80 FR 38153 - Organization and Functions; Rules of Practice and Procedure; Attorney Fees

FEDERAL MARITIME COMMISSION

Federal Register Volume 80, Issue 127 (July 2, 2015)

The Federal Maritime Commission proposes to amend its Rules of Practice and Procedure governing the award of attorney fees in Shipping Act complaint proceedings, and its regulations related to Commissioner terms and vacancies. The proposed regulatory changes would implement statutory amendments made by the Howard Coble Coast Guard and Maritime Transportation Act of 2014.

[Federal Register Volume 80, Number 127 (Thursday, July 2, 2015)]
[Proposed Rules]
[Pages 38153-38158]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-16260]


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FEDERAL MARITIME COMMISSION

46 CFR Parts 501 and 502

[Docket No. 15-06]
RIN 3072-AC61


Organization and Functions; Rules of Practice and Procedure; 
Attorney Fees

AGENCY: Federal Maritime Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Maritime Commission proposes to amend its Rules of 
Practice and Procedure governing the award of attorney fees in Shipping 
Act complaint proceedings, and its regulations related to Commissioner 
terms and vacancies. The proposed regulatory changes would implement 
statutory amendments made by the Howard Coble Coast Guard and Maritime 
Transportation Act of 2014.

DATES: Comments are due on or before: August 6, 2015.

ADDRESSES: You may submit comments, identified by Docket No. 15-06, by 
the following methods:
     Email: [email protected]. Include in the subject line: 
``Docket No. 15-06, Comments on Proposed Attorney Fee and Term Limit 
Regulations.'' Comments should be attached to the email as a Microsoft 
Word or text-searchable PDF document. Only non-confidential comments 
and public versions of confidential comments should be submitted by 
email. Comments containing confidential information should not be 
submitted by email.
     Mail: Karen V. Gregory, Secretary, Federal Maritime 
Commission, 800 North Capitol Street NW., Washington, DC 20573-0001.
    Docket: For access to the docket to read background documents and 
comments received, go to the Commission's Electronic Reading Room at: 
http://www.fmc.gov/15-06.
    Confidential Information: If your comments contain confidential 
information, you must submit the following:
     A transmittal letter requesting confidential treatment 
that identifies the specific information in the comments for which 
protection is sought and demonstrates that the information is a trade 
secret or other confidential research, development, or commercial 
information.
     A confidential copy of your comments, consisting of the 
complete filing with a cover page marked ``Confidential-Restricted,'' 
and the confidential material clearly marked on each page. You should 
submit the confidential copy to the Commission by mail.
     A public version of your comments with the confidential 
information excluded. The public version must state ``Public Version--
confidential materials excluded'' on the cover page and on each 
affected page, and must clearly indicate any information withheld. You 
may submit the public version to the Commission by email or mail.

The Commission will provide confidential treatment for the identified 
confidential information to the extent allowed by law.

FOR FURTHER INFORMATION CONTACT: For questions regarding submitting 
comments or the treatment of confidential information, contact Karen V. 
Gregory, Secretary, Federal Maritime Commission, 800 North Capitol 
Street NW., Washington, DC 20573-0001. Phone: (202) 523-5725. Email: 
[email protected].
    For all other questions, contact William H. Shakely, Office of the 
General Counsel, Federal Maritime Commission, 800 North Capitol Street 
NW., Washington, DC 20573-0001. Phone: (202) 523-5740. Email: 
[email protected].

