Rules of Practice and Procedure; Presentation of Evidence in Commission Proceedings, 93831-93840 [2016-30745]

Download as PDF Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations Authorities (AAPA) that addressed proposed § 502.204, revising and renumbering § 502.156. Current § 502.156 states ‘‘[u]nless inconsistent with the requirements of the Administrative Procedure Act and these Rules, the Federal Rules of Evidence . . . will also be applicable.’’ As explained in the NPRM, the proposed revision is intended to simplify the Parts per Expiration date language in the rule by restating the Commodity million liberal Administrative Procedure Act (APA) standard for admissibility and Apple ................. 0.5 12/31/2018 Avocado ............ 0.50 12/31/2019 also to provide that the presiding officer Nectarine .......... 0.5 12/31/2018 may continue to look to the Federal Peach ................ 0.5 12/31/2018 Rules of Evidence (FRE) for guidance. Pomegranate .... 0.50 12/31/2019 The Commission adopted the original language in § 502.156 in 1976, shortly * * * * * after the FRE went into effect. 41 FR [FR Doc. 2016–29882 Filed 12–21–16; 8:45 am] 20585, 20588 (May 19, 1976). In the BILLING CODE 6560–50–P 1975 notice proposing the language the Commission asserted that, as a general matter, the FRE did not appear to be inconsistent with the APA and that the FEDERAL MARITIME COMMISSION FRE could be of great use to the 46 CFR Part 502 Commission’s administrative law judges (ALJs) in disposing of evidentiary issues [Docket No. 16–08] that arise in Commission proceedings, so long as they were consistent with the RIN 3072–AC64 requirements of the APA. 40 FR 43295, Rules of Practice and Procedure; 43927 (Sep. 24, 1975). Since Presentation of Evidence in promulgation of the section, however, Commission Proceedings the Commission ‘‘has recognized the liberal standards of admissibility of AGENCY: Federal Maritime Commission. evidence in administrative proceedings ACTION: Final rule and has repeatedly ‘. . . identified the need for considerable relaxation of the SUMMARY: The Federal Maritime rules of evidence followed by the Commission is reorganizing several federal courts in proceedings before the subparts of its Rules of Practice and Commission.’ ’’ EuroUSA Shipping, Inc., Procedure and revising its rules Tober Group, Inc.—Possible Violations, regarding presentation of evidence in 31 S.R.R. 540, 547 (FMC 2008) Commission proceedings. (hereinafter Tober) (quoting Pacific DATES: Effective January 27, 2016. Champion Express Co., Ltd.—Possible FOR FURTHER INFORMATION CONTACT: Violations, 28 S.R.R. 1102, 1105–06 Rachel E. Dickon, Assistant Secretary, (ALJ 1999)). Given the divergence Federal Maritime Commission, 800 between the FRE and APA standards, North Capitol Street NW., Washington, the current section’s attempt to apply DC 20573–0001. Phone: (202) 523–5725. both standards simultaneously creates a Email: secretary@fmc.gov. tension in the regulation and could be SUPPLEMENTARY INFORMATION: The confusing to parties. Accordingly, the Commission is updating or reorganizing Commission is now explicitly providing several subparts of 46 CFR part 502, its that presiding officers may look to the Rules of Practice and Procedure, and FRE for guidance when determining the substantively revising the subpart admissibility of evidence. The AAPA regarding how hearings are conducted notes that current rule § 502.156, states to improve guidance concerning the that the FRE ‘‘will be applicable’’ to presentation of evidence in Commission Commission proceedings ‘‘unless proceedings. Certain current rules are inconsistent with’’ the requirements of also removed to clarify current practice the APA whereas the proposed language and eliminate duplication. provides that the presiding officer ‘‘may On May 3, 2016, the Commission look to the FRE for guidance.’’ The issued a Notice of Proposed Rulemaking AAPA inquires whether such a change (NPRM) seeking public comment on the is intended to loosen the admissibility proposed amendments. 81 FR 26517. standard in cases before the The Commission received one comment Commission, and if so, to what to in response to the NPRM from the degree. The new rule does not loosen American Association of Port the admissibility standards, but rather Lhorne on DSK30JT082PROD with RULES residues of the bifenthrin, (2methyl[1,1′-biphenyl]-3-yl)methyl-3-(2chloro-3,3,3-trifluoro-1-propenyl)-2,2dimethylcyclopropane-carboxylate) in or on the specified agricultural commodities, resulting from use of the pesticide pursuant to FIFRA section 18 emergency exemptions. The tolerances expire on the date specified in the table. VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 93831 clarifies, based on Commission and judicial precedent, that the standard of admissibility is governed by the APA, not the FRE. While the presiding officer may consider the FRE for guidance, they are neither controlling nor binding. In response to the AAPA’s expressed concern that the revised language suggests a change in the presiding officer’s discretion, we clarify the final rule by replacing the language ‘‘look to the FRE for guidance’’ with the language ‘‘consider the FRE for guidance’’ as it better reflects the discretion of the presiding officer. The Commission recently addressed the utility of applying the FRE in proceedings before it in Tober. Pointing to its own precedent, the Commission noted that it has long recognized the liberal standards of admissibility of evidence in administrative proceedings and the need for considerable relaxation of the rules of evidence followed by the federal courts in proceedings before the Commission. Applying those standards to the ALJ’s exclusion of certain exhibits on the basis of the FRE, the Commission held that challenged exhibits were admissible under the APA standard and that ‘‘to the extent that the Commission’s rules and the APA diverge from the FRE, the FRE are not controlling and the Commission is not bound by their requirements.’’ Id., 549. The AAPA also states that the proposed rule could impact motions for summary judgment. It noted that in federal court, a party opposing a motion on the grounds that there are material facts in genuine dispute must show that there is admissible evidence on its side of the asserted dispute. The AAPA appears to be concerned that a loosening of the standard may limit the utility of summary judgment motions. The Commission addressed the admissibility of evidence in the context of motions for summary judgment in Tober. Citing the Supreme Court’s decision in Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), the Commission stated: ‘‘While the nonmoving party is to show facts that present a genuine issue worthy of trial, the nonmoving party at the summary judgment stage is not required to produce evidence in a form that would be admissible at trial.’’ Id., 31 S.R.R. at 549 (emphasis added). Thus, the Commission made clear that at the summary judgment stage, the nonmoving party only needs to show facts that present a genuine issue worthy of trial. Id. This standard is applied to ensure that doubts are resolved in favor of the nonmoving party. As the Commission noted, it has denied summary judgment even when the nonmovant has not submitted any E:\FR\FM\22DER1.SGM 22DER1 93832 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations evidence, as well as when evidence has been deemed to be incomplete. Id., 546. In short, there is no requirement in the federal courts or at the Commission that the party opposing a motion for summary judgment present evidence that would be admissible at trial or hearing. To the extent that the question of admissibility might arise at the summary judgment stage, the proposed rule does not change existing standards but simply continues application of the liberal standard mandated by the APA. The AAPA also expresses concern that making reliance on the FRE discretionary may create discrepancies in the decisions of Presiding Officers, either because a Presiding Officer may choose to follow the FRE in one case but choose not to follow it in another, or because different Presiding Officers may apply different standards. The revised rule does not create new or different standards. There is only one standard as provided in the APA, i.e., ‘‘all evidence which is relevant, material, reliable and probative, and not unduly repetitious or cumulative, shall be admissible.’’ 46 CFR 502.156; 5 U.S.C. 556(d). The FRE will continue to be available to the presiding officer as a resource for guidance in determining admissibility of evidence under the APA standard. Any legal inconsistency in decisions on the admissibility of evidence will be subject to review by the Commission under the APA standard as in Tober. Finally, the AAPA expressed concern that the Presiding Officer may perceive that the revised rule does not accord discretion to exclude evidence considered unreliable. Both the current and revised language are governed however by the same standard set forth in the APA. The APA standard of admissibility has been the governing standard since this regulation was originally adopted in 1965. Since incorporation into the existing regulation in 1976, the FRE have always been subservient to the liberal APA standard. The revised language in the proposed rule adheres to this standard as required by the APA, while recognizing the usefulness of the FRE for guidance. In 1986, the Administrative Conference of the United States (ACUS) published recommendations regarding the use of the FRE in administrative proceedings. ACUS compared three general categories of agency evidentiary rules. 1986 ACUS 6, 51 FR 25642. The category that is most analogous to current § 502.156 included ‘‘rules that require presiding officers to apply the [FRE] ‘so far as practicable.’’’ Id. ACUS identified four significant disadvantages with respect to this standard including: (1) Courts seem confused as to what it means or how to enforce it; (2) instructing presiding officers to exclude evidence based on the standard forces them to undertake a difficult and hazardous task; (3) excluding evidence on the basis that it is inadmissible in a jury trial is totally unnecessary to insure that agencies act only on the basis of reliable evidence; and (4) agencies, like other experts, should be permitted to rely on classes of evidence broader than those that can be considered by lay jurors. Id. Accordingly, ACUS recommended that ‘‘Congress should not require agencies to apply the [FRE], with or without the qualification ‘so far as practicable,’ to limit the discretion of presiding officers to admit evidence in formal adjudications.’’ Id. ACUS also recognized, however, the disadvantages of relying on the APA standard alone, and the Commission has concluded that the FRE can be useful as a guide for litigants and presiding officers. Reorganization of Part 502 Part 502 sets out the rules governing procedure in all types of Commission proceedings. However, after years of revisions, some users find the grouping and ordering of the subparts confusing. The Commission will reorder and rename certain subparts to better reflect the chronology of a typical adjudication, and to distinguish other types of proceedings, as enumerated in this table: Current 46 CFR part 502 New 46 CFR part 502 Revisions Subpart A, General Information ........................ Subpart E, Proceedings; Pleadings; Motions; Replies. ........................................................................... Subpart E, Private Complaints and Commission Investigations. Subpart F, Settlement; Prehearing Procedure .. Subpart F, Petitions, Exemptions and Orders to Show Cause. Subpart J, Hearings; Presiding Officers; Evidence. Subpart K, Shortened Procedure ...................... Subpart L, Disclosures and Discovery .............. Subpart L, Presentation of Evidence ............... Redesignate § 502.141 as § 502.14. Separate subpart E in to subparts E and F, relocate and regroup rules within both subparts. Separate subpart E in to subparts E and F, relocate and regroup rules within both subparts. Revise several sections and relocate all (see Table below). Remove subpart K in its entirety. Relocate and redesignate all rules to subpart J. Relocate § 502.153, remove § 502.222 and retitle. Subpart K [Reserved] ....................................... Subpart J, Disclosures and Discovery ............. Subpart M; Decisions, Appeals, Exceptions .... Subpart A Lhorne on DSK30JT082PROD with RULES Subpart M, Briefs; Requests for Findings; Decisions; Exceptions. Subpart E In subpart A, several cross references are corrected and current § 502.141 which establishes that the Commission may hold hearings that are not part of an adjudicatory process, is moved to this subpart as general information and retitled. Subpart E, currently ‘‘Proceedings, Pleading, Motions, Replies’’ is renamed ‘‘Private Complaints and Commission Investigations.’’ Revised subpart E contains the procedures for institution of those proceedings, motions practice, opportunity for settlement, and other related rules. Section 502.61 which opens the subpart is revised by moving and amending a rule on notice of hearings from subpart J. Section 502.91 which deals with informal settlements is being moved to subpart E in order to Subpart D Cross references are corrected in subpart D. VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 clarify chronologically when informal settlement is most likely to occur. This change is not intended to limit the applicability of the section which would apply in any proceeding, including the proceedings described in subpart F. Subpart F Current subpart F addresses Settlement and Prehearing Procedure. Inasmuch as those subject areas are part of the process in adjudicatory proceedings, they are divided and moved into subpart E and a revised E:\FR\FM\22DER1.SGM 22DER1 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations subpart L governing presentation of evidence. Subpart F is revised to apply to proceedings other than private complaints and Commission investigations, titled: ‘‘Petitions, Exemptions, and Orders to Show Cause.’’ These types of proceedings are generally distinct from complaint and investigation proceedings. With clear headings, the new rules are intended to be easier for the user to locate. Revised subpart F encompasses current §§ 502.73 through 502.77. Subparts J, and L The Commission is changing subpart J, ‘‘Hearings; Presiding Officers; Evidence’’, and subpart L, ‘‘Disclosure and Discovery’’ to more logically and chronologically group the processes conducted in a formal adjudication. Subpart L, Disclosure and Discovery is moved in its entirety to subpart J. Current subpart J, Hearings, is revised to encompass all rules governing the presentation of evidence and presented in revised subpart L titled ‘‘Presentation of Evidence.’’ The revisions to subpart J are discussed more extensively below. Subpart K The Commission is removing and reserving subpart K, ‘‘Shortened Procedure.’’ Shortened Procedure regulations provides that, if the respondent consents, after briefing by the parties, the record is closed and a decision may be issued without discovery or an oral hearing. The procedure has rarely been requested, although parts of the procedure have become standard practice (e.g., not requiring an oral hearing). The procedure has not resulted in an ALJ decision in recent history, as the three proceedings utilizing shortened procedure since 1998 have resulted in settlement. The Commission has made several rule revisions in the past five years that have enhanced the efficiency of formal complaint proceedings including the requirement for initial disclosures in discovery, (current § 502.201), and the establishment of default rules in the absence of an answer, § 502.62(b)(6). Shortened Subpart M current section Subpart L, § 502.214, Briefs ............................. Subpart L, § 502.215 ........................................ procedure rules are not consistent with the requirement for initial disclosures, which help expedite all proceedings. If parties want to further limit discovery, that is possible without the provisions of subpart K. Moreover, the subparts S and T small claims proceedings may offer a solution to litigants seeking faster resolution of their disputes. The rules governing small claims proceedings are designed to make the litigation process faster and simpler for litigants seeking reparations of $50,000 or less. Subpart M The Commission revises subpart M to cover only matters that occur after conclusion of the parties’ presentations in proceedings (i.e., decisions, appeals and exceptions). The rules concerning briefs are moved into revised subpart L, ‘‘Presentation of Evidence.’’ However, rules governing briefs to accompany exceptions will remain in subpart M. Current § 502.153, Appeals from ruling of presiding officer other than orders of dismissal in whole or in part are moved into subpart M, as it concerns an appeal. New section § 502.221, Briefs; requests for findings ............. § 502.222, Requests for enlargement of time for filing briefs. §§ 502.223 through 502.229 .............................. § 502.230, Reopening by presiding officer or Commission. Subpart J, Hearings—Presentation of Evidence Currently subpart J, Hearings, presents the Commission’s rules on hearings and presentation of evidence. These rules governing presentation of 93833 Revisions Text unchanged. § 502.230, Reopening by Commission ............ evidence are revised and presented in revised subpart L. The revisions are intended to reflect the procedures currently used by the Commission, to utilize current language and standards set by the Federal Rules of Civil Procedure where appropriate, and to Revised for clarity. Revised for clarity. Rule concerning supplementing evidence prior to an initial decision will be moved to § 502.216, Supplementing the record. clarify and simplify rules where possible. Several rules currently in the subpart will be removed in their entirety to eliminate duplication and reflect current practice. The revisions to subpart J are enumerated in the table below: Lhorne on DSK30JT082PROD with RULES Subpart J current section New Subpart L § 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 through 502.149 [Reserved]. § 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 ........................ Move to subpart A ............................................ § 502.201, Applicability and Scope .................. Moved to § 502.61(c), Proceedings ................. Does not pertain to adjudicatory hearings. Revised to define ‘‘hearing’’. § 502.211 .......................................................... Regroup with other rules pertaining only to oral hearings. Remove ............................................................ Within presiding officer’s authority to regulate a hearing in § 502.25(b)(3). Regroup with other rules pertaining only to oral hearings. Moved because related to admissibility. Revised and moved to subpart M as it concerns an appeal. VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 Revisions § 502.212 .......................................................... § 502.204(b) ...................................................... Subpart M, § 502.221 ....................................... § 502.202 .......................................................... Revised to mirror APA. § 502.203 .......................................................... § 502.204 .......................................................... Revised for clarity. Revised to clarity. PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 E:\FR\FM\22DER1.SGM 22DER1 93834 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations Subpart J current section New Subpart L Revisions § 502.157, Written evidence .............................. Removed .......................................................... § 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 Removed .......................................................... Within presiding officer’s authority to regulate a hearing in § 502.25(b)(3). Within presiding officer’s authority to regulate a hearing in § 502.25(b)(3). § 502.205. § 502.206, Incorporation by reference ............. § 502.207 .......................................................... Removed .......................................................... § 502.164, Oral argument at hearing ................ Removed .......................................................... § 502.165, Official Transcript ............................. § 502.166, Correction of transcript .................... § 502.167, Objection to public disclosure of information. § 502.168, Copies of data or evidence ............. § 502.169, Record of decision ........................... § 502.213 .......................................................... § 502.213. § 502.208 .......................................................... Removed .......................................................... § 502.217 .......................................................... Covered by § 502.212. Revised for clarity. Following is a more detailed description of each new rule that will appear in revised subpart L. §§ 502.205 and 502.206, Documents Incorporated Into the Record by Reference Revising current § 502.160 (revised § 502.205) allows documents in another Commission proceeding to be incorporated into the record by reference. The final rule revises slightly the proposed rule for clarity. § 502.206 allows material in any document on file with the Commission that is also available to the public to be incorporated into the record by reference. 502.151, and 502.165. Current § 502.165, Official transcript, requires revision as it currently contains a description of section 11 of the Federal Advisory Committee Act (FACA) and the Office of Management and Budget’s (OMB) interpretation of that section, which are the basis for the Commission’s regulations with respect to obtaining copies of transcripts. In order to simplify these provisions, the Commission includes in the new § 502.213 only the relevant requirements and deletes the aforementioned references to FACA and OMB’s interpretation. § 502.201, Applicability and Scope § 502.201 is derived and moved from current § 502.142 and sets out the proceedings for which the rules in the subpart will apply. The term hearing is defined as ‘‘a formal adjudicatory proceeding in which evidence is presented orally, or through written statement, or by combination thereof’’ to reflect the broader and more inclusive meaning of the term in current administrative practice. § 502.202, Right of Parties To Present Evidence § 502.202 is derived and moved from current § 502.154 but is revised to reflect that the presiding officer may limit introduction of evidence if it is ‘‘irrelevant, immaterial, or unduly repetitious’’ mirroring the Administrative Procedure Act. § 502.203, Burden of Proof § 502.203 is derived and moved from current § 502.155 and clarifies the language to include reference to motions for ease of understanding the burden of proof. Lhorne on DSK30JT082PROD with RULES § 502.204, Evidence Admissible Discussion of § 502.204(a) is above in discussion of the AAPA comment. Also, the text of current § 502.152 has been modernized to clarify the procedures governing when and how to make an offer of proof. The rule is moved into revised § 502.204 as paragraph (b) as a logical part of the rule governing admissibility of evidence. The final rule revises slightly the proposed rule for clarity. VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 § 502.207, Stipulations Current § 502.162 allows for stipulation. The rule is moved to § 502.207 and revises the language for clarity. § 502.208, Objection to Public Disclosure of Information § 502.208 revises current § 502.167, Objection to public disclosure of information. The change adds a cross reference to § 502.5 where the Commission recently spelled out its requirements for submission of confidential material in a final rule. 80 FR 14318 (Mar. 19, 2015.) §§ 502.209 and 502.210, Prehearing Conference and Statements Current §§ 502.94 and 502.95 are moved from subpart E as they pertain to hearings. The language is clarified to reflect current practice of filing a motion instead of a petition in Rule 502.209. The procedure and timeline for filing a prehearing statement are provided in 502.210. §§ 502.211 Through 502.213, Oral Hearings §§ 502.211 through 502.213 deal with oral hearings and consist of the provisions found in current §§ 502.144, PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 Revised for clarity. Revised for clarity. Covered by § 502.216, Supplementing the record. Within presiding officer’s authority to regulate a hearing in § 502.25(b)(3). Revised and modernized. Revised to cross reference § 502.5. §§ 502.214 and 502.215, Briefs Sections 502.221 and 502.222 concerning briefs are included in this subpart and renumbered as §§ 502.214 and 502.215. The last sentence of § 502.221(a), which requires that the period of time for filing briefs will be the same for both parties, is removed as setting time is within the powers of the presiding officer as established in recently revised § 502.25. Section 502.221(c) is deleted as it is not current practice for the Presiding Officer to ‘‘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.’’ Generally, the Commission’s Bureau of Enforcement (BOE) files the first brief unless concurrent briefs are appropriate for the particular case; this is more appropriate to address in the scheduling order issued in each particular proceeding. § 502.216, Supplementing the Record Current § 502.230(a), Motion to Reopen, is renumbered, renamed and revised to provide instructions concerning submission of evidence after final presentations in a proceeding and E:\FR\FM\22DER1.SGM 22DER1 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations prior to issuance of an initial decision. The language of the rule and the heading ‘‘Supplementing the record’’ is more descriptive of the current practice before the Commission’s Administrative Law Judges but does not substantively revise the process or rights of a party to a proceeding. publication of the notice of proposed rulemaking. 5 CFR 1320.11. This final rule does not contain any collections of information, as defined by 44 U.S.C. 3502(3) and 5 CFR 1320.3(c). Regulation Identifier Number Current § 502.169 is moved to subpart L and the reference to ‘‘filing and motions’’ replaces ‘‘paper and requests.’’ The Commission has found that several regulations reference these rules, and that these references may now be inaccurate due to shifts in numbering. The Commission plans to correct these references in the near future through technical corrections, which will be published in the Federal Register. The Commission assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Unified Agenda). The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda, available at http:// www.reginfo.gov/public/do/ eAgendaMain. Rulemaking Analyses and Notices List of Subjects in 46 CFR Part 502 Regulatory Flexibility Act Administrative practice and procedure, Archives and records, Business and industry, Classified information, Confidential business information, Consumer protection, Freedom of information, Government in the Sunshine Act, Government publications, Health records, Information, Newspapers and magazines, Paperwork requirements, Printing, publications, Privacy, Public meetings, Record retention, Records, Reporting and recordkeeping requirements, Trade names, Trade practices. For the reasons stated in the preamble, the Federal Maritime Commission amends 46 CFR part 502 as follows: § 502.217, Record of Decision The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 601– 612) provides that whenever an agency promulgates a final rule after being required to publish a notice of proposed rulemaking under the Administrative Procedure Act (APA) (5 U.S.C. 553), the agency must prepare and make available a final regulatory flexibility analysis (FRFA) describing the impact of the rule on small entities. 5 U.S.C. 604. An agency is not required to publish a FRFA, however, for the following types of rules, which are excluded from the APA’s notice-and-comment requirement: interpretative rules; general statements of policy; rules of agency organization, procedure, or practice; and rules for which the agency for good cause finds that notice and comment is impracticable, unnecessary, or contrary to public interest. See 5 U.S.C. 553(b). Although the Commission elected to seek public comment on its proposed regulatory amendments to part 502, these amendments concern the Commission’s practice and procedures. Therefore, the APA does not require publication of a notice of proposed rulemaking in this instance, and the Commission is not required to prepare a FRFA. Lhorne on DSK30JT082PROD with RULES Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521) requires an agency to seek and receive approval from the Office of Management and Budget (OMB) before collecting information from the public. 44 U.S.C. 3507. The agency must submit collections of information in rules to OMB in conjunction with the VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 PART 502—RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 502 continues to read as follows: ■ Authority: 5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561–569, 571–596, 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. § 502.5 [Amended] 2. Amend § 502.5: a. In the introductory text, by removing the phrase ‘‘502.167, 502.201(j)(1)(vii)’’ and adding in its place the phrase ‘‘502.141(j)(1)(vii), 502.208’’, and by removing the reference ‘‘§ 502.201(j)’’ and adding in its place the reference ‘‘§ 502.141(j)’’; and ■ b. In paragraph (b) by removing the reference ‘‘§ 502.201(j)(1)(vii)’’ and adding in its place the reference ‘‘§ 502.141(j)(1)(vii)’’. ■ ■ PO 00000 Frm 00045 Fmt 4700 Sfmt 4700 § 502.6 93835 [Amended] 3. Amend § 502.6(c) by removing the phrase ‘‘§ 502.203 or § 502.204’’ and adding in its place the phrase ‘‘§ 502.143 or § 502.144’’. ■ § 501.10 [Amended] 4. Amend § 502.10 by removing the reference ‘‘502.153’’ and adding in its place the reference ‘‘502.221’’. ■ Subpart D—Rulemaking § 502.52 [Amended] 5. Amend § 502.52 by removing the citation ‘‘§ 502.143’’ and adding in its place the citation ‘‘§ 502.61(c)’’. ■ § 502.53 [Amended] 6. Amend § 502.53(a) by removing the reference ‘‘subpart J’’ and adding in its place the reference ‘‘subpart L’’. ■ Subpart E—Private Complaints and Commission Investigations 7. Revise the subpart E heading to read as set forth above. ■ 8. Amend § 502.61 by removing the words ‘‘under normal or shortened procedures (subpart K)’’ and the last sentence from paragraph (a); redesignating paragraph (b) as paragraph (d) and adding a new paragraph (b) and paragraph (c) to read as follows: ■ § 502.61 Proceedings * * * * * (b) The Commission may commence a proceeding for a rulemaking, for an adjudication (including Commission enforcement action under § 502.63), or a non-adjudicatory investigation upon petition or on its own initiative by issuing an appropriate order. (c) Persons entitled to notice of hearings, except those notified by complaint service under § 502.113, will be duly and timely informed of the nature of the proceeding, the legal authority and jurisdiction under which the proceeding is conducted, and the terms, substance, and issues involved, or the matters of fact and law asserted, as the case may be. Such notice will be published in the Federal Register unless all persons subject thereto are named and either are served or otherwise have notice thereof in accordance with law. * * * * * § 502.69 [Amended] 9. Amend § 502.69(f) by removing ‘‘shortened procedure (subpart K of this part)’’ and removing the citation ‘‘§ 502.221’’ and adding in its place the citation ‘‘§ 502.214’’. ■ E:\FR\FM\22DER1.SGM 22DER1 93836 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations Subpart F—Petitions, Exemptions, and Orders to Show Cause 10. Revise the subpart F heading to read as set forth above. ■ §§ 502.91 through 502.95 ■ [Removed] 11. Remove §§ 502.91 through 502.95. §§ 502.73 through 502.77 [Redesignated as §§ 502.91 through 502.95 and Transferred to Subpart F] 12. Redesignate §§ 502.73 through 502.77 as §§ 502.91 through 502.95, respectively, and transfer them to subpart F. ■ §§ 502.78 and 502.79 [Redesignated as §§ 502.73 and 502.74] 13. Redesignate §§ 502.78 and 502.79 as §§ 502.73 and 502.74, respectively, in subpart E. ■ 14. Add a new § 502.75 to subpart E to read as follows: ■ Lhorne on DSK30JT082PROD with RULES § 502.75 Opportunity for informal settlement. (a) Parties are encouraged to make use of all the procedures of this part that are designed to simplify or avoid formal litigation, and to assist the parties in reaching settlements whenever it appears that a particular procedure would be helpful. (b) Where time, the nature of the proceeding, and the public interest permit, all interested parties will have the opportunity for the submission and consideration of facts, argument, offers of settlement, or proposal of adjustment, without prejudice to the rights of the parties. (c) No settlement offer, or proposal will be admissible in evidence over the objection of any party in any hearing on the matter. (d) As soon as practicable after the commencement of any proceeding, the presiding officer will direct the parties or their representatives to consider the use of alternative dispute resolution, including but not limited to mediation, and may direct the parties or their representatives to consult with the Federal Maritime Commission Alternative Dispute Resolution Specialist about the feasibility of alternative dispute resolution. (e) Any party may request that a mediator or other neutral be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding officer will appoint a mediator or other neutral who is acceptable to all parties, coordinating with the Federal Maritime Commission Alternative Dispute Resolution Specialist. The mediator or other neutral VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 will convene and conduct one or more mediation or other sessions with the parties and will inform the presiding officer, within the time prescribed by the presiding officer, whether the dispute resolution proceeding resulted in a resolution or not, and may make recommendations as to future proceedings. If settlement is reached, it will be submitted to the presiding officer who will issue an appropriate decision or ruling. All such dispute resolution proceedings are subject to the provisions of subpart U of this part. (f) Any party may request that a settlement judge be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding officer will advise the Chief Administrative Law Judge who may appoint a settlement judge who is acceptable to all parties. The settlement judge will convene and preside over conferences and settlement negotiations and will report to the presiding officer within the time prescribed by the Chief Administrative Law Judge, on the results of settlement discussions with appropriate recommendations as to future proceedings. If settlement is reached, it must be submitted to the presiding officer who will issue an appropriate decision or ruling. [Rule 75.] 15. Revise the newly redesignated § 502.91 to read as follows: ■ § 502.91 Order to show cause. The Commission may institute a proceeding by order to show cause. The order will be served upon all persons named therein, will include the information specified in § 502.221, will require the person named therein to answer, and may require such person to appear at a specified time and place and present evidence upon the matters specified. [Rule 91.] Exhibit No. 1 to Subpart F of Part 502 [Removed] 16. Remove reserved Exhibit No. 1 to Subpart F of Part 502. ■ Subpart H—Service of Documents § 502.114 [Amended] 17. Amend § 502.114(a) by removing the citation ‘‘§ 502.145’’ and adding in its place the citation ‘‘§ 502.131’’. ■ § 502.118 ■ [Removed] 18. Remove § 502.118. PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 Subpart I—Subpoenas § 502.132 [Amended] 19. Amend § 502.132(c) by removing the citation ‘‘§ 502.203’’ and adding in its place the citation ‘‘§ 502.143’’. ■ § 502.136 [Amended] 20. Amend § 502.136 by removing the citation ‘‘§ 502.210(b)’’ and adding in its place the citation ‘‘§ 502.150(b)’’. ■ Subpart J—Disclosures and Discovery 21. Revise the subpart J heading to read as set forth above. ■ 22. Redesignate § 502.141 as § 502.14, transfer it to subpart A, and revise the section heading to read as follows: ■ § 502.14 * * Public hearings. * * * §§ 502.142 through 502.150 [Removed] 23. Remove §§ 502.142 through 502.150. ■ §§ 502.201 through 502.210 [Redesignated as §§ 502.141 through 502.150 and Transferred to Subpart J] 24. Redesignate §§ 502.201 through 502.210 as §§ 502.141 through 502.150, respectively, and transfer them to subpart J. ■ § 502.143 [Amended] 25. Amend newly redesignated § 502.143: ■ a. In paragraph (a)(1) by removing the citation ‘‘§ 502.03(a)(2)’’ and adding in its place the citation ‘‘§ 502.143(a)(2)’’; ■ b. In paragraph (a)(2)(i) by removing the citation ‘‘§ 502.204’’ and adding in its place the citation ‘‘§ 502.144’’; ■ c. In paragraph (b)(2) by removing the citation ‘‘§ 502.206’’ and adding in its place the citation ‘‘§ 502.146’’; ■ d. In paragraph (b)(5)(i) by removing the citation ‘‘§ 502.202’’ and adding in its place the citation‘‘§ 502.142’’; ■ e. In paragraph (b)(5)(ii) by removing the citation ‘‘§ 502.203(b)(5)(i)(A)’’ and adding in its place the citation ‘‘§ 502.143(b)(5)(i)(A)’’; ■ f. In paragraph (c)(1) by removing the citation ‘‘§ 502.154’’ and adding in its place the citation ‘‘§ 502.202’’ and by removing the citation ‘‘§ 502.203(b)(3)’’ and adding in its place the citation ‘‘§ 502.143(b)(3)’’; ■ g. In paragraph (c)(2) by removing the citation ‘‘§ 502.203(d)(2)’’ and adding in its place the citation ‘‘§ 502.143(d)(2)’’; ■ h. In paragraph (d)(1) by removing the citation ‘‘§ 502.201(e)(2)’’ and adding in its place the citation ‘‘§ 502.141(e)’’; ■ i. In paragraph (d)(2)(ii) by removing the citation ‘‘§ 502.201(j)’’ and adding in its place the citation ‘‘§ 502.141(j)’’; and ■ E:\FR\FM\22DER1.SGM 22DER1 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations j. In paragraph (e)(2) by removing the citation ‘‘§ 502.203(f)(1)’’ and adding in its place the citation ‘‘§ 502.143(f)(1)’’. ■ § 502.144 [Amended] 26. Amend newly redesignated § 502.144: ■ a. In paragraph (a)(2)(i) by removing the citation‘‘§ 502.203’’ and adding in its place the citation ‘‘§ 502.143’’; ■ b. In paragraph (1)(4) by removing the citation ‘‘§ 502.203(b)(6)’’ and adding in its place the citation ‘‘§ 502.143(b)(6)’’. ■ § 502.145 [Amended] 27. Amend newly redesignated § 502.145: ■ a. In paragraph (a)(1) by removing the citation ‘‘§ 502.201(e)(2)’’ and adding in its place the citation ‘‘§ 502.141(e)(2)’’; ■ b. In paragraph (a)(2) by removing the citation ‘‘§ 502.201(e) and (f)’’ and adding in its place the citation ‘‘§ 502.141(e) and (f)’’ ; and ■ c. In paragraph (b)(2) by removing the citation ‘‘§ 502.201(l)’’ and adding in its place the citation ‘‘§ 502.141(l)’’. ■ § 502.146 [Amended] 28. Amend newly redesignated § 502.146: ■ a. In paragraph (a) by removing the citation ‘‘§ 502.201(e) and (f)’’ and adding in its place the citation ‘‘§ 502.141(e) and (f)’’; and ■ b. In paragraph (b)(2) by removing the citation ‘‘§ 502.201(l)’’ and adding in its place the citation ‘‘§ 502.141(l)’’. ■ § 502.147 [Amended] 29. Amend newly redesignated § 502.147(a)(3) by removing the citation ‘‘§ 502.201(l)’’ and adding in its place the citation ‘‘§ 502.141(l)’’. ■ § 502.148 [Amended] 30. Amend newly redesignated § 502.148(a) by removing the citation ‘‘§§ 502.202 through 502.207’’ and adding in its place the citation ‘‘§§ 502.142 through 502.147’’. ■ § 502.149 [Amended] 31. Amend newly redesignated § 502.149: ■ a. In paragraph (a)(1)(iii) by removing the citation ‘‘§ 502.209(a)(2) through (7)’’ and adding in its place the citation‘‘§ 502.149(a)(2) through (7)’’; ■ b. In paragraph (a)(2) by removing the citation ‘‘§ 502.156 of subpart J’’ and adding in its place the citation ‘‘§ 502.204 of subpart L’’; ■ c. In paragraph (a)(3) by removing the phrase ‘‘§ 502.203(b)(6) or § 502.204(a)(4)’’ and adding in its place the phrase ‘‘§ 502.143(b)(6) or § 502.144(a)(4); ■ d. In paragraph (a)(7) by removing the citation ‘‘§ 502.156 of subpart J’’ and Lhorne on DSK30JT082PROD with RULES ■ VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 adding in its place the citation ‘‘§ 502.204 of subpart L’’; ■ e. In paragraph (b) by removing the phrase ‘‘§ 502.202(b) and § 502.209(d)(3)’’ and adding in its place the phrase ‘‘§ 502.142(b) and § 502.149(d)(3)’’; and ■ f. In paragraph (d)(3)(iii) by removing the citation ‘‘§ 502.204’’ and adding in its place the citation ‘‘§ 502.144’’. § 502.150 [Amended] 32. Amend newly redesignated § 502.150(a)(1) by removing the citation ‘‘§ 502.201’’ and adding in its place the citation ‘‘§ 502.141’’ and by removing the citation ‘‘§ 502.206’’ and adding in its place the citation ‘‘§ 502.146’’. ■ §§ 502.151 through 502.169 reserved] [Removed and 33. Remove and reserve §§ 502.151 through 502.169. ■ Subpart K [Removed and Reserved] 34. Remove and reserve subpart K, consisting of §§ 502.181 through 502.187. ■ 35. Revise subpart L to read as follows: ■ Subpart L—Presentation of Evidence (b) The term hearing means a formal adjudicatory proceeding in which evidence is presented orally, or through written statements, or by combination thereof. The term oral hearing means a hearing at which evidence is presented through oral testimony of a witness. [Rule 201]. § 502.202 Right of parties to present evidence. Every party has the right to present its case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. The presiding officer, however, has the right and duty to limit the introduction of evidence and the examination and crossexamination of witnesses when, in his or her judgment, such evidence or examination is irrelevant, immaterial, or unduly repetitious. [Rule 202.] § 502.203 § 502.201 Applicability and scope. (a) The rules in this subpart apply to adjudicatory proceedings conducted under the statutes administered by the Commission involving matters which require determination after notice and opportunity for hearing. Adjudicatory proceedings are formal proceedings commenced upon the filing of a sworn complaint or by Order of the Commission. Such proceedings will be conducted pursuant to the Administrative Procedure Act, 5 U.S.C. 551–559, and the rules in this subpart. PO 00000 Frm 00047 Fmt 4700 Sfmt 4700 Burden of proof. In all cases governed by the requirements of the Administrative Procedure Act, 5 U.S.C. 556(d), the burden of proof is on the proponent of the motion or the order. [Rule 203.] § 502.204 Sec. 502.201 Applicability and scope. 502.202 Right of parties to present evidence. 502.203 Burden of proof. 502.204 Evidence admissible. 502.205 Records in other proceedings. 502.206 Documents incorporated into the record by reference. 502.207 Stipulations. 502.208 Objection to public disclosure of information. 502.209 Prehearing conference. 502.210 Prehearing statements. 502.211 Notice of time and place of oral hearing; postponement of hearing. 502.212 Exceptions to rulings of presiding officer unnecessary. 502.213 Official transcript. 502.214 Briefs; requests for findings. 502.215 Requests for enlargement of time for filing briefs. 502.216 Supplementing the record. 502.217 Record of decision. 93837 Evidence admissible. (a) In any proceeding under the rules in this part and in accordance with the Administrative Procedure Act, all evidence which is relevant, material, reliable and probative, and not unduly repetitious or cumulative, will be admissible. All other evidence will be excluded. The presiding officer may consider the Federal Rules of Evidence for guidance. (b) A party who objects to a ruling of the presiding officer rejecting or excluding proffered evidence may make an offer of proof. If the ruling excludes proffered oral testimony, an offer of proof may consist of a statement by counsel of the substance of the evidence that would be adduced, or in the discretion of the presiding officer, testimony of the witness. If the ruling excludes documents offered as evidence or reference to documents or records, the documents or records shall be marked for identification and will constitute the offer of proof. [Rule 204.] § 502.205 Records in other proceedings. Portions of the record of other proceedings may be received in evidence. A true copy of the records sought to be admitted must be presented in the form of an exhibit unless the presiding officer accepts the parties’ stipulation that such records may be incorporated by reference. [Rule 205.] E:\FR\FM\22DER1.SGM 22DER1 93838 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations § 502.206 Documents incorporated into the record by reference. Any matter contained in a document on file with the Commission that is available to the public may be received in evidence through incorporation by reference without producing such document, provided that the matter so offered is specified in such manner as to be clearly identified, with sufficient particularity, and readily located electronically. [Rule 206.] § 502.207 Stipulations. The parties may, and are encouraged to, stipulate any facts involved in the proceeding and include them in the record with the consent of the presiding officer. A stipulation may be admitted even if all parties do not agree, provided that any party who does not agree to the stipulation has the right to crossexamine and offer rebuttal evidence. [Rule 207.] § 502.208 Objection to public disclosure of information. (a) If any party wishes to present confidential information or upon objection to public disclosure of any information sought to be elicited, the requirements and procedures in § 502.5 will apply. (b) In an oral hearing, the presiding officer may in his or her discretion order that a witness will disclose such information only in the presence of the parties and those designated and authorized by the presiding officer. Any transcript of such testimony will be held confidential to the extent the presiding officer determines. Copies of transcripts will be served only to authorized parties or their representatives or other parties as the presiding officer may designate. (c) Any information given pursuant to this section may be used by the presiding officer or the Commission if deemed necessary to a correct decision in the proceeding. [Rule 208.] Lhorne on DSK30JT082PROD with RULES § 502.209 Prehearing conference. (a)(1) Prior to any hearing, the Commission or presiding officer may direct all interested parties, by written notice, to attend one or more prehearing conferences for the purpose of considering any settlement under § 502.91, formulating the issues in the proceeding, and determining other matters to aid in its disposition. In addition to any offers of settlement or proposals of adjustment, the following may be considered: (i) Simplification of the issues; (ii) The necessity or desirability of amendments to the pleadings; (iii) The possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof; VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 (iv) Limitation of the number of witnesses; (v) The procedure to be used at the hearing; (vi) The distribution to the parties prior to the hearing of written testimony and exhibits; (vii) Consolidation of the examination of