwise
acting as to any work, business or matter. In subpart A of this part,
the Commission has delegated general functions, and in this subpart C it
is delegating miscellaneous, specific authorities set forth in
Sec. Sec. 501.23, et seq., to the delegatees designated therein,
subject to the limitations prescribed in subsequent subsections of this
section.
(b) Deputies. Where bureau or office deputies are officially
appointed, they are hereby delegated all necessary authority to act in
the absence or incapacity of the director or chief.
(c) Redelegation. Subject to the limitations in this section, the
delegatees may redelegate their authorities to subordinate personnel
under their supervision and direction; but only if this subpart is
amended to reflect such redelegation and notice thereof is published in
the Federal Register. Under any redelegated authority, the redelegator
assumes full responsibility for actions taken by subordinate
redelegatees.
[[Page 14]]
(d) Exercise of authority; policy and procedure. The delegatees and
redelegatees shall exercise the authorities delegated or redelegated in
a manner consistent with applicable laws and the established policies of
the Commission, and shall consult with the General Counsel where
appropriate.
(e) Exercise of delegated authority by delegator. Under any
authority delegated or redelegated, the delegator (Commission), or the
redelegator, respectively, shall retain full rights to exercise the
authority in the first instance.
(f) Review of delegatee's action. The delegator (Commission) or
redelegator of authority shall retain a discretionary right to review an
action taken under delegated authority by a subordinate delegatee,
either upon the filing of a written petition of a party to, or an
intervenor in, such action; or upon the delegator's or redelegator's own
initiative.
(1) Petitions for review of actions taken under delegated authority
shall be filed within ten (10) calendar days of the action taken:
(i) If the action for which review is sought is taken by a
delegatee, the petition shall be addressed to the Commission pursuant to
Sec. 502.69 of this chapter.
(ii) If the action for which review is sought is taken by a
redelegatee, the petition shall be addressed to the redelegator whose
decision can be further reviewed by the Commission under paragraph
(f)(1)(i) of this section, unless the Commission decides to review the
matter directly, such as, for example, in the incapacity of the
redelegator.
(2) The vote of a majority of the Commission less one member thereof
shall be sufficient to bring any delegated action before the Commission
for review under this paragraph.
(g) Action--when final. Should the right to exercise discretionary
review be declined or should no such review be sought under paragraph
(f) of this section, then the action taken under delegated authority
shall, for all purposes, including appeal or review thereof, be deemed
to be the action of the Commission.
(h) Conflicts. Where the procedures set forth in this section
conflict with law or any regulation of this chapter, the conflict shall
be resolved in favor of the law or other regulation.
Sec. 501.22 [Reserved]
Sec. 501.23 Delegation to the General Counsel.
The authority listed in this section is delegated to the General
Counsel: authority to classify carriers within the meaning of section
3(8) of the Shipping Act of 1984 (46 U.S.C. 40102(8)), except where a
carrier submits a rebuttal statement pursuant to Sec. 565.3(b) of this
chapter; and authority to review for legal sufficiency all adverse
personnel actions, procurement activities, Freedom of Information Act,
Privacy Act matters, requests for testimony by employees and production
of official records in litigation and other administrative actions,
pursuant to part 503 subpart E--Requests for Testimony by Employees
Relating to Official Information and Production of Official Records in
Litigation.
[79 FR 24351, Apr. 30, 2014]
Sec. 501.24 Delegation to the Secretary.
The authorities listed in this section are delegated to the
Secretary and, in the absence or preoccupation of the Secretary, to the
Assistant Secretary.
(a) Authority to approve applications for permission to practice
before the Commission and to issue admission certificates to approved
applicants.
(b) Authority to extend the time to file exceptions or replies to
exceptions, and the time for Commission review, relative to initial
decisions of administrative law judges and decisions of Special Dockets
Officers.
(c) Authority to extend the time to file appeals or replies to
appeals, and the time for Commission review, relative to dismissals of
proceedings, in whole or in part, issued by administrative law judges.
(d) Authority to establish and extend or reduce the time:
(1) To file documents either in docketed proceedings or relative to
petitions filed under Part 502 of this chapter, which are pending before
the Commission itself; and
[[Page 15]]
(2) To issue initial and final decisions under Sec. 502.61 of this
chapter.
(e) Authority to prescribe a time limit for the submission of
written comments with reference to agreements filed pursuant to section
5 of the Shipping Act of 1984 (46 U.S.C. 40301(d)-(e), 40302-40303,
40305).
(f) Authority, in appropriate cases, to publish in the Federal
Register notices of intent to prepare an environmental assessment and
notices of finding of no significant impact.
(g) Authority to prescribe a time limit less than ten days from date
published in the Federal Register for filing comments on notices of
intent to prepare an environmental assessment and notice of finding of
no significant impact and authority to prepare environmental assessments
of no significant impact.
(h) Authority, in the absence or preoccupation of the Managing
Director, to sign travel orders, nondocketed recommendations to the
Commission, and other routine documents for the Managing Director,
consistent with the programs, policies, and precedents established by
the Commission or the Managing Director.
[70 FR 7659, Feb. 15, 2005, as amended at 74 FR 50714, Oct. 1, 2009; 74
FR 54913, Oct. 26, 2009; 75 FR 29454, May 26, 2010]
Sec. 501.25 Delegation to and redelegation by the Managing Director.
The authorities listed in this section are delegated to the Managing
Director.
(a) Authority to adjudicate, with the concurrence of the General
Counsel, and authorize payment of, employee claims for not more than
$1,000.00, arising under the Military and Civilian Personnel Property
Act of 1964, 31 U.S.C. 3721.
(b) Authority to determine that an exigency of the public business
is of such importance that annual leave may not be used by employees to
avoid forfeiture before annual leave may be restored under 5 U.S.C.
6304.
(c)(1) Authority to approve, certify, or otherwise authorize those
actions dealing with appropriations of funds made available to the
Commission including allotments, fiscal matters, and contracts relating
to the operation of the Commission within the laws, rules, and
regulations set forth by the Federal Government.
(2) The authority under paragraph (c)(1) of this section is
redelegated to the Director, Office of Budget and Finance.
(d)(1) Authority to classify all positions GS-1 through GS-15 and
wage grade positions.
(2) The authority under paragraph (d)(1) of this section is
redelegated to the Director, Office of Human Resources.
[75 FR 29454, May 26, 2010]
Sec. 501.26 Delegation to and redelegation by the Director, Bureau
of Certification and Licensing.
Except where specifically redelegated in this section, the
authorities listed in this section are delegated to the Director, Bureau
of Certification and Licensing.
(a) Authority to:
(1) Approve or disapprove applications for OTI licenses; issue or
reissue or transfer such licenses; and approve extensions of time in
which to furnish the name(s) and ocean transportation intermediary
experience of the managing partner(s) or officer(s) who will replace the
qualifying partner or officer upon whose qualifications the original
licensing was approved;
(2) Issue a letter stating that the Commission intends to deny an
OTI application, unless within 20 days applicant requests a hearing to
show that denial of the application is unwarranted; deny applications
where an applicant has received such a letter and has not requested a
hearing within the notice period; and rescind, or grant extensions of,
the time specified in such letters;
(3) Revoke the license of an OTI upon the request of the licensee;
(4) Upon receipt of notice of cancellation of any instrument
evidencing financial responsibility, notify the licensee in writing that
its license will automatically be suspended or revoked, effective on the
cancellation date of such instrument, unless new or reinstated evidence
of financial responsibility is submitted and approved prior to such
date, and subsequently order such suspension or revocation for
[[Page 16]]
failure to maintain proof of financial responsibility;
(5) Revoke the ocean transportation intermediary license of a non-
vessel-operating common carrier not in the United States for failure to
designate and maintain a person in the United States as legal agent for
the receipt of judicial and administrative process;
(6) Approve changes in an existing licensee's organization; and
(7) Return any application which on its face fails to meet the
requirements of the Commission's regulations, accompanied by an
explanation of the reasons for rejection.
(8) The authorities contained in paragraphs (a)(3) and (a)(4) of
this section are redelegated to the Director, Office of Transportation
Intermediaries, in the Bureau of Certification and Licensing.
(b) Authority to:
(1) Approve applications for Certificates (Performance) and
Certificates (Casualty) for passenger vessels, evidenced by a surety
bond, guaranty or insurance policy, or combination thereof; and issue,
reissue, or amend such Certificates;
(2) Issue a written notice to an applicant stating intent to deny an
application for a Certificate (Performance) and/or (Casualty),
indicating the reason therefor, and advising applicant of the time for
requesting a hearing as provided for under Sec. 540.26(c) of this
chapter; deny any application where the applicant has not submitted a
timely request for a hearing; and rescind such notices and grant
extensions of the time within which a request for hearing may be filed;
(3) Issue a written notice to a certificant stating that the
Commission intends to revoke, suspend, or modify a Certificate
(Performance) and/or (Casualty), indicating the reason therefor, and
advising of the time for requesting a hearing as provided for under
Sec. 540.26(c) of this chapter; revoke, suspend or modify a Certificate
(Performance) and/or (Casualty) where the certificant has not submitted
a timely request for hearing; and rescind such notices and grant
extensions of time within which a request for hearing may be filed;
(4) Revoke a Certificate (Performance) and/or (Casualty) which has
expired, and/or upon request of, or acquiescence by, the certificant;
and
(5) Notify a certificant when a Certificate (Performance) and/or
(Casualty) has become null and void in accordance with Sec. Sec.
540.8(a) and 540.26(a) of this chapter.
(c) Authority to approve amendments to escrow agreements filed under
Sec. 540.5(b) of this Chapter when such amendments are for the purpose
of changing names of principals, changing the vessels covered by the
escrow agreement, changing the escrow agent, and changing the amount of
funds held in escrow, provided that the changes in amount of funds
result in an amount of coverage that complies with the requirements in
the introductory text of Sec. 540.5 of this Chapter.
(d) Authority to the Director, Bureau of Certification and Licensing
to grant requests to substitute alternative financial responsibility
pursuant to Sec. 540.9(l) of this chapter based upon existing
protection available to purchases of passenger vessel transportation by
credit card by an amount up to fifty (50) percent of the passenger
vessel operator's highest two-year unearned passenger revenues.
[70 FR 7659, Feb. 15, 2005, as amended at 70 FR 44866, Aug. 4, 2005; 78
FR 13277, Feb. 27, 2013]
Sec. 501.27 Delegation to and redelegation by the Director, Bureau
of Trade Analysis.
Except where specifically redelegated in this section, the
authorities listed in this section are delegated to the Director, Bureau
of Trade Analysis.
(a) Authority to determine that no action should be taken to prevent
an agreement or modification to an agreement from becoming effective
under section 6(c)(1), and to shorten the review period under section
6(e), of the Shipping Act of 1984 (46 U.S.C. 40304 (c)(1) and (e)(1)),
when the agreement or modification involves solely a restatement,
clarification or change in an agreement which adds no new substantive
authority beyond that already contained in an effective agreement.
[[Page 17]]
This category of agreement or modification includes, for example, the
following: a restatement filed to conform an agreement to the format and
organization requirements of Part 535 of this chapter; a clarification
to reflect a change in the name of a country or port or a change in the
name of a party to the agreement; a correction of typographical or
grammatical errors in the text of an agreement; a change in the title of
persons or committees designated in an agreement; or a transfer of
functions from one person or committee to another.
(b) Authority to grant or deny applications filed under Sec.
535.406 of this chapter for waiver of the form, organization and content
requirements of Sec. Sec. 535.401, 535.402, 535.403, 535.404 and
535.405 of this chapter.
(c) Authority to grant or deny applications filed under Sec.
535.504 of this chapter for waiver of the Information Form requirements
in subpart E of part 535.
(d) Authority to grant or deny applications filed under Sec.
535.705 of this chapter for waiver of the reporting requirements in
subpart G of part 535 of this chapter.
(e) Authority to determine that no action should be taken to prevent
an agreement or modification of an agreement from becoming effective
under section 6(c)(1) of the Shipping Act of 1984 (46 U.S.C. 40304
(c)(1) for all unopposed agreements and modifications to agreements
which will not result in a significant reduction in competition.
Agreements which are deemed to have the potential to result in a
significant reduction in competition and which, therefore, are not
covered by this delegation include but are not limited to:
(1) New agreements authorizing the parties to collectively discuss
or fix rates (including terminal rates).
(2) New agreements authorizing the parties to pool cargoes or
revenues.
(3) New agreements authorizing the parties to establish a joint
service or consortium.
(4) New equal access agreements.
(f) Authority to grant or deny shortened review pursuant to Sec.
535.605 of this chapter for agreements for which authority is delegated
in paragraph (e) of this section.
(g) Subject to review by the General Counsel, authority to deny, but
not approve, requests filed pursuant to Sec. 535.605 of this chapter
for a shortened review period for agreements for which authority is not
delegated under paragraph (e) of this section.
(h) Authority to issue notices of termination of agreements which
are otherwise effective under the Shipping Act of 1984, after
publication of notice of intent to terminate in the Federal Register,
when such terminations are:
(1) Requested by the parties to the agreement;
(2) Deemed to have occurred when it is determined that the parties
are no longer engaged in activity under the agreement and official
inquiries and correspondence cannot be delivered to the parties; or
(3) Deemed to have occurred by notification of the withdrawal of the
next to last party to an agreement without notification of the addition
of another party prior to the effective date of the next to last party's
withdrawal.
(i) Authority to determine whether agreements for the use or
operation of terminal property or facilities, or the furnishing of
terminal services, are within the purview of section 5 of the Shipping
Act of 1984 (46 U.S.C. 40301 (d)-(e), 40302-40303, 40305).
(j) Authority to request controlled carriers to file justifications
for existing or proposed rates, charges, classifications, rules or
regulations, and to review responses to such requests for the purpose of
recommending to the Commission that a rate, charge, classification, rule
or regulation be found unlawful and, therefore, requires Commission
action under section 9(d) of the Shipping Act of 1984 (46 U.S.C.
40704(b)-(e)).
(k) Authority to recommend to the Commission the initiation of
formal proceedings or other actions with respect to suspected violations
of the shipping statutes and rules and regulations of the Commission.
(l)(1) Authority to approve for good cause or disapprove special
permission applications submitted by common carriers, or conferences of
such carriers, subject to the provisions of section 8 of the Shipping
Act of 1984 (46
[[Page 18]]
U.S.C. 40501-40503), for relief from statutory and/or Commission tariff
requirements.
(2) The authority under this paragraph is redelegated to the
Director, Office of Service Contracts and Tariffs, in the Bureau of
Trade Analysis.
(m)(1) Authority to approve or disapprove special permission
applications submitted by a controlled carrier subject to the provisions
of section 9 of the Shipping Act of 1984 (46 U.S.C. 40701-40706) for
relief from statutory and/or Commission tariff requirements.
(2) The authority under this paragraph is redelegated to the
Director, Office of Service Contracts and Tariffs, in the Bureau of
Trade Analysis.
(n) Authority contained in Part 530 of this chapter to approve, but
not deny, requests for permission to correct clerical or administrative
errors in the essential terms of filed service contracts.
(o) Authority to require Monitoring Reports from, or prescribe
alternative periodic reporting requirements for, parties to agreements
under Sec. Sec. 535.702(c) and (d) of this chapter.
(p) Authority to require parties to agreements subject to the
Monitoring Report requirements in Sec. 535.702(a)(2) of this chapter to
report their agreement commodity data on a sub-trade basis pursuant to
Sec. 535.703(d) of this chapter.
[70 FR 7659, Feb. 15, 2005; 72 FR 15613, Apr. 2, 2007, as amended at 74
FR 50714, Oct. 1, 2009]
Sec. 501.28 Delegation to the Director, Bureau of Enforcement.
The authorities listed in this section are delegated to the
Director, Bureau of Enforcement.
(a) As set forth in Sec. 502.604(g) of this chapter, the Director,
Bureau of Enforcement, has the delegated authority to issue Notice and
Demand Letters and to compromise civil penalty claims, subject to the
prior approval of the Managing Director. This delegation shall include
the authority to compromise issues relating to the retention,
suspension, or revocation of ocean transportation intermediary licenses.
(b) [Reserved]
[70 FR 7659, Feb. 15, 2005, as amended at 75 FR 29454, May 26, 2010]
Subpart D_Public Requests for Information
Sec. 501.41 Public requests for information and decisions.
(a) General. Pursuant to 5 U.S.C. 552(a)(1)(A), there is hereby
stated and published for the guidance of the public the established
places at which, the officers from whom, and the methods whereby, the
public may secure information, make submittals or requests, or obtain
decisions, principally by contacting by telephone, in writing, or in
person, either the Secretary of the Commission at the Federal Maritime
Commission, 800 North Capitol Street, NW., Washington, DC 20573, or the
Area Representatives listed in paragraph (c) of this section. See also
Part 503 of this chapter.
(b) The Secretary will provide information and decisions, and will
accept and respond to requests, relating to the program activities of
the Office of the Secretary and of the Commission generally. Unless
otherwise provided in this chapter, any document, report, or other
submission required to be filed with the Commission by statute or the
Commission's rules and regulations relating to the functions of the
Commission or of the Office of the Secretary shall be filed with or
submitted to the Secretary.
(c) The Directors of the following bureaus and offices will provide
information and decisions, and will accept and respond to requests,
relating to the specific functions or program activities of their
respective bureaus and offices as set forth in this chapter; but only if
the dissemination of such information or decisions is not prohibited by
statute or the Commission's Rules of Practice and Procedure:
(1) Office of the Secretary;
(2) Office of the General Counsel;
(3) Office of Administrative Law Judges;
(4) Office of Equal Employment Opportunity;
(5) Office of the Inspector General;
(6) Office of Consumer Affairs and Dispute Resolution Services;
(7) Office of the Managing Director;
(i) Office of Budget and Finance;
(ii) Office of Human Resources;
[[Page 19]]
(iii) Office of Information Technology;
(iv) Office of Management Services;
(v) Bureau of Certification and Licensing;
(vi) Bureau of Trade Analysis;
(vii) Bureau of Enforcement; and
(viii) Area Representatives will provide information and decisions
to the public within their geographic areas, or will expedite the
obtaining of information and decisions from headquarters. The addresses
of these Area Representatives are as follows. Further information on
Area Representatives, including Internet e-mail addresses, can be
obtained on the Commission's Web site at http://www.fmc.gov.
Houston Area Representative, 650 Sam Houston Parkway, 230, Houston, TX
77060-5908.
Los Angeles Area Representative, P.O. Box 230, 839 South Beacon Street,
Room 320, San Pedro, CA 90733-0230.
New Orleans Area Representative, P.O. Box 700, Saint Rose, LA 70087-
0700.
New York Area Representative, Building No. 75, Room 205B, JFK
International Airport, Jamaica, NY 11430-1827.
Seattle Area Representative, The Fabulich Center, Suite 508, 3600 Port
of Tacoma Road, Tacoma, WA 98424-1044.
South Florida Area Representative, P.O. Box 813609, Hollywood, FL 33081-
3609.
(d) Submissions to bureaus and offices. Any document, report or
other submission required to be filed with the Commission by statute or
the Commission's rules and regulations relating to the specific
functions of the bureaus and offices shall be filed with or submitted to
the Director of such Bureau or Office.
[70 FR 7659, Feb. 15, 2005, as amended at 75 FR 29454, May 26, 2010]
Sec. Appendix A to Part 501--Federal Maritime Commission Organization
Chart
[GRAPHIC] [TIFF OMITTED] TR03JN10.006
[75 FR 31321, June 3, 2010]
[[Page 20]]
PART 502_RULES OF PRACTICE AND PROCEDURE--Table of Contents
Subpart A_General Information
Sec.
502.1 Scope of rules in this part.
502.2 Filing of documents.
502.3 Compliance with rules or orders of Commission.
502.4 Authentication of rules or orders of Commission.
502.5 Documents containing confidential materials.
502.6 Verification of documents.
502.7 Documents in foreign languages.
502.8 Denial of applications and notice thereof.
502.9 Suspension, amendment, etc., of rules in this part.
502.10 Waiver of rules in this part.
502.11 Ex parte communications.
502.12 Applicability of Federal Rules of Civil Procedure.
502.13 Privacy protection for filings made with the Commission.
502.14 Public hearings.
Subpart B_Appearance and Practice Before the Commission
502.21 Appearance.
502.22 Authority for representation.
502.23 Notice of appearance; substitution and withdrawal of
representative.
502.24 Practice before the Commission defined.
502.25 Presiding officer.
502.26 Attorneys at law.
502.27 Persons not attorneys at law.
502.29-502.30 [Reserved]
502.31 Statement of interest.
502.32 Former employees.
Exhibit No. 1 to Subpart B [Sec. Sec. 502.23, 502.26, 502.27] of Part
502--Notice of Appearance
Subpart C_Parties
502.41 Parties; how designated.
502.42 Bureau of Enforcement.
502.43 Substitution of parties.
Subpart D_Rulemaking
502.51 Initiation of procedure to issue, amend, or repeal a rule.
502.52 Notice of proposed rulemaking.
502.53 Participation in rulemaking.
502.54 Contents of rules.
502.55 Effective date of rules.
502.56 Negotiated rulemaking.
502.57 Service by parties of pleadings and other documents.
Subpart E_Private Complaints and Commission Investigations
502.61 Proceedings.
502.62 Private party complaints for formal adjudication.
502.63 Commission enforcement action.
502.64 Alternative dispute resolution.
502.65 Decision on default.
502.66 Amendments or supplements to pleadings.
502.67 Motion for more definite statement.
502.68 Motion for leave to intervene.
502.69 Motions.
502.70 Procedure for dispositive motions.
502.71 Procedure for non-dispositive motions.
502.72 Dismissals.
502.73 Brief of an amicus curiae.
502.74 Consolidation of proceedings.
502.75 Opportunity for informal settlement.
Subpart F_Petitions, Exemptions, and Orders to Show Cause
502.91 Order to show cause.
502.92 Exemption procedures--general.
502.93 Declaratory orders and fee.
502.94 Petitions--general and fee.
502.95 Proceedings involving assessment agreements.
Subpart G_Time
502.101 Computation.
502.102 Enlargement or reduction of time to file documents.
502.103 [Reserved]
502.104 Postponement of hearing.
502.105 Waiver of rules governing enlargement of time and postponement
of hearings.
Subpart H_Service of Documents
502.111-502.112 [Reserved]
502.113 Service of private party complaints.
502.114 Serving documents in Commission proceedings.
502.115 Service in rulemaking and petition proceedings.
502.116 Date of service.
502.117 Certificate of service.
Subpart I_Subpoenas
502.131 Requests; issuance.
502.132 Motions to quash or modify.
502.133 Attendance and mileage fees.
502.134 Service of subpoenas.
502.135 Subpoena of Commission staff personnel, documents or things.
502.136 Enforcement.
Subpart J_Disclosures and Discovery
502.141 Duty to disclose; general provisions governing discovery.
[[Page 21]]
502.142 Persons before whom depositions may be taken.
502.143 Depositions by oral examination.
502.144 Depositions by written questions.
502.145 Interrogatories to parties.
502.146 Producing documents, electronically stored information, and
tangible things, or entering onto land, for inspection and
other purposes.
502.147 Requests for admission.
502.148 Use of discovery procedures directed to Commission staff
personnel.
502.149 Use of depositions at hearings.
502.150 Motions to compel initial disclosures or compliance with
discovery requests; failure to comply with order to make
disclosure or answer or produce documents; sanctions;
enforcement.
502.151-502.169 [Reserved]
Subpart K [Reserved]
502.181-502.187 [Reserved]
Subpart L_Presentation of Evidence
502.201 Applicability and scope.
502.202 Right of parties to present evidence.
502.203 Burden of proof.
502.204 Evidence admissible.
502.205 Records in other proceedings.
502.206 Documents incorporated into the record by reference.
502.207 Stipulations.
502.208 Objection to public disclosure of information.
502.209 Prehearing conference.
502.210 Prehearing statements.
502.211 Notice of time and place of oral hearing; postponement of
hearing.
502.212 Exceptions to rulings of presiding officer unnecessary.
502.213 Official transcript.
502.214 Briefs; requests for findings.
502.215 Requests for enlargement of time for filing briefs.
502.216 Supplementing the record.
502.217 Record of decision.
Subpart M_Decisions; Appeals; Exceptions
502.221 Appeal from ruling of presiding officer other than orders of
dismissal in whole or in part.
502.222 [Reserved]
502.223 Decisions--Administrative law judges.
502.224 Separation of functions.
502.225 Decisions--Commission.
502.226 Decision based on official notice; public documents.
502.227 Exceptions to decisions or orders of dismissal of administrative
law judges; replies thereto; and review of decisions or orders
of dismissal by Commission.
502.228 Request for enlargement of time to file exceptions and replies
to exceptions.
502.229 Certification of record by presiding or other officer.
502.230 Reopening by Commission.
Subpart N_Oral Argument; Submission for Final Decision
502.241 Oral argument.
502.242 Submission to Commission for final decision.
502.243 Participation of absent Commissioner.
Subpart O_Reparation; Attorney Fees
502.251 Proof on award of reparation.
502.252 Reparation statements.
502.253 Interest in reparation proceedings.
502.254 Attorney's fees in complaint proceedings.
Exhibit No. 1 to Subpart O [Sec. 502.252] of Part 502--Reparation
Statement To Be Filed Pursuant to Rule 252
Subpart P_Reconsideration of Proceedings
502.261 Petitions for reconsideration and stay.
502.262 Reply to petition for reconsideration or stay.
Subpart Q_Refund or Waiver of Freight Charges
502.271 Special docket application for permission to refund or waive
freight charges.
Exhibit No. 1 to Subpart Q [Sec. 502.271(d)] of Part 502--Application
for Refund or Waiver of Freight Charges Due to Tariff on
Quoting Error
Subpart R_Nonadjudicatory Investigations
502.281 Investigational policy.
502.282 Initiation of investigations.
502.283 Order of investigation.
502.284 By whom conducted.
502.285 Investigational hearings.
502.286 Compulsory process.
502.287 Depositions.
502.288 Reports.
502.289 Noncompliance with investigational process.
502.290 Rights of witness.
502.291 Nonpublic proceedings.
Subpart S_Informal Procedure for Adjudication of Small Claims
502.301 Statement of policy.
502.302 Limitations of actions.
502.303 [Reserved]
502.304 Procedure and filing fee.
502.305 Applicability of other rules of this part.
[[Page 22]]
Exhibit No. 1 to Subpart S [Sec. 502.304(a)] of Part 502--Small Claim
Form for Informal Adjudication and Information Checklist
Exhibit No. 2 to Subpart S [Sec. 502.304(e)] of Part 502--Respondent's
Consent Form for Informal Adjudication
Subpart T_Formal Procedure for Adjudication of Small Claims
502.311 Applicability.
502.312 Answer to complaint.
502.313 Reply of complainant.
502.314 Additional information.
502.315 Request for oral hearing.
502.316 Intervention.
502.317 Oral argument.
502.318 Decision.
502.319 Date of service and computation of time.
502.320 Service.
502.321 Applicability of other rules of this part.
Subpart U_Alternative Dispute Resolution
502.401 Policy.
502.402 Definitions.
502.403 General authority.
502.404 Neutrals.
502.405 Confidentiality.
502.406 Arbitration.
502.407 Authority of the arbitrator.
502.408 Conduct of arbitration proceedings.
502.409 Arbitration awards.
502.410 Representation of parties.
502.411 Mediation and other alternative means of dispute resolution.
Subpart V_Implementation of the Equal Access to Justice Act in
Commission Proceedings
502.501 General provisions.
502.502 Information required from applicants.
502.503 Procedures for considering petitions.
Subpart W_Compromise, Assessment, Mitigation, Settlement, and Collection
of Civil Penalties
502.601 Purpose and scope.
502.602 Definitions.
502.603 Assessment of civil penalties: Procedure; criteria for
determining amount; limitations; relation to compromise.
502.604 Compromise of penalties: Relation to assessment proceedings.
502.605 Payment of penalty: Method; default.
Appendix A to Subpart W of Part 502--Example of Compromise Agreement To
Be Used Under 46 CFR 502.604
Subpart X_Paperwork Reduction Act
502.991 OMB control numbers assigned pursuant to the Paperwork Reduction
Act.
Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-
596; 5 U.S.C. 571-584; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 U.S.C. 9701;
46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 40701-40706,
41101-41109, 41301-41309, 44101-44106; 5 CFR part 2635.
Source: 49 FR 44369, Nov. 6, 1984, unless otherwise noted.
Subpart A_General Information
Sec. 502.1 Scope of rules in this part.
The rules in this part govern procedure before the Federal Maritime
Commission, hereinafter referred to as the ``Commission,'' under the
Merchant Marine Act, 1920, Merchant Marine Act, 1936, Shipping Act of
1984, as amended by the Ocean Shipping Reform Act of 1998,
Administrative Procedure Act, and related acts, except that subpart R of
this part does not apply to proceedings subject to sections 7 and 8 of
the Administrative Procedure Act, which are to be governed only by
subparts A to Q inclusive, of this part. They shall be construed to
secure the just, speedy, and inexpensive determination of every
proceeding. To this end, all persons involved in proceedings conducted
under the rules of this part shall be required to consider at an early
stage of the proceeding whether resort to alternative dispute resolution
techniques would be appropriate or useful. [Rule 1.]
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64
FR 7807, Feb. 17, 1999]
Sec. 502.2 Filing of documents.
(a) Requirement for filing. Documents relating to any matter pending
before the Commissioners for decision or to any matter pending before
the Commission which is likely to come before the Commissioners for
decision, whether or not relating to proceedings governed by this part,
must be filed with the Secretary, Federal Maritime Commission. Such
documents should not be filed with or separately submitted to the
offices of individual Commissioners. Distribution to Commissioners and
other agency personnel is handled
[[Page 23]]
by the Office of the Secretary to ensure that persons in decision-making
and advisory positions receive identical copies of submissions in a
uniform and impersonal manner and to avoid the possibility of ex parte
communications within the meaning of Sec. 502.11. These considerations
apply to informal and oral communications as well, such as requests for
expedited consideration.
(b) Date and time of filing. (1) Documents may be hand-delivered at
the Commission during normal business hours from 8:30 a.m. to 5 p.m.,
Monday through Friday.
(2) Except with respect to initial filing of complaints pursuant to
Sec. Sec. 502.62 and 502.63, and claims pursuant to Sec. Sec. 502.301
and 502.302, the date of filing shall be either the date on which the
pleading, document, or paper is physically delivered to the Commission
by a party, the date on which a party certifies it to have been
deposited in the mail or delivered to a courier, or the date of e-mail
transmission.
(c) Place of filing. Except for exhibits filed pursuant to Sec.
502.118(b)(4) and petitions for review of final agency orders served on
the Commission pursuant to 28 U.S.C. 2112(a), all documents required to
be filed in, and correspondence relating to proceedings governed by this
part must be addressed and delivered to ``Secretary, Federal Maritime
Commission, 800 N. Capitol Street, NW., Washington, DC 20573-0001'' or
to [email protected].
(d) Service of petition for review of Commission order. Petitions
for review of final agency orders served on the Commission pursuant to
28 U.S.C. 2112(a) must be addressed and delivered to ``General Counsel,
Office of the General Counsel, Federal Maritime Commission, 800 N.
Capitol Street, NW., Washington, DC 20573-0001.''
(e) Number of copies. Parties filing documents in proceedings before
the Commission or an administrative law judge must file an original,
signed document and five (5) copies, and, if possible, a PDF of the
document. The PDF document should be sent by e-mail to [email protected]
or submitted on an electronic storage device (such as compact disc or
USB flash drive).
(f) E-mail transmission of filings. (1) Initial filing of complaints
and claims pursuant to Sec. Sec. 502.62-502.63 and 502.301-502.302 must
be accomplished in the traditional manner on paper, rather than by e-
mail.
(2) Pursuant to Sec. 502.5 of this subpart, confidential filings
must be accomplished in the traditional manner on paper, rather than by
e-mail.
(3) If a filing is submitted electronically as a PDF attached to an
e-mail, the original, signed document, and five (5) copies must be
received by the Secretary within seven working days. The e-mail
transmitting the PDF copy of a document must include a certification by
the filing party that the electronic copy is a true and correct copy of
the paper original, and that the paper signed original and five (5)
copies are being filed with the Secretary of the Commission. The e-mail
Subject Line must include the docket number of the proceeding and be
sent to [email protected].
(g) Filing after announcement of Commission meeting prohibited. No
filings relating to matters scheduled for a Commission meeting will be
accepted by the Secretary if submitted subsequent to public announcement
of the particular meeting, except that the Commission, on its own
initiative, or pursuant to a written request, may in its discretion,
permit a departure from this limitation for exceptional circumstances.
(See Sec. 503.82(e) of this chapter.)
(h) Return of rejected filings. Any pleading, document, writing, or
other paper submitted for filing which is rejected because it does not
conform to the rules in this part will be returned to the sender.
(i) Continuing obligation to provide contact information. All
parties and representatives are under a continuing obligation to provide
the Commission and all other parties in a proceeding with accurate and
current contact information including a street address, telephone
number, and e-mail address.
(j) Form of documents. All papers to be filed under the rules in
this part must be clear and legible, dated, show the docket number and
title of the proceeding, document title, and include the title, if any,
and address of the authorized signer or representative. An
[[Page 24]]
original signed in ink must be provided. Text shall appear on only one
side of the paper and must be double spaced except that quotations of
fifty or more words should be single-spaced and indented on the left and
right without quotation marks. The paper must be strong and durable, of
letter size (8\1/2\ x 11 in. or 215.9 x 279.4 mm) or A4 size (8.27 x
11.69 in. or 210 x 297 mm), with a margin of at least one inch on all
four sides. Documents must be printed in clear type, and the type size,
including footnotes and endnotes, must not be smaller than 12-point.
(k) Discovery materials excluded from filing requirement. (1) The
following discovery requests and responses must not be filed with the
Secretary until they are used in the proceeding, or the Commission or
presiding officer orders filing:
(i) Notice and transcript of depositions;
(ii) Interrogatories;
(iii) Requests for documents or tangible things or to permit entry
onto designated land or other property;
(iv) Requests for admission; and
(v) Expert witness reports.
(2) The party that served the notice of deposition or discovery
papers must preserve and ensure the integrity of original transcripts
and discovery papers for use by the Commission or the presiding officer.
A party that wants to use any part or all of discovery requests and
responses in the proceeding must include the part or all of the
documents in an appendix to be filed with the motion or other paper that
refers to those documents. A party filing an appendix exceeding 100
pages should file an original and two (2) copies on paper and, if
possible, also file such appendix by e-mail or on an electronic storage
device. [Rule 2.]
