[Title 46 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
46
Part 500 to End
Revised as of October 1, 2001
Shipping
Containing a codification of documents of general
applicability and future effect
As of October 1, 2001
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
For sale by the Superintendent of Documents, U.S. Government Printing
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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........................ 263
Alphabetical List of Agencies Appearing in the CFR...... 281
List of CFR Sections Affected........................... 291
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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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parts covering specific regulatory areas.
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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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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A subject index to the Code of Federal Regulations is contained in a
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the revision dates of the 50 CFR titles.
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[[Page vii]]
The Office of the Federal Register also offers a free service on the
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2001.
[[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,
DOT. The eighth volume, containing parts 200 to 499, includes chapter
II--Maritime Administration, DOT and chapter III--Coast Guard (Great
Lakes Pilotage), DOT. 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, 2001.
Subject indexes appear in subchapters A--I, I-A, J, K, L, and Q--W
following the subchapters.
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[[Page 1]]
TITLE 46--SHIPPING
(This book contains part 500 to End)
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Part
chapter iv--Federal Maritime Commission..................... 500
Cross References: U.S. Customs Service, Department of the Treasury: See
Customs Duties, 19 CFR chapter I.
Coast Guard, Department of Transportation: See Navigation and
Navigable Waters, 33 CFR chapter I; Shipping, 46 CFR chapter I; Federal
Acquisition Regulations, 48 CFR chapter 12.
Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR
chapter IV.
Surface Transportation Board: See Transportation, 49 CFR chapter X.
Canal Zone Regulations: See Panama Canal, 35 CFR chapter I.
[[Page 3]]
CHAPTER IV--FEDERAL MARITIME COMMISSION
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SUBCHAPTER A--GENERAL AND ADMINISTRATIVE PROVISIONS
Part Page
501 The Federal Maritime Commission--General.... 5
502 Rules of practice and procedure............. 19
503 Public information.......................... 91
504 Procedures for environmental policy analysis 121
505 Administrative offset....................... 126
506 Civil monetary penalty inflation adjustment. 128
507 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Federal
Maritime Commission..................... 130
508 Employee ethical conduct standards and
financial disclosure regulations........ 136
SUBCHAPTER B--REGULATIONS AFFECTING OCEAN SHIPPING IN FOREIGN COMMERCE
515 Licensing, financial responsibility
requirements, and general duties for
ocean transportation intermediaries..... 137
520 Carrier automated tariffs................... 159
525 Marine terminal operator schedules.......... 174
530 Service contracts........................... 177
535 Agreements by ocean common carriers and
other persons subject to the Shipping
Act of 1984............................. 188
540 Passenger vessel financial responsibility... 223
545 Interpretations and statements of policy.... 241
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.............. 243
551 Actions to adjust or meet conditions
unfavorable to shipping in the U.S.
foreign trade........................... 248
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555 Actions to address adverse conditions
affecting U.S.-flag carriers that do not
exist for foreign carriers in the United
States.................................. 248
560 Actions to address conditions unduly
impairing access of U.S.-flag vessels to
ocean trade between foreign ports....... 252
565 Controlled carriers......................... 257
SUBCHAPTER D--REGULATIONS AFFECTING MARITIME CARRIERS AND RELATED
ACTIVITIES IN FOREIGN COMMERCE [RESERVED]
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SUBCHAPTER A--GENERAL AND ADMINISTRATIVE PROVISIONS
PART 501--THE FEDERAL MARITIME COMMISSION--GENERAL--Table of Contents
Sec.
Subpart A--Organization and Functions
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 Executive Director.
501.26 Delegation to the Director, Bureau of Trade Analysis.
501.27 Delegation to the Director, Bureau of Consumer Complaints and
Licensing.
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. app.
876, 1111, and 1701-1720; Reorganization Plan No. 7 of 1961, 26 FR 7315,
August 12, 1961; Pub. L. 89-56, 79 Stat. 195; 5 CFR part 2638; Pub. L.
89-777, 80 Stat. 1356; Pub. L. 104--320, 110 Stat. 3870.
Source: 65 FR 81749, Dec. 27, 2000, 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 foreign commerce of the United
States under provisions of the Shipping Act of 1984, as amended by the
Ocean Shipping Reform Act of 1998 (46 U.S.C. app. 1701-1720); section 19
of the Merchant Marine Act, 1920 (46 U.S.C. app. 876); the Foreign
Shipping Practices Act of 1988 (46 U.S.C. app. 1710a); sections 2 and 3,
Pub. L. 89-777, Financial Responsibility for Death or Injury to
Passengers and for Non-Performance of Voyages (46 U.S.C. app. 817d and
817e); 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 be the Chairman of the
Commission (``Chairman'').
(c) Terms and vacancies. The term of each member of the Commission
is 5 years and begins when the term of the predecessor of that member
ends (i.e., on June 30 of each successive year), except that, when the
term of office of a member ends, the member may continue to serve until
a successor is appointed and qualified. A vacancy in the office of any
Commissioner shall be filled in the same manner as the original
appointment, except that any person chosen to fill a vacancy shall be
appointed only for the unexpired term of the Commissioner whom he or she
succeeds. Each Commissioner shall be removable by the President for
inefficiency, neglect of duty, or malfeasance in office.
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(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.
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.)
(d) Office of the General Counsel. (Ethics Official; Chair,
Permanent Task Force on International Affairs.)
(e) Office of Administrative Law Judges.
(f) Office of Equal Employment Opportunity.
(g) Office of the Inspector General.
(h) Office of the Executive Director. (Chief Operating Officer;
Designated Senior IRM Official; Senior Procurement Executive; Audit
Followup and Management Controls; Chief Information Officer; Chief
Financial Officer.)
(1) Office of Information Resources Management. (Senior IRM Manager;
Computer Security; Forms Control; Records Management.)
(2) Office of Budget and Financial Management.
(3) Office of Human Resources.
(4) Office of Management Services (Physical Security; FMC
Contracting Officer).
(i) Bureau of Consumer Complaints and Licensing (Dispute Resolution
Specialist).
(1) Office of Consumer Complaints.
(2) Office of Passenger Vessels & Information Processing.
(3) Office of Transportation Intermediaries.
(j) Bureau of Enforcement. (Area Representatives.)
(k) Bureau of Trade Analysis.
(1) Office of Agreements.
(2) Office of Economics & Competition Analysis.
(3) Office of Service Contracts & Tariffs.
(l) Boards and Committees.
(1) Executive Resources Board.
(2) Performance Review Board.
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 Equal
Employment Opportunity, the Office of the Inspector General, the Office
of the Executive Director, and officials performing the functions of
Information Security Officer and Designated Agency Ethics Official,
report to the Chairman of the Commission.
(b) Office of the Executive Director. The Bureau of Consumer
Complaints and Licensing, Bureau of Enforcement, Bureau of Trade
Analysis, and the Office of Budget and Financial Management, Office of
Human Resources, Office of Information Resources Management, and Office
of Management Services report to the Office of the Executive Director.
The Office of Equal Employment Opportunity and the Office of the
Inspector General receive administrative assistance from the Executive
Director. All other units of the Commission receive administrative
guidance from the Executive Director.
[[Page 7]]
(c) Bureau of Enforcement and Area Representatives. The Area
Representatives report to the Director, Bureau of Enforcement.
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, Inspector General, Secretary, General Counsel,
Administrative Law Judges, and Executive 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)(4) 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 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.
(2) 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 Chairman 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.
(3) 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.
(4) The Designated Agency Ethics Official and Alternate are
appropriate agency employees formally designated under 5 CFR 2638.202
and Sec. 508.101 of this
[[Page 8]]
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.
(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) Receives and responds to subpoenas directed to Commission
personnel and/or records.
(D) Compiles and publishes the bound volumes of Commission
decisions.
(E) 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.
(F) 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. 2903(b).
(3) Manages the Commission's library and related services.
(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 Secs. 501.26(e)
and 501.26(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 which may impact the programs and
[[Page 9]]
activities of the Commission. Also 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, 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; serves as a technical
advisor on regulatory matters 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 and Privacy Act
matters and other administrative actions.
(10) The General Counsel, or a person designated by the General
Counsel, serves as the Chair of the Permanent Task Force on
International Affairs.
(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) The Office of the Executive Director. (1) The Executive
Director:
(i) As senior staff official, is responsible to the Chairman for the
management and coordination of Commission programs managed by the
operating Bureaus of Enforcement; Consumer Complaints and Licensing; and
Trade Analysis, as more fully described in paragraphs (g) through (i) of
this section, and thereby implements the regulatory policies of the
Commission and the administrative policies and directives of the
Chairman;
(ii) Provides administrative guidance to all units of the Commission
other than the operating bureaus listed in paragraph (f)(1) of this
section, except the Offices of Equal Employment Opportunity and the
Inspector General, which are provided administrative assistance;
(iii) Is the agency's Senior Procurement Executive under 41 U.S.C.
414(3) and Commission Order No. 112;
(iv) Is the Designated Senior Information Resources Management
Official under 44 U.S.C. 501-520 and 3501-3520 and Commission Order No.
117;
(v) Is the Audit Follow-up and Management (Internal) Controls
Official for the Commission under Commission Orders 103 and 106; and
(vi) Is the agency's Chief Operating Officer, as appointed by the
Chairman in response to the President's October 1, 1993, memorandum on
management reform.
(vii) The Deputy Executive Director is the Commission's Chief
Financial Officer.
(2) The Office of the Executive Director ensures the periodic review
and updating of Commission orders. Under the direction and management of
the Executive Director, the Office of the Executive Director is
responsible for the management and coordination of the Offices of:
Information Resources Management; Management Services; Budget and
Financial Management; and Human Resources. The Office of the Executive
Director provides administrative support to the program operations of
the Commission. The Executive Director interprets governmental policies
and programs and administers
[[Page 10]]
these in a manner consistent with Federal guidelines, including those
involving information resources, procurement, financial management and
personnel. 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, with
respect to its program activities. The Executive Director is responsible
for directing and administering the Commission's training and
development function. The Deputy Executive Director is the Commission's
Competition Advocate under 41 U.S.C. 418(a) and Commission Order No.
112, as well as the Commission's representative to the Small Agency
Council. Other programs are carried out by its Offices, as follows:
(i) The Office of Information Resources Management, under the
direction and management of the Office Director, administers the
Commission's information resources management (``IRM'') program under
the Paperwork Reduction Act of 1995, as amended, as well as other
applicable laws which prescribe responsibility for operating the IRM
program. The Office provides administrative support with respect to
information resources management to the program operations of the
Commission. The Office interprets governmental policies and programs for
information management and administers these in a manner consistent with
federal guidelines. 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
with respect to its program activities. The Office's functions include:
conducting IRM management studies and surveys; managing data
telecommunications; developing and managing databases and applications;
coordinating records management activities; administering IRM contracts;
and developing Paperwork Reduction Act clearances for submission to the
Office of Management and Budget. The Office is also responsible for
managing the computer security and the records and forms programs. The
Director of the Office serves as Senior IRM Manager, Forms Control
Officer, Computer Security Officer, and Records Management Officer.
(ii) 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. The Director of
the Office is the Commission's principal Contracting Officer under
Commission Order No. 112. Programs include communications; audio and
voice telecommunications; procurement of and contracting for
administrative goods and services, including the utilization of small
and disadvantaged businesses; management of property, space, printing
and copying; mail and records services; forms and graphic designs;
facilities and equipment maintenance; and transportation.
(iii) The Office of Budget and Financial Management, 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, as well as the Commission's Imprest Funds; ensures
accountability for official passports; and assists in the development of
proper levels of user fees.
(iv) 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; and
personnel security.
(g) The Bureau of Trade Analysis, under the direction and management
of the Bureau Director, through its Office of Agreements; Office of
Economics and Competition Analysis; and Office
[[Page 11]]
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, responds to inquiries or
issues that arise concerning service contracts or tariffs, and is
responsible for competition oversight and market analysis.
(h) The Bureau of Consumer Complaints and Licensing, under the
direction and management of the Bureau Director:
(1) Through the Office of Consumer Complaints, has responsibility
for developing and implementing the Alternative Disputes Resolution
Program, responds to consumer inquiries and complaints, and coordinates
the Commission's efforts to resolve disputes within the shipping
industry. The Deputy Bureau Director is designated as the agency Dispute
Resolution Specialist pursuant to section 3 of the Administrative
Dispute Resolution Act of 1996, Pub. L. 104-320.
(2) Through the Office of Transportation Intermediaries, has
responsibility for reviewing applications for Ocean Transportation
Intermediary (``OTI'') licenses, and maintaining records about
licensees.
(3) Through the Office of Passenger Vessels and Information
Processing, has responsibility for reviewing applications for
certificates of financial responsibility with respect to passenger
vessels, managing all activities with respect to evidence of financial
responsibility for OTIs and passenger vessel owner/operators, and for
developing and maintaining all Bureau databases and records of OTI
applicants and licensees.
(i) Bureau of Enforcement; Area Representatives. 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 of this part and Sec. 502.604 of this
chapter, and represents the Commission in proceedings and circumstances
as designated;
(3) Acts as staff counsel to the Executive Director and other
bureaus and offices;
(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 Federal Maritime Commission of evolving competitive practices in
international commerce, assesses the practical repercussions of
Commission regulations, educates the industry regarding policy and
statutory requirements, and provides liaison, cooperation, and other
coordination between the Commission and the maritime industry, shippers,
and other government agencies; and
(6) Maintains a presence in locations other than Washington, D.C.
through Area Representatives whose activities include the following:
(i) Representing the Commission within their respective geographic
areas;
(ii) Providing liaison between the Commission and the shipping
industry and interested public; conveying pertinent information
regarding regulatory 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;
(iii) Furnishing to interested persons information, advice, and
access to Commission public documents;
(iv) Receiving and resolving informal complaints, in coordination
with the Director, Office of Consumer Complaints;
(v) Investigating potential violations of the shipping statutes and
the Commission's regulations;
(vi) Conducting shipping industry surveillance programs to ensure
compliance with the shipping statutes and Commission regulations. Such
programs include common carrier audits, service contract audits and
compliance checks of ocean transportation intermediaries;
(vii) Upon request of the Bureau of Consumer Complaints and
Licensing,
[[Page 12]]
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 ocean
transportation intermediary applicants;
(viii) Conducting special surveys and studies, and recommending
policies to strengthen enforcement of the shipping laws;
(ix) Maintaining liaison with Federal and State agencies with
respect to areas of mutual concern; and
(x) Providing assistance to the various bureaus and offices of the
Commission as appropriate and when requested.
(j) 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 is comprised of three voting
members, chosen from the ranks of those above the grade 15 level, with
the majority being career members of the Senior Executive Service. The
members serve staggered terms of three years, beginning October 1 of
each year; the member serving in the last year of his/her term serves as
Chairman. 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 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.
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. app. 1111(c)), 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.
[[Page 13]]
[GRAPHIC] [TIFF OMITTED] TR27DE00.022
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
Secs. 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.
(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.
[[Page 14]]
(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 as state-controlled carriers
within the meaning of section 3(8) of the Shipping Act of 1984, except
where a carrier submits a rebuttal statement pursuant to Sec. 565.3(b)
of this chapter.
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
(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.
(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 Executive
Director and Deputy Executive Director, to sign travel orders,
nondocketed recommendations to the Commission, and other routine
documents for the Executive Director, consistent with the programs,
policies, and precedents established by the Commission or the Executive
Director.
Sec. 501.25 Delegation to and redelegation by the Executive Director.
Except where specifically redelegated in this section, the
authorities listed in this section are delegated to the Executive
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.
[[Page 15]]
(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 this paragraph is redelegated to the
Director, Office of Budget and Financial Management.
(d)(1) Authority to classify all positions GS-1 through GS-15 and
wage grade positions.
(2) The authority under this paragraph is redelegated to the
Director, Office of Human Resources.
Sec. 501.26 Delegation to the Director, Bureau of Trade Analysis.
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, 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. 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 Secs. 535.401, 535.402, 535.403, 535.404 and 535.405 of
this chapter.
(c) Authority to grant or deny applications filed under Sec. 535.505
of this chapter for waiver of the information form requirements of
Secs. 535.503 and 535.504 of this chapter.
(d) Authority to grant or deny applications filed under Sec. 535.709
of this chapter for waiver of the reporting and record retention
requirements of Secs. 535.701, 535.702, 535.703, 535.704, 535.705,
535.706, 535.707 and 535.708 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 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:
[[Page 16]]
(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.
(j) Authority to request controlled carriers to file justifications
for existing or proposed rates, charges classifications, rules or
regulations, and 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.