[[Page 38154]]


SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Background
    A. Attorney Fees
    B. Commissioner Terms and Vacancies
III. Proposal
    A. Conforming Amendments
    1. Attorney-Fee Provision
    2. Terms and Vacancies Provisions
    B. Implementing the Amended Attorney-Fee Provision
    1. Who is eligible to recover attorney fees?
    2. How will the commission exercise its discretion?
    3. How will the commission apply the provision to pending 
proceedings?
IV. Rulemaking Analyses and Notices

I. Executive Summary

    Title IV of the Howard Coble Coast Guard and Maritime 
Transportation Act of 2014, Public Law 113-281 (Coble Act), enacted on 
December 18, 2014, made amendments to the Shipping Act of 1984 and the 
statutory provisions governing the general organization of the 
Commission. Specifically, section 402 of the Coble Act amended the 
statutory provision governing the award of attorney fees in Shipping 
Act complaint proceedings. Attorney fees may now be awarded to the 
prevailing party in any complaint proceeding. See 46 U.S.C. 41305(e). 
Section 403 of the Coble Act established term limits for future 
Commissioners, limited the amount of time that future Commissioners 
will be permitted to serve beyond the end of their terms, and 
established conflict-of-interest restrictions for current and future 
Commissioners. See 46 U.S.C. 301(b).
    In response to these statutory amendments, the Commission is 
proposing to amend affected regulations to conform the regulatory 
language to the revised statutory text.\1\ In addition, the Commission 
is seeking comment on an appropriate framework for determining attorney 
fee awards under the amended fee-shifting provision. The Commission is 
considering providing additional guidance on this issue in the final 
rule and, where appropriate, incorporating that guidance into the 
Commission Rules of Practice and Procedure. To that end, this proposal 
discusses three general questions on which the Commission's guidance 
would focus:
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    \1\ The Coble Act amendments to 46 U.S.C. 301(b) establishing 
conflict-of-interest restrictions for Commissioners are outside the 
scope of this rulemaking. The Commission is currently evaluating the 
need for regulatory action in response to these amendments.
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     Who is eligible to recover attorney fees?
     How will the Commission exercise its discretion to 
determine whether to award attorney fees to an eligible party?
     How will the Commission apply the new attorney-fee 
provision to proceedings that were pending before the Commission when 
the Coble Act was enacted on December 18, 2014?
    Although the Commission recognizes that the application of the fee-
shifting provision will depend on the specific facts in individual 
complaint proceedings, the Commission believes that general guidance on 
these broader issues will reduce uncertainty and simplify the 
disposition of attorney-fee issues.