[76 FR 10259, Feb. 24, 2011]
Sec. 502.3 Compliance with rules or orders of Commission.
Persons named in a rule or order shall notify the Commission during
business hours on or before the day on which such rule or order becomes
effective whether they have complied therewith, and if so, the manner in
which compliance has been made. [Rule 3.]
[76 FR 10260, Feb. 24, 2011]
Sec. 502.4 Authentication of rules or orders of Commission.
All rules or orders issued by the Commission in any proceeding
covered by this part shall, unless otherwise specifically provided, be
signed by the Secretary of the Commission in the name of the Commission.
[Rule 4.]
[76 FR 10260, Feb. 24, 2011]
Sec. 502.5 Documents containing confidential materials.
Except as otherwise provided in the rules of this part, all filings
that contain information for which confidential treatment is sought or
information previously designated as confidential pursuant to Sec. Sec.
502.13, 502.141(j)(1)(vii), 502.208, or any other rules of this part, or
for which a request for protective order pursuant to Sec. 502.141(j) is
pending, are subject to the following requirements:
(a) Two versions of filings. Two versions of documents must be filed
if a document:
(1) Contains information previously designated by the Commission or
presiding officer as confidential; or
(2) Contains information for which confidential treatment is sought.
Except as specified below, both versions must be filed in accordance
with the requirements of Sec. 502.2.
(i) Confidential version. The confidential filing must include a
cover page marked ``Confidential-Restricted.'' The specific confidential
information must be conspicuously and clearly marked on each page, for
example by highlighting or bracing. If confidentiality will end on a
date certain or upon the occurrence of an event, this must be stated on
the cover, e.g., ``CONFIDENTIAL UNTIL [DATE],'' or ``CONFIDENTIAL DURING
JUDICIAL REVIEW.'' The confidential version of a document may be
provided to the presiding officer by email but should not be filed with
the Office of the Secretary by email.
(ii) Public version. Within three business days of filing a
confidential version of a filing, a public version
[[Page 25]]
must be filed. The public version must indicate on the cover page and on
each affected page ``Public Version--confidential materials excluded.''
The public version must clearly indicate any information withheld, for
example with blackout or braces, and its pagination and depiction of
text on each page must be identical to that of the confidential version.
For example, the confidential filing may read: ``On January 1, 2005,
complainant entered into a {25{time} year lease with respondent for a
monthly rent of {$1,000{time} .'' The public version would read: ``On
January 1, 2005, complainant entered into a { {time} year lease with
respondent for a monthly rent of { {time} .'' Public versions of
confidential filings may be filed with the Secretary and presiding
officer by email.
(iii) Exhibits. Confidential information in exhibits should be
marked as specified above. If marking within the text is not feasible,
individual pages may be replaced in the public version with a page
indicating that confidential material is excluded. Entire exhibits
should not be excluded, only those pages containing confidential
material.
(b) Motion for confidential treatment. If confidentiality is sought
for a filing containing information not previously designated as
confidential by the Commission or presiding officer, the confidential
filing must be accompanied by a motion justifying confidential
treatment. This motion must identify the specific information in a
document for which protection is sought and show good cause by
demonstrating that the information is a trade secret or other
confidential research, development, or commercial information pursuant
to Sec. 502.141(j)(1)(vii). The burden is on the party that wants to
protect the information to show good cause for its protection. A motion
is not required for information, including personal privacy and
financial account numbers, redacted pursuant to Sec. 502.13, Privacy
protection for filings made with the Commission.
(c) Use of confidential information. Confidential treatment afforded
by this section is subject to the proviso that any information
designated as confidential may be used by the administrative law judge
or the Commission if deemed necessary to a decision in the proceeding.
[Rule 5.]
[80 FR 14318, Mar. 19, 2015, as amended at 81 FR 93835, Dec. 22, 2016]
Sec. 502.6 Verification of documents.
(a) If a party is represented by an attorney or other person
qualified to practice before the Commission under the rules in this
part, each pleading, document or other paper of such party filed with
the Commission shall be signed by at least one person of record admitted
to practice before the Commission in his or her individual name, whose
address shall be stated. Except when otherwise specifically provided by
rule or statute, such pleading, document or paper need not be verified
or accompanied by affidavit. The signature of a person admitted or
qualified to practice before the Commission constitutes a certificate by
the signer that the signer has read the pleading, document or paper;
that the signer is authorized to file it; that to the best of the
signer's knowledge, information, and belief formed after reasonable
inquiry, the filing is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification,
or reversal of existing law; and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or
needless increase in the cost of litigation. For a willful violation of
this section, a person admitted or qualified to practice before the
Commission may be subjected to appropriate disciplinary action.
(b) If a party is not represented by a person admitted or qualified
to practice before the Commission, each pleading, document or other
paper of such party filed with the Commission shall be signed and
verified under oath by the party or by a duly authorized officer or
agent of the party, whose address and title shall be stated.
(c) Wherever, under any rules of this part, any matter is required
or permitted to be supported, evidenced, established, or proved by the
sworn declaration, verification, certificate, statement, oath, or
affidavit, in writing of the person making the same (other than a
deposition underSec. 502.143 or Sec. 502.144), such matter may, with
like
[[Page 26]]
force and effect, be supported, evidenced, established, or proved by the
unsworn declaration, certificate, verification, or statement, in writing
of such person which is subscribed by such person, as true under penalty
of perjury, in substantially the following form:
(1) If executed without the United States: ``I declare (or certify,
verify, or state) under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct.''
(2) If executed within the United States, its territories,
possessions, or commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and
correct.'' [Rule 6.]
[76 FR 10261, Feb. 24, 2011, as amended at 81 FR 93835, Dec. 22, 2016]
Sec. 502.7 Documents in foreign languages.
Every document, exhibit, or other paper written in a language other
than English and filed with the Commission or offered in evidence in any
proceeding before the Commission under this part or in response to any
rule or order of the Commission pursuant to this part, shall be filed or
offered in the language in which it is written and shall be accompanied
by an English translation thereof duly verified under oath to be an
accurate translation. [Rule 7.]
Sec. 502.8 Denial of applications and notice thereof.
Except in affirming a prior denial or where the denial is self-
explanatory, prompt written notice will be given of the denial in whole
or in part of any written application, petition, or other request made
in connection with any proceeding under this part, such notice to be
accompanied by a simple statement of procedural or other grounds for the
denial, and of any other or further administrative remedies or recourse
applicant may have where the denial is based on procedural grounds.
[Rule 8.]
Sec. 502.9 Suspension, amendment, etc., of rules in this part.
The rules in this part may, from time to time, be suspended,
amended, or revoked, in whole or in part. Notice of any such action will
be published in the Federal Register. [Rule 9.]
Sec. 502.10 Waiver of rules in this part.
Except to the extent that such waiver would be inconsistent with any
statute, any of the rules in this part, except Sec. Sec. 502.11 and
502.221, may be waived by the Commission or the presiding officer in any
particular case to prevent undue hardship, manifest injustice, or if the
expeditious conduct of business so requires. [Rule 10.]
[49 FR 44369, Nov. 6, 1984, as amended at 81 FR 93835, Dec. 22, 2016]
Sec. 502.11 Ex parte communications.
(a) No person who is a party to or an agent of a party to any
proceeding as defined in Sec. 502.61 or who directly participates in
any such proceeding and no interested person outside the Commission
shall make or knowingly cause to be made to any Commission member,
administrative law judge, or Commission employee who is or may
reasonably be expected to be involved in the decisional process of any
such proceeding, an ex parte communication relevant to the merits of the
proceeding;
(b) No Commission member, administrative law judge, or Commission
employee who is or may reasonably be expected to be involved in the
decisional process of any agency proceeding, shall make or knowingly
cause to be made to any interested persons outside the Commission or to
any party to the proceeding or its agent or to any direct participant in
a proceeding, an ex parte communication relevant to the merits of the
proceeding. This prohibition shall not be construed to prevent any
action authorized by paragraphs (e), (f) and (g) of this section;
(c) ``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
requests for status reports or
[[Page 27]]
communications regarding purely procedural matters or matters which the
Commission or member thereof, administrative law judge, or Commission
employee is authorized by law or these rules to dispose of on an ex
parte basis;
(d) Any Commission member, administrative law judge, or Commission
employee who is or may reasonably be expected to be involved in the
decisional process of any proceeding who receives, or who makes or
knowingly causes to be made, an ex parte communication shall promptly
transmit to the Secretary of the Commission:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communications;
and
(3) All written responses and memoranda stating the substance of all
oral responses to the materials described in paragraphs (d)(1) and
(d)(2) of this section;
(e) The Secretary shall place the materials described in paragraph
(d) of this section in the correspondence part of the public docket of
the proceeding and may take such other action as may be appropriate
under the circumstances;
(f) Upon receipt of an ex parte communication knowingly made or
knowingly caused to be made by a party to a proceeding, the Commission
or the presiding officer may, to the extent consistent with the
interests of justice and the policy of the statutes administered by the
Commission, require the party to show cause why his or her claim or
interest in the proceeding should not be dismissed, denied, disregarded,
or otherwise adversely affected on account of the making of such
communication;
(g) An ex parte communication shall not constitute a part of the
record for decision. The Commission or the presiding officer may, to the
extent consistent with the interests of justice and the policy of the
statutes administered by the Commission, consider a violation of
paragraph (b) of this section sufficient grounds for a decision adverse
to a party who has knowingly caused such violation to occur and may take
such other action as may be appropriate under the circumstances. [Rule
11.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 64
FR 7807, Feb. 17, 1999; 64 FR 23551, May 3, 1999; 64 FR 33762, June 24,
1999]
Sec. 502.12 Applicability of Federal Rules of Civil Procedure.
In proceedings under this part, for situations which are not covered
by a specific Commission rule, the Federal Rules of Civil Procedure will
be followed to the extent that they are consistent with sound
administrative practice. [Rule 12.]
[58 FR 27210, May 7, 1993, as amended at 64 FR 7807, Feb. 17, 1999]
Sec. 502.13 Privacy protection for filings made with the Commission.
(a) Redacted filings. Unless the Commission or presiding officer
orders otherwise, in an electronic or paper filing that contains an
individual's social-security number, taxpayer-identification number, or
birth date, the name of an individual known to be a minor, or a
financial-account number, a party or nonparty making the filing may
include only:
(1) The last four digits of the social-security number and taxpayer-
identification number;
(2) The year of the individual's birth;
(3) The minor's initials; and
(4) The last four digits of the financial-account number.
(b) Exemptions from the redaction requirement. The redaction
requirement does not apply to the following:
(1) The record of an administrative or agency proceeding;
(2) The record of a state-court proceeding;
(3) The record of a court or tribunal, if that record was not
subject to the redaction requirement when originally filed; and
(4) A filing covered by paragraph (c) of this section.
(c) Filings made under seal. The Commission or presiding officer may
order that a filing be made under seal without redaction. The Commission
or presiding officer may later unseal the filing or order the person who
made the filing to file a redacted version for the public record.
[[Page 28]]
(d) Protective orders. For good cause, the Commission or presiding
officer may by order in a case:
(1) Require redaction of additional information; or
(2) Limit or prohibit a nonparty's remote electronic access to a
document filed with the Commission.
(e) Option for additional unredacted filing under seal. A person
making a redacted filing may also file an unredacted copy under seal.
The Commission must retain the unredacted copy as part of the record.
(f) Option for filing a reference list. A filing that contains
redacted information may be filed together with a reference list that
identifies each item of redacted information and specifies an
appropriate identifier that uniquely corresponds to each item listed.
The list must be filed under seal and may be amended as of right. Any
reference in the case to a listed identifier will be construed to refer
to the corresponding item of information.
(g) Waiver of protection of identifiers. A person waives the
protection of this rule as to the person's own information by filing it
without redaction and not under seal. [Rule 13.]
[76 FR 10261, Feb. 24, 2011]
Sec. 502.14 Public hearings.
The Commission may call informal public hearings, not required by
statute, to be conducted under the rules in this part where applicable,
for the purpose of rulemaking or to obtain information necessary or
helpful in the determination of its policies or the carrying out of its
duties, and may require the attendance of witnesses and the production
of evidence to the extent permitted by law. [Rule 141.]
[49 FR 44369, Nov. 6, 1984. Redesignated at 81 FR 93836, Dec. 22, 2016]
Subpart B_Appearance and Practice Before the Commission
Sec. 502.21 Appearance.
(a) Parties. A party may appear in person or by an officer, partner,
or regular employee of the party, or by or with counsel or other duly
qualified representative, in any proceeding under the rules in this
part. Any party or his or her representative may testify, produce and
examine witnesses, and be heard upon brief and at oral argument if oral
argument is granted.
(b) Non-parties. One who appears in person before the Commission or
a representative thereof, either by compulsion from, or request or
permission of the Commission, shall be accorded the right to be
accompanied, represented, and advised by counsel.
(c) Special appearance. An appearance may be either general, that
is, without reservation, or it may be special, that is, confined to a
particular issue or question. A person who desires to appear specially
must expressly so state when entering the appearance, and, at that time,
shall also state the questions or issues to which the appearance is
confined; otherwise the appearance will be considered general. [Rule
21.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7807, Feb. 17, 1999; 78
FR 45069, July 26, 2013]
Sec. 502.22 Authority for representation.
Any individual acting in a representative capacity in any proceeding
before the Commission may be required to show his or her authority to
act in such capacity. [Rule 22.]
Sec. 502.23 Notice of appearance; substitution and withdrawal of
representative.
(a) Upon filing of a complaint instituting proceedings or filing of
an answer to an order or complaint, the party filing shall notify the
Commission of the name(s), address(es), telephone number(s), and email
address(es) of the person or persons who will represent the party in the
pending proceeding. Each person who appears in a representative capacity
in a proceeding must deliver a written notice of appearance to the
Secretary stating for whom the appearance is made. Such notice must
indicate whether the representative wishes to be notified of notices,
orders and decisions by either email or facsimile transmission. All
appearances shall be noted in the record. Motions for leave to intervene
must indicate the name(s), address(es), telephone number(s), and email
address(es) of the person or persons who will represent the intervenor
in the
[[Page 29]]
pending proceeding if the motion is granted.
(b) A Notice of Appearance should follow the form set forth in
Exhibit No. 1 to this subpart.
(c) An attorney must represent in the Notice of Appearance that he
is admitted to practice and in good standing. A non-attorney must
describe his or her authority to act in such capacity.
(d) If an attorney or other representative of record is superseded,
there shall be filed a stipulation of substitution signed both by the
attorney(s) or representative(s) and by the party, or a written notice
from the party to the Commission with a Notice of Appearance included.
Substitution of counsel or representative will not, by itself, be
considered good cause for delaying a proceeding.
(e) If an attorney wishes to withdraw from representing a party, and
written consent is not obtained, or if the party is not otherwise
represented, the withdrawing attorney shall file an appropriate motion
seeking permission to withdraw and provide appropriate reasons for
making the motion. Such motion will be decided in consideration of the
factors and standards set forth in Rule 1.16 of the American Bar
Association's Model Rules of Professional Conduct and by the courts.
[Rule 23.]
[64 FR 7807, Feb. 17, 1999, as amended at 78 FR 45069, July 26, 2013]
Sec. 502.24 Practice before the Commission defined.
(a) Practice before the Commission shall be deemed to comprehend all
matters connected with the presentation of any matter to the Commission,
including the preparation and filing of necessary documents, and
correspondence with and communications to the Commission, on one's own
behalf or representing another. (See Sec. 502.32).
(b) The term ``Commission'' as used in this subpart includes any
bureau, division, office, branch, section, or unit of the Federal
Maritime Commission and any officer or employee of such bureau,
division, office, branch, section, or unit. [Rule 24.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7807, Feb. 17, 1999]
Sec. 502.25 Presiding officer.
(a) Definition. Presiding officer includes, where applicable, one or
more members of the Commission or an administrative law judge.
(b) Functions and powers. The officer designated to hear a case
shall have the following powers:
(1) Notices of hearing, subpoenas, depositions, pleadings and scope
of proceedings. To arrange and give notice of hearing; sign and issue
subpoenas authorized by law; take or cause depositions to be taken; rule
upon proposed amendments or supplements to pleadings; and, delineate the
scope of a proceeding instituted by order of the Commission by amending,
modifying, clarifying, or interpreting said order.
(2) Alternative means of dispute resolution and conferences for
settlement or simplification of issues. To inform the parties as to the
availability of one or more alternative means of dispute resolution,
encourage use of such methods, and require consideration of their use at
an early state of the proceeding; hold conferences for the settlement or
simplification of the issues by consent of the parties or by the use of
alternative means of dispute resolution; transmit the request of parties
for the appointment of a mediator or settlement judge, as provided by
Sec. 502.91; and require the attendance at any such conference pursuant
to 5 U.S.C 556(c)(8), of at least one representative of each party who
has authority to negotiate concerning resolution of issues in
controversy.
(3) Hearings, evidence, procedural requests, motions, oaths and
affirmations, and witnesses. To regulate the course of a hearing;
prescribe the order in which evidence shall be presented; dispose of
procedural requests or similar matters; hear and rule upon motions;
administer oaths and affirmations; examine witnesses; direct witnesses
to testify or produce evidence available to them; rule upon offers of
proof and receive relevant, material, reliable, and probative evidence;
act upon motions to intervene; permit submission of facts, arguments,
offers of settlement, and proposals of adjustment; and, if the parties
so request, issue formal opinions providing tentative evaluations of
[[Page 30]]
the evidence submitted; hear oral argument at the close of the
testimony.
(4) Time management and other matters. To fix the time for filing
briefs, motions, and other documents to be filed in connection with
hearings and the administrative law judge's decision thereon, except as
otherwise provided by the rules in this part; act upon petitions for
enlargement of time to file such documents, including answers to formal
complaints; and dispose of any other matter that normally and properly
arises in the course of proceedings.
(5) Exclusion of persons from a hearing. To exclude any person from
a hearing for disrespectful, disorderly, or inappropriate language or
conduct.
(c) Functions and powers pursuant to Reorganization Plan No. 7 of
1961. All of the functions delegated in subparts A to Q and subpart T of
this part, inclusive, to the Chief Judge, presiding officer, or
administrative law judge include the functions with respect to hearing,
determining, ordering, certifying, reporting, or otherwise acting as to
any work, business, or matter, pursuant to the provisions of section 105
of Reorganization Plan No. 7 of 1961. [Rule 147.]
(d) Designation of administrative law judge. An administrative law
judge will be designated by the Chief Administrative Law Judge to
preside at hearings required by statute, in rotation so far as
practicable, unless the Commission or one or more members thereof shall
preside, and will also preside at hearings not required by statute when
designated to do so by the Commission.
(e) Attachment of functions. In proceedings handled by the Office of
Administrative Law Judges, its functions shall attach:
(1) Upon the service by the Commission of a Notice of Filing of
Complaint and Assignment of complaint filed pursuant to Sec. 502.62, or
Sec. 502.182, or upon referral under subpart T of this part; or
(2) Upon reference by the Commission of a petition for a declaratory
order pursuant to Sec. 502.68; or
(3) Upon forwarding for assignment by the Office of the Secretary of
a special docket application pursuant to Sec. 502.271; or
(4) Upon the initiation of a proceeding and ordering of hearing
before an administrative law judge pursuant to Sec. 502.63.
(f) Unavailability. If the presiding officer assigned to a
proceeding becomes unavailable, the Commission, or Chief Judge (if such
presiding officer was an administrative law judge), shall designate a
qualified officer to take his or her place. Any motion predicated upon
the substitution of a new presiding officer for one originally
designated shall be made within ten (10) days after notice of such
substitution.
(g) Disqualification of presiding or participating officer. Any
presiding or participating officer may at any time withdraw if he or she
deems himself or herself disqualified, in which case there will be
designated another presiding officer. If a party to a proceeding, or its
representative, files a timely and sufficient affidavit of personal bias
or disqualification of a presiding or participating officer, the
Commission will determine the matter as a part of the record and
decision in the case. [Rule 25.]
[78 FR 45069, July 26, 2013]
Sec. 502.26 Attorneys at law.
Attorneys at law who are admitted to practice before the Federal
courts or before the courts of any State or Territory of the United
States may practice before the Commission. An attorney practicing before
the Commission is expected to conform to the standards of conduct set
forth in the American Bar Association's Model Rules of Professional
Conduct in addition to the specific requirements of this chapter. [Rule
26.]
[64 FR 7807, Feb. 17, 1999, as amended at 78 FR 45069, July 26, 2013]
Sec. 502.27 Persons not attorneys at law.
(a)(1) Any person who is not an attorney at law may be admitted to
practice before the Commission if he or she is a citizen of the United
States and files proof to the satisfaction of the Commission that he or
she possesses the necessary legal, technical, or other qualifications to
render valuable service before the Commission and is otherwise competent
to advise and assist in the presentation of matters before the
Commission. Applications by persons
[[Page 31]]
not attorneys at law for admission to practice before the Commission
shall be made on the forms prescribed therefor, which may be obtained
from the Secretary of the Commission, and shall be addressed to the
Federal Maritime Commission, Washington, DC, 20573, and shall be
accompanied by a fee as required by Sec. 503.43(e) of this chapter.
(2) The application for admission to practice before the Commission
by persons not attorneys at law can be downloaded from the Commission's
Web site, www.fmc.gov, or acquired from the Secretary of the Commission
and must be accompanied by a fee as required by Sec. 503.43(e) of this
chapter. The application should be sent to the Federal Maritime
Commission, Washington, DC 20573.
(3) All applicants must complete the following certification:
I. _____________ (Name) ____________, certify under penalty of
perjury under the laws of the United States, that I have not been
convicted, after September 1, 1989, of any Federal or State offense
involving the distribution or possession of a controlled substance, or
that if I have been so convicted, I am not ineligible to receive Federal
benefits, either by court order or operation of law, pursuant to 21
U.S.C. 862.
(b) The Commission, in its discretion, may call upon the applicant
for a full statement of the nature and extent of his or her
qualifications. If the Commission is not satisfied as to the sufficiency
of the applicant's qualifications, it will so notify him or her by
registered mail, whereupon he or she shall be granted a hearing upon
request for the purpose of showing his or her qualifications. If the
applicant presents to the Commission no request for such hearing within
twenty (20) days after receiving the notification above referred to, his
or her application shall be acted upon without further notice.
(c) The Commission may deny admission to, suspend, or prohibit any
person from practice before the Commission who it finds does not possess
the requisite qualifications to represent others or is lacking in
character, integrity, or proper professional conduct. Non-attorneys who
have been admitted to practice before the Commission may be excluded
from such practice only after being afforded an opportunity to be heard.
(d) A non-attorney may not practice before the Commission unless and
until an application has been approved.
(e) Paragraph (d) of this section shall not apply, however, to any
person who appears before the Commission on his or her own behalf or on
behalf of any corporation, partnership, or association of which he or
she is a partner, officer, or regular employee. [Rule 27.]
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 42194, Oct. 18, 1990; 58
FR 58976, Nov. 5, 1993; 62 FR 6132, Feb. 11, 1997; 64 FR 7807, Feb. 17,
1999; 76 FR 10261, Feb. 24, 2011; 78 FR 45070, July 26, 2013]
Sec. Sec. 502.29-502.30 [Reserved]
Sec. 502.31 Statement of interest.
The Commission may call upon any practitioner for a full statement
of the nature and extent of his or her interest in the subject matter
presented by him or her before the Commission. [Rule 31.]
Sec. 502.32 Former employees.
Title V of the Ethics in Government Act proscribes certain
activities by certain former Federal employees (18 U.S.C. 207). In
summary, as applied to former Commission employees, the restrictions and
basic procedures are as follows:
(a) Restrictions. (1) No former Commission employee may represent in
any formal or informal appearance or make any oral or written
communication with intent to influence a U.S. Government agency in a
particular matter involving a specific party or parties in which the
employee participated personally and substantially while with the
Commission.
(2) No former Commission employee may, within two years of
terminating Commission employment, act as a representative in the manner
described in paragraph (a)(1) of this section, as to a particular matter
which was actually pending under the employee's official responsibility
within one year prior to termination of the employment.
(3) Former senior Commission employees (defined as Commissioners and
[[Page 32]]
members of the Senior Executive Service as designated by the Office of
Government Ethics under 18 U.S.C. 207(d)(1)) may not, for two years
after terminating Commission employment, assist in representing a person
by personal presence at an appearance before the Government on a matter
in which the former employee had participated personally and
substantially while at the Commission.
(4) Former senior Commission employees, as defined in paragraph
(a)(3) of this section, are barred for one year from representing
parties before the Commission or communicating with intent to influence
the Commission, regardless of prior involvement in the particular
proceeding.
(b) Prior consent for appearance. (1) Prior to making any
appearance, representation or communication described in paragraph (a)
of this section, and, in addition to other requirements of this subpart,
every former employee must apply for and obtain prior written consent of
the Commission for each proceeding or matter in which such appearance,
representation, or communication is contemplated. Such consent will be
given only if the Commission determines that the appearance,
representation or communication is not prohibited by the Act, this
section or other provisions of this chapter.
(2) To facilitate the Commission's determination that the intended
activity is not prohibited, applications for written consent shall:
(i) Be directed to the Commission, state the former connection of
the applicant with the Commission and date of termination of employment,
and identify the matter in which the applicant desires to appear; and
(ii) Be accompanied by an affidavit to the effect that the matter
for which consent is requested is not a matter in which the applicant
participated personally and substantially while at the Commission and,
as made applicable by paragraph (a) of this section, that the particular
matter as to which consent is requested was not pending under the
applicant's official responsibility within one year prior to termination
of employment and that the matter was not one in which the former
employee had participated personally and substantially while at the
Commission. The statements contained in the affidavit shall not be
sufficient if disproved by an examination of the files and records of
the case.
(3) The applicant shall be promptly advised as to his or her
privilege to appear, represent or communicate in the particular matter,
and the application, affidavit and consent, or refusal to consent, shall
be filed by the Commission in its records relative thereto.
(c) Reporting possible violations. Possible violations of section
207 of Title 18 of the United States Code, 18 U.S.C. 207, by the
Commission's former officers and employees are required to be reported
to the Attorney General and the Office of Government Ethics, pursuant to
the regulations of the Office of Government Ethics at 5 CFR 2641.103(a)
and 5 CFR 2638.603.
(d) Partners or associates. (1) In any case in which a former
member, officer, or employee of the Commission is prohibited under this
section from practicing, appearing, or representing anyone before the
Commission in a particular Commission matter, any partner or legal or
business associate of such former member, officer, or employee shall be
prohibited from (i) utilizing the services of the disqualified former
member, officer, or employee in connection with the matter, (ii)
discussing the matter in any manner with the disqualified former member,
officer, or employee, and (iii) sharing directly or indirectly with the
disqualified former member, officer, or employee in any fees or revenues
received for services rendered in connection with such matter.
(2) The Commission may require any practitioner or applicant to
become a practitioner to file an affidavit to the effect that the
practitioner or applicant will not: (i) Utilize the service of, (ii)
discuss the particular matter with, or (iii) share directly or
indirectly any fees or revenues received for services provided in the
particular matter, with a partner, fellow employee, or legal or business
associate who is a former member, officer or employee of the Commission
and who is either permanently or temporarily precluded from practicing,
appearing or representing
[[Page 33]]
anyone before the Commission in connection with the particular matter;
and that the applicant's employment is not prohibited by any law of the
United States or by the regulations of the Commission. [Rule 32.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 77
FR 61524, Oct. 10, 2012]
Sec. Exhibit No. 1 to Subpart B [Sec. Sec. 502.23, 502.26, 502.27] of
Part 502--Notice of Appearance
Federal Maritime Commission
Docket No. _____________:
Please enter my appearance in this proceeding as counsel for
____________.
Indicate authority for representation [choose one of the following]:
__ I am an attorney admitted to practice and in good standing before
the courts of the State of ___________.
__ I am admitted to practice before the Commission pursuant to 46
CFR 502.27.
__ I am an officer, director, or regular employee of the party.
I request to be informed of service of notices, orders and decisions
in this proceeding by [choose one of the following]:
[ ] electronic mail
[ ] facsimile transmission
[ ] regular mail
________________________________________________________________________
[Name]
________________________________________________________________________
[Address]
________________________________________________________________________
[Telephone No.]
________________________________________________________________________
[Fax No.]
________________________________________________________________________
[Email address]
________________________________________________________________________
[Signature]
[78 FR 45070, July 26, 2013]
Subpart C_Parties
Sec. 502.41 Parties; how designated.
The term ``party,'' whenever used in this part, includes any natural
person, corporation, association, firm, partnership, trustee, receiver,
agency, public or private organization, government agency, or unit
thereof representing said agency. A party who files a complaint under
Sec. 502.62 shall be designated as ``complainant.'' A party against
whom relief or other affirmative action is sought in a proceeding
commenced under Sec. 502.62 or Sec. 502.73 or a party named in an
order of investigation issued by the Commission shall be designated as
``respondent,'' except that in investigations instituted under section
11(c) of the Shipping Act of 1984, 46 U.S.C. 41302(a)-(b), 41307(b), the
parties to the agreement shall be designated as ``proponents'' and the
parties protesting the agreement shall be designated as ``protestants.''
A person who has been permitted to intervene under Sec. 502.68 shall be
designated as ``intervenor.'' All parties and persons designated in this
section shall be parties to the proceeding. No person other than a party
or its representative may introduce evidence or examine witnesses at
hearings. [Rule 41].
[78 FR 45070, July 26, 2013]
Sec. 502.42 Bureau of Enforcement.
The Bureau of Enforcement shall be a party to proceedings upon
designation by the Commission or upon leave to intervene granted
pursuant to Sec. 502.68. The Bureau's representative shall be served
with copies of all papers, pleadings, and documents in every proceeding
in which the Bureau is a party. The Bureau shall actively participate in
any proceeding to which it is a party, to the extent required in the
public interest, subject to the separation of functions required by
section 5(c) of the Administrative Procedure Act. [Rule 42]
[78 FR 45071, July 26, 2013]
Sec. 502.43 Substitution of parties.
The Commission or presiding officer may order an appropriate
substitution of parties in the event of a party's death, incompetence,
transfer of its interest, or other appropriate circumstance. [Rule 43]
[78 FR 45071, July 26, 2013]
Subpart D_Rulemaking
Sec. 502.51 Initiation of procedure to issue, amend, or repeal a rule.
(a) By petition. Any interested party may file with the Commission a
petition for the issuance, amendment, or repeal of a rule designed to
implement,
[[Page 34]]
interpret, or prescribe law, policy, organization, procedure, or
practice requirements of the Commission. The petition shall set forth
the interest of petitioner and the nature of the relief desired, shall
include any facts, views, arguments, and data deemed relevant by
petitioner, and shall be verified. If such petition is for the amendment
or repeal of a rule, it shall be accompanied by proof of service on all
persons, if any, specifically named in such rule, and shall conform in
other aspects to subpart H of this part. Replies to such petition shall
conform to the requirements of Sec. 502.69.
(b) By the Commission. The Commission on its own initiative may
initiate the issuance, amendment, or repeal of a rule through notice of
proposed rulemaking or advanced notice of proposed rulemaking. [Rule
51.]
[64 FR 7808, Feb. 17, 1999, as amended at 67 FR 39859, June 11, 2002; 70
FR 10329, Mar. 3, 2005; 81 FR 59143, Aug. 29, 2016]
Sec. 502.52 Notice of proposed rulemaking.
(a) General notice of proposed rulemaking, including the information
specified in Sec. 502.61(c), shall be published in the Federal
Register, unless all persons subject thereto are named and, either are
personally served, or otherwise have actual notice thereof in accordance
with law.
(b) Except where notice or hearing is required by statute, paragraph
(a) of this section shall not apply to interpretative rules, general
statements of policy, rules of agency organization, procedure, or
practice of the Commission, or when the Commission for good cause finds
(and incorporates the findings and a brief statement of reasons therefor
in the rules issued) that notice and public procedure are impracticable,
unnecessary, or contrary to the public interest. [Rule 52]
[49 FR 44369, Nov. 6, 1984, as amended at 78 FR 45071, July 26, 2013; 81
FR 93835, Dec. 22, 2016]
Sec. 502.53 Participation in rulemaking.
(a) Interested persons will be afforded an opportunity to
participate in rulemaking through submission of written data, views, or
arguments, with or without opportunity for oral presentation. No replies
to the written submissions will be allowed unless, because of the nature
of the proceeding, the Commission indicates that replies would be
necessary or desirable for the formulation of a just and reasonable
rule, except that, where the proposed rules are such as are required by
statute to be made on the record after opportunity for a hearing, such
hearing shall be conducted pursuant to 5 U.S.C. 556 and 557, and the
procedure shall be the same as stated in subpart L of this part. In the
event that replies or succeeding rounds of comments are permitted,
copies shall be served on all prior participants in the proceeding. A
list of participants may be obtained from the Secretary of the
Commission.
(b) In those rulemaking proceedings in which respondents are named,
interested persons who wish to participate shall file a petition to
intervene in accordance with the provisions of Sec. 502.72 [Rule 53.]
(c) Where a formal hearing is held in a rulemaking proceeding,
interested persons will be afforded an opportunity to participate
through submission of relevant, material, reliable, and probative
written evidence properly verified, except that such evidence submitted
by persons not present at the hearing will not be made a part of the
record if objected to by any party on the ground that the person who
submits the evidence is not present for cross-examination.
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28399, July 11, 1990; 78
FR 45071, July 26, 2013; 81 FR 93835, Dec. 22, 2016]
Sec. 502.54 Contents of rules.
The Commission will incorporate in any publication of proposed or
final rules a concise and general statement of their basis and purpose.
[Rule 54.]
[78 FR 45071, July 26, 2013]
Sec. 502.55 Effective date of rules.
The publication or service of any substantive rule shall be made not
less than thirty (30) days prior to its effective date except:
(a) As otherwise provided by the Commission for good cause found
that notice and public procedure thereon
[[Page 35]]
are impractical, unnecessary, or contrary to the public interest;
(b) In the case of rules granting or recognizing exemption or
relieving restriction; interpretative rules; or statements of policy.
(c) Interpretive rules, general statements of policy, or rules of
agency organization, procedure, or practice. [Rule 55.]
[78 FR 45071, July 26, 2013]
Sec. 502.56 Negotiated rulemaking.
The Commission, either upon petition of interested persons or upon
its own motion, may establish a negotiated rulemaking committee to
negotiate and develop consensus on a proposed rule, if, upon
consideration of the criteria of 5 U.S.C. 563, use of such a committee
is determined by the Commission to be in the public interest. [Rule 56.]