(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, 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.
(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 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.
Sec. 501.27 Delegation to the Director, Bureau of Consumer Complaints and Licensing.
(a)(1) Authority to:
(i) Approve or disapprove applications for ocean transportation
intermediary 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;
(ii) Issue a letter stating that the Commission intends to deny an
ocean transportation intermediary 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;
(iii) Revoke the license of an ocean transportation intermediary
upon the request of the licensee;
(iv) 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 failure
to maintain proof of financial responsibility;
(v) 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;
(vi) Approve changes in an existing licensee's organization; and
(vii) Return any application which on its face fails to meet the
requirements
[[Page 17]]
of the Commission's regulations, accompanied by an explanation of the
reasons for rejection.
(2) The authorities contained in paragraphs (a)(1)(iii) and
(a)(1)(iv) of this section are redelegated to the Director, Office of
Transportation Intermediaries, in the Bureau of Consumer Complaints 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 Secs. 540.8(a)
and 540.26(a) of this chapter.
(c) Authority to approve amendments to escrow agreements filed under
Sec. 540.5(b) 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 results in an
amount of coverage that complies with the requirements in the
introductory text of Sec. 540.5.
Sec. 501.28 Delegation to the Director, Bureau of Enforcement.
The authorities listed in this section are delegated to the
Director, Bureau of Enforcement. Notwithstanding the provisions of
Sec. 501.21, the Director may delegate or redelegate, in writing,
specific authority to individuals within the Bureau of Enforcement other
than the Deputy Director.
(a) Authority to compromise civil penalty claims has been delegated
to the Director, Bureau of Enforcement, by Sec. 502.604(g) of this
chapter. This delegation shall include the authority to compromise
issues relating to the retention, suspension or revocation of ocean
transportation intermediary licenses.
(b) Authority to approve administrative leave for Area
Representatives.
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 (d) 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
[[Page 18]]
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 General Counsel
(2) Office of the Administrative Law Judges
(3) Office of the Executive Director
(4) Office of the Inspector General
(5) Office of Equal Employment Opportunity
(6) Bureau of Enforcement
(7) Bureau of Trade Analysis
(8) Bureau of Consumer Complaints and Licensing
(9) Office of Management Services
(10) Office of Human Resources
(11) Office of Budget and Financial Management
(12) Office of Information Resources Management
(13) Office of Consumer Complaints
(d) The 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 home page at ``http://www.fmc.gov.''
Los Angeles
Los Angeles Area Representative, U.S. Customs House Building, P.O. Box
3164, 300 S. Ferry Street, Room 1018, Terminal Island Station, San
Pedro, CA 90731
Miami
Miami Area Representative, Customs Management Center, 909 SE, 1st Ave.,
Room 705, Miami, FL 33131
New Orleans
New Orleans Area Representative, U.S. Customs House, 423 Canal Street,
Room 309B, New Orleans, LA 70130
New York
New York Area Representative, P.O. Box 3461, Church Street Station, New
York, NY 10008
Seattle
Seattle Area Representative, c/o U.S. Customs Service, 7 South Nevada
Street, Suite 100, Seattle, WA 98134
(e) 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.
[[Page 19]]
APPENDIX A--FEDERAL MARITIME COMMISSION ORGANIZATION CHART
[GRAPHIC] [TIFF OMITTED] TR27DE00.023
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; hours; mailing address.
502.3 Compliance with rules or orders of Commission.
502.4 Authentication of rules or orders of Commission.
502.5-502.6 [Reserved]
502.7 Documents in foreign languages.
502.8 Denial of applications and notice thereof.
502.9 Suspension, amendment, etc., of rules in this part.
[[Page 20]]
502.10 Waiver of rules in this part.
502.11 Ex parte communications.
502.12 Applicability of Federal Rules of Civil Procedure.
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 defined.
502.26 Attorneys at law.
502.27 Persons not attorneys at law.
502.29 Hearings.
502.30 Suspension or disbarment.
502.31 Statement of interest.
502.32 Former employees.
Exhibit No. 1 to Subpart B [Secs. 502.23, 502.26, 502.27]--Notice of
Appearance
Subpart C--Parties
502.41 Parties; how designated.
502.42 Bureau of Enforcement.
502.43 Substitution of parties.
502.44 Necessary and proper parties in certain complaint proceedings.
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.
Subpart E--Proceedings; Pleadings; Motions; Replies
502.61 Proceedings.
502.62 Complaints and fee.
502.63 Statute of limitations for reparations.
502.64 Answer to complaint; counter-complaint.
502.65 Replies to answers not permitted.
502.66 Order to show cause.
502.67 Exemption procedures--General.
502.68 Declaratory orders and fee.
502.69 Petitions--General and fee.
502.70 Amendments or supplements to pleadings.
502.71 Motions for more definite statement.
502.72 Petition for leave to intervene.
502.73 Motions.
502.74 Replies to pleadings, motions, applications, etc.
502.75 Proceedings involving assessment agreements.
502.76 Brief of an amicus curiae.
Exhibit No. 1 to Subpart E [Sec. 502.62]--Complaint Form and Information
Checklist
Exhibit No. 2 to Subpart E [Sec. 502.64]--Answer to Complaint
Exhibit No. 3 to Subpart E [Sec. 502.72]--Petition for Leave to
Intervene
Subpart F--Settlement; Prehearing Procedure
502.91 Opportunity for informal settlement.
502.92 [Reserved]
502.94 Prehearing conference.
502.95 Prehearing statements.
Exhibit No. 1 to Subpart F [Sec. 502.92] [Reserved]
Subpart G--Time
502.101 Computation.
502.102 Enlargement of time to file documents.
502.103 Reduction of time to file documents.
502.104 Postponement of hearing.
502.105 Waiver of rules governing enlargements of time and
postponements of hearings.
Subpart H--Form, Execution, and Service of Documents
502.111 Form and appearance of documents filed with Commission.
502.112 Verification of documents.
502.113 Service by the Commission.
502.114 Service by parties of pleadings and other documents.
502.115 Service on attorney or other representative.
502.116 Date of service.
502.117 Certificate of service.
502.118 Copies of documents for use of the Commission.
502.119 Documents containing confidential materials.
Subpart I--Subpenas
502.131 Requests; issuance.
502.132 Motions to quash or modify.
502.133 Attendance and mileage fees.
502.134 Service of subpenas.
502.135 Subpena of Commission staff personnel, documents or things.
502.136 Enforcement.
Subpart J--Hearings; Presiding Officers; Evidence
502.141 Hearings not required by statute.
502.142 Hearings required by statute.
502.143 Notice of nature of hearing, jurisdiction and issues.
502.144 Notice of time and place of hearing; postponement of hearing.
502.145 Presiding officer.
502.146 Commencement of functions of Office of Administrative Law
Judges.
[[Page 21]]
502.147 Functions and powers.
502.148 Consolidation of proceedings.
502.149 Disqualification of presiding or participating officer.
502.150 Further evidence required by presiding officer during hearing.
502.151 Exceptions to rulings of presiding officer unnecessary.
502.152 Offer of proof.
502.153 Appeal from ruling of presiding officer other than orders of
dismissal in whole or in part.
502.154 Rights of parties as to presentation of evidence.
502.155 Burden of proof.
502.156 Evidence admissible.
502.157 Written evidence.
502.158 Documents containing matter not material.
502.159 [Reserved]
502.160 Records in other proceedings.
502.161 Commission's files.
502.162 Stipulations.
502.163 Receipt of documents after hearing.
502.164 Oral argument at hearings.
502.165 Official transcript.
502.166 Corrections of transcript.
502.167 Objection to public disclosure of information.
502.168 Copies of data or evidence.
502.169 Record of decision.
Subpart K--Shortened Procedure
502.181 Selection of cases for shortened procedure; consent required.
502.182 Complaint and memorandum of facts and arguments and filing fee.
502.183 Respondent's answering memorandum.
502.184 Complainant's memorandum in reply.
502.185 Service of memoranda upon and by interveners.
502.186 Contents of memoranda.
502.187 Procedure after filing of memoranda.
Subpart L--Depositions, Written Interrogatories, and Discovery
502.201 General provisions governing discovery.
502.202 Persons before whom depositions may be taken.
502.203 Depositions upon oral examination.
502.204 Depositions upon written interrogatories.
502.205 Interrogatories to parties.
502.206 Production of documents and things and entry upon land for
inspection and other purposes.
502.207 Requests for admission.
502.208 Use of discovery procedures directed to Commission staff
personnel.
502.209 Use of depositions at hearings.
502.210 Refusal to comply with orders to answer or produce documents;
sanctions; enforcement.
Subpart M--Briefs; Requests for Findings; Decisions; Exceptions
502.221 Briefs; requests for findings.
502.222 Requests for enlargement of time for filing briefs.
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 for filing exceptions and
replies thereto.
502.229 Certification of record by presiding or other officer.
502.230 Reopening by presiding officer or 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
502.251 Proof on award of reparation.
502.252 Reparation statements.
502.253 Interest in reparation proceedings.
502.254 Attorney's fees in reparation proceedings.
Exhibit No. 1 to Subpart O [Sec. 502.252]--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)--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.
[[Page 22]]
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.
Exhibit No. 1 to Subpart S [Sec. 502.304(a)]--Small Claim Form for
Informal Adjudication and Information Checklist
Exhibit No. 2 to Subpart S [Sec. 502.304(e)]--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--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; 12 U.S.C. 1141j(a); 18 U.S.C. 207; 26 U.S.C.
501(c)(3); 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. app. 817d, 817e,
1114(b), 1705, 1707-1711, 1713-1716; E.O. 11222 of May 8, 1965, 30 FR
6469, 3 CFR, 1964-1965 Comp. P. 306; 21 U.S.C. 853a; Pub. L. 105-258,
112 Stat. 1902.
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
[[Page 23]]
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; hours; mailing address.
(a) For purposes of filing of documents with the Commission, the
hours of the Commission are from 8:30 a.m. to 5:00 p.m., Monday to
Friday, inclusive.
(b) 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 should
be addressed to Secretary, Federal Maritime Commission, Washington, DC
20573-0001. Petitions for review of final agency orders served on the
Commission pursuant to 28 U.S.C. 2112(a) shall be addressed to General
Counsel, Office of the General Counsel, Federal Maritime Commission,
Washington, DC 20573-0001.
(c) 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,
shall similarly 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 by the Office of the
Secretary, to ensure that persons in decision-making and advisory
positions receive in a uniform and impersonal manner identical copies of
submissions, 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.
(d) 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.)
(e) Any pleading, document, writing or other paper submitted for
filing which is rejected because it does not conform to the rules in
this part shall be returned to the sender. [Rule 2.]
[52 FR 27002, July 17, 1987, as amended at 53 FR 13270, Apr. 22, 1988;
64 FR 7807, Feb. 17, 1999]
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. If a change in rates is required, the
notification shall specify the tariffs which effect the changes. [Rule
3.]
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 and authenticated by seal by the Secretary of the Commission in
the name of the Commission. [Rule 4.]
Secs. 502.5--502.6 [Reserved]
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
[[Page 24]]
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 Secs. 502.11 and 502.153,
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.]
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 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
[[Page 25]]
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]
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) Persons not 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. If a person desires to appear specially,
he or she must expressly so state when entering the appearance and, at
that time, shall also state the questions or issues to which he or she
is confining the appearance; otherwise his or her appearance will be
considered as general. [Rule 21.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7807, Feb. 17, 1999]
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) and address(es) of the person or persons who
will represent them in the pending proceeding. Each person who appears
at a hearing shall deliver a written notice of appearance to the
reporter, stating for whom the appearance is made. Such notice shall
indicate whether the representative wishes to be notified of decisions
by telephone, facsimile transmission, or electronic mail. All
appearances shall be noted in the record. Petitions for leave to
intervene shall indicate the name(s) and address(es) of the person or
persons who will represent the intervenor in the pending proceeding if
the petition is granted.
(b) A Notice of Appearance should follow the form set forth in
Exhibit No. 1 to this subpart.
(c) 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.
(d) If an attorney wishes to withdraw from representing a party,
such 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.
[64 FR 7807, Feb. 17, 1999]
[[Page 26]]
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 defined.
``Presiding officer'' means and shall include (a) any one or more of
the members of the Commission (not including the Commission when sitting
as such), (b) one or more administrative law judges or (c) one or more
officers authorized by the Commission to conduct nonadjudicatory
proceedings when duly designated to preside at such proceedings. (See
subpart J of this part.) [Rule 25.]
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 must represent in
writing, filed with the Secretary, that he is admitted to practice and
in good standing. 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]
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 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(g) of this chapter.
(2) 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) No person who is not an attorney at law and whose application
has not been approved shall be permitted to practice before the
Commission.
(c) Paragraph (b) of this section and the provisions of Secs. 502.29
and 502.30 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]
Sec. 502.29 Hearings.
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
[[Page 27]]
receiving the notification above referred to, his or her application
shall be acted upon without further notice. [Rule 29.]
Sec. 502.30 Suspension or disbarment.
The Commission may deny admission to, suspend, or disbar 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. Any person who has been
admitted to practice before the Commission may be disbarred from such
practice only after being afforded an opportunity to be heard. [Rule
30.]
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
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
[[Page 28]]
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) Basic procedures for possible violations. The following basic
guidelines for administrative enforcement restrictions on post
employment activities are designed to expedite consultation with the
Director of the Office of Government Ethics as required pursuant to
section 207(j) of Title 18, United States Code.
(1) Delegation. The Chairman may delegate his or her authority under
this subpart.
(2) Initiation of administrative disciplinary hearing. (i) On
receipt of information regarding a possible violation of 18 U.S.C. 207,
and after determining that such information appears substantiated, the
Chairman shall expeditiously provide such information, along with any
comments or agency regulations, to the Director of the Office of
Government Ethics and to the Criminal Division, Department of Justice.
The Commission shall coordinate any investigation or administrative
action with the Department of Justice to avoid prejudicing criminal
proceedings, unless the Department of Justice communicates to the
Commission that it does not intend to initiate criminal prosecution.
(ii) Whenever the Commission has determined after appropriate review
that there is reasonable cause to believe that a former Commission
employee has violated any provision of paragraph (a) of this section or
18 U.S.C. 207 (a), (b), or (c), it may initiate an administrative
disciplinary proceeding by providing the former Commission employee with
notice as defined in paragraph (c)(3) of this section.
(3) Adequate notice. (i) The Commission shall provide a former
Commission employee with adequate notice of an intention to institute a
proceeding and an opportunity for a hearing.
(ii) Notice to the former Commission employee must include:
(A) A statement of allegations (and the basis thereof) sufficiently
detailed to enable the former Commission employee to prepare an adequate
defense;
(B) Notification of the right to a hearing; and
(C) An explanation of the method by which a hearing may be
requested.
(4) Presiding official. (i) The presiding official at a proceeding
under this section shall be an individual to whom the Chairman has
delegated authority to make an initial decision (hereinafter referred to
as ``examiner'').
(ii) The examiner must be a Commissioner (other than the Chairman),
an administrative law judge, or an attorney employed by the Commission
and shall be provided with appropriate administrative and secretarial
support by the Commission.
(iii) The presiding official shall be impartial. No individual who
has participated in any manner in the decision to initiate a proceeding
may serve as an examiner in that proceeding.
(5) Time, date and place. (i) The hearing shall be conducted at a
reasonable time, date and place.
(ii) In setting a hearing date, the presiding official shall give
due regard to the former Commission employee's need for:
(A) Adequate time to prepare a defense properly, and
(B) An expeditious resolution of allegations that may be damaging to
his or her reputation.
(6) Hearing rights. A hearing shall include, at a minimum, the
following rights:
(i) To represent oneself or to be represented by counsel;
(ii) To introduce and examine witnesses and to submit physical
evidence;
(iii) To confront and cross-examine adverse witnesses;
(iv) To receive a transcript or recording of the proceedings, on
request.
(7) Burden of proof. In any hearing under this subpart, the
Commission has the burden of proof and must establish substantial
evidence of a violation.
(8) Initial decision. (i) The examiner shall make a determination on
matters exclusively of record in a proceeding, and shall set forth in
the decision all findings of fact and conclusions of law relevant to the
matters at issue.
[[Page 29]]
(ii) Within a reasonable period of the date of an initial decision,
as set by the Commission, either party may appeal the decision solely on
the record to the Chairman. The Chairman shall base his or her decision
solely on the record of the proceedings or those portions thereof cited
by the parties to limit the issues.