witnesses by counsel; (viii) Such other matters as may aid in the disposition of the proceeding. (2) Prior to the hearing, the presiding officer may require exchange of exhibits and any other material that may expedite the hearing. The presiding officer will assume the responsibility of accomplishing the purposes of the notice of prehearing conference so far as this may be possible without prejudice to the rights of any party. (3) The presiding officer will rule upon all matters presented for decision, orally upon the record when feasible, or by subsequent ruling in writing. If a party determines that a ruling made orally does not cover fully the issue presented, or is unclear, such party may file a motion requesting a further ruling within ten (10) days after receipt of the transcript. (b) In any proceeding under the rules in this part, the presiding officer hold an informal conference prior to the taking of testimony, or may recess the hearing for such a conference, with a view to carrying out the purposes of this section. (c) At any prehearing conference, consideration may be given to whether the use of alternative dispute resolution would be appropriate or useful for the disposition of the proceeding whether or not there has been previous consideration of such use. [Rule 209.] § 502.210 Prehearing statements. (a) Unless a waiver is granted by the presiding officer, it is the duty of all parties to a proceeding to prepare a statement or statements at a time and in the manner to be established by the presiding officer provided that there has been reasonable opportunity for discovery. To the extent possible, joint statements should be prepared. (b) The prehearing statement must state the name of the party or parties on whose behalf it is presented and briefly set forth the following matters, unless otherwise ordered by the presiding officer: (1) Issues involved in the proceeding. (2) Facts stipulated pursuant to the procedures together with a statement that the party or parties have communicated or conferred in a good faith effort to reach stipulation to the fullest extent possible. (3) Facts in dispute. PO 00000 Frm 00048 Fmt 4700 Sfmt 4700 (4) Witnesses and exhibits by which disputed facts will be litigated. (5) A brief statement of applicable law. (6) The conclusion to be drawn. (7) Suggested time and location of hearing and estimated time required for presentation of the party’s or parties’ case. (8) Any appropriate comments, suggestions, or information which might assist the parties in preparing for the hearing or otherwise aid in the disposition of the proceeding. (c) The presiding officer may, for good cause shown, permit a party to introduce facts or argue points of law outside the scope of the facts and law outlined in the prehearing statement. Failure to file a prehearing statement, unless waiver has been granted by the presiding officer, may result in dismissal of a party from the proceeding, dismissal of a complaint, judgment against respondents, or imposition of such other sanctions as may be appropriate under the circumstances. (d) Following the submission of prehearing statements, the presiding officer may, upon motion or otherwise, convene a prehearing conference for the purpose of further narrowing issues and limiting the scope of the hearing if, in his or her opinion, the prehearing statements indicate lack of dispute of material fact not previously acknowledged by the parties or lack of legitimate need for cross-examination and is authorized to issue appropriate orders consistent with the purposes stated in this section. [Rule 210.] § 502.211 Notice of time and place of oral hearing; postponement of hearing. (a) The notice of an oral hearing will designate the time and place the person or persons who will preside, and the type of decision to be issued. The date or place of a hearing for which notice has been issued may be changed when warranted. Reasonable notice will be given to the parties or their representatives of the time and place of the change thereof, due regard being had for the public interest and the convenience and necessity of the parties or their representatives. Notice may be served by mail, facsimile transmission, or electronic mail. (b) Motions for postponement of any hearing date must be filed in accordance with § 502.104. [Rule 211.] § 502.212 Exceptions to rulings of presiding officer unnecessary. A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, the party E:\FR\FM\22DER1.SGM 22DER1 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations doing so need only state the action that it wants the presiding officer to take or that it objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. [Rule 212.] Lhorne on DSK30JT082PROD with RULES § 502.213 Official transcript. (a) The Commission will designate the official reporter for all hearings. The official transcript of testimony taken, together with any exhibits and any briefs or memoranda of law filed therewith, will be filed with the Commission. Transcripts of testimony will be available in any proceeding under the rules in this part, at actual cost of duplication. (b)(1) Where the Commission does not request daily copy service, any party requesting such service must bear the incremental cost of transcription above the regular copy transcription cost borne by the Commission, in addition to the actual cost of duplication. Where the requesting party applies for and demonstrates that the furnishing of daily copy is indispensable to the protection of a vital right or interest in achieving a fair hearing, the presiding officer in the proceeding in which the application is made will order that daily copy service be provided the requesting party at the actual cost of duplication, with the full cost of transcription being borne by the Commission. (2) In the event a request for daily copy is denied by the presiding officer, the requesting party, in order to obtain daily copy, must pay the cost of transcription over and above that borne by the Commission, i.e., the incremental cost between that paid by the Commission when it requests regular copy and when it requests daily copy. The decision of the presiding officer in this situation is interpreted as falling within the scope of the functions and powers of the presiding officer, as defined in § 502.25(a). (c) Motions made at the hearing to correct the transcript will be acted upon by the presiding officer. Motions made after an oral hearing to correct the record must be filed with the presiding officer within twenty-five (25) days after the last day of hearing or any session thereof, unless otherwise directed by the presiding officer, and must be served on all parties. If no objections are received within ten (10) days after date of service, the transcript will, upon approval of the presiding officer, be changed to reflect such corrections. If objections are received, the motion will be acted upon with due consideration of the stenographic record of the hearing. [Rule 213.] VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 § 502.214 Briefs; requests for findings. (a) The presiding officer will determine the time and manner of filing briefs and any enlargement of time. (b) Briefs will be served upon all parties pursuant to subpart H of this part. (c) Unless otherwise ordered by the presiding officer, opening or initial briefs must contain the following matters in separately captioned sections: (1) Introductory section describing the nature and background of the case; (2) Proposed findings of fact in serially numbered paragraphs with reference to exhibit numbers and pages of the transcript; (3) Argument based upon principles of law with appropriate citations of the authorities relied upon; and (4) Conclusions. (d) All briefs must contain a subject index or table of contents with page references and a list of authorities cited. (e) All briefs filed pursuant to this section must ordinarily be limited to eighty (80) pages in length, exclusive of pages containing the table of contents, table of authorities, and certificate of service, unless the presiding officer allows the parties to exceed this limit for good cause shown and upon application filed not later than seven (7) days before the time fixed for filing of such a brief or reply. [Rule 214.] § 502.215 Requests for enlargement of time for filing briefs. Requests for enlargement of time to file briefs must conform to the requirements of § 502.102. [Rule 215.] § 502.216 Supplementing the record. A motion to supplement the record, pursuant to § 502.69, should be filed if submission of evidence is desired after the parties’ presentation in a proceeding, but before issuance by the presiding officer of an initial decision. [Rule 216.] § 502.217 Record of decision. The transcript of testimony and exhibits, together with all filings and motions filed in the proceeding, will constitute the exclusive record for decision. [Rule 217.] Subpart M—Decisions; Appeals; Exceptions 36. Revise the subpart M heading to read as set forth above. ■ 37. Revise § 502.221 to read as follows: ■ § 502.221 Appeal from ruling of presiding officer other than orders of dismissal in whole or in part. (a) Rulings of the presiding officer may not be appealed prior to or during PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 93839 the course of the hearing, or subsequent thereto, if the proceeding is still before him or her, except where the presiding officer finds it necessary to allow an appeal to the Commission to prevent substantial delay, expense, or detriment to the public interest, or undue prejudice to a party. (b) Any party seeking to appeal must file a motion for leave to appeal no later than fifteen (15) days after written service or oral notice of the ruling in question, unless the presiding officer, for good cause shown, enlarges or shortens the time. Any such motion must contain the grounds for leave to appeal and the appeal itself. (c) Replies to the motion for leave to appeal and the appeal may be filed within fifteen (15) days after date of service thereof, unless the presiding officer, for good cause shown, enlarges or shortens the time. If the motion is granted, the presiding officer must certify the appeal to the Commission. (d) Unless otherwise provided, the certification of the appeal will not operate as a stay of the proceeding before the presiding officer. (e) The provisions of § 502.10 do not apply to this section. [Rule 221.] § 502.222 ■ [Removed and Reserved] 38. Remove and reserve § 502.222. 39. Revise § 502.230 to read as follows: ■ § 502.230 Reopening by Commission. (a) Reopening by the Commission. After an initial decision by the presiding officer, or in a matter otherwise pending before the Commission, but before issuance of a Commission decision, the Commission may, after petition and reply in conformity with paragraphs (b) and (c) of this section, or upon its own motion, reopen a proceeding for the purpose of taking further evidence. (b) Motion to reopen. A motion to reopen shall be served in conformity with the requirements of subpart H and will set forth the grounds requiring reopening of the proceeding, including material changes of fact or law alleged to have occurred. (c) Reply. Within ten (10) days following service of a motion to reopen, any party may reply to such motion. (d) Remand by the Commission. Nothing contained in this rule precludes the Commission from remanding a proceeding to the presiding officer for the taking of addition evidence or determining points of law. [Rule 230.] E:\FR\FM\22DER1.SGM 22DER1 93840 Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations By the Commission. Rachel E. Dickon, Assistant Secretary. following clauses; however, this revision does not impact the clause prescriptions for use, or applicability at or below the simplified acquisition threshold, or applicability to commercial items. The clauses are: DFARS 252.225–7001, Buy American and Balance of Payments Program; DFARS 252.225–7002, Qualifying Country Sources as Subcontractors; DFARS 252.225–7012, Preference for Certain Domestic Commodities; DFARS 252.225–7017, Photovoltaic Devices; DFARS 252.225–7021, Trade Agreements; and DFARS 252.225–7036, Buy American—Trade Agreements— Balance of Payments Program. [FR Doc. 2016–30745 Filed 12–21–16; 8:45 am] BILLING CODE 6731–AA–P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 225 and 252 [Docket DARS–2016–0048] RIN 0750–AJ18 Defense Federal Acquisition Regulation Supplement: New Qualifying Country—Estonia (DFARS Case 2017–D001) Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. AGENCY: DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add Estonia as a qualifying country. DATES: Effective December 22, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Lorena Malcolm, telephone 571–372– 6176. SUMMARY: SUPPLEMENTARY INFORMATION: I. Background Lhorne on DSK30JT082PROD with RULES DoD is amending the DFARS to add Estonia as a qualifying country. On September 23, 2016, the Secretary of Defense signed a reciprocal defense procurement agreement with Estonia. The agreement removes discriminatory barriers to procurements of supplies and services produced by industrial enterprises of the other country to the extent mutually beneficial and consistent with national laws, regulations, policies, and international obligations. This agreement does not cover construction or construction material. Estonia is already a designated country under the World Trade Organization Government Procurement Agreement. II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule only updates the list of qualifying countries in the DFARS by adding the newly qualifying country of Estonia. The definition of ‘‘qualifying country’’ is updated in each of the VerDate Sep<11>2014 15:15 Dec 21, 2016 Jkt 241001 III. Publication of This Final Rule for Public Comment Is Not Required by Statute The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled ‘‘Publication of Proposed Regulations.’’ Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it does not constitute a significant DFARS revision within the meaning of FAR 1.501–1 and does not have a significant cost or administrative impact on contractors or offerors. Estonia is added to the list of 25 other countries that have similar reciprocal defense procurement agreements with DoD. These requirements affect only the internal operating procedures of the Government. IV. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. V. Regulatory Flexibility Act The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501–1, and 41 U.S.C. 1707 does not require publication for public comment. VI. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply to this rule; however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704–0229, entitled ‘‘DFARS Part 225, Foreign Acquisition and related clauses.’’ This rule merely shifts the category under which items from Estonia must be listed. List of Subjects in 48 CFR Parts 225 and 252 Government procurement. Jennifer L. Hawes, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 225 and 252 are amended as follows: ■ 1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows: ■ Authority: 41 U.S.C. 1303 and 48 CFR chapter 1. PART 225—FOREIGN ACQUISITION 225.003 [Amended] 2. Section 225.003 is amended in paragraph (10), the definition of ‘‘Qualifying country’’, by adding, in alphabetical order, the country of ‘‘Estonia’’. ■ 225.872–1 [Amended] 3. Section 225.872–1 is amended in paragraph (a) by adding, in alphabetical order, the country of ‘‘Estonia’’. ■ PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.225–7001 [Amended] 4. Section 252.225–7001 is amended by— ■ a. In the clause heading, removing the date ‘‘(AUG 2016)’’ and adding ‘‘(DEC 2016)’’ in its place; ■ b. In paragraph (a), the definition of ‘‘Qualifying country’’, adding, in alphabetical order, the country of ‘‘Estonia’’; and ■ E:\FR\FM\22DER1.SGM 22DER1