[58 FR 38649, July 19, 1993, as amended at 64 FR 7808, Feb. 17, 1999]
Sec. 502.57 Service by parties of pleadings and other documents.
Service on all prior commenters must be shown when submitting
comments or replies beyond the initial round on a notice of proposed
rulemaking. A list of all participants may be obtained from the
Secretary of the Commission.
[78 FR 45071, July 26, 2013]
Subpart E_Private Complaints and Commission Investigations
Source: 77 FR 61524, Oct. 10, 2012, unless otherwise noted.
Sec. 502.61 Proceedings.
(a) Any person may commence a proceeding by filing a complaint (Rule
62) for a formal adjudication or by filing a claim for the informal
adjudication of small claims (subpart S). A person may also file a
petition for a rulemaking (Rule 51), for an exemption (Rule 74), for a
declaratory order (Rule 75), or for other appropriate relief (Rule 76),
which becomes a proceeding when the Commission assigns a formal docket
number to the petition.
(b) The Commission may commence a proceeding for a rulemaking, for
an adjudication (including Commission enforcement action under Sec.
502.63), or a non-adjudicatory investigation upon petition or on its own
initiative by issuing an appropriate order.
(c) Persons entitled to notice of hearings, except those notified by
complaint service under Sec. 502.113, will be duly and timely informed
of the nature of the proceeding, the legal authority and jurisdiction
under which the proceeding is conducted, and the terms, substance, and
issues involved, or the matters of fact and law asserted, as the case
may be. Such notice will be published in the Federal Register unless all
persons subject thereto are named and either are served or otherwise
have notice thereof in accordance with law.
(d) In the order instituting a proceeding or in the notice of filing
of complaint and assignment, the Commission must establish dates by
which the initial decision and the final Commission decision will be
issued. These dates may be extended by order of the Commission for good
cause shown. [Rule 61.]
[77 FR 61524, Oct. 10, 2012, as amended at 81 FR 93835, Dec. 22, 2016]
Sec. 502.62 Private party complaints for formal adjudication.
(a) Filing a complaint for formal adjudication. (1) A person may
file a sworn complaint alleging violation of the Shipping Act of 1984,
46 U.S.C. 40101 et seq.
(2) Form. Complaints should be drafted in accordance with the rules
in this section.
(3) Content of complaint. The complaint must be verified and must
contain the following:
(i) The name, street address, and email address of each complainant,
and the name, address, and email address of each complainant's attorney
or representative, the name, address, and, if known, email address of
each person against whom complaint is made;
(ii) A recitation of the legal authority and jurisdiction for
institution of the proceeding, with specific designation of the
statutory provisions alleged to have been violated;
[[Page 36]]
(iii) A clear and concise factual statement sufficient to inform
each respondent with reasonable definiteness of the acts or practices
alleged to be in violation of the law, and a statement showing that the
complainant is entitled to relief;
(iv) A request for the relief and other affirmative action sought;
and
(v) Shipping Act violation must be alleged. If the complaint fails
to indicate the sections of the Act alleged to have been violated or
clearly to state facts which support the allegations, the Commission
may, on its own initiative, require the complaint to be amended to
supply such further particulars as it deems necessary.
(4) Complaints seeking reparation; statute of limitations. A
complaint may seek reparation (money damages) for injury caused by
violation of the Shipping Act of 1984. (See subpart O of this part.)
(i) Where reparation is sought, the complaint must set forth the
injury caused by the alleged violation and the amount of alleged
damages.
(ii) Except under unusual circumstances and for good cause shown,
reparation will not be awarded upon a complaint in which it is not
specifically requested, nor upon a new complaint by or for the same
complainant which is based upon a finding in the original proceeding.
(iii) A complaint seeking reparation must be filed within three
years after the claim accrues. Notification to the Commission that a
complaint may or will be filed for the recovery of reparation will not
constitute a filing within the applicable statutory period.
(iv) Civil penalties must not be requested and will not be awarded
in complaint proceedings.
(5) Oral hearing. The complaint should designate whether an oral
hearing is requested and the desired place for any oral hearing. The
presiding officer will determine whether an oral hearing is necessary.
(6) Filing fee: The complaint must be accompanied by remittance of a
$289 filing fee.
(7) A complaint is deemed filed on the date it is received by the
Commission.
(b) Answer to a complaint. (1) Time for filing. A respondent must
file with the Commission an answer to the complaint and must serve the
answer on complainant as provided in subpart H of this part within 25
days after the date of service of the complaint by the Commission or the
Complainant unless this period has been extended under Sec. 502.67 or
Sec. 502.102, or reduced under Sec. 502.103, or unless motion is filed
to withdraw or dismiss the complaint, in which latter case, answer must
be filed within 10 days after service of an order denying such motion.
For good cause shown, the presiding officer may extend the time for
filing an answer.
(2) Contents of answer. The answer must be verified and must contain
the following:
(i) The name, address, and email address of each respondent, and the
name, address, and email address of each respondent's attorney or
representative;
(ii) Admission or denial of each alleged violation of the Shipping
Act;
(iii) A clear and concise statement of each ground of defense and
specific admission, denial, or explanation of facts alleged in the
complaint, or, if respondent is without knowledge or information
thereof, a statement to that effect; and
(iv) Any affirmative defenses, including allegations of any
additional facts on which the affirmative defenses are based.
(3) Oral hearing. The answer should designate whether an oral
hearing is requested and the desired place for such hearing. The
presiding officer will determine whether an oral hearing is necessary.
(4) Counterclaims, crossclaims, and third-party complaints. In
addition to filing an answer to a complaint, a respondent may include in
the answer a counterclaim against the complainant, a crossclaim against
another respondent, or a third-party complaint. A counterclaim, a
crossclaim, or a third-party complaint must allege and be limited to
violations of the Shipping Act within the jurisdiction of the
Commission. The service and filing of a counterclaim, a crossclaim, or a
third-party complaint and answers or replies thereto are governed by the
rules and requirements of this section for the filing of complaints and
answers.
[[Page 37]]
(5) A reply to an answer may not be filed unless ordered by the
presiding officer.
(6) Effect of failure to file answer. (i) Failure of a party to file
an answer to a complaint, counterclaim, crossclaim, or third-party
complaint within the time provided will be deemed to constitute a waiver
of that party's right to appear and contest the allegations of the
complaint, counterclaim, crossclaim, or third-party complaint to which
it has not filed an answer and to authorize the presiding officer to
enter an initial decision on default as provide for in 46 CFR 502.65.
Well pleaded factual allegations in the complaint not answered or
addressed will be deemed to be admitted.
(ii) A party may make a motion for initial decision on default.
[Rule 62.]
[77 FR 61524, Oct. 10, 2012; 77 FR 64758, Oct. 23, 2012, as amended at
80 FR 14319, Mar. 19, 2015; 81 FR 59143, Aug. 29, 2016]
Sec. 502.63 Commission enforcement action.
(a) The Commission may issue an Order of Investigation and Hearing
commencing an adjudicatory investigation against one or more respondents
alleging one or more violations of the statutes that it administers.
(b) Contents of Order of Investigation and Hearing. The Order of
Investigation and Hearing must contain the following:
(1) The name, street address, and, if known, email address of each
person against whom violations are alleged;
(2) A recitation of the legal authority and jurisdiction for
institution of the proceeding, with specific designation of the
statutory provisions alleged to have been violated;
(3) A clear and concise factual statement sufficient to inform each
respondent with reasonable definiteness of the acts and practices
alleged to be in violation of the law;
(4) Notice of penalties, cease and desist order, or other
affirmative action sought; and
(5) Notice of the requirement to file an answer and a statement of
the consequences of failure to file an answer.
(c) Answer to Order of Investigation and Hearing. (1) Time for
filing. A respondent must file with the Commission an answer to the
Order of Investigation and Hearing and serve a copy of the answer on the
Bureau of Enforcement within 25 days after being served with the Order
of Investigation and Hearing unless this period has been extended under
Sec. 502.67 or Sec. 502.102, or reduced under Sec. 502.103, or unless
motion is filed to withdraw or dismiss the Order of Investigation and
Hearing, in which latter case, answer must be filed within 10 days after
service of an order denying such motion. For good cause shown, the
presiding officer may extend the time for filing an answer.
(2) Contents of answer. The answer must be verified and must contain
the following:
(i) The name, address, and email address of each respondent, and the
name, address, and email address of each respondent's attorney or
representative;
(ii) Admission or denial of each alleged violation of the Shipping
Act;
(iii) A clear and concise statement of each ground of defense and
specific admission, denial, or explanation of facts alleged in the
complaint, or, if respondent is without knowledge or information
thereof, a statement to that effect; and
(iv) Any affirmative defenses, including allegations of any
additional facts on which the affirmative defenses are based.
(3) Oral hearing. The answer must indicate whether an oral hearing
is requested and the desired place for such hearing. The presiding
officer will determine whether an oral hearing is necessary.
(4) Effect of failure to file answer. (i) Failure of a respondent to
file an answer to an Order of Investigation and Hearing within the time
provided will be deemed to constitute a waiver of the respondent's right
to appear and contest the allegations in the Order of Investigation and
Hearing and to authorize the presiding officer to enter a decision on
default as provided for in 46 CFR 502.65. Well pleaded factual
allegations in the Order of Investigation and Hearing not answered or
addressed will be deemed to be admitted.
(ii) The Bureau of Enforcement may make a motion for decision on
default. [Rule 63.]
[[Page 38]]
Sec. 502.64 Alternative dispute resolution.
(a) Mandatory preliminary conference. (1) Participation. Subsequent
to service of a Complaint, parties must participate in a preliminary
conference with the Commission's Office of Consumer Affairs and Dispute
Resolution Services (CADRS) as to whether the matter may be resolved
through mediation. The preliminary conference may be conducted either in
person or via telephone, video conference, or other forum.
(2) Timing. Within fifteen (15) days of the filing of an answer, the
parties must contact the Director of CADRS to schedule the preliminary
conference. The Director of CADRS or his/her designees will conduct the
preliminary conference and may confer with each party separately at any
time.
(b) Continued availability of dispute resolution services to resolve
procedural and other disputes. Pursuant to subpart U of this part, the
parties mutually may agree, at any time prior to the termination of a
Commission proceeding, to initiate or reopen a mediation proceeding to
explore resolution of procedural or substantive issues.
(c) Proceeding not stayed during dispute resolution process. Unless
otherwise ordered by the presiding officer, a mediation proceeding does
not stay or delay the procedural time requirements set forth by rule or
order of the presiding officer.
(d) Confidentiality. The preliminary conference will be
confidential. [Rule 64.]
Sec. 502.65 Decision on default.
(a) A party to a proceeding may be deemed to be in default if that
party fails:
(1) To appear, in person or through a representative, at a hearing
or conference of which that party has been notified;
(2) To answer, to respond to a dispositive motion within the time
provided, or otherwise to defend the proceeding; or
(3) To cure a deficient filing within the time specified by the
Commission or the presiding officer.
(b) When a party is found to be in default, the Commission or the
presiding officer may issue a decision on default upon consideration of
the record, including the complaint or Order of Investigation and
Hearing.
(c) The presiding officer may require additional information or
clarification when needed to issue a decision on default, including a
determination of the amount of reparations or civil penalties where
applicable.
(d) A respondent who has defaulted may file with the Commission a
petition to set aside a decision on default. Such a petition must be
made within 22 days of the service date of the decision, state in detail
the reasons for failure to appear or defend, and specify the nature of
the proposed defense. In order to prevent injustice, the Commission may
for good cause shown set aside a decision on default. [Rule 65.]
Sec. 502.66 Amendments or supplements to pleadings.
(a) Amendments or supplements to any pleading (complaint, Order of
Investigation and Hearing, counterclaim, crossclaim, third-party
complaint, and answers thereto) will be permitted or rejected, either in
the discretion of the Commission or presiding officer. No amendment will
be allowed that would broaden the issues, without opportunity to reply
to such amended pleading and to prepare for the broadened issues. The
presiding officer may direct a party to state its case more fully and in
more detail by way of amendment.
(b) A response to an amended pleading must be filed and served in
conformity with the requirements of subpart H and Sec. 502.69 of this
part, unless the Commission or the presiding officer directs otherwise.
Amendments or supplements allowed prior to hearing will be served in the
same manner as the original pleading, except that the presiding officer
may authorize the service of amended complaints directly by the parties
rather than by the Secretary of the Commission.
(c) Whenever by the rules in this part a pleading is required to be
verified, the amendment or supplement must also be verified. [Rule 66.]
Sec. 502.67 Motion for more definite statement.
If a pleading (including a complaint, counterclaim, crossclaim, or
third-
[[Page 39]]
party complaint filed pursuant to Sec. 502.62) to which a responsive
pleading is permitted is so vague or ambiguous that a party cannot
reasonably prepare a response, the party may move for a more definite
statement before filing a responsive pleading. The motion must be filed
within 15 days of the pleading and must point out the defects complained
of and the details desired. If the motion is granted and the order of
the presiding officer is not obeyed within 10 days after service of the
order or within such time as the presiding officer sets, the presiding
officer may strike the pleading to which the motion was directed or
issue any other appropriate order. If the motion is denied, the time for
responding to the pleading must be extended to a date 10 days after
service of the notice of denial. [Rule 67.]
Sec. 502.68 Motion for leave to intervene.
(a) Filing. A motion for leave to intervene may be filed in any
proceeding.
(b) Procedure for intervention. (1) Upon request, the Commission
will furnish a service list to any member of the public pursuant to part
503 of this chapter.
(2) The motion must:
(i) Comply with all applicable provisions of subpart A of this part;
(ii) Indicate the type of intervention sought;
(iii) Describe the interest and position of the person seeking
intervention, and address the grounds for intervention set forth in
paragraph (c) of this section;
(iv) Describe the nature and extent of its proposed participation,
including the use of discovery, presentation of evidence, and
examination of witnesses;
(v) State the basis for affirmative relief, if affirmative relief is
sought; and
(vi) Be served on existing parties by the person seeking
intervention pursuant to subpart H of this part.
(3) A response to a motion to intervene must be served and filed
within 15 days after the date of service of the motion.
(c)(1) Intervention of right. The presiding officer or Commission
must permit anyone to intervene who claims an interest relating to the
property or transaction that is subject of the proceeding, and is so
situated that disposition of the proceeding may as a practical matter
impair or impede the ability of such person to protect its interest,
unless existing parties adequately represent that interest.
(2) Permissive intervention. (i) In general. The presiding officer
or Commission may permit anyone to intervene who shows that a common
issue of law or fact exists between such person's interest and the
subject matter of the proceeding; that intervention would not unduly
delay or broaden the scope of the proceeding, prejudice the adjudication
of the rights, or be duplicative of the positions of any existing party;
and that such person's participation may reasonably be expected to
assist in the development of a sound record.
(ii) By a government department, agency, or the Commission's Bureau
of Enforcement. The presiding officer or Commission may permit
intervention by a Federal or State government department or agency or
the Commission's Bureau of Enforcement upon a showing that its expertise
is relevant to one or more issues involved in the proceeding and may
assist in the consideration of those issues.
(3) The timeliness of the motion will also be considered in
determining whether a motion will be granted under paragraph (b)(2) of
this section and should be filed no later than 30 days after publication
in the Federal Register of the Commission's order instituting the
proceeding or the notice of the filing of the complaint. Motions filed
after that date must show good cause for the failure to file within the
30-day period.
(d) Use of discovery by an intervenor. (1) Absent good cause shown,
an intervenor desiring to utilize the discovery procedures provided in
subpart L must commence doing so no more than 15 days after its motion
for leave to intervene has been granted.
(2) The Commission or presiding officer may impose reasonable
limitations on an intervenor's participation in order to:
(i) Restrict irrelevant or duplicative discovery, evidence, or
argument;
(ii) Have common interests represented by a spokesperson; and
[[Page 40]]
(iii) Retain authority to determine priorities and control the
course of the proceeding.
(3) The use of discovery procedures by an intervenor whose motion
was filed more than 30 days after publication in the Federal Register of
the Commission's order instituting the proceeding or the notice of the
filing of the complaint will not be allowed if the presiding officer
determines that the use of the discovery by the intervenor will unduly
delay the proceeding. [Rule 68.]
Sec. 502.69 Motions.
(a) In any adjudication, an application or request for an order or
ruling not otherwise specifically provided for in this part must be by
motion. After the assignment of a presiding officer to a proceeding and
before the issuance of his or her recommended or initial decision, all
motions must be addressed to and ruled upon by the presiding officer
unless the subject matter of the motion is beyond his or her authority,
in which event the matter must be referred to the Commission. If the
proceeding is not before the presiding officer, motions must be
designated as petitions and must be addressed to and ruled upon by the
Commission.
(b) Motions must be in writing, except that a motion made at a
hearing may be sufficient if stated orally upon the record.
(c) Oral argument upon a written motion may be permitted at the
discretion of the presiding officer or the Commission.
(d) A repetitious motion will not be entertained.
(e) All written motions must state clearly and concisely the purpose
of and the relief sought by the motion, the statutory or principal
authority relied upon, and the facts claimed to constitute the grounds
supporting the relief requested; and must conform with the requirements
of subpart H of this part.
(f) Any party may file and serve a response to any written motion,
pleading, petition, application, etc., permitted under this part except
as otherwise provided respecting answers (Sec. 502.62), briefs (Sec.
502.214), exceptions (Sec. 502.227), and reply to petitions for
attorney fees under the Equal Access to Justice Act (Sec.
502.503(b)(1)).
(g) Dispositive and non-dispositive motions defined. For the purpose
of these rules, dispositive motion means a motion for decision on the
pleadings; motion for summary decision or partial summary decision;
motion to dismiss all or part of a proceeding or party to a proceeding;
motion for involuntary dismissal; motion for initial decision on
default; or any other motion for a final determination of all or part of
a proceeding. All other motions, including all motions related to
discovery, are non-dispositive motions. [Rule 69.]
[77 FR 61524, Oct. 10, 2012, as amended at 81 FR 93835, Dec. 22, 2016]
Sec. 502.70 Procedure for dispositive motions.
(a) A dispositive motion as defined in Sec. 502.69(g) of this
subpart must include a concise statement of the legal basis of the
motion with citation to legal authority and a statement of material
facts with exhibits as appropriate.
(b) A response to a dispositive motion must be served and filed
within 15 days after the date of service of the motion. The response
must include a concise statement of the legal basis of the response with
citation to legal authority and specific responses to any statements of
material facts with exhibits as appropriate.
(c) A reply to the response to a dispositive motion may be filed
within 7 days after the date of service of the response to the motion. A
reply may not raise new grounds for relief or present matters that do
not relate to the response and must not reargue points made in the
opening motion.
(d) The non-moving party may not file any further reply unless
requested by the Commission or presiding officer, or upon a showing of
extraordinary circumstances.
(e) Page limits. Neither the motion nor the response may exceed 30
pages, excluding exhibits or appendices, without leave of the presiding
officer. A reply may not exceed 15 pages. [Rule 70.]
[[Page 41]]
Sec. 502.71 Procedure for non-dispositive motions.
(a) Duty to confer. Before filing a non-dispositive motion as
defined in Sec. 502.69(g) of this subpart, the parties must attempt to
discuss the anticipated motion with each other in a good faith effort to
determine whether there is any opposition to the relief sought and, if
there is opposition, to narrow the areas of disagreement. The moving
party must state within the body of the motion what attempt was made or
that the discussion occurred and whether the motion is opposed.
(b) Response to a non-dispositive motion. A response to a non-
dispositive motion must be served and filed within 7 days after the date
of service of the motion.
(c) Response replies. The moving party may not file a reply to a
response to a non-dispositive motion unless requested by the Commission
or presiding officer, or upon a showing of extraordinary circumstances.
(d) Page limits. Neither the motion nor the response may exceed 10
pages, excluding exhibits or appendices, without leave of the presiding
officer. [Rule 71.]
Sec. 502.72 Dismissals.
(a) Voluntary dismissal. (1) By the complainant. When no settlement
agreement is involved, the complainant may dismiss an action without an
order from the presiding officer by filing a notice of dismissal before
the opposing party serves either an answer, a motion to dismiss, or a
motion for summary decision. Unless the notice or stipulation states
otherwise, the dismissal is without prejudice.
(2) By stipulation of the parties. The parties may dismiss an action
at any point without an order from the presiding officer by filing a
stipulation of dismissal signed by all parties who have appeared. In the
stipulation the parties must certify that no settlement on the merits
was reached. Unless the stipulation states otherwise, the dismissal is
without prejudice.
(3) By order of the presiding officer. Except as provided in
paragraphs (a)(1) and (a)(2) of this section, an action may be dismissed
at the complainant's request only by order of the presiding officer, on
terms the presiding officer considers proper. If the motion is based on
a settlement by the parties, the settlement agreement must be submitted
with the motion for determination as to whether the settlement appears
to violate any law or policy and to ensure the settlement is free of
fraud, duress, undue influence, mistake, or other defects which might
make it unapprovable. Unless the order states otherwise, a dismissal
under this paragraph is without prejudice.
(b) Involuntary dismissal; effect. If the complainant fails to
prosecute or to comply with these rules or an order in the proceeding, a
respondent may move to dismiss the action or any claim against it, or
the presiding officer, after notice to the parties, may dismiss the
proceeding on its own motion. Unless the dismissal order states
otherwise, a dismissal under this subpart, except one for lack of
jurisdiction or failure to join a party, operates as an adjudication on
the merits.
(c) Dismissing a counterclaim, crossclaim, or third-party claim.
This rule applies to dismissals of any counterclaim, crossclaim, or
third-party claim.
[79 FR 76902, Dec. 23, 2014]
Sec. 502.73 Brief of an amicus curiae.
(a) A brief of an amicus curiae may be filed only by leave of the
Commission or the presiding officer granted on motion with notice to the
parties, or at the request of the Commission or the presiding officer,
except that leave must not be required when the brief is presented by
the United States or any agency or officer of the United States. The
brief may be conditionally filed with the motion for leave. A brief of
an amicus curiae must be limited to questions of law or policy.
(b) A motion for leave to file an amicus brief must identify the
interest of the applicant and must state the reasons why such a brief is
desirable.
(c) Except as otherwise permitted by the Commission or the presiding
officer, an amicus curiae must file its brief no later than 7 days after
the initial brief of the party it supports is received at the
Commission. An amicus curiae that is not supporting either party must
file its brief no later than 7
[[Page 42]]
days after the initial brief of the first party filing a brief is
received at the Commission. The Commission or the presiding officer must
grant leave for a later filing only for cause shown, in which event the
period within which an opposing party may answer must be specified.
(d) A motion of an amicus curiae to participate in oral argument
will be granted only in accordance with the requirements of Sec.
502.241. [Rule 78.]
[77 FR 61524, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016]
Sec. 502.74 Consolidation of proceedings.
The Commission or the Chief Administrative Law Judge (or designee)
may order two or more proceedings which involve substantially the same
issues consolidated and heard together.
[78 FR 45071, July 26, 2013. Redesignated at 81 FR 93836, Dec. 22, 2016]
Sec. 502.75 Opportunity for informal settlement.
(a) Parties are encouraged to make use of all the procedures of this
part that are designed to simplify or avoid formal litigation, and to
assist the parties in reaching settlements whenever it appears that a
particular procedure would be helpful.
(b) Where time, the nature of the proceeding, and the public
interest permit, all interested parties will have the opportunity for
the submission and consideration of facts, argument, offers of
settlement, or proposal of adjustment, without prejudice to the rights
of the parties.
(c) No settlement offer, or proposal will be admissible in evidence
over the objection of any party in any hearing on the matter.
(d) As soon as practicable after the commencement of any proceeding,
the presiding officer will direct the parties or their representatives
to consider the use of alternative dispute resolution, including but not
limited to mediation, and may direct the parties or their
representatives to consult with the Federal Maritime Commission
Alternative Dispute Resolution Specialist about the feasibility of
alternative dispute resolution.
(e) Any party may request that a mediator or other neutral be
appointed to assist the parties in reaching a settlement. If such a
request or suggestion is made and is not opposed, the presiding officer
will appoint a mediator or other neutral who is acceptable to all
parties, coordinating with the Federal Maritime Commission Alternative
Dispute Resolution Specialist. The mediator or other neutral will
convene and conduct one or more mediation or other sessions with the
parties and will inform the presiding officer, within the time
prescribed by the presiding officer, whether the dispute resolution
proceeding resulted in a resolution or not, and may make recommendations
as to future proceedings. If settlement is reached, it will be submitted
to the presiding officer who will issue an appropriate decision or
ruling. All such dispute resolution proceedings are subject to the
provisions of subpart U of this part.
(f) Any party may request that a settlement judge be appointed to
assist the parties in reaching a settlement. If such a request or
suggestion is made and is not opposed, the presiding officer will advise
the Chief Administrative Law Judge who may appoint a settlement judge
who is acceptable to all parties. The settlement judge will convene and
preside over conferences and settlement negotiations and will report to
the presiding officer within the time prescribed by the Chief
Administrative Law Judge, on the results of settlement discussions with
appropriate recommendations as to future proceedings. If settlement is
reached, it must be submitted to the presiding officer who will issue an
appropriate decision or ruling. [Rule 75.]
[81 FR 93836, Dec. 22, 2016]
Subpart F_Petitions, Exemptions, and Orders to Show Cause
Sec. 502.91 Order to show cause.
The Commission may institute a proceeding by order to show cause.
The order will be served upon all persons named therein, will include
the information specified in Sec. 502.221, will require the person
named therein to answer, and may require such person to
[[Page 43]]
appear at a specified time and place and present evidence upon the
matters specified. [Rule 91.]
[81 FR 93836, Dec. 22, 2016]
Sec. 502.92 Exemption procedures--general.
(a) Authority. The Commission, upon application or on its own
motion, may by order or regulation exempt for the future any class of
agreements between persons subject to the Shipping Act of 1984 or any
specified activity of those persons from any requirement of the Act if
the Commission finds that the exemption will not result in substantial
reduction in competition or be detrimental to commerce. The Commission
may attach conditions to any exemption and may, by order, revoke any
exemption.
(b) Application for exemption. Any person may petition the
Commission for an exemption or revocation of an exemption of any class
of agreements or an individual agreement or any specified activity
pursuant to section 16 of the Shipping Act of 1984 (46 U.S.C. 40103). A
petition for exemption must state the particular requirement of the
Shipping Act of 1984 for which exemption is sought. The petition must
also include a statement of the reasons why an exemption should be
granted or revoked, must provide information relevant to any finding
required by the Act and must comply with Sec. 502.76. Where a petition
for exemption of an individual agreement is made, the application must
include a copy of the agreement. Unless a petition specifically requests
an exemption by regulation, the Commission must evaluate the petition as
a request for an exemption by order.
(c) Participation by interested persons. No order or regulation of
exemption or revocation of exemption may be issued unless opportunity
for hearing has been afforded interested persons and departments and
agencies of the United States.
(d) Federal Register notice. Notice of any proposed exemption or
revocation of exemption, whether upon petition or the Commission's own
motion, must be published in the Federal Register. The notice must
include when applicable:
(1) A short title for the proposed exemption or the title of the
existing exemption;
(2) The identity of the party proposing the exemption or seeking
revocation;
(3) A concise summary of the agreement or class of agreements or
specified activity for which exemption is sought, or the exemption which
is to be revoked;
(4) A statement that the petition and any accompanying information
are available for inspection in the Commission's offices in Washington,
DC; and
(5) The final date for filing comments regarding the proposal. [Rule
74.]
[49 FR 44369, Nov. 6, 1984. Redesignated at 81 FR 93836, Dec. 22, 2016]
Sec. 502.93 Declaratory orders and fee.
(a)(1) The Commission may, in its discretion, issue a declaratory
order to terminate a controversy or to remove uncertainty.
(2) Petitions for the issuance thereof must: state clearly and
concisely the controversy or uncertainty; name the persons and cite the
statutory authority involved; include a complete statement of the facts
and grounds prompting the petition, together with full disclosure of
petitioner's interest; be served upon all parties named therein; and
conform to the requirements of subpart H of this part.
(3) Petitions must be accompanied by remittance of a $289 filing
fee.
(b) Petitions under this section must be limited to matters
involving conduct or activity regulated by the Commission under statutes
administered by the Commission. The procedures of this section must be
invoked solely for the purpose of obtaining declaratory rulings which
will allow persons to act without peril upon their own view.
Controversies involving an allegation of violation by another person of
statutes administered by the Commission, for which coercive rulings such
as payment of reparation or cease and desist orders are sought, are not
proper subjects of petitions under this section. Such matters must be
adjudicated either by filing of a complaint under section 11 of the
Shipping Act of 1984 (46 U.S.C. 41301-41302, 41305-41307(a)) and
[[Page 44]]
Sec. 502.62, or by filing of a petition for investigation under Sec.
502.76.
(c) Petitions under this section must be accompanied by the complete
factual and legal presentation of petitioner as to the desired
resolution of the controversy or uncertainty, or a detailed explanation
why such can only be developed through discovery or evidentiary hearing.
(d) Responses to the petition must contain the complete factual and
legal presentation of the responding party as to the desired resolution,
or a detailed explanation why such can only be developed through
discovery or evidentiary hearing. Responses must conform to the
requirements of Sec. 502.69 and must be served pursuant to subpart H of
this part.
(e) No additional submissions will be permitted unless ordered or
requested by the Commission or the presiding officer. If discovery or
evidentiary hearing on the petition is deemed necessary by the parties,
such must be requested in the petition or responses. Requests must state
in detail the facts to be developed, their relevance to the issues, and
why discovery or hearing procedures are necessary to develop such facts.
(f)(1) A notice of filing of any petition which meets the
requirements of this section must be published in the Federal Register.
The notice will indicate the time for filing of responses to the
petition. If the controversy or uncertainty is one of general public
interest, and not limited to specifically named persons, opportunity for
response will be given to all interested persons including the
Commission's Bureau of Enforcement.
(2) In the case of petitions involving a matter limited to
specifically named persons, participation by persons not named therein
will be permitted only upon grant of intervention by the Commission
pursuant to Sec. 502.68.
(3) Petitions for leave to intervene must be submitted on or before
the response date and must be accompanied by intervenor's complete
response including its factual and legal presentation in the matter.
(g) Petitions for declaratory order which conform to the
requirements of this section will be referred to a formal docket.
Referral to a formal docket is not to be construed as the exercise by
the Commission of its discretion to issue an order on the merits of the
petition. [Rule 75.]
[77 FR 61524, Oct. 10, 2012, as amended at 81 FR 59143, Aug. 29, 2016.
Redesignated at 81 FR 93836, Dec. 22, 2016]
Sec. 502.94 Petitions--general and fee.
(a) Except when submitted in connection with a formal proceeding,
all claims for relief or other affirmative action by the Commission,
including appeals from Commission staff action, except as otherwise
provided in this part, must be by written petition, which must state
clearly and concisely the petitioner's grounds of interest in the
subject matter, the facts relied upon and the relief sought, must cite
by appropriate reference the statutory provisions or other authority
relied upon for relief, must be served upon all parties named therein,
and must conform otherwise to the requirements of subpart H of this
part. Responses thereto must conform to the requirements of Sec.
502.67.
(b) Petitions must be accompanied by remittance of a $289 filing
fee. [Rule 76.]
[77 FR 61524, Oct. 10, 2012, as amended at 81 FR 59143, Aug. 29, 2016.
Redesignated at 81 FR 93836, Dec. 22, 2016]
Sec. 502.95 Proceedings involving assessment agreements.
(a) In complaint proceedings involving assessment agreements filed
under section 5(e) of the Shipping Act of 1984 (46 U.S.C. 40301(e),
40305), the Notice of Filing of Complaint and Assignment will specify a
date before which the initial decision will be issued, which date will
not be more than eight months from the date the complaint was filed.
(b) Any party to a proceeding conducted under this section who
desires to utilize the prehearing discovery procedures provided by
subpart L of this part must commence doing so at the time it files its
initial pleading, i.e., complaint, answer, or petition for leave to
intervene. Discovery matters accompanying complaints must be filed with
the Secretary of the Commission for service pursuant to Sec. 502.113.
Answers or objections to discovery requests must
[[Page 45]]
be subject to the normal provisions set forth in subpart L.
(c) Exceptions to the decision of the presiding officer, filed
pursuant to Sec. 502.227, must be filed and served no later than 15
days after date of service of the initial decision. Replies thereto must
be filed and served no later than 15 days after date of service of
exceptions. In the absence of exceptions, the decision of the presiding
officer must be final within 30 days from the date of service, unless
within that period, a determination to review is made in accordance with
the procedures outlined in Sec. 502.227. [Rule 77.]
[49 FR 44369, Nov. 6, 1984. Redesignated at 81 FR 93836, Dec. 22, 2016]
Subpart G_Time
Source: 80 FR 57306, Sept. 23, 2015, unless otherwise noted.
Sec. 502.101 Computation.
In computing any time period prescribed or allowed under the rules
in this part, the period begins on the day following the act, event, or
default that triggers the period and includes the last day of the time
period. If the last day is a Saturday, Sunday, or Federal holiday, the
time period continues to the next day that is not a Saturday, Sunday, or
federal holiday. If the presiding officer prescribes or allows an act,
event, or default by reference to a specific date, that date shall
govern. If the Commission's offices are inaccessible on the last day for
a filing, the time for filing is extended to the first accessible day
that is not a Saturday, Sunday, or Federal holiday. [Rule101]
Sec. 502.102 Enlargement or reduction of time to file documents.
(a) Motions for enlargement or reduction of time for the filing of
any pleading or other document, or in connection with the procedures of
subpart L of this part, may be granted upon a showing of good cause.
Motions must set forth the reasons for the request and be received at
least seven (7) days before the scheduled filing date. Motions filed
less than seven (7) days before the scheduled filing date may be
considered where reasonable grounds are found for the failure to meet
this requirement.
(b) Motions submitted after the scheduled filing date will be
considered a request to accept late filing and must be accompanied by
the document. These motions will only be considered when exceptional
circumstances are shown or as justice may require.
(c) Motions and responses to motions filed under this section are
subject to the requirements of Sec. Sec. 502.69 and 502.71, except that
responses to motions must be served and filed within five (5) days after
the date of service of the motion. [Rule 102.]
Sec. 502.103 [Reserved]
Sec. 502.104 Postponement of hearing.
(a) Motions for postponement of any hearing date may be granted upon
a showing of good cause. Motions must set forth the reasons for the
request and be received at least seven (7) days before the scheduled
hearing date. Motions filed less than seven (7) days before the
scheduled hearing date may be considered where reasonable grounds are
found for the failure to meet this requirement.