(iii) If the Chairman modifies or reverses the initial decision, he
or she shall specify such findings of facts and conclusions of law as
are different from those of the examiner.
(9) Administrative sanctions. The Chairman may take appropriate
action in the case of any individual who was found in violation of 18
U.S.C. 207 (a), (b), or (c) or the provisions of paragraph (a) of this
section after a final administrative decision or who failed to request a
hearing after receiving adequate notice by:
(i) Prohibiting the individual from making, on behalf of any other
person except the United States, any formal or informal appearance
before, or, with the intent to influence, any oral or written
communication to, the Commission on any matter of business for a period
not to exceed five (5) years, which may be accomplished by directing
Commission employees to refuse to participate in any such appearance or
to accept any such communication; or
(ii) Taking other appropriate disciplinary action.
(10) Judicial review. Any person found to have participated in a
violation of 18 U.S.C. 207 (a), (b), or (c) or the provisions of
paragraph (a) of this section may seek judicial review of the
administrative determination.
(11) Consultation and review. The procedures for administrative
enforcement set forth in paragraphs (a), (b), and (c) of this section
have been reviewed by the Director of the Office of Government Ethics.
(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 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]
Exhibit No. 1 to Subpart B [Secs. 502.23, 502.26, 502.27]-Notice of
Appearance
Federal Maritime Commission
Docket No. __________:
Please enter my appearance in this proceeding as counsel for
__________.
I request to be informed of service of the administrative law
judge's initial or recommended decision and of the Commission's decision
in this proceeding by:
[ ] telephone (In the event that I am not available when you call,
appropriate advice left with my office will suffice.)
[ ] facsimile transmission
[ ] electronic mail
_______________________________________________________________________
[Name]
_______________________________________________________________________
[Address]
_______________________________________________________________________
[Telephone No.]
_______________________________________________________________________
[Fax No.]
_______________________________________________________________________
[E-mail address]
[[Page 30]]
_______________________________________________________________________
[Signature]
[64 FR 7807, Feb. 17, 1999]
Subpart C--Parties
Sec. 502.41 Parties; how designated.
The term ``party'', whenever used in the rules in this part, shall
include any natural person, corporation, association, firm, partnership,
trustee, receiver, agency, public or private organization, or
governmental agency. A party who seeks relief or other affirmative
action under Sec. 502.62 shall be designated as ``complainant''. A party
against whom relief or other affirmative action is sought in any
proceeding commenced under Sec. 502.62 or Sec. 502.66, 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, 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. 502.72 shall be
designated as ``intervenor''. All persons or parties designated in this
section shall become parties to the proceeding involved without further
pleadings, and no person other than a party or its representative may
introduce evidence or examine witnesses at hearings. [Rule 41.]
[49 FR 44369, Nov. 6, 1984, as amended at 61 FR 66617, Dec. 18, 1996]
Sec. 502.42 Bureau of Enforcement.
The Director, Bureau of Enforcement, shall be a party to all
proceedings governed by the rules in this part except that in complaint
proceedings under Sec. 502.62, the Director may become a party only upon
leave to intervene granted pursuant to Sec. 502.72, in rulemaking
proceedings and in proceedings considering petitions the Director may
become a party by designation if the Commission determines that the
circumstances of the proceeding warrant such participation, and the
Director will not ordinarily be a party to small claims proceedings
under Sec. 502.304 and special docket proceedings under Sec. 502.271.
The Director or the Director's representative shall be served with
copies of all papers, pleadings, and documents in every proceeding in
which the Bureau of Enforcement is a party. The Bureau of Enforcement
shall actively participate in any proceeding to which the Director 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. (See Sec. 502.224). [Rule 42.]
[64 FR 7807, Feb. 17, 1999]
Sec. 502.43 Substitution of parties.
In appropriate circumstances, the Commission or presiding officer
may order an appropriate substitution of parties. [Rule 43.]
Sec. 502.44 Necessary and proper parties in certain complaint proceedings.
(a) If a complaint relates to through transportation by continuous
carriage or transshipment, all carriers participating in such through
transportation shall be joined as respondents.
(b) If the complaint relates to more than one carrier or other
person subject to the shipping acts, all carriers or other persons
against whom a rule or order is sought shall be made respondents.
(c) If complaint is made with respect to an agreement filed under
section 5(a) of the Shipping Act of 1984, the parties to the agreement
shall be made respondents. (Rule 44).
[49 FR 44369, Nov. 6, 1984, as amended at 65 FR 81759, Dec. 27, 2000]
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, 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
[[Page 31]]
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.
Petitions shall be accompanied by remittance of a $177 filing fee.
Replies to such petition shall conform to the requirements of
Sec. 502.74.
(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]
Sec. 502.52 Notice of proposed rulemaking.
(a) General notice of proposed rulemaking, including the information
specified in Sec. 502.143, 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 of hearing is required by statute, this
section shall not apply to interpretative rules, general statements of
policy, organization rules, procedure, or practice of the Commission, or
any situation in which the Commission for good cause finds (and
incorporates such findings in such rule) that notice and public
procedure are impracticable, unnecessary, or contrary to the public
interest. [Rule 52.]
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 to present the same orally in any
manner. 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 J 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 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.]
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28399, July 11, 1990]
Sec. 502.54 Contents of rules.
The Commission will incorporate in any rules adopted a concise
general statement of their basis and purpose. [Rule 54.]
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 and published
in the Federal Register or (b) in the case of rules granting or
recognizing exemption or relieving restriction; interpretative rules; or
statements of policy. [Rule 55.]
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]
Subpart E--Proceedings; Pleadings; Motions; Replies
Sec. 502.61 Proceedings.
(a) Proceedings are commenced by the filing of a complaint, or by
order of the Commission upon petition or upon its own motion, or by
reference by the Commission to the formal docket of a petition for a
declaratory order.
(b) In proceedings referred to the Office of Administrative Law
Judges, the Commission shall specify a date on or
[[Page 32]]
before which hearing shall commence, which date shall be no more than
six months from the date of publication in the Federal Register of the
Commission's order instituting the proceedings or notice of complaint
filed. Hearing dates may be deferred by the presiding judge only to
prevent substantial delay, expense, detriment to the public interest or
undue prejudice to a party.
(c) In the order instituting a proceeding or in the notice of filing
of complaint and assignment, the Commission shall 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.
(d) All orders instituting a proceeding or noticing the filing of a
complaint will contain language requiring that at an early stage of the
proceeding and when practicable the parties shall consider the use of
alternative dispute resolution in such manner as the presiding officer
shall direct and further requiring that hearings shall include oral
testimony and cross-examination in the discretion of the presiding
officer only upon proper showing that there are genuine issues of
material fact that cannot be resolved on the basis of sworn statements,
affidavits, depositions, or other documents, or that the nature of the
matter in issue is such that an oral hearing and cross-examination are
necessary for the development of an adequate record. [Rule 61.]
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64
FR 7808, Feb. 17, 1999; 64 FR 23551, May 3, 1999; 66 FR 43512, Aug. 20,
2001]
Sec. 502.62 Complaints and fee.
(a) The complaint must be verified and shall contain the name and
address of each complainant, the name and address of each complainant's
attorney or agent, the name and address of each person against whom
complaint is made, a concise statement of the cause of action, and a
request for the relief or other affirmative action sought.
(b) Where reparation is sought and the nature of the proceeding so
requires, the complaint shall set forth: the ports of origin and
destination of the shipments; consignees, or real parties in interest,
where shipments are on ``order'' bill of lading; consignors; date of
receipt by carrier or tender of delivery to carrier; names of vessels;
bill of lading number (and other identifying reference); description of
commodities; weights; measurement; rates; charges made or collected;
when, where, by whom and to whom rates and charges were paid; by whom
the rates and charges were borne; the amount of damage; and the relief
sought. Except under unusual circumstances and for good cause shown,
reparation will not be awarded upon a complaint in which it is not
specifically asked for, nor upon a new complaint by or for the same
complainant which is based upon a finding in the original proceeding.
Wherever a rate, fare, charge, rule, regulation, classification, or
practice is involved, appropriate reference to the tariff should be
made, if possible.
(c) If the complaint fails to indicate the sections of the acts
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.
(d) The complaint should designate the place at which hearing is
desired.
(e) Complainant(s) must state whether informal dispute resolution
procedures were used prior to filing the complaint and whether
complainant(s) consulted with the Commission Dispute Resolution
Specialist about utilizing alternative dispute resolution (ADR) under
the Commission's ADR program.
(f) A form of complaint is set forth in Exhibit No. 1 to this
subpart.
(g) The complaint shall be accompanied by remittance of a $184
filing fee.
(h) Complainants desiring to use the discovery provisions of subpart
L must commence discovery at the time the complaint is filed, pursuant
to Sec. 502.201(b).
(i) For special types of cases, see Sec. 502.271 in subpart Q
(Refund or waiver
[[Page 33]]
of freight charges); subpart K (Shortened Procedure); and subpart S
(Small Claims). [Rule 62.]
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28399, July 11, 1990; 63
FR 50535, Sept. 22, 1998; 64 FR 7808, Feb. 17, 1999; 66 FR 43513, Aug.
20, 2001]
Sec. 502.63 Statute of limitations for reparations.
(a) Complaints seeking reparation pursuant to section 11 of the
Shipping Act of 1984 shall be filed within three years after the cause
of action accrues.
(b) The Commission will consider as in substantial compliance with a
statute of limitations a complaint in which complainant alleges that the
matters complained of, if continued in the future, will constitute
violations of the shipping acts in the particulars and to the extent
indicated and in which complainant prays for reparation accordingly for
injuries which may be sustained as a result of such violations. (See
Secs. 502.251-502.253 and Exhibit No. 1 to subpart O.)
(c) 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.
(d) A complaint is deemed filed on the date it is received by the
Commission. [Rule 63.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7808, Feb. 17, 1999]
Sec. 502.64 Answer to complaint; counter-complaint.
(a) Respondent shall file with the Commission an answer to the
complaint and shall serve it on complainant as provided in subpart H of
this part within twenty (20) days after the date of service of the
complaint by the Commission or within thirty (30) days if such
respondent resides in Alaska or beyond the Continental United States,
unless such periods have been extended under Sec. 502.71 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 shall
be made within ten (10) days after service of an order denying such
motion. Such answer shall give notice of issues controverted in fact or
law. Recitals of material and relevant facts in a complaint, amended
complaint, or bill of particulars, unless specifically denied in the
answer thereto, shall be deemed admitted as true, but if request is
seasonably made, a competent witness shall be made available for cross-
examination on such evidence. An answer to the complaint must be
verified.
(b) In the event that respondent should fail to file and serve the
answer within the time provided, the presiding officer may enter such
rule or order as may be just, or may in any case require such proof as
he or she may deem proper, except that the presiding officer may permit
the filing of a delayed answer after the time for filing the answer has
expired, for good cause shown.
(c) A form of answer to complaint is set forth in Exhibit No. 2 to
this subpart. [Rule 64.]
(d) In addition to filing an answer to a complaint, respondent may
file a counter-complaint alleging violations of the Shipping Acts within
the jurisdiction of the Commission. The filing of counter-complaints and
answers to counter-complaints is governed by the rules and requirements
of Sec. 502.62 (excluding fees) and of this section for the filing of
complaints and answers. Counter-complaints may be served directly by the
parties if authorized by the presiding officer. [Rule 64.]
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27210, May 7, 1993; 64
FR 7808, Feb. 17, 1999]
Sec. 502.65 Replies to answers not permitted.
Replies to answers will not be permitted. New matters set forth in
respondent's answer will be deemed to be controverted. [Rule 65.]
Sec. 502.66 Order to show cause.
The Commission may institute a proceeding by order to show cause.
The order shall be served upon all persons named therein, shall include
the information specified in Sec. 502.143, may require the person named
therein to answer, and shall require such person to appear at a
specified time and place and present evidence upon the matters
specified. [Rule 66.]
[[Page 34]]
Sec. 502.67 Exemption procedures--General.
(a) Authority. The Commission, upon application or on its own
motion, may by order or rule exempt for the future any class of
agreements between persons subject to the Shipping Act of 1984 or any
specified activity of persons subject to the Shipping Act of 1984 from
any requirement of the Shipping Act of 1984 if it 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. A petition for
exemption shall state the particular requirement of the Shipping Act of
1984 for which exemption is sought. The petition shall also include a
statement of the reasons why an exemption should be granted or revoked,
shall provide information relevant to any finding required by the
Shipping Act of 1984 and shall comply with Sec. 502.69. Where a petition
for exemption of an individual agreement is made, the application shall
include a copy of the agreement.
(c) Participation by interested persons. No order or rule 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 upon the Commission's
own motion, shall be published in the Federal Register. The notice shall
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
67.]
[64 FR 7808, Feb. 17, 1999]
Sec. 502.68 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 shall: 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 shall be accompanied by remittance of a $177 filing
fee.
(b) Petitions under this section shall be limited to matters
involving conduct or activity regulated by the Commission under statutes
administered by the Commission. The procedures of this section shall 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 and Sec. 502.62, or by filing of a petition for
investigation under Sec. 502.69.
(c) Petitions under this section shall 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) Replies to the petition shall contain the complete factual and
legal
[[Page 35]]
presentation of the replying party as to the desired resolution, or a
detailed explanation why such can only be developed through discovery or
evidentiary hearing. Replies shall conform to the requirements of
Sec. 502.74 and shall 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 replies. Requests shall 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 shall be published in the Federal Register.
The notice will indicate the time for filing of replies to the petition.
If the controversy or uncertainty is one of general public interest, and
not limited to specifically named persons, opportunity for reply 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. 502.72.
(3) Petitions for leave to intervene shall be submitted on or before
the reply date and shall be accompanied by intervenor's complete reply
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 68.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 59
FR 59170, Nov. 16, 1994; 61 FR 51233, Oct. 1, 1996; 63 FR 50535, Sept.
22, 1998; 65 FR 81759, Dec. 27, 2000]
Sec. 502.69 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, shall be by written petition, which shall state
clearly and concisely the petitioner's grounds of interest in the
subject matter, the facts relied upon and the relief sought, shall cite
by appropriate reference the statutory provisions or other authority
relied upon for relief, shall be served upon all parties named therein,
and shall conform otherwise to the requirements of subpart H of this
part. Replies thereto shall conform to the requirements of Sec. 502.74.
(b) Petitions shall be accompanied by remittance of a $177 filing
fee. [Rule 69.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4143, Feb. 10, 1987; 59
FR 59170, Nov. 16, 1994; 63 FR 50535, Sept. 22, 1998]
Sec. 502.70 Amendments or supplements to pleadings.
(a) Amendments or supplements to any pleadings will be permitted or
rejected, either in the discretion of the Commission if the case has not
been assigned to a presiding officer for hearing, or otherwise, in the
discretion of the officer designated to conduct the hearing, except that
after a case is assigned for hearing, no amendment shall be allowed
which 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 of this part and
Sec. 502.74, 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.
[[Page 36]]
(c) Whenever by the rules in this part a pleading is required to be
verified, the amendment or supplement shall also be verified. [Rule 70.]
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 27210, May 7, 1993]
Sec. 502.71 Motions for more definite statement.
If a pleading (including a complaint or counter-complaint filed
pursuant to Sec. 502.62 or Sec. 502.64) to which a responsive pleading
is permitted is so vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading, the party may move for a more
definite statement before interposing a responsive pleading. The motion
shall be filed within 15 days of the pleading and shall 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
may fix, the presiding officer may strike the pleading to which the
motion was directed or make such order as is deemed just. If the motion
is disallowed, the time for responding to the pleading shall be extended
to a date 10 days after service of the notice of disallowance. [Rule
71.]
[58 FR 27210, May 7, 1993, as amended at 64 FR 7808, Feb. 17, 1999]
Sec. 502.72 Petition for leave to intervene.
(a) A petition for leave to intervene may be filed in any proceeding
and shall be served on existing parties by the petitioner pursuant to
subpart H of this part. An additional fifteen (15) copies of the
petition shall be filed with the Secretary for the use of the
Commission. Upon request, the Commission will furnish a service list to
any member of the public pursuant to part 503 of this chapter. The
petition shall set forth the grounds for the proposed intervention and
the interest and position of the petitioner in the proceeding and shall
comply with the other applicable provisions of subpart H of this part,
and if affirmative relief is sought, the basis for such relief. Such
petition shall also indicate the nature and extent of the participation
sought, e.g., the use of discovery, presentation of evidence and
examination of witnesses.