Agencies

[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Rules and Regulations]
[Pages 93831-93840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30745]


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FEDERAL MARITIME COMMISSION

46 CFR Part 502

[Docket No. 16-08]
RIN 3072-AC64


Rules of Practice and Procedure; Presentation of Evidence in 
Commission Proceedings

AGENCY: Federal Maritime Commission.

ACTION: Final rule

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SUMMARY: The Federal Maritime Commission is reorganizing several 
subparts of its Rules of Practice and Procedure and revising its rules 
regarding presentation of evidence in Commission proceedings.

DATES: Effective January 27, 2016.

FOR FURTHER INFORMATION CONTACT: Rachel E. Dickon, Assistant Secretary, 
Federal Maritime Commission, 800 North Capitol Street NW., Washington, 
DC 20573-0001. Phone: (202) 523-5725. Email: secretary@fmc.gov.

SUPPLEMENTARY INFORMATION: The Commission is updating or reorganizing 
several subparts of 46 CFR part 502, its Rules of Practice and 
Procedure, and substantively revising the subpart regarding how 
hearings are conducted to improve guidance concerning the presentation 
of evidence in Commission proceedings. Certain current rules are also 
removed to clarify current practice and eliminate duplication.
    On May 3, 2016, the Commission issued a Notice of Proposed 
Rulemaking (NPRM) seeking public comment on the proposed amendments. 81 
FR 26517. The Commission received one comment in response to the NPRM 
from the American Association of Port Authorities (AAPA) that addressed 
proposed Sec.  502.204, revising and renumbering Sec.  502.156. Current 
Sec.  502.156 states ``[u]nless inconsistent with the requirements of 
the Administrative Procedure Act and these Rules, the Federal Rules of 
Evidence . . . will also be applicable.'' As explained in the NPRM, the 
proposed revision is intended to simplify the language in the rule by 
restating the liberal Administrative Procedure Act (APA) standard for 
admissibility and also to provide that the presiding officer may 
continue to look to the Federal Rules of Evidence (FRE) for guidance.
    The Commission adopted the original language in Sec.  502.156 in 
1976, shortly after the FRE went into effect. 41 FR 20585, 20588 (May 
19, 1976). In the 1975 notice proposing the language the Commission 
asserted that, as a general matter, the FRE did not appear to be 
inconsistent with the APA and that the FRE could be of great use to the 
Commission's administrative law judges (ALJs) in disposing of 
evidentiary issues that arise in Commission proceedings, so long as 
they were consistent with the requirements of the APA. 40 FR 43295, 
43927 (Sep. 24, 1975). Since promulgation of the section, however, the 
Commission ``has recognized the liberal standards of admissibility of 
evidence in administrative proceedings and has repeatedly `. . . 
identified the need for considerable relaxation of the rules of 
evidence followed by the federal courts in proceedings before the 
Commission.' '' EuroUSA Shipping, Inc., Tober Group, Inc.--Possible 
Violations, 31 S.R.R. 540, 547 (FMC 2008) (hereinafter Tober) (quoting 
Pacific Champion Express Co., Ltd.--Possible Violations, 28 S.R.R. 
1102, 1105-06 (ALJ 1999)). Given the divergence between the FRE and APA 
standards, the current section's attempt to apply both standards 
simultaneously creates a tension in the regulation and could be 
confusing to parties. Accordingly, the Commission is now explicitly 
providing that presiding officers may look to the FRE for guidance when 
determining the admissibility of evidence. The AAPA notes that current 
rule Sec.  502.156, states that the FRE ``will be applicable'' to 
Commission proceedings ``unless inconsistent with'' the requirements of 
the APA whereas the proposed language provides that the presiding 
officer ``may look to the FRE for guidance.'' The AAPA inquires whether 
such a change is intended to loosen the admissibility standard in cases 
before the Commission, and if so, to what to degree. The new rule does 
not loosen the admissibility standards, but rather clarifies, based on 
Commission and judicial precedent, that the standard of admissibility 
is governed by the APA, not the FRE. While the presiding officer may 
consider the FRE for guidance, they are neither controlling nor 
binding. In response to the AAPA's expressed concern that the revised 
language suggests a change in the presiding officer's discretion, we 
clarify the final rule by replacing the language ``look to the FRE for 
guidance'' with the language ``consider the FRE for guidance'' as it 
better reflects the discretion of the presiding officer.
    The Commission recently addressed the utility of applying the FRE 
in proceedings before it in Tober. Pointing to its own precedent, the 
Commission noted that it has long recognized the liberal standards of 
admissibility of evidence in administrative proceedings and the need 
for considerable relaxation of the rules of evidence followed by the 
federal courts in proceedings before the Commission. Applying those 
standards to the ALJ's exclusion of certain exhibits on the basis of 
the FRE, the Commission held that challenged exhibits were admissible 
under the APA standard and that ``to the extent that the Commission's 
rules and the APA diverge from the FRE, the FRE are not controlling and 
the Commission is not bound by their requirements.'' Id., 549.
    The AAPA also states that the proposed rule could impact motions 
for summary judgment. It noted that in federal court, a party opposing 
a motion on the grounds that there are material facts in genuine 
dispute must show that there is admissible evidence on its side of the 
asserted dispute. The AAPA appears to be concerned that a loosening of 
the standard may limit the utility of summary judgment motions. The 
Commission addressed the admissibility of evidence in the context of 
motions for summary judgment in Tober. Citing the Supreme Court's 
decision in Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), the 
Commission stated: ``While the nonmoving party is to show facts that 
present a genuine issue worthy of trial, the nonmoving party at the 
summary judgment stage is not required to produce evidence in a form 
that would be admissible at trial.'' Id., 31 S.R.R. at 549 (emphasis 
added). Thus, the Commission made clear that at the summary judgment 
stage, the nonmoving party only needs to show facts that present a 
genuine issue worthy of trial. Id. This standard is applied to ensure 
that doubts are resolved in favor of the nonmoving party. As the 
Commission noted, it has denied summary judgment even when the 
nonmovant has not submitted any

[[Page 93832]]

evidence, as well as when evidence has been deemed to be incomplete. 
Id., 546. In short, there is no requirement in the federal courts or at 
the Commission that the party opposing a motion for summary judgment 
present evidence that would be admissible at trial or hearing. To the 
extent that the question of admissibility might arise at the summary 
judgment stage, the proposed rule does not change existing standards 
but simply continues application of the liberal standard mandated by 
the APA.
    The AAPA also expresses concern that making reliance on the FRE 
discretionary may create discrepancies in the decisions of Presiding 
Officers, either because a Presiding Officer may choose to follow the 
FRE in one case but choose not to follow it in another, or because 
different Presiding Officers may apply different standards.
    The revised rule does not create new or different standards. There 
is only one standard as provided in the APA, i.e., ``all evidence which 
is relevant, material, reliable and probative, and not unduly 
repetitious or cumulative, shall be admissible.'' 46 CFR 502.156; 5 
U.S.C. 556(d). The FRE will continue to be available to the presiding 
officer as a resource for guidance in determining admissibility of 
evidence under the APA standard. Any legal inconsistency in decisions 
on the admissibility of evidence will be subject to review by the 
Commission under the APA standard as in Tober.
    Finally, the AAPA expressed concern that the Presiding Officer may 
perceive that the revised rule does not accord discretion to exclude 
evidence considered unreliable. Both the current and revised language 
are governed however by the same standard set forth in the APA.
    The APA standard of admissibility has been the governing standard 
since this regulation was originally adopted in 1965. Since 
incorporation into the existing regulation in 1976, the FRE have always 
been subservient to the liberal APA standard. The revised language in 
the proposed rule adheres to this standard as required by the APA, 
while recognizing the usefulness of the FRE for guidance.
    In 1986, the Administrative Conference of the United States (ACUS) 
published recommendations regarding the use of the FRE in 
administrative proceedings. ACUS compared three general categories of 
agency evidentiary rules. 1986 ACUS 6, 51 FR 25642. The category that 
is most analogous to current Sec.  502.156 included ``rules that 
require presiding officers to apply the [FRE] `so far as 
practicable.''' Id. ACUS identified four significant disadvantages with 
respect to this standard including:

    (1) Courts seem confused as to what it means or how to enforce 
it; (2) instructing presiding officers to exclude evidence based on 
the standard forces them to undertake a difficult and hazardous 
task; (3) excluding evidence on the basis that it is inadmissible in 
a jury trial is totally unnecessary to insure that agencies act only 
on the basis of reliable evidence; and (4) agencies, like other 
experts, should be permitted to rely on classes of evidence broader 
than those that can be considered by lay jurors.

    Id. Accordingly, ACUS recommended that ``Congress should not 
require agencies to apply the [FRE], with or without the qualification 
`so far as practicable,' to limit the discretion of presiding officers 
to admit evidence in formal adjudications.'' Id. ACUS also recognized, 
however, the disadvantages of relying on the APA standard alone, and 
the Commission has concluded that the FRE can be useful as a guide for 
litigants and presiding officers.

Reorganization of Part 502

    Part 502 sets out the rules governing procedure in all types of 
Commission proceedings. However, after years of revisions, some users 
find the grouping and ordering of the subparts confusing. The 
Commission will reorder and rename certain subparts to better reflect 
the chronology of a typical adjudication, and to distinguish other 
types of proceedings, as enumerated in this table:

------------------------------------------------------------------------
                                    New 46 CFR part
     Current 46 CFR part 502              502              Revisions
------------------------------------------------------------------------
Subpart A, General Information..  ..................  Redesignate Sec.
                                                       502.141 as Sec.
                                                       502.14.
Subpart E, Proceedings;           Subpart E, Private  Separate subpart E
 Pleadings; Motions; Replies.      Complaints and      in to subparts E
                                   Commission          and F, relocate
                                   Investigations.     and regroup rules
                                                       within both
                                                       subparts.
Subpart F, Settlement;            Subpart F,          Separate subpart E
 Prehearing Procedure.             Petitions,          in to subparts E
                                   Exemptions and      and F, relocate
                                   Orders to Show      and regroup rules
                                   Cause.              within both
                                                       subparts.
Subpart J, Hearings; Presiding    Subpart L,          Revise several
 Officers; Evidence.               Presentation of     sections and
                                   Evidence.           relocate all (see
                                                       Table below).
Subpart K, Shortened Procedure..  Subpart K           Remove subpart K
                                   [Reserved].         in its entirety.
Subpart L, Disclosures and        Subpart J,          Relocate and
 Discovery.                        Disclosures and     redesignate all
                                   Discovery.          rules to subpart
                                                       J.
Subpart M, Briefs; Requests for   Subpart M;          Relocate Sec.
 Findings; Decisions; Exceptions.  Decisions,          502.153, remove
                                   Appeals,            Sec.   502.222
                                   Exceptions.         and retitle.
------------------------------------------------------------------------

Subpart A

    In subpart A, several cross references are corrected and current 
Sec.  502.141 which establishes that the Commission may hold hearings 
that are not part of an adjudicatory process, is moved to this subpart 
as general information and retitled.

Subpart D

    Cross references are corrected in subpart D.

Subpart E

    Subpart E, currently ``Proceedings, Pleading, Motions, Replies'' is 
renamed ``Private Complaints and Commission Investigations.'' Revised 
subpart E contains the procedures for institution of those proceedings, 
motions practice, opportunity for settlement, and other related rules. 
Section 502.61 which opens the subpart is revised by moving and 
amending a rule on notice of hearings from subpart J. Section 502.91 
which deals with informal settlements is being moved to subpart E in 
order to clarify chronologically when informal settlement is most 
likely to occur. This change is not intended to limit the applicability 
of the section which would apply in any proceeding, including the 
proceedings described in subpart F.

Subpart F

    Current subpart F addresses Settlement and Prehearing Procedure. 
Inasmuch as those subject areas are part of the process in adjudicatory 
proceedings, they are divided and moved into subpart E and a revised

[[Page 93833]]

subpart L governing presentation of evidence.
    Subpart F is revised to apply to proceedings other than private 
complaints and Commission investigations, titled: ``Petitions, 
Exemptions, and Orders to Show Cause.'' These types of proceedings are 
generally distinct from complaint and investigation proceedings. With 
clear headings, the new rules are intended to be easier for the user to 
locate. Revised subpart F encompasses current Sec. Sec.  502.73 through 
502.77.

Subparts J, and L

    The Commission is changing subpart J, ``Hearings; Presiding 
Officers; Evidence'', and subpart L, ``Disclosure and Discovery'' to 
more logically and chronologically group the processes conducted in a 
formal adjudication. Subpart L, Disclosure and Discovery is moved in 
its entirety to subpart J. Current subpart J, Hearings, is revised to 
encompass all rules governing the presentation of evidence and 
presented in revised subpart L titled ``Presentation of Evidence.'' The 
revisions to subpart J are discussed more extensively below.

Subpart K

    The Commission is removing and reserving subpart K, ``Shortened 
Procedure.'' Shortened Procedure regulations provides that, if the 
respondent consents, after briefing by the parties, the record is 
closed and a decision may be issued without discovery or an oral 
hearing. The procedure has rarely been requested, although parts of the 
procedure have become standard practice (e.g., not requiring an oral 
hearing). The procedure has not resulted in an ALJ decision in recent 
history, as the three proceedings utilizing shortened procedure since 
1998 have resulted in settlement. The Commission has made several rule 
revisions in the past five years that have enhanced the efficiency of 
formal complaint proceedings including the requirement for initial 
disclosures in discovery, (current Sec.  502.201), and the 
establishment of default rules in the absence of an answer, Sec.  
502.62(b)(6). Shortened procedure rules are not consistent with the 
requirement for initial disclosures, which help expedite all 
proceedings. If parties want to further limit discovery, that is 
possible without the provisions of subpart K. Moreover, the subparts S 
and T small claims proceedings may offer a solution to litigants 
seeking faster resolution of their disputes. The rules governing small 
claims proceedings are designed to make the litigation process faster 
and simpler for litigants seeking reparations of $50,000 or less.

Subpart M

    The Commission revises subpart M to cover only matters that occur 
after conclusion of the parties' presentations in proceedings (i.e., 
decisions, appeals and exceptions). The rules concerning briefs are 
moved into revised subpart L, ``Presentation of Evidence.'' However, 
rules governing briefs to accompany exceptions will remain in subpart 
M. Current Sec.  502.153, Appeals from ruling of presiding officer 
other than orders of dismissal in whole or in part are moved into 
subpart M, as it concerns an appeal.