(b) Motions and responses filed under this section are subject to
the requirements of Sec. Sec. 502.69 and 502.71, except that responses
to motions must be served and filed within five (5) days after the date
or service of the motion. [Rule 104.]
Sec. 502.105 Waiver of rules governing enlargement of time and
postponement of hearings.
Except as otherwise provided by law the presiding officer, for good
cause, may reduce or enlarge any time limit prescribed in the rules of
this Part, may waive the requirements of Sec. Sec. 502.102 and 502.104
for replies, and may rule ex parte on requests submitted under those
rules. [Rule 105.]
[[Page 46]]
Subpart H_Service of Documents
Sec. Sec. 502.111-502.112 [Reserved]
Sec. 502.113 Service of private party complaints.
(a) Complaints filed pursuant to Sec. 502.62, amendments to
complaints (unless otherwise authorized by the presiding officer
pursuant to Sec. 502.66(b)), small claims complaints filed pursuant to
Sec. 502.304, and Complainant's memoranda filed in shortened procedure
cases pursuant to Sec. 502.182, will be served by the Secretary of the
Commission.
(b) The Secretary will serve the complaint using first class mail or
express mail service at the Respondent's address provided by the
Complainant. If the complaint cannot be delivered, for example if the
complaint is returned as undeliverable or not accepted for delivery, the
Secretary will notify the Complainant.
(c) Alternative service by Complainant. The Complainant may serve
the Complaint at any time after it has been filed with the Commission.
If Complainant serves the complaint, an affidavit setting forth the
method, time and place of service must be filed with the Secretary
within five days following service.
(d) The presiding officer may dismiss a complaint that has not been
served within thirty (30) days after the complaint was filed. [Rule
113.]
[80 FR 14319, Mar. 19, 2015]
Sec. 502.114 Serving documents in Commission proceedings.
(a) Except where a different method of service is specifically
required by the rules in this Part, all pleadings, documents and papers
of every kind (except requests for subpoenas under Sec. 502.131,
documents served by the Commission under Sec. 502.113, and documents
submitted at a hearing or prehearing conference) in proceedings before
the Commission, when delivered to the Commission or the presiding
officer for filing, must show that service has been made upon all
parties to the proceeding and upon any other persons required to be
served by the rules in this Part. Such service must be made by
delivering one copy to each party; by email; in-person hand delivery; or
United States mail service, and be properly addressed with postage
prepaid; by courier; or by facsimile. Service should be made in the same
manner in which any pleading or document is filed with the Commission.
For example, if a pleading is filed by email pursuant to Sec.
502.2(f)(3), service should also be made by email.
(b) When a party has appeared by attorney or other representative,
service upon each attorney or other representative of record will be
deemed service upon the party, except that, if two or more attorneys of
record are partners or associates of the same firm, only one of them
need be served.
[80 FR 57306, Sept. 23, 2015, as amended at 81 FR 93836, Dec. 22, 2016]
Sec. 502.115 Service in rulemaking and petition proceedings.
Service on all prior participants in a rulemaking or a petition
proceeding must be shown when submitting comments or replies beyond the
initial round, including those involving disposition of petitions for
rulemaking (Rule 51), petitions for declaratory order (Rule 75),
petitions general (Rule 76), notices of proposed rulemaking (Rule 52),
proceedings under section 19 of the Merchant Marine Act, 1920, (46
U.S.C. 42101) (Part 550), and proceedings under section 13(b)(6) of the
Shipping Act of 1984 (46 U. S.C. 41108(d)) (Part 560). A list of all
participants may be obtained from the Secretary of the Commission.
[80 FR 57306, Sept. 23, 2015]
Sec. 502.116 Date of service.
The date of service of documents served by the Commission will be
the date shown in the service stamp placed on the first page of the
document. The date of service of documents served by parties will be the
date when the document served is transmitted by email, deposited in the
United States mail, delivered to a courier, or delivered in person. If
service is made by more than one method, for example email and also U.S.
mail service, the date of service will be the earlier of the two dates.
In computing the time from such dates,
[[Page 47]]
the provisions of Sec. 502.101 shall apply. [Rule 116.]
[80 FR 57307, Sept. 23, 2015]
Sec. 502.117 Certificate of service.
The original of every document filed with the Commission and
required to be served upon all parties to a proceeding shall be
accompanied by a certificate of service signed by the party making
service, stating that such service has been made upon each party to the
proceeding. Certificates of service may be in substantially the
following form:
Certificate of Service
I hereby certify that I have this day served the foregoing document
upon [all parties of record or name of person(s)] by [mailing,
delivering to courier or delivering in person] a copy to each such
person.
Dated at, ___ this ___ day of ___ 19--.
(Signature)____________________________________________________________
(For)__________________________________________________________________
[Rule 117.]
Subpart I_Subpoenas
Sec. 502.131 Requests; issuance.
Subpoenas for the attendance of witnesses or the production of
evidence shall be issued upon request of any party, without notice to
any other party. Requests for subpoenas must be submitted in writing to
the Office of Administrative Law Judges. The party requesting the
subpoena shall tender an original and one copy of such subpoena. Where
it appears that the subpoena sought may be unreasonable, oppressive,
excessive in scope, or unduly burdensome, the administrative law judge
may in his or her discretion, as a condition precedent to the issuance
of the subpoena, require the person seeking the subpoena to show the
general relevance and reasonable scope of the testimony or other
evidence sought. [Rule 131.]
[76 FR 10262, Feb. 24, 2011]
Sec. 502.132 Motions to quash or modify.
(a) Except when issued at a hearing, or in connection with the
taking of a deposition, within ten (10) days after service of a subpoena
for attendance of a witness or a subpoena for production of evidence,
but in any event at or before the time specified in the subpoena for
compliance therewith, the person to whom the subpoena is directed may,
by motion with notice to the party requesting the subpoena, petition the
presiding officer to quash or modify the subpoena.
(b) If served at the hearing, the person to whom the subpoena is
directed may, by oral application at the hearing, within a reasonable
time fixed by the presiding officer, petition the presiding officer to
revoke or modify the subpoena.
(c) If served in connection with the taking of a deposition pursuant
to Sec. 502.143 unless otherwise agreed to by all parties or otherwise
ordered by the presiding officer, the party who has requested the
subpoena shall arrange that it be served at least twenty (20) days prior
to the date specified in the subpoena for compliance therewith, the
person to whom the subpoena is directed may move to quash or modify the
subpoena within ten (10) days after service of the subpoena, and a reply
to such motion shall be served within seven (7) days thereafter. [Rule
132.]
[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011; 80
FR 57307, Sept. 23, 2015; 81 FR 93836, Dec. 22, 2016]
Sec. 502.133 Attendance and mileage fees.
Witnesses summoned by subpoena to a hearing or deposition are
entitled to the same fees and mileage that are paid to witnesses in
courts of the United States. Fees and mileage shall be paid, upon
request, by the party at whose instance the witness appears. [Rule 133.]
[64 FR 7809, Feb. 17, 1999, as amended at 76 FR 10262, Feb. 24, 2011]
Sec. 502.134 Service of subpoenas.
If service of a subpoena is made by a United States marshal, or his
or her deputy, or an employee of the Commission, such service shall be
evidenced by his or her return thereon. If made by any other person,
such person shall make affidavit thereto, describing the manner in which
service is made, and return such affidavit on or with the original
subpoena. In case of failure to
[[Page 48]]
make service, the reasons for the failure shall be stated on the
original subpoena. In making service, the original subpoena shall be
exhibited to the person served, shall be read to him or her if he or she
is unable to read, and a copy thereof shall be left with him or her. The
original subpoena, bearing or accompanied by required return, affidavit,
or statement, shall be returned without delay to the Commission, or if
so directed on the subpoena, to the presiding officer before whom the
person named in the subpoena is required to appear. [Rule 134.]
[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011]
Sec. 502.135 Subpoena of Commission staff personnel, documents or things.
(a) A subpoena for the attendance of Commission staff personnel or
for the production of documentary materials in the possession of the
Commission shall be served upon the Secretary. If the subpoena is
returnable at hearing, a motion to quash may be filed within seven (7)
days of service and attendance shall not be required until the presiding
officer rules on said motion. If the subpoena is served in connection
with prehearing depositions, the procedure to be followed with respect
to motions to quash and replies thereto will correspond to the
procedures established with respect to motions and replies in Sec.
502.132(c).
(b) The General Counsel shall designate an attorney to represent any
Commission staff personnel subpoenaed under this section. The attorney
so designated shall not thereafter participate in the Commission's
decision-making process concerning any issue in the proceeding.
(c) Rulings of the presiding officer issued under Sec. 502.135(a)
shall become final rulings of the Commission unless an appeal is filed
within ten (10) days after date of issuance of such rulings or unless
the Commission, on its own motion, reverses, modifies, or stays such
rulings within twenty (20) days of their issuance. Replies to appeals
may be filed within ten (10) days. No ruling of the presiding officer
shall be effective until twenty (20) days from date of issuance unless
the Commission otherwise directs. [Rule 135.]
[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011; 80
FR 57307, Sept. 23, 2015]
Sec. 502.136 Enforcement.
In the event of failure to comply with any subpoena or order issued
in connection therewith, the Commission may seek enforcement as provided
in Sec. 502.150(b). [Rule 136.]
[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011; 81
FR 93836, Dec. 22, 2016]
Subpart J_Disclosures and Discovery
Sec. 502.141 Duty to disclose; general provisions governing discovery.
(a) Applicability. Unless otherwise stated in subpart S, T, or any
other subpart of this part, the procedures described in this subpart are
available in all adjudicatory proceedings under the Shipping Act of
1984.
(b) Initial disclosures. Except as otherwise stipulated or ordered
by the Commission or presiding officer, and except as provided in this
subpart related to disclosure of expert testimony, all parties must,
within 7 days of service of a respondent's answer to the complaint or
Order of Investigation and Hearing and without awaiting a discovery
request, provide to each other:
(1) The name and, if known, the address and telephone number of each
individual likely to have discoverable information that the disclosing
party may use to support its claims or defenses, unless the use would be
solely for impeachment;
(2) A copy, or a description by category and location, of all
documents, electronically stored information, and tangible things that
the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be solely
for impeachment;
(3) An estimate of any damages claimed by the disclosing party who
must also make available for inspection and copying the documents or
other evidentiary material, unless privileged or protected from
disclosure, on
[[Page 49]]
which the estimate is based, including materials bearing on the nature
and extent of injuries suffered.
(c) For parties served or joined later. A party that is first served
or otherwise joined after the answer is made must make the initial
disclosures within seven (7) days after an order of intervention is
granted, unless a different time is set by stipulation or order of
presiding officer. All parties must also produce to the late-joined
party any initial disclosures previously made.
(d) Disclosure of expert testimony. (1) In general. A party must
disclose to the other parties the identity of any witness it may use in
the proceeding to present evidence as an expert.
(2) Witnesses who are required to provide a written report. Unless
otherwise stipulated or ordered by the presiding officer, if the witness
is one retained or specially employed to provide expert testimony in the
proceeding or one whose duties as the party's employee regularly involve
giving expert testimony, the disclosure must be accompanied by a written
report, prepared and signed by the witness. The report must contain:
(i) A complete statement of all opinions the witness will express
and the basis and reasons for them;
(ii) The facts or data considered by the witness in forming them;
(iii) Any exhibits that will be used to summarize or support them;
(iv) The witness's qualifications, including a list of all
publications authored in the previous 10 years;
(v) A list of all other proceedings or cases in which, during the
previous 4 years, the witness testified as an expert in a trial, an
administrative proceeding, or by deposition; and
(vi) A statement of the compensation to be paid for the study and
testimony in the proceeding.
(3) Witnesses who are not required to provide a written report.
Unless otherwise stipulated or ordered by the presiding officer, if the
witness is not required to provide a written report under paragraph
(d)(2) of this section, the disclosure must state:
(i) The subject matter on which the witness is expected to present
evidence as an expert; and
(ii) Summary of the facts and opinions to which the witness is
expected to testify.
(4) Time to disclose expert testimony. The time for disclosure of
expert testimony must be addressed by the parties when they confer as
provided in paragraph (h) of this section and, if applicable, must be
included in the proposed discovery schedule submitted to the presiding
officer.
(e) Scope of discovery and limits. (1) Unless otherwise limited by
the presiding officer, or as otherwise provided in this subpart, the
scope of discovery is as follows: Parties may obtain discovery regarding
any nonprivileged matter that is relevant to any party's claim or
defense--including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and
the identity and location of persons who know of any discoverable
matter. For good cause, the presiding officer may order discovery of any
matter relevant to the subject matter involved in the action. Relevant
information need not be admissible at hearing if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.
(2) Limitations on frequency and extent. (i) Specific limitations on
electronically stored information. A party need not provide discovery of
electronically stored information from sources that the party identifies
as not reasonably accessible because of undue burden or cost. On motion
to compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably
accessible because of undue burden or cost. If that showing is made, the
presiding officer may nonetheless order discovery from such sources if
the requesting party shows good cause. The presiding officer may specify
conditions for the discovery.
(ii) When required. On motion or on its own, the presiding officer
may limit the frequency or extent of discovery otherwise allowed by
these rules if the presiding officer determines that:
(A) The discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more convenient, less
burdensome, or less expensive;
[[Page 50]]
(B) The party seeking discovery has had ample opportunity to obtain
the information by discovery in the action; or
(C) The burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the proceeding, the amount in
controversy, the parties' resources, the importance of the issues at
stake in the action, and the importance of the discovery in resolving
the issues.
(f) Scope of discovery and limits--experts. (1) A party may depose
any person who has been identified as an expert whose opinions may be
presented in a proceeding. If a report is required of the witness, the
deposition may be conducted only after the report is provided.
(2) Drafts of any report or disclosure required by these rules are
not discoverable regardless of the form in which the draft is recorded.
(3) Communications between the party's attorney and any expert
witness required to provide a report are not discoverable regardless of
the form of communications, except to the extent that the communications
relate to compensation for the expert's study or testimony; identify
facts or data that the party's attorney provided and that the expert
considered in forming the opinions to be expressed; or identify
assumptions that the party's attorney provided and that the expert
relied on in forming the opinions to be expressed.
(4) A party may not by interrogatories or deposition discover facts
known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare
for a proceeding and who is not expected to be presented as a witness;
provided, however, that the presiding officer may permit such discovery
and may impose such conditions as deemed appropriate upon a showing of
exceptional circumstances under which it is impracticable for the party
to obtain facts or opinions on the same subject by other means.
(g) Completion of discovery. Discovery must be completed within 150
days of the service of a respondent's answer to the complaint or Order
of Investigation and Hearing.
(h) Duty of the parties to confer. In all proceedings in which the
procedures of this subpart are used, it is the duty of the parties to
confer within 15 days after receipt of a respondent's answer to a
complaint or Order of Investigation and Hearing in order to: establish a
schedule for the completion of discovery, including disclosures and
discovery related to experts, within the 150-day period prescribed in
paragraph (g) of this section; resolve to the fullest extent possible
disputes relating to discovery matters; and expedite, limit, or
eliminate discovery by use of admissions, stipulations and other
techniques. The parties must submit the schedule to the presiding
officer not later than 5 days after the conference. Nothing in this rule
should be construed to preclude the parties from conducting discovery
and conferring at an earlier date.
(i)(1) Conferences by order of the presiding officer. The presiding
officer may at any time order the parties or their attorneys to
participate in a conference at which the presiding officer may direct
the proper use of the procedures of this subpart or make such orders as
may be necessary to resolve disputes with respect to discovery and to
prevent delay or undue inconvenience.
(2) Resolution of disputes. After making every reasonable effort to
resolve discovery disputes, a party may request a conference or rulings
from the presiding officer on such disputes. If necessary to prevent
undue delay or otherwise facilitate conclusion of the proceeding, the
presiding officer may order a hearing to commence before the completion
of discovery.
(j) Protective orders. (1) In general. A party or any person from
whom discovery is sought may move for a protective order. The motion
must include a certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an effort to
resolve the dispute without Commission or presiding officer action. The
Commission or presiding officer may, for good cause, issue an order to
protect a party or person from annoyance, embarrassment, oppression, or
[[Page 51]]
undue burden or expense, including one or more of the following:
(i) Forbidding the disclosure or discovery;
(ii) Specifying terms, including time and place, for the disclosure
or discovery;
(iii) Prescribing a discovery method other than the one selected by
the party seeking discovery;
(iv) Forbidding inquiry into certain matters, or limiting the scope
of disclosure or discovery to certain matters;
(v) Designating the persons who may be present while the discovery
is conducted;
(vi) Requiring that a deposition be sealed and opened only on
Commission or presiding officer order;
(vii) Requiring that a trade secret or other confidential research,
development, or commercial information not be disclosed or be disclosed
only in a specified way; or
(viii) Requiring that the parties simultaneously file specified
documents or information in sealed envelopes, to be opened as the
Commission or presiding officer directs.
(2) Ordering discovery. If a motion for a protective order is denied
in whole or in part, the Commission or presiding officer may, on just
terms, order that any party or person provide or permit discovery.
(k) Supplementing responses. A party who has made a disclosure under
paragraph (b) or (d) of this section, or who has responded to an
interrogatory, request for production, or request for admission, must
supplement or correct its disclosure or response:
(1) In a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect, and if
the additional or corrective information has not otherwise been made
known to the other parties during the discovery process or in written
communication; or
(2) As ordered by the presiding officer.
(l) Stipulations. Unless the presiding officer orders otherwise, the
parties may stipulate that other procedures governing or limiting
discovery be modified, but a stipulation extending the time for any form
of discovery must have presiding officer's approval if it would
interfere with the time set for completing discovery, for adjudicating a
motion, or for hearing. [Rule 201.]
[49 FR 44369, Nov. 6, 1984, as amended at 78 FR 45071, July 26, 2013; 80
FR 57307, Sept. 23, 2015. Redesignated at 81 FR 93836, Dec. 22, 2016]
Sec. 502.142 Persons before whom depositions may be taken.
(a) Within the United States. (1) In general. Within the United
States or a territory or insular possession subject to United States
jurisdiction, a deposition must be taken before:
(i) An officer authorized to administer oaths either by federal law
or by the law in the place of examination; or
(ii) A person appointed by the Commission or the presiding officer
to administer oaths and take testimony.
(b) In a foreign country. (1) In general. A deposition may be taken
in a foreign country:
(i) Under an applicable treaty or convention;
(ii) under a letter of request, whether or not captioned a ``letter
rogatory'';
(iii) On notice, before a person authorized to administer oaths
either by federal law or by the law in the place of examination; or
(iv) Before a person authorized by the Commission or the presiding
officer to administer any necessary oath and take testimony.
(2) Issuing a letter of request or an authorization. A letter of
request, an authorization, or both may be issued:
(i) On appropriate terms after an application and notice of it; and
(ii) Without a showing that taking the deposition in another manner
is impracticable or inconvenient.
(3) Form of a request, notice, or authorization. When a letter of
request or any other device is used according to a treaty or convention,
it must be captioned in the form prescribed by that treaty or
convention. A letter of request may be addressed ``To the Appropriate
Authority in [name of country].'' A deposition notice or an
authorization must designate by name or descriptive title the person
before whom the deposition is to be taken.
[[Page 52]]
(4) Letter of request--admitting evidence. Evidence obtained in
response to a letter of request need not be excluded merely because it
is not a verbatim transcript, because the testimony was not taken under
oath, or because of any similar departure from the requirements for
depositions taken within the United States.
(c) Disqualification. A deposition must not be taken before a person
who is any party's relative, employee, or attorney; who is related to or
employed by any party's attorney; or who is financially interested in
the action. [Rule 202.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016]
Sec. 502.143 Depositions by oral examination.
(a) When a deposition may be taken. (1) Without leave. A party may,
by oral questions, depose any person, including a party, without leave
of the presiding officer except as provided in Sec. 502.143(a)(2). The
deponent's attendance may be compelled by subpoena under subpart I of
this part.
(2) With leave. A party must obtain leave of the presiding officer,
if the parties have not stipulated to the deposition and:
(i) The deposition would result in more than 20 depositions being
taken under this rule or Sec. 502.144 by any party; or
(ii) The deponent has already been deposed in the case.
(b) Notice of the deposition; other formal requirements. (1) Notice
in general. A party who wants to depose a person by oral questions must
give reasonable written notice to every other party. The notice must
state the time and place of the deposition and, if known, the deponent's
name and address. If the name is unknown, the notice must provide a
general description sufficient to identify the person or the particular
class or group to which the person belongs.
(2) Producing documents. If a subpoena duces tecum is to be served
on the deponent, the materials designated for production, as set out in
the subpoena, must be listed in the notice or in an attachment. The
notice to a party deponent may be accompanied by a request under Sec.
502.146 to produce documents and tangible things at the deposition.
(3) Method of recording. (i) Method stated in the notice. The party
who notices the deposition must state in the notice the method for
recording the testimony. Unless the presiding officer orders otherwise,
testimony may be recorded by audio, audiovisual, or stenographic means.
The noticing party bears the recording costs. Any party may arrange to
transcribe a deposition.
(ii) Additional method. With prior notice to the deponent and other
parties, any party may designate another method for recording the
testimony in addition to that specified in the original notice. That
party bears the expense of the additional record or transcript unless
the presiding officer orders otherwise.
(4) By remote means. The parties may stipulate, or the presiding
officer may on motion order, that a deposition be taken by telephone or
other remote means.
(5) Officer's duties. (i) Before the deposition. Unless the parties
stipulate otherwise, a deposition must be conducted before an officer
appointed or designated under Sec. 502.142. The officer must begin the
deposition with an on-the-record statement that includes:
(A) The officer's name and business address;
(B) The date, time, and place of the deposition;
(C) The deponent's name;
(D) The officer's administration of the oath or affirmation to the
deponent; and
(E) The identity of all persons present.
(ii) Conducting the deposition; avoiding distortion. If the
deposition is recorded nonstenographically, the officer must repeat the
items in Sec. 502.143(b)(5)(i)(A) through (C) at the beginning of each
unit of the recording medium. The deponent's and attorneys' appearance
or demeanor must not be distorted through recording techniques.
(iii) After the deposition. At the end of a deposition, the officer
must state on the record that the deposition is complete and must set
out any stipulations made by the attorneys about custody of the
transcript or recording and of
[[Page 53]]
the exhibits, or about any other pertinent matters.
(6) Notice or subpoena directed to an organization. In its notice or
subpoena, a party may name as the deponent a public or private
corporation, a partnership, an association, a governmental agency, or
other entity and must describe with reasonable particularity the matters
for examination. The named organization must then designate one or more
officers, directors, or managing representatives, or designate other
persons who consent to testify on its behalf; and it may set out the
matters on which each person designated will testify. A subpoena must
advise a nonparty organization of its duty to make this designation. The
persons designated must testify about information known or reasonably
available to the organization. This paragraph (6) does not preclude a
deposition by any other procedure allowed by these rules.
(c) Examination and cross-examination; record of the examination;
objections; written questions. (1) Examination and cross-examination.
The examination and cross-examination of a deponent proceed as they
would at hearing under the provisions of Sec. 502.202. After putting
the deponent under oath or affirmation, the officer must record the
testimony by the method designated under Sec. 502.143(b)(3). The
testimony must be recorded by the officer personally or by a person
acting in the presence and under the direction of the officer.
(2) Objections. An objection at the time of the examination, whether
to evidence, to a party's conduct, to the officer's qualifications, to
the manner of taking the deposition, or to any other aspect of the
deposition, must be noted on the record, but the examination still
proceeds; the testimony is taken subject to any objection. An objection
must be stated concisely in a nonargumentative and nonsuggestive manner.
A person may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation ordered by the presiding
officer, or to present a motion under Sec. 502.143(d)(2).
(3) Participating through written questions. Instead of
participating in the oral examination, a party may serve written
questions in a sealed envelope on the party noticing the deposition, who
must deliver them to the officer. The officer must ask the deponent
those questions and record the answers verbatim.
(d) Duration; sanction; motion to terminate or limit. (1) Duration.
Unless otherwise stipulated or ordered by the presiding officer, a
deposition is limited to 1 day of 7 hours. The presiding officer must
allow additional time consistent with Sec. 502.141(e) if needed to
fairly examine the deponent or if the deponent, another person, or any
other circumstance impedes or delays the examination.
(2) Motion to terminate or limit. (i) Grounds. At any time during a
deposition, the deponent or a party may move to terminate or limit it on
the ground that it is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses the deponent or party.
The motion may be filed with the presiding officer. If the objecting
deponent or party so demands, the deposition must be suspended for the
time necessary to obtain an order.
(ii) Order. The presiding officer may order that the deposition be
terminated or may limit its scope and manner as provided in Sec.
502.141(j). If terminated, the deposition may be resumed only by order
of the Commission or presiding officer.
(e) Review by the witness; changes. (1) Review; statement of
changes. On request by the deponent or a party before the deposition is
completed, the deponent must be allowed 15 days after being notified by
the officer that the transcript or recording is available in which:
(i) To review the transcript or recording; and
(ii) If there are changes in form or substance, to sign a statement
listing the changes and the reasons for making them.
(2) Changes indicated in the officer's certificate. The officer must
note in the certificate prescribed by Sec. 502.143(f)(1) whether a
review was requested and, if so, must attach any changes the deponent
makes during the 15-day period.
(f) Certification and delivery; exhibits; copies of the transcript
or recording. (1) Certification and delivery. The officer
[[Page 54]]
must certify in writing that the witness was duly sworn and that the
deposition, transcript or recording accurately records the witness's
testimony. The certificate must accompany the record of the deposition.
Unless the presiding officer orders otherwise, the officer must seal the
deposition in an envelope or package bearing the title of the action and
marked ``Deposition of [witness's name]'' and must promptly send it to
the attorney who arranged for the transcript or recording. The attorney
must store it under conditions that will protect it against loss,
destruction, tampering, or deterioration.
(2) Documents and tangible things. (i) Originals and copies.
Documents and tangible things produced for inspection during a
deposition must, on a party's request, be marked for identification and
attached to the deposition. Any party may inspect and copy them. But if
the person who produced them wants to keep the originals, the person
may:
(A) Offer copies to be marked, attached to the deposition, and then
used as originals, after giving all parties a fair opportunity to verify
the copies by comparing them with the originals; or
(B) Give all parties a fair opportunity to inspect and copy the
originals after they are marked, in which event the originals may be
used as if attached to the deposition.
(ii) Order regarding the originals. Any party may move for an order
that the originals be attached to the deposition pending final
disposition of the case.
(3) Copies of the transcript or recording. Unless otherwise
stipulated or ordered by the presiding officer, the officer must retain
the stenographic notes of a deposition taken stenographically or a copy
of the recording of a deposition taken by another method. When paid
reasonable charges, the officer must furnish a copy of the transcript or
recording to any party or the deponent. [Rule 203.]
[77 FR 61529, Oct. 10, 2012. Redesignated and amended at 81 FR 93836,
Dec. 22, 2016]
Sec. 502.144 Depositions by written questions.
(a) When a deposition may be taken. (1) Without leave. A party may,
by written questions, depose any person, including a party, without
leave of the presiding officer except as provided in paragraph (a)(2) of
this section. The deponent's attendance may be compelled by subpoena
under subpart I of this part.
(2) With leave. A party must obtain leave of the presiding officer,
if the parties have not stipulated to the deposition and:
(i) The deposition would result in more than 20 depositions being
taken under this rule or Sec. 502.143 by any party;
(ii) The deponent has already been deposed in the case.
(3) Service; required notice. A party who wants to depose a person
by written questions must serve them on every other party, with a notice
stating, if known, the deponent's name and address. If the name is
unknown, the notice must provide a general description sufficient to
identify the person or the particular class or group to which the person
belongs. The notice must also state the name or descriptive title and
the address of the officer before whom the deposition will be taken.
(4) Questions directed to an organization. A public or private
corporation, a partnership, an association, or a governmental agency may
be deposed by written questions in accordance with Sec. 502.143(b)(6).
(5) Questions from other parties. Any questions to the deponent from
other parties must be served on all parties as follows: Cross-questions,
within 14 days after being served with the notice and direct questions;
redirect questions, within 7 days after being served with cross-
questions; and recross-questions, within 7 days after being served with
redirect questions. The presiding officer may, for good cause, extend or
shorten these times.
(b) Delivery to the officer; officer's duties. The party who noticed
the deposition must deliver to the officer before whom the deposition
will be taken a copy of all the questions served and of the notice. The
officer must promptly proceed to:
(1) Take the deponent's testimony in response to the questions;
(2) Prepare and certify the deposition; and
(3) Send it to the party, attaching a copy of the questions and of
the notice.
[[Page 55]]
(c) Notice of completion or filing. (1) Completion. The party who
noticed the deposition must notify all other parties when it is
completed.
(2) Filing. A party who files the deposition must promptly notify
all other parties of the filing. [Rule 204.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016;
81 FR 93837, Dec. 22, 2016]
Sec. 502.145 Interrogatories to parties.
(a) In general. (1) Number. Unless otherwise stipulated or ordered
by the presiding officer, a party may serve on any other party no more
than 50 written interrogatories, including all discrete subparts. Leave
to serve additional interrogatories may be granted to the extent
consistent with Sec. 502.141(e)(2).
(2) Scope. An interrogatory may relate to any matter that may be
inquired into under Sec. 502.141(e) and (f). An interrogatory is not
objectionable merely because it asks for an opinion or contention that
relates to fact or the application of law to fact, but the presiding
officer may order that the interrogatory need not be answered until
designated discovery is complete, or until a prehearing conference or
some other time.
(b) Answers and objections. (1) Responding party. The
interrogatories must be answered:
(i) By the party to whom they are directed; or
(ii) If that party is a public or private corporation, a
partnership, an association, or a governmental agency, by any officer or
representative, who must furnish the information available to the party.
(2) Time to respond. The responding party must serve its answers and
any objections within 30 days after being served with the
interrogatories. A shorter or longer time may be stipulated to as
provided in Sec. 502.141(l) of this subpart or be ordered by the
presiding officer.
(3) Answering each interrogatory. Each interrogatory must, to the
extent it is not objected to, be answered separately and fully in
writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must
be stated with specificity. Any ground not stated in a timely objection
is waived unless the presiding officer, for good cause, excuses the
failure.
(5) Signature. The person who makes the answers must sign them, and
the attorney who objects must sign any objections.
(c) Use. An answer to an interrogatory may be used to the extent
allowed by the rules in this part.
(d) Option to produce business records. If the answer to an
interrogatory may be determined by examining, auditing, compiling,
abstracting, or summarizing a party's business records (including
electronically stored information), and if the burden of deriving or
ascertaining the answer will be substantially the same for either party,
the responding party may answer by:
(1) Specifying the records that must be reviewed, in sufficient
detail to enable the interrogating party to locate and identify them as
readily as the responding party could; and
(2) Giving the interrogating party a reasonable opportunity to
examine and audit the records and to make copies, compilations,
abstracts, or summaries. [Rule 205.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016;
81 FR 93837, Dec. 22, 2016]
Sec. 502.146 Producing documents, electronically stored information,
and tangible things, or entering onto land, for inspection and other
purposes.
(a) In general. A party may serve on any other party a request
within the scope of Sec. 502.141(e) and (f):
(1) To produce and permit the requesting party or its representative
to inspect, copy, test, or sample the following items in the responding
party's possession, custody, or control:
(i) Any designated documents or electronically stored information,
including writings, drawings, graphs, charts, photographs, sound
recordings, images, and other data or data compilations, stored in any
medium from which information can be obtained either directly or, if
necessary, after translation by the responding party into a reasonably
usable form; or
(ii) Any designated tangible things; or
[[Page 56]]
(2) To permit entry onto designated land or other property possessed
or controlled by the responding party, so that the requesting party may
inspect, measure, survey, photograph, test, or sample the property or
any designated object or operation on it.
(b) Procedure. (1) Contents of the request. The request:
(i) Must describe with reasonable particularity each item or
category of items to be inspected;
(ii) Must specify a reasonable time, place, and manner for the
inspection and for performing the related acts; and
(iii) May specify the form or forms in which electronically stored
information is to be produced.
(2) Responses and objections. (i) Time to respond. The party to whom
the request is directed must respond in writing within 30 days after
being served. A shorter or longer time may be stipulated to as provided
in Sec. 502.141(l) of this subpart or be ordered by the presiding
officer.
(ii) Responding to each item. For each item or category, the
response must either state that inspection and related activities will
be permitted as requested or state an objection to the request,
including the reasons.
(iii) Objections. An objection to part of a request must specify the
part and permit inspection of the rest.
(iv) Responding to a request for production of electronically stored
information. The response may state an objection to a requested form for
producing electronically stored information. If the responding party
objects to a requested form, or if no form was specified in the request,
the party must state the form or forms it intends to use.
(v) Producing the documents or electronically stored information.
Unless otherwise stipulated or ordered by the presiding officer, these
procedures apply to producing documents or electronically stored
information:
(A) A party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond to the
categories in the request;
(B) If a request does not specify a form for producing
electronically stored information, a party must produce it in a form or
forms in which it is ordinarily maintained or in a reasonably usable
form or forms; and
(C) A party need not produce the same electronically stored
information in more than one form.
(c) Nonparties. By subpoena under subpart I of this part, a nonparty
may be compelled to produce documents and tangible things or to permit
an inspection. [Rule 206.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016;
81 FR 93837, Dec. 22, 2016]
Sec. 502.147 Requests for admission.
(a) Scope and procedure. (1) Scope. A party may serve on any other
party a written request to admit, for the purposes of the pending action
only, the truth of any nonprivileged relevant matters relating to facts,
the application of law to fact, or opinions about either, and the
genuineness of any described documents.
(2) Form; copies of documents. Each matter must be separately
stated. A request to admit the genuineness of a document must be
accompanied by a copy of the document unless it is, or has been,
otherwise furnished or made available for inspection and copying.
(3) Time to respond; effect of failure to respond. A matter is
admitted unless, within 30 days after being served, the party to whom
the request is directed serves on the requesting party a written answer
or objection addressed to the matter and signed by the party or its
attorney. A shorter or longer time for responding may be stipulated to
as provided in Sec. 502.141(l) of this subpart or be ordered by the
presiding officer.
(4) Answer. If a matter is not admitted, the answer must
specifically deny it or state in detail why the answering party cannot
truthfully admit or deny it. A denial must fairly respond to the
substance of the matter; and when good faith requires that a party
qualify an answer or deny only a part of a matter, the answer must
specify the part admitted and qualify or deny the rest. The answering
party may assert lack of knowledge or information as a reason for
failing to admit or deny only if the party states that it has made
reasonable inquiry and that the information it knows or can readily
obtain is
[[Page 57]]
insufficient to enable it to admit or deny.