II. Background

A. Attorney Fees

    Section 11(a)-(b) of the Shipping Act of 1984, currently codified 
at 46 U.S.C. 41301, establishes a procedure by which a person may file 
a complaint with the Commission alleging a violation of the Shipping 
Act.\2\ Prior to the enactment of the Coble Act, 46 U.S.C. 41305(b) 
(section 11(g) of the Shipping Act) provided that ``[i]f the complaint 
was filed within . . . [three years after the claim accrued], the 
Federal Maritime Commission shall direct the payment of reparations to 
the complainant for actual injury caused by a violation of this part, 
plus reasonable attorney fees.''
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    \2\ The Shipping Act also authorizes the Commission to initiate 
investigations of possible violations of the Shipping Act on its own 
motion. 46 U.S.C. 41302.
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    To implement the statutory provision in section 11(g) mandating the 
award of attorney fees, the Commission added a sentence to Rule 253 of 
its Rules of Practice and Procedure. Final Rules To Implement the 
Shipping Act of 1984 and To Correct and Update Regulations, 49 FR 16994 
(Apr. 23, 1984). After determining that more comprehensive regulations 
were needed, the Commission established Rule 254 (46 CFR 502.254) in 
1987. Attorney's Fees in Reparation Proceedings, 52 FR 6330 (Mar. 3, 
1987).
    The Commission interpreted section 11(g) as providing for attorney 
fees only to prevailing complainants in reparation proceedings, and 
Rule 254 reflects this limitation. See Attorney's Fees in Reparation 
Proceedings, 51 FR 37917 (Oct. 27, 1986); 46 CFR 502.254. In subsequent 
decisions, the Commission specified three conditions for recovering 
attorney fees pursuant to Rule 254: ``(1) a violation of the 1984 Act; 
(2) actual injury caused by such violation; and (3) payment of 
reparations to compensate for such injury.'' A/S Ivarans Rederi v. 
Companhia de Navegacao Lloyd Brasileiro, 25 S.R.R. 1061, 1063 (FMC 
1990). Complainants who prevailed on the merits of the complaint, but 
who did not obtain a reparations award, were not eligible to recover 
attorney fees. See id. at 1064; 51 FR 37917.
    Section 402 of the Coble Act deleted the portion of 46 U.S.C. 
41305(b) pertaining to attorney fees and added a new subsection (e), 
which reads as follows: ``Attorney Fees.--In any action brought under 
section 41301, the prevailing party may be awarded reasonable attorney 
fees.'' These amendments appear to affect the award of attorney fees in 
three significant ways. First, the revised language expands the 
categories of persons eligible to recover attorney fees to include any 
``prevailing party,'' not merely prevailing complainants. Second, the 
award of attorney fees is no longer conditioned on an award of 
reparations; under the amended language, attorney fees are recoverable 
``[i]n any action brought under section 41301.'' Finally, whereas 46 
U.S.C. 41305(b) directed the Commission to award reasonable attorney 
fees to an eligible party, the new provision in subsection (e) states 
that such fees ``may be awarded,'' thus granting the Commission 
discretion to determine the circumstances under which eligible parties 
are entitled to attorney fees.
    There is limited legislative history for section 402. An 
informational brochure about the Coble Act issued by the House 
Transportation and Infrastructure Committee states only that ``th[e] 
section clarifies that in actions filed with the FMC alleging a 
violation of law pertaining to ocean shipping, the prevailing party in 
the proceeding may be awarded reasonable attorney fees.'' \3\
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    \3\ House Committee on Transportation & Infrastructure, The 
Howard Coble Coast Guard & Maritime Transportation Act of 2014, at 
20 (2014), available at http://transportation.house.gov/uploadedfiles/coastguardreauthsenateagreement.pdf.
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B. Commissioner Terms and Vacancies

    The statutory provisions governing the general organization of the 
Commission are codified at 46 U.S.C. 301. Prior to the enactment of the 
Coble Act, there was no statutory limit on the number of terms a 
Commissioner could serve. In addition, when a Commissioner's term 
ended, the Commissioner could continue to serve until a successor was 
appointed, without any prescribed time limitation. The Commission's 
regulations at 46 CFR 501.2(c) reflect these statutory provisions. 
Section 403 of the Coble Act amended 46 U.S.C. 301(b) and established 
term limits for

[[Page 38155]]

Commissioners appointed and confirmed by the Senate on or after the 
date of enactment, i.e., December 18, 2014. Specifically, future 
Commissioners will be limited to two terms, in addition to the 
remainder of any term for which the Commissioner's predecessor was 
appointed. See 46 U.S.C. 301(b)(2) and (3). Section 403 also limited 
the amount of time future Commissioners will be permitted to serve 
beyond the end of their terms, to a period not to exceed one year. See 
46 U.S.C. 301(b)(2).