(b)(1) Petitions for leave to intervene as a matter of right will
only be granted upon a clear and convincing showing that:
(i) The petitioner has a substantial interest relating to the matter
which is the subject of the proceeding warranting intervention; and
(ii) The proceeding may, as a practical matter, materially affect
the petitioner's interest; and
(iii) The interest is not adequately represented by existing parties
to the proceeding.
(2) Petitions for intervention as a matter of Commission discretion
may be granted only upon a showing that:
(i) A common issue of law or fact exists between the petitioner's
interests and the subject matter of the proceeding; and
(ii) Petitioner's intervention will not unduly delay or broaden the
scope of the proceeding, prejudice the adjudication of the rights of or
be duplicative of positions of any existing party; and
(iii) The petitioner's participation may reasonably be expected to
assist in the development of a sound record.
(3) The timeliness of the petition will also be considered in
determining whether a petition will be granted under paragraphs (b)(1)
or (b)(2) of this section. If filed after hearings have been closed, a
petition will not ordinarily be granted.
(c) In the interests of: (1) Restricting irrelevant, duplicative, or
repetitive discovery, evidence or arguments; (2) having common interests
represented by a spokesperson; and (3) retaining authority to determine
priorities and control the course of the proceeding, the presiding
officer, in his or her discretion, may impose reasonable limitations on
an intervenor's participation, e.g., the filing of briefs, presentation
of evidence on selected factual issues, or oral argument on some or all
of the issues.
(d) Absent good cause shown, any intervenor desiring to utilize the
procedures provided by subpart L must commence doing so no later than
fifteen (15) days after its petition for leave to intervene has been
granted. If the petition is filed later than thirty (30) days
[[Page 37]]
after the date of publication in the Federal Register of the
Commission's Order instituting the proceeding or notice of complaint
filed, petitioner will be deemed to have waived its right to utilize
such procedures, unless good cause is shown for the failure to file the
petition within the 30-day period. The use of subpart L procedures by an
intervenor whose petition was filed beyond such 30-day period will in no
event be allowed, if, in the opinion of the presiding officer, such use
will result in delaying the proceeding unduly.
(e) If intervention is granted before or at a prehearing conference
convened for the purpose of considering matters relating to discovery,
the intervenor's discovery matters may also be considered at that time,
and may be limited under the provisions of paragraph (c) of this
section.
(f) A form of petition for leave to intervene is set forth in
Exhibit No. 3 to this subpart. [Rule 72.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 4143, Feb. 10, 1987]
Sec. 502.73 Motions.
(a) In any docketed proceeding, an application or request for an
order or ruling not otherwise specifically provided for in this part
shall 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 shall 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 shall be referred to the
Commission. If the proceeding is not before the presiding officer,
motions shall be designated as ``petitions'' and shall be addressed to
and passed upon by the Commission.
(b) Motions shall be in writing, except that a motion made at a
hearing shall be sufficient if stated orally upon the record, unless the
presiding officer directs that it be reduced to writing.
(c) All written motions shall 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 requiring the relief requested; and shall conform with the
requirements of subpart H of this part.
(d) Oral argument upon a written motion may be permitted at the
discretion of the presiding officer or the Commission, as the case may
be.
(e) A repetitious motion will not be entertained. [Rule 73.]
Sec. 502.74 Replies to pleadings, motions, applications, etc.
(a)(1) Except as provided under subpart V of this part, a reply to a
reply is not permitted.
(2) Except as otherwise provided respecting answers (Sec. 502.64),
shortened procedure (subpart K of this part), briefs (Sec. 502.221),
exceptions (Sec. 502.227), replies to petitions for attorney fees under
the Equal Access to Justice Act (Sec. 502.503(b)(1)), and the documents
specified in paragraph (b) of this section, any party may file and serve
a reply to any written motion, pleading, petition, application, etc.,
permitted under this part within fifteen (15) days after the date of
service thereof, unless a shorter period is fixed under Sec. 502.103.
(b) When time permits, replies also may be filed to applications for
enlargement of time and postponement of hearing (subpart G of this
part), and motions to take depositions (Sec. 502.201).
(c) Replies shall be in writing, shall be verified if verification
of original pleading is required, shall be so drawn as to fully and
completely advise the parties and the Commission as to the nature of the
defense, shall admit or deny specifically and in detail each material
allegation of the pleading answered, shall state clearly and concisely
the facts and matters of law relied upon, and shall conform to the
requirements of subpart H of this part. [Rule 74.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 28264, July 29, 1987; 61
FR 66617, Dec. 18, 1996]
Sec. 502.75 Proceedings involving assessment agreements.
(a) In complaint proceedings involving assessment agreements filed
under section 5(e) of the Shipping Act of 1984, 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
[[Page 38]]
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 shall 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 shall be filed with
the Secretary of the Commission for service pursuant to Sec. 502.113.
Answers or objections to discovery requests shall 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, shall be filed and served no later than
fifteen (15) days after date of service of the initial decision. Replies
thereto shall be filed and served no later than fifteen (15) days after
date of service of exceptions. In the absence of exceptions, the
decision of the presiding officer shall be final within thirty (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 75.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7808, Feb. 17, 1999]
Sec. 502.76 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 shall 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 shall be limited to questions of law or policy.
(b) A motion for leave to file an amicus brief shall identify the
interest of the applicant and shall state the reasons why such a brief
is desirable.
(c) Except as otherwise permitted by the Commission or the presiding
officer, an amicus curiae shall file its brief within the time allowed
the party whose position as to affirmance or reversal the amicus brief
will support. The Commisson or the presiding officer shall grant leave
for a later filing only for cause shown, in which event the period
within which an opposing party may answer shall 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 76.]
[52 FR 4143, Feb. 10, 1987]
Exhibit No. 1 to Subpart E [Sec. 502.62]--Complaint Form and Information
Checklist
Before the Federal Maritime Commission
Complaint
____________ v. ____________ [Insert without abbreviation exact and
complete name of party or parties respondent]
I. The complainant is [State in this paragraph whether complainant
is an association, a corporation, firm, or partnership and the names of
the individuals composing the same. State also the nature and principal
place of business].
II. The respondent is [State in this paragraph whether respondent is
an association, a corporation, firm, or partnership and the names of the
individuals composing the same. State also the nature and principal
place of business].
III. Allegation of jurisdiction. [State in this paragraph a synopsis
of the statutory bases for claim(s)].
IV. That [State in this or subsequent paragraphs to be lettered
``A'', ``B'', etc., the matter or matters complained of. If rates are
involved, name each rate, fare, charge, classification, regulation, or
practice, the lawfulness of which is challenged].
V. That by reason of the facts stated in the foregoing paragraphs,
complainant has been (and is being) subject to injury as a direct result
of the violations by respondent of sections ______ [State in this
paragraph the causal connection between the alleged illegal acts of
respondent and the claimed injury to complainant, with all necessary
statutory sections relied upon].
VI. That complainant has been injured in the following manner: To
its damage in the sum of $______.
VII. Wherefore complainant prays that respondent be required to
answer the charges herein; that after due hearing, an order be made
commanding said respondent (and each of them): to cease and desist from
the aforesaid violations of said act(s); to establish and put in force
such practices as the Commission determines to be lawful and reasonable;
to pay to said complainant by way of reparations for the unlawful
conduct hereinabove described the sum of $______, with interest
[[Page 39]]
and attorney's fees or such other sum as the Commission may determine to
be proper as an award of reparation; and that such other and further
order or orders be made as the Commission determines to be proper in the
premises.
Dated at ______, this ____ day of ______, 19__.
_______________________________________________________________________
[Complainant's signature]
_______________________________________________________________________
[Office and post office address]
_______________________________________________________________________
[Signature or agent or attorney of complainant]
_______________________________________________________________________
[Post office address]
Verification [See Sec. 502.112]
State of ______, County of ______, ss: ______, ______ being first duly
sworn on oath deposes and says that he (she) is
_______________________________________________________________________
[The complainant, or, if a firm, association, or corporation, state the
capacity of the affiant]
and is the person who signed the foregoing complaint; that he (she) has
read the complaint 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 ______, A.D. 19--.
[Seal]_________________________________________________________________
(Notary Public)
My Commission expires ________.
Information To Assist in Filing Formal Complaint
General
Formal Docket Complaint procedures usually involve an evidentiary
hearing on disputed facts. Where no evidentiary hearing on disputed
facts is necessary and where all parties agree to the use of different
procedures, a complaint may be processed under subpart K [Shortened
Procedure] or subpart S [Informal Docket for a claim of $10,000 or
less]. An application for refund or waiver of collection of freight
charges due to tariff error should be filed pursuant to Sec. 502.92 and
Exhibit No. 1 to subpart F. Consider also the feasibilty of filing a
Petition for Declaratory Order under Sec. 502.68.
Under the Shipping Act of 1984 [foreign commerce], the complaint
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 complainant.
Because of the limitation periods, a complaint is deemed to be filed
only when it is physically received at the Commission. [See
Sec. 502.114]
The format of exhibit No. 1 to subpart E must be followed and a
verification must be included. (See Secs. 502.21-502.32, 502.62 and
502.112.) The complaint must also fully describe the alleged violations
of the specific section(s) of the shipping statute(s) involved and how
complainant is or was directly injured as a result. An original and
fifteen copies, plus a further number of copies sufficient for service
upon each named respondent must be filed and the Commission will serve
the other parties. [See Secs. 502.113 and 502.118]
In addition to subpart E, some other important rules are: Sec. 502.2
(mailing address; hours); Sec. 502.7 (documents in foreign language);
Sec. 502.23 (Notice of Apperance); Sec. 502.41 (parties; how
designated); Sec. 502.44 (necessary and proper parties to certain
complaint proceedings); and subpart H (form, execution and service of
documents).
Checklist of Specific Information
The following checklist sets forth items of information which are
pertinent in cases submitted to the Commission pursuant to the
regulatory provisions of the shipping statutes. The list is not intended
to be inclusive, nor does it indicate all of the essential allegations
which may be material in specific cases.
1. Identity of complainant; if an individual, complainant's
residence; if a partnership, name of partners, business and principal
place thereof; if a corporation, name, state of incorporation, and
principal place of business. The same information with respect to
respondents, intervenors, or others who become parties is necessary.
2. Description of commodity involved, with port of origin,
destination port, weight, consignor and consignee of shipment(s), date
shipped from loading port, and date received at discharge port.
3. Rate charged, with tariff authority for same, and any rule or
regulation applicable thereto; the charges collected and from whom.
4. Route of shipment, including any transshipment; bill of lading
reference.
5. Date of delivery or tender of delivery of each shipment.
6. Where the rate is challenged and comparisons are made with rates
on other commodities, the form, packing, density, susceptibility to
damage, tendency to contaminate other freight, value, volume of
movement, competitive situation, and all matters relating to the cost of
loading, unloading, and otherwise handling of respective commodities.
[[Page 40]]
7. If comparisons are made between the challenged rates and rates on
other routes, the allegation showing similarity of service should
include at least respective distances, volumes of movement, cost of
handling, and competitive conditions.
8. History of rate with reasons for previous increases or decreases
of same.
9. When the complaint alleges undue prejudice or preference, the
complaint should indicate what manner of undue prejudice or preference
is involved, and whether to a particular person, locality, or
description of traffic; how the preference or discrimination resulted
and the manner in which the respondents are responsible for the same;
and how complainant is damaged by the prejudice or preference, in loss
of sales or otherwise.
10. Care should be exercised to differentiate between the measure of
damages required in cases where prejudice or preference is charged,
where the illegality of rates is charged and other situations.
11. Where a filed agreement or conduct under the agreement is
challenged, all necessary provisions of the shipping statute involved
must be specifically cited, showing in detail how a section was violated
and how the conduct or agreement injures complainant. The complaint
should be thorough and clear as to all relief complainant is requesting.
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 55
FR 28400, July 11, 1990; 64 FR 7808, Feb. 17, 1999]
Exhibit No. 2 to Subpart E [Sec. 502.64]--Answer to Complaint
Before the Federal Maritime Commission
Answer
____________ v. ____________
[Complainant] [Respondent]
Docket No. ________
The above-named respondent, for answer to the complaint in this
proceeding, states:
I. [State in this and subsequent paragraphs to be numbered II, III,
etc., appropriate and responsive admissions, denials, and averments,
specifically answering the complaint, paragraph by paragraph.]
Wherefore respondent prays that the complaint in this proceeding be
dismissed.
_______________________________________________________________________
[Name of respondent]
By_____________________________________________________________________
[Title of Officer]
_______________________________________________________________________
[Office and post office address]
_______________________________________________________________________
[Signature of attorney or agent]
_______________________________________________________________________
[Post office address]
Date ____________, 19__.
Verification
[See form for verification of complaint in Exhibit No. 1 to this subpart
and Sec. 502.112.]
Certificate of Service
[See Sec. 502.114.]
Exhibit No. 3 to Subpart E [Sec. 502.72]--Petition for Leave to
Intervene
Before the Federal Maritime Commission
Petition for Leave To Intervene
______ v. ______ Docket No. ______.
Your petitioner, ____________, respectfully represents that he (she)
has an interest in the matters in controversy in the above-entitled
proceeding and desires to intervene in and become a party to said
proceeding, and for grounds of the proposed intervention says:
I. That petitioner is [State whether an association, corporation,
firm, or partnership, etc., as in Exhibit No. 1 to this subpart, and
nature and principal place of business].
II. [Here set out specifically position and interest of petitioner
in the above-entitled proceeding and other essential averments in
accordance with Rule 72 (46 CFR 502.72).]
Wherefore said ____________ requests leave to intervene and be
treated as a party hereto with the right to have notice of and appear at
the taking of testimony, produce and cross-examine witnesses, and be
heard in person or by counsel upon brief and at the oral argument, if
oral argument is granted.
[If affirmative relief is sought, insert appropriate request here.]
Dated at ______, this ____ day of ______, 19__.
_______________________________________________________________________
Petitioner's signature]
_______________________________________________________________________
[Office and post office address]
_______________________________________________________________________
[Signature of agent or attorney of petitioner]
_______________________________________________________________________
[Post office address]
Verification and Certificate of Service
[See Exhibits Nos. 1 and 2 to this subpart.]
[[Page 41]]
Subpart F--Settlement; Prehearing Procedure
Sec. 502.91 Opportunity for informal settlement.
(a) Parties are encouraged to make use of all the procedures of this
part which 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 shall 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 stipulation, offer, or proposal shall be admissible in
evidence over the objection of any party in any hearing on the matter.
[Rule 91.]
(d) As soon as practicable after the commencement of any proceeding,
the presiding judge shall 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 judge
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 shall
convene and conduct one or more mediation or other sessions with the
parties and shall inform the presiding judge, within the time prescribed
by the presiding judge, whether the dispute resolution proceeding
resulted in a resolution or not, and may make recommendations as to
future proceedings. If settlement is reached, it shall be submitted to
the presiding judge who shall issue an appropriate decision or ruling.
All such dispute resolution proceedings shall be subject to the
provisions of subpart U.
(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 judge will advise
the Chief Administrative Law Judge who may appoint a settlement judge
who is acceptable to all parties. The settlement judge shall convene and
preside over conferences and settlement negotiations and shall report to
the presiding judge 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 shall be submitted to the presiding judge who shall issue an
appropriate decision or ruling. [Rule 91].
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64
FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]
Sec. 502.92 [Reserved]
Sec. 502.94 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, there may be considered
the following:
(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 which will avoid unnecessary proof;
(iv) Limitation on the number of witnesses;
(v) The procedure 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.
[[Page 42]]
(2) The presiding officer may require, prior to the hearing,
exchange of exhibits and any other material which may expedite the
hearing. He or she shall 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 shall 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 petition
for a further ruling thereon within ten (10) days after receipt of the
transcript.
(b) In any proceeding under the rules in this part, the presiding
officer may call the parties together for 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.
[Rule 94.]
(c) At any prehearing conference, consideration shall 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.
[49 FR 44369, Nov. 6, 1984, as amended at 58 FR 38649, July 19, 1993; 64
FR 7808, Feb. 17, 1999; 66 FR 43513, Aug. 20, 2001]
Sec. 502.95 Prehearing statements.
(a) Unless waiver is granted by the presiding officer, it shall be
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 discovery. To the extent possible, joint statements should be
prepared.
(b) A prehearing statement shall 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 95.]
Exhibit No. 1 to Subpart F [Reserved]
Subpart G--Time
Sec. 502.101 Computation.
