Commission's Rules of Practice and Procedure; Practice Before the Commission, Parties to Proceedings, and Rulemakings, 45068-45071 [2013-17953]

Agencies

• Federal Maritime Commission

[Federal Register Volume 78, Number 144 (Friday, July 26, 2013)]
[Rules and Regulations]
[Pages 45068-45071]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17953]


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FEDERAL MARITIME COMMISSION

46 CFR Part 502

[Docket No. 13-06]
RIN 3072-AC52


Commission's Rules of Practice and Procedure; Practice Before the 
Commission, Parties to Proceedings, and Rulemakings

AGENCY: Federal Maritime Commission.

ACTION: Final rule.

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SUMMARY: The Federal Maritime Commission (FMC or Commission) amends its 
Rules of Practice and Procedure regarding practice before the 
Commission, parties to proceedings, and rulemakings, to update, 
clarify, and reduce the burden on parties to proceedings before the 
Commission.

DATES: Effective: July 29, 2013.

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

SUPPLEMENTARY INFORMATION: The Commission's Rules of Practice and 
Procedure, 46 CFR Part 502, govern procedures before the Commission. 46 
CFR 502.1-502.991. The rules are in place to secure just, speedy, and 
inexpensive resolution of proceedings before the Commission. The 
Commission is engaged in an ongoing process of reviewing its rules of 
practice and revising those that are outdated, unclear, or unduly 
burdensome. This effort resulted in revision to Subpart A to modernize 
and clarify general filing requirements effective February 24, 2011, 
and amendments to Subparts E and L, effective November 12, 2012. See 76 
FR 10258, Feb. 24, 2011 and 77 FR 61519, Oct. 10, 2012. As part of this 
continuing process, the Commission has determined to amend Subparts B, 
C, D, and certain additional sections in E. The amendments include 
transferring certain rules from one subpart to another without change 
in substance to better reflect the subject matter addressed by existing 
subparts. The amendments also include revisions for purposes of 
clarification, modernization, or to reflect current practice, 
technical, non-substantive changes to effect renumbering and removal of 
rules, as well as correction of some typographical errors in the rules.
    A description of the more significant changes follows:

Section 502.25--Presiding Officer

    The Final Rule restates the presiding officer's authority presently 
contained in Subpart J Sec.  502.147 and includes in separate 
paragraphs the provisions presently found in Sec. Sec.  502.145, 146, 
and 149. The Commission has determined that provisions related to the 
presiding officer's authority and functions are more appropriately 
described in proximity to the definition of the presiding officer in 
``Subpart B--Appearance and Practice Before the Commission.'' 
Subheadings are added describing the presiding officer's authority for 
ease of reference without change in substance of the enumerated powers. 
Current Sec.  502.148 governing the consolidation of proceedings is 
moved and restated in a new Sec.  502.79 in Subpart E governing 
proceedings.

Section 502.27--Persons Not Attorneys at Law

    Section 502.27 is amended to streamline the Commission's rules 
regarding practice before the Commission by persons who are not 
admitted to the practice of law by a State bar. The rule is updated to 
provide that the application for admission may be obtained on-line or 
from the Secretary. The provisions previously found in Sections 502.29 
and 502.30 governing a non-attorney's qualifications for admission to 
practice, to continue representing others after admission, and the 
right to a hearing in the event of denial of admission, suspension, or 
disbarment are folded into this section for clarity.

Exhibit No. 1 to Subpart B [Sec. Sec.  502.23, 502.26, 502.27] of Part 
502--Notice of Appearance

    Exhibit No. 1 to Subpart B, a sample format for a Notice of 
Appearance, is amended to request an indication of authority for 
representation, and to allow for selection of technologically current 
methods of service of notices and orders in proceedings. The revised 
form is consistent with current Commission practice.

Section 502.41--Parties; How Designated

    Section 502.41 of Subpart C is revised to add to the term ``party'' 
a unit of a government agency representing such agency. It also 
reflects the current citations of other rules that were renumbered by 
prior amendments.

Section 502.42--Bureau of Enforcement

    Section 502.42 is amended to simplify the language describing when 
the Bureau of Enforcement may become a party to proceedings.

Section 502.43--Substitution of Parties

    Section 502.43 is modified to harmonize the language of the Federal 
Rules of Civil Procedure.

Section 502.44--Necessary and Proper Parties in Certain Complaint 
Proceedings

    Section 502.44 is eliminated as unnecessary.