III. Proposal

A. Conforming Amendments

    Given the amendments made by the Coble Act to 46 U.S.C. 301 and 
41305, the Commission is proposing amendments to its regulations to 
implement the revised statutory text.
 1. Attorney-Fee Provision
    The Commission proposes to amend Rule 254 of its Rules of Practice 
and Procedure to conform the regulatory text to the revised language of 
46 U.S.C. 41305. The proposed amendments include:
     replacing references to ``complainant'' with ``prevailing 
party'';
     replacing references to ``respondent'' with ``opposing 
party'';
     replacing references to reparations awards with references 
to complaint proceedings more generally; and
     amending the language to clarify that the Commission now 
has discretion regarding the award of fees, and that fee petitions may 
be denied.
    The Commission is also proposing to delete the clause stating that 
recoverable attorney fees include compensation for services in related 
federal court proceedings. The Commission originally included this 
language based on the text of the previous statutory fee-shifting 
provision and its legislative history. 52 FR 6330 (Mar. 3, 1987). Given 
the textual differences between that provision and the fee-shifting 
provision added by the Coble Act, combined with the absence of any 
legislative history regarding the applicability of the new fee-shifting 
provision to services performed in other proceedings, the Commission 
has tentatively determined to remove this language. Under the amended 
Rule 254 as proposed below, the Commission would resolve any issues 
related to compensation for services performed in other proceedings on 
a case-by-case basis, in accordance with relevant federal case law.
    The Commission requests comment on these proposed amendments and 
any other amendments necessary to reflect the amended statutory 
language.
    In addition to the substantive amendments to its Rules of Practice 
and Procedure described above, the Commission is proposing a number of 
minor changes to improve the clarity and organization of Rule 254. For 
example, the Commission is proposing to add cross-references to 
relevant provisions governing formal and informal small claims. 
Although the Commission Rules state that Rule 254 applies to such 
claims, see 46 CFR 502.305, 502.321, the requirements for filing fee 
petitions inadvertently omit relevant references to these claims. 
Likewise, the Commission is proposing conforming edits to these rules 
to reflect the proposed amendments to Rule 254.
    The Commission is also proposing to replace the term ``presiding 
officer'' in Rule 254 with the phrase, ``administrative law judge or 
small claims officer.'' As used in Rule 254, the term ``presiding 
officer'' is meant to include these officials but not members of the 
Commission. This could create confusion because, as defined in Rule 25, 
``presiding officer'' can mean an administrative law judge or one or 
more members of the Commission, and small claims officers are not 
expressly included in the definition. See 46 CFR 502.25(a).
2. Terms and Vacancies Provisions
    The Commission proposes to amend 46 CFR 501.2(c) to conform the 
regulatory text to the revised language of 46 U.S.C. 301(b). 
Specifically, the Commission proposes dividing paragraph (c) into 
several subparagraphs addressing the length of Commissioner terms, 
removal of Commissioners, vacancies on the Commission, and term limits 
for both current and future Commissioners.

B. Implementing the Amended Attorney-Fee Provision

    The Commission seeks comment on an appropriate framework for 
determining attorney fee awards under the amended fee-shifting 
provision. Specifically, the Commission would like to provide general 
guidance in the final rule on the following questions:
     Who is eligible to recover attorney fees?
     How will the Commission exercise its discretion to 
determine whether to award attorney fees to an eligible party?
     How will the Commission apply the new attorney-fee 
provision to proceedings that were pending before the Commission when 
the Coble Act was enacted on December 18, 2014?

This proposal discusses various options to address these issues that 
are currently being considered. We request comment on these options.
1. Who is eligible to recover attorney fees?
    As discussed in the Background section, prior to the enactment of 
the Coble Act, the Shipping Act provided for the award of attorney fees 
to prevailing complainants in reparation proceedings. The new attorney-
fee provision added by the Coble Act provides for the award of attorney 
fees to the prevailing party in any action brought under section 41301. 
This raises several questions including:
     What types of actions are covered by the attorney-fee 
provision?
     Who is considered a ``party''?
     When will a ``party'' be considered to have ``prevailed'' 
in a covered action?
    Examining the first question, section 41301 permits a person to 
file a complaint with the Commission alleging a violation of the 
Shipping Act. 46 U.S.C. 41301(a). The Commission is required to provide 
a copy of the complaint to the person named in the complaint, and, if 
the complaint is not satisfied, the Commission is directed to 
investigate the complaint in an appropriate manner and make an 
appropriate order. 46 U.S.C. 41301(b)-(c). Based on the wording of the 
Coble Act's attorney-fee provision and the wording of section 41301, it 
appears that attorney fees may now be awarded in any complaint 
proceeding. The Commission requests comment on this interpretation.
    Regarding the second question, the Commission's Rules define the 
term ``party'' in Commission proceedings to include any natural person, 
corporation, association, firm, partnership, trustee, receiver, agency, 
public or private organization, or government agency (including a unit 
representing the agency). 46 CFR 502.41. The Commission requests 
comment on any reasons why the existing definition would not be 
appropriate to use in applying the new attorney-fee provision.
    When a party will be considered to have ``prevailed'' in a 
complaint proceeding is a more complex issue because of the number of 
different possible outcomes. The Commission notes, however, that a 
number of fee-shifting provisions in other statutes also provide for 
the award of fees to the ``prevailing party,'' and there is abundant 
case law interpreting the term. See, e.g., 17 U.S.C. 505; 42 U.S.C 
1988(b); 42 U.S.C 2000a-3(b); 42 U.S.C. 2000e-5(k). Therefore, the 
Commission proposes to rely on relevant federal case law to the extent 
practicable in determining whether a party has