(5) Objections. The grounds for objecting to a request must be
stated. A party may not object solely on the ground that the request
presents a genuine issue for adjudication.
(6) Motion regarding the sufficiency of an answer or objection. The
requesting party may move for a determination of the sufficiency of an
answer or objection. Unless the presiding officer finds an objection
justified, the presiding officer must order that an answer be served. On
finding that an answer does not comply with this rule, the presiding
officer may order either that the matter is admitted or that an amended
answer be served. The presiding officer may defer a decision until a
prehearing conference or a specified time prior to hearing.
(b) Effect of admission; withdrawal or amendment of admission. A
matter admitted under this rule is conclusively established unless the
presiding officer, on motion, permits the admission to be withdrawn or
amended. The presiding officer may permit withdrawal or amendment if it
would promote the presentation of the merits of the action and if the
presiding officer is not persuaded that it would prejudice the
requesting party in maintaining or defending the action on the merits.
An admission under this rule is not an admission for any other purpose
and cannot be used against the party in any other proceeding. [Rule
207.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016;
81 FR 93837, Dec. 22, 2016]
Sec. 502.148 Use of discovery procedures directed to Commission
staff personnel.
(a) Discovery procedures described in Sec. Sec. 502.142 through
502.147, directed to Commission staff personnel must be permitted and
must be governed by the procedures set forth in those sections except as
modified by paragraphs (b) and (c) of this section. All notices to take
depositions, written interrogatories, requests for production of
documents and other things, requests for admissions, and any motions in
connection with the foregoing, must be served on the Secretary of the
Commission.
(b) The General Counsel must designate an attorney to represent any
Commission staff personnel to whom any discovery requests or motions are
directed. The attorney so designated must not thereafter participate in
the Commission's decision-making process concerning any issue in the
proceeding.
(c) Rulings of the presiding officer issued under paragraph (a) of
this section must become final rulings of the Commission unless an
appeal is filed within 10 days after date of issuance of such rulings or
unless the Commission on its own motion reverses, modifies, or stays
such rulings within 20 days of their issuance. Replies to appeals may be
filed within 10 days. No motion for leave to appeal is necessary in such
instances and no ruling of the presiding officer must be effective until
20 days from date of issuance unless the Commission otherwise directs.
[Rule 208.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016;
81 FR 93837, Dec. 22, 2016]
Sec. 502.149 Use of depositions at hearings.
(a) Using depositions. (1) In general. At a hearing, all or part of
a deposition may be used against a party on these conditions:
(i) The party was present or represented at the taking of the
deposition or had reasonable notice of it;
(ii) It is used to the extent it would be admissible if the deponent
were present and testifying; and
(iii) The use is allowed by Sec. 502.149(a)(2) through (7).
(2) Impeachment and other uses. Any party may use a deposition to
contradict or impeach the testimony given by the deponent as a witness,
or for any other purpose allowed by Sec. 502.204 of subpart L of this
part.
(3) Deposition of party, representative, or designee. An adverse
party may use for any purpose the deposition of a party or anyone who,
when deposed, was the party's officer, director, managing
representative, or designee under Sec. 502.143(b)(6) or Sec.
502.144(a)(4).
(4) Unavailable witness. A party may use for any purpose the
deposition of a
[[Page 58]]
witness, whether or not a party, if the Commission or presiding officer
finds:
(i) That the witness is dead;
(ii) That the witness cannot attend or testify because of age,
illness, infirmity, or imprisonment;
(iii) That the party offering the deposition could not procure the
witness's attendance by subpoena; or
(iv) On motion and notice, that exceptional circumstances make it
desirable, in the interest of justice and with due regard to the
importance of live testimony at a hearing, to permit the deposition to
be used.
(5) Using part of a deposition. If a party offers in evidence only
part of a deposition, an adverse party may require the offeror to
introduce other parts that in fairness should be considered with the
part introduced, and any party may itself introduce any other parts.
(6) Substituting a party. Substituting a party does not affect the
right to use a deposition previously taken.
(7) Deposition taken in an earlier action. A deposition lawfully
taken and, if required, filed in any Federal or State court action may
be used in a later action involving the same subject matter between the
same parties, or their representatives or successors in interest, to the
same extent as if taken in the later action. A deposition previously
taken may also be used as allowed by Sec. 502.204 of subpart L of this
part.
(b) Objections to admissibility. Subject to Sec. 502.142(b) and
Sec. 502.149(d)(3), an objection may be made at a hearing to the
admission of any deposition testimony that would be inadmissible if the
witness were present and testifying.
(c) Form of presentation. Unless the presiding officer orders
otherwise, a party must provide a transcript of any deposition testimony
the party offers, but may provide the presiding officer with the
testimony in nontranscript form as well.
(d) Waiver of objections. (1) To the notice. An objection to an
error or irregularity in a deposition notice is waived unless promptly
served in writing on the party giving the notice.
(2) To the officer's qualification. An objection based on
qualification of the officer before whom a deposition is to be taken is
waived if not made:
(i) Before the deposition begins; or
(ii) Promptly after the basis for disqualification becomes known or,
with reasonable diligence, could have been known.
(3) To the taking of the deposition. (i) Objection to competence,
relevance, or materiality. An objection to a deponent's competence, or
to the competence, relevance, or materiality of testimony, is not waived
by a failure to make the objection before or during the deposition,
unless the ground for it might have been corrected at that time.
(ii) Objection to an error or irregularity. An objection to an error
or irregularity at an oral examination is waived if:
(A) It relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party's conduct, or other
matters that might have been corrected at that time; and
(B) It is not timely made during the deposition.
(iii) Objection to a written question. An objection to the form of a
written question under Sec. 502.144 of this subpart is waived if not
served in writing on the party submitting the question within the time
for serving responsive questions or, if the question is a recross-
question, within 7 days after being served with it.
(4) To completing and returning the deposition. An objection to how
the officer transcribed the testimony, or prepared, signed, certified,
sealed, endorsed, sent, or otherwise dealt with the deposition, is
waived unless a motion to suppress is made promptly after the error or
irregularity becomes known or, with reasonable diligence, could have
been known. [Rule 209.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016;
81 FR 93837, Dec. 22, 2016]
Sec. 502.150 Motions to compel initial disclosures or compliance with
discovery requests; failure to comply with order to make disclosure or
answer or produce documents; sanctions; enforcement.
(a) Motion for order to compel initial disclosures or compliance
with discovery
[[Page 59]]
requests. (1) A party may file a motion pursuant to Sec. 502.69 for an
order compelling compliance with the requirement for initial disclosures
provided in Sec. 502.141 or with its discovery requests as provided in
this subpart, if a deponent fails to answer a question asked at a
deposition or by written questions; a corporation or other entity fails
to make a designation of an individual who will testify on its behalf; a
party fails to answer an interrogatory; or a party fails to respond that
inspection will be permitted, or fails to permit inspection, as
requested under Sec. 502.146 of this subpart. For purposes of this
section, a failure to make a disclosure, answer, or respond includes an
evasive or incomplete disclosure, answer, or response.
(2) A motion to compel must include:
(i) A certification that the moving party has conferred in good
faith or attempted to confer with the party failing to make initial
disclosure or respond to discovery requests as provided in this subpart
in an effort to obtain compliance without the necessity of a motion;
(ii) A copy of the discovery requests that have not been answered or
for which evasive or incomplete responses have been given. If the motion
is limited to specific discovery requests, only those requests are to be
included;
(iii) If a disclosure has been made or an answer or response has
been given, a copy of the disclosure, answer, or response in its
entirety;
(iv) A copy of the certificate of service that accompanied the
discovery request; and
(v) A request for relief and supporting argument, if any.
(3) A party may file a response to the motion within 7 days of the
service date of the motion. Unless there is a dispute with respect to
the accuracy of the versions of the discovery requests, responses
thereto, or the disclosures submitted by the moving party, the response
must not include duplicative copies of them.
(4) A reply to a response is not allowed unless requested by the
presiding officer, or upon a showing of extraordinary circumstances.
(b) Failure to comply with order compelling disclosures or
discovery. If a party or a party's officer or authorized representative
fails or refuses to obey an order requiring it to make disclosures or to
respond to discovery requests, the presiding officer upon his or her own
initiative or upon motion of a party may make such orders in regard to
the failure or refusal as are just. A motion must include a
certification that the moving party has conferred in good faith or
attempted to confer with the disobedient party in an effort to obtain
compliance without the necessity of a motion. An order of the presiding
officer may:
(1) Direct that the matters included in the order or any other
designated facts must be taken to be established for the purposes of the
action as the party making the motion claims;
(2) Prohibit the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in
evidence; or
(3) Strike pleadings in whole or in part; staying further
proceedings until the order is obeyed; or dismissing the action or
proceeding or any party thereto, or rendering a decision by default
against the disobedient party.
(c) Enforcement of orders and subpoenas. In the event of refusal to
obey an order or failure to comply with a subpoena, the Attorney General
at the request of the Commission, or any party injured thereby may seek
enforcement by a United States district court having jurisdiction over
the parties. Any action with respect to enforcement of subpoenas or
orders relating to depositions, written interrogatories, or other
discovery matters must be taken within 20 days of the date of refusal to
obey or failure to comply. A private party must advise the Commission 5
days (excluding Saturdays, Sundays and legal holidays) before applying
to the court of its intent to seek enforcement of such subpoenas and
discovery orders.
(d) Persons and documents located in a foreign country. Orders of
the presiding officer directed to persons or documents located in a
foreign country must become final orders of the Commission unless an
appeal to the Commission is filed within 10 days after date of issuance
of such orders or unless the Commission on its own motion
[[Page 60]]
reverses, modifies, or stays such rulings within 20 days of their
issuance. Replies to appeals may be filed within 10 days. No motion for
leave to appeal is necessary in such instances and no orders of the
presiding officer must be effective until 20 days from date of issuance
unless the Commission otherwise directs. [Rule 210.]
[77 FR 61529, Oct. 10, 2012. Redesignated at 81 FR 93836, Dec. 22, 2016;
81 FR 93837, Dec. 22, 2016]
Sec. Sec. 502.151-502.169 [Reserved]
Subpart K [Reserved]
Sec. Sec. 502.181-502.187 [Reserved]
Subpart L_Presentation of Evidence
Source: 81 FR 93837, Dec. 22, 2016, unless otherwise noted.
Sec. 502.201 Applicability and scope.
(a) The rules in this subpart apply to adjudicatory proceedings
conducted under the statutes administered by the Commission involving
matters which require determination after notice and opportunity for
hearing. Adjudicatory proceedings are formal proceedings commenced upon
the filing of a sworn complaint or by Order of the Commission. Such
proceedings will be conducted pursuant to the Administrative Procedure
Act, 5 U.S.C. 551-559, and the rules in this subpart.
(b) The term hearing means a formal adjudicatory proceeding in which
evidence is presented orally, or through written statements, or by
combination thereof. The term oral hearing means a hearing at which
evidence is presented through oral testimony of a witness. [Rule 201].
Sec. 502.202 Right of parties to present evidence.
Every party has the right to present its case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of
the facts. The presiding officer, however, has the right and duty to
limit the introduction of evidence and the examination and cross-
examination of witnesses when, in his or her judgment, such evidence or
examination is irrelevant, immaterial, or unduly repetitious. [Rule
202.]
Sec. 502.203 Burden of proof.
In all cases governed by the requirements of the Administrative
Procedure Act, 5 U.S.C. 556(d), the burden of proof is on the proponent
of the motion or the order. [Rule 203.]
Sec. 502.204 Evidence admissible.
(a) In any proceeding under the rules in this part and in accordance
with the Administrative Procedure Act, all evidence which is relevant,
material, reliable and probative, and not unduly repetitious or
cumulative, will be admissible. All other evidence will be excluded. The
presiding officer may consider the Federal Rules of Evidence for
guidance.
(b) A party who objects to a ruling of the presiding officer
rejecting or excluding proffered evidence may make an offer of proof. If
the ruling excludes proffered oral testimony, an offer of proof may
consist of a statement by counsel of the substance of the evidence that
would be adduced, or in the discretion of the presiding officer,
testimony of the witness. If the ruling excludes documents offered as
evidence or reference to documents or records, the documents or records
shall be marked for identification and will constitute the offer of
proof. [Rule 204.]
Sec. 502.205 Records in other proceedings.
Portions of the record of other proceedings may be received in
evidence. A true copy of the records sought to be admitted must be
presented in the form of an exhibit unless the presiding officer accepts
the parties' stipulation that such records may be incorporated by
reference. [Rule 205.]
Sec. 502.206 Documents incorporated into the record by reference.
Any matter contained in a document on file with the Commission that
is available to the public may be received in evidence through
incorporation by
[[Page 61]]
reference without producing such document, provided that the matter so
offered is specified in such manner as to be clearly identified, with
sufficient particularity, and readily located electronically. [Rule
206.]
Sec. 502.207 Stipulations.
The parties may, and are encouraged to, stipulate any facts involved
in the proceeding and include them in the record with the consent of the
presiding officer. A stipulation may be admitted even if all parties do
not agree, provided that any party who does not agree to the stipulation
has the right to cross-examine and offer rebuttal evidence. [Rule 207.]
Sec. 502.208 Objection to public disclosure of information.
(a) If any party wishes to present confidential information or upon
objection to public disclosure of any information sought to be elicited,
the requirements and procedures in Sec. 502.5 will apply.
(b) In an oral hearing, the presiding officer may in his or her
discretion order that a witness will disclose such information only in
the presence of the parties and those designated and authorized by the
presiding officer. Any transcript of such testimony will be held
confidential to the extent the presiding officer determines. Copies of
transcripts will be served only to authorized parties or their
representatives or other parties as the presiding officer may designate.
(c) Any information given pursuant to this section may be used by
the presiding officer or the Commission if deemed necessary to a correct
decision in the proceeding. [Rule 208.]
Sec. 502.209 Prehearing conference.
(a)(1) Prior to any hearing, the Commission or presiding officer may
direct all interested parties, by written notice, to attend one or more
prehearing conferences for the purpose of considering any settlement
under Sec. 502.91, formulating the issues in the proceeding, and
determining other matters to aid in its disposition. In addition to any
offers of settlement or proposals of adjustment, the following may be
considered:
(i) Simplification of the issues;
(ii) The necessity or desirability of amendments to the pleadings;
(iii) The possibility of obtaining admissions of fact and of
documents that will avoid unnecessary proof;
(iv) Limitation of the number of witnesses;
(v) The procedure to be used at the hearing;
(vi) The distribution to the parties prior to the hearing of written
testimony and exhibits;
(vii) Consolidation of the examination of witnesses by counsel;
(viii) Such other matters as may aid in the disposition of the
proceeding.
(2) Prior to the hearing, the presiding officer may require exchange
of exhibits and any other material that may expedite the hearing. The
presiding officer will assume the responsibility of accomplishing the
purposes of the notice of prehearing conference so far as this may be
possible without prejudice to the rights of any party.
(3) The presiding officer will rule upon all matters presented for
decision, orally upon the record when feasible, or by subsequent ruling
in writing. If a party determines that a ruling made orally does not
cover fully the issue presented, or is unclear, such party may file a
motion requesting a further ruling within ten (10) days after receipt of
the transcript.
(b) In any proceeding under the rules in this part, the presiding
officer hold an informal conference prior to the taking of testimony, or
may recess the hearing for such a conference, with a view to carrying
out the purposes of this section.
(c) At any prehearing conference, consideration may be given to
whether the use of alternative dispute resolution would be appropriate
or useful for the disposition of the proceeding whether or not there has
been previous consideration of such use. [Rule 209.]
Sec. 502.210 Prehearing statements.
(a) Unless a waiver is granted by the presiding officer, it is the
duty of all parties to a proceeding to prepare a statement or statements
at a time and in the manner to be established by the presiding officer
provided that there has been reasonable opportunity for
[[Page 62]]
discovery. To the extent possible, joint statements should be prepared.
(b) The prehearing statement must state the name of the party or
parties on whose behalf it is presented and briefly set forth the
following matters, unless otherwise ordered by the presiding officer:
(1) Issues involved in the proceeding.
(2) Facts stipulated pursuant to the procedures together with a
statement that the party or parties have communicated or conferred in a
good faith effort to reach stipulation to the fullest extent possible.
(3) Facts in dispute.
(4) Witnesses and exhibits by which disputed facts will be
litigated.
(5) A brief statement of applicable law.
(6) The conclusion to be drawn.
(7) Suggested time and location of hearing and estimated time
required for presentation of the party's or parties' case.
(8) Any appropriate comments, suggestions, or information which
might assist the parties in preparing for the hearing or otherwise aid
in the disposition of the proceeding.
(c) The presiding officer may, for good cause shown, permit a party
to introduce facts or argue points of law outside the scope of the facts
and law outlined in the prehearing statement. Failure to file a
prehearing statement, unless waiver has been granted by the presiding
officer, may result in dismissal of a party from the proceeding,
dismissal of a complaint, judgment against respondents, or imposition of
such other sanctions as may be appropriate under the circumstances.
(d) Following the submission of prehearing statements, the presiding
officer may, upon motion or otherwise, convene a prehearing conference
for the purpose of further narrowing issues and limiting the scope of
the hearing if, in his or her opinion, the prehearing statements
indicate lack of dispute of material fact not previously acknowledged by
the parties or lack of legitimate need for cross-examination and is
authorized to issue appropriate orders consistent with the purposes
stated in this section. [Rule 210.]
Sec. 502.211 Notice of time and place of oral hearing; postponement
of hearing.
(a) The notice of an oral hearing will designate the time and place
the person or persons who will preside, and the type of decision to be
issued. The date or place of a hearing for which notice has been issued
may be changed when warranted. Reasonable notice will be given to the
parties or their representatives of the time and place of the change
thereof, due regard being had for the public interest and the
convenience and necessity of the parties or their representatives.
Notice may be served by mail, facsimile transmission, or electronic
mail.
(b) Motions for postponement of any hearing date must be filed in
accordance with Sec. 502.104. [Rule 211.]
Sec. 502.212 Exceptions to rulings of presiding officer unnecessary.
A formal exception to a ruling or order is unnecessary. When the
ruling or order is requested or made, the party doing so need only state
the action that it wants the presiding officer to take or that it
objects to, along with the grounds for the request or objection. Failing
to object does not prejudice a party who had no opportunity to do so
when the ruling or order was made. [Rule 212.]
Sec. 502.213 Official transcript.
(a) The Commission will designate the official reporter for all
hearings. The official transcript of testimony taken, together with any
exhibits and any briefs or memoranda of law filed therewith, will be
filed with the Commission. Transcripts of testimony will be available in
any proceeding under the rules in this part, at actual cost of
duplication.
(b)(1) Where the Commission does not request daily copy service, any
party requesting such service must bear the incremental cost of
transcription above the regular copy transcription cost borne by the
Commission, in addition to the actual cost of duplication. Where the
requesting party applies for and demonstrates that the furnishing of
daily copy is indispensable to the protection of a vital right or
interest
[[Page 63]]
in achieving a fair hearing, the presiding officer in the proceeding in
which the application is made will order that daily copy service be
provided the requesting party at the actual cost of duplication, with
the full cost of transcription being borne by the Commission.
(2) In the event a request for daily copy is denied by the presiding
officer, the requesting party, in order to obtain daily copy, must pay
the cost of transcription over and above that borne by the Commission,
i.e., the incremental cost between that paid by the Commission when it
requests regular copy and when it requests daily copy. The decision of
the presiding officer in this situation is interpreted as falling within
the scope of the functions and powers of the presiding officer, as
defined in Sec. 502.25(a).
(c) Motions made at the hearing to correct the transcript will be
acted upon by the presiding officer. Motions made after an oral hearing
to correct the record must be filed with the presiding officer within
twenty-five (25) days after the last day of hearing or any session
thereof, unless otherwise directed by the presiding officer, and must be
served on all parties. If no objections are received within ten (10)
days after date of service, the transcript will, upon approval of the
presiding officer, be changed to reflect such corrections. If objections
are received, the motion will be acted upon with due consideration of
the stenographic record of the hearing. [Rule 213.]
Sec. 502.214 Briefs; requests for findings.
(a) The presiding officer will determine the time and manner of
filing briefs and any enlargement of time.
(b) Briefs will be served upon all parties pursuant to subpart H of
this part.
(c) Unless otherwise ordered by the presiding officer, opening or
initial briefs must contain the following matters in separately
captioned sections:
(1) Introductory section describing the nature and background of the
case;
(2) Proposed findings of fact in serially numbered paragraphs with
reference to exhibit numbers and pages of the transcript;
(3) Argument based upon principles of law with appropriate citations
of the authorities relied upon; and
(4) Conclusions.
(d) All briefs must contain a subject index or table of contents
with page references and a list of authorities cited.
(e) All briefs filed pursuant to this section must ordinarily be
limited to eighty (80) pages in length, exclusive of pages containing
the table of contents, table of authorities, and certificate of service,
unless the presiding officer allows the parties to exceed this limit for
good cause shown and upon application filed not later than seven (7)
days before the time fixed for filing of such a brief or reply. [Rule
214.]
Sec. 502.215 Requests for enlargement of time for filing briefs.
Requests for enlargement of time to file briefs must conform to the
requirements of Sec. 502.102. [Rule 215.]
Sec. 502.216 Supplementing the record.
A motion to supplement the record, pursuant to Sec. 502.69, should
be filed if submission of evidence is desired after the parties'
presentation in a proceeding, but before issuance by the presiding
officer of an initial decision. [Rule 216.]
Sec. 502.217 Record of decision.
The transcript of testimony and exhibits, together with all filings
and motions filed in the proceeding, will constitute the exclusive
record for decision. [Rule 217.]
Subpart M_Decisions; Appeals; Exceptions
Sec. 502.221 Appeal from ruling of presiding officer other than
orders of dismissal in whole or in part.
(a) Rulings of the presiding officer may not be appealed prior to or
during the course of the hearing, or subsequent thereto, if the
proceeding is still before him or her, except where the presiding
officer finds it necessary to allow an appeal to the Commission to
prevent substantial delay, expense, or detriment to the public interest,
or undue prejudice to a party.
[[Page 64]]
(b) Any party seeking to appeal must file a motion for leave to
appeal no later than fifteen (15) days after written service or oral
notice of the ruling in question, unless the presiding officer, for good
cause shown, enlarges or shortens the time. Any such motion must contain
the grounds for leave to appeal and the appeal itself.
(c) Replies to the motion for leave to appeal and the appeal may be
filed within fifteen (15) days after date of service thereof, unless the
presiding officer, for good cause shown, enlarges or shortens the time.
If the motion is granted, the presiding officer must certify the appeal
to the Commission.
(d) Unless otherwise provided, the certification of the appeal will
not operate as a stay of the proceeding before the presiding officer.
(e) The provisions of Sec. 502.10 do not apply to this section.
[Rule 221.]
[81 FR 93839, Dec. 22, 2016]
Sec. 502.222 [Reserved]
Sec. 502.223 Decisions--Administrative law judges.
To the administrative law judges is delegated the authority to make
and serve initial or recommended decisions. All initial and recommended
decisions will include a statement of findings and conclusions, as well
as the reasons or basis therefor, upon all the material issues presented
on the record, and the appropriate rule, order, sanction, relief, or
denial thereof. Where appropriate, the statement of findings and
conclusions should be numbered. Initial decisions should address only
those issues necessary to a resolution of the material issues presented
on the record. A copy of each decision when issued shall be served on
the parties to the proceeding. In proceedings involving overcharge
claims, the presiding officer may, where appropriate, require that the
carrier publish notice in its tariff of the substance of the decision.
This provision shall also apply to decisions issued pursuant to subpart
T of this part. [Rule 223.]
[64 FR 7810, Feb. 17, 1999]
Sec. 502.224 Separation of functions.
The separation of functions as required by 5 U.S.C. 554(d) shall be
observed in proceedings under subparts A to Q inclusive, of this part.
[Rule 224.]
Sec. 502.225 Decisions--Commission.
All final decisions will include a statement of findings and
conclusions, as well as the reasons or basis therefor, upon all the
material issues presented on the record, and the appropriate rule,
order, sanction, relief, or denial thereof. A copy of each decision when
issued shall be served on the parties to the proceeding. This provision
shall also apply to decisions issued pursuant to subpart T of this part.
[Rule 225.]
[64 FR 7810, Feb. 17, 1999]
Sec. 502.226 Decision based on official notice; public documents.
(a) Official notice may be taken of such matters as might be
judicially noticed by the courts, or of technical or scientific facts
within the general knowledge of the Commission as an expert body,
provided, that where a decision or part thereof rests on the official
notice of a material fact not appearing in the evidence in the record,
the fact of official notice shall be so stated in the decision, and any
party, upon timely request, shall be afforded an opportunity to show the
contrary.
(b) Whenever there is offered in evidence (in whole or in part) a
public document, such as an official report, decision, opinion, or
published scientific or economic statistical data issued by any of the
executive departments (or their subdivisions), legislative agencies or
committees, or administrative agencies of the Federal Government
(including Government-owned corporations), or a similar document issued
by a state or its agencies, and such document (or part thereof) has been
shown by the offeror to be reasonably available to the public, such
document need not be produced or marked for identification, but may be
offered in evidence as a public document by specifying the document or
relevant part thereof. [Rule 226.]
[[Page 65]]
Sec. 502.227 Exceptions to decisions or orders of dismissal of
administrative law judge; replies thereto; review of decisions or
orders of dismissal by Commission; and judicial review.
(a)(1) Within twenty-two (22) days after date of service of the
initial decision, unless a shorter period is fixed under Sec. 502.103,
any party may file a memorandum excepting to any conclusions, findings,
or statements contained in such decision, and a brief in support of such
memorandum. Such exceptions and brief shall constitute one document,
shall indicate with particularity alleged errors, shall indicate
transcript page and exhibit number when referring to the record, and
shall be served on all parties pursuant to subpart H of this part.
(2) Any adverse party may file and serve a reply to such exceptions
within twenty-two (22) days after the date of service thereof, which
shall contain appropriate transcript and exhibit references.
(3) Whenever the officer who presided at the reception of the
evidence, or other qualified officer, makes an initial decision, such
decision shall become the decision of the Commission thirty (30) days
after date of service thereof (and the Secretary shall so notify the
parties), unless within such 30-day period, or greater time as enlarged
by the Commission for good cause shown, request for review is made in
exceptions filed or a determination to review is made by the Commission
on its own initiative.
(4) A decision or order of dismissal by an administrative law judge
shall only be considered final for purposes of judicial review if the
party has first sought review by the Commission pursuant to this
section.
(5) Upon the filing of exceptions to, or review of, an initial
decision, such decision shall become inoperative until the Commission
determines the matter.
(6) Where exceptions are filed to, or the Commission reviews, an
initial decision, the Commission, except as it may limit the issues upon
notice or by rule, will have all the powers which it would have in
making the initial decision. Whenever the Commission shall determine to
review an initial decision on its own initiative, notice of such
intention shall be served upon the parties.
(7) The time periods for filing exceptions and replies to
exceptions, prescribed by this section, shall not apply to proceedings
conducted under Sec. 502.75.
(b)(1) If an administrative law judge has granted a motion for
dismissal of the proceeding in whole or in part, any party desiring to
appeal must file such appeal no later than twenty-two (22) days after
service of the ruling on the motion in question.
(2) Any adverse party may file and serve a reply to an appeal under
this paragraph within twenty-two (22) days after the appeal is served.
(3) The denial of a petition to intervene or withdrawal of a grant
of intervention shall be deemed to be a dismissal within the meaning of
this paragraph.
(c) Whenever an administrative law judge orders dismissal of a
proceeding in whole or in part, such order, in the absence of appeal,
shall become the order of the Commission thirty (30) days after date of
service of such order (and the Secretary shall so notify the parties),
unless within such 30-day period the Commission decides to review such
order on its own motion, in which case notice of such intention shall be
served upon the parties.
(d) The Commission shall not, on its own initiative, review any
initial decision or order of dismissal unless such review is requested
by an individual Commissioner. Any such request must be transmitted to
the Secretary within thirty (30) days after date of service of the
decision or order. Such request shall be sufficient to bring the matter
before the Commission for review.
(e) All briefs and replies filed pursuant to this section shall
ordinarily be limited to fifty (50) pages in length, exclusive of pages
containing the table of contents, table of authorities, and certificate
of service, unless the Commission allows the parties to exceed this
limit for good cause shown and upon application filed not later than
seven
[[Page 66]]
(7) days before the time fixed for filing of such a brief or reply.
[Rule 227.]
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993; 61
FR 66617, Dec. 18, 1996; 64 FR 7810, Feb. 17, 1999; 80 FR 57307, Sept.
23, 2015]
Sec. 502.228 Request for enlargement of time to file exceptions and
replies to exceptions.
Requests for enlargement of time to file exceptions, and briefs in
support of such exceptions, or replies to exceptions, must conform to
the applicable provisions of Sec. 502.102. Any enlargement of time
granted will automatically extend by the same period, the date for the
filing of notice or review by the Commission. [Rule 228.]
[80 FR 57307, Sept. 23, 2015]
Editorial Note: At 80 FR 57307, Sept. 23, 2015, Sec. 502.228 was
amended; however, the amendment could not be incorporated due to
inaccurate amendatory instruction.
Sec. 502.229 Certification of record by presiding or other officer.
The presiding or other officer shall certify and transmit the entire
record to the Commission when (a) exceptions are filed or the time
therefor has expired, (b) notice is given by the Commission that the
initial decision will be reviewed on its own initiative, or (c) the
Commission requires the case to be certified to it for initial decision.
[Rule 229.]
Sec. 502.230 Reopening by Commission.
(a) Reopening by the Commission. After an initial decision by the
presiding officer, or in a matter otherwise pending before the
Commission, but before issuance of a Commission decision, the Commission
may, after petition and reply in conformity with paragraphs (b) and (c)
of this section, or upon its own motion, reopen a proceeding for the
purpose of taking further evidence.
(b) Motion to reopen. A motion to reopen shall be served in
conformity with the requirements of subpart H and will set forth the
grounds requiring reopening of the proceeding, including material
changes of fact or law alleged to have occurred.
(c) Reply. Within ten (10) days following service of a motion to
reopen, any party may reply to such motion.
(d) Remand by the Commission. Nothing contained in this rule
precludes the Commission from remanding a proceeding to the presiding
officer for the taking of addition evidence or determining points of
law. [Rule 230.]
[81 FR 93839, Dec. 22, 2016]
Subpart N_Oral Argument; Submission for Final Decision
Sec. 502.241 Oral argument.
(a) The Commission may hear oral argument either on its own motion
or upon the written request of a party. If oral argument before the
Commission is desired on exceptions to an initial or recommended
decision, or on a motion, petition, or application, a request therefor
shall be made in writing. Any party may make such a request irrespective
of its filing exceptions under Sec. 502.227. If a brief on exceptions
is filed, the request for oral argument shall be incorporated in such
brief. Requests for oral argument on any motion, petition, or
application shall be made in the motion, petition, or application, or in
the reply thereto. If the Commission determines to hear oral argument, a
notice will be issued setting forth the order of presentation and the
amount of time allotted to each party.
(b)(1) Requests for oral argument will be granted or denied in the
discretion of the Commission.
(2) Parties requesting oral argument shall set forth the specific
issues they propose to address at oral argument.
(c) Those who appear before the Commission for oral argument shall
confine their argument to points of controlling importance raised on
exceptions or replies thereto. Where the facts of a case are adequately
and accurately dealt with in the initial or recommended decision,
parties should, as far as possible, address themselves in argument to
the conclusions.
(d) Effort should be made by parties taking the same position to
agree in advance of the argument upon those persons who are to present
their side of the case, and the names of such persons and the amount of
time requested should be received by the Commission not later than ten
(10) days before the date set for the argument. The fewer
[[Page 67]]
the number of persons making the argument the more effectively can the
parties' interests be presented in the time allotted. [Rule 241.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4144, Feb. 10, 1987]
Sec. 502.242 Submission to Commission for final decision.
A proceeding will be deemed submitted to the Commission for final
decision as follows: (a) If oral argument is had, the date of completion
thereof, or if memoranda on points of law are permitted to be filed
after argument, the last date of such filing; (b) if oral argument is
not had, the last date when exceptions or replies thereto are filed, or
if exceptions are not filed, the expiration date for such exceptions;
(c) in the case of an initial decision, the date of notice of the
Commission's intention to review the decision, if such notice is given.
[Rule 242.]
Sec. 502.243 Participation of absent Commissioner.
Any Commissioner who is not present at oral argument and who is
otherwise authorized to participate in a decision shall participate in
making that decision after reading the transcript of oral argument
unless he or she files in writing an election not to participate. [Rule
243.]
Subpart O_Reparation; Attorney Fees
Sec. 502.251 Proof on award of reparation.
If many shipments or points of origin or destination are involved in
a proceeding in which reparation is sought (See Sec. 502.63), the
Commission will determine in its decision the issues as to violations,
injury to complainant, and right to reparation. If complainant is found
entitled to reparation, the parties thereafter will be given an
opportunity to agree or make proof respecting the shipments and
pecuniary amount of reparation due before the order of the Commission
awarding reparation is entered. In such cases, freight bills and other
exhibits bearing on the details of all shipments, and the amount of
reparation on each, need not be produced at the original hearing unless
called for or needed to develop other pertinent facts. [Rule 251.]
Sec. 502.252 Reparation statements.
When the Commission finds that reparation is due, but that the
amount cannot be ascertained upon the record before it, the complainant
shall immediately prepare a statement in accordance with the approved
reparation statement in Exhibit No. 1 to this subpart, showing details
of the shipments on which reparation is claimed. This statement shall
not include any shipments not covered by the findings of the Commission.
Complainant shall forward the statement, together with the paid freight
bills on the shipments, or true copies thereof, to the respondent or
other person who collected the charges for checking and certification as
to accuracy. Statements so prepared and certified shall be filed with
the Commission for consideration in determining the amount of reparation
due. Disputes concerning the accuracy of amounts may be assigned for
conference by the Commission, or in its discretion referred for further
hearing. [Rule 252.]
Sec. 502.253 Interest in reparation proceedings.
