Rules of Practice and Procedure, 19022-19023 [2011-8204]

Agencies

• Federal Maritime Commission

[Federal Register Volume 76, Number 66 (Wednesday, April 6, 2011)]
[Proposed Rules]
[Pages 19022-19023]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8204]


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FEDERAL MARITIME COMMISSION

46 CFR Part 502

[Docket No. 11-05]
RIN 3072-AC43


Rules of Practice and Procedure

AGENCY: Federal Maritime Commission.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The Federal Maritime Commission (FMC or Commission) is seeking 
comments on possible amendments to its Rules of Practice and Procedure 
to update and clarify its rules, and to reduce the burden on parties to 
proceedings before the Commission.

DATES: Submit comments on or before May 6, 2011.

ADDRESSES: Address all comments concerning this advance notice of 
proposed rulemaking to Karen V. Gregory, Secretary, Federal Maritime 
Commission, 800 North Capitol Street, NW., Washington, DC 20573-0001. 
Submit electronic comments to secretary@fmc.gov.

FOR FURTHER INFORMATION CONTACT: Karen V. Gregory, Secretary, Federal 
Maritime Commission, 800 North Capitol Street, NW., Washington, DC 
20573-0001, Tel.: (202) 523-5725. E-mail: secretary@fmc.gov. Rebecca A. 
Fenneman, General Counsel, Federal Maritime Commission, 800 North 
Capitol Street, NW., Washington, DC 20573-0001, Tel.: (202) 523-5740. 
E-mail: generalcounsel@fmc.gov.

SUPPLEMENTARY INFORMATION: The Commission proposes to amend part 502 of 
title 46 of the Code of Federal Regulations to update and improve its 
Rules of Practice and Procedure, 46 CFR part 502. The rules in 46 CFR 
502.1-502.991 are designed to secure just, speedy, and inexpensive 
resolution of proceedings before the Commission. On February 24, 2011, 
certain changes to subparts A, H, I, S, and T of part 502 were 
published in the Federal Register, 76 FR 10258 (February 24, 2011) and 
are now in effect. The Commission intends to update and revise the rest 
of its Rules of Practice and Procedure. By this advance notice, it 
seeks public comment addressing existing rules that should be updated 
to reflect current practices and technologies, or could be improved to 
bring about more efficient and user-friendly procedures. Following 
receipt and consideration of comments, the Commission intends to issue 
specific proposed rules in a Notice of Proposed Rulemaking and solicit 
additional public comment on its proposal.

A. Modernization and Efficiency Enhancement

    The Commission proposes to amend and update any rules in part 502 
that may be appropriate in order to improve their effectiveness and 
enhance administrative efficiency, both in use of material and human 
resources. In line with this goal, the recent revision to subpart A 
requests all filings to be submitted in electronic PDF format, as well 
as paper. This first step towards accepting documents in electronic 
form will give the Commission an opportunity to develop new internal 
procedures that reduce paper and staff time. The Commission is 
interested in suggestions and information from the public regarding 
electronic filing and docket systems they have used and found most 
efficient and user-friendly. The Commission intends to make the best 
use of electronic resources currently at its disposal and recognizes 
the importance of electronic communications.
    The Commission contemplates editorial revisions to clarify language 
as well as substantive changes to make the rules more effective and 
efficient for the industry and the Commission. All procedural rules are 
being examined for possible revision. At the outset, some of the 
initial candidates for change are: qualification of non-attorney 
practitioners, 46 CFR 502.27; content of filed complaints and answers, 
46 CFR 502.62-502.64; intervention by the Bureau of Enforcement in 
complaint proceedings, 46 CFR 502.42; rules governing computation of 
time, time of filing, and enlargements of time, 46 CFR subpart G; 
hearing procedures, 46 CFR subpart J; requirements for filing briefs, 
including the time periods for filing exceptions, page limits, and 
contents, 46 CFR subpart M; and the functions and authorities of the 
presiding officer in proceedings. Consideration will also be given to 
the possible addition of rules for the use of summary judgment in 
proceedings; voluntary and involuntary dismissal of complaints in line 
with the Federal Rules of Civil Procedure (FRCP); and the use of cross-
claims and third-party complaints in Commission proceedings.
    Additionally, the Commission seeks comment on whether it should 
amend its rules on filing and service of documents. Several federal 
agencies now require physical receipt of documents to meet filing and/
or service deadlines. Currently the Commission's rule provides that 
``the date of filing shall be either the date on which the pleading, 
document, or paper is physically delivered to the Commission