------------------------------------------------------------------------
    Subpart M current section         New section          Revisions
------------------------------------------------------------------------
Sec.   502.221, Briefs; requests  Subpart L, Sec.     Revised for
 for findings.                     502.214, Briefs.    clarity.
Sec.   502.222, Requests for      Subpart L, Sec.     Revised for
 enlargement of time for filing    502.215.            clarity.
 briefs.
Sec.  Sec.   502.223 through      Text unchanged.
 502.229.
Sec.   502.230, Reopening by      Sec.   502.230,     Rule concerning
 presiding officer or Commission.  Reopening by        supplementing
                                   Commission.         evidence prior to
                                                       an initial
                                                       decision will be
                                                       moved to Sec.
                                                       502.216,
                                                       Supplementing the
                                                       record.
------------------------------------------------------------------------

Subpart J, Hearings--Presentation of Evidence

    Currently subpart J, Hearings, presents the Commission's rules on 
hearings and presentation of evidence. These rules governing 
presentation of evidence are revised and presented in revised subpart 
L. The revisions are intended to reflect the procedures currently used 
by the Commission, to utilize current language and standards set by the 
Federal Rules of Civil Procedure where appropriate, and to clarify and 
simplify rules where possible. Several rules currently in the subpart 
will be removed in their entirety to eliminate duplication and reflect 
current practice. The revisions to subpart J are enumerated in the 
table below:

------------------------------------------------------------------------
    Subpart J current section        New Subpart L         Revisions
------------------------------------------------------------------------
Sec.   502.141, Hearings not      Move to subpart A.  Does not pertain
 required by statute.                                  to adjudicatory
                                                       hearings.
Sec.   502.142, Hearings          Sec.   502.201,     Revised to define
 required by statute.              Applicability and   ``hearing''.
                                   Scope.
Sec.   502.143, Notice of nature  Moved to Sec.       ..................
 of hearing, jurisdiction and      502.61(c),
 issues.                           Proceedings.
Sec.   502.144, Notice of time    Sec.   502.211....  Regroup with other
 and place of hearing;                                 rules pertaining
 postponement of hearing.                              only to oral
                                                       hearings.
Sec.  Sec.   502.145 through
 502.149 [Reserved].
Sec.   502.150, Further evidence  Remove............  Within presiding
 required by presiding officer                         officer's
 during hearing.                                       authority to
                                                       regulate a
                                                       hearing in Sec.
                                                       502.25(b)(3).
Sec.   502.151, Exceptions to     Sec.   502.212....  Regroup with other
 rulings of presiding officer                          rules pertaining
 unnecessary.                                          only to oral
                                                       hearings.
Sec.   502.152, Offer of Proof..  Sec.   502.204(b).  Moved because
                                                       related to
                                                       admissibility.
Sec.   502.153, Appeal from       Subpart M, Sec.     Revised and moved
 ruling of presiding officer       502.221.            to subpart M as
 other than orders of dismissal                        it concerns an
 in whole or in part.                                  appeal.
Sec.   502.154, Rights of         Sec.   502.202....  Revised to mirror
 parties as to presentation of                         APA.
 evidence.
Sec.   502.155, Burden of proof.  Sec.   502.203....  Revised for
                                                       clarity.
Sec.   502.156, Evidence          Sec.   502.204....  Revised to
 admissible.                                           clarity.

[[Page 93834]]

 
Sec.   502.157, Written evidence  Removed...........  Within presiding
                                                       officer's
                                                       authority to
                                                       regulate a
                                                       hearing in Sec.
                                                       502.25(b)(3).
Sec.   502.158, Documents         Removed...........  Within presiding
 containing matter not material.                       officer's
                                                       authority to
                                                       regulate a
                                                       hearing in Sec.
                                                       502.25(b)(3).
Sec.   502.159 [Reserved].
Sec.   502.160, Records in other  Sec.   502.205.
 proceedings.
Sec.   502.161, Commission's      Sec.   502.206,     Revised for
 files.                            Incorporation by    clarity.
                                   reference.
Sec.   502.162, Stipulations....  Sec.   502.207....  Revised for
                                                       clarity.
Sec.   502.163, Receipt of        Removed...........  Covered by Sec.
 documents after hearing.                              502.216,
                                                       Supplementing the
                                                       record.
Sec.   502.164, Oral argument at  Removed...........  Within presiding
 hearing.                                              officer's
                                                       authority to
                                                       regulate a
                                                       hearing in Sec.
                                                       502.25(b)(3).
Sec.   502.165, Official          Sec.   502.213....  Revised and
 Transcript.                                           modernized.
Sec.   502.166, Correction of     Sec.   502.213.
 transcript.
Sec.   502.167, Objection to      Sec.   502.208....  Revised to cross
 public disclosure of                                  reference Sec.
 information.                                          502.5.
Sec.   502.168, Copies of data    Removed...........  Covered by Sec.
 or evidence.                                          502.212.
Sec.   502.169, Record of         Sec.   502.217....  Revised for
 decision.                                             clarity.
------------------------------------------------------------------------

    Following is a more detailed description of each new rule that will 
appear in revised subpart L.
Sec.  502.201, Applicability and Scope
    Sec.  502.201 is derived and moved from current Sec.  502.142 and 
sets out the proceedings for which the rules in the subpart will apply. 
The term hearing is defined as ``a formal adjudicatory proceeding in 
which evidence is presented orally, or through written statement, or by 
combination thereof'' to reflect the broader and more inclusive meaning 
of the term in current administrative practice.
Sec.  502.202, Right of Parties To Present Evidence
    Sec.  502.202 is derived and moved from current Sec.  502.154 but 
is revised to reflect that the presiding officer may limit introduction 
of evidence if it is ``irrelevant, immaterial, or unduly repetitious'' 
mirroring the Administrative Procedure Act.
Sec.  502.203, Burden of Proof
    Sec.  502.203 is derived and moved from current Sec.  502.155 and 
clarifies the language to include reference to motions for ease of 
understanding the burden of proof.
Sec.  502.204, Evidence Admissible
    Discussion of Sec.  502.204(a) is above in discussion of the AAPA 
comment. Also, the text of current Sec.  502.152 has been modernized to 
clarify the procedures governing when and how to make an offer of 
proof. The rule is moved into revised Sec.  502.204 as paragraph (b) as 
a logical part of the rule governing admissibility of evidence. The 
final rule revises slightly the proposed rule for clarity.
Sec. Sec.  502.205 and 502.206, Documents Incorporated Into the Record 
by Reference
    Revising current Sec.  502.160 (revised Sec.  502.205) allows 
documents in another Commission proceeding to be incorporated into the 
record by reference. The final rule revises slightly the proposed rule 
for clarity. Sec.  502.206 allows material in any document on file with 
the Commission that is also available to the public to be incorporated 
into the record by reference.
Sec.  502.207, Stipulations
    Current Sec.  502.162 allows for stipulation. The rule is moved to 
Sec.  502.207 and revises the language for clarity.
Sec.  502.208, Objection to Public Disclosure of Information
    Sec.  502.208 revises current Sec.  502.167, Objection to public 
disclosure of information. The change adds a cross reference to Sec.  
502.5 where the Commission recently spelled out its requirements for 
submission of confidential material in a final rule. 80 FR 14318 (Mar. 
19, 2015.)
Sec. Sec.  502.209 and 502.210, Prehearing Conference and Statements
    Current Sec. Sec.  502.94 and 502.95 are moved from subpart E as 
they pertain to hearings. The language is clarified to reflect current 
practice of filing a motion instead of a petition in Rule 502.209. The 
procedure and timeline for filing a prehearing statement are provided 
in 502.210.
Sec. Sec.  502.211 Through 502.213, Oral Hearings
    Sec. Sec.  502.211 through 502.213 deal with oral hearings and 
consist of the provisions found in current Sec. Sec.  502.144, 502.151, 
and 502.165. Current Sec.  502.165, Official transcript, requires 
revision as it currently contains a description of section 11 of the 
Federal Advisory Committee Act (FACA) and the Office of Management and 
Budget's (OMB) interpretation of that section, which are the basis for 
the Commission's regulations with respect to obtaining copies of 
transcripts. In order to simplify these provisions, the Commission 
includes in the new Sec.  502.213 only the relevant requirements and 
deletes the aforementioned references to FACA and OMB's interpretation.
Sec. Sec.  502.214 and 502.215, Briefs
    Sections 502.221 and 502.222 concerning briefs are included in this 
subpart and renumbered as Sec. Sec.  502.214 and 502.215. The last 
sentence of Sec.  502.221(a), which requires that the period of time 
for filing briefs will be the same for both parties, is removed as 
setting time is within the powers of the presiding officer as 
established in recently revised Sec.  502.25. Section 502.221(c) is 
deleted as it is not current practice for the Presiding Officer to 
``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.'' Generally, the Commission's Bureau of Enforcement (BOE) files 
the first brief unless concurrent briefs are appropriate for the 
particular case; this is more appropriate to address in the scheduling 
order issued in each particular proceeding.
Sec.  502.216, Supplementing the Record
    Current Sec.  502.230(a), Motion to Reopen, is renumbered, renamed 
and revised to provide instructions concerning submission of evidence 
after final presentations in a proceeding and

[[Page 93835]]

prior to issuance of an initial decision. The language of the rule and 
the heading ``Supplementing the record'' is more descriptive of the 
current practice before the Commission's Administrative Law Judges but 
does not substantively revise the process or rights of a party to a 
proceeding.
Sec.  502.217, Record of Decision
    Current Sec.  502.169 is moved to subpart L and the reference to 
``filing and motions'' replaces ``paper and requests.''
    The Commission has found that several regulations reference these 
rules, and that these references may now be inaccurate due to shifts in 
numbering. The Commission plans to correct these references in the near 
future through technical corrections, which will be published in the 
Federal Register.

Rulemaking Analyses and Notices

Regulatory Flexibility Act

    The Regulatory Flexibility Act (codified as amended at 5 U.S.C. 
601-612) provides that whenever an agency promulgates a final rule 
after being required to publish a notice of proposed rulemaking under 
the Administrative Procedure Act (APA) (5 U.S.C. 553), the agency must 
prepare and make available a final regulatory flexibility analysis 
(FRFA) describing the impact of the rule on small entities. 5 U.S.C. 
604. An agency is not required to publish a FRFA, however, for the 
following types of rules, which are excluded from the APA's notice-and-
comment requirement: interpretative rules; general statements of 
policy; rules of agency organization, procedure, or practice; and rules 
for which the agency for good cause finds that notice and comment is 
impracticable, unnecessary, or contrary to public interest. See 5 
U.S.C. 553(b).
    Although the Commission elected to seek public comment on its 
proposed regulatory amendments to part 502, these amendments concern 
the Commission's practice and procedures. Therefore, the APA does not 
require publication of a notice of proposed rulemaking in this 
instance, and the Commission is not required to prepare a FRFA.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) requires 
an agency to seek and receive approval from the Office of Management 
and Budget (OMB) before collecting information from the public. 44 
U.S.C. 3507. The agency must submit collections of information in rules 
to OMB in conjunction with the publication of the notice of proposed 
rulemaking. 5 CFR 1320.11. This final rule does not contain any 
collections of information, as defined by 44 U.S.C. 3502(3) and 5 CFR 
1320.3(c).

Regulation Identifier Number

    The Commission assigns a regulation identifier number (RIN) to each 
regulatory action listed in the Unified Agenda of Federal Regulatory 
and Deregulatory Actions (Unified Agenda). The Regulatory Information 
Service Center publishes the Unified Agenda in April and October of 
each year. You may use the RIN contained in the heading at the 
beginning of this document to find this action in the Unified Agenda, 
available at http://www.reginfo.gov/public/do/eAgendaMain.

List of Subjects in 46 CFR Part 502

    Administrative practice and procedure, Archives and records, 
Business and industry, Classified information, Confidential business 
information, Consumer protection, Freedom of information, Government in 
the Sunshine Act, Government publications, Health records, Information, 
Newspapers and magazines, Paperwork requirements, Printing, 
publications, Privacy, Public meetings, Record retention, Records, 
Reporting and recordkeeping requirements, Trade names, Trade practices.

    For the reasons stated in the preamble, 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 continues to read as follows:

    Authority:  5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 
571-596, 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.


Sec.  502.5   [Amended]

0
2. Amend Sec.  502.5:
0
a. In the introductory text, by removing the phrase ``502.167, 
502.201(j)(1)(vii)'' and adding in its place the phrase 
``502.141(j)(1)(vii), 502.208'', and by removing the reference ``Sec.  
502.201(j)'' and adding in its place the reference ``Sec.  
502.141(j)''; and
0
b. In paragraph (b) by removing the reference ``Sec.  
502.201(j)(1)(vii)'' and adding in its place the reference ``Sec.  
502.141(j)(1)(vii)''.


Sec.  502.6   [Amended]

0
3. Amend Sec.  502.6(c) by removing the phrase ``Sec.  502.203 or Sec.  
502.204'' and adding in its place the phrase ``Sec.  502.143 or Sec.  
502.144''.


Sec.  501.10   [Amended]

0
4. Amend Sec.  502.10 by removing the reference ``502.153'' and adding 
in its place the reference ``502.221''.

Subpart D--Rulemaking


Sec.  502.52   [Amended]

0
5. Amend Sec.  502.52 by removing the citation ``Sec.  502.143'' and 
adding in its place the citation ``Sec.  502.61(c)''.


Sec.  502.53   [Amended]

0
6. Amend Sec.  502.53(a) by removing the reference ``subpart J'' and 
adding in its place the reference ``subpart L''.

Subpart E--Private Complaints and Commission Investigations

0
7. Revise the subpart E heading to read as set forth above.