In computing any period of time under the rules in this part, the
time begins with the day following the act, event, or default, and
includes the last day of the period, unless it is a Saturday, Sunday, or
national legal holiday, in which event the period runs until the end of
the next day which is not a
[[Page 43]]
Saturday, Sunday, or national legal holiday. When the period of time
prescribed or allowed is less than seven (7) days, intermediate
Saturdays, Sundays, or national legal holidays shall be excluded from
the computation. [Rule 101.]
Sec. 502.102 Enlargement of time to file documents.
(a) Motions for enlargement of time for the filing of any pleading
or other document, or in connection with the procedures of subpart L of
this part, shall set forth the reasons for the motion and be submitted
at least five (5) days before the scheduled date for filing. Except for
good cause shown, failure to meet this time requirement may result in
summary rejection of the request.
(b) Such motions will be granted only under exceptional
circumstances duly demonstrated in the request, and shall conform to the
requirements of Subpart H of this part, except as to service if they
show that the parties have received actual notice of the motion; and in
relation to briefs, exceptions, and replies to exceptions, such motions
shall conform to the further provisions of Secs. 502.222 and 502.227.
(c) Upon motion made after the expiration of the scheduled date, the
filing may be permitted where reasonable grounds are found for the
failure to file.
(d) Replies to such motions for enlargement of time shall conform to
the requirements of Sec. 502.74. [Rule 102.]
[64 FR 7808, Feb. 17, 1999]
Sec. 502.103 Reduction of time to file documents.
Except as otherwise provided by law and for good cause, the
Commission, with respect to matters pending before it, and the presiding
officer, with respect to matters pending before him or her, may reduce
any time limit prescribed in the rules in this part. [Rule 103.]
Sec. 502.104 Postponement of hearing.
Motions for postponement of any hearing date shall set forth the
reasons for the motion, and shall conform to the requirements of subpart
H of this part, except as to service if they show that parties have
received such actual notice of motion. Such motions will be granted only
if found necessary to prevent substantial delay, expense, detriment to
the public interest or undue prejudice to a party. Such motions must be
received, whether orally or in writing, at least five (5) days before
the scheduled date for hearing. Except for good cause shown, failure to
meet this requirement may result in summary rejection of the request.
Replies to such motions shall conform to the requirements of
Sec. 502.74. [Rule 104.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7809, Feb. 17, 1999]
Sec. 502.105 Waiver of rules governing enlargements of time and postponements of hearings.
The Commission, the presiding officer, or the Chief Administrative
Law Judge may waive the requirements of Secs. 502.102 and 502.104 as to
replies and may rule ex parte on such requests. [Rule 105.]
[64 FR 7809, Feb. 17, 1999]
Subpart H--Form, Execution, and Service of Documents
Sec. 502.111 Form and appearance of documents filed with Commission.
(a) All papers to be filed under the rules in this part must be
clear and legible, dated, show the docket description and title of the
proceeding, and include the title, if any, and address of the signer. An
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 must
be single spaced and indented. The paper must be strong and durable, not
more than 8\1/2\ inches wide and 12 inches long, with a left hand margin
of 1\1/2\ inches. Documents shall be printed in clear type, never
smaller than 12 point.
(b) Filings by facsimile for purposes of meeting a deadline will not
be accepted unless authorized by the presiding officer or the Secretary.
(c) Facsimile transmissions of signature pages on filings will be
tentatively accepted for the purpose of meeting filing deadlines pending
receipt of the
[[Page 44]]
original signature page within seven working days. [Rule 111.]
[64 FR 7809, Feb. 17, 1999]
Sec. 502.112 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. The form of
verification shall be substantially as set forth in exhibit No. 1 to
subpart E. [Rule 112.]
(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 under Sec. 502.203 or Sec. 502.204), such matter may, with
like 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 112.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58
FR 27210, May 7, 1993; 64 FR 7809, Feb. 17, 1999]
Sec. 502.113 Service by the Commission.
(a) Complaints filed pursuant to Sec. 502.62, (including any
accompanying discovery requests initiated pursuant to Sec. 502.201(b)),
amendments to complaints (unless otherwise authorized by the presiding
officer pursuant to Sec. 502.70(b)), and complainant's memoranda filed
in shortened procedure cases will be served by the Secretary of the
Commission.
(b) The complainant may also effect proper service, in which case an
affidavit setting forth the method, time and place of service must be
filed with the Secretary within five days following service.
(c) In addition to and accompanying the original of every document
filed with the Commission for service by the Commission, there shall be
a sufficient number of copies for use of the Commission (see
Sec. 502.118) and for service on each party to the proceeding.
(d) The presiding officer may dismiss a complaint that has not been
served within thirty (30) days after the complaint was filed. [Rule
113.]
[64 FR 7809, Feb. 17, 1999]
[[Page 45]]
Sec. 502.114 Service by parties of pleadings and other documents.
(a) Except as otherwise specifically provided by the rules in this
part, all pleadings, documents, and papers of every kind (except
requests for subpoenas, documents served by the Commission under
Sec. 502.113, and documents submitted at a hearing or prehearing
conference) in proceedings before the Commission under the rules in this
part shall, when tendered to the Commission or the presiding officer for
filing, show that service has been made upon all parties to the
proceeding and upon any other persons required by the rules in this part
to be served. Such service shall be made by delivering one copy to each
party; by hand delivering in person; by mail, properly addressed with
postage prepaid; by courier; or by facsimile transmission if agreed by
both parties prior to service.
(b) Service on all prior participants shall be shown when submitting
comments or replies beyond the initial round, or when submitting post-
decisional pleadings and replies such as petitions for reconsideration,
or for stay under rule 261 or to reopen under rule 230 in all general
notice proceedings, including those involving disposition of petitions
for rulemaking (rule 51), petitions for declaratory order (rule 68),
petitions general (rule 69), notices of proposed rulemaking (rule 52),
proceedings under section 19 of the Merchant Marine Act, 1920, 46 U.S.C.
app. 876(1)(b) (part 550), and proceedings under section 13(b)(6) of the
Shipping Act of 1984 (part 560). A list of all participants may be
obtained from the Secretary of the Commission.
(c) Except with respect to filing of complaints pursuant to
Secs. 502.62 and 502.63, and claims pursuant to Sec. 502.302, the date
of filing shall be either the date on which the pleading, document, or
paper is physically lodged with the Commission by a party or the date
which a party certifies it to have been deposited in the mail or
delivered to a courier. [Rule 114.]
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61
FR 66617, Dec. 18, 1996; 64 FR 7809, Feb. 17, 1999]
Sec. 502.115 Service on attorney or other representative.
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. [Rule 115.]
Sec. 502.116 Date of service.
The date of service of documents served by the Commission shall be
the date shown in the service stamp thereon. The date of service of
documents served by parties shall be the date when matter served is
deposited in the United States mail, delivered to a courier, delivered
in person, or transmitted by facsimile, as the case may be. In computing
the time from such dates, the provisions of Sec. 502.101 shall apply.
[Rule 116.]
[64 FR 7809, Feb. 17, 1999]
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.]
Sec. 502.118 Copies of documents for use of the Commission.
(a) Except as otherwise provided in the rules in this part, the
original and fifteen (15) copies of every document filed and served in
proceedings before the Commission shall be furnished for the
Commission's use. If a certificate
[[Page 46]]
of service accompanied the original document, a copy of such certificate
shall be attached to each such copy of the document.
(b) In matters pending before an administrative law judge the
following copy requirements apply.
(1) An original and fifteen copies shall be filed with the Secretary
of:
(i) Appeals and replies thereto filed pursuant to Sec. 502.153;
(ii) Memoranda submitted under shortened procedures of subpart K of
this part;
(iii) Briefs submitted pursuant to Sec. 502.221;
(iv) All motions, replies and other filings for which a request is
made of the administrative law judge for certification to the Commission
or on which it otherwise appears it will be necessary for the Commission
to rule either directly or upon review of the administrative law judge's
disposition thereof, pursuant to Sec. 502.227;
(v) Answers to complaints filed pursuant to Sec. 502.64.
(2) An original and four copies shall be filed with the Secretary of
prehearing statements required by Sec. 502.95, stipulations under
Sec. 502.162, notices of appearance required by Sec. 502.23, and all
other motions, petitions, or other written communications seeking a
ruling from the presiding administrative law judge.
(3)(i) A single copy shall be filed with the Secretary of requests
for discovery, answers, or objections exchanged among the parties under
procedures of subpart L of this part. Such materials will not be part of
the record for decision unless admitted by the presiding officer or
Commission.
(ii) Motions filed pursuant to Sec. 502.201 are governed by the
requirements of paragraph (b)(2) of this section and motions involving
persons and documents located in a foreign country are governed by the
requirements of paragraph (b)(1)(iv) of this section.
(4) One copy of each exhibit shall be furnished to the official
reporter, to each of the parties present at the hearing and to the
Presiding Officer unless he or she directs otherwise. If submitted other
than at a hearing, the ``reporter's'' copy of an exhibit shall be
furnished to the administrative law judge for later inclusion in the
record if and when admitted.
(5) Copies of prepared testimony submitted pursuant to Sec. 502.157
are governed by the requirements for exhibits in paragraph (b)(4) of
this section. [Rule 118.]
[49 FR 44369, Nov. 6, 1984, as amended at 55 FR 28400, July 11, 1990; 61
FR 66617, Dec. 18, 1996; 64 FR 7809, Feb. 17, 1999]
Sec. 502.119 Documents containing confidential materials.
Except as otherwise provided in the rules of this part, all filings
which contain information previously designated as confidential pursuant
to Secs. 502.167, 502.201(i)(1)(vii), or any other rules of this part or
for which a request for protective order pursuant to
Sec. 502.201(i)(1)(vii) is pending, are subject to the following
requirements:
(a) Filings shall be accompanied by a transmittal letter which
identifies the filing as ``confidential'' and describes the nature and
extent of the authority for requesting confidential treatment. The
confidential copies shall consist of the complete filing and shall
include a cover page marked ``Confidential-Restricted,'' with the
confidential materials clearly marked on each page.
(b) Whenever a confidential filing is submitted, there must also be
submitted an original and one copy of a public version of the filing.
Such public version shall exclude confidential materials, and shall
indicate on the cover page and on each affected page ``confidential
materials excluded.''
(c) 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 correct decision in the proceeding. [Rule 119.]
[55 FR 28400, July 11, 1990, as amended at 64 FR 7809, Feb. 17, 1999]
Subpart I--Subpenas
Sec. 502.131 Requests; issuance.
Subpenas for the attendance of witnesses or the production of
evidence shall be issued upon request of any party, without notice to
any other
[[Page 47]]
party. Requests for subpenas for the attendance of witnesses may be made
orally or in writing; requests for subpenas for the production of
evidence shall be in writing. The party requesting the subpena shall
tender to the presiding officer an original and at least two copies of
such subpena. Where it appears to the presiding officer that the subpena
sought may be unreasonable, oppressive, excessive in scope, or unduly
burdensome, he or she may in his or her discretion, as a condition
precedent to the issuance of the subpena, require the person seeking the
subpena to show the general relevance and reasonable scope of the
testimony or other evidence sought. [Rule 131.]
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 subpena
for attendance of a witness or a subpena for production of evidence, but
in any event at or before the time specified in the subpena for
compliance therewith, the person to whom the subpena is directed may, by
motion with notice to the party requesting the subpena, petition the
presiding officer to quash or modify the subpena.
(b) If served at the hearing, the person to whom the subpena 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 subpena.
(c) If served in connection with the taking of a deposition pursuant
to Sec. 502.203 unless otherwise agreed to by all parties or otherwise
ordered by the presiding officer, the party who has requested the
subpena shall arrange that it be served at least twenty (20) days prior
to the date specified in the subpena for compliance therewith, the
person to whom the subpena is directed may move to quash or modify the
subpena within ten (10) days after service of the subpena, and a reply
to such motion shall be served within five (5) days thereafter. [Rule
132.]
Sec. 502.133 Attendance and mileage fees.
Witnesses summoned by subpena 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]
Sec. 502.134 Service of subpenas.
If service of a subpena 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
subpena. In case of failure to make service, the reasons for the failure
shall be stated on the original subpena. In making service, the original
subpena 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 subpena, bearing or accompanied by
required return, affidavit, or statement, shall be returned without
delay to the Commission, or if so directed on the subpena, to the
presiding officer before whom the person named in the subpena is
required to appear. [Rule 134.]
Sec. 502.135 Subpena of Commission staff personnel, documents or things.
(a) A subpena 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 subpena is
returnable at hearing, a motion to quash may be filed within five (5)
days of service and attendance shall not be required until the presiding
officer rules on said motion. If the subpena 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 subpenaed under this section. The attorney so
designated shall not thereafter participate in the Commission's
decision-
[[Page 48]]
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.]
Sec. 502.136 Enforcement.
In the event of failure to comply with any subpena or order issued
in connection therewith, the Commission may seek enforcement as provided
in Sec. 502.210(b). [Rule 136.]
Subpart J--Hearings; Presiding Officers; Evidence
Sec. 502.141 Hearings not required by statute.
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.]
Sec. 502.142 Hearings required by statute.
In complaint and answer cases, investigations on the Commission's
own motion, and in other rulemaking and adjudication proceedings in
which a hearing is required by statute, formal hearings shall be
conducted pursuant to 5 U.S.C. 554. [Rule 142.]
Sec. 502.143 Notice of nature of hearing, jurisdiction and issues.
Persons entitled to notice of hearings, except those notified by
complaint served under Sec. 502.113, will be duly and timely informed of
(a) the nature of the proceeding, (b) the legal authority and
jurisdiction under which the proceeding is conducted, and (c) the terms,
substance, and issues involved, or the matters of fact and law asserted,
as the case may be. Such notice 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. [Rule 143.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 64
FR 7810, Feb. 17, 1999]
Sec. 502.144 Notice of time and place of hearing; postponement of hearing.
(a) Notice of hearing will designate the time and place thereof, the
person or persons who will preside, and the kind 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 or telegraph. Notice may be served by mail,
facsimile transmission, or electronic mail.
(b) Motions for postponement of any hearing date shall be filed in
accordance with Sec. 502.104. [Rule 144.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7810, Feb. 17, 1999; 64
FR 23551, May 3, 1999]
Sec. 502.145 Presiding officer.
(a) Definition. Presiding officer includes, where applicable, a
member of the Commission or an administrative law judge. (See
Sec. 502.25.)
(b) Designation of administrative law judge. An administrative law
judge will be designated by the Chief of the Commission's Office of
Administrative Law Judges 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.
(c) Unavailability. If the presiding officer assigned to a
proceeding becomes unavailable to the Commission, 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
[[Page 49]]
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. [Rule 145.]
Sec. 502.146 Commencement of functions of Office of Administrative Law Judges.
In proceedings handled by the Office of Administrative Law Judges,
its functions shall attach:
(a) Upon the service by the Commission of a complaint filed pursuant
to Sec. 502.62, or Sec. 502.182, or upon referral under subpart T of
this part; or
(b) Upon reference by the Commission of a petition for a declaratory
order pursuant to Sec. 502.68; or
(c) Upon forwarding for assignment by the Office of the Secretary of
a special docket application pursuant to Sec. 502.271; or
(d) Upon the initiation of a proceeding and ordering of hearing
before an administrative law judge. [Rule 146.]
[49 FR 44369, Nov. 6, 1984, as amended at 64 FR 7810, Feb. 17, 1999]
Sec. 502.147 Functions and powers.
(a) Of presiding officer. The officer designated to hear a case
shall have authority to arrange and give notice of hearing; sign and
issue subpenas authorized by law; take or cause depositions to be taken;
rule upon proposed amendments or supplements to pleadings; delineate the
scope of a proceeding instituted by order of the Commission by amending,
modifying, clarifying or interpreting said order; 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 stage 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 of this part; 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; regulate the course of the 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 which will aid in the
determination of any question of fact in issue; rule upon offers of
proof and receive relevant material, reliable and probative evidence;
act upon petitions 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 the
evidence submitted; hear oral argument at the close of testimony; 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. The presiding
officer or the Commission may exclude any person from a hearing for
disrespectful, disorderly, or contumacious language or conduct.
(b) 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.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58
FR 38650, July 19, 1993; 64 FR 7810, Feb. 17, 1999]
Sec. 502.148 Consolidation of proceedings.
The Commission or the Chief Judge (or designee) may order two or
more proceedings which involve substantially the same issues
consolidated and heard together. [Rule 148.]
[[Page 50]]
Sec. 502.149 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 149.]
Sec. 502.150 Further evidence required by presiding officer during hearing.