[[Page 38156]]

``prevailed'' in a particular complaint proceeding and is thus eligible 
to recover attorney fees under the new fee-shifting provision. The 
Commission requests comment on this approach and any alternative 
approaches.
2. How will the commission exercise its discretion?
    The text of the new attorney-fee provision is silent as to how the 
Commission should exercise its discretion in awarding fees to an 
eligible party. The provision neither describes a standard of 
entitlement nor lists any factors for consideration, and the sparse 
legislative history provides little guidance. Therefore, the Commission 
has examined the standards used by federal courts in determining 
entitlement to attorney fees under provisions with language similar to 
46 U.S.C. 41305(e), i.e., those provisions that allow for, but do not 
require, the award of attorney fees to the prevailing party in an 
action. The Commission has identified two prevalent standards used by 
the federal courts in determining fee entitlement under this type of 
provision.
    The first is the standard used by federal courts applying the fee-
shifting provision in the Copyright Act, 17 U.S.C. 505. The Supreme 
Court has cited with approval a nonexclusive list of factors for courts 
to consider when determining entitlement, including ``frivolousness, 
motivation, objective unreasonableness (both in the factual and in the 
legal components of the case) and the need in particular circumstances 
to advance considerations of compensation and deterrence.'' Fogerty v. 
Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994) (quoting Lieb v. Topstone 
Industries, Inc., 788 F.2d 151, 156 (3rd Cir. 1986)) (internal 
quotation marks omitted). In addition, the courts use the same standard 
for prevailing plaintiffs and prevailing defendants when making such 
determinations. See Fogerty, 510 U.S. at 534-35.
    The second standard identified by the Commission is used in 
determining entitlement to attorney fees under the Civil Rights Act, 
e.g., 42 U.S.C 2000a-3(b), 42 U.S.C. 2000e-5(k). Under this standard, 
prevailing plaintiffs are treated more favorably than prevailing 
respondents when determining entitlement to attorney fees. While 
prevailing plaintiffs ``ordinarily recover an attorney's fee unless 
special circumstances would render such an award unjust,'' Newman v. 
Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968), prevailing 
defendants are awarded attorney fees only ``upon a finding that the 
plaintiff's action was frivolous, unreasonable, or without 
foundation.'' Christiansburg Garment Co. v. Equal Employment 
Opportunity Comm'n, 434 U.S. 412, 421 (1978).
    The Commission requests comment on these two standards and whether 
either standard would be appropriate to use in applying the new 
attorney-fees provision in complaint proceedings. In particular, the 
Commission requests comment on the factors considered under each 
standard in determining entitlement and whether the same standard 
should apply to prevailing complainants and prevailing respondents. The 
Commission further requests comment on any other standards the 
Commission should consider.
    The Commission also seeks feedback on the following questions: 
Should the Commission decline to adopt any framework as part of this 
rulemaking and, instead, address all entitlement issues through the 
formal adjudication process? If the Commission decides to adopt one of 
the standards used by the courts, should any additional criteria be 