0
8. Amend Sec.  502.61 by removing the words ``under normal or shortened 
procedures (subpart K)'' and the last sentence from paragraph (a); 
redesignating paragraph (b) as paragraph (d) and adding a new paragraph 
(b) and paragraph (c) to read as follows:


Sec.  502.61   Proceedings

* * * * *
    (b) The Commission may commence a proceeding for a rulemaking, for 
an adjudication (including Commission enforcement action under Sec.  
502.63), or a non-adjudicatory investigation upon petition or on its 
own initiative by issuing an appropriate order.
    (c) Persons entitled to notice of hearings, except those notified 
by complaint service under Sec.  502.113, will be duly and timely 
informed of the nature of the proceeding, the legal authority and 
jurisdiction under which the proceeding is conducted, and the terms, 
substance, and issues involved, or the matters of fact and law 
asserted, as the case may be. Such notice will be published in the 
Federal Register unless all persons subject thereto are named and 
either are served or otherwise have notice thereof in accordance with 
law.
* * * * *


Sec.  502.69   [Amended]

0
9. Amend Sec.  502.69(f) by removing ``shortened procedure (subpart K 
of this part)'' and removing the citation ``Sec.  502.221'' and adding 
in its place the citation ``Sec.  502.214''.

[[Page 93836]]

Subpart F--Petitions, Exemptions, and Orders to Show Cause

0
10. Revise the subpart F heading to read as set forth above.


Sec. Sec.  502.91 through 502.95   [Removed]

0
11. Remove Sec. Sec.  502.91 through 502.95.


Sec. Sec.  502.73 through 502.77   [Redesignated as Sec. Sec.  502.91 
through 502.95 and Transferred to Subpart F]

0
12. Redesignate Sec. Sec.  502.73 through 502.77 as Sec. Sec.  502.91 
through 502.95, respectively, and transfer them to subpart F.


Sec. Sec.  502.78 and 502.79   [Redesignated as Sec. Sec.  502.73 and 
502.74]

0
13. Redesignate Sec. Sec.  502.78 and 502.79 as Sec. Sec.  502.73 and 
502.74, respectively, in subpart E.

0
14. Add a new Sec.  502.75 to subpart E to read as follows:


Sec.  502.75   Opportunity for informal settlement.

    (a) Parties are encouraged to make use of all the procedures of 
this part that are designed to simplify or avoid formal litigation, and 
to assist the parties in reaching settlements whenever it appears that 
a particular procedure would be helpful.
    (b) Where time, the nature of the proceeding, and the public 
interest permit, all interested parties will have the opportunity for 
the submission and consideration of facts, argument, offers of 
settlement, or proposal of adjustment, without prejudice to the rights 
of the parties.
    (c) No settlement offer, or proposal will be admissible in evidence 
over the objection of any party in any hearing on the matter.
    (d) As soon as practicable after the commencement of any 
proceeding, the presiding officer will direct the parties or their 
representatives to consider the use of alternative dispute resolution, 
including but not limited to mediation, and may direct the parties or 
their representatives to consult with the Federal Maritime Commission 
Alternative Dispute Resolution Specialist about the feasibility of 
alternative dispute resolution.
    (e) Any party may request that a mediator or other neutral be 
appointed to assist the parties in reaching a settlement. If such a 
request or suggestion is made and is not opposed, the presiding officer 
will appoint a mediator or other neutral who is acceptable to all 
parties, coordinating with the Federal Maritime Commission Alternative 
Dispute Resolution Specialist. The mediator or other neutral will 
convene and conduct one or more mediation or other sessions with the 
parties and will inform the presiding officer, within the time 
prescribed by the presiding officer, whether the dispute resolution 
proceeding resulted in a resolution or not, and may make 
recommendations as to future proceedings. If settlement is reached, it 
will be submitted to the presiding officer who will issue an 
appropriate decision or ruling. All such dispute resolution proceedings 
are subject to the provisions of subpart U of this part.
    (f) Any party may request that a settlement judge be appointed to 
assist the parties in reaching a settlement. If such a request or 
suggestion is made and is not opposed, the presiding officer will 
advise the Chief Administrative Law Judge who may appoint a settlement 
judge who is acceptable to all parties. The settlement judge will 
convene and preside over conferences and settlement negotiations and 
will report to the presiding officer within the time prescribed by the 
Chief Administrative Law Judge, on the results of settlement 
discussions with appropriate recommendations as to future proceedings. 
If settlement is reached, it must be submitted to the presiding officer 
who will issue an appropriate decision or ruling. [Rule 75.]

0
15. Revise the newly redesignated Sec.  502.91 to read as follows:


Sec.  502.91   Order to show cause.

    The Commission may institute a proceeding by order to show cause. 
The order will be served upon all persons named therein, will include 
the information specified in Sec.  502.221, will require the person 
named therein to answer, and may require such person to appear at a 
specified time and place and present evidence upon the matters 
specified. [Rule 91.]

Exhibit No. 1 to Subpart F of Part 502 [Removed]

0
16. Remove reserved Exhibit No. 1 to Subpart F of Part 502.

Subpart H--Service of Documents


Sec.  502.114   [Amended]

0
17. Amend Sec.  502.114(a) by removing the citation ``Sec.  502.145'' 
and adding in its place the citation ``Sec.  502.131''.


Sec.  502.118   [Removed]

0
18. Remove Sec.  502.118.

Subpart I--Subpoenas


Sec.  502.132   [Amended]

0
19. Amend Sec.  502.132(c) by removing the citation ``Sec.  502.203'' 
and adding in its place the citation ``Sec.  502.143''.


Sec.  502.136   [Amended]

0
20. Amend Sec.  502.136 by removing the citation ``Sec.  502.210(b)'' 
and adding in its place the citation ``Sec.  502.150(b)''.

Subpart J--Disclosures and Discovery

0
21. Revise the subpart J heading to read as set forth above.

0
22. Redesignate Sec.  502.141 as Sec.  502.14, transfer it to subpart 
A, and revise the section heading to read as follows:


Sec.  502.14   Public hearings.

* * * * *


Sec. Sec.  502.142 through 502.150   [Removed]

0
23. Remove Sec. Sec.  502.142 through 502.150.


Sec. Sec.  502.201 through 502.210   [Redesignated as Sec. Sec.  
502.141 through 502.150 and Transferred to Subpart J]

0
24. Redesignate Sec. Sec.  502.201 through 502.210 as Sec. Sec.  
502.141 through 502.150, respectively, and transfer them to subpart J.


Sec.  502.143   [Amended]

0
25. Amend newly redesignated Sec.  502.143:
0
a. In paragraph (a)(1) by removing the citation ``Sec.  502.03(a)(2)'' 
and adding in its place the citation ``Sec.  502.143(a)(2)'';
0
b. In paragraph (a)(2)(i) by removing the citation ``Sec.  502.204'' 
and adding in its place the citation ``Sec.  502.144'';
0
c. In paragraph (b)(2) by removing the citation ``Sec.  502.206'' and 
adding in its place the citation ``Sec.  502.146'';
0
d. In paragraph (b)(5)(i) by removing the citation ``Sec.  502.202'' 
and adding in its place the citation``Sec.  502.142'';
0
e. In paragraph (b)(5)(ii) by removing the citation ``Sec.  
502.203(b)(5)(i)(A)'' and adding in its place the citation ``Sec.  
502.143(b)(5)(i)(A)'';
0
f. In paragraph (c)(1) by removing the citation ``Sec.  502.154'' and 
adding in its place the citation ``Sec.  502.202'' and by removing the 
citation ``Sec.  502.203(b)(3)'' and adding in its place the citation 
``Sec.  502.143(b)(3)'';
0
g. In paragraph (c)(2) by removing the citation ``Sec.  502.203(d)(2)'' 
and adding in its place the citation ``Sec.  502.143(d)(2)'';
0
h. In paragraph (d)(1) by removing the citation ``Sec.  502.201(e)(2)'' 
and adding in its place the citation ``Sec.  502.141(e)'';
0
i. In paragraph (d)(2)(ii) by removing the citation ``Sec.  
502.201(j)'' and adding in its place the citation ``Sec.  502.141(j)''; 
and

[[Page 93837]]

0
j. In paragraph (e)(2) by removing the citation ``Sec.  502.203(f)(1)'' 
and adding in its place the citation ``Sec.  502.143(f)(1)''.


Sec.  502.144   [Amended]

0
26. Amend newly redesignated Sec.  502.144:
0
a. In paragraph (a)(2)(i) by removing the citation``Sec.  502.203'' and 
adding in its place the citation ``Sec.  502.143'';
0
b. In paragraph (1)(4) by removing the citation ``Sec.  502.203(b)(6)'' 
and adding in its place the citation ``Sec.  502.143(b)(6)''.


Sec.  502.145   [Amended]

0
27. Amend newly redesignated Sec.  502.145:
0
a. In paragraph (a)(1) by removing the citation ``Sec.  502.201(e)(2)'' 
and adding in its place the citation ``Sec.  502.141(e)(2)'';
0
b. In paragraph (a)(2) by removing the citation ``Sec.  502.201(e) and 
(f)'' and adding in its place the citation ``Sec.  502.141(e) and (f)'' 
; and
0
c. In paragraph (b)(2) by removing the citation ``Sec.  502.201(l)'' 
and adding in its place the citation ``Sec.  502.141(l)''.


Sec.  502.146   [Amended]

0
28. Amend newly redesignated Sec.  502.146:
0
a. In paragraph (a) by removing the citation ``Sec.  502.201(e) and 
(f)'' and adding in its place the citation ``Sec.  502.141(e) and 
(f)''; and
0
b. In paragraph (b)(2) by removing the citation ``Sec.  502.201(l)'' 
and adding in its place the citation ``Sec.  502.141(l)''.


Sec.  502.147   [Amended]

0
29. Amend newly redesignated Sec.  502.147(a)(3) by removing the 
citation ``Sec.  502.201(l)'' and adding in its place the citation 
``Sec.  502.141(l)''.


Sec.  502.148   [Amended]

0
30. Amend newly redesignated Sec.  502.148(a) by removing the citation 
``Sec. Sec.  502.202 through 502.207'' and adding in its place the 
citation ``Sec. Sec.  502.142 through 502.147''.


Sec.  502.149   [Amended]

0
31. Amend newly redesignated Sec.  502.149:
0
a. In paragraph (a)(1)(iii) by removing the citation ``Sec.  
502.209(a)(2) through (7)'' and adding in its place the citation``Sec.  
502.149(a)(2) through (7)'';
0
b. In paragraph (a)(2) by removing the citation ``Sec.  502.156 of 
subpart J'' and adding in its place the citation ``Sec.  502.204 of 
subpart L'';
0
c. In paragraph (a)(3) by removing the phrase ``Sec.  502.203(b)(6) or 
Sec.  502.204(a)(4)'' and adding in its place the phrase ``Sec.  
502.143(b)(6) or Sec.  502.144(a)(4);
0
d. In paragraph (a)(7) by removing the citation ``Sec.  502.156 of 
subpart J'' and adding in its place the citation ``Sec.  502.204 of 
subpart L'';
0
e. In paragraph (b) by removing the phrase ``Sec.  502.202(b) and Sec.  
502.209(d)(3)'' and adding in its place the phrase ``Sec.  502.142(b) 
and Sec.  502.149(d)(3)''; and
0
f. In paragraph (d)(3)(iii) by removing the citation ``Sec.  502.204'' 
and adding in its place the citation ``Sec.  502.144''.


Sec.  502.150   [Amended]

0
32. Amend newly redesignated Sec.  502.150(a)(1) by removing the 
citation ``Sec.  502.201'' and adding in its place the citation ``Sec.  
502.141'' and by removing the citation ``Sec.  502.206'' and adding in 
its place the citation ``Sec.  502.146''.


Sec. Sec.  502.151 through 502.169   [Removed and reserved]

0
33. Remove and reserve Sec. Sec.  502.151 through 502.169.

Subpart K [Removed and Reserved]

0
34. Remove and reserve subpart K, consisting of Sec. Sec.  502.181 
through 502.187.

0
35. Revise subpart L to read as follows:

Subpart L--Presentation of Evidence

Sec.
502.201 Applicability and scope.
502.202 Right of parties to present evidence.
502.203 Burden of proof.
502.204 Evidence admissible.
502.205 Records in other proceedings.
502.206 Documents incorporated into the record by reference.
502.207 Stipulations.
502.208 Objection to public disclosure of information.
502.209 Prehearing conference.
502.210 Prehearing statements.
502.211 Notice of time and place of oral hearing; postponement of 
hearing.
502.212 Exceptions to rulings of presiding officer unnecessary.
502.213 Official transcript.
502.214 Briefs; requests for findings.
502.215 Requests for enlargement of time for filing briefs.
502.216 Supplementing the record.
502.217 Record of decision.


Sec.  502.201   Applicability and scope.

    (a) The rules in this subpart apply to adjudicatory proceedings 
conducted under the statutes administered by the Commission involving 
matters which require determination after notice and opportunity for 
hearing. Adjudicatory proceedings are formal proceedings commenced upon 
the filing of a sworn complaint or by Order of the Commission. Such 
proceedings will be conducted pursuant to the Administrative Procedure 
Act, 5 U.S.C. 551-559, and the rules in this subpart.
    (b) The term hearing means a formal adjudicatory proceeding in 
which evidence is presented orally, or through written statements, or 
by combination thereof. The term oral hearing means a hearing at which 
evidence is presented through oral testimony of a witness. [Rule 201].


Sec.  502.202   Right of parties to present evidence.

    Every party has the right to present its case or defense by oral or 
documentary evidence, to submit rebuttal evidence, and to conduct such 
cross-examination as may be required for a full and true disclosure of 
the facts. The presiding officer, however, has the right and duty to 
limit the introduction of evidence and the examination and cross-
examination of witnesses when, in his or her judgment, such evidence or 
examination is irrelevant, immaterial, or unduly repetitious. [Rule 
202.]