At any time during the hearing, the presiding officer may call for
further evidence upon any issue, and require such evidence where
available to be presented by the party or parties concerned, either at
the hearing or adjournment thereof. [Rule 150.]
Sec. 502.151 Exceptions to rulings of presiding officer unnecessary.
Formal exceptions to rulings of the presiding officer are
unnecessary. It is sufficient that a party, at the time the ruling of
the presiding officer is made or sought, makes known the action which it
desires the presiding officer to take or its objection to an action
taken, and its grounds therefor. [Rule 151.]
Sec. 502.152 Offer of proof.
An offer of proof made in connection with an objection taken to any
ruling of the presiding officer rejecting or excluding proffered oral
testimony shall consist of a statement of the substance of the evidence
which counsel contends would be adduced by such testimony; and, if the
excluded evidence consists of evidence in documentary or written form or
of reference to documents or records, a copy of such evidence shall be
marked for identification and shall constitute the offer of proof. [Rule
152.]
Sec. 502.153 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 shall find 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.
(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 shall
contain not only the grounds for leave to appeal but 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 shall certify the appeal
to the Commission.
(d) Unless otherwise provided, the certification of the appeal shall
not operate as a stay of the proceeding before the presiding officer.
(e) The provisions of Sec. 502.10 shall not apply to this section.
[Rule 153.]
Sec. 502.154 Rights of parties as to presentation of evidence.
Every party shall have 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 shall, however, have 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 cumulative or is productive of undue delay in
the conduct of the hearing. [Rule 154.]
502.155 Burden of proof.
In all cases, as prescribed by the Administrative Procedure Act, 5
U.S.C. 556(d), the burden of proof shall be on the proponent of the rule
or order. [Rule 155.]
[61 FR 66617, Dec. 18, 1996]
[[Page 51]]
Sec. 502.156 Evidence admissible.
In any proceeding under the rules in this part, all evidence which
is relevant, material, reliable and probative, and not unduly
repetitious or cumulative, shall be admissible. All other evidence shall
be excluded. Unless inconsistent with the requirements of the
Administrative Procedure Act and these Rules, the Federal Rules of
Evidence, Public Law 93-595, effective July 1, 1975, will also be
applicable. [Rule 156.]
Sec. 502.157 Written evidence.
(a) The use of written statements in lieu of oral testimony shall be
resorted to where the presiding officer in his or her discretion rules
that such procedure is appropriate. The statements shall be numbered in
paragraphs, and each party in its rebuttal shall be required to list the
paragraphs to which it objects, giving an indication of its reasons for
objecting. Statistical exhibits shall contain a short commentary
explaining the conclusions which the offeror draws from the data. Any
portion of such testimony which is argumentative shall be excluded.
Where written statements are used, copies of the statement and any
rebuttal statement shall be furnished to all parties, as shall copies of
exhibits. The presiding officer shall fix respective dates for the
exchange of such written rebuttal statements and exhibits in advance of
the hearing to enable study by the parties of such testimony.
Thereafter, the parties shall endeavor to stipulate as many of the facts
set forth in the written testimony as they may be able to agree upon.
Oral examination of witnesses shall thereafter be confined to facts
which remain in controversy, and a reading of the written statements at
the hearing will be dispensed with unless the presiding officer
otherwise directs.
(b) 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. [Rule 157.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Sec. 502.158 Documents containing matter not material.
Where written matter offered in evidence is embraced in a document
containing other matter which is not intended to be offered in evidence,
the offering party shall present the original document to all parties at
the hearing for their inspection, and shall offer a true copy of the
matter which is to be introduced, unless the presiding officer
determines that the matter is short enough to be read into the record.
Opposing parties shall be afforded an opportunity to introduce in
evidence, in like manner, other portions of the original document which
are material and relevant. [Rule 158.]
Sec. 502.159 [Reserved]
Sec. 502.160 Records in other proceedings.
When any portion of the record before the Commission in any
proceeding other than the one being heard is offered in evidence, a true
copy of such portion shall be presented for the record in the form of an
exhibit unless the parties represented at the hearing stipulate upon the
record that such portion may be incorporated by reference. [Rule 160.]
Sec. 502.161 Commission's files.
Where any matter contained in a tariff, report, or other document on
file with the Commission is offered in evidence, such document need not
be produced or marked for identification, but the matter so offered
shall be specified in its particularity, giving tariff number and page
number of tariff, report, or document in such manner as to be readily
identified, and may be received in evidence by reference, subject to
comparison with the original document on file. [Rule 161.]
Sec. 502.162 Stipulations.
The parties may, by stipulation, agree upon any facts involved in
the proceeding and include them in the
[[Page 52]]
record with the consent of the presiding officer. It is desirable that
facts be thus agreed upon whenever practicable. Written stipulations
shall be subscribed and shall be served upon all parties of record
unless presented at the hearing or prehearing conference. A stipulation
may be proposed even if not subscribed by all parties without prejudice
to any nonsubscribing party's right to cross-examine and offer rebuttal
evidence. [Rule 162.]
Sec. 502.163 Receipt of documents after hearing.
Documents or other writings to be submitted for the record after the
close of the hearing will not be received in evidence except upon
permission of the presiding officer. Such documents or other writings
when submitted shall be accompanied by a statement that copies have been
served upon all parties, and shall be received, except for good cause
shown, not later than ten (10) days after the close of the hearing and
not less than (10) days prior to the date set for filing briefs. Exhibit
numbers will not be assigned until such documents are actually received
and incorporated in the record. [Rule 163.]
Sec. 502.164 Oral argument at hearings.
Oral argument at the close of testimony may be ordered by the
presiding officer in his or her discretion. [Rule 164.]
Sec. 502.165 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, shall be
filed with the Commission. Transcripts of testimony will be available in
any proceeding under the rules in this part, and will be supplied by the
official reporter to the parties and to the public, except when required
for good cause to be held confidential, at rates not to exceed the
maximum rates fixed by contract between the Commission and the reporter.
(b)(1) Section 11 of the Federal Advisory Committee Act provides
that, except where prohibited by contractual agreements entered into
prior to the effective date of this Act, agencies and advisory
committees shall make available to any person, at actual cost of
duplication, copies of transcripts of agency proceedings or advisory
committee meetings. As used in this section, ``agency proceeding'' means
any proceeding as defined in 5 U.S.C. 551(12).
(2) The Office of Management and Budget has interpreted this
provision as being applicable to proceedings before the Commission and
its administrative law judges. (Guidelines, 38 FR 12851, May 16, 1973.)
(3) The Commission interprets section 11 and the OMB guidelines as
follows:
(i) Future contracts between the Commission and the successfully
bidding recording firm will provide that any party to a Commission
proceeding or other interested person (hereinafter included within the
meaning of ``party'') shall be able to obtain a copy of the transcript
of the proceeding in which it is involved at the actual cost of
duplication of the original transcript, which includes a reasonable
amount for overhead and profit, except where it requests delivery of
copies in a shorter period of time than is required for delivery by the
Commission.
(ii) The Commission will bear the full expense of transcribing all
of its administrative proceedings where it requests regular delivery
service (as set forth in the Contract). In cases where the Commission
requests daily delivery of transcript copies (as set forth in the
Contract), any party may receive daily delivery service at the actual
cost of duplication.
(iii)(A) 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, except that
where the party applies for and properly shows that the furnishing of
daily copy is indispensible to the protection of a vital right or
interest in achieving a fair hearing, the presiding officer in the
proceeding in which the application is made shall order that daily copy
service be provided the applying party
[[Page 53]]
at the actual cost of duplication, with the full cost of transcription
being borne by the Commission.
(B) 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.
(C) 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. 502.147(a). [Rule 165.]
Sec. 502.166 Corrections of transcript.
Motions made at the hearing to correct the record will be acted upon
by the presiding officer. Motions made after the hearing to correct the
record shall 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 shall be served on all
parties. Such motions may be in the form of a letter. 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
166.]
Sec. 502.167 Objection to public disclosure of information.
Upon objection to public disclosure of any information sought to be
elicited during a hearing, the presiding officer may in his or her
discretion order that the witness shall disclose such information only
in the presence of those designated and sworn to secrecy by the
presiding officer. The transcript of testimony shall be held
confidential. Copies of said transcript need be served only upon the
parties to whose representatives the information has been disclosed and
upon such other parties as the presiding officer may designate. This
rule is subject to the proviso that any information given pursuant
thereto, may be used by the presiding officer or the Commission if
deemed necessary to a correct decision in the proceeding. [Rule 167.]
[55 FR 28400, July 11, 1990]
Sec. 502.168 Copies of data or evidence.
Every person compelled to submit data or evidence shall be entitled
to retain or, on payment of proper costs, procure a copy of transcript
thereof. [Rule 168.]
Sec. 502.169 Record of decision.
The transcript of testimony and exhibits, together with all papers
and requests filed in the proceeding, shall constitute the exclusive
record for decision. [Rule 169.]
Subpart K--Shortened Procedure
Sec. 502.181 Selection of cases for shortened procedure; consent required.
By consent of the parties and with approval of the Commission or
presiding officer, a complaint proceeding may be conducted under
shortened procedure without oral hearing, except that a hearing may be
ordered by the presiding officer at the request of any party or in his
or her discretion. [Rule 181.]
Sec. 502.182 Complaint and memorandum of facts and arguments and filing fee.
A complaint filed with the Commission under this subpart shall have
attached a memorandum of the facts, subscribed and verified according to
Sec. 502.112, and of arguments separately stated, upon which it relies.
The original of each complaint with memorandum shall be accompanied by
copies for the Commission's use. The complaint shall be accompanied by
remittance of a $184 filing fee. [Rule 182.]
[49 FR 44369, Nov. 6, 1984, as amended at 59 FR 59170, Nov. 16, 1994; 63
FR 50535, Sept. 22, 1998]
Sec. 502.183 Respondent's answering memorandum.
Within twenty-five (25) days after date of service of the complaint,
unless
[[Page 54]]
a shorter period is fixed, each respondent shall, if it consents to the
shortened procedure provided in this subpart, serve upon complainant
pursuant to subpart H of this part an answering memorandum of the facts,
subscribed and verified according to Sec. 502.112, and of arguments,
separately stated, upon which it relies. The original of the answering
memorandum shall be accompanied by a certificate of service as provided
in Sec. 502.114 and shall be accompanied by copies for the Commission's
use. If the respondent does not consent to the proceeding being
conducted under the shortened procedure provided in this subpart, the
matter will be governed by subpart E of this part and the respondent
shall file an answer under Sec. 502.64. [Rule 183.]
Sec. 502.184 Complainant's memorandum in reply.
Within fifteen (15) days after the date of service of the answering
memorandum prescribed in Sec. 502.183, unless a shorter period is fixed,
each complainant may file a memorandum in reply, subscribed and verified
according to Sec. 502.112, served as provided in Sec. 502.114, and
accompanied by copies for the Commission's use. This will close the
record for decision unless the presiding officer determines that the
record is insufficient and orders the submission of additional
evidentiary materials. [Rule 184.]
Sec. 502.185 Service of memoranda upon and by interveners.
Service of all memoranda shall be made upon any interveners.
Interveners shall file and serve memoranda in conformity with the
provisions relating to the parties on whose behalf they intervene. [Rule
185.]
Sec. 502.186 Contents of memoranda.
The memorandum should contain concise arguments and fact, the same
as would be offered if a formal hearing were held and briefs filed. If
reparation is sought, paid freight bills should accompany complainant's
original memorandum. [Rule 186.]
Sec. 502.187 Procedure after filing of memoranda.
An initial, recommended, or tentative decision will be served upon
the parties in the same manner as is provided under Sec. 502.225.
Thereafter, the procedure will be the same as that in respect to
proceedings after formal hearing. [Rule 187.]
Subpart L--Depositions, Written Interrogatories, and Discovery
Sec. 502.201 General provisions governing discovery.
(a) Applicability. The procedures described in this subpart are
available in all adjudicatory proceedings under the Shipping Act of
1984. Unless otherwise ordered by the presiding officer, the copy
requirements of Sec. 502.118(b)(3)(i) shall be observed.
(b) Schedule of use--(1) Complaint proceedings. Any party desiring
to use the procedures provided in this subpart shall commence doing so
at the time it files its initial pleading, e.g., complaint, answer or
petition for leave to intervene. Discovery matters accompanying
complaints shall be filed with the Secretary of the Commission for
service pursuant to Sec. 502.113.
(2) Commission instituted proceedings. All parties desiring to use
the procedures provided in this subpart shall commence to do so within
30 days of the service of the Commission's order initiating the
proceeding.
(3) Commencement of discovery. The requirement to commence discovery
under paragraphs (b)(1) and (b)(2) of this section shall be deemed
satisfied when a party serves any discovery request under this subpart
upon a party or person from whom a response is deemed necessary by the
party commencing discovery. A schedule for further discovery pursuant to
this subpart shall be established at the conference of the parties
pursuant to paragraph (d) of this section.
(c) Completion of discovery. Discovery shall be completed within 120
days of the service of the complaint or the Commission's order
initiating the proceeding.
[[Page 55]]
(d) Duty of the parties to meet or confer. In all proceedings in
which the procedures of this subpart are used, it shall be the duty of
the parties to meet or confer within fifteen (15) days after service of
the answer to a complaint or after service of the discovery requests in
a Commission-instituted proceeding in order to: establish a schedule for
the completion of discovery within the 120-day period prescribed in
paragraph (c) 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 schedule shall be submitted to the presiding officer not
later than five (5) days after the conference. Nothing in this rule
should be construed to preclude the parties from meeting or conferring
at an earlier date.
(e) Submission of status reports and requests to alter schedule. The
parties shall submit a status report concerning their progress under the
discovery schedule established pursuant to paragraph (d) of this section
not later than thirty (30) days after submission of such schedule to the
presiding officer and at 30-day intervals thereafter, concluding on the
final day of the discovery schedule, unless the presiding officer
otherwise directs. Requests to alter such schedule beyond the 120-day
period shall set forth clearly and in detail the reasons why the
schedule cannot be met. Such requests may be submitted with the status
reports unless an event occurs which makes adherence to the schedule
appear to be impossible, in which case the requests shall be submitted
promptly after occurrence of such event.
(f) 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. When a reporter is not present and
oral rulings are made at a conference held pursuant to this paragraph or
paragraph (g) of this section, the parties shall submit to the presiding
officer as soon as possible but within three (3) work days, unless the
presiding officer grants additional time, a joint memorandum setting
forth their mutual understanding as to each ruling on which they agree
and, as to each ruling on which their understandings differ, the
individual understandings of each party. Thereafter, the presiding
officer shall issue a written order setting forth such rulings.
(g) 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. Such rulings shall be made
orally upon the record when feasible and/or by subsequent ruling in
writing. 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.
(h) Scope of examination. Persons and parties may be examined
regarding any matter, not privileged, which is relevant to the subject
matter involved in the proceeding, whether it relates to the claim or
defense of the examining party or to the claim or defense of any other
party, including the existence, description, nature, custody, condition,
and location of any books, documents, or other tangible things, and the
identity and location of persons having knowledge of relevant facts. It
is not ground for objection that the testimony will be inadmissible at
the hearing if the testimony sought appears reasonably calculated to
lead to the discovery of admissible evidence.
(i) Protective orders. (1) Upon motion by a party or by the person
from whom discovery is sought, and for good cause shown, the presiding
officer may make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense including one or more of the following:
(i) That the discovery not be had;
(ii) That the discovery may be had only on specified terms and
conditions including a designation of the time or place;
(iii) That the discovery may be had only by a method of discovery
other
[[Page 56]]
than that selected by the party seeking discovery;
(iv) That certain matters not be inquired into, or that the scope of
the discovery be limited to certain matters;
(v) That discovery may be conducted with no one present except
persons designated by the presiding officer;
(vi) That a deposition after being sealed be opened only by order of
the presiding officer;
(vii) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be disclosed
only in a designated way;
(viii) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the
presiding officer.
(2) If the motion for a protective order is denied in whole or in
part, the presiding officer may, on such terms and conditions as are
just, order that any party or person provide or permit discovery.
Rulings under this paragraph shall be issued by the presiding officer at
a discovery conference called under Sec. 502.201(f) or, if circumstances
warrant, under such other procedure the presiding officer may establish.
(j) Supplementation of responses. A party who has responded to a
request for discovery with a response that was complete when made is
under no duty to supplement the party's responses to include information
thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement responses with
respect to any question directly addressed to (i) the identity and
location of persons having knowledge of discoverable matters, and (ii)
the identity of each person expected to be called as an expert witness
at a hearing, the subject matter on which such person is expected to
testify, and the substance of the testimony.