added? For example, if the Commission were to adopt the nonexclusive 
list of factors used in Copyright Act attorney-fee determinations, are 
there additional factors the Commission should consider in light of the 
purpose of the Shipping Act and the nature of complaint proceedings 
brought under the Act? Should the standard for entitlement used by the 
Commission depend on the type of proceeding? For example, should the 
Commission use a standard more favorable to complainants in small 
claims proceedings, which often, though not always, involve individuals 
who file complaints against businesses with greater resources?
3. How will the commission apply the provision to pending proceedings?
    The effective date of the Coble Act was December 18, 2014, and 
given the differences between 46 U.S.C. 41305(e) and the previous 
attorney-fee provision, the Commission will likely need to address 
whether and how section 41305(e) applies to complaint proceedings that 
were initiated prior to December 18, 2014, and are still pending before 
the Commission.
    In determining the applicability of a newly enacted statute to 
pending cases, the courts first look to ``whether Congress has 
expressly prescribed the statute's proper reach.'' Fernandez-Vargas v. 
Gonzales, 548 U.S. 30, 37 (2006) (quoting Landgraf v. USI Film 
Products, 511 U.S. 244, 280 (1994) (internal quotation marks omitted). 
If the statute's reach cannot be determined from the text and the 
application of the normal rules of statutory construction, the court 
must ``determine whether the application of the statute to the conduct 
at issue would result in a retroactive effect,'' Martin v. Hadix, 527 
U.S. 343, 352 (1999), i.e., ``whether it would impair rights a party 
possessed when he acted, increase a party's liability for past conduct, 
or impose new duties with respect to transactions already completed.'' 
Landgraf, 511 U.S. at 280; see also Fernandez-Vargas at 548 U.S. at 37. 
``If the answer is yes,'' the courts then apply the traditional 
``presumption against retroactivity by construing the statute as 
inapplicable to the event or act in question owing to the `absen[ce of] 
a clear indication from Congress that it intended such a result.' '' 
Fernandez-Vargas at 548 U.S. at 37-38 (quoting Immigration & 
Naturalization Serv. v. St. Cyr, 533 U.S. 289, 316 (2001)); see also 
Landgraf, 511 U.S. at 280. In cases in which the statute would not have 
a ``genuinely `retroactive' effect,'' the general rule is that a court 
``should `apply the law in effect at the time it renders its decision,' 
even though that law was enacted after the events that gave rise to the 
suit.'' Landgraf, 511 U.S. at 273, 277 (quoting Bradley v. Sch. Bd. of 
City of Richmond, 416 U.S. 696, 711 (1974)) (citation omitted).
    One option for addressing attorney-fee determinations in pending 
proceedings would be to analyze the specific facts of individual cases 
under the framework above and determine whether application of the new 
provision would have a retroactive effect. If it would not, the 
Commission would apply the new provision to determine entitlement to 
attorney fees.
    The Commission requests comment on this approach and any 
alternative approaches. Would a bright line rule be preferable? For 
example, the Commission could establish a rule stating that it will 
apply the previous entitlement standard in all complaint proceedings 
initiated before a certain date, such as the enactment date of the 
Coble Act.