Except as to applications for refund or waiver of freight charges
under Sec. 502.271 and claims which are settled by agreement of the
parties, and absent fraud or misconduct of a party, interest granted on
awards of reparation in complaint proceedings instituted under the
Shipping Act of 1984 will accrue from the date of injury to the date
specified in the Commission order awarding reparation. Compounding will
be daily from the date of injury to the date specified in the Commission
order awarding reparation. Normally, the date specified within which
payment must be made will be fifteen (15) days subsequent to the date of
service of the Commission order. Interest shall be computed on the basis
of the average monthly secondary market rate on six-month U.S. Treasury
bills commencing with the rate for the month that the injury occurred
and concluding with the latest available monthly U.S. Treasury bill rate
at the date of the Commission order awarding reparation.
[[Page 68]]
The monthly secondary market rates on six-month U.S. Treasury bills for
the reparation period will be summed up and divided by the number of
months for which interest rates are available in the reparation period
to determine the average interest rate applicable during the period.
[Rule 253.]
[64 FR 7810, Feb. 17, 1999]
Sec. 502.254 Attorney fees in complaint proceedings.
(a) General. In any complaint proceeding brought under 46 U.S.C.
41301 (sections 11(a)-(b) of the Shipping Act of 1984), the Commission
may, upon petition, award the prevailing party reasonable attorney fees.
(b) Definitions.
Attorney fees means the fair market value of the services of any
person permitted to appear and practice before the Commission in
accordance with subpart B of this part.
Decision means:
(1) An initial decision or dismissal order issued by an
administrative law judge;
(2) A final decision issued by a small claims officer; or
(3) A final decision issued by the Commission.
(c) Filing petitions for attorney fees. (1) In order to recover
attorney fees, the prevailing party must file a petition within 30 days
after a decision becomes final. For purposes of this section, a decision
is considered final when the time for seeking judicial review has
expired or when a court appeal has terminated.
(2) The prevailing party must file the petition with either:
(i) The administrative law judge or small claims officer, if that
official's decision became administratively final under Sec.
502.227(a)(3), Sec. 502.227(c), Sec. 502.304(g), or Sec. 502.318(a);
or
(ii) The Commission, if the Commission reviewed the decision of the
administrative law judge or small claims officer under Sec. 502.227,
Sec. 502.304, or Sec. 502.318.
(d) Content of petitions. (1) The petition must:
(i) Explain why attorney fees should be awarded in the proceeding;
(ii) Specify the number of hours claimed by each person representing
the prevailing party at each identifiable stage of the proceeding; and
(iii) Include supporting evidence of the reasonableness of the hours
claimed and the customary rates charged by attorneys and associated
legal representatives in the community where the person practices.
(2) The petition may request additional compensation, but any such
request must be supported by evidence that the customary rates for the
hours reasonably expended on the case would result in an unreasonably
low fee award.
(e) Replies to petitions. The opposing party may file a reply to the
petition within 20 days of the service date of the petition. The reply
may address the reasonableness of any aspect of the prevailing party's
claim and may suggest adjustments to the claim under the criteria stated
in paragraph (d) of this section.
(f) Rulings on petitions. (1) Upon consideration of a petition and
any reply thereto, the Commission, administrative law judge, or small
claims officer will issue an order granting or denying the petition.
(i) If the order awards the prevailing party attorney fees, the
order will state the total amount of attorney fees awarded, specify the
compensable hours and appropriate rate of compensation, and explain the
basis for any additional adjustments.
(ii) If the order denies the prevailing party attorney fees, the
order will explain the reasons for the denial.
(2) The Commission, administrative law judge, or small claims
officer may adopt a stipulated settlement of attorney fees.
(g) Timing of rulings. An order granting or denying a petition for
attorney fees will be served within 60 days of the date of the filing of
the reply to the petition or expiration of the reply period, except that
in cases involving a substantial dispute of facts critical to the
determination of an award, the Commission, administrative law judge, or
small claims officer may hold a hearing on such issues and extend the
time for issuing an order by an additional 30 days.
[[Page 69]]
(h) Appealing rulings by administrative law judge or small claims
officer. The relevant rules governing appeal and Commission review of
decisions by administrative law judges (Sec. Sec. 502.227; 502.318) and
small claims officers (Sec. 502.304) apply to orders issued by those
officers under this section. [Rule 254.]
[81 FR 10518, Mar. 1, 2016]
[[Page 70]]
Exhibit No. 1 to Subpart O [Sec. 502.252] of Part 502--Reparation
Statement To Be Filed Pursuant to Rule 252
Claim of __________ under the decision of the Federal Maritime Commission in Docket No. __________.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Date of As charged Should be
delivery Date Port -------------------------------- Charges
Date of or tender charges Vessel Voyage of Destination Route Commodity Weight or Reparation paid by
B/L of paid No. origin port measurement Rate Amount Rate Amount *
delivery
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Here insert name of person paying charges in the first instance, and state whether as consignor, consignee, or in what other capacity.
Total amount of reparation $____________________.
The undersigned hereby certifies that this statement has been checked against the records of this company
and found correct.
Date ____________________.
____________________ Steamship Company, Collecting Carrier Respondent,
By ____________________, Auditor
By ____________________, Claimant
____________________, Attorney
(address and date)
[[Page 71]]
Subpart P_Reconsideration of Proceedings
Sec. 502.261 Petitions for reconsideration and stay.
(a) Within thirty (30) days after issuance of a final decision or
order by the Commission, any party may file a petition for
reconsideration. Such petition shall be limited to 25 pages in length
and shall be served in conformity with the requirements of subpart H of
this part. A petition will be subject to summary rejection unless it:
(1) Specifies that there has been a change in material fact or in
applicable law, which change has occurred after issuance of the decision
or order;
(2) Identifies a substantive error in material fact contained in the
decision or order; or
(3) Addresses a finding, conclusion or other matter upon which the
party has not previously had the opportunity to comment or which was not
addressed in the briefs or arguments of any party. Petitions which
merely elaborate upon or repeat arguments made prior to the decision or
order will not be received. A petition shall be verified if verification
of the original pleading is required and shall not operate as a stay of
any rule or order of the Commission.
(b) A petition for stay of a Commission order which directs the
discontinuance of statutory violations will not be received.
(c) The provisions of this section are not applicable to decisions
issued pursuant to subpart S of this part. [Rule 261.]
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27211, May 7, 1993]
Sec. 502.262 Reply to petition for reconsideration or stay.
Any party may file a reply in opposition to a petition for
reconsideration or stay within fifteen (15) days after the date of
service of the petition in accordance with Sec. 502.74. The reply shall
be limited to 25 pages in length and shall be served in conformity with
subpart H of this part. [Rule 262.]
[58 FR 27211, May 7, 1993]
Subpart Q_Refund or Waiver of Freight Charges
Source: 64 FR 7811, Feb. 17, 1999, unless otherwise noted.
Sec. 502.271 Special docket application for permission to refund or
waive freight charges.
(a)(1) A common carrier or a shipper may file a special docket
application seeking permission for a common carrier or conference to
refund or waive collection of a portion of freight charges if there is:
(i) An error in the tariff;
(ii) An error in failing to publish a new tariff; or
(iii) An error in quoting a tariff .
(2) Such refund or waiver must not result in discrimination among
shippers, ports, or carriers.
(b) Such application must be filed within one hundred eighty (180)
days from the date of sailing of the vessel from the port at which the
cargo was loaded. An application is filed when it is placed in the mail,
delivered to a courier, or, if delivered by another method, when it is
received by the Commission. Filings by mail or courier must include a
certification as to date of mailing or delivery to the courier.
(c) Prior to submission of the application for a refund for an error
in a tariff or a failure to publish a new tariff, the carrier or
conference must publish a new tariff which sets forth the rate on which
refund or waiver would be based.
(d) Such application must be in accordance with Exhibit 1 to this
Subpart and must also comply with the following requirements:
(1) Applications must be submitted to the Office of the Secretary,
Federal Maritime Commission, Washington, DC 20573-0001.
(2) Applications must be submitted in an original and one (1) copy.
(3) Applications must be sworn to before a notary public or
otherwise verified in accordance with Sec. 502.112.
(4) When a rate published in a conference tariff is involved, the
carrier or shipper must serve a copy of the application on the
conference and so certify in accordance with Sec. 502.117 to that
service in the application. A shipper
[[Page 72]]
must also make a similar service and certification with respect to the
common carrier.
(5) Applications must be accompanied by remittance of a $117 filing
fee.
(e) Any application which does not furnish the information required
by this Subpart may be returned to the applicant by the Secretary
without prejudice to resubmission within the 180-day limitation period.
(f)(1) The Secretary in his discretion shall either forward an
application to the Office of Consumer Affairs and Dispute Resolution
Services, for assignment to a Special Dockets Officer, or assign an
application to the Office of Administrative Law Judges. Authority to
issue decisions under this subpart is delegated to the assigned Special
Dockets Officer or Administrative Law Judge.
(2) Applicants will be notified as to the assignment of a deciding
official, and the assignment of a special docket number. Formal
proceedings as described in other rules of this part need not be
conducted. The deciding official may, in his or her discretion, require
the submission of additional information.
(g) The deciding official shall issue a decision which, pursuant to
Sec. 501.21 of this chapter, shall become final ten (10) days after
service of such decision, unless the Commission in its discretion
chooses to review such decision within that time, or the applicant
chooses to file exceptions to such decision within that time. [Rule
271.]
[64 FR 7811, Feb. 17, 1999, as amended at 65 FR 81759, Dec. 27, 2000; 67
FR 39859, June 11, 2002; 70 FR 7669, Feb. 15, 2005; 70 FR 10329, Mar. 3,
2005; 70 FR 44867, Aug. 4, 2005; 81 FR 59144, Aug. 29, 2016]
Sec. Exhibit No. 1 to Subpart Q [Sec. 502.271(d)] of Part 502--
Application for Refund or Waiver of Freight Charges Due to Tariff or
Quoting Error
Federal Maritime Commission Special Docket No. _____ [leave blank].
Amount of Freight Charges to be refunded or waived:
Application of (Name of carrier or shipper) for the benefit of (Name
of person who paid or is responsible for payment of freight charges).
1. Shipment(s). Here fully describe:
(a) Commodity (according to tariff description).
(b) Number of shipments.
(c) Weight or measurement, container size, and number of containers
of individual shipment, as well as all shipments.
(d)(1) Date(s) of receipt of shipment(s) by the carrier;
(2) Date(s) of sailing(s) (furnish supporting evidence).
(e) Shipper and place of origin.
(f) Consignee, place of destination and routing of shipment(s).
(g) Name of carrier and date shown on bill of lading (furnish
legible copies of bill(s) of lading).
(h) Names of participating ocean carrier(s).
(i) Name(s) of vessel(s) involved in carriage.
(j) Amount of freight charges actually collected (furnish legible
copies of rated bill(s) of lading or freight bill(s), as appropriate)
broken down (i) per shipment, (ii) in the aggregate, (iii) by whom paid,
(iv) who is responsible for payment if different, and (v) date(s) of
collection.
(k) Rate and tariff commodity description applicable at time of
shipment (furnish legible copies of tariff materials).
(l) Rate and commodity description sought to be applied (furnish
legible copies of applicable tariff materials).
(m)(1) Amount of applicable freight charges, per shipment and in the
aggregate;
(2) Amount of freight charges at rate sought to be applied, per
shipment and in the aggregate.
(n) Amount of freight charges sought to be (refunded) (waived), per
shipment and in the aggregate.
2. Furnish docket numbers of other special docket applications or
decided or pending formal proceedings involving the same rate
situations.
3. Fully explain the basis for the application, i.e., the error,
failure to publish, or misquote, showing why the application should be
granted. Furnish affidavits, if appropriate, and legible copies of all
supporting documents. If the error is due to failure to publish a
tariff, specify the date when the carrier and/or conference intended or
agreed to publish a new tariff. If the application is based on a
misquote, the application must include the affidavit of the person who
made the misquote describing the circumstances surrounding such misquote
along with any other supporting documentary evidence available.
4. Furnish any information or evidence as to whether granting the
application may result in discrimination among shippers, ports or
carriers. List any shipments of other shippers of the same commodity
which (i) moved via the carrier(s) or conference involved in
[[Page 73]]
this application during the period of time beginning on the date the
intended rate would have become effective and ending on the day before
the effective date of the conforming tariff; (ii) moved on the same
voyage(s) of the vessel(s) carrying the shipment(s) described in No. 1,
above; or (iii), in the case of a misquote, moved between the date of
receipt of shipment(s) described in No. 1 above, and the date(s) of
sailing(s).
(Here set forth Name of Applicant, Signature of Authorized Person,
Typed or Printed Name of Person, Title of Person and Date)
State of , County of . ss:
I,___ , on oath declare that I am ___ of the above-named applicant,
that I have read this application and know its contents, and that they
are true. Subscribed and sworn to before me, a notary public in and for
the State of ______ , County of ______, this ___ day of ___ .
(Seal)
________________________________________________________________________
Notary Public
My Commission expires.
CERTIFICATE OF SERVICE (if applicable)
I hereby certify that I have this day served the foregoing document
upon the (insert the conference name if a conference tariff is involved;
or the name of the carrier if the applicant is a shipper) by delivering
a copy (insert means by which copy delivered).
Dated in (insert city, county, state) this ___ day of ___.
(signature)
For:
CERTIFICATE OF MAILING
I certify that the date shown below is the date of mailing (or date
of delivery to courier) of the original and one (1) copy of this
application to the Secretary, Federal Maritime Commission, Washington,
DC, 20573-0001.
Dated at ___, this ___ day of ___ .
(Signature) .
For.
Subpart R_Nonadjudicatory Investigations
Sec. 502.281 Investigational policy.
The Commission has extensive regulatory duties under the various
acts it is charged with administering. The conduct of investigations is
essential to the proper exercise of the Commission's regulatory duties.
It is the purpose of this subpart to establish procedures for the
conduct of such investigations which will insure protection of the
public interest in the proper and effective administration of the law.
The Commission encourages voluntary cooperation in its investigations
where such can be effected without delay or without prejudice to the
public interest. The Commission may, in any matter under investigation,
invoke any or all of the compulsory processes authorized by law. [Rule
281.]
Sec. 502.282 Initiation of investigations.
Commission inquiries and nonadjudicatory investigations are
originated by the Commission upon its own motion when in its discretion
the Commission determines that information is required for the purposes
of rulemaking or is necessary or helpful in the determination of its
policies or the carrying out of its duties, including whether to
institute formal proceedings directed toward determining whether any of
the laws which the Commission administers have been violated. [Rule
282.]
Sec. 502.283 Order of investigation.
When the Commission has determined that an investigation is
necessary, an Order of Investigation shall be issued. [Rule 283.]
Sec. 502.284 By whom conducted.
Investigations are conducted by Commission representatives
designated and duly authorized for the purpose. (See Sec. 502.25.) Such
representatives are authorized to exercise the duties of their office in
accordance with the laws of the United States and the regulations of the
Commission, including the resort to all compulsory processes authorized
by law, and the administration of oaths and affirmances in any matters
under investigation by the Commission. [Rule 284.]
Sec. 502.285 Investigational hearings.
(a) Investigational hearings, as distinguished from hearings in
adjudicatory proceedings, may be conducted in the course of any
investigation undertaken by the Commission, including inquiries
initiated for the purpose of determining whether or not a person is
complying with an order of the Commission.
(b) Investigational hearings may be held before the Commission, one
or more of its members, or a duly designated representative, for the
purpose
[[Page 74]]
of hearing the testimony of witnesses and receiving documents and other
data relating to any subject under investigation. Such hearings shall be
stenographically reported and a transcript thereof shall be made a part
of the record of investigation. [Rule 285.]
Sec. 502.286 Compulsory process.
The Commission, or its designated representative may issue orders or
subpoenas directing the person named therein to appear before a
designated representative at a designated time and place to testify or
to produce documentary evidence relating to any matter under
investigation, or both. Such orders and subpoenas shall be served in the
manner provided in Sec. 502.134. [Rule 286.]
[49 FR 44369, Nov. 6, 1984, as amended at 76 FR 10262, Feb. 24, 2011]
Sec. 502.287 Depositions.
The Commission, or its duly authorized representative, may order
testimony to be taken by deposition in any investigation at any stage of
such investigation. Such depositions may be taken before any person
designated by the Commission having the power to administer oaths. Such
testimony shall be reduced to writing by the person taking the
deposition or under his or her direction, and shall then be subscribed
by the deponent. Any person may be compelled to appear and be deposed
and to produce evidence in the same manner as witnesses may be compelled
to appear and testify and produce documentary evidence as provided in
Sec. 502.131. [Rule 287.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Sec. 502.288 Reports.
The Commission may issue an order requiring a person to file a
report or answers in writing to specific questions relating to any
matter under investigation. [Rule 288.]
Sec. 502.289 Noncompliance with investigational process.
In case of failure to comply with Commission investigational
processes, appropriate action may be initiated by the Commission,
including actions for enforcement by the Commission or the Attorney
General and forfeiture of penalties or criminal actions by the Attorney
General. [Rule 289.]
Sec. 502.290 Rights of witness.
Any person required to testify or to submit documentary evidence
shall be entitled to retain or, on payment of lawfully prescribed cost,
procure a copy of any document produced by such person and of his or her
own testimony as stenographically reported or, in the depositions, as
reduced to writing by or under the direction of the person taking the
deposition. Any party compelled to testify or to produce documentary
evidence may be accompanied and advised by counsel, but counsel may not,
as a matter or right, otherwise participate in the investigation. [Rule
290.]
Sec. 502.291 Nonpublic proceedings.
Unless otherwise ordered by the Commission, all investigatory
proceedings shall be nonpublic. [Rule 291.]
Subpart S_Informal Procedure for Adjudication of Small Claims
Sec. 502.301 Statement of policy.
(a) Section 11(a) of the Shipping Act of 1984 (46 U.S.C. 41301(a))
permits any person to file a complaint with the Commission claiming a
violation occurring in connection with the foreign commerce of the
United States and to seek reparation for any injury caused by that
violation.
(b) With the consent of both parties, claims filed under this
subpart in the amount of $50,000 or less will be decided by a Small
Claims Officer appointed by the Federal Maritime Commission's Chief
Administrative Law Judge, without the necessity of formal proceedings
under the rules of this part. Authority to issue decisions under this
subpart is delegated to the appointed Small Claims Officer.
(c) Determination of claims under this subpart shall be
administratively final and conclusive. [Rule 301.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7812, Feb. 17, 1999; 66
FR 43513, Aug. 20, 2001; 74 FR 50716, Oct. 1, 2009; 79 FR 46715, Aug.
11, 2014]
[[Page 75]]
Sec. 502.302 Limitations of actions.
(a) Claims alleging violations of the Shipping Act of 1984 must be
filed within three years from the time the cause of action accrues.
(b) A claim is deemed filed on the date it is received by the
Commission. [Rule 302.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7812, Feb. 17, 1999]
Sec. 502.303 [Reserved]
Sec. 502.304 Procedure and filing fee.
(a) A sworn claim under this subpart shall be filed in the form
prescribed in Exhibit No. 1 to this subpart. Three (3) copies of this
claim must be filed, together with the same number of copies of such
supporting documents as may be deemed necessary to establish the claim.
Copies of tariff pages need not be filed; reference to such tariffs or
to pertinent parts thereof will be sufficient. Supporting documents may
consist of affidavits, correspondence, bills of lading, paid freight
bills, export declarations, dock or wharf receipts, or of such other
documents as, in the judgment of the claimant, tend to establish the
claim. The Small Claims Officer may, if deemed necessary, request
additional documents or information from claimants. Claimant may attach
a memorandum, brief or other document containing discussion, argument,
or legal authority in support of its claim. If a claim filed under this
subpart involves any shipment which has been the subject of a previous
claim filed with the Commission, formally or informally, full reference
to such previous claim must be given.
(b) Claims under this subpart shall be addressed to the Office of
the Secretary, Federal Maritime Commission, Washington, DC 20573. Such
claims must be accompanied by remittance of an $85 filing fee.
(c) Each claim under this subpart will be acknowledged with a
reference to the Informal Docket Number assigned. The number shall
consist of a numeral(s) followed by capital ``I'' in parentheses. All
further correspondence pertaining to such claims must refer to the
assigned Informal Docket Number. If the documents filed fail to
establish a claim for which relief may be granted, the parties affected
will be so notified in writing. The claimant may thereafter, but only if
the period of limitation has not run, resubmit its claim with such
additional proof as may be necessary to establish the claim. In the
event a complaint has been amended because it failed to state a claim
upon which relief may be granted, it will be considered as a new
complaint.
(d) A copy of each claim filed under this subpart, with attachments,
shall be served by the Secretary on the respondent named in the claim.
(e) Within twenty-five (25) days from the date of service of the
claim, the respondent shall serve upon the claimant and file with the
Commission its response to the claim, together with an indication, in
the form prescribed in Exhibit No. 2 to this subpart, as to whether the
informal procedure provided in this subpart is consented to. Failure of
the respondent to indicate refusal or consent in its response will be
conclusively deemed to indicate such consent. The response shall consist
of documents, arguments, legal authorities, or precedents, or any other
matters considered by the respondent to be a defense to the claim. The
Small Claims Officer may request the respondent to furnish such further
documents or information as deemed necessary, or he or she may require
the claimant to reply to the defenses raised by the respondent.
(f) If the respondent refuses to consent to the claim being
informally adjudicated pursuant to this subpart, the claim will be
considered a complaint under Sec. 502.311 and will be adjudicated under
subpart T of this part.
(g) Both parties shall promptly be served with the Small Claims
Officer's decision which shall state the basis upon which the decision
was made. Where appropriate, the Small Claims Officer may require that
the respondent publish notice in its tariff of the substance of the
decision. This decision shall be final, unless, within thirty (30) days
from the date of service of the decision, the Commission exercises its
discretionary right to review the decision. The Commission shall not, on
its own initiative, review any decision or order of dismissal unless
such review is
[[Page 76]]
requested by an individual Commissioner. Any such request must be
transmitted to the Secretary within thirty (30) days after date of
service of the decision or order. Such request shall be sufficient to
bring the matter before the Commission for review.
(h) Within thirty (30) days after service of a final decision by a
Small Claims Officer, any party may file a petition for reconsideration.
Such petition shall be directed to the Small Claims Officer and shall
act as a stay of the review period prescribed in paragraph (g) of this
section. A petition will be subject to summary rejection unless it: (1)
Specifies that there has been a change in material fact or in applicable
law, which change has occurred after issuance of the decision or order;
(2) identifies a substantive error in material fact contained in the
decision or order; (3) addresses a material matter in the Small Claims
Officer's decision upon which the petitioner has not previously had the
opportunity to comment. Petitions which merely elaborate upon or repeat
arguments made prior to the decision or order will not be received. Upon
issuance of a decision or order on reconsideration by the Small Claims
Officer, the review period prescribed in paragraph (g) of this section
will recommence. [Rule 304.]
[49 FR 44369, Nov. 6, 1984, as amended at 59 FR 59170, Nov. 16, 1994; 67
FR 39859, June 11, 2002; 70 FR 10329, Mar. 3, 2005; 79 FR 46715, Aug.
11, 2014; 80 FR 14319, Mar. 19, 2015; 81 FR 59144, Aug. 29, 2016]
Sec. 502.305 Applicability of other rules of this part.
(a) Except otherwise specifically provided in this subpart or in
paragraph (b) of this section, the sections in subparts A through Q,
inclusive, of this part do not apply to situations covered by this
subpart.
(b) The following sections in subparts A through Q of this part
apply to situations covered by this subpart: Sec. Sec. 502.2(a)
(Requirement for filing); 502.2(f)(1) (Email transmission of filings);
502.2(i) (Continuing obligation to provide contact information); 502.7
(Documents in foreign languages); 502.21 through 502.23 (Appearance,
Authority for representation, Notice of appearance; substitution and
withdrawal of representative); 502.43 (Substitution of parties); 502.101
(Computation); 502.113 (Service of private party complaints); 502.117
(Certificate of service); 502.253 (Interest in reparation proceedings);
and 502.254 (Attorney fees in complaint proceedings). [Rule 305.]
[76 FR 10262, Feb. 24, 2011, as amended at 80 FR 14319, Mar. 19, 2015;
81 FR 10519, Mar. 1, 2016]
Sec. Exhibit No. 1 to Subpart S [Sec. 502.304(a)] of Part 502--Small
Claim Form for Informal Adjudication and Information Checklist
Federal Maritime Commission, Washington, DC.
Informal Docket No.___
________________________________________________________________________
(Claimant)
vs.
________________________________________________________________________
(Respondent)
I. The claimant is [state in this paragraph whether claimant is an
association, corporation, firm or partnership, and if a firm or
partnership, the names of the individuals composing the same. State the
nature and principal place of business.]
II. The respondent named above is [state in this paragraph whether
respondent is an association, corporation, firm or partnership, and if a
firm or partnership, the names of the individuals composing the same.
State the nature and principal place of business.]
III. That [state in this and subsequent paragraphs to be lettered A,
B, etc., the matters that gave rise to the claim. Name specifically each
rate, charge, classification, regulation or practice which is
challenged. Refer to tariffs, tariff items or rules, or agreement
numbers, if known. If claim is based on the fact that a firm is a common
carrier, state where it is engaged in transportation by water and which
statute(s) it is subject to under the jurisdiction of the Federal
Maritime Commission].
IV. If claim is for overcharges, state commodity, weight and cube,
origin, destination, bill of lading description, bill of lading number
and date, rate and/or charges assessed, date of delivery, date of
payment, by whom paid, rate or charge claimed to be correct and amount
claimed as overcharges. [Specify tariff item for rate or charge claimed
to be proper].
V. State section of statute claimed to have been violated. (Not
required if claim is for overcharges).
VI. State how claimant was injured and amount of damages requested.
[[Page 77]]
VII. The undersigned authorizes the Small Claims Officer to
determine the above-stated claim pursuant to the informal procedure
outlined in subpart S (46 CFR 502.301-502.305) of the Commission's
informal procedure for adjudication of small claims subject to
discretionary Commission review.
Attach memorandum or brief in support of claim. Also attach bill of
lading, copies of correspondence or other documents in support of claim.
________________________________________________________________________
(Date)
________________________________________________________________________
(Claimant's signature)
________________________________________________________________________
(Claimant's address)
________________________________________________________________________
(Signature of agent or attorney)
________________________________________________________________________
(Agent's or attorney's address)
Verification
State of ___, County of ___, ss: ___, being first duly sworn on oath
deposes and says that he or she is
________________________________________________________________________
The claimant [or if a firm, association, or corporation, state the
capacity of the affiant] and is the person who signed the foregoing
claim, that he or she has read the foregoing and that the facts set
forth without qualification are true and that the facts stated therein
upon information received from others, affiant believes to be true.
________________________________________________________________________
Subscribed and sworn to before me, a notary public in and for the State
of ___, County of ___, this __ day of ___ 19--. (Seal)
________________________________________________________________________
(Notary Public)
My Commission expires,_________________________________________________
Information To Assist in Filing Informal Complaints
Informal Docket procedures are limited to claims of $50,000 or less
and are appropriate only in instances when an evidentiary hearing on
disputed facts is not necessary. Where, however, a respondent elects not
to consent to the informal procedures [See Exhibit No. 2 to subpart S],
the claim will be adjudicated by an administrative law judge under
subpart T of Part 502.
Under the Shipping Act of 1984 [for foreign commerce], the claim
must be filed within three (3) years from the time the cause of action
accrues and may be brought against any person alleged to have violated
the 1984 Act to the injury of claimant.
A violation of a specific section of a particular shipping statute
must be alleged.
The format of Exhibit No. 1 must be followed and a verification must
be included. (See Sec. Sec. 502.21-502.32, 502.112, and 502.304.) An
original and two (2) copies of the claim and all attachments, including
a brief in support of the claim, must be submitted.
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 55
FR 28400, July 11, 1990; 64 FR 7812, Feb. 17, 1999; 76 FR 10262, Feb.
24, 2011; 79 FR 46715, Aug. 11, 2014]
Sec. Exhibit No. 2 to Subpart S [Sec. 502.304(e)] of Part 502--
Respondent's Consent Form for Informal Adjudication
Federal Maritime Commission, Washington, DC.
Informal Docket No. ___
Respondent's Affidavit
I authorize the Small Claims Officer to determine the above-numbered
claim in accordance with subpart S (46 CFR 502) of the Commission's
informal procedure for adjudication of small claims subject to
discretionary Commission Review.
(Date)_________________________________________________________________
(Signed)_______________________________________________________________
(Capacity)_____________________________________________________________
Verification
State of ___________, County of __________, ss: ______, being first
duly sworn on oath deposes and says that he or she is _________, (Title
or Position) and is the person who signed the foregoing and agrees
without qualification to its truth.
________________________________________________________________________
Subscribed and sworn to before me, a notary public in and for the
State of ________, County of ________, this ______ day of __________,
19__.
(Seal)
________________________________________________________________________
(Notary Public)
My Commission expires._________________________________________________
Certificate of Service [See Sec. 502.320]
[49 FR 44369, Nov. 6, 1984, as amended at 79 FR 46715, Aug. 11, 2014]
[[Page 78]]
Subpart T_Formal Procedure for Adjudication of Small Claims
Sec. 502.311 Applicability.
In the event the respondent elects not to consent to determination
of the claim under subpart S of this part, it shall be adjudicated by
the administrative law judges of the Commission under procedures set
forth in this subpart, if timely filed under Sec. 502.302. The
previously assigned Docket Number shall be used except that it shall now
be followed by capital ``F'' instead of ``I'' in parentheses (See Sec.
502.304(c)). The complaint shall consist of the documents submitted by
the claimant under subpart S of this part. [Rule 311.]
Sec. 502.312 Answer to complaint.
The respondent shall file with the Commission an answer within
twenty-five (25) days of service of the complaint and shall serve a copy
of said answer upon complainant. The answer shall admit or deny each
matter set forth in the complaint. Matters not specifically denied will
be deemed admitted. Where matters are urged in defense, the answer shall
be accompanied by appropriate affidavits, other documents, and
memoranda. [Rule 312.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Sec. 502.313 Reply of complainant.
Complainant may, within twenty (20) days of service of the answer
filed by respondent, file with the Commission and serve upon the
respondent a reply memorandum accompanied by appropriate affidavits and
supporting documents. [Rule 313.]
Sec. 502.314 Additional information.
The administrative law judge may require the submission of
additional affidavits, documents, or memoranda from complainant or
respondent. [Rule 314.]
Sec. 502.315 Request for oral hearing.
In the usual course of disposition of complaints filed under this
subpart, no oral hearing will be held, but, the administrative law
judge, in his or her discretion, may order such hearing. A request for
oral hearing may be incorporated in the answer or in complainant's reply
to the answer. Requests for oral hearing will not be entertained unless
they set forth in detail the reasons why the filing of affidavits or
other documents will not permit the fair and expeditious disposition of
the claim, and the precise nature of the facts sought to be proved at
such oral hearing. The administrative law judge shall rule upon a
request for oral hearing within ten (10) days of its receipt. In the
event an oral hearing is ordered, it will be held in accordance with the
rules applicable to other formal proceedings, as set forth in subparts A
through Q of this part. [Rule 315.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Sec. 502.316 Intervention.
Intervention will ordinarily not be permitted. [Rule 316.]
Sec. 502.317 Oral argument.
No oral argument will be held unless otherwise directed by the
administrative law judge. [Rule 317.]
Sec. 502.318 Decision.
(a) The decision of the administrative law judge shall be final,
unless, within twenty-two (22) days from the date of service of the
decision, either party requests review of the decision by the
Commission, asserting as grounds therefor that a material finding of
fact or a necessary legal conclusion is erroneous or that prejudicial
error has occurred, or unless, within thirty (30) days from the date of
service of the decision, the Commission exercises its discretionary
right to review the decision. The Commission shall not, on its own
initiative, review any decision or order of dismissal unless such review
is requested by an individual Commissioner. Any such request must be
transmitted to the Secretary within thirty (30) days after date of
service of the decision or order. Such request shall be sufficient to
bring the matter before the Commission for review. [Rule 318.]
[[Page 79]]
(b) Attorney fees may be awarded to the prevailing party in
accordance with Sec. 502.254. [Rule 318.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 6332, Mar. 3, 1987; 74
FR 50717, Oct. 1, 2009; 81 FR 10519, Mar. 1, 2016]
Sec. 502.319 Date of service and computation of time.
(a) The date of service of documents served by the Commission will
be the date shown in the service stamp placed on the first page of the
document. The date of service of documents served by parties will be the
date when the document served is transmitted by email, deposited in the
United States mail, delivered to a courier, or delivered in person. If
service is made by more than one method, for example email and also U.S.
mail service, the date of service will be the earlier of the two
actions. In computing the time from such dates, the provisions of Sec.
502.101 shall apply. [Rule 319.]
(b) In computing any time period prescribed or allowed under the
rules in this Part, the period begins on the day following the act,
event, or default that triggers the period and includes the last day of
the time period. If the last day is a Saturday, Sunday, or federal
holiday, the time period continues to the next day that is not a
Saturday, Sunday, or federal holiday. If the presiding officer
prescribes or allows an act, event, or default by reference to a
specific date, that date will govern. If the Commission's offices are
inaccessible on the last day for a filing, the time for filing is
extended to the first accessible day that is not a Saturday, Sunday, or
federal holiday.
[80 FR 57307, Sept. 23, 2015]
Sec. 502.320 Service.
All claims, resubmitted claims, petitions to intervene and rulings
thereon, notices of oral hearings, notices of oral arguments (if
necessary), decisions of the administrative law judge, notices of
review, and Commission decisions shall be served by the administrative
law judge or the Commission. All other pleadings, documents and filings
shall, when tendered to the Commission, evidence service upon all
parties to the proceeding. Such certificate shall be in substantially
the following form:
Certificate of Service
I hereby certify that I have this day served the foregoing document
upon all parties of record in this proceeding by [mailing, delivering to
courier, or delivering in person], a copy to each such person in
sufficient time to reach such person on the date the document is due to
be filed with the Commission.
Dated at __________ this ________ day of _________, 19__.
(Signature)____________________________________________________________
(For)__________________________________________________________________
[Rule 320.]
Sec. 502.321 Applicability of other rules of this part.
(a) Except otherwise specifically provided in this subpart or in
paragraph (b) of this section, the sections in subparts A through Q,
inclusive, of this part do not apply to situations covered by this
subpart.
(b) The following sections in subparts A through Q apply to
situations covered by this subpart: Sec. Sec. 502.2(a) (Requirement for
filing); 502.2(f)(1) (Email transmission of filings); 502.2(i)
(Continuing obligation to provide contact information); 502.7 (Documents
in foreign languages); 502.21-502.23 (Appearance, Authority for
representation, Notice of appearance; substitution and withdrawal of
representative); 502.43 (Substitution of parties); 502.253 (Interest in
reparation proceedings); and 502.254 (Attorney fees in complaint
proceedings). [Rule 321.]