(2) A party is under a duty seasonably to amend a prior response if
the party obtains information upon the basis of which (i) the party
knows that the response was incorrect when made, or (ii) the party knows
that the response though correct when made is no longer true and the
circumstances are such that a failure to amend the response is in
substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the
presiding officer or by agreement of the parties, subject to the time
limitations set forth in paragraph (c) of this section or established
under paragraph (e) of this section. [Rule 201.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 64
FR 7810, Feb. 17, 1999]
Sec. 502.202 Persons before whom depositions may be taken.
(a) Within the United States. Within the United States or within a
territory or insular possession subject to the jurisdiction of the
United States, depositions shall be taken before an officer authorized
to administer oaths under the laws of the United States or of the place
where the examination is held.
(b) In foreign countries. In a foreign country, depositions may be
taken (1) on notice, before a person authorized to administer oaths in
the place in which the examination is held, either under the law thereof
or under the law of the United States, or (2) before a person
commissioned by the Commission, and a person so commissioned shall have
the power by virtue of his or her commission to administer any necessary
oath and take testimony, or (3) pursuant to a letter rogatory. A
commission or a letter rogatory shall be issued on application and
notice and on terms that are just and appropriate. It is not requisite
to the issuance of a commission or a letter rogatory that the taking of
the deposition in any other manner is impracticable or inconvenient; and
both a commission and a letter rogatory may be issued in proper cases. A
notice or commission may designate the person before whom the deposition
is to be taken either by name or descriptive title. A letter rogatory
may be addressed ``To the Appropriate Authority in [here name the
country].'' Evidence obtained in response to a letter rogatory need not
be excluded merely for the reason that it is not a verbatim transcript
or that the testimony was not taken under oath or for any similar
departure from the requirements for depositions taken within the
[[Page 57]]
United States under the rules in this subpart. (See 22 CFR 92.49--
92.66.)
(c) Disqualification for interest. No deposition shall be taken
before a person who is a relative or employee or attorney or counsel of
any of the parties, or is a relative or employee of such attorney or
counsel, or is financially interested in the action.
(d) Waiver of objection. Objection to taking a deposition because of
disqualification of the officer before whom it is to be taken is waived
unless made before the deposition begins or as soon thereafter as the
disqualification becomes known or could be discovered with reasonable
diligence
(e) Stipulations. If the parties so stipulate in writing,
depositions may be taken before any person, at any time or place, upon
any notice, and in any manner and when so taken may be used like other
depositions. [Rule 202.]
Sec. 502.203 Depositions upon oral examination.
(a) Notice of examination. (1) A party desiring to take the
deposition of any person upon oral examination shall give reasonable
notice in writing to such person and to every other party to the action,
pursuant to subpart H of this part. The notice shall state the time and
place for taking the deposition and the name and address of each person
to be examined, if known, and, if the name is not known, a general
description sufficient to identify the person or the particular class or
group to which the person belongs. The notice shall also contain a
statement of the matters concerning which each witness will testify.
(2) The attendance of witnesses may be compelled by subpena as
provided in subpart I of this part. If a subpena duces tecum is to be
served on the person to be examined, the designation of the materials to
be produced as set forth in the subpena shall be attached to or included
in the notice.
(3) All errors and irregularities in the notice or subpena for
taking of a deposition are waived unless written objection is promptly
served upon the party giving the notice.
(4) Examination and cross-examination of deponents may proceed as
permitted at the hearing under the provisions of Sec. 502.154.
(b) Record of examination; oath; objections. (1) The officer before
whom the deposition is to be taken shall put the witness on oath and
shall personally, or by someone acting under the direction and in his or
her presence, record the testimony of the witness. The testimony shall
be taken stenographically and transcribed unless the parties agree
otherwise. All objections made at the time of the examination to the
qualifications of the officer taking it, or to the evidence presented,
or to the conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the deposition. Evidence
objected to shall be taken subject to the objections. Objections shall
be resolved at a discovery conference called under Sec. 502.201(f) or,
if circumstances warrant, by such other procedure as the presiding
officer may establish.
(2) In lieu of participating in the oral examination, parties served
with notice of taking a deposition may transmit written interrogatories
to the officer, who shall propound them to the witness and record the
answers verbatim.
(3) The parties may stipulate or the presiding officer may upon
motion order that a deposition be taken by telephone or other reliable
device.
(c) Motion to terminate or limit examination. At any time during the
taking of the deposition, on motion of any party or of the deponent and
upon a showing that the examination is being conducted in bad faith or
in such manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the presiding officer may order the officer
conducting the examination to cease forthwith from taking the
deposition, or may limit the scope and manner of the taking of the
deposition as provided in paragraph (b) of this section. If the order
made terminates the examination, it shall be resumed thereafter only
upon the order of the presiding officer. Upon demand of the objecting
party or deponent, the taking of the deposition shall be suspended for
the time necessary to make a motion for an order. Rulings under this
paragraph shall be issued by the presiding
[[Page 58]]
officer at a discovery conference called under Sec. 502.201(f) or, if
circumstances warrant, by such other procedure as the presiding officer
may establish.
(d) Submission to witness; changes; signing. When the testimony is
fully transcribed, the deposition shall be submitted to the witness for
examination and shall be read to or by the witness, unless such
examination and reading are waived by the witness and by the parties.
Any changes in form or substance which the witness desires to make shall
be entered upon the deposition by the officer with a statement of the
reasons given by the witness for making them. The deposition shall then
be signed by the witness unless the parties by stipulation waive the
signing or the witness is ill or cannot be found or refuses to sign. If
the deposition is not signed by the witness, the officer shall sign it
and state on the record the fact of the waiver or of the illness or
absence of the witness or the fact of the refusal to sign, together with
the reason, if any, given therefor, and the deposition may then be used
as fully as though signed, unless upon objection, the presiding officer
holds that the reasons given for the refusal to sign require rejection
of the deposition in whole or in part.
(e) Certification and filing by officer; copies, notice of filing.
(1) The officer taking the deposition shall certify on the deposition
that the witness was duly sworn by the officer and that the deposition
is a true record of the testimony given by the witness. The officer
shall then securely seal the deposition in an envelope endorsed with the
title of the action and marked ``Deposition of [here insert name of
witness]'' and shall promptly file it with the Secretary of the
Commission by hand or registered or certified mail.
(2) Interested parties shall make their own arrangements with the
officer taking the deposition for copies of the testimony and the
exhibits.
(3) The party taking the deposition shall give prompt notice of its
filing to all other parties.
(f) Effect of errors and irregularities. Errors and irregularities
in the manner in which the testimony is transcribed or the deposition is
prepared, signed, certified, sealed, endorsed, transmitted, filed, or
otherwise dealt with by the officer under this section and Sec. 502.204
are waived unless a motion to suppress the deposition or some part
thereof is made within ten (10) days of filing. [Rule 203.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984, as amended at 58
FR 27211, May 7, 1993]
Sec. 502.204 Depositions upon written interrogatories.
(a) Serving interrogatories; notice. A party desiring to take the
deposition of any person upon written interrogatories shall serve them
upon every other party pursuant to subpart H of this part with a notice
stating the name and address of the person who is to answer them and the
name or descriptive title and address of the officer before whom the
deposition is to be taken. Within ten (10) days thereafter, a party so
served may serve cross interrogatories upon the party proposing to take
the deposition. All errors and irregularities in the notice are waived
unless written objection is promptly served upon the party giving the
notice.
(b) Officer to take responses and prepare record. A copy of the
notice and copies of all interrogatories served shall be delivered by
the party taking the deposition to the officer designated in the notice,
who shall proceed promptly in the manner provided by paragraphs (b), (d)
and (e) of Sec. 502.203 to take the testimony of the witness in response
to the interrogatories and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the
interrogatories received by him or her.
(c) Notice of filing. When the deposition is filed, the party taking
it shall promptly give notice thereof to all other parties. [Rule 204.]
Sec. 502.205 Interrogatories to parties.
(a) Service; answers. (1) Any party may serve, pursuant to subpart H
of this part, upon any other party written interrogatories to be
answered by the party served or, if the party served is a public or
private corporation or a partnership or association, by any officer or
agent, who shall furnish such information as is available to the party.
[[Page 59]]
Any party desiring to serve interrogatories as provided by this section
must comply with the applicable provisions of Sec. 502.201 and make
service thereof on all parties to the proceeding.
(2) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the reasons
for objection shall be stated in lieu of an answer. The answers are to
be signed by the person making them, and the objections signed by the
attorney making them.
(3) The party upon whom the interrogatories have been served shall
serve a copy of the answers, and objections if any, on all parties to
the proceeding under the schedule established pursuant to Sec. 502.201.
The presiding officer, for good cause, may limit service of answers.
(b) Objections to interrogatories. All objections to interrogatories
shall be resolved at the conference or meeting provided for under
Sec. 502.201(f) or, if circumstances warrant, by such other procedure as
the presiding officer may establish. Written replies to objections to
interrogatories shall be permitted only to the extent that the discovery
schedule previously established under Sec. 502.201(d) is not delayed.
(c) Scope, time, number and use. (1) Interrogatories may relate to
any matters which can be inquired into under Sec. 502.201(h), and the
answers may be used to the same extent as provided in Sec. 502.209 for
the use of the deposition of a party.
(2) Interrogatories may be sought after interrogatories have been
answered, but the presiding officer, on motion of the deponent or the
party interrogated, may make such protective order as justice may
require.
(3) The number of interrogatories or of sets of interrogatories to
be served is not limited except as justice requires to protect the party
from annoyance, expense, embarrassment, or oppression.
(4) An interrogatory otherwise proper is not necessarily
objectionable merely because an answer to the interrogatory involves an
opinion or contention that relates to fact or the application of law to
fact, but the presiding officer may order that such an interrogatory
need not be answered until after designated discovery has been completed
or until a prehearing conference or other later time.
(d) Option to produce business records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served or from an
examination, audit or inspection of such business records, or from a
compilation, abstract or summary based thereon, and the burden of
deriving or ascertaining the answer is substantially the same for the
party serving the interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify the records from
which the answer may be derived or ascertained and to afford to the
party serving the interrogatory reasonable opportunity to examine, audit
or inspect such records and to make copies, compilations, abstracts or
summaries. [Rule 205.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Sec. 502.206 Production of documents and things and entry upon land for inspection and other purposes.
(a) Scope. Any party may serve, pursuant to subpart H of this part,
on any other party a request (1) to produce and permit the party making
the request, or someone acting on its behalf, to inspect and copy any
designated documents (including writings, drawings, graphs, charts,
photographs, sound or video recordings, and other data compilations from
which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things which constitute
or contain matters within the scope of Sec. 502.203(a) and which are in
the possession, custody or control of the party upon whom the request is
served; or (2) to permit entry upon designated land or other property in
the possession or control of the party upon whom the request is served
for the purpose of inspection and measuring, surveying, photographing,
testing, or sampling the property of any designated object or operation
thereon, within the scope of Sec. 502.203(a).
[[Page 60]]
(b) Procedure. The request shall set forth the items to be inspected
either by individual item or by category, and describe each item and
category with reasonable particularity. The request shall specify a
reasonable time, place, and manner of making the inspection and
performing the related acts. Responses shall be served under the
schedule established pursuant to Sec. 502.201. The response shall state,
with respect to each item or category, that inspection and related
activities will be permitted as requested, unless the request is
objected to, in which event the reasons for objection shall be stated.
Objections to requests for production of documents shall be resolved at
the conference or meeting required under Sec. 502.201(f) or, if
circumstances warrant, by such other procedure as the presiding officer
may establish. Written replies to objections to requests for production
of documents shall be permitted only to the extent that the discovery
schedule previously established under Sec. 502.201(d) is not delayed.
[Rule 206.]
Sec. 502.207 Requests for admission.
(a)(1) A party may serve, pursuant to subpart H of this part, upon
any other party a written request for the admission, for purposes of the
pending action only, of the truth of any matters within the scope of
Sec. 502.203(a) set forth in the request that relate to statements or
opinions of fact or of the application of law to fact, including the
genuineness of any documents described in the request. Copies of
documents shall be served with the request unless they have been or are
otherwise furnished or made available for inspection and copying. Any
party desiring to serve a request as provided by this section must
comply with the applicable provisions of Sec. 502.201.
(2)(i) Each matter of which an admission is requested shall be
separately set forth.
(ii) The matter is admitted unless, within thirty (30) days after
service of the request, or within such shorter or longer time as the
presiding officer may allow pursuant to Sec. 502.201, the party to whom
the request is directed serves upon the party requesting the admission a
written answer or objection addressed to the matter, signed by the party
or the party's attorney. If objection is made, the reasons therefor
shall be stated. The answer shall specifically deny the matter or set
forth in detail the reasons why the answering party cannot truthfully
admit or deny the matter. A denial shall fairly meet the substance of
the requested admission, and when good faith requires that a party
qualify the answer or deny only a part of the matter of which an
admission is requested, the party shall specify so much of it as is true
and qualify or deny the remainder.
(iii) An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny unless the party
states that reasonable inquiry has been made and that the information
known or readily obtainable is insufficient to enable the party to admit
or deny. A party who considers that a matter of which an admission has
been requested presents a genuine issue for trial may not, on that
ground alone, object to the request; a party may, subject to the
provisions of Sec. 502.207(c) deny the matter or set forth reasons why
it cannot be admitted or denied.
(3) The party who has requested admissions may request rulings on
the sufficiency of the answers or objections. Rulings on such requests
shall be issued at a conference called under Sec. 502.201(f) or, if
circumstances warrant, by such other procedure as the presiding officer
may establish. Unless the presiding officer determines that an objection
is justified, the presiding officer shall order that an answer be
served. If the presiding officer determines that an answer does not
comply with the requirements of this rule, the presiding officer may
order either that the matter is admitted or that an amended answer be
served. The presiding officer may, in lieu of these orders, determine
that final disposition of the request be made at a prehearing conference
or at a designated time prior to hearing.
(b) Effect of admission. Any matter admitted under this rule is
conclusively established unless the presiding officer on motion permits
withdrawal or amendment when the presentation of
[[Page 61]]
the merits of the action will be subserved thereby and the party who
obtained the admission fails to satisfy the presiding officer that
withdrawal or amendment will be prejudicial in maintaining the party's
action or defense on the merits. Any admission made by a party under
this rule is for the purpose of the pending proceeding only and is not
an admission for any other purpose, nor may it be used against the party
in any other proceeding.
(c) Expenses on failure to admit. If a party fails to admit the
genuineness of any document or the truth of any matter as requested
under paragraph (a) of this section, and if the party requesting the
admission thereafter proves the genuineness of the document or the truth
of the matter, that party may apply to the presiding officer for an
order requiring the other party to pay the reasonable expenses incurred
in making that proof, including reasonable attorney's fees. Such
application must be made to the presiding officer before issuance of the
initial decision in the proceeding. The presiding officer shall make the
order unless it is found that:
(1) The request was held objectionable pursuant to paragraph (a) of
this section, or
(2) The admission sought was of no substantial importance, or
(3) The party failing to admit had reasonable ground to believe that
it might prevail on the matter, or
(4) There was other good reason for the failure to admit. [Rule
207.]
Sec. 502.208 Use of discovery procedures directed to Commission staff personnel.
(a) Discovery procedures described in Secs. 502.202, 502.203,
502.204, 502.205, 502.206, and 502.207, directed to Commission staff
personnel shall be permitted and shall 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, shall be
served on the Secretary of the Commission.
(b) The General Counsel shall designate an attorney to represent any
Commission staff personnel to whom any discovery requests or motions are
directed. 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 paragraph (a) of
this section 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 motion for leave to
appeal is necessary in such instances and no ruling of the presiding
officer shall be effective until twenty (20) days from date of issuance
unless the Commission otherwise directs. [Rule 208.]
Sec. 502.209 Use of depositions at hearings.
(a) General. At the hearing, any part or all of a deposition, so far
as admissible under the rules of evidence, may be used against any party
who was present or represented at the taking of the deposition or who
had due notice thereof in accordance with any one of the following
provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or duly authorized agent of a
public or private corporation, partnership, or association which is a
party, may be used by any other party for any purpose.
(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the presiding officer finds:
(i) That the witness is dead; or
(ii) That the witness is out of the United States unless it appears
that the absence of the witness was procured by the party offering the
depositions; or
[[Page 62]]
(iii) That the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment; or
(iv) That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
(v) Upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest of justice and with due
regard to the importance of presenting the testimony of witnesses orally
in open hearing, to allow the deposition to be used.