IV. 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 is 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 for 
public comment an initial regulatory flexibility analysis (IRFA) 
describing the impact of the proposed rule on small entities. 5 U.S.C. 
603. An agency is not required to

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publish an IRFA, 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.
    Although the Commission has elected to seek public comment on its 
proposed regulatory amendments and the application of the Coble Act's 
new attorney-fee provision, these matters concern the organization of 
the Commission, its practices and procedures, and its interpretation of 
statutory provisions. Therefore, the APA does not require publication 
of a notice of proposed rulemaking in this instance, and the Commission 
is not required to prepare an IRFA.

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 
proposed rules to OMB in conjunction with the publication of the notice 
of proposed rulemaking. 5 CFR 1320.11. The Commission is not proposing 
any collections of information, as defined by 44 U.S.C. 3502(3) and 5 
CFR 1320.3(c), as part of this proposed rule.

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

46 CFR Part 501

    Administrative practice and procedure, Authority delegations 
(Government agencies), Organization and functions (Government 
agencies), Seals and insignia.

46 CFR Part 502

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

    For the reasons stated in the preamble, the Commission proposes to 
amend 46 CFR parts 501 and 502 as follows:

PART 501--THE FEDERAL MARITIME COMMISSION--GENERAL

0
1. The authority citation for part 501 continues to read as follows:

    Authority: 5 U.S.C. 551-557, 701-706, 2903 and 6304; 31 U.S.C. 
3721; 41 U.S.C. 414 and 418; 44 U.S.C. 501-520 and 3501-3520; 46 
U.S.C. 301-307, 40101-41309, 42101-42109, 44101-44106; Pub. L. 89-
56, 70 Stat. 195; 5 CFR part 2638; Pub. L. 104-320, 110 Stat. 3870.
0
2. Amend Sec.  501.2 by revising paragraph (c) to read as follows:


Sec.  501.2  General.

* * * * *
    (c) Terms and vacancies--(1) Length of terms. The term of each 
member of the Commission is five years and begins when the term of the 
predecessor of that member ends (i.e., on June 30 of each successive 
year).
    (2) Removal. The President may remove a Commissioner for 
inefficiency, neglect of duty, or malfeasance in office.
    (3) Vacancies. A vacancy in the office of any Commissioner is 
filled in the same manner as the original appointment. An individual 
appointed to fill a vacancy is appointed only for the unexpired term of 
the individual being succeeded.
    (4) Term Limits--(i) Commissioners appointed and confirmed before 
December 18, 2014. When a Commissioner's term ends, the Commissioner 
may continue to serve until a successor is appointed and qualified.
    (ii) Commissioners appointed and confirmed on or after December 18, 
2014. (A) When a Commissioner's term ends, the Commissioner may 
continue to serve until a successor is appointed and qualified, limited 
to a period not to exceed one year.
    (B) No individual may serve more than two terms, except that an 
individual appointed to fill a vacancy may serve two terms in addition 
to the remainder of the term for which the predecessor of that 
individual was appointed.
* * * * *

PART 502--RULES OF PRACTICE AND PROCEDURE

0
3. 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; 5 U.S.C. 571-584; 18 U.S.C. 207; 28 U.S.C. 2112(a); 31 
U.S.C. 9701; 46 U.S.C. 305, 40103-40104, 40304, 40306, 40501-40503, 
40701-40706, 41101-41109, 41301-41309, 44101-44106; E.O. 11222 of 
May 8, 1965.

Subpart O--Reparation; Attorney Fees

0
4. Revise the heading of Subpart O to read as set forth above.
0
5. Revise Sec.  502.254 to read as follows:


Sec.  502.254  Attorney fees in complaint proceedings.

    (a) General. In any complaint proceeding brought under section 
11(a) of the Shipping Act of 1984 (46 U.S.C. 41301), the Commission 
may, upon petition, award the prevailing party reasonable attorney 
fees.
    (b) Definitions.
    Attorney fees means the fair market value of the services of any 
person permitted to appear and practice before the Commission in 
accordance with subpart B of this part.
    Decision means:
    (1) An initial decision or dismissal order issued by an 
administrative law judge;
    (2) A final decision issued by a small claims officer; or
    (3) A final decision issued by the Commission.
    (c) Filing petitions for attorney fees. (1) In order to recover 
attorney fees, the prevailing party must file a petition within 30 days 
after a decision becomes final. For purposes of this section, a 
decision is considered final when the time for seeking judicial review 
has expired or when a court appeal has terminated.
    (2) The prevailing party must file the petition with either:
    (i) The administrative law judge or small claims officer, if that 
official's decision became administratively final under Sec.  
502.227(a)(3), Sec.  502.227(c), Sec.  502.304(g), or Sec.  502.318(a); 
or
    (ii) The Commission, if the Commission reviewed the decision of the 
administrative law judge or small claims officer under Sec.  502.227, 
Sec.  502.304, or Sec.  502.318.
    (d) Content of petitions. The petition must specify the number of 
hours claimed by each person representing the prevailing party at each 
identifiable stage of the proceeding, and must be supported by evidence 
of the reasonableness of the hours claimed and the customary rates 
charged by attorneys and associated legal representatives in the 
community where the person practices. The petition may request 
additional compensation, but any such request must be supported by