[76 FR 10262, Feb. 24, 2011, as amended at 81 FR 10519, Mar. 1, 2016]
Subpart U_Alternative Dispute Resolution
Source: 66 FR 43513, Aug. 20, 2001, unless otherwise noted.
Sec. 502.401 Policy.
It is the policy of the Federal Maritime Commission to use
alternative means of dispute resolution to the fullest extent compatible
with the law and the agency's mission and resources. The Commission will
consider using ADR in all areas including workplace
[[Page 80]]
issues, formal and informal adjudication, issuance of regulations,
enforcement and compliance, issuing and revoking licenses and permits,
contract award and administration, litigation brought by or against the
Commission, and other interactions with the public and the regulated
community. The Commission will provide learning and development
opportunities for its employees to develop their ability to use conflict
resolution skills, instill knowledge of the theory and practice of ADR,
and to facilitate appropriate use of ADR. To this end, all parties to
matters under this part are required to consider use of a wide range of
alternative means to resolve disputes at an early stage. Parties are
encouraged to pursue use of alternative means through the Commission's
Office of Consumer Affairs and Dispute Resolution Services in lieu of or
prior to initiating a Commission proceeding. All employees and persons
who interact with the Commission are encouraged to identify
opportunities for collaborative, consensual approaches to dispute
resolution or rulemaking.
[66 FR 43513, Aug. 20, 2001, as amended at 70 FR 7669, Feb. 15, 2005; 70
FR 44867, Aug. 4, 2005]
Sec. 502.402 Definitions.
(a) Alternative means of dispute resolution means any procedure that
is used to resolve issues in controversy, including, but not limited to,
conciliation, facilitation, mediation, factfinding, minitrials,
arbitration, and use of ombuds, or any combination thereof;
(b) Award means any decision by an arbitrator resolving the issues
in controversy;
(c) Dispute resolution communication means any oral or written
communication prepared for the purposes of a dispute resolution
proceeding, including any memoranda, notes or work product of the
neutral, parties or nonparty participant; except that a written
agreement to enter into a dispute resolution proceeding, or final
written agreement or arbitral award reached as a result of a dispute
resolution proceeding, is not a dispute resolution communication;
(d) Dispute resolution proceeding means any process in which an
alternative means of dispute resolution is used to resolve an issue in
controversy in which a neutral is appointed and specified parties
participate;
(e) In confidence means, with respect to information, that the
information is provided--
(1) With the expressed intent of the source that it not be
disclosed; or
(2) Under circumstances that would create the reasonable expectation
on behalf of the source that the information will not be disclosed;
(f) Issue in controversy means an issue which is material to a
decision concerning a program of the Commission, and with which there is
disagreement--
(1) Between the Commission and persons who would be substantially
affected by the decision; or
(2) Between persons who would be substantially affected by the
decision;
(g) Neutral means an individual who, with respect to an issue in
controversy, functions specifically to aid the parties in resolving the
controversy; and
(h) Person has the same meaning as in 5 U.S.C. 551(2).
Sec. 502.403 General authority.
(a) The Commission intends to consider using a dispute resolution
proceeding for the resolution of an issue in controversy, if the parties
agree to a dispute resolution proceeding.
(b) The Commission will consider not using a dispute resolution
proceeding if--
(1) A definitive or authoritative resolution of the matter is
required for precedential value, and such a proceeding is not likely to
be accepted generally as an authoritative precedent;
(2) The matter involves or may bear upon significant questions of
Government policy that require additional procedures before a final
resolution may be made, and such a proceeding would not likely serve to
develop a recommended policy for the agency;
(3) Maintaining established policies is of special importance, so
that variations among individual decisions are not increased and such a
proceeding would not likely reach consistent results among individual
decisions;
(4) The matter significantly affects persons or organizations who
are not parties to the proceeding;
[[Page 81]]
(5) A full public record of the proceeding is important, and a
dispute resolution proceeding cannot provide such a record; and
(6) The Commission must maintain continuing jurisdiction over the
matter with authority to alter the disposition of the matter in the
light of changed circumstances, and a dispute resolution proceeding
would interfere with the Commission's fulfilling that requirement.
(c) Alternative means of dispute resolution authorized under this
subpart are voluntary procedures which supplement rather than limit
other available agency dispute resolution techniques.
Sec. 502.404 Neutrals.
(a) A neutral may be a permanent or temporary officer or employee of
the Federal Government or any other individual who is acceptable to the
parties to a dispute resolution proceeding. A neutral shall have no
official, financial, or personal conflict of interest with respect to
the issues in controversy, unless such interest is fully disclosed in
writing to all parties and all parties agree that the neutral may serve.
(b) A neutral who serves as a conciliator, facilitator, or mediator
serves at the will of the parties.
(c) With consent of the parties, the Federal Maritime Commission
Dispute Resolution Specialist will seek to provide a neutral in dispute
resolution proceedings through Commission staff, arrangements with other
agencies, or on a contractual basis.
(d) Fees. Should the parties choose a neutral other than an official
or employee of the Commission, fees and expenses shall be borne by the
parties as the parties shall agree.
Sec. 502.405 Confidentiality.
(a) Except as provided in paragraphs (d) and (e) of this section, a
neutral in a dispute resolution proceeding shall not voluntarily
disclose or through discovery or compulsory process be required to
disclose any dispute resolution communication or any communication
provided in confidence to the neutral, unless--
(1) All parties to the dispute resolution proceeding and the neutral
consent in writing, and, if the dispute resolution communication was
provided by a nonparty participant, that participant also consents in
writing;
(2) The dispute resolution communication has already been made
public;
(3) The dispute resolution communication is required by statute to
be made public, but a neutral should make such communication public only
if no other person is reasonably available to disclose the
communication; or
(4) A court determines that such testimony or disclosure is
necessary to--
(i) Prevent a manifest injustice;
(ii) Help establish a violation of law; or
(iii) Prevent harm to the public health or safety, of sufficient
magnitude in the particular case to outweigh the integrity of dispute
resolution proceedings in general by reducing the confidence of parties
in future cases that their communications will remain confidential.
(b) A party to a dispute resolution proceeding shall not voluntarily
disclose or through discovery or compulsory process be required to
disclose any dispute resolution communication, unless--
(1) The communication was prepared by the party seeking disclosure;
(2) All parties to the dispute resolution proceeding consent in
writing;
(3) The dispute resolution communication has already been made
public;
(4) The dispute resolution communication is required by statute to
be made public;
(5) A court determines that such testimony or disclosure is
necessary to--
(i) Prevent a manifest injustice;
(ii) Help establish a violation of law; or
(iii) Prevent harm to the public health and safety, of sufficient
magnitude in the particular case to outweigh the integrity of dispute
resolution proceedings in general by reducing the confidence of parties
in future cases that their communications will remain confidential;
(6) The dispute resolution communication is relevant to determining
the existence or meaning of an agreement or award that resulted from the
dispute
[[Page 82]]
resolution proceeding or to the enforcement of such an agreement or
award; or
(7) Except for dispute resolution communications generated by the
neutral, the dispute resolution communication was provided to or was
available to all parties to the dispute resolution proceeding.
(c) Any dispute resolution communication that is disclosed in
violation of paragraph (a) or (b) of this section shall not be
admissible in any proceeding relating to the issues in controversy with
respect to which the communication was made.
(d) (1) The parties may agree between or amongst themselves to
alternative confidential procedures for disclosures by a neutral, and
shall inform the neutral before commencement of the dispute resolution
proceeding of any modifications to the provisions of paragraph (a) of
this section that will govern the confidentiality of the dispute
resolution proceeding, in accordance with the guidance on
confidentiality in federal proceedings published by the Interagency ADR
Working Group and adopted by the ADR Council (http://www.financenet.gov/
financenet/fed/iadrwg/confid.pdf). If the parties do not so inform the
neutral, paragraph (a) of this section shall apply.
(2) To qualify for the exemption under paragraph (j) of this
section, an alternative confidential procedure under this subsection may
not provide for less disclosure than the confidential procedures
otherwise provided under this section.
(e) If a demand for disclosure, by way of discovery request or other
legal process, is made upon a neutral regarding a dispute resolution
communication, the neutral shall make reasonable efforts to notify the
parties and any affected nonparty participants of the demand. Any party
or affected nonparty participant who receives such notice and within 15
calendar days does not offer to defend a refusal of the neutral to
disclose the requested information shall have waived any objection to
such disclosure.
(f) Nothing in this section shall prevent the discovery or
admissibility of any evidence that is otherwise discoverable, merely
because the evidence was presented in the course of a dispute resolution
proceeding.
(g) Paragraphs (a) and (b) of this section shall have no effect on
the information and data that are necessary to document an agreement
reached or order issued pursuant to a dispute resolution proceeding.
(h) Paragraphs (a) and (b) of this section shall not prevent the
gathering of information for research or educational purposes, in
cooperation with other agencies, governmental entities, or dispute
resolution programs, so long as the parties and the specific issues in
controversy are not identifiable.
(i) Paragraphs (a) and (b) of this section shall not prevent use of
a dispute resolution communication to resolve a dispute between the
neutral in a dispute resolution proceeding and a party to or participant
in such proceeding, so long as such dispute resolution communication is
disclosed only to the extent necessary to resolve such dispute.
(j) A dispute resolution communication which is between a neutral
and a party and which may not be disclosed under this section shall also
be exempt from disclosure under 5 U.S.C. 552(b)(3).
Sec. 502.406 Arbitration.
(a)(1) Arbitration may be used as an alternative means of dispute
resolution whenever all parties consent, except that arbitration may not
be used when the Commission or one of its components is a party. Consent
may be obtained either before or after an issue in controversy has
arisen. A party may agree to--
(i) Submit only certain issues in controversy to arbitration; or
(ii) Arbitration on the condition that the award must be within a
range of possible outcomes.
(2) The arbitration agreement that sets forth the subject matter
submitted to the arbitrator shall be in writing. Each such arbitration
agreement shall specify a maximum award that may be issued by the
arbitrator and may specify other conditions limiting the range of
possible outcomes.
(b) With the concurrence of the Federal Maritime Commission Dispute
Resolution Specialist, binding arbitration may be used to resolve any
and all disputes that could be the subject of a
[[Page 83]]
Commission administrative proceeding before an Administrative Law Judge.
The Federal Maritime Commission Dispute Resolution Specialist may
withhold such concurrence after considering the factors specified in
Sec. 502.403, should the Commission's General Counsel object to use of
binding arbitration.
(c)(1) The Federal Maritime Commission Dispute Resolution Specialist
will appoint an arbitrator of the parties' choosing for an arbitration
proceeding.
(2) A Commission officer or employee selected as an arbitrator by
the parties and appointed by the Federal Maritime Commission Dispute
Resolution Specialist shall have authority to settle an issue in
controversy through binding arbitration pursuant to the arbitration
agreement; provided, however, that decisions by arbitrators shall not
have precedential value with respect to decisions by Administrative Law
Judges or the Commission. Administrative Law Judges may be appointed as
arbitrators with the concurrence of the Chief Administrative Law Judge.
(d) The arbitrator shall be a neutral who meets the criteria of 5
U.S.C. 573.
Sec. 502.407 Authority of the arbitrator.
An arbitrator to whom a dispute is referred may--
(a) Regulate the course of and conduct arbitral hearings;
(b) Administer oaths and affirmations;
(c) Compel the attendance of witnesses and production of evidence at
the hearing under the provisions of 9 U.S.C. 7 only to the extent the
Commission is otherwise authorized by law to do so; and
(d) Make awards.
Sec. 502.408 Conduct of arbitration proceedings.
(a) The arbitrator shall set a time and place for the hearing on the
dispute and shall notify the parties not less than seven (7) days before
the hearing.
(b) Any party wishing a record of the hearing shall--
(1) Be responsible for the preparation of such record;
(2) Notify the other parties and the arbitrator of the preparation
of such record;
(3) Furnish copies to all identified parties and the arbitrator; and
(4) Pay all costs for such record, unless the parties agree
otherwise or the arbitrator determines that the costs should be
apportioned.
(c)(1) The parties to the arbitration are entitled to be heard, to
present evidence material to the controversy, and to cross-examine
witnesses appearing at the hearing.
(2) The arbitrator may, with the consent of the parties, conduct all
or part of the hearing by telephone, television, computer, or other
electronic means, if each party has an opportunity to participate.
(3) The hearing shall be conducted expeditiously and in an informal
manner.
(4) The arbitrator may receive any oral or documentary evidence,
except that irrelevant, immaterial, unduly repetitious, or privileged
evidence may be excluded by the arbitrator.
(5) The arbitrator shall interpret and apply relevant statutory and
regulatory requirements, legal precedents, and policy directives.
(d) The provisions of Sec. 502.11 regarding ex parte communications
apply to all arbitration proceedings. No interested person shall make or
knowingly cause to be made to the arbitrator an unauthorized ex parte
communication relevant to the merits of the proceeding, unless the
parties agree otherwise. If a communication is made in violation of this
subsection, the arbitrator shall ensure that a memorandum of the
communication is prepared and made a part of the record, and that an
opportunity for rebuttal is allowed. Upon receipt of a communication
made in violation of this subsection, the arbitrator may, to the extent
consistent with the interests of justice and the policies underlying
this subchapter, require the offending party to show cause why the claim
of such party should not be resolved against such party as a result of
the improper conduct.
(e) The arbitrator shall make an award within 30 days after the
close of the hearing, or the date of the filing of any briefs authorized
by the arbitrator,
[[Page 84]]
whichever date is later, unless the parties agree to some other time
limit.
[66 FR 43513, Aug. 20, 2001, as amended at 80 FR 57307, Sept. 23, 2015]
Sec. 502.409 Arbitration awards.
(a)(1) The award in an arbitration proceeding under this subchapter
shall include a brief, informal discussion of the factual and legal
basis for the award, but formal findings of fact or conclusions of law
shall not be required.
(2) Exceptions to or an appeal of an arbitrator's decision may not
be filed with the Commission.
(b) An award entered in an arbitration proceeding may not serve as
an estoppel in any other proceeding for any issue that was resolved in
the proceeding. Such an award also may not be used as precedent or
otherwise be considered in any factually unrelated proceeding.
Sec. 502.410 Representation of parties.
(a) The provisions of Sec. 502.21 apply to the representation of
parties in dispute resolution proceedings, as do the provisions of Sec.
502.27 regarding the representation of parties by nonattorneys.
(b) A neutral in a dispute resolution proceeding may require
participants to demonstrate authority to enter into a binding agreement
reached by means of a dispute resolution proceeding.
Sec. 502.411 Mediation and other alternative means of dispute resolution.
(a) Parties are encouraged to utilize mediation or other forms of
alternative dispute resolution in all formal proceedings. The Commission
also encourages those with disputes to pursue mediation in lieu of, or
prior to, the initiation of a Commission proceeding.
(b) Any party may request, at any time, that a mediator or other
neutral be appointed to assist the parties in reaching a settlement. If
such a request is made in a proceeding assigned to an Administrative Law
Judge, the provisions of Sec. 502.91 apply. For all other matters,
alternative dispute resolution services may be requested directly from
the Federal Maritime Commission Alternative Dispute Resolution
Specialist, who may serve as the neutral if the parties agree or who
will arrange for the appointment of a neutral acceptable to all parties.
(c) The neutral shall convene and conduct mediation or other
appropriate dispute resolution proceedings with the parties.
(d) Ex parte Communications. Except with respect to arbitration, the
provisions of Sec. 502.11 do not apply to dispute resolution
proceedings, and mediators are expressly authorized to conduct private
sessions with parties.
Subpart V_Implementation of the Equal Access to Justice Act in
Commission Proceedings
Source: 52 FR 28264, July 29, 1987, unless otherwise noted.
Sec. 502.501 General provisions.
(a) Purpose. The Equal Access to Justice Act, 5 U.S.C. 504
(``EAJA''), provides for the award of attorney fees and other expenses
to eligible individuals and entities who are parties to certain
administrative proceedings (called ``adversary adjudications'') before
the Federal Maritime Commission (``the Commission''). An eligible party
may receive an award when it prevails over an agency, unless the
agency's position was substantially justified or special circumstances
make an award unjust. The rules in this subpart 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
the Commission will use to make them.
(b) When EAJA applies. EAJA applies to any adversary adjudication:
(1) Pending or commenced before the Commission on or after August 5,
1985;
(2) Commenced on or after October 1, 1984, and finally disposed of
before August 5, 1985, provided that an application for fees and
expenses, as described in Sec. 502.502 of this subpart, has been filed
with the Commission within 30 days after August 5, 1985; or
(3) Pending on or commenced on or after October 1, 1981, in which an
application for fees and other expenses was timely filed and was
dismissed for lack of jurisdiction.
(c) Proceedings covered. (1)(i) EAJA applies to adversary
adjudications conducted by the Commission under this
[[Page 85]]
part. These are adjudications under 5 U.S.C. 554 in which the position
of this or any other agency of the United States, or any component of
any agency, is presented by an attorney or other representative who
enters an appearance and participates in the proceeding.
(ii) Any proceeding in which the Commission may prescribe a lawful
present or future rate is not covered by the Act.
(iii) Proceedings to grant or renew licenses are also excluded, but
proceedings to modify, suspend, or revoke licenses are covered if they
are otherwise ``adversary adjudications.''
(2) The Commission's failure to identify a type of proceeding as an
adversary adjudication shall not preclude the filing of an application
by a party who believes the proceeding is covered by the EAJA; whether
the proceeding is covered will then be an issue for resolution in
proceedings on the application.
(3) If a proceeding includes both matters covered by EAJA and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.
(d) Eligibility of applicants. (1) To be eligible for an award of
attorney fees and other expenses under EAJA, the applicant must be a
party to the adversary adjudication for which it seeks an award. The
term ``party'' is defined in 5 U.S.C. 551(3). The applicant must show
that it meets all conditions of eligibility set out in this section and
Sec. 502.502.
(2) The types of eligible applicants are:
(i) An individual with a net worth of not more than $2 million;
(ii) The sole owner of an unincorporated business who has a net
worth of not more than $7 million, including both personal and business
interests, and not more than 500 employees;
(iii) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(iv) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees; and
(v) Any other partnership, corporation, association, unit of local
government, or organization with a net worth of not more than $7 million
and not more than 500 employees.
(vi) For purposes of paragraph (e)(3) of this section, a small
entity as defined in 5 U.S.C. 601.
(3) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(4) An applicant who owns an unincorporated business will be
considered as an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(5) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(6) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interests of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interests, will be considered an affiliate for purposes of this
subpart, unless the adjudicative officer determines that such treatment
would be unjust and contrary to the purposes of EAJA in light of the
actual relationship between the affiliated entities. In addition, the
adjudicative officer may determine that financial relationships of the
applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(7) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(e) Standards for awards. (1) A prevailing applicant may receive an
award
[[Page 86]]
for fees and expenses incurred in connection with a proceeding or in a
significant and discrete substantive portion of the proceeding, unless
the position of the agency over which the applicant has prevailed was
substantially justified. The position of the agency includes, in
addition to the position taken by the agency in the adversary
adjudication, the action or failure to act by the agency upon which the
adversary adjudication is based. The burden of proof that an award
should not be made to an eligible prevailing applicant is on agency
counsel.
(2) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding or if special circumstances
make the award sought unjust.
(3) In an adversary adjudication arising from a Commission action to
enforce a party's compliance with a statutory or regulatory requirement,
if the demand by the Commission is substantially in excess of the
decision of the presiding officer and is unreasonable under the facts
and circumstances of the case, the presiding officer shall award to the
party fees and other expenses related to defending against the excessive
demand, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award
unjust.
(f) Allowable fees and expenses. (1) Awards will be based on rates
customarily charged by the persons engaged in the business of acting as
attorneys, agents and expert witnesses, even if the services were made
available without charge or at a reduced rate to the applicant.
(2) No award for the fee of an attorney or agent under this subpart
may exceed $125 per hour. No award to compensate an expert witness may
exceed the highest rate at which the Commission pays expert witnesses.
However, an award may also include the reasonable expenses of the
attorney, agent, or witness as a separate item, if the attorney, agent
or witness ordinarily charges clients separately for such expenses.
(3) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the adjudicative officer shall
consider the following:
(i) If the attorney, agent or witness is in private practice, his or
her customary fees for similar services, or, if an employee of the
applicant, the fully allocated costs of the services;
(ii) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(iii) The time actually spent in the representation of the
applicant;
(iv) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(v) Such other factors as may bear on the value of the services
provided.
(4) The reasonable cost of any study, analysis, engineering report,
test project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the services does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of applicant's case.
(g) Awards against other agencies. If an applicant is entitled to an
award because it prevails over another agency of the United States that
participates in a proceeding before the Commission and takes a position
that is not substantially justified, the award or an appropriate portion
of the award shall be made against that agency. [Rule 501.]
[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]
Sec. 502.502 Information required from applicants.
(a) Contents of petition. (1) An application for an award of fees
and expenses under EAJA shall be by petition under Sec. 502.69 of this
part, shall clearly indicate that the application is made under EAJA,
and shall identify the applicant and the proceeding (including docket
number) for which an award is sought. The application shall show that
the applicant has prevailed and identify the position of an agency or
agencies that the applicant alleges was not substantially justified.
Unless the applicant is an individual, the application shall also state
the number of employees of the applicant and describe briefly the type
and purpose of its organization or business.
(2) The petition shall also include a statement that the applicant's
net
[[Page 87]]
worth does not exceed $2 million (if an individual) or $7 million (for
all other applicants, including their affiliates). However, an applicant
may omit this statement if:
(i) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a
tax-exempt organization not required to obtain a ruling from the
Internal Revenue Service on its exempt status, a statement that
describes the basis for the applicant's belief that it qualifies under
such section; or
(ii) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(3) The petition shall state the amount of fees and expenses for
which an award is sought.
(4) The petition may also include any other matters that the
applicant wishes the Commission to consider in determining whether and
in what amount an award should be made.
(5) The petition shall be signed by the applicant or an authorized
officer or attorney of the applicant. It shall also contain or be
accompanied by a written verification under oath or under penalty of
perjury that the information provided in the application is true and
correct.
(b) Net worth exhibit. (1) Each applicant except a qualified tax-
exempt organization or cooperative association must provide with its
petition a detailed exhibit showing the net worth of the applicant and
any affiliates (as defined in Sec. 502.501(d)(6) of this subpart) when
the proceeding was initiated. The exhibit may be in any form convenient
to the applicant that provides full disclosure of the applicant's and
its affiliates' assets and liabilities and is sufficient to determine
whether the applicant qualifies under the standards in this subpart. The
adjudicative officer may require an applicant to file additional
information to determine its eligibility for an award.
(2) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of information in any portion of the exhibit and believes
there are legal grounds for withholding it from disclosure may submit
that portion of the exhibit directly to the adjudicative officer in a
sealed envelope labeled ``Confidential Financial Information,''
accompanied by a motion to withhold the information from public
disclosure. The motion shall describe the information sought to be
withheld and explain, in detail, why it falls within one or more of the
specific exemptions from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the
information would adversely affect the applicant, and why disclosure is
not required in the public interest. The material in question shall be
served on counsel representing the agency against which the applicant
seeks an award, but need not be served on any other party to the
proceeding. If the adjudicative officer finds that the information
should not be withheld from disclosure, it shall be placed in the public
record of the proceeding. Otherwise, any request to inspect or copy the
exhibit shall be disposed of in accordance with the Commission's
established procedures under the Freedom of Information Act under
Sec. Sec. 503.31-503.43 of this chapter.
(c) Documentation of fees and expenses. The petition shall be
accompanied by full documentation of the fees and expenses, including
the cost of any study, analysis, engineering report, test, project or
similar matter, for which an award is sought. A separate itemized
statement shall be submitted for each professional firm or individual
whose services are covered by the application, showing the hours spent
in connection with the proceeding by each individual, a description of
the specific services performed, the rates at which each fee has been
computed, any expenses for which reinbursement is sought, the total
amount claimed, and the total amount paid or payable by the applicant or
by any other person or entity for the services provided. The
adjudicative officer may require the applicant to provide vouchers,
receipts, or other substantiation for any expenses claimed.
[[Page 88]]
(d) When a petition may be filed. (1) A petition may be filed
whenever the applicant has prevailed in the proceeding or in a
significant and discrete substantive portion of the proceeding, but in
no case later than 30 days after the Commission's final disposition of
the proceeding.
(2) For purposes of this subpart, final disposition means the date
on which a decision or order disposing of the merits of the proceeding
or any other complete resolution of the proceeding, such as a settlement
or voluntary dismissal, becomes final and unappealable, both within the
Commission and to the courts.
(3) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy. When the United States appeals the underlying
merits of an adversary adjudication to a court, no decision on an
application for fees and other expenses in connection with that
adversary adjudication shall be made until a final and unreviewable
decision is rendered by the court on the appeal or until the underlying
merits of the case have been finally determined pursuant to the appeal.
[Rule 502.]
[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]
Sec. 502.503 Procedures for considering petitions.
(a) Filing and service of documents. (1) Any petition for an award
or other pleading or document related to a petition shall be filed and
served on all parties to the proceeding in the same manner as other
pleadings in the proceeding, except as provided in Sec. 502.502(b)(2)
(confidential financial information).
(2) The petition and all other pleadings or documents related to the
petition will be referred to an Administrative Law Judge to initially
decide the matter as adjudicative officer.
(b) Reply to petition. (1) Within 30 days after service of a
petition, counsel representing the agency against which an award is
sought may file a reply to the petition. Unless counsel requests an
extension of time for filing or files a statement of intent to negotiate
under paragraph (b)(2) of this section, failure to file a reply within
the 30-day period may be treated as a consent to the award requested.
(2) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing a reply for an additional 30 days, and
further extension may be granted by the adjudicative officer upon
request by agency counsel and the applicant.
(3) The reply shall explain in detail any objections to the award
requested and identify the facts relied on in support of counsel's
position. If the reply is based on any alleged facts not already in the
record of the proceeding, agency counsel shall include with the reply
either supporting affidavits or a request for further proceedings under
paragraph (f) of this section.
(c) Response to reply. Within 15 days after service of a reply, the
applicant may file a response. If the response is based on any alleged
facts not already in the record of the proceeding, the applicant shall
include with the response either supporting affidavits or a request for
further proceedings under paragraph (f) of this section.
(d) Comments by other parties. Any party to a proceeding other than
the applicant and agency counsel may file comments on an application
within 30 days after it is served, or on a reply, within 15 days after
it is served. A commenting party may not participate further in
proceedings on the application unless the adjudicative officer
determines that the public interest requires such participation in order
to permit full exploration of matters raised in the comments.
(e) Settlement. The applicant and agency counsel may agree on a
proposed settlement of the award before final action on the application,
either in connection with a settlement of the underlying proceeding, or
after the underlying proceeding has been concluded in accordance with
the rules of this subpart pertaining to settlement. If a prevailing
party and agency counsel agree on a proposed settlement of an
[[Page 89]]
award before a petition is filed, the petition shall be filed with the
proposed settlement.
(f) Further proceedings. (1) Ordinarily, the determination of an
award will be made on the basis of the written record. However, on
request of either the applicant or agency counsel, or on his or her own
initiative, the adjudicative officer may order further proceedings, such
as an informal conference, oral argument, additional written submissions
or, as to issues other than substantial justification (such as the
applicant's eligibility or substantiation of fees and expenses),
pertinent discovery or an evidentiary hearing. Such further proceedings
shall be held only when necessary for full and fair resolution of the
issues arising from the application, and shall be conducted as promptly
as possible. Whether or not the position of the agency was substantially
justified shall be determined on the basis of the administrative record,
as a whole, which is made in the adversary adjudication for which fees
and other expenses are sought.
(2) A request that the adjudicative officer order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
(g) Decision. The adjudicative officer shall serve an initial
decision on the application within 60 days after completion of
proceedings on the application. The decision shall include written
findings and conclusions on the applicant's eligibility and status as a
prevailing party, and an explanation of the reasons for any difference
between the amount requested and the amount awarded. The decision shall
also include, if at issue, findings on whether the agency's position was
substantially justified, whether the applicant unduly protracted the
proceedings, or whether special circumstances make an award unjust. If
the applicant has sought an award against more than one agency, the
decision shall allocate responsibility for payment of any award made
among the agencies, and shall explain the reason for the allocation
made.
(h) Commission review. Either the applicant or agency counsel may
seek review of the initial decision on the fee application, or the
Commission may decide to review the decision on its own initiative, in
accordance with Sec. 502.227 of this part. If neither the applicant nor
agency counsel seeks review and the Commission does not take review on
its own initiative, the initial decision on the application shall become
a final decision of the Commission 30 days after it is issued. Whether
to review a decision is a matter within the discretion of the
Commission. If review is taken, the Commission will issue a final
decision on the application or remand the application to the
adjudicative officer for further proceedings.
(i) Judicial review. Judicial review of final Commission decisions
on awards may be sought as provided in 5 U.S.C. 504(c)(2).
(j) Payment of award. (1)(i) An applicant seeking payment of an
award shall submit to the comptroller or other disbursing officer of the
paying agency a copy of the Commission's final decision granting the
award, accompanied by a certification that the applicant will not seek
review of the decision in the United States courts.
(ii) The agency will pay the amount awarded to the applicant within
60 days.
(2) Where the Federal Maritime Commission is the paying agency, the
application for payment of award shall be submitted to: Office of Budget
and Financial Management, Federal Maritime Commission, Washington, DC
20573. [Rule 503.]
[52 FR 28264, July 29, 1987, as amended at 64 FR 7812, Feb. 17, 1999]
Subpart W_Compromise, Assessment, Mitigation, Settlement, and Collection
of Civil Penalties
Source: 49 FR 44418, Nov. 6, 1984, unless otherwise noted.
Redesignated at 58 FR 27211, May 7, 1993.
Sec. 502.601 Purpose and scope.
The purpose of this subpart is to implement the statutory provisions
of
[[Page 90]]
section 19 of the Merchant Marine Act, 1920 (46 U.S.C. 42101-42109),
section 13 of the Shipping Act of 1984 (46 U.S.C. 41107-41109), and
sections 2(c) and 3(c) of Pub. L. 89-777 (46 U.S.C. 44104) by
establishing rules and regulations governing the compromise, assessment,
settlement and collection of civil penalties arising under certain
designated provisions of the Merchant Marine Act , 1920, the Shipping
Act of 1984, Public Law 89-777, and/or any order, rule, or regulation
(except for procedural rules and regulations contained in this part)
issued or made by the Commission in the exercise of its powers, duties
and functions under those statutes. [Rule 601.]
[64 FR 7812, Feb. 17, 1999, as amended at 74 FR 50717, Oct. 1, 2009]
Sec. 502.602 Definitions.
For the purposes of this subpart:
(a) Assessment means the imposition of a civil penalty by order of
the Commission after a formal docketed proceeding.
(b) Commission means the Federal Maritime Commission.
(c) Compromise means the process whereby a civil penalty for a
violation is agreed upon by the respondent and the Commission outside of
a formal, docketed proceeding.
(d) Mitigation means the reduction, in whole or in part, of the
amount of a civil penalty.
(e) Person includes individuals, corporations, partnerships, and
associations existing under or authorized by the laws of the United
States or of a foreign country.
(f) Respondent means any person charged with a violation.
(g) Settlement means the process whereby a civil penalty or other
disposition of the case for a violation is agreed to in a formal,
docketed proceeding instituted by order of the Commission.
(h) Violation includes any violation of sections 19(f)(4), 19(g)(4)
and 19(k) of the Merchant Marine Act, 1920 (46 U.S.C. 42104(a),
42104(d), and 42108); any provision of the Shipping Act of 1984 (46
U.S.C. 40101-41309); sections 2 and 3 of Pub. L. 89-777 (46 U.S.C.
44101-44106); and/or any order, rule or regulation (except for
procedural rules and regulations contained in this part) issued or made
by the Commission in the exercise of its powers, duties and functions
under the Merchant Marine Act, 1920, the Shipping Act of 1984, or Pub.
L. 89-777.
(i) Words in the plural form shall include the singular and vice
versa; and words importing the masculine gender shall include the
feminine and vice versa. The terms ``includes'' and ``including'' do not
exclude matters not listed but which are in the same general class. The
word ``and'' includes ``or'', except where specifically stated or where
the context requires otherwise. [Rule 602.]
[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as
amended at 64 FR 7812, Feb. 17, 1999; 74 FR 50717, Oct. 1, 2009]
Sec. 502.603 Assessment of civil penalties: Procedure; criteria for
determining amount; limitations; relation to compromise.
(a) Procedure for assessment of penalty. The Commission may assess a
civil penalty only after notice and opportunity for hearing. Civil
penalty assessment proceedings, including settlement negotiations, shall
be governed by the Commission's Rules of Practice and Procedure in this
part. All settlements must be approved by the Presiding Officer. The
full text of any settlement must be included in the final order of the
Commission.
(b) Criteria for determining amount of penalty. In determining the
amount of any penalties assessed, the Commission shall take into account
the nature, circumstances, extent and gravity of the violation committed
and the policies for deterrence and future compliance with the
Commission's rules and regulations and the applicable statutes. The
Commission shall also consider the respondent's degree of culpability,
history of prior offenses, ability to pay and such other matters as
justice requires.
(c) Limitations; relation to compromise. When the Commission, in its
discretion, determines that policy, justice or other circumstances
warrant, a civil penalty assessment proceeding may be instituted at any
time for any violation which occurred within five years
[[Page 91]]
prior to the issuance of the order of investigation. Such proceeding may
also be instituted at any time after the initiation of informal
compromise procedures, except where a compromise agreement for the same
violations under the compromise procedures has become effective under
Sec. 502.604(e). [Rule 603.]
[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as
amended at 64 FR 7812, Feb. 17, 1999]
Sec. 502.604 Compromise of penalties: Relation to assessment
proceedings.
(a) Scope. Except in pending civil penalty assessment proceedings
provided for in Sec. 502.603, the Commission, when it has reason to
believe a violation has occurred, may invoke the informal compromise
procedures of this section.