(4) If only part of a deposition is offered in evidence by a party,
any other party may require introduction of all of it which is relevant
to the part introduced, and any party may introduce any other parts.
(5) Substitution of parties does not affect the right to use
depositions previously taken; and, when a proceeding in any hearing has
been dismissed and another proceeding involving the same subject matter
is afterward brought between the same parties or their representatives
or successors in interest, all depositions lawfully taken and duly filed
in the former proceeding may be used in the latter as if originally
taken therefor.
(b) Objections to admissibility. (1) Except as otherwise provided in
this paragraph, objection may be made at the hearing to receiving in
evidence any deposition or part thereof for any reason which would
require the exclusion of the evidence if the witness were then present
and testifying.
(2) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the ground of
the objection is one which might have been obviated or removed if
presented at the time.
(3) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties and
errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless reasonable objection thereto is
made at the taking of the deposition.
(4) Objections to the form of written interrogatories submitted
under Sec. 502.204 are waived unless served in writing upon the party
propounding them within the time allowed for serving the succeeding
cross interrogatories.
(c) Effect of taking or using depositions. A party shall not be
deemed to make a person its own witness for any purpose by taking such
person's deposition. The introduction in evidence of the deposition or
any part thereof for any purpose other than that of contradicting or
impeaching the deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the use by any
other party of a deposition as described in paragraph (a)(3) of this
section. At the hearing, any party may rebut any relevent evidence
contained in a deposition whether introduced by it or by any other
party. [Rule 209.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Sec. 502.210 Refusal to comply with orders to answer or produce documents; sanctions; enforcement.
(a) Sanctions for failure to comply with order. If a party or an
officer or duly authorized agent of a party refuses to obey an order
requiring such party to answer designated questions or to produce any
document or other thing for inspection, copying or photographing or to
permit it to be done, the presiding officer may make such orders in
regard to the refusal as are just, and among others, the following:
(1) An order that the matters regarding which the order was made or
any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order;
(2) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting the disobedient
party from introducing designated matters in evidence or an order that
with respect to matters regarding which the order was made or any other
designated fact, inferences will be drawn adverse to the person or party
refusing to obey such order;
[[Page 63]]
(3) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the action
or proceeding or any party thereto, or rendering a judgement by default
against the disobedient party.
(b) Enforcement of orders and subpenas. In the event of refusal to
obey an order or failure to comply with a subpena, 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 subpenas or
orders relating to depositions, written interrogatories, or other
discovery matters shall be taken within twenty (20) days of the date of
refusal to obey or failure to comply. A private party shall advise the
Commission five (5) days (excluding Saturdays, Sundays and legal
holidays) before applying to the court of its intent to seek enforcement
of such supenas and discovery orders.
(c) Persons and documents located in a foreign country. Orders of
the presiding officer directed to persons or documents located in a
foreign country shall become final orders of the Commission unless an
appeal to the Commission is filed within ten (10) days after date of
issuance of such orders 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
motion for leave to appeal is necessary in such instances and no orders
of the presiding officer shall be effective until twenty (20) days from
date of issuance unless the Commission otherwise directs. [Rule 210.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
Subpart M--Briefs; Requests for Findings; Decisions; Exceptions
Sec. 502.221 Briefs; requests for findings.
(a) The presiding officer shall fix the time and manner of filing
briefs and any enlargement of time. The period of time allowed shall be
the same for all parties unless the presiding officer, for good cause
shown, directs otherwise.
(b) Briefs shall be served upon all parties pursuant to subpart H of
this part.
(c) In investigations instituted on the Commission's own motion, the
presiding officer may require the Bureau of Enforcement to file a
request for findings of fact and conclusions within a reasonable time
prior to the filing of briefs. Service of the request shall be in
accordance with the provisions of subpart H of this part.
(d) Unless otherwise ordered by the presiding officer, opening or
initial briefs shall 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.
(e) All briefs shall contain a subject index or table of contents
with page references and a list of authorities cited.
(f) All briefs filed pursuant to this section shall 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 five (5) days
before the time fixed for filing of such a brief or reply. [Rule 221.]
[49 FR 44369, Nov. 6, 1984, as amended at 61 FR 51233, Oct. 1, 1996; 64
FR 7810, Feb. 17, 1999]
Sec. 502.222 Requests for enlargement of time for filing briefs.
Requests for enlargement of time within which to file briefs shall
conform to the requirements of Sec. 502.102. Except for good cause
shown, such requests shall be filed and served pursuant to subpart H of
this part not later than five (5) days before the expiration of the time
fixed for the filing of the briefs. [Rule 222.]
[[Page 64]]
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.]
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
[[Page 65]]
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
five (5) 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]
Sec. 502.228 Request for enlargement of time for filing exceptions and replies thereto.
Requests for enlargement of time within which to file exceptions,
and briefs in support thereof, or replies to exceptions shall conform to
the applicable provisions of Sec. 502.102. Requests for extensions of
these periods will be granted only under exceptional circumstances duly
demonstrated in the request. Except for good cause shown, such requests
shall be filed and served not later than five (5) days before the
expiration of the time fixed for the filing of such documents. 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.]
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
[[Page 66]]
certified to it for initial decision. [Rule 229.]
Sec. 502.230 Reopening by presiding officer or Commission.
(a) Motion to reopen. At any time after the conclusion of a hearing
in a proceeding, but before issuance by the presiding officer of a
recommended or initial decision, any party to the proceeding may file
with the presiding officer a motion to reopen the proceeding for the
purpose of receiving additional evidence. A motion to reopen shall be
served in conformity with the requirements of subpart H and shall set
forth the grounds requiring reopening of the proceeding, including
material changes of fact or of law alleged to have occurred since the
conclusion of the hearing.
(b) Reply. Within ten (10) days following service of a motion to
reopen, any party may reply to such motion.
(c) Reopening by presiding officer. At any time prior to filing his
or her decision, the presiding officer upon his or her own motion may
reopen a proceeding for the reception of further evidence.
(d) Reopening by the Commission. Where a decision has been issued by
the presiding officer or where a decision by the presiding officer has
been omitted, but before issuance of a Commission decision, the
Commission may, after petition and reply in conformity with paragraphs
(a) and (b) of this section, or upon its own motion, reopen a proceeding
for the purpose of taking further evidence.
(e) Remand by the Commission. Nothing contained in this rule shall
preclude the Commission from remanding a proceeding to the presiding
officer for the taking of additional evidence or determining points of
law. [Rule 230.]
[49 FR 44369, Nov. 6, 1984; 49 FR 47394, Dec. 4, 1984]
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 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
[[Page 67]]
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
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. 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's fees in reparation proceedings.
(a) Scope. The Commission shall, upon petition, award the
complainant reasonable attorney's fees directly related to obtaining a
reparations award in any complaint proceeding under section 11 of the
Shipping Act of 1984. For
[[Page 68]]
purposes of this section, ``attorney's fees'' includes 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, and may
include compensation for services rendered the complainant in a related
proceeding in Federal court that is useful and necessary to the
determination of a reparations award in the complaint proceeding.
(b) Content of petitions. Petitons for attorney's fees under this
section shall specify the number of hours claimed by each person
representing the complainant at each identifiable stage of the
proceeding, and shall be supported by evidence of the reasonableness of
hours claimed and the customary fees charged by attorneys and associated
legal representative in the community where the petitioner practices.
Requests for additional compensation must be supported by evidence that
the customary fees for the hours reasonably expended on the case would
result in an unreasonable fee award.
(c) Filing of petition. (1) Petitions for attorney's fees shall be
filed within 30 days of a final reparation award:
(i) With the presiding officer where the presiding officer's
decision awarding reparations became administratively final pursuant to
Sec. 502.227(a)(3) and Sec. 502.304(g); or
(ii) With the Commission, if exceptions were filed to, or the
Commission reviewed, the presiding officer's reparation award decision
pursuant to Sec. 502.227 of this part.
(2) For purposes of this section, a reparation award shall be
considered final after a decision disposing of the merits of a complaint
is issued and the time for the filing of court appeals has run or after
a court appeal has terminated.
(d) Replies to petitions. Within 20 days of filing of the petition,
a reply to the petition may be filed by the respondent, addressing the
reasonableness of any aspect of the petitioner's claim. A respondent may
also suggest adjustments to the claim under the criteria stated in
paragraph (b) of this section.
(e) Ruling on petitions. Upon consideration of a petition and any
reply thereto, the Commission or the presiding officer shall issue an
order stating the total amount of attorney's fees awarded. The order
shall specify the hours and rate of compensation found awardable and
shall explain the basis for any additional adjustments. An award order
shall 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 award
determination, the Commission or presiding officer may hold a hearing on
such issues and extend the time for issuing a fee award order by an
additional 30 days. The Commission or the presiding officer may adopt a
stipulated settlement of attorney's fees.
(f) In cases where the presiding officer issues an award order,
appeal of that order and Commission review of that order in the absence
of appeal shall be governed by the procedures of Sec. 502.227 of this
part. [Rule 254.]
[52 FR 6331, Mar. 3, 1987, as amended at 58 FR 27211, May 7, 1993; 64 FR
7811, Feb. 17, 1999]
[[Page 69]]
Pt. 502, Subpt O, Exh. 1
Pt. 502, Exhibit No. 1 to Subpart O [Sec. 502.252]-- 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 70]]
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 71]]
must also make a similar service and certification with respect to the
common carrier.
(5) Applications must be accompanied by remittance of an $86 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 Complaints, in the Bureau of
Consumer Complaints and Licensing, 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]
Exhibit No. 1 to Subpart Q [Sec. 502.271(d)]-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 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
[[Page 72]]
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 of hearing the testimony of witnesses and receiving documents
and other
[[Page 73]]
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
subpenas 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 subpenas shall be served in the
manner provided in Sec. 502.134. [Rule 286.]
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 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 Settlement
Officer appointed by the Federal Maritime Commission Alternative Dispute
Resolution Specialist, without the necessity of formal proceedings under
the rules of this part. Authority to issue decisions under this subpart
is delegated to the appointed Settlement 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]
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.
[[Page 74]]
(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 Settlement 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 shall be accompanied by remittance of a $68 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 Settlement Officer on the respondent involved.
(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
Settlement 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 Settlement
Officer's decision which shall state the basis upon which the decision
was made. Where appropriate, the Settlement Officer may require that the
respondent publish notice in its tariff of the substance of the
decision. This decison 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 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
[[Page 75]]
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
Settlement Officer, any party may file a petition for reconsideration.
Such petition shall be directed to the Settlement 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 Settlement
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 Settlement
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]
Sec. 502.305 Applicability of other rules of this part.
Except Secs. 502.253 and 502.254 or as otherwise specifically
provided in this subpart, the rules in subparts A through Q, inclusive,
of this part do not apply to situations covered by this subpart. [Rule
305.]
[64 FR 7812, Feb. 17, 1999]
Exhibit No. 1 to Subpart S [Sec. 502.304(a)]--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.
VII. The undersigned authorizes the Settlement 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
_______________________________________________________________________
[[Page 76]]
________________________________________________________________________
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 $10,000 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 Secs. 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]
Exhibit No. 2 to Subpart S [Sec. 502.304(e)]--Respondent's Consent Form
for Informal Adjudication
Federal Maritime Commission, Washington, DC.
Informal Docket No. ______
Respondent's Affidavit
I authorize the Settlement 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]
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
[[Page 77]]
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.]
(b) If the complainant is awarded reparations pursuant to section 11
of the Shipping Act of 1984, attorney's fees shall also be awarded in
accordance with Sec. 502.254 of this part. [Rule 318.]
[49 FR 44369, Nov. 6, 1984, as amended at 52 FR 6332, Mar. 3, 1987]
Sec. 502.319 Date of service and computation of time.
The date of service of documents served by the Commission shall be
that which is shown in the service stamp thereon. The date of service of
documents served by parties shall be the date when the matter served is
mailed or delivered in person, as the case may be. When the period of
time prescribed or allowed is ten (10) days or less, intermediate
Saturdays, Sundays, and holidays shall be excluded from the computation.
[Rule 319.]
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
[[Page 78]]
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.
Except as specifically provided in this part, rules in subparts A
through Q, inclusive, of this part do not apply to situations covered by
this subpart. [Rule 321.]
[64 FR 7812, Feb. 17, 1999]
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 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 Bureau of Consumer
Complaints and Licensing 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.
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).
[[Page 79]]
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;
(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.
[[Page 80]]
(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 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
[[Page 81]]
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 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 five 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.
[[Page 82]]
(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, whichever date is later, unless the parties agree to
some other time limit.
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
[[Page 83]]
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 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
[[Page 84]]
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 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
[[Page 85]]
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 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
[[Page 86]]
the exhibit shall be disposed of in accordance with the Commission's
established procedures under the Freedom of Information Act under
Secs. 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.
(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
[[Page 87]]
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 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
[[Page 88]]
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 section 19 of the Merchant Marine Act, 1920, section 13 of the
Shipping Act of 1984, and sections 2(c) and 3(c) of Pub. L. 89-777 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]
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(6)(d), 19(7)(d)
and 19(11) of the Merchant Marine Act, 1920; any provision of the
Shipping Act of 1984; sections 2 and 3 of Pub. L. 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 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]
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
[[Page 89]]
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 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; 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
[[Page 90]]
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 compromise authority set
forth in this subpart is delegated to the Director, Bureau of
Enforcement. [Rule 604.]
[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]
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]
Appendix A to Subpart W--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]
[[Page 91]]
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 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 Statement of policy.
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 at the Office of the Secretary.
503.23 Records available upon written request.
503.24 Information available via the internet.
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--Fees
503.41 Policy and services available.
503.42 Payment of fees and charges.
503.43 Fees for services.
Subpart F--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 G--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 H--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.
[[Page 92]]
503.80 Procedures for withholding information pertaining to meeting.
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. 552, 552a, 552b, 553; 31 U.S.C. 9701; E.O. 12958
of April 20, 1995 (60 FR 19825), sections 5.2(a) and (b).
Source: 49 FR 44401, Nov. 6, 1984, unless otherwise noted.
Subpart A--General
Sec. 503.1 Statement of policy.
(a) The Chairman of the Federal Maritime Commission is responsible
for the effective administration of the provisions of Public Law 89-487,
as amended. The Chairman shall carry out this responsibility through the
program and the officials as hereinafter provided in this part.
(b) In addition, the Chairman, pursuant to his responsibility,
hereby directs that every effort be expended to facilitate the maximum
expedited service to the public with respect to the obtaining of
information and records. Accordingly, members of the public may make
requests for information, records, decisions or submittals in accordance
with the provisions of Sec. 503.31.
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 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]
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.
Sec. 503.21 Mandatory public records.
(a) The Commission, as required by the Freedom of Information Act, 5
U.S.C. 552, shall make the following materials available for public
inspection and copying:
(1) Final opinions (including concurring and dissenting opinions)
and all
[[Page 93]]
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 and copying a current 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) The index shall be available at the Office of the Secretary,
Federal Maritime Commission, Washington, DC 20573. Publication of such
indices has been determined by the Commission to be unnecessary and
impracticable. The indices shall, nonetheless, be provided to any member
of the public at a cost not in excess of the direct cost of duplication
of any such index upon request therefor.
(2) 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 indexed and either made available or published as
provided by this subpart; or
(ii) That private party shall have actual and timely notice of the
terms thereof.
(d) Duplication of records may be subject to fees as prescribed in
subpart E of this part.
Sec. 503.22 Records available at the Office of the Secretary
(a) The following records will be made available for inspection and
copying at the Office of the Secretary, Federal Maritime Commission, 800
North Capitol St., NW, Washington, DC 20573, without the requirement of
a written request. Access to requested records may be delayed if they
have been sent to archives.
(1) Proposed and final rules and regulations of the Commission
including general substantive rules, statements of policy and
interpretations, and rules of practice and procedure.
(2) Reports of decisions (including concurring and dissenting
opinions), orders and notices in all formal proceedings.
(3) Official docket files in all formal proceedings including, but
not limited to, orders, notices, pertinent correspondence, transcripts,
exhibits, and briefs, except for materials which are the subject of a
protective order. Copies of transcripts may only be available from the
reporting company contracted by the Commission. Contact the Office of
the Secretary for the name and address of this company.
(4) News releases.
(5) 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.
(6) Annual reports of the Commission.
(b) Certain fees may be assessed for duplication of records made
available
[[Page 94]]
by this section as prescribed in subpart E of this part.
[63 FR 53308, Oct. 5, 1998, as amended at 64 FR 23547, May 3, 1999]