[[Page 38158]]

evidence that the customary rates for the hours reasonably expended on 
the case would result in an unreasonably low fee award.
    (e) Replies to petitions. The opposing party may file a reply to 
the petition within 20 days of the service date of the petition. The 
reply may address the reasonableness of any aspect of the prevailing 
party's claim and may suggest adjustments to the claim under the 
criteria stated in paragraph (d) of this section.
    (f) Rulings on petitions. (1) Upon consideration of a petition and 
any reply thereto, the Commission, administrative law judge, or small 
claims officer will issue an order granting or denying the petition.
    (i) If the order awards the prevailing party attorney fees, the 
order will state the total amount of attorney fees awarded, specify the 
compensable hours and appropriate rate of compensation, and explain the 
basis for any additional adjustments.
    (ii) If the order denies the prevailing party attorney fees, the 
order will explain the reasons for the denial.
    (2) The Commission, administrative law judge, or small claims 
officer may adopt a stipulated settlement of attorney fees.
    (g) Timing of rulings. An order granting or denying a petition for 
attorney fees will be served within 60 days of the date of the filing 
of the reply to the petition or expiration of the reply period, except 
that in cases involving a substantial dispute of facts critical to the 
determination of an award, the Commission, administrative law judge, or 
small claims officer may hold a hearing on such issues and extend the 
time for issuing an order by an additional 30 days.
    (h) Appealing rulings by administrative law judge or small claims 
officer. When an administrative law judge or small claims officer 
issues an order granting or denying a fee petition, Sec.  502.227 
governs the appeal of that order and Commission review of that order in 
the absence of appeal. [Rule 254.]
0
6. Amend Sec.  502.305 by revising paragraph (b) to read as follows:


Sec.  502.305  Applicability of other rules of this part.

* * * * *
    (b) The following sections in subparts A through Q of this part 
apply to situations covered by this subpart: Sec. Sec.  502.2(a) 
(Requirement for filing); 502.2(f)(1) (Email transmission of filings); 
502.2(i) (Continuing obligation to provide contact information); 502.7 
(Documents in foreign languages); 502.21-502.23 (Appearance, Authority 
for representation, Notice of appearance; substitution and withdrawal 
of representative); 502.43 (Substitution of parties); 502.101 
(Computation); 502.117 (Certificate of service); 502.253 (Interest in 
reparation proceedings); and 502.254 (Attorney fees in complaint 
proceedings). [Rule 305.]
0
7. Amend Sec.  502.318 by revising paragraph (b) to read as follows:


Sec.  502.318  Decision.

* * * * *
    (b) Attorney fees may be awarded to the prevailing party in 
accordance with Sec.  502.254. [Rule 318.]
0
8. Amend Sec.  502.321 by revising paragraph (b) to read as follows:


Sec.  502.321  Applicability of other rules of this part.

* * * * *
    (b) The following sections in subparts A through Q apply to 
situations covered by this subpart: Sec. Sec.  502.2(a) (Requirement 
for filing); 502.2(f)(1) (Email transmission of filings); 502.2(i) 
(Continuing obligation to provide contact information); 502.7 
(Documents in foreign languages); 502.21-502.23 (Appearance, Authority 
for representation, Notice of appearance; substitution and withdrawal 
of representative); 502.43 (Substitution of parties); 502.253 (Interest 
in reparation proceedings); and 502.254 (Attorney fees in complaint 
proceedings). [Rule 321.]

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2015-16260 Filed 7-1-15; 8:45 am]
 BILLING CODE P