(b) Notice. When the Commission considers it appropriate to afford
an opportunity for the compromise of a civil penalty, it will, except
when otherwise authorized by the Commission, or where circumstances
render it unnecessary, send a Notice and Demand Letter (``NDL'') to the
respondent, by registered or certified mail, or by other means
reasonably calculated to give notice. The NDL will describe specific
violation(s) on which the claim is based, including the particular
facts, dates and other elements necessary for the respondent to identify
the specific conduct constituting the alleged violation; the amount of
the penalty demanded; the availability of alternative dispute
resolution, including mediation, through the Commission's Office of
Consumer Affairs and Dispute Resolution Services; and the names of
Commission personnel with whom the demand may be discussed, if the
person desires to compromise the penalty. The NDL also will state the
deadlines for the institution and completion of compromise negotiations
and the consequences of failure to compromise.
(c) Request for compromise. Any person receiving a NDL provided for
in paragraph (b) of this section may, within the time specified, deny
the violation, or submit matters explaining, mitigating or showing
extenuating circumstances, as well as make voluntary disclosures of
information and documents.
(d) Criteria for compromise. In addition to the factors set forth in
Sec. 502.603(b), in compromising a penalty claim, the Commission may
consider litigative probabilities, the cost of collecting the claim and
enforcement policy.
(e) Disposition of claims in compromise procedures. (1) When a
penalty is compromised and the respondent agrees to settle for that
amount, a compromise agreement shall be executed. (One example of such
compromise agreement is set forth as appendix A to this subpart.) This
agreement, after reciting the nature of the claim, will include a
statement evidencing the respondent's agreement to the compromise of the
Commission's penalty claim for the amount set forth in the agreement and
will also embody an approval and acceptance provision which is to be
signed by the appropriate Commission official. Upon compromise of the
penalty in the agreed amount, a duplicate original of the executed
agreement shall be furnished to the respondent.
(2) Upon completion of the compromise, the Commission may issue a
public notice thereof, the terms and language of which are not subject
to negotiation.
(f) Relation to assessment proceedings. Except by order of the
Commission, no compromise procedure shall be initiated or continued
after institution of a Commission assessment proceeding directed to the
same violations. Any offer of compromise submitted by the respondent
pursuant to this section shall be deemed to have been furnished by the
respondent without prejudice and shall not be used against the
respondent in any proceeding.
(g) Delegation of compromise authority. The Director, Bureau of
Enforcement, is delegated authority to issue NDLs and compromise civil
penalties as set forth in this subpart, provided, however, that approval
of the Managing Director is obtained prior to issuance of each NDL and
provided further that compromise agreements shall not be effective
unless approved by the Managing Director, whose signature evidencing
approval shall appear on compromise agreements, in addition to that of
the Director of the Bureau of Enforcement. The Director, Bureau of
[[Page 92]]
Enforcement, has the authority to negotiate the terms of compromise
agreements.
[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as
amended at 61 FR 51233, Oct. 1, 1996; 64 FR 7812, 7813, Feb. 17, 1999;
75 FR 29455, May 26, 2010]
Sec. 502.605 Payment of penalty: Method; default.
(a) Method. Payment of penalties by the respondent is to be made by
bank cashier's check or other instrument acceptable to the Commission.
(b) All checks or other instruments submitted in payment of claims
shall be made payable to the Federal Maritime Commission.
(c) Default in payment. Where a respondent fails or refuses to pay a
penalty properly assessed under Sec. 502.603, or compromised and agreed
to under Sec. 502.604, appropriate collection efforts will be made by
the Commission, including, but not limited to referral to the Department
of Justice for collection. Where such defaulting respondent is a
licensed freight forwarder, such default also may be grounds for
revocation or suspension of the respondent's license, after notice and
opportunity for hearing, unless such notice and hearing have been waived
by the respondent in writing. [Rule 605.]
[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as
amended at 64 FR 7813, Feb. 17, 1999]
Sec. Appendix A to Subpart W of Part 502--Example of Compromise
Agreement To Be Used Under 46 CFR 502.604
Compromise Agreement
FMC File No. ____
This Agreement is entered into between:
(1) the Federal Maritime Commission, hereinafter referred to as
Commission, and
(2) ________, hereinafter referred to as Respondent.
Whereas, the Commission is considering the institution of an
assessment proceeding against Respondent for the recovery of civil
penalties provided under the [appropriate statute], for alleged
violations of section ____;
Whereas, this course of action is the result of practices believed
by the Commission to have been engaged in by Respondent, to wit:
[General description of practices and dates or time period involved]
Whereas, the Commission has authority under the Shipping Act of 1984
to compromise and collect civil penalties; and,
Whereas, Respondent has terminated the practices which are the basis
for the allegations of violation set forth herein, and has instituted
and indicated its willingness to maintain measures designed to eliminate
these practices by Respondent, its officers, directors or employees.
Now Therefore, in consideration of the premises herein, and in
compromise of all civil penalties arising from the alleged violations,
Respondent and the Commission hereby agree upon the following terms and
conditions of compromise and settlement:
1. Respondent shall make a monetary payment to the Commission
herewith, by bank cashier's check, in the total amount of $____.
2. Upon acceptance in writing of this Agreement by the Director of
the Bureau of Enforcement of the Commission, this instrument shall
forever bar the commencement or institution of any assessment proceeding
or other claim for recovery of civil penalties from the Respondent
arising from the alleged violations set forth above.
3. It is expressly understood and agreed that this Agreement is not,
and is not to be construed as, an admission by Respondent to the alleged
violations set forth above.
(Respondent's Name)
By:____________________________________________________________________
Title:_________________________________________________________________
Date:__________________________________________________________________
Approval and Acceptance
The above terms, conditions and consideration are hereby approved
and accepted:
By the Federal Maritime Commission:
Director, Bureau of Enforcement
Date:__________________________________________________________________
[49 FR 44418, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993, as
amended at 61 FR 51233, Oct. 1, 1996; 65 FR 81759, Dec. 27, 2000]
Subpart X_Paperwork Reduction Act
Sec. 502.991 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
This section displays the control numbers assigned to information
collection requirements of the Commission in this part by the Office of
Management and Budget (OMB) pursuant to the Paperwork Reduction Act of
1980, Pub. L. 96-511. The Commission
[[Page 93]]
intends that this section comply with the Act, which requires that
agencies display a current control number assigned by the Director of
OMB for each agency information collection requirement:
------------------------------------------------------------------------
Current OMB
Section control no.
------------------------------------------------------------------------
502.27 (Form FMC.12).................................... 3072-0001
------------------------------------------------------------------------
[49 FR 44369, Nov. 6, 1984. Redesignated at 58 FR 27211, May 7, 1993]
PART 503_PUBLIC INFORMATION--Table of Contents
Subpart A_General
Sec.
503.1 Scope and purpose.
Subpart B_Publication in the Federal Register
503.11 Materials to be published.
503.12 Effect of nonpublication.
503.13 Incorporation by reference.
Subpart C_Records, Information and Materials Generally Available to the
Public Without Resort to Freedom of Information Act Procedures
503.21 Mandatory public records.
503.22 Records available through the Commission's Web site or at the
Office of the Secretary.
503.23-503.24 [Reserved]
Subpart D_Requests for Records Under the Freedom of Information Act
503.31 Records available upon written request under the Freedom of
Information Act.
503.32 Procedures for responding to requests made under the Freedom of
Information Act.
503.33 Exceptions to availability of records.
503.34 Annual report of public information request activity.
Subpart E_Requests for Testimony by Employees Relating to Official
Information and Production of Official Records in Litigation
503.37 Purpose and scope; definitions.
503.38 General prohibition.
503.39 Factors to be considered in response to demands or requests.
503.40 Service of process and filing requirements.
503.41 Procedure when testimony or production of documents is sought.
503.42 Fees.
Subpart F_Fees
503.48 Policy and services available.
503.49 Payment of fees and charges.
503.50 Fees for services.
Subpart G_Information Security Program
503.51 Definitions.
503.52 Senior agency official.
503.53 Oversight Committee.
503.54 Original classification.
503.55 Derivative classification.
503.56 General declassification and downgrading policy.
503.57 Mandatory review for declassification.
503.58 Appeals of denials of mandatory declassification review requests.
503.59 Safeguarding classified information.
Subpart H_Access to Any Record of Identifiable Personal Information
503.60 Definitions.
503.61 Conditions of disclosure.
503.62 Accounting of disclosures.
503.63 Request for information.
503.64 Commission procedure on request for information.
503.65 Request for access to records.
503.66 Amendment of a record.
503.67 Appeals from denial of request for amendment of a record.
503.68 Exemptions.
503.69 Fees.
Subpart I_Public Observation of Federal Maritime Commission Meetings and
Public Access to Information Pertaining to Commission Meetings
503.70 Policy.
503.71 Definitions.
503.72 General rule--meetings.
503.73 Exceptions--meetings.
503.74 Procedures for closing a portion or portions of a meeting or a
portion or portions of a series of meetings on agency
initiated requests.
503.75 Procedures for closing a portion of a meeting on request
initiated by an interested person.
503.76 Effect of vote to close a portion or portions of a meeting or
series of meetings.
503.77 Responsibilities of the General Counsel of the agency upon a
request to close any portion of any meeting.
503.78 General rule--information pertaining to meeting.
503.79 Exceptions--information pertaining to meeting.
503.80 Procedures for withholding information pertaining to meeting.
[[Page 94]]
503.81 Effect of vote to withhold information pertaining to meeting.
503.82 Public announcement of agency meeting.
503.83 Public announcement of changes in meeting.
503.84 [Reserved]
503.85 Agency recordkeeping requirements.
503.86 Public access to records.
503.87 Effect of provisions of this subpart on other subparts.
Authority: 5 U.S.C. 331, 552, 552a, 552b, 553; 31 U.S.C. 9701; E.O.
13526 of January 5, 2010 75 FR 707, 3 CFR, 2010 Comp., p. 298, sections
5.1(a) and (b).
Source: 49 FR 44401, Nov. 6, 1984, unless otherwise noted.
Subpart A_General
Sec. 503.1 Scope and purpose.
This part implements the Freedom of Information Act (FOIA), 5 U.S.C.
552, as amended, the Privacy Act of 1974, 5 U.S.C. 552a, and the
Government in the Sunshine Act (1976), 5 U.S.C. 552b; and sets forth the
Commission's regulations governing:
(a) Public availability of Commission information and records at its
Office of the Secretary, published in the Federal Register, or posted on
the Commission's public Web site (www.fmc.gov);
(b) Procedures for requests for testimony by current or former FMC
employees relating to official information and production of official
Commission records in litigation;
(c) The type of services and amount of fees charged for certain
Commission services; and
(d) The Commission's Information Security Program.
[80 FR 52640, Sept. 1, 2015]
Subpart B_Publication in the Federal Register
Sec. 503.11 Materials to be published.
The Commission shall separately state and concurrently publish the
following materials in the Federal Register or on its public Web site
(www.fmc.gov) for the guidance of the public:
(a) Descriptions of its central and field organization and the
established places at which the officers from whom, and the methods
whereby, the public may secure information, make submittals or requests,
or obtain decisions.
(b) Statements of the general course and method by which its
functions are channeled and determined, including the nature and
requirements of all formal and informal procedures available.
(c) Rules of procedure, descriptions of forms available or the
places at which forms may be obtained, and instructions as to the scope
and contents of all papers, reports, or examinations.
(d) Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency.
(e) Every amendment, revision, or repeal of the foregoing.
[49 FR 44401, Nov. 6, 1984, as amended at 64 FR 23547, May 3, 1999; 80
FR 52640, Sept. 1, 2015]
Sec. 503.12 Effect of nonpublication.
Except to the extent that a person has actual and timely notice of
the terms thereof, no person shall in any manner be required to resort
to, or be adversely affected by any matter required to be published in
the Federal Register and not so published.
Sec. 503.13 Incorporation by reference.
For purposes of this subpart, matter which is reasonably available
to the class of persons affected hereby shall be deemed published in the
Federal Register when incorporated by reference therein with the
approval of the Director of the Office of the Federal Register.
[49 FR 44401, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Subpart C_Records, Information and Materials Generally Available to the
Public Without Resort to Freedom of Information Act Procedures
Source: 63 FR 53308, Oct. 5, 1998, unless otherwise noted.
[[Page 95]]
Sec. 503.21 Mandatory public records.
(a) The Commission, as required by the Freedom of Information Act, 5
U.S.C. 552, is responsible for determining which of its records must be
made publicly available, for identifying additional records of interest
to the public that are appropriate for public disclosure, for posting
and indexing such records, and for reviewing and updating posted records
and indices on an ongoing basis. The Commission makes the following
materials available for public inspection in electronic format on its
Web site at www.fmc.gov:
(1) Final opinions (including concurring and dissenting opinions)
and all orders made in the adjudication of cases.
(2) Those statements of policy and interpretations which have been
adopted by the Commission.
(3) Administrative staff manuals and instructions to staff that
affect any member of the public.
(4) Copies of all records, regardless of form or format, which have
been released to any person pursuant to a Freedom of Information Act
request, and which the Secretary determines have become or are likely to
become the subject of subsequent requests for substantially the same
records, and a general index of such records.
(b) To prevent unwarranted invasion of personal privacy, the
Secretary may delete identifying details when it makes available or
publishes an opinion, statement of policy, interpretation, staff manual,
instruction, or copies of records referred to in paragraph (a)(4) of
this section. In each case, the justification for the deletion shall be
explained fully in writing, and the extent of such deletion shall be
indicated on that portion of the record which is made available or
published, unless including that indication would harm an interest
protected by an exemption in Sec. 503.33 under which the deletion is
made. If technically feasible, the extent of the deletion shall be
indicated at the place in the record where the deletion was made.
(c) The Commission maintains and makes available for public
inspection in an electronic format, a current log or index providing
identifying information for the public as to any matter which is issued,
adopted, or promulgated, and which is required by paragraph (a) of this
section to be made available or published.
(1) No final order, opinion, statement of policy, interpretation, or
staff manual or instruction that affects any member of the public will
be relied upon, used, or cited as precedent by the Commission against
any private party unless:
(i) It has been logged or indexed and either made available or
published on its public Web site as provided by this subpart; or
(ii) That private party shall have actual and timely notice of the
terms thereof.
(2) [Reserved]
(d) Duplication of records may be subject to fees as prescribed in
subpart E of this part.
[63 FR 53308, Oct. 5, 1998, as amended at 80 FR 52640, Sept. 1, 2015; 82
FR 2248, Jan. 9, 2017]
Sec. 503.22 Records available through the Commission's Web site or at
the Office of the Secretary.
The following records are also available without the requirement of
a FOIA request on the Commission's Web site or by contacting the Office
of the Secretary, Federal Maritime Commission, 800 North Capitol St.
NW., Washington, DC 20573, [email protected]. Access to requested
records may be delayed if they have been sent to archives. Certain fees
may be assessed for duplication of records made available by this
section as prescribed in subpart F of this part.
(a) Proposed and final rules and regulations of the Commission
including general substantive rules, statements of policy and
interpretations, and rules of practice and procedure.
(b) Federal Maritime Commission reports.
(c) Official docket files in all formal proceedings including, but
not limited to, orders, final decisions, notices, pertinent
correspondence, transcripts, exhibits, and briefs, except for materials
which are the subject of a protective order.
(d) News releases, consumer alerts, Commissioner statements, and
speeches.
[[Page 96]]
(e) Approved summary minutes of Commission actions showing final
votes, except for minutes of closed Commission meetings which are not
available until the Commission publicly announces the results of such
deliberations.
(f) Annual reports of the Commission.
(g) Agreements filed or in effect pursuant to section 5 (46 U.S.C.
40301(d)-(e), 40302-40303, 40305) and section 6 (46 U.S.C. 40304, 40306,
41307(b)-(d)) of the Shipping Act of 1984.
(h) List of FMC-licensed and bonded ocean transportation
intermediaries.
(i) Notification of ocean transportation intermediaries license
applications, revocations, and suspensions.
(j) General descriptions of the functions, bureaus, and offices of
the Commission, phone numbers and email addresses, as well as locations
of Area Representatives.
(k) Information about how to file a complaint alleging violations of
the Shipping Act, and how to seek mediation or alternative dispute
resolution services.
(l) Commonly used forms.
(m) Final and pending proposed rules.
(n) Access to statements of policy and interpretations as published
in part 545 of this chapter.
(o) Lists of the location of all common carrier and conference
tariffs and publically available terminal schedules of marine terminal
operators.
[80 FR 52640, Sept. 1, 2015]
Sec. Sec. 503.23-503.24 [Reserved]
Subpart D_Requests for Records Under the Freedom of Information Act
Source: 63 FR 53310, Oct. 5, 1998, unless otherwise noted.
Sec. 503.31 Records available upon written request under the Freedom
of Information Act.
(a) Generally. Many documents are available on the Commission's
public Web site and the Commission encourages requesters visit the Web
site before making a request for records under FOIA.
(1) Electronic or written requests. A member of the public may
request permission to inspect, copy or be provided with any Commission
record not described in subpart C of this part or posted on the
Commission's Web site at www.fmc.gov. Such a request must:
(i) Reasonably describe the record or records sought;
(ii) Be submitted electronically to [email protected] or in writing to
the Secretary, Federal Maritime Commission, 800 North Capitol Street
NW., Washington, DC 20573.
(iii) Be clearly marked on the subject line of an email or on the
exterior of the envelope with the term ``FOIA.''
(2) [Reserved]
(b) The Secretary shall evaluate each request in conjunction with
the official having responsibility for the subject matter area and the
General Counsel, and the Secretary shall determine whether or not to
grant the request in accordance with the provisions of this subpart.
(c) In making any record available to a person under this subpart,
the Secretary shall provide the record in any form or format requested
by the person if the record is readily reproducible by the Secretary in
that form or format.
(d) Certain fees may be assessed for processing requests under this
subpart as prescribed in subpart F of this part.
[63 FR 53310, Oct. 5, 1998, as amended at 80 FR 52641, Sept. 1, 2015]
Sec. 503.32 Procedures for responding to requests made under the
Freedom of Information Act.
(a) Determination to grant or deny request. Upon request by any
member of the public for documents, made in accordance with the rules of
this part, the Commission's Secretary or his or her delegate in his or
her absence, shall determine whether or not such request shall be
granted.
(1) Such determination shall be made by the Secretary within twenty
(20) business days after receipt of such request, except as provided in
paragraphs (b) and (e)(4) of this section, and the Secretary shall
immediately notify the requester of:
(i) Such determination and the reasons therefor;
(ii) The right of such person to seek assistance from the agency's
FOIA Public Liaison; and
[[Page 97]]
(iii) In the case of an adverse determination, the right of such
requester to appeal to the Chairman no less than 90 days after the date
of such adverse determination, and the right of such requester to seek
dispute resolution services from the agency's FOIA Public Liaison or the
Office of Government Information Services.
(2) Upon granting a request, the Secretary shall promptly make
records available to the requestor. Upon denial of such a request the
Secretary shall promptly notify the requestor of the determination,
explain the reason for denial, give an estimate of the volume of matter
denied, and set forth the names and titles or positions of each person
responsible for the denial of the request.
(3)(i) Any party whose request for documents or other information
pursuant to this part has been denied in whole or in part by the
Secretary may appeal such determination. Any such appeal must:
(A) Be addressed to: Chairman, Federal Maritime Commission,
Washington, D.C. 20573-0001; and
(B) Be filed not later than 90 days following receipt of
notification of full or partial denial of records requested.
(ii) The Chairman or the Chairman's specific delegate, in his or her
absence, shall make a determination with respect to that appeal within
twenty (20) business days after receipt of such appeal, except as
provided in paragraph (b) of this section.
(iii) If, on appeal, the denial is upheld, either in whole or in
part, the Chairman shall so notify the party submitting the appeal and
shall notify such person of the provisions of 5 U.S.C. 552(a)(4)
regarding judicial review of such determination upholding the denial.
Notification shall also include the statement that the determination is
that of the Chairman of the Federal Maritime Commission and the name of
the Chairman.
(b) Extension of time limits. (1) In unusual circumstances, as
defined in paragraph (b)(2) of this section, the time limits prescribed
with respect to initial actions in response to a FOIA request or actions
on appeal may be extended by written notice from the Secretary of the
Commission to the person making such request, setting forth the reasons
for such extension and the date on which a determination is expected to
be dispatched. No such notice shall specify a date that would result in
an extension for more than ten (10) working days, except as provided in
paragraph (b)(3) of this section.
(2) As used in this paragraph, unusual circumstances means, but only
to the extent reasonably necessary to the proper processing of the
particular request:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject matter interest therein.
(3) If the time limit is extended as prescribed under this section,
and the request cannot be processed within the extended time limit, the
Secretary shall notify the requestor, and either provide the requestor
with an opportunity to limit the scope of the request so that it may be
processed within the time limit, or provide the requestor an opportunity
to arrange with the Secretary an alternative time frame for processing
the request or a modified request. To aid the requester, the Commission
will make available its FOIA Public Liaison, who shall assist in the
resolution of any dispute between the requester and the Commission, and
notify the requester of the right of the requester to seek dispute
resolution services from the Office of Government Information Services.
(4) The Secretary may make an initial written request to the
requestor for information to clarify the request which will toll the 20-
day processing period until such information has been received. The 20-
day processing period
[[Page 98]]
will recommence after receipt of the requested information.
(5) The Secretary may also make written requests to clarify issues
regarding fee assessments. Such written requests will toll the 20-day
processing period until such information has been received from the
requestor. The 20-day processing period will recommence after receipt of
the requested information.
(c) Aggregation of requests. Certain requests by the same requestor,
or by a group of requestors acting in concert, may be aggregated:
(1) Upon the Secretary's reasonable belief that such requests
actually constitute a single request, which if not aggregated would
satisfy the unusual circumstances specified in paragraph (b)(2) of this
section; and
(2) If the requests involve clearly related matters.
(d) Multitrack processing of requests. The Secretary uses multitrack
processing of FOIA requests. Requests which seek and are granted
expedited processing are put on the expedited track. All other requests
are designated either simple or complex requests based on the amount of
time and/or complexity needed to process the request. A request may be
considered simple if it involves records that are routinely requested
and readily available.
(e) Expedited processing of requests. (1) The Secretary will provide
for expedited processing of requests for records when the person
requesting the records can demonstrate a compelling need.
(2) The term compelling need means:
(i) A failure to obtain requested records on an expedited basis
under this paragraph could reasonably be expected to pose an imminent
threat to the life or physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.
(3) A demonstration of compelling need by a person making a request
for expedited processing must be made in the form of a statement
describing the circumstances and certified by such person to be true and
correct to the best of such person's knowledge and belief.
(4) The Secretary shall determine whether to provide expedited
processing, and provide notice of the determination to the person making
the request, within ten (10) calendar days after the receipt date of the
request.
(5) Appeal of the determination not to provide expedited processing
should be sought in accordance with the provisions of paragraph
(a)(3)(i) of Sec. 503.32, and will be considered expeditiously.
(6) Any request granted expedited processing shall be processed as
soon as practicable.
[63 FR 53310, Oct. 5, 1998, as amended at 80 FR 52641, Sept. 1, 2015; 82
FR 2248, Jan. 9, 2017]
Sec. 503.33 Exceptions to availability of records.
(a) Except as provided in paragraph (b) of this section, the
following records may be withheld from disclosure:
(1) Records specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and which are in fact properly classified pursuant to
such Executive order. Records to which this provision applies shall be
deemed by the Commission to have been properly classified. This
exception may apply to records in the custody of the Commission which
have been transmitted to the Commission by another agency which has
designated the record as nonpublic under an Executive order.
(2) Records related solely to the internal personnel rules and
practices of the Commission.
(3) Records specifically exempted from disclosure by statute,
provided that such statute:
(i) Requires that the matter be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(4) Trade secrets and commercial financial information obtained from
a person and privileged or confidential.
(5) Inter-agency or intra-agency memoranda or letters that would not
be available by law to a party other
[[Page 99]]
than an agency in litigation with the Commission, provided that the
deliberative process privilege shall not apply to records created 25
years or more before the date on which the records were requested.
(6) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
or
(9) Geological and geophysical information and data, including maps,
concerning wells.
(b) Nothing in this section authorizes withholding of information or
limiting the availability of records to the public except as
specifically stated in this part, nor shall this part be authority to
withhold information from Congress.
(c) Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the portions
which are exempt under this part. The amount of information deleted
shall be indicated on the released portion of the record, unless
including that indication would harm an interest protected by the
exemption in this section under which the deletion is made. If
technically feasible, the amount of the information deleted shall be
indicated at the place in the record where such deletion is made.
(d) Whenever a request is made which involves access to records
described in paragraph (a)(7)(i) of this section and the investigation
or proceeding involves a possible violation of criminal law, and there
is reason to believe that the subject of the investigation or proceeding
is not aware of its pendency, and disclosure of the existence of the
records could reasonably be expected to interfere with enforcement
proceedings, the Commission may, during only such time as that
circumstance continues, treat the records as not subject to the
requirements of 5 U.S.C. 552 and this subpart.
[63 FR 53310, Oct. 5, 1998, as amended at 82 FR 2249, Jan. 9, 2017]
Sec. 503.34 Annual report of public information request activity.
(a) On or before February 1 of each year, the Commission must submit
to the Attorney General of the United States, in the format required by
the Attorney General, a report on FOIA activities which shall cover the
preceding fiscal year pursuant to 5 U.S.C. 552(e).
(b) Each such report shall be made available to the public in
electronic format.
[63 FR 53310, Oct. 5, 1998, as amended at 80 FR 52641, Sept. 1, 2015; 82
FR 2249, Jan. 9, 2017]
[[Page 100]]
Subpart E_Requests for Testimony by Employees Relating to Official
Information and Production of Official Records in Litigation
Source: 79 FR 24351, Apr. 30, 2014, unless otherwise noted.
Sec. 503.37 Purpose and scope; definitions.
(a) This subpart sets forth the procedures to be followed with
respect to:
(1) Service of summonses and complaints or other requests or demands
directed to the Federal Maritime Commission (Commission) or to any
Commission employee or former employee in connection with litigation
arising out of or involving the performance of official activities of
the Commission; and
(2) The oral or written disclosure, in response to subpoenas,
orders, or other requests or demands of judicial or quasi-judicial
authority (collectively ``demands''), whether civil or criminal in
nature, or in response to requests for depositions, affidavits,
admissions, responses to interrogatories, document production, or other
litigation-related matters, pursuant to the Federal Rules of Civil
Procedure, the Federal Rules of Criminal Procedure, or applicable state
rules (collectively ``requests''), of any material contained in the
files of the Commission, any information relating to material contained
in the files of the Commission, or any information acquired while the
subject of the demand or request is or was an employee of the
Commission, as part of the performance of that person's duties or by
virtue of that person's official status.
(b) This subpart applies in all litigation in which the United
States is not a party.
(c) For purposes of this subpart, the term employee includes:
(1) any current or former Commissioner or employee of the
Commission;
(2) any other individual hired through contractual agreement or on
behalf of the Commission or who has performed or is performing services
under such agreement for the Commission;
(3) Any individual who served or is serving in any consulting or
advisory capacity to the Commission, whether informal or formal.
(d) The Commission authorizes the General Counsel or the General
Counsel's designee to make determinations under this section.
(e) For purposes of this subpart, the term litigation encompasses
all pre-trial, trial, and post-trial stages of all judicial or
administrative actions, hearings, investigations, or similar proceedings
before courts, commissions, grand juries, or other judicial or quasi-
judicial bodies or tribunals, whether criminal, civil, or administrative
in nature. This subpart governs, inter alia, responses to requests for
discovery, depositions, and other litigation proceedings, as well as
responses to informal requests by attorneys or others in situations
involving litigation. However, this subpart shall not apply to any
claims against the Commission by Federal Maritime Commission employees
(present or former), or applicants for Commission employment, for which
jurisdiction resides with the U.S. Equal Employment Opportunity
Commission; the U.S. Merit Systems Protection Board; the Office of
Special Counsel; the Federal Labor Relations Authority; or a labor
arbitrator operating under a collective bargaining agreement between the
Commission and a labor organization representing Commission employees;
or their successor agencies or entities.
(f) For purposes of this subpart, official information means all
information of any kind, however stored, that is:
(1) In the custody and control of the Commission;
(2) Relates to information in the custody and control of the
Commission; or
(3) Was acquired by Commission contractors, employees, former
employees or former contractors as part of their official duties or
because of their official status within the Commission while such
individuals were employed by or served on behalf of the Commission.
(g) Nothing in this subpart affects disclosure of information under
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5
U.S.C. 552a, the Government in the Sunshine
[[Page 101]]
Act, 5 U.S.C. 552b, the Commission's implementing regulations, or
pursuant to congressional subpoena.
(h) Nothing in this subpart affects the disclosure of official
information to other federal agencies or Department of Justice attorneys
in connection with:
(1) Litigation conducted on behalf or in defense of the United
States, its agencies, officers, and employees; or
(2) Litigation in which the United States has an interest.
(i) This subpart is intended only to provide guidance for the
internal operations of the Commission, and is not intended to, and does
not, and may not be relied upon to create any right or benefit,
substantive or procedural, enforceable at law by a party against the
United States.
Sec. 503.38 General prohibition.
(a) No employee or former employee of the Commission shall, in
response to a demand or request, produce any material contained in the
files of the Commission, or disclose any information relating to or
based upon material contained in the files of the Commission, or
disclose any information or produce any material acquired as part of the
performance of that person's official duties or because of that person's
official status, without prior approval of the Commission in accordance
with Sec. Sec. 503.39 and 503.40.
Sec. 503.39 Factors to be considered in response to demands or requests.
(a) The Commission will determine whether testimony or the
production of documents will be authorized according to the following
criteria:
(1) Statutory restrictions, as well as any legal objection,
exemption, or privilege that may apply;
(2) Relevant legal standards for disclosure of nonpublic information
and documents;
(3) Commission rules and regulations;
(4) The public interest;
(5) Minimizing or preventing expenditures of Commission time and
resources solely for private purposes.
(6) Minimizing the appearance of improperly favoring one litigant
over another;
(7) Minimizing the possibility that the public will misconstrue
variances between personal opinions of Commission employees and
Commission policy; and
(8) Preserving the integrity of the administrative process.
(b) [Reserved]
Sec. 503.40 Service of process and filing requirements.
(a) Service of summonses and complaints. (1) Except in cases in
which the Commission is represented by legal counsel who have entered an
appearance or otherwise given notice of their representation, only the
General Counsel is authorized to receive and accept subpoenas, or other
demands or requests directed to the Commission, or any component
thereof, or its employees, or former employees, whether civil or
criminal nature, for:
(i) Material, including documents, contained in the files of the
Commission;
(ii) Information, including testimony, affidavits, declarations,
admissions, responses to interrogatories, or informal statements,
relating to material contained in the files of the Commission or which
any Commission employee acquired in the course and scope of the
performance of his official duties;
(iii) Garnishment or attachment of compensation of current or former
employees; or
(iv) The performance or non-performance of any official Commission
duty.
(2) All such documents should be delivered or addressed to the
General Counsel, Office of the General Counsel, Federal Maritime
Commission, 800 North Capitol Street NW., Washington, DC 20573.
(3) In the event that any subpoena, demand, or request is sought to
be delivered to a Commission employee (including former employees) other
than in the manner prescribed in paragraphs (a)(1) and (2) of this
section, such attempted service shall be ineffective. Such employee
shall, after consultation with the General Counsel:
[[Page 102]]
(i) Decline to accept the subpoena, demand, or request; or
(ii) Return them to the server under cover of a written
communication referring to the procedures prescribed in this part.
(4) Acceptance of such documents by the Office of the General
Counsel does not constitute a waiver of any defenses that might
otherwise exist with respect to service under the Federal Rules of Civil
or Criminal Procedure, or other applicable laws, rules, or regulations.
(b) [Reserved]
Sec. 503.41 Procedure when testimony or production of documents
is sought.
The Commission shall follow the procedures set forth in this part.
(a) If oral testimony is sought by a demand in any case or matter in
which the United States is not a party, an affidavit, or, if that is not
feasible, a statement by the party seeking the testimony or by his
attorney, setting forth a summary of the testimony sought and its
relevance to the proceeding, must be furnished to the Commission. Any
authorization for testimony by a present or former employee of the
Commission shall be limited to the scope of the demand as summarized in
such statement.
(b) When information other than oral testimony is sought by a
demand, the Commission shall request a summary of the information sought
and its relevance to the proceeding.
(c) Permission to testify or to release documents in all cases will
be limited to matters outlined in the affidavit or declaration described
in Sec. 503.41(a) and (b), or to such matters as deemed appropriate by
the Commission. If the Commission, in considering the factors in Sec.
503.39, allows the release of documents or testimony to be given by an
employee, arrangements shall be made for the taking of testimony or
receipt of documents by the method least disruptive to the employee's
official duties. Testimony may, for example, be provided by affidavits,
answers to interrogatories, written depositions, or depositions
transcribed, recorded, or preserved by any other means allowable by law.
(d) Upon issuance of a final determination to not authorize
testimony or release of Commission information by the Commission, the
party or the party's counsel seeking testimony or documents may consult
or negotiate with the Commission to refine and limit the demand.
Sec. 503.42 Fees.
(a) Generally. The Commission may condition the production of
records or appearance for testimony upon advance payment of a reasonable
estimate of the costs to the Commission.
(b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of attorney
time spent in reviewing the demand or request, and expenses generated by
materials and equipment used to search for, produce, and copy the
responsive information. Costs for employee time will be calculated on
the basis of the hourly pay of the employee (including all pay,
allowance, and benefits). Fees for duplication will be the same as those
charged by the Commission in its regulations at subpart F of this part.
(c) Witness fees. Fees for attendance by a witness will include
fees, expenses, and allowances prescribed by the court's rules. If no
such fees are prescribed, witness fees will be determined based upon the
rule of the Federal district court closest to the location where the
witness will appear. Such fees will include cost of time spent by the
witness to prepare for testimony, in travel, and for attendance at the
legal proceeding.
(d) Payment of fees. The seeking party must pay witness fees for
current Commission employees and any records certification fees by
submitting to the General Counsel a check or money order for the
appropriate amount made payable to the Treasury of the United States. In
the case of testimony by former Commission employees, applicable fees
must be paid directly to the former employee in accordance with 28
U.S.C. 1821, per diem and mileage, or other applicable statutes.
(e) Certification (authentication) of copies of records. The
Commission may certify that records are true copies in
[[Page 103]]
order to facilitate their use as evidence. If certified records are
sought, the request for certified copies shall be made at least 45 days
before the date they will be needed. The request should be sent to the
General Counsel. Fees for certification will be the same as those
charged by the Commission in its regulations at subpart F of this part.
(f) Waiver or reduction of fees. The Commission may, upon a showing
of reasonable cause, waive or reduce any fees in connection with
testimony, production, or certification of records.
(g) De minimis fees. Fees will not be assessed if the total charge
would be $10.00 or less.