Subpart D--Rulemaking

    Language in Sec. Sec.  502.52, 502.53, 502.54, and 502.55 is 
revised for clarity. The requirement that service on prior participants 
be made when submitting comments or replies beyond the initial round in 
proposed rulemaking proceedings, also found in Sec.  502.114, is 
reiterated in Sec.  502.57

[[Page 45069]]

Subpart E, Section 502.79--Consolidation of Proceedings

    New Sec.  502.79 restates the language of current Sec.  502.148 
authorizing the consolidation of proceedings involving substantially 
the same issues. The Commission has determined that this provision is 
more appropriately stated in Subpart E, governing proceedings.

Section 502.201(h)--Duty To Disclose; General Provisions Governing 
Discovery

    Section 502.201(h) is amended to make the timing of the parties' 
conference consistent with the requirements of Sec.  502.64. It also 
corrects a typographical error with respect to the discovery period 
which was changed to 150 days effective November 12, 2012.
    These amendments affect only the Commission's Rules of Practice and 
Procedure and, as such, are not subject to the general notice of 
proposed rulemaking requirements of the Administrative Procedure Act, 5 
U.S.C. 553(b)(A). The Commission has determined to publish the 
amendments as a final rule. Therefore, this final rule is not subject 
to the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.
    This Final Rule is not a ``major rule'' under 5 U.S.C. 804(2).

List of Subjects in 46 CFR Part 502

    Administrative practice and procedure, Claims, Equal access to 
justice, Investigations, Lawyers, Maritime carriers, Penalties, 
Reporting and recordkeeping requirements.

    For the reasons stated in the SUPPLEMENTARY INFORMATION, the 
Federal Maritime Commission amends 46 CFR part 502 as follows.

PART 502--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 502 is revised to read as follows:

    Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 
571-596; 5 U.S.C. 571-584; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 
U.S.C. 9701; 46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 
40701-40706, 41101-41109, 41301-41309, 44101-44106; E.O. 11222 of 
May 8, 1965.


0
2. Amend Sec.  502.21 by revising the heading of paragraph (b), and by 
revising paragraph (c) to read as follows:


Sec.  502.21  Appearance.

* * * * *
    (b) Non-parties. * * *
    (c) Special appearance. An appearance may be either general, that 
is, without reservation, or it may be special, that is, confined to a 
particular issue or question. A person who desires to appear specially 
must expressly so state when entering the appearance, and, at that 
time, shall also state the questions or issues to which the appearance 
is confined; otherwise the appearance will be considered general. [Rule 
21.]

0
3. Amend Sec.  502.23 by revising paragraphs (a), (c), and (d), and 
adding paragraph (e), to read as follows:


Sec.  502.23  Notice of appearance; substitution and withdrawal of 
representative.

    (a) Upon filing of a complaint instituting proceedings or filing of 
an answer to an order or complaint, the party filing shall notify the 
Commission of the name(s), address(es), telephone number(s), and email 
address(es) of the person or persons who will represent the party in 
the pending proceeding. Each person who appears in a representative 
capacity in a proceeding must deliver a written notice of appearance to 
the Secretary stating for whom the appearance is made. Such notice must 
indicate whether the representative wishes to be notified of notices, 
orders and decisions by either email or facsimile transmission. All 
appearances shall be noted in the record. Motions for leave to 
intervene must indicate the name(s), address(es), telephone number(s), 
and email address(es) of the person or persons who will represent the 
intervenor in the pending proceeding if the motion is granted.
* * * * *
    (c) An attorney must represent in the Notice of Appearance that he 
is admitted to practice and in good standing. A non-attorney must 
describe his or her authority to act in such capacity.
    (d) If an attorney or other representative of record is superseded, 
there shall be filed a stipulation of substitution signed both by the 
attorney(s) or representative(s) and by the party, or a written notice 
from the party to the Commission with a Notice of Appearance included. 
Substitution of counsel or representative will not, by itself, be 
considered good cause for delaying a proceeding.
    (e) If an attorney wishes to withdraw from representing a party, 
and written consent is not obtained, or if the party is not otherwise 
represented, the withdrawing attorney shall file an appropriate motion 
seeking permission to withdraw and provide appropriate reasons for 
making the motion. Such motion will be decided in consideration of the 
factors and standards set forth in Rule 1.16 of the American Bar 
Association's Model Rules of Professional Conduct and by the courts. 
[Rule 23.]

0
4. Revise Sec.  502.25 to read as follows:


Sec.  502.25  Presiding officer.