[[Page 19023]]

by a party, the date on which a party certifies it to have been 
deposited in the mail or delivered to a courier, or the date of email 
transmission.'' 46 CFR 502.2(b) (previously 46 CFR 114(c)).
    The Commission also seeks comment on the possible applicability of 
the FRCP to proceedings before the Commission consistent with its 
responsibilities under the Administrative Procedure Act. 5 U.S.C. 551-
559. The Commission's rules currently provide that the FRCP will apply 
in situations that are not covered by a specific Commission rule to the 
extent the federal rules are consistent with sound administrative 
practice. 46 CFR 502.12. The presiding officer also has discretion to 
waive any rules ``to prevent undue hardship, manifest injustice, or if 
the expeditious conduct of business so requires.'' 46 CFR 502.10. The 
Commission desires to ensure that procedures are consistent with modern 
practice while giving due regard to limitations on its resources and 
the nuances of its own procedures and requirements.

B. Modernization of Discovery Rules

    The Shipping Act of 1984 provides: ``In an investigation or 
adjudicatory proceeding under this part--* * * (2) a party may use 
depositions, written interrogatories, and discovery procedures under 
regulations prescribed by the Commission that, to the extent 
practicable, shall conform to the Federal Rules of Civil Procedure (28 
App. U.S.C.).'' 46 U.S.C. 41303(a). In 1984, the Commission promulgated 
discovery rules based primarily on the federal rules as they then 
existed. 49 FR 44369 (November 6, 1984). The Commission also 
promulgated minor amendments to Rule 201 in 1999 and Rule 203 in 1993, 
but in all other respects the rules are unchanged since 1984. The 
Commission's discovery rules are set forth in 46 CFR subpart L.
    The Federal rules regulating discovery have been amended many times 
since 1984. Some amendments concerned matters that hardly existed in 
1984, such as electronic discovery. FRCP 26, 34. Other amendments 
altered established discovery procedures, including the scope of 
discovery (compare FRCP 26(b)(1) with 46 CFR 502.201(h)); the 
requirement to provide initial disclosures, including identification of 
expert witnesses (FRCP 26(a)); procedures for claiming privilege or 
protecting trial-preparation materials (FRCP 26(b)(5)); a limitation of 
number (FRCP 30(a)(2)) and conduct of depositions (FRCP 30(d)); and a 
limitation on the number of interrogatories (FRCP 33(a)(1)). The 
thirty-day period to respond to interrogatories and requests for 
production of documents that existed in the FRCP in 1984 was not 
included in the Commission's rules.
    The Commission seeks public comments on whether to revise its 
discovery rules to conform more closely to the FRCP as they are 
formulated today. The Commission believes that to achieve the optimum 
result, any revision should consider the views of the parties and 
attorneys who would be subject to the revised rules. Therefore, it 
seeks their views through this advance notice of proposed rulemaking.
    Interested parties may address the following questions or other 
concerns:
    1. What specific problems, if any, have you experienced with the 
Commission's current rules of discovery?
    2. What specific problems, if any, would you foresee if the 
Commission were to adopt particular provisions of the discovery rules 
as they currently exist in the FRCP, giving due regard to the 
differences in the nature of the proceedings and practice before the 
federal courts and before the Commission?

C. Informal Docket or Small Claims Procedures

    Subpart S of the Commission's rules, 46 CFR 502.301-502.305, 
governs informal procedures for adjudication of small claims. These 
procedures were established for use by complainants when the amount in 
controversy is $50,000 or less. In those cases, an appointed settlement 
officer will make a decision without necessity of formal proceedings. A 
complainant may request a Subpart S proceeding, but a respondent can 
elect not to consent to such proceeding. If a respondent does not 
consent, the matter will be heard by an administrative law judge under 
Subpart T, Formal Procedure for Adjudication of Small Claims.
    The Commission is seeking comment on Subpart S proceedings, in 
particular as to: effecting service when parties make themselves 
unavailable for service of claims and decisions, or become unreachable 
after initially participating in a proceeding; dismissal of claims if 
service on the respondent cannot be achieved; and if the Commission's 
rules on ex parte communications, 46 CFR 502.11, should apply to 
Informal Docket proceedings. The Commission is particularly interested 
in commenters' experience with small claims procedures used by other 
government entities that the Commission might use as guidance when 
amending its own rules.
    The Commission will be able to better consider whether and how its 
Rules of Practice and Procedure should be amended if commenters provide 
specific examples regarding the current rules and possible improvement 
of the rules. Commenters transmitting comments by e-mail should 
indicate ``FMC 502 ANPR'' in the subject line of the e-mail. All e-mail 
comments should be sent to secretary@fmc.gov.

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2011-8204 Filed 4-5-11; 8:45 am]
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