Sec.  502.203   Burden of proof.

    In all cases governed by the requirements of the Administrative 
Procedure Act, 5 U.S.C. 556(d), the burden of proof is on the proponent 
of the motion or the order. [Rule 203.]


Sec.  502.204   Evidence admissible.

    (a) In any proceeding under the rules in this part and in 
accordance with the Administrative Procedure Act, all evidence which is 
relevant, material, reliable and probative, and not unduly repetitious 
or cumulative, will be admissible. All other evidence will be excluded. 
The presiding officer may consider the Federal Rules of Evidence for 
guidance.
    (b) A party who objects to a ruling of the presiding officer 
rejecting or excluding proffered evidence may make an offer of proof. 
If the ruling excludes proffered oral testimony, an offer of proof may 
consist of a statement by counsel of the substance of the evidence that 
would be adduced, or in the discretion of the presiding officer, 
testimony of the witness. If the ruling excludes documents offered as 
evidence or reference to documents or records, the documents or records 
shall be marked for identification and will constitute the offer of 
proof. [Rule 204.]


Sec.  502.205   Records in other proceedings.

    Portions of the record of other proceedings may be received in 
evidence. A true copy of the records sought to be admitted must be 
presented in the form of an exhibit unless the presiding officer 
accepts the parties' stipulation that such records may be incorporated 
by reference. [Rule 205.]

[[Page 93838]]

Sec.  502.206   Documents incorporated into the record by reference.

    Any matter contained in a document on file with the Commission that 
is available to the public may be received in evidence through 
incorporation by reference without producing such document, provided 
that the matter so offered is specified in such manner as to be clearly 
identified, with sufficient particularity, and readily located 
electronically. [Rule 206.]


Sec.  502.207   Stipulations.

    The parties may, and are encouraged to, stipulate any facts 
involved in the proceeding and include them in the record with the 
consent of the presiding officer. A stipulation may be admitted even if 
all parties do not agree, provided that any party who does not agree to 
the stipulation has the right to cross-examine and offer rebuttal 
evidence. [Rule 207.]


Sec.  502.208   Objection to public disclosure of information.

    (a) If any party wishes to present confidential information or upon 
objection to public disclosure of any information sought to be 
elicited, the requirements and procedures in Sec.  502.5 will apply.
    (b) In an oral hearing, the presiding officer may in his or her 
discretion order that a witness will disclose such information only in 
the presence of the parties and those designated and authorized by the 
presiding officer. Any transcript of such testimony will be held 
confidential to the extent the presiding officer determines. Copies of 
transcripts will be served only to authorized parties or their 
representatives or other parties as the presiding officer may 
designate.
    (c) Any information given pursuant to this section may be used by 
the presiding officer or the Commission if deemed necessary to a 
correct decision in the proceeding. [Rule 208.]


Sec.  502.209   Prehearing conference.

    (a)(1) Prior to any hearing, the Commission or presiding officer 
may direct all interested parties, by written notice, to attend one or 
more prehearing conferences for the purpose of considering any 
settlement under Sec.  502.91, formulating the issues in the 
proceeding, and determining other matters to aid in its disposition. In 
addition to any offers of settlement or proposals of adjustment, the 
following may be considered:
    (i) Simplification of the issues;
    (ii) The necessity or desirability of amendments to the pleadings;
    (iii) The possibility of obtaining admissions of fact and of 
documents that will avoid unnecessary proof;
    (iv) Limitation of the number of witnesses;
    (v) The procedure to be used at the hearing;
    (vi) The distribution to the parties prior to the hearing of 
written testimony and exhibits;
    (vii) Consolidation of the examination of witnesses by counsel;
    (viii) Such other matters as may aid in the disposition of the 
proceeding.
    (2) Prior to the hearing, the presiding officer may require 
exchange of exhibits and any other material that may expedite the 
hearing. The presiding officer will assume the responsibility of 
accomplishing the purposes of the notice of prehearing conference so 
far as this may be possible without prejudice to the rights of any 
party.
    (3) The presiding officer will rule upon all matters presented for 
decision, orally upon the record when feasible, or by subsequent ruling 
in writing. If a party determines that a ruling made orally does not 
cover fully the issue presented, or is unclear, such party may file a 
motion requesting a further ruling within ten (10) days after receipt 
of the transcript.
    (b) In any proceeding under the rules in this part, the presiding 
officer hold an informal conference prior to the taking of testimony, 
or may recess the hearing for such a conference, with a view to 
carrying out the purposes of this section.
    (c) At any prehearing conference, consideration may be given to 
whether the use of alternative dispute resolution would be appropriate 
or useful for the disposition of the proceeding whether or not there 
has been previous consideration of such use. [Rule 209.]


Sec.  502.210   Prehearing statements.

    (a) Unless a waiver is granted by the presiding officer, it is the 
duty of all parties to a proceeding to prepare a statement or 
statements at a time and in the manner to be established by the 
presiding officer provided that there has been reasonable opportunity 
for discovery. To the extent possible, joint statements should be 
prepared.
    (b) The prehearing statement must state the name of the party or 
parties on whose behalf it is presented and briefly set forth the 
following matters, unless otherwise ordered by the presiding officer:
    (1) Issues involved in the proceeding.
    (2) Facts stipulated pursuant to the procedures together with a 
statement that the party or parties have communicated or conferred in a 
good faith effort to reach stipulation to the fullest extent possible.
    (3) Facts in dispute.
    (4) Witnesses and exhibits by which disputed facts will be 
litigated.
    (5) A brief statement of applicable law.
    (6) The conclusion to be drawn.
    (7) Suggested time and location of hearing and estimated time 
required for presentation of the party's or parties' case.
    (8) Any appropriate comments, suggestions, or information which 
might assist the parties in preparing for the hearing or otherwise aid 
in the disposition of the proceeding.
    (c) The presiding officer may, for good cause shown, permit a party 
to introduce facts or argue points of law outside the scope of the 
facts and law outlined in the prehearing statement. Failure to file a 
prehearing statement, unless waiver has been granted by the presiding 
officer, may result in dismissal of a party from the proceeding, 
dismissal of a complaint, judgment against respondents, or imposition 
of such other sanctions as may be appropriate under the circumstances.
    (d) Following the submission of prehearing statements, the 
presiding officer may, upon motion or otherwise, convene a prehearing 
conference for the purpose of further narrowing issues and limiting the 
scope of the hearing if, in his or her opinion, the prehearing 
statements indicate lack of dispute of material fact not previously 
acknowledged by the parties or lack of legitimate need for cross-
examination and is authorized to issue appropriate orders consistent 
with the purposes stated in this section. [Rule 210.]


Sec.  502.211   Notice of time and place of oral hearing; postponement 
of hearing.

    (a) The notice of an oral hearing will designate the time and place 
the person or persons who will preside, and the type of decision to be 
issued. The date or place of a hearing for which notice has been issued 
may be changed when warranted. Reasonable notice will be given to the 
parties or their representatives of the time and place of the change 
thereof, due regard being had for the public interest and the 
convenience and necessity of the parties or their representatives. 
Notice may be served by mail, facsimile transmission, or electronic 
mail.
    (b) Motions for postponement of any hearing date must be filed in 
accordance with Sec.  502.104. [Rule 211.]


Sec.  502.212   Exceptions to rulings of presiding officer unnecessary.

    A formal exception to a ruling or order is unnecessary. When the 
ruling or order is requested or made, the party

[[Page 93839]]

doing so need only state the action that it wants the presiding officer 
to take or that it objects to, along with the grounds for the request 
or objection. Failing to object does not prejudice a party who had no 
opportunity to do so when the ruling or order was made. [Rule 212.]


Sec.  502.213   Official transcript.

    (a) The Commission will designate the official reporter for all 
hearings. The official transcript of testimony taken, together with any 
exhibits and any briefs or memoranda of law filed therewith, will be 
filed with the Commission. Transcripts of testimony will be available 
in any proceeding under the rules in this part, at actual cost of 
duplication.
    (b)(1) Where the Commission does not request daily copy service, 
any party requesting such service must bear the incremental cost of 
transcription above the regular copy transcription cost borne by the 
Commission, in addition to the actual cost of duplication. Where the 
requesting party applies for and demonstrates that the furnishing of 
daily copy is indispensable to the protection of a vital right or 
interest in achieving a fair hearing, the presiding officer in the 
proceeding in which the application is made will order that daily copy 
service be provided the requesting party at the actual cost of 
duplication, with the full cost of transcription being borne by the 
Commission.
    (2) In the event a request for daily copy is denied by the 
presiding officer, the requesting party, in order to obtain daily copy, 
must pay the cost of transcription over and above that borne by the 
Commission, i.e., the incremental cost between that paid by the 
Commission when it requests regular copy and when it requests daily 
copy. The decision of the presiding officer in this situation is 
interpreted as falling within the scope of the functions and powers of 
the presiding officer, as defined in Sec.  502.25(a).
    (c) Motions made at the hearing to correct the transcript will be 
acted upon by the presiding officer. Motions made after an oral hearing 
to correct the record must be filed with the presiding officer within 
twenty-five (25) days after the last day of hearing or any session 
thereof, unless otherwise directed by the presiding officer, and must 
be served on all parties. If no objections are received within ten (10) 
days after date of service, the transcript will, upon approval of the 
presiding officer, be changed to reflect such corrections. If 
objections are received, the motion will be acted upon with due 
consideration of the stenographic record of the hearing. [Rule 213.]


Sec.  502.214   Briefs; requests for findings.

    (a) The presiding officer will determine the time and manner of 
filing briefs and any enlargement of time.
    (b) Briefs will be served upon all parties pursuant to subpart H of 
this part.
    (c) Unless otherwise ordered by the presiding officer, opening or 
initial briefs must contain the following matters in separately 
captioned sections:
    (1) Introductory section describing the nature and background of 
the case;
    (2) Proposed findings of fact in serially numbered paragraphs with 
reference to exhibit numbers and pages of the transcript;
    (3) Argument based upon principles of law with appropriate 
citations of the authorities relied upon; and
    (4) Conclusions.
    (d) All briefs must contain a subject index or table of contents 
with page references and a list of authorities cited.
    (e) All briefs filed pursuant to this section must ordinarily be 
limited to eighty (80) pages in length, exclusive of pages containing 
the table of contents, table of authorities, and certificate of 
service, unless the presiding officer allows the parties to exceed this 
limit for good cause shown and upon application filed not later than 
seven (7) days before the time fixed for filing of such a brief or 
reply. [Rule 214.]


Sec.  502.215   Requests for enlargement of time for filing briefs.

    Requests for enlargement of time to file briefs must conform to the 
requirements of Sec.  502.102. [Rule 215.]


Sec.  502.216   Supplementing the record.

    A motion to supplement the record, pursuant to Sec.  502.69, should 
be filed if submission of evidence is desired after the parties' 
presentation in a proceeding, but before issuance by the presiding 
officer of an initial decision. [Rule 216.]


Sec.  502.217   Record of decision.

    The transcript of testimony and exhibits, together with all filings 
and motions filed in the proceeding, will constitute the exclusive 
record for decision. [Rule 217.]

Subpart M--Decisions; Appeals; Exceptions

0
36. Revise the subpart M heading to read as set forth above.

0
37. Revise Sec.  502.221 to read as follows:


Sec.  502.221   Appeal from ruling of presiding officer other than 
orders of dismissal in whole or in part.

    (a) Rulings of the presiding officer may not be appealed prior to 
or during the course of the hearing, or subsequent thereto, if the 
proceeding is still before him or her, except where the presiding 
officer finds it necessary to allow an appeal to the Commission to 
prevent substantial delay, expense, or detriment to the public 
interest, or undue prejudice to a party.
    (b) Any party seeking to appeal must file a motion for leave to 
appeal no later than fifteen (15) days after written service or oral 
notice of the ruling in question, unless the presiding officer, for 
good cause shown, enlarges or shortens the time. Any such motion must 
contain the grounds for leave to appeal and the appeal itself.
    (c) Replies to the motion for leave to appeal and the appeal may be 
filed within fifteen (15) days after date of service thereof, unless 
the presiding officer, for good cause shown, enlarges or shortens the 
time. If the motion is granted, the presiding officer must certify the 
appeal to the Commission.
    (d) Unless otherwise provided, the certification of the appeal will 
not operate as a stay of the proceeding before the presiding officer.
    (e) The provisions of Sec.  502.10 do not apply to this section. 
[Rule 221.]


Sec.  502.222   [Removed and Reserved]

0
38. Remove and reserve Sec.  502.222.

0
39. Revise Sec.  502.230 to read as follows:


Sec.  502.230   Reopening by Commission.

    (a) Reopening by the Commission. After an initial decision by the 
presiding officer, or in a matter otherwise pending before the 
Commission, but before issuance of a Commission decision, the 
Commission may, after petition and reply in conformity with paragraphs 
(b) and (c) of this section, or upon its own motion, reopen a 
proceeding for the purpose of taking further evidence.
    (b) Motion to reopen. A motion to reopen shall be served in 
conformity with the requirements of subpart H and will set forth the 
grounds requiring reopening of the proceeding, including material 
changes of fact or law alleged to have occurred.
    (c) Reply. Within ten (10) days following service of a motion to 
reopen, any party may reply to such motion.
    (d) Remand by the Commission. Nothing contained in this rule 
precludes the Commission from remanding a proceeding to the presiding 
officer for the taking of addition evidence or determining points of 
law. [Rule 230.]


[[Page 93840]]


    By the Commission.
Rachel E. Dickon,
Assistant Secretary.
[FR Doc. 2016-30745 Filed 12-21-16; 8:45 am]
 BILLING CODE 6731-AA-P