    (a) Definition. Presiding officer includes, where applicable, one 
or more members of the Commission or an administrative law judge.
    (b) Functions and powers. The officer designated to hear a case 
shall have the following powers:
    (1) Notices of hearing, subpoenas, depositions, pleadings and scope 
of proceedings. To arrange and give notice of hearing; sign and issue 
subpoenas authorized by law; take or cause depositions to be taken; 
rule upon proposed amendments or supplements to pleadings; and, 
delineate the scope of a proceeding instituted by order of the 
Commission by amending, modifying, clarifying, or interpreting said 
order.
    (2) Alternative means of dispute resolution and conferences for 
settlement or simplification of issues. To inform the parties as to the 
availability of one or more alternative means of dispute resolution, 
encourage use of such methods, and require consideration of their use 
at an early state of the proceeding; hold conferences for the 
settlement or simplification of the issues by consent of the parties or 
by the use of alternative means of dispute resolution; transmit the 
request of parties for the appointment of a mediator or settlement 
judge, as provided by Sec.  502.91; and require the attendance at any 
such conference pursuant to 5 U.S.C 556(c)(8), of at least one 
representative of each party who has authority to negotiate concerning 
resolution of issues in controversy.
    (3) Hearings, evidence, procedural requests, motions, oaths and 
affirmations, and witnesses. To regulate the course of a hearing; 
prescribe the order in which evidence shall be presented; dispose of 
procedural requests or similar matters; hear and rule upon motions; 
administer oaths and affirmations; examine witnesses; direct witnesses 
to testify or produce evidence available to them; rule upon offers of 
proof and receive relevant, material, reliable, and probative evidence; 
act upon motions to intervene; permit submission of facts, arguments, 
offers of settlement, and proposals of adjustment; and, if the parties 
so request, issue formal opinions providing tentative evaluations of 
the evidence submitted; hear oral argument at the close of the 
testimony.
    (4) Time management and other matters. To fix the time for filing 
briefs, motions, and other documents to be

[[Page 45070]]

filed in connection with hearings and the administrative law judge's 
decision thereon, except as otherwise provided by the rules in this 
part; act upon petitions for enlargement of time to file such 
documents, including answers to formal complaints; and dispose of any 
other matter that normally and properly arises in the course of 
proceedings.
    (5) Exclusion of persons from a hearing. To exclude any person from 
a hearing for disrespectful, disorderly, or inappropriate language or 
conduct.
    (c) Functions and powers pursuant to Reorganization Plan No. 7 of 
1961. All of the functions delegated in subparts A to Q and subpart T 
of this part, inclusive, to the Chief Judge, presiding officer, or 
administrative law judge include the functions with respect to hearing, 
determining, ordering, certifying, reporting, or otherwise acting as to 
any work, business, or matter, pursuant to the provisions of section 
105 of Reorganization Plan No. 7 of 1961. [Rule 147.]
    (d) Designation of administrative law judge. An administrative law 
judge will be designated by the Chief Administrative Law Judge to 
preside at hearings required by statute, in rotation so far as 
practicable, unless the Commission or one or more members thereof shall 
preside, and will also preside at hearings not required by statute when 
designated to do so by the Commission.
    (e) Attachment of functions. In proceedings handled by the Office 
of Administrative Law Judges, its functions shall attach:
    (1) Upon the service by the Commission of a Notice of Filing of 
Complaint and Assignment of complaint filed pursuant to Sec.  502.62, 
or Sec.  502.182, or upon referral under subpart T of this part; or
    (2) Upon reference by the Commission of a petition for a 
declaratory order pursuant to Sec.  502.68; or
    (3) Upon forwarding for assignment by the Office of the Secretary 
of a special docket application pursuant to Sec.  502.271; or
    (4) Upon the initiation of a proceeding and ordering of hearing 
before an administrative law judge pursuant to Sec.  502.63.
    (f) Unavailability. If the presiding officer assigned to a 
proceeding becomes unavailable, the Commission, or Chief Judge (if such 
presiding officer was an administrative law judge), shall designate a 
qualified officer to take his or her place. Any motion predicated upon 
the substitution of a new presiding officer for one originally 
designated shall be made within ten (10) days after notice of such 
substitution.
    (g) Disqualification of presiding or participating officer. Any 
presiding or participating officer may at any time withdraw if he or 
she deems himself or herself disqualified, in which case there will be 
designated another presiding officer. If a party to a proceeding, or 
its representative, files a timely and sufficient affidavit of personal 
bias or disqualification of a presiding or participating officer, the 
Commission will determine the matter as a part of the record and 
decision in the case. [Rule 25.]

0
5. Amend Sec.  502.26 by removing ``An attorney must represent in 
writing, filed with the Secretary, that he is admitted to practice and 
in good standing.''
0
6. Amend Sec.  502.27 by revising paragraphs (a)(2), (b) and (c), and 
adding paragraphs (a)(3), (d) and (e) to read as follows:


Sec.  502.27  Persons not attorneys at law.

    (a) * * *
    (2) The application for admission to practice before the Commission 
by persons not attorneys at law can be downloaded from the Commission's 
Web site, www.fmc.gov, or acquired from the Secretary of the Commission 
and must be accompanied by a fee as required by Sec.  503.43(e) of this 
chapter. The application should be sent to the Federal Maritime 
Commission, Washington, DC 20573.
    (3) All applicants must complete the following certification:
    I. -- (Name) --, certify under penalty of perjury under the laws of 
the United States, that I have not been convicted, after September 1, 
1989, of any Federal or State offense involving the distribution or 
possession of a controlled substance, or that if I have been so 
convicted, I am not ineligible to receive Federal benefits, either by 
court order or operation of law, pursuant to 21 U.S.C. 862.
    (b) The Commission, in its discretion, may call upon the applicant 
for a full statement of the nature and extent of his or her 
qualifications. If the Commission is not satisfied as to the 
sufficiency of the applicant's qualifications, it will so notify him or 
her by registered mail, whereupon he or she shall be granted a hearing 
upon request for the purpose of showing his or her qualifications. If 
the applicant presents to the Commission no request for such hearing 
within twenty (20) days after receiving the notification above referred 
to, his or her application shall be acted upon without further notice.
    (c) The Commission may deny admission to, suspend, or prohibit any 
person from practice before the Commission who it finds does not 
possess the requisite qualifications to represent others or is lacking 
in character, integrity, or proper professional conduct. Non-attorneys 
who have been admitted to practice before the Commission may be 
excluded from such practice only after being afforded an opportunity to 
be heard.
    (d) A non-attorney may not practice before the Commission unless 
and until an application has been approved.
    (e) Paragraph (d) of this section shall not apply, however, to any 
person who appears before the Commission on his or her own behalf or on 
behalf of any corporation, partnership, or association of which he or 
she is a partner, officer, or regular employee. [Rule 27.]


Sec.  502.29  [Removed and Reserved]

0
7. Remove and reserve Sec.  502.29.


Sec.  502.30  [Removed and Reserved]

0
8. Remove and reserve Sec.  502.30.
0
9. Revise Exhibit No. 1 to Subpart B of Part 502 to read as follows:

Exhibit No. 1 to Subpart B [Sec. Sec.  502.23, 502.26, 502.27] of 
Part 502--Notice of Appearance

Federal Maritime Commission

    Docket No. --------:
    Please enter my appearance in this proceeding as counsel for ------
--.
    Indicate authority for representation [choose one of the 
following]:
    ---- I am an attorney admitted to practice and in good standing 
before the courts of the State of --------.
    ---- I am admitted to practice before the Commission pursuant to 46 
C.F.R. 502.27.
    ---- I am an officer, director, or regular employee of the party.
    I request to be informed of service of notices, orders and 
decisions in this proceeding by [choose one of the following]:
[ ] electronic mail
[ ] facsimile transmission
[ ] regular mail
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[Name]
-----------------------------------------------------------------------
[Address]
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[Telephone No.]
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[Fax No.]
-----------------------------------------------------------------------
[Email address]
-----------------------------------------------------------------------
[Signature]

0
10. Revise Sec.  502.41 to read as follows:


Sec.  502.41  Parties; how designated.

    The term ``party,'' whenever used in this part, includes any 
natural person, corporation, association, firm,

[[Page 45071]]

partnership, trustee, receiver, agency, public or private organization, 
government agency, or unit thereof representing said agency. A party 
who files a complaint under Sec.  502.62 shall be designated as 
``complainant.'' A party against whom relief or other affirmative 
action is sought in a proceeding commenced under Sec.  502.62 or Sec.  
502.73 or a party named in an order of investigation issued by the 
Commission shall be designated as ``respondent,'' except that in 
investigations instituted under section 11(c) of the Shipping Act of 
1984, 46 U.S.C. 41302(a)-(b), 41307(b), the parties to the agreement 
shall be designated as ``proponents'' and the parties protesting the 
agreement shall be designated as ``protestants.'' A person who has been 
permitted to intervene under Sec.  502.68 shall be designated as 
``intervenor.'' All parties and persons designated in this section 
shall be parties to the proceeding. No person other than a party or its 
representative may introduce evidence or examine witnesses at hearings. 
[Rule 41].

0
11. Revise Sec.  502.42 to read as follows:


Sec.  502.42  Bureau of Enforcement.

    The Bureau of Enforcement shall be a party to proceedings upon 
designation by the Commission or upon leave to intervene granted 
pursuant to Sec.  502.68. The Bureau's representative shall be served 
with copies of all papers, pleadings, and documents in every proceeding 
in which the Bureau is a party. The Bureau shall actively participate 
in any proceeding to which it is a party, to the extent required in the 
public interest, subject to the separation of functions required by 
section 5(c) of the Administrative Procedure Act. [Rule 42]

0
12. Revise Sec.  502.43 to read as follows:


Sec.  502.43  Substitution of parties.

    The Commission or presiding officer may order an appropriate 
substitution of parties in the event of a party's death, incompetence, 
transfer of its interest, or other appropriate circumstance. [Rule 43]


Sec.  502.29  [Removed and Reserved]

0
13. Remove Sec.  502.44.
0
14. Revise Sec.  502.52(b) to read as follows:


Sec.  502.52  Notice of proposed rulemaking.

* * * * *
    (b) Except where notice or hearing is required by statute, 
paragraph (a) of this section shall not apply to interpretative rules, 
general statements of policy, rules of agency organization, procedure, 
or practice of the Commission, or when the Commission for good cause 
finds (and incorporates the findings and a brief statement of reasons 
therefor in the rules issued) that notice and public procedure are 
impracticable, unnecessary, or contrary to the public interest. [Rule 
52]

0
15. Amend Sec.  502.53 as follows:
0
a. Amend paragraph (a) by removing ``to present the same orally in any 
manner'' and adding ``for oral presentation'' in its place;
0
b. Amend paragraph (b) by adding ``rulemaking'' in between ``In those'' 
and ``proceedings''; and
0
c. Add a new paragraph (c) to read as follows.


Sec.  502.53  Participation in rulemaking.

* * * * *
    (c) Where a formal hearing is held in a rulemaking proceeding, 
interested persons will be afforded an opportunity to participate 
through submission of relevant, material, reliable, and probative 
written evidence properly verified, except that such evidence submitted 
by persons not present at the hearing will not be made a part of the 
record if objected to by any party on the ground that the person who 
submits the evidence is not present for cross-examination.

0
16. Revise Sec.  502.54 to read as follows:


Sec.  502.54  Contents of rules.

    The Commission will incorporate in any publication of proposed or 
final rules a concise and general statement of their basis and purpose. 
[Rule 54.]

0
16. Revise Sec.  502.55 to read as follows:


Sec.  502.55  Effective date of rules.

    The publication or service of any substantive rule shall be made 
not less than thirty (30) days prior to its effective date except:
    (a) As otherwise provided by the Commission for good cause found 
that notice and public procedure thereon are impractical, unnecessary, 
or contrary to the public interest;
    (b) In the case of rules granting or recognizing exemption or 
relieving restriction; interpretative rules; or statements of policy.
    (c) Interpretive rules, general statements of policy, or rules of 
agency organization, procedure, or practice. [Rule 55.]

0
17. Add new Sec.  502.57 to subpart D to read as follows:


Sec.  502.57  Service by parties of pleadings and other documents.

    Service on all prior commenters must be shown when submitting 
comments or replies beyond the initial round on a notice of proposed 
rulemaking. A list of all participants may be obtained from the 
Secretary of the Commission.

0
18. Add new Sec.  502.79 to subpart E to read as follows:


Sec.  502.79  Consolidation of proceedings.

    The Commission or the Chief Administrative Law Judge (or designee) 
may order two or more proceedings which involve substantially the same 
issues consolidated and heard together.


Sec. Sec.  502.145-502.149   [Removed and Reserved]

0
19. Remove and reserve Sec.  502.145-Sec.  502.149.


Sec.  502.201  [Amended]

0
20. Amend Sec.  502.201(h) by removing ``14 days,'' and adding ``15 
days'' in its place, and removing ``120-day,'' and adding ``150-day'' 
in its place.

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2013-17953 Filed 7-25-13; 8:45